McGarvey v Mulino
[2017] ACTSCFC 1
•30 March 2017
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 refusal to permit a sample to be taken following a request under s 15AA is an offence against s 23(1). The significance is that a statute must usually be interpreted such that no provision is superfluous: Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [71].
In contrast, Elkaim J notes that there is an overlap between ss 23(1) and (2), but states that there are factual circumstances which may come within sub-s (2), but not sub-s (1). His Honour gives an example of a person who fills out a form indicating his or her consent to have a sample of blood taken pursuant to s 15AA of the Act, but then resists the actual taking of the blood. His Honour says that the person’s initial consent prevents a charge under s 23(1), but his or her subsequent behaviour allows a charge to be brought under s 23(2). By that reasoning, it must also follow that where a police officer requires a person to permit a sample of his or her blood to be taken pursuant to s 15(1) and the person initially consents but later resists, the person does not commit an offence against s 23(1) of the Act. We respectfully disagree with the proposition that initial consent followed by refusal means that the person commits no offence against s 23(1). A construction of s 23(1) in that way would have far-reaching consequences, as we will explain.
The long title of the Act indicates that its purposes include detection of people who drive motor vehicles after consuming alcohol or drugs, and the creation of offences for such people. Section 19 creates an offence where the driver of a motor vehicle on a road or road related area has, within the relevant period, the prescribed concentration of alcohol in the person’s blood or breath. Section 20 creates a corresponding offence where a driver has a prescribed drug in the person’s blood or oral fluid.
The detection of offences against ss 19 and 20 of the Act requires testing of drivers’ breath, blood or saliva. This is facilitated by allowing doctors or nurses to take blood samples for analysis in the circumstances described in ss 15 and 15AA. It is also facilitated by allowing police officers to require drivers to undertake breath tests (called “alcohol screening tests”) under ss 8(1), 9(1), 9A(1), 10(1), 11(1) and 12, and drug tests under ss 13A(1), 13B(1), 13BA(1), 13C(1), 13D(1) and 13E(1).
If a driver fails or refuses to give a sample, the driver cannot be convicted of an offence against ss 19 or 20 of the Act. Police officers, doctors or nurses are not given statutory power to physically compel drivers to give samples of blood, breath or saliva. Instead, such failure or refusal is itself made an offence. Thus, s 22 provides, relevantly, that a person who “has, in accordance with the provisions specified in this Act, been required to provide a sample of breath for breath analysis” commits an offence if “the person fails or refuses to provide a sample of breath” for analysis. There are corresponding offences where a person is required to, but fails or refuses to, provide an oral fluid sample for analysis (s 22A), or a person fails or refuses to undergo an alcohol screening test or drug screening test (ss 22B and 22C).
If s 23(1) of the Act is to be construed such that a person who initially consents to provide a sample of breath but later resists, commits no offence against the provision, logically, ss 22, 22A, 22B and 22C should be construed in the same way. However, there are no provisions equivalent to s 23(2) that create offences of making it “impossible or impractical” for a breath or saliva sample to be taken. The result would be that a person who initially consents to providing a breath or saliva sample but later resists, commits no offence at all. Such a construction would undermine the purposes of the Act and should be rejected.
In our opinion, s 23(1) of the Act applies even where there has been initial consent followed by a subsequent failure or refusal. Further, s 23(1) should be construed to refer to any form of failure or refusal, whether verbal, written, or by conduct.
Contrary to the view expressed by Elkaim J, we do not accept that the words “fails or refuses to permit a sample to be taken” in s 23(1) of the Act have a narrower, or different, scope of operation than the words “make it impossible or impractical for the sample to be taken” in s 23(2). While different words are used, in our opinion, they mean the same thing. As we have said, the Act does not allow a police officer, doctor or nurse to take a sample of blood against the will of the person; that is why offences are created under ss 23(1) and (2). A failure or refusal to permit a sample to be taken, therefore, is also behaviour that makes it impossible or impractical for the sample to be taken. Behaviour that makes it impossible or impractical for a sample to be taken amounts to a failure or refusal to permit a sample to be taken. A person’s verbal or written interactions with others are part of the person’s behaviour. For the purposes of both ss 23(1) and (2), it does not matter whether the failure or refusal is manifested verbally, or in writing, or by behaviour such as physically resisting the taking of a sample.
