McLean v Hays
[2012] TASSC 64
•4 October 2012
[2012] TASSC 64
COURT: SUPREME COURT OF TASMANIA
CITATION: McLean v Hays [2012] TASSC 64
PARTIES: McLEAN, Cindy-Lee
v
HAYS, Dean Bruce
FILE NO: 357/2012
DELIVERED ON: 4 October 2012
DELIVERED AT: Hobart
HEARING DATE: 1 October 2012
JUDGMENT OF: Blow J
CATCHWORDS:
Traffic Law – Offences – Particular offences – Alcohol and drug-related offences – Tasmania – Evidence – Analysis of blood sample – Admissibility of certificates as to taking, keeping, delivery and analysis of sample – Mode of service of certificates.
Acts Interpretation Act 1931 (Tas), s29AB(1).
Road Safety (Alcohol and Drugs) Act1970 (Tas), s29(1).
R v The Deputies of the Freemen of Leicester (1850) 15 QB 671; 117 ER 613; Ex parte Portingell [1892] 1 QB 15, referred to.
Aust Dig Traffic Law [1161]
REPRESENTATION:
Counsel:
Applicant: S Nicholson
Respondent: P Sullivan
Solicitors:
Applicant: Director of Public Prosecutions
Respondent: Paul Sullivan
Judgment Number: [2012] TASSC 64
Number of paragraphs: 26
Serial No 64/2012
File No 357/2012
CINDY-LEE McLEAN v DEAN BRUCE HAYS
REASONS FOR JUDGMENT BLOW J
4 October 2012
This is a motion for the review of an order made by a magistrate, Mrs M Bartlett, dismissing a charge alleging a contravention of the Road Safety (Alcohol and Drugs) Act 1970 ("the Act"), s6(1). The respondent, Dean Hays, was driving a car that was involved in an accident. He was injured, and taken to a hospital, where a blood sample was taken from him. He was charged with contravening s6(1), and pleaded not guilty. At the hearing of the charge, the prosecutor sought to rely on a series of certificates with a view to establishing that, at the time of the driving, the respondent had a blood alcohol concentration of 0.102 grams per 100ml of blood. There was no evidence that copies of the certificates had been personally served on the respondent. The learned magistrate held that the certificates were inadmissible because they had not been personally served. The police prosecutor closed her case. Defence counsel successfully submitted that there was no case to answer, and the learned magistrate dismissed the charge on that basis. The prosecutor has moved for the review of that order. She contends that personal service of the certificates was not a prerequisite to their admissibility. The respondent contends that it was.
Was personal service of the certificates required?
The Act contains a series of evidentiary provisions whose purpose is to facilitate the proof of drink-driving offences. Without those provisions it would be necessary to call evidence to prove various matters which are usually uncontroversial. Amongst other things, it would be necessary to call expert evidence to prove that the blood alcohol concentration measured by a breath test or blood analysis was accurate, and to prove what the defendant's blood alcohol concentration was at the time of the relevant driving, bearing in mind that that concentration would usually be different at the time of a subsequent breath test or blood test. In cases concerning a blood test, when the person tested was not in custody, the following provisions are significant:
· Section 27(1), which provides that a certificate purporting to be signed by a medical practitioner or a qualified nurse, and stating certain details about the taking of the blood sample, is prima facie evidence of the particulars contained in that certificate.
· Section 27(3), which provides that a certificate stating certain things about the delivery, labelling and keeping of a blood sample is prima facie evidence of the matters stated in that certificate.
· Section 28, which provides that a certificate containing certain particulars as to the result of a blood analysis, and as to the blood sample's container, and stating that its signatory was an approved analyst, is prima facie evidence of the particulars set forth in that certificate.
The use of such certificates as evidence is restricted by s29, the first three subsections of which read as follows:
"(1) No certificate or record referred to in the foregoing provisions of this Division shall be tendered in evidence by, or on behalf of, any party to any proceedings unless, at least 14 days, or such lesser period as the court may approve, before the hearing of the proceedings, a copy thereof was served on the other party to the proceedings.
(1A) Where such a certificate or record as is referred to in subsection (1) is endorsed with a certificate of service purporting to be signed by a person by whom a copy of that certificate or record was served, that certificate of service is prima facie evidence of the particulars stated therein.
(2) Subject to this section, a certificate or record referred to in subsection (1) may be tendered in evidence in proceedings to which this Division applies whether or not the person by whom the certificate or record was signed or made, or any person who, under the supervision of that first-mentioned person, was involved with the analysis to which the certificate or record relates is called as a witness in those proceedings."
