McLeod v Visser
[1999] TASSC 93
•8 September 1999
[1999] TASSC 93
CITATION: McLeod v Visser [1999] TASSC 93
PARTIES: McLEOD, Brian Campbell
v
VISSER, Claas
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 6/1999
DELIVERED ON: 8 September 1999
DELIVERED AT: Hobart
HEARING DATES: 31 August 1999
JUDGMENT OF: Underwood J
CATCHWORDS:
Traffic law - Offences - Particular offences - Alcohol and drug related offences - Tasmania - Evidence - Results of breath test obtained in absence of lawful right to require test not inadmissible - Exclusion of such evidence a matter for discretion.
Munnings v Barrett [1987] Tas R 80; Bunning v Cross (1978) 141 CLR 54; Cleland v R (1982) 151 CLR 1, discussed.
Road Safety (Alcohol and Drugs) Act 1970 (Tas), ss6(1), 8(1), 23(2) and (4).
Justices Act 1959 (Tas), s110(1)(ab).
Aust Dig Traffic [82]
REPRESENTATION:
Counsel:
Applicant: G C Wood
Respondent: L Lodge
Solicitors:
Applicant: Wallace Wilkinson & Webster
Respondent: Director of Public Prosecutions
Judgment Number: [1999] TASSC 93
Number of Paragraphs: 25
Serial No 93/1999
File No LCA 6/1999
BRIAN CAMPBELL McLEOD v CLAAS VISSER
REASONS FOR JUDGMENT UNDERWOOD J
8 September 1999
On 16 February 1999, the applicant was convicted in a court of petty sessions, sitting at Scottsdale, of one count of driving a motor vehicle at St Marys in Tasmania on 4 July 1998 with a blood alcohol concentration greater than the prescribed concentration, contrary to the Road Safety (Alcohol & Drugs) Act 1970 ("the Act"), s6(1). The applicant seeks a review of that order upon the grounds that:
"1 The learned Magistrate erred in fact and in law in concluding that the Defendant was a person who in the circumstances was liable to submit to a breath test or a breath analysis.
2 The learned Magistrate erred in law in that he made no sufficient findings of fact and/or provided no sufficient statement of the reasons for his findings that the charge in the complaint was proved."
In the court below, the proceedings commenced in a somewhat unusual way. Counsel who appeared for the applicant in that court told the learned magistrate that he agreed with the following opening statement made by the prosecutor:
"As I understand [it] your Worship if we can just clarify this before we start that the breathalyser evidence in itself won't be in dispute, the first argument is obviously the admissibility to submit to a breath analysis as a result of his interception." [Sic]
Undisputed evidence was given that about 7.50pm on the day in question, the applicant was driving his motor vehicle along a public street and was passed by a police car travelling in the opposite direction. It was not disputed that the police car continued to travel in the opposite direction for a short distance and then made a "U" turn and followed the applicant. The police officers' intention was to signal the applicant to stop and require him to take a breath test. The applicant was not far from his home and, not long after the police car had turned around, he pulled into his driveway and stopped. The police officers then approached the applicant and one of them required him to submit to a breath test. There was no dispute that the breath test disclosed a blood alcohol concentration of 0.108 grams of alcohol in 100 millilitres of blood and that, accordingly, the police required the applicant to go with them to the police station for the purpose of undergoing a breath analysis. The certificate of an approved operator made pursuant to the Act, s25(2), and tendered in evidence, recorded that the applicant's breath analysis showed a concentration of alcohol in the blood of 0.108 grams of alcohol per 100 millilitres of blood. During the course of this evidence, then counsel for the applicant again said that the "breathalyser evidence" was not in dispute and that "the defendant makes the relevant admissions in relation to …". He did not complete his sentence but it is clear from the context that he intended to say "the concentration of alcohol in his blood" or words to the like effect.
In the court below, counsel for the applicant cross-examined the two police officers at some length in an attempt to show that they did not, as they asserted they did, follow closely behind the applicant for about 400 metres or so, flashing the police lights, sounding the horn and flicking the headlights up and down in a bid to get him to pull over and stop. In his evidence, the applicant said that he saw the police car go passed him travelling in the opposite direction, and that he was thereafter unaware of it until just before he turned into his driveway. He said that at that time all he saw was the headlights flick up and down once, and he did not construe that as a request for him to stop.