We accept that where two statutory provisions use quite different words, they are usually taken to mean different things, or at least to not have exactly the same meaning. In this case, we think that the difference in language is simply a product of poor drafting which does not accurately reflect the legislative intention that emerges from consideration of the statutory scheme as a whole. As we have said, if a failure or refusal in response to a request under s 15AA is an offence against s 23(1), that would leave s 23(2) with no purpose. That result should be avoided.
There are also other reasons for construction of ss 15(1), 15AA and 23 of the Act in the manner we favour. Section 15(1) empowers a police officer to “require the person to permit a sample of his or her blood to be taken” (emphasis added). Section 23(1) applies to a person who “has, in accordance with the provisions specified in this Act, been required to permit a sample of blood to be taken for analysis” (emphasis added). In this way, s 15(1) is clearly ‘paired’ with s 23(1). We have also referred to ss 22, 22A, 22B and 22C which use the word “require” to create ‘pairings’ of sections of the Act in relation to other forms of testing.
In contrast, s 15AA of the Act does not use the word “require”. This suggests that s 15AA is not intended to be ‘paired’ with s 23(1). Instead, it is expressly ‘paired’ with s 23(2), which was introduced at the same time as s 15AA. Further, s 15AA makes it an offence for a doctor or nurse to fail to take a sample of blood in the circumstances set out in the provision, but s 17(3) provides a defence where the doctor or nurse satisfies the Court that “because of the behaviour of the person”, the doctor or nurse was unable to take the sample. The use of the word “behaviour” in s 17(3) suggests that the same conduct is intended to inform the offence in s 23(2) of “behav[ing] in such a manner as to make it impossible or impractical for the sample to be taken.” That emphasises the connection between ss 15AA and 23(2) and suggests that the connection is exclusive of s 23(1), which uses different language.
In Martyn v Cooper [2013] ACTSC 85; 276 FLR 152, the appellant had attended a hospital after a motor vehicle accident and was asked by a doctor acting under s 15AA of the Act to permit a sample of blood to be taken. The respondent refused and was charged with an offence under s 23(1). Penfold J held that as there was no requirement by a police officer under s 15(1) of the Act to permit a sample of blood to be taken, there was no offence under s 23(1) of the Act. We respectfully concur with that conclusion.
However, Penfold J went on to conclude that the respondent had also committed no offence against s 23(2). Her Honour said:
[25] ... Section 23(2), in my view deals with the situation where a person does not refuse or fail to give consent to the procedure (thus avoiding any prosecution under s 23(1)) but does not co-operate in the physical processes of taking a blood sample – for instance, by refusing to keep still while the doctor or nurse finds a vein and inserts a needle.
…
[32] Nor in my view did Mr Martyn commit an offence under s 23(2). Certainly he refused to consent to the taking of blood, but under s 17(2)(b), the effect of that refusal was to free the doctor from the obligation under s 15AA to take a blood sample; thus there was no continuing requirement under s 15AA for the sample to be taken, and no possible offence under s 23(2).
We respectfully disagree with these aspects of Penfold J’s opinion. It seems most unlikely that the legislature intended that a person who consents to the taking of blood, and then by physical action refuses, commits an offence, while a person who consents and then verbally refuses, or verbally refuses from the outset, commits no offence. Further, it does not follow from the fact that refusal of consent by a person frees the doctor or nurse from the obligation of taking a sample of blood that there are no consequences to the person from his or her refusal. As we have pointed out, the purpose of detection of people who drive after drinking alcohol and taking drugs is facilitated by a statutory scheme which creates offences where people fail or refuse to provide samples for testing. Section 15AA and s 23(2) should be construed consistently with that scheme.
To make it clear, we consider that where a nurse or doctor requests, pursuant to s 15AA of the Act, that a person permit a sample of blood to be taken, and the person fails or refuses (whether verbally, in writing, or by conduct), s 23(2) applies and the charge must be brought under that section.