At the hearing before the learned magistrate, the prosecutor called evidence from two police officers who had attended the scene of the accident. The second of those officers gave evidence of attending the hospital where the blood sample was taken. At the conclusion of their evidence, she sought to tender a number of documents, saying, "Your Honour, I'd simply seek to tender the blood documentation as a business document." The documents that she sought to tender comprised the following:
· A s27(1) certificate, purportedly signed by a qualified nurse.
· A s27(3) certificate, relating to the keeping of the respondent's blood sample at the Devonport Police Station and its delivery to Forensic Science Service Tasmania in New Town.
· A document purporting to be a s28 certificate, giving details of the analysis of the blood sample.
· A purported copy of a letter from Inspector Le Fevre to the respondent dated 14 June 2011 forwarding copies of the first three documents.
· A Tasmania Police document headed "ADVICE TO APPROVED ANALYST REGARDING BLOOD SAMPLE".
· A photocopy of a Tasmania Police document headed "DETAILS OF TAKING AND DEALING WITH BLOOD SAMPLE".
Each of the three certificates had an endorsement of service on the back. Those on the back of the s27(1) and s27(3) certificates appeared to have been printed. They contained the words "I served a copy of this certificate personally upon …", but the word "personally" was deleted from each endorsement. Each of those endorsements showed that on 14 June 2011 a police officer served the certificate on the respondent at 47 Alderson Road, Wesley Vale. The purported s28 certificate had an endorsement that appears to have been rubber-stamped on the back. The rubber stamp contained the words, "On the … day of … 20 … I served a copy of this certificate upon … personally at / by posting it to …". The words "personally at" had been deleted. The words "by posting it to" had been circled. The endorsement showed that on 14 June 2011 the respondent was served by a police officer posting the certificate to 37 Alderson Road, Wesley Vale.
Defence counsel submitted to the learned magistrate that the requirement of s29(1) that a copy of such a certificate was to be "served on the other party to the proceedings" meant that the certificates had to be personally served. The prosecutor did not submit otherwise. The learned magistrate accepted the submissions of defence counsel, and held that the certificates had not been personally served, and were therefore inadmissible.
There is nothing in the Act about the meaning of the word "served".
Counsel for the applicant submitted to me that service by post was authorised by the Acts Interpretation Act 1931, s29AB(1). That subsection reads as follows:
"(1) If an Act authorizes, requires or permits a notice or other document to be served on a person, whether the expression 'serve', 'deliver', 'give' or "send" or any other expression is used, without directing it to be served in a particular manner, the notice or document may be served —
(a)on a natural person —
(i) by giving it to the person; or
(ii) by leaving it at, or sending it by post to, the person's residential or postal address or place or address of business or employment whichever is last known to the server of the notice or other document; or
(b)on any other person by leaving it at, or sending it by post to, the person's principal or registered office or principal place of business."
Counsel for the respondent submitted to me that s29AB(1) did not apply. He relied on a paragraph in the second reading speech of the then Minister for Police and Emergency Management, Mr Llewellyn, in relation to the Road Safety (Alcohol and Drugs) Amendment Act 2007. The principal amendments introduced by that Act empowered police officers to disqualify motorists from driving by serving "excessive drink-driving notices". However that Act also made provision for the amendment of s13B of the Act, which relates to the analysis of blood and urine samples by an approved analyst. The provisions of s13B are quite separate from those of ss28 and 29. Under s13B(2)(a), when a part of the sample of the blood or urine taken from a person has been analysed by an approved analyst, that analyst must cause a copy of the report of the analysis to be served on that person within 21 days after the completion of the report. Prior to the commencement of the 2007 Act, s13B(4)(a) of the Act required such a report to be served by registered post. However that provision was amended by the 2007 Act so that it now permits service by ordinary post. The relevant paragraph in the second reading speech (Hansard, House of Assembly, 30 October 2007, page 39) reads as follows:
"The act further provides that an approved analyst must provide a copy of the result of blood analysis, by registered post, to the person from whom the sample was taken. In addition, the act further provides that police must personally serve a copy of the result on an offender 14 days before a court hearing. This amendment will remove the registered post requirement and require that blood analysis results are provided to offenders via normal post by an approved analyst. As the requirement for personal service of a test result by police on all persons charged with an offence resulting from the analysis will remain, there will be no detrimental impact on drivers required to provide blood samples."
The first sentence in that paragraph obviously relates to s13B(4)(a) as it read before the amendment. The references to a requirement of personal service, in the second and fourth sentences of the paragraph, evidently relate to s29(1). The Minister was evidently referring to s28 certificates containing blood analysis results, and the service requirements of s29(1).