The whole case in the court below, was conducted upon the basis that if the police officers did not call on the applicant to stop while he was travelling on a public highway, he was not guilty of a breach of the Act, s6(1). The case was determined upon that basis. In his reasons the learned magistrate said:
"Of the external facts which have been established and about which there is no live issue, those that have been established are that the defendant was the driver of a motor vehicle on that date on Grays Road. That it was a public street. That at that time he had alcohol present in his blood. That at the time the deeming provisions of the Act require this court to take the view that that concentration was as alleged, namely one of .108 grams of alcohol in 100 millilitres of blood. The only live issue really is whether he was given a direction to stop whilst driving, that is, whilst driving on a public street. Because the defence raises as a live issue that he was not in fact intercepted until after he had reached his own private driveway and had stopped his vehicle at which stage he was no longer driving. And that if the defence be accepted or if there is doubt about the prosecution case on the point, as to whether he was directed to stop or not before he attained that driveway, then the complaint should be dismissed."
This proposition was put to me in submissions made in support of the motion to review when I asked counsel what the applicant's defence had been in the court below. I was told it was a "Munnings and Barrett defence". Hitherto, I had been unaware of any such defence. However, it seems that all those in the Scottsdale Court of Petty Sessions knew of this defence. It was even put to the police officers in cross-examination that they had altered their evidence upon learning that the applicant was going to raise a "Munnings and Barrett defence".
After setting out (in the passage I have cited) what he considered to be the issues in the case, the learned magistrate proceeded to refer to the conflicting evidence about whether or not the police followed the applicant for some distance, flashing their lights and sounding the horn. It was clear that the learned magistrate understood that if he was satisfied beyond reasonable doubt that the police had called upon the applicant to stop while he was travelling on a public street, the applicant was guilty of the offence charged, there being no dispute about the evidence of the concentration of alcohol in the blood. The learned magistrate said that he preferred the evidence of the police and proceeded to conviction. The complaint in ground 2 of the notice of motion is that he erred in law in failing to give adequate reasons for preferring the evidence of the police over that given by the applicant.
The Act, s6(1) provides:
"6 ¾ (1) Any person who drives a motor vehicle while alcohol is present in his blood in a concentration greater than the prescribed concentration is guilty of an offence."
It is an offence of strict liability. See F v Ling [1985] Tas R 112; He Kaw Teh v R (1985) 157 CLR 523. The appropriate inquiry for the learned magistrate was whether or not he was satisfied beyond reasonable doubt that:
· the applicant drove a motor vehicle on the day charged; and
· whilst he did so, alcohol was present in his blood in a concentration greater than the prescribed concentration.
If those two elements of the offence were established to the requisite degree of satisfaction, the applicant was guilty, absent any question of whether he may have mistakenly believed on reasonable grounds that he was not driving his motor vehicle with a concentration of alcohol in his blood greater than the prescribed maximum. No such question arose in this case.
I gathered from counsel during the hearing of the motion to review that amongst those who regularly practise in these kinds of cases, there is a widespread belief that in order to be convicted of a breach of the Act, s6(1), the defendant must have been requested to stop while travelling on a public highway. If this is so, the belief is erroneous. It is not an element in the offence prescribed by the Act, s6(1). I also gathered from the submissions of counsel that the belief owes its origins to Munnings v Barrett [1987] Tas R 80. In that case, police officers followed the applicant's motor vehicle from a public street onto a driveway on private land and there, one of them required him to undergo a breath test. He refused to do so and was accordingly charged with an offence contrary to the Act, s14(1)(a) which provides:
"14 ¾ (1) Any person who, without reasonable excuse, fails or refuses ¾
(a) to comply with a requirement made to him by a police officer under section 7A(1) or 8(6);
(b) …
(c) …
is guilty of an offence."
The issue in that case was whether the requirement to undergo a breath test was lawful, for unless it was, the applicant could not be guilty of failing to comply with the officer's requirement.
Section 7A was inserted in the Act by Act No 91/1982 in order to empower police officers to conduct random breath tests. Prior to the amending Act, a person was not liable to submit to breath testing unless a police officer believed on reasonable grounds that the driver had alcohol in his blood. Section 7A(1) provides:
"7A ¾ (1) A police officer may require any person who is driving a motor vehicle on a public street to undergo, at or near the place where the requirement is made, a breath test and, for the purpose of enabling him to make such a request, may, if necessary, direct that person, by signal or otherwise, to stop his vehicle."
In Munnings v Barrett at 86, Cosgrove J said:
"Under s7A of the Tasmanian Statute, the police action begins with the direction to stop. That also must be made on a public street. If no action is taken on the public street, the authority to require submission to a breath test never crystallises. That this was Parliament's intention is made clear by the difference between s7A(1) and s8(1). The policy is readily understandable."