Section 23(1) of the Act applies only where there has been a requirement made by a police officer under s 15(1). As there was no such requirement, the appellant should not have been convicted of an offence against s 23(1). The respondent accepts that if the charge ought to have been brought under s 23(2) of the Act, a verdict of acquittal should be entered. In our opinion, the appeal should be allowed and a verdict of acquittal should be entered.
Sections 15AA and 23(2) of the Act are badly drafted. For example, s 15AA fails to specify whether a doctor or nurse must request that a person permit a sample of blood to be taken, or whether a sample may only be taken with the consent of the person. Section 15AA contains no equivalent of s 15(5)(b), leaving it unclear as to what a doctor or nurse is to do when a person is incapable of giving consent. This is unsatisfactory where a doctor or nurse is burdened with criminal responsibility for a failure to take a blood sample. Further, as has been demonstrated in this appeal, the task of a police officer in deciding under which provision to lay a charge is made difficult by poor drafting. More generally, a number of provisions of the Act are lengthy and perhaps unnecessarily complex. The detection and punishment of driving under the influence of alcohol and drugs is a matter of high public importance. Accordingly, we recommend that consideration be given to statutory reform in this area.
| I certify that the preceding nineteen [19] numbered paragraphs are a true copy of the Reasons for * Judgment of their Honours Chief Justice Murrell and Justice Rangiah Associate: Date: 30 March 2017 |
ELKAIM J:
Introduction
On 23 January 2016 a Toyota sedan, owned by the appellant, collided with a tree. After a short investigation, the police concluded that the car had been driven by the appellant.
The police attended the home of the appellant where they found him bleeding from large lacerations on his face. The appellant was taken to Canberra Hospital because of his apparent head injuries.
Once at the hospital, to quote the statement of facts:
Registered nurse Samantha Hall, spoke to the male and requested he provide a sample of his blood. In the presence of police the male refused to provide a sample of his blood. Ms Hall made the request several more times and informed the male it was an offence not to provide a sample of his blood. The male continuously refused the request.
On the following day, the appellant was charged with contravention of s 23(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) in that “he in the Australian Capital Territory on 23 January 2016, a repeat offender, having been the driver of a motor vehicle on a road, did refuse to permit a blood sample to be taken from him.”
On 10 May 2016 the appellant appeared before Magistrate Boss in respect of the above charge. He had the benefit of legal representation. He pleaded guilty.
Following the plea of guilty, the appellant was convicted and sentenced to one month’s imprisonment fully suspended upon his signing an undertaking to be of good behaviour for two years with two years supervision. He was disqualified from holding or obtaining a drivers licence for two years.
The appellant initially only appealed against the sentence that had been imposed. He said it was manifestly excessive. On 17 November 2016 the appeal was listed for hearing in the Supreme Court. It came before Burns J. After some discussion his Honour permitted the appellant to amend his Notice of Appeal so as to include an appeal against conviction. The only ground of challenge to the conviction was that the admitted facts could not support a finding of guilt of an offence under s 23(1).
Burns J referred the appeal, limited to the conviction ground, to the Full Court pursuant to s 13 of the Supreme Court Act 1933 (ACT).
The appeal raises questions regarding the interpretation of the Road Transport (Alcohol and Drugs) Act 1977 (ACT), in particular ss 15, 15AA and 23. Section 196 of the Legislation Act 2001 (ACT) is also relevant.
The legislation
Road Transport (Alcohol and Drugs) Act 1977 (ACT)
15Taking blood samples from people in custody
1)If –
a) a police officer does not, because of section 14 (3) (a) or (b) require a person to undergo a screening test or to provide a sample of breath or oral fluid for analysis; or
b) it is not practicable to carry out a breath or oral fluid analysis because –
i.For a breath analysis, a breath analysis instrument is not available or an available breath analysis instrument is not in working order; or
ii.For oral fluid analysis, an oral fluid analysis instrument is not available or an available oral fluid analysis instrument is not in working order; or
c) a person is unable to provide a sufficient sample of oral fluid for analysis;
the police officer may require the person to permit a sample of his or her blood to be taken by a doctor or nurse for analysis and, if the person is not in hospital, may take the person into custody and take the person, or place the person in the custody of another police officer who must take the person, as soon as practicable, to a hospital or sampling facility for that purpose.