However the 2007 Act did not amend s29(1). That subsection has been in its present form ever since 1970. Second reading speeches and other extrinsic material may be taken into account in determining questions as to the meaning of legislation to which such material relates: Acts Interpretation Act, s8B. The speech in question could therefore be taken into account in determining questions as to the interpretation of provisions added or amended by the 2007 Act. However it may not be taken into account in relation to the interpretation of a provision that pre-dates the 2007 amendments: Hunter Resources Ltd v Melville (1988) 164 CLR 234 at 241.
The relevant section in the Acts Interpretation Act, s29AB, was inserted by the Acts Interpretation Amendment Act 1992. Before that amendment, there was nothing in any legislation governing the meaning of the word "served" in s29(1) of the Act. I do not think there was any reason, before 1992, to interpret "served" in s29(1) as meaning "personally served".
In R v The Deputies of the Freemen of Leicester (1850) 15 QB 671; 117 ER 613, the Court of Queen's Bench considered a provision in an election statute which said that a person challenging the validity of an election "shall give or deliver notice in writing unto such deputy or deputies". It was held that personal service of the notice was not required. Lord Campbell CJ said (at QB 675, ER 615):
"In general, when personal service is required by an Act, it is so said in express words; but here the words used are 'give or deliver notice in writing unto such deputy', which have no such force."
The only other member of the Court who was present, Erle J, said (at QB 676, ER 615):
"Personal service is not required by the statute."
That case was relied on by the English Court of Appeal in Ex parte Portingell [1892] 1 QB 15. That case concerned an application by the holder of a liquor licence for its renewal, and a statutory provision that any objection to its renewal was not to be entertained "unless written notice of an intention to oppose the renewal of such licence has been served on such holder not less than seven days before the commencement of the general annual licensing meeting". At 17, Lord Esher MR, with whom Fry LJ and Lopes LJ concurred, quoted the above passage from the judgment of Lord Campbell, and continued:
"We have to say whether we agree with the rule so laid down, and, if so, what its application is to the present case. It appears to me to be a very sensible rule of interpretation. Applying it to the present case, the words here are 'has been served on.' The words in the Act there being interpreted were 'give or deliver unto.' It was argued that there was a substantial difference between the two expressions. I do not think that is so. It seems to me that one is the exact equivalent of the other. Upon this interpretation of the Act personal service in the sense contended for by the applicant was not necessary."
There is no reason to distinguish those two cases. In its ordinary meaning, "served" is a much wider term than "personally served". It is true that it would be very prudent for police officers to arrange for certificates under ss27 and 28 to be personally served in order to avoid any disputes as to whether they were served at all. However there is nothing about the subject-matter or context of s29(1) that required the word "served" to be interpreted as meaning "personally served" before the 1992 amendment to the Acts Interpretation Act. Thereafter, the meaning of the word was governed by s29AB(1) of that Act.
It follows that the learned magistrate was wrong to hold that, because the three certificates were not personally served, they were inadmissible.
The duty to give part of the blood sample to the respondent
Counsel for the respondent submitted that, even if the learned magistrate erred as to personal service being required, there were reasons why her order of dismissal should not be set aside. First of all, he relied on s13(5B) of the Act, which requires the provision of part of a blood sample to the person from whom it is taken. Under s13(5), after a blood sample has been taken, it must be divided into three parts. Under s13(5B), one of those three parts must, as soon as practicable after the blood sample has been taken, be tendered to the person from whom it was taken, unless that person is in custody. The respondent was never in custody. The officer who attended the hospital initially said in his evidence that one of the three samples was given to the respondent. However, as a result of cross-examination, he gave evidence that, because of the condition of the respondent, he did not put that container in the respondent's hand. He said he gave it to the respondent at the hospital but then took it back to the police station and put it in a refrigerator there. He said he had a discussion with the respondent, that he offered to keep the container safe for him while he was at the hospital, and that he informed the respondent that he could pick it up from the police station when capable. The officer did not state what, if anything, he did by way of giving the container to the respondent. He did not expressly state that the respondent agreed to the proposal that the container be taken to the police station to await collection. Counsel for the respondent submitted that the learned magistrate could not have been satisfied beyond reasonable doubt that the officer complied with the requirement of s13(5B) to tender one part of the sample to the respondent. I disagree. It was open to the learned magistrate to be satisfied beyond reasonable doubt that the officer did some unspecified physical act by way of parting with possession of the container and allowing the respondent to have control and dominion over it, and to make a finding that the respondent thereafter authorised the officer to re-take possession of the container. I am not saying that she should have made such findings, nor am I making any findings of my own.
