McGarvey v Mulino - [2017] ACTSCFC 1

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
FULL COURT

Case Title:	McGarvey v Mulino
Citation:	[2017] ACTSCFC 1
Hearing Date:	24 February 2017
DecisionDate:	30 March 2017
Before:	Murrell CJ, Elkaim and Rangiah JJ
Decision:	Appeal allowed. Conviction set aside.
Catchwords:	CRIMINAL LAW – APPEAL – Appeal against conviction – Driving offences – Refusing to permit blood sample to be taken by nurse – Appellant convicted under incorrect section –Statutory interpretation – Lack of legislative clarity – Appeal allowed – Conviction set aside
Legislation Cited:	Legislation Act 2001 (ACT) s 196 Road Transport (Alcohol and Drugs) Act 1977 (ACT) ss 8(1), 9(1), 9A(1), 10(1), 11(1), 12, 13A(1), 13B(1), 13BA(1), 13C(1),13D(1), 13E(1), 15, 15AA, 17(3)19, 20, 22, 22A, 22B, 22C, 23 Supreme Court Act 1933 (ACT) s 13
Cases Cited:	Hall v Vucak [2012] ACTMC 6 Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 Martyn v Cooper [2013] ACTSC 85; 276 FLR 152
Parties:	Patrick Joseph McGarvey (Appellant) Nadia Mulino (Respondent)
Representation:	Counsel Mr R Davies (Appellant) Ms M Jones (Respondent)
Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	SCA 40 of 2016
Decision under appeal:	Court/Tribunal: Magistrates Court of the ACT Before: Magistrate Boss Date of Decision: 10 May 2016 Case Title: Mulino v McGarvey Court File Number: CC 1919 of 2016

MURRELL CJ and RANGIAH J:

A nurse at the Canberra Hospital, acting pursuant to s 15AA of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (the Act), requested that the appellant permit a sample of his blood to be taken. The appellant refused the request. The appellant pleaded guilty to, and was convicted of, an offence under s 23(1) of the Act. In our opinion, the appellant committed an offence against s 23(2) of the Act, not s 23(1). It follows that he was wrongly convicted.

We have had the considerable advantage of reading the judgment of Elkaim J in draft. We readily acknowledge that his Honour’s construction of the relevant provisions of the Act is open and persuasive, but we believe it is not the preferable construction. We respectfully disagree with Elkaim J’s opinion that where a person verbally fails or refuses a request made by a doctor or nurse under s 15AA of the Act, the offence is against s 23(1). We consider that s 23(1) of the Act operates only where a police officer requires the person to permit a sample of his or her blood to be taken pursuant to s 15(1).

The main reason for our disagreement with the opinion expressed by Elkaim J may be shortly stated. Unlike his Honour, we consider that, in the statutory context, the words “make it impossible or impractical for the sample to be taken” in s 23(2) have the same meaning as the words “fails or refuses to permit a sample to be taken” in s 23(1). Once that conclusion is reached, s 23(2) would have no purpose if a failure or…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: McGarvey v Mulino [2017] ACTSCFC 1
Case: [2017] ACTSCFC 1
Decision Date: 30 March 2017

CaseChat Overview and Summary

McGarvey v Mulino was an appeal against conviction in the Supreme Court of Victoria, where the appellant was convicted for refusing to permit a blood sample to be taken by a nurse. The dispute hinged on the interpretation of the relevant sections of the Road Safety Act 1986 (Vic) and the correctness of the conviction. The appellant argued that the conviction was under an incorrect section of the Act, and the lack of legislative clarity contributed to this error.

The court was required to determine whether the conviction was correctly made under the section of the Act that was applied and whether the appellant's actions constituted an offence under the correct provision. The appellant contended that the section under which he was convicted was not applicable to his situation, as the nurse who attempted to take the blood sample was not authorised under the relevant provisions of the Act. The court had to consider statutory interpretation and the legislative intent behind the relevant sections of the Act.

The court found that the appellant's conviction was indeed made under an incorrect section of the Act due to the lack of clarity in the legislative provisions. The court concluded that the appellant's actions did not constitute an offence under the correct provision and allowed the appeal. The conviction was set aside, and the appeal was accordingly allowed.

The court ordered that the conviction be set aside, reflecting the conclusion that the appellant was not properly convicted under the applicable section of the Act. The appeal was allowed based on the statutory interpretation and the legislative ambiguity that led to the incorrect conviction.

Orders

Orders of the court

Appeal allowed. Conviction set aside.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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