2)A requirement must not be made under subsection (1) after the end of whichever the periods specified in section 14 (1) or (2) applies in relation to the person.
3)In this section –
a) a reference to the taking of a blood sample is a reference to the taking of a blood sample under a requirement under subsection (1); and
b) a reference to an analysis of a blood sample is a reference to an analysis of the sample to detect alcohol, or a prescribed drug, or both.
4)A sample of a person’s blood must be taken as soon as practicable after the arrival of the person at hospital or at the sampling facility and must not be taken more than 2 hours after the arrival of the person at hospital or at the facility.
5)A doctor or nurse must not refuse to take a sample of a person’s blood for analysis –
a)if permitted to do so by the person under subsection (1); or
b)if the doctor or nurse is of the opinion that the person is, because of his or her medical opinion, incapable of giving or refusing permission to the taking of such a sample – if requested to do so by a police officer under this section.
Maximum penalty: 10 penalty units.
6)A police officer must not make a request under subsection (5) after the end of whichever of the periods specified in section 14 (1) or (2) applies in relation to the person.
7)The doctor or nurse (the sample taker) taking a sample of blood from the person (the “tested person”) must –
a)take the sample in the presence of a police officer; and
b)place the sample into a container; and
c)attach a label to the container that includes the following information:
i.The sample taker’s name;
ii.The tested person’s name;
iii.The date and time the sample was taken; and
d)ensure that the container is sampled with a tamper-evident seal that has a unique identifying number marked on it; and
e)put the sealed container into a one-way box.
8)The chief police officer must, as soon as practicable, arrange for the container to be collected from the one-way box by an analyst.
15AATaking blood samples from people in hospital
1)A person commits an offence if –
a)The person is a doctor or nurse; and
b)The person attends to a person (the patient) in hospital; and
c)The person believes, on reasonable grounds, that –
i.The patient was a driver or driver trainer involved in an accident; and
ii.The accident happened not longer than 6 hours before the patient arrived at the hospital; and
d)The person does not take a sample of the patient’s blood for analysis within 2 hours after the time the patient arrives at the hospital.
Maximum penalty units: 10 penalty units.
2)The person (the sample taker) taking a sample of blood from a patient must –
a)place the sample into a container; and
b)attach a label to the container that includes the following information:
i.The sample taker’s name;
ii.The patient’s name;
iii.The date and time the sample was taken; and
c)ensure that the container is sealed with tamper-evident seal that has a unique identifying number marked on it; and
d)put the sealed container into a one-way box.
3)The chief police officer must, as soon as practicable, arrange for the container to be collected from the one-way box by an analyst.
23Refusing blood test etc.
1)A person who –
a)Has been –
i.The driver of a motor vehicle on a road or road related area; or
ii.The driver trainer in a motor vehicle on a road or road related area; and
b)Has, in accordance with the provisions specified in this Act, been required to permit a sample of blood to be taken for analysis;
commits an offence punishable, on conviction, by a maximum fine of 30 penalty units if the person fails or refuses to permit the sample to be taken for that purpose.
2)A person from whom a blood sample is required to be taken under section 15AA (1) must not behave in such a manner as to make it impossible or impracticable for the sample to be taken.
Maximum penalty: 30 penalty units.
3)A person who is required under section 16 to undergo a medical examination commits an offence punishable, on conviction, by a maximum fine of 30 penalty units if –
a)The person fails or refuses to submit to the medical examination; or
b)The person fails or refuses, when required by the doctor or authorised nurse practitioner conducting the examination, to give or permit the taking of a sample from his or her body for analysis.
4)It is a defence to a prosecution for an offence against subsection (1), (3) or (3) if the person charged establishes that the failure, refusal or behaviour (as the case requires) was based on religious or other conscientious grounds or on medical grounds.
Legislation Act 2001 (ACT)
S 196Provision giving function gives power to exercise function
1)A provision of a law that gives a function to an entity also gives the entity the powers necessary and convenient to exercise the function.