Late service of the analyst's report
Counsel for the respondent made a submission in relation to s13B(2) of the Act. As I have said, that subsection provides that, when a part of the sample of the blood taken from a person has been analysed by an approved analyst, that analyst must cause a copy of the report of the analysis to be served on that person within 21 days after completion of the report. The documents that the prosecutor sought to tender at the hearing before the learned magistrate contained information that the blood report was completed on 4 May 2011 and served by post on 14 June 2011. The document that purported to be a s28 certificate also purported to be a s13B(2) report. However s13B is not an evidentiary provision. The provision in s29(1A) that makes a certificate of service prima facie evidence of the particulars stated therein does not apply to s13B. The certificate of service endorsed on the back of the document was therefore not admissible evidence in relation to any question concerning compliance or non-compliance with s13B. The letter from Inspector Le Fevre was not admissible without formal proof. There was no concession by defence counsel as to it being tendered without formal proof. It, like all the other "blood documentation", was objected to. There was therefore no admissible evidence before the learned magistrate as to whether or not s13B(2) had been complied with within 21 days after completion of the report. I therefore need not consider whether the prosecution was obliged to prove beyond reasonable doubt that s13B(2) was complied with on time.
Non-compliance with s28
Counsel for the respondent submitted that the certificate containing the result of the blood analysis did not comply with s28. That section reads as follows:
"In any proceedings to which this Division applies a certificate containing –
(a)particulars of the result of an analysis of a sample of blood or urine carried out by, or under the supervision of, the person by whom the certificate is purported to be signed; and
(b)particulars with respect to the container in which the sample was received by him, and any label or markings thereon –
and stating that at the time the analysis was carried out he was an approved analyst, is prima facie evidence of the particulars set forth in the certificate."
In order for s28 to apply, the certificate must say that the analysis was "carried out by, or under the supervision of, the person by whom the certificate is purported to be signed": s28(a). The certificate in question purported to be signed by an approved analyst named Miriam Rae Connor. It did not say that she carried out the analysis. It did not say that the analysis was carried out under her supervision. It only said that "Const A J Hall delivered to the laboratory two blood specimens", each marked with certain information, that an analysis was conducted on one of the blood specimens, and that certain results were obtained. The certificate therefore did not comply with s28(a).
In order for s28 to apply, the certificate must also state "that at the time the analysis was carried out he [the person by whom the certificate was purportedly signed] was an approved analyst". This certificate did not say as much. It said, "Analyses were conducted beginning 13/04/11 and concluding 04/05/11." It was dated 4 May 2011 and said, "I am an approved analyst …". But it did not say whether Ms Connor was an approved analyst prior to 4 May 2011. It left open the possibility that she became an approved analyst after the analyses were commenced.
The document in question did not comply with s28 in two respects, and was therefore inadmissible. Apart from that certificate, there was no evidence that the respondent had any alcohol in his blood at the time of the relevant driving.
Admissibility of the s27(1) and s27(3) certificates
The certificates under s27(1) and s27(3) were each endorsed with a certificate of service. Those certificates were admissible only if the particulars stated in their certificates of service amounted to evidence of proper service on the respondent. By virtue of the Acts Interpretation Act, s29(1)(a)(ii), they could have been properly served if they were left at, or sent by post to, one of the following places:
· The respondent's residential address.
· The respondent's postal address.
· The respondent's last place or address of business or employment that was known to the police officer serving the document.
Each of the two certificates of service purported to be signed by a police officer by whom that certificate had been served. Each stated that on a particular date that officer served a copy of the certificate on the respondent at the address in Wesley Vale. The word "personally" had been deleted from each certificate. Neither of the certificates said anything about the status of the address in Wesley Vale. Thus there was no information as to whether or not that address was the respondent's residential address, his postal address, or his last place or address of business or employment known to the officer serving the document. Under s29(1A), those certificates were prima facie evidence of the particulars stated therein. However critical information as to the status of the address in Wesley Vale was not stated therein. The certificates of service therefore did not amount to evidence of the proper service of the s27(1) and s27(3) certificates. Without evidence of their proper service, they too were inadmissible.
Conclusion
Without any admissible evidence as to the respondent having alcohol in his blood, and too much alcohol in his blood, the prosecution was doomed to fail. The prosecutor had an opportunity, after the documentation was held inadmissible, to seek an adjournment for the purpose of proving her case without the assistance of the evidentiary provisions of the Act. Presumably that could have been done by calling police officers and Ms Connor to prove the facts asserted in the certificates. No such application was made.
The learned magistrate erred in law in holding that personal service was a prerequisite to the admissibility of the three statutory certificates. However they were all inadmissible for other reasons. The purported s28 certificate did not comply with s28 at all. There was no evidence of the proper service of the other two certificates. Whilst her reasoning about personal service was wrong, her conclusion that the three certificates were inadmissible was correct. Her conclusion that the respondent had no case to answer was also correct. In the circumstances, the error in reasoning as to why the certificates were inadmissible was inconsequential. I have therefore decided to dismiss the motion to review.
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