With respect, I accept that passage as being a correct statement of the law, namely that before a person is guilty of an offence, pursuant to s14(1)(a), viz, failing to comply with a requirement made under s7A(1), the request to stop must be made whilst the person is driving on a public street.
However, that is all beside the point in this case. The applicant was not charged with the offence of refusing to take a breath test. He took a breath test. He subsequently underwent breath analysis. So the issues for the learned magistrate were, as I say, did the applicant drive his motor vehicle with a concentration of alcohol in his blood greater than the prescribed maximum? There was ample evidence of driving. What was the evidence of the concentration of alcohol in the blood at the time of driving? There was a certificate. The Act, s23 relevantly provides:
"(2) In any proceedings to which this Division applies, the concentration of alcohol in the blood of a person as determined by a breath analysis that was properly carried out shall be deemed to be the actual concentration of alcohol in the blood of that person at the time at which he submitted to the analysis, unless it is shown on the balance of probabilities that the concentration of alcohol in his blood at the time was not greater than the prescribed concentration."
And:
"(4) Where in any proceedings for an offence under section 6 (1) it is shown that the concentration of alcohol in the blood of a person who became liable to submit to a breath analysis was, at any time within 4 hours after the relevant time, equal to or not less than a particular concentration (being a concentration not less than the prescribed concentration), that particular concentration shall be deemed to have been the concentration of alcohol in his blood at the time of the relevant act of driving unless it is shown that the concentration of alcohol in his blood at the time of that act of driving was not greater that the prescribed concentration." [Emphasis added]
A certificate was tendered in accordance with s25(2). By virtue of s23(2) that certificate provided proof that at the time of analysis the concentration of alcohol in the applicant's blood was 0.108 per cent. By virtue of the provisions of s23(4), that certificate was also evidence of the actual concentration of alcohol in the applicant's blood at the "time of the relevant act of driving" provided that the applicant was a person "who became liable to submit to a breath analysis".
Whether or not the applicant was obliged by law to take a breath test, the evidence was that he did take one and the results of that test made the police suspect that he had alcohol in his body when he was driving his car moments earlier. Consequently, he became a person liable to submit to breath analysis by virtue of the provisions of the Act, s8(1) which provides:
"Where at any time a police officer finds a person in circumstances which give him cause to suspect that alcohol may be present in that person's blood and the police officer reasonably believes that, immediately preceding that time, that person drove a motor vehicle on a public street while that alcohol was so present, that person becomes liable to submit to a breath analysis."
Accordingly, the certificate provided proof that at the relevant time the concentration of alcohol in the applicant's blood exceeded the prescribed maximum and all the elements of the offence created by the Act, s6, were established.
If the police did not signal the applicant to stop while he was driving on a public highway, it might be said that the evidence of the result of the breath test which made the police suspect that there was alcohol in the applicant's blood at the time he had been driving, had been illegally obtained because the police had no lawful right to require the applicant to undergo a breath test in those circumstances. However, while a magistrate has a duty to exclude inadmissible evidence (R v Hall (1905) 1 Tas LR 21; Collins v Morgan [1972] Tas SR (NC) 23) he has no such duty with respect to evidence that is tainted with illegality. Such evidence may be excluded in the exercise of the judicial discretion. The principles that govern the proper exercise of such discretion are set out in the well-known cases of Bunning v Cross (1978) 141 CLR 54; Cleland v R (1982) 151 CLR 1. In Bunning v Cross, Stephen and Aickin JJ said, at 72, that the passage in R v Ireland (1970) 126 CLR 321 at 335 was a correct statement of the law of Australia and explained its effect at 74 in the following passage:
"What Ireland involves is no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law. This being the aim of the discretionary process called for by Ireland it follows that it by no means takes as its central point the question of unfairness to the accused. It is, on the contrary, concerned with broader questions of high public policy, unfairness to the accused being only one factor which, if present, will play its part in the whole process of consideration."
In the present case not only was the learned magistrate not asked to exclude the evidence of the results of the breath test in the exercise of his discretion, but he was told that the results of that test were not an issue between the parties.
The whole conduct of the case in the court below proceeded upon a misconception that if the police had no lawful right to require the applicant to take a breath test he could not be convicted of a breach of the Act, s6(1). Whether the police had authority to require the applicant to take a breath test was not an issue in the court below and could only have become an issue if an application had been made to exclude the evidence of the result of the breath test on the grounds that it was obtained illegally. All the evidence in this case was lawfully admitted. Upon this evidence there was no other view open, other than that it established beyond reasonable doubt that the