Note Entity and exercise – see the dictionary, pt 1.
2)The powers given to entity under subsection (1) are in addition to any other powers of the entity under the law.
The appellant’s argument
The appellant submitted that because he had not been required by a police officer to provide a sample of his blood he could not be guilty of an offence under s 23(1).
A request from a nurse did not suffice. The “provisions” referred to in s 23(1)(b) were limited to the power of a police officer acting under the authority given to him by s 15(1).
Therefore, said the appellant, an offence under s 23(1) could only arise from a requirement “to permit a sample of blood to be taken for analysis” which had been made by a police officer exercising his powers under s 15(1).
Consistently, said the appellant, an offence under s 23(2) was limited to circumstances that had arisen from the implementation of s 15AA.
The appellant pointed out that his interpretation was in accordance with the decision of Penfold J in Martyn v Cooper [2013] ACTSC 85; 276 FLR 152 (Martyn).
Her Honour reached the following conclusion in her analysis of the relevant sections:
[22] The only provision of the Act that expressly provides for a person to be required to provide a blood sample is s 15 which, in the circumstances described at [14] above, empowers a police officer to “require the person to permit a sample of his or her blood to be taken by a doctor or nurse for analysis”. Section 15 does not purport to empower a doctor or nurse to require a person to permit a sample to be taken.
[23] Section 23(2), however, refers to “[a] person from whom a blood sample is required to be taken under section 15AA(1).” At first glance, this provision might be read as implying that a person can be required under 15AA(1) to provide a blood sample. However, as already noted, s 15AA(1) does not in fact deal with requiring a person to permit a blood sample to be taken. As well, s 23(2) is not apt given its structure to refer to a person being required to do something; rather, it refers to a blood sample being required to be taken. For both these reasons, I cannot see that s 23(2) can be read as suggesting that s 15AA contains an implied power for a doctor or nurse to require a person to permit a blood sample to be taken.
Her Honour summarised her view in paragraph [26]:
In summary, police officers have the power to require people to provide blood samples. People who refuse to do so commit an offence, but doctors and nurses do not commit an offence by failing to take a blood sample if consent is refused or the procedure is objected to. Doctors and nurses are obliged to perform such procedures where a police officer has make a requirement and consent has been obtained, and they have a role in explaining to people the possible consequences of refusing to consent, but they do not themselves have a role in insisting that people submit to the taking of blood samples, or a role in forcibly taking blood samples from unwilling patients.
The respondent’s argument
The respondent submitted that Martyn had been wrongly decided. The respondent said that the ‘provisions’ referred to in s 23(1) could also include circumstances arising from s 15AA. The respondent submitted that a nurse or doctor did have the power to require a person to provide a sample of blood and that the source of this power lay in the application of s 196 of the Legislation Act 2001.
The respondent made the following points in aid of her submission:
(a)Section 15 only applied in the circumstances dictated by sub-ss (a), (b) and (c) of sub-s 1. Section 23 did not have the same ‘gateway’ provisions so that its application could be wider than circumstances arising from s 15.
(b)Section 23(1) does not mention s 15; there is no stipulated requirement that the offence only arises from circumstances covered by the latter section.
(c)There was no reason why s 15AA could not be linked with s 23(1). In fact, the relationship was both practical and consistent with the legislative intent of the Act, namely to ensure that intoxicated drivers did not escape punishment by refusing to provide blood samples.
(d)Once s 15AA was permitted to be a “provision” for the purposes of s 23(1)(b), it is but a short step for s 196 to provide the doctor or nurse with the power to require a person, in appropriate circumstances, to provide a blood sample.
(e)On the appellant’s interpretation of s 23(1) no offence could arise in the absence of a police officer. If, for example, a person was taken to hospital not accompanied by a police officer, and then refused to provide a blood sample when requested by a nurse or doctor, that person could not subsequently be charged with a breach of s 23(1). This would lead to an unintended consequence of the legislation and would place significant practical difficulties on the police, who would be required to attend at a hospital every time a person refused to provide a blood sample to a doctor or nurse.
The respondent referred to the decision of Magistrate Mossop (as he then was) in Hall v Vucak [2012] ACTMC 6 at [52] (Hall):
I do not accept the submission that s 15 is designed to cover the field in relation to persons who are in custody and hence exclude the operation of s 15AA. There is nothing in the text of s 15AA that indicates that it is not to apply in circumstances where a person is in custody in hospital. The two provisions cover different situations. Section 15 permits a person to be taken into custody and taken to hospital for the purposes of blood sampling where for medical or technical reasons breath analysis is not possible. It is a provision which dates back to the original Motor Traffic (Alcohol and Drugs) Ordinance 1977. In contrast, s 15AA was inserted in 1997 to provide a completely “separate and distinct duty”: Rollings v Barter at [72]. It applies whenever a person is in hospital and the conditions in the section are satisfied. Those conditions do not include a condition that the person is not in custody. Further, there is nothing in the relationship between s 15 and s 15AA or their context in that Act as a whole that indicates that one provision is intended to qualify the other.
Consideration
The appellant submitted that the offences created by sub-ss (1) and (2) of s 23 were distinct from each other and respectively linked to s 15(1) and s 15AA. I disagree. In my view there is an overlap between the offences, consistent with each carrying the same penalty, which allows a refusal to provide a blood sample requested by a doctor or nurse to generate a prosecution under s 23(1).
I accept that on one reading of s 23 it could be said that the two sub-ss refer to a similar act so there would be no need to have two separate offences. This was consistent with an offence under s 23(2) being restricted to circumstances arising from s 15AA. For example, a person who makes it “impossible or impractical” for a sample to be taken is also a person who “fails or refuses to permit the sample to be taken.”
It can also be argued, in favour of the appellant’s position, that it is inappropriate for doctors and nurses to be forced into the role of law enforcement officers. It might even be said that their respective roles could, in certain circumstances, be in conflict with each other.
Section 23(2) relates only to an offence arising from s 15AA. This is uncontroversial, but it does not necessarily follow that facts arising from section 15AA cannot give rise to a prosecution under s 23(1).
As to the overlap between ss 23(1) and (2), there are equally factual circumstances in which each subsection would have a separate place. For example, a person who attended a hospital and filled out a form indicating his consent to have a sample of blood taken, but then resisted the actual taking of the blood, could be charged under s 23(2). His consent prevents the charge under s 23(1) but his behaviour allows a charge under s 23(2).
In my view, the approach taken by Penfold J is too narrow. In paragraph [16] of her judgment her Honour said: “Section 15AA does not confer any power to require patients to provide blood samples. Nor is there any explicit conferral of such a power on doctors and nurses elsewhere in the Act”. It is clear from the judgment that s 196 was not mentioned and argued to produce a different result to that just quoted.
It is correct that the Act does not, in terms, confer upon doctors and nurses the power to require patients to provide blood samples. However if they are to exercise the function of obtaining blood samples they must have the means to do so. In other words they must be in a position to require the patient to provide the sample. This power is provided by s 196. It is regrettable that her Honour did not have the benefit of argument to this effect.
It follows that I think Martyn is incorrect and that I agree with the observations of Magistrate Mossop (as he then was) in Hall. I think that a prosecution may be brought under s 23(1) in circumstances such as the present because the request by the nurse was equivalent to the exercise of a power sufficient to qualify as a “provision” under s 23(1)(b).
Notwithstanding that I have reached a different conclusion to the majority, I do agree with their Honours on the following point: the relevant sections are not well drafted and require an amendment. Even on my conclusion the power that I have drawn from s 196 would be better stated in the Road Transport (Alcohol and Drugs) Act 1977 (ACT).
I would dismiss the appeal. It follows that it is not necessary to examine the consequences, if any, of the appellant having entered a plea of guilty before the Magistrate.
I would propose the following orders:
(a)Appeal dismissed
(b)The matter is remitted to Burns J to hear the appeal on sentence.
| I certify that the preceding thirty [30] paragraphs numbered [20]–[49] are a true copy of the Reasons for Judgment of His Honour Justice Elkaim. Associate: Date: 30 March 2017 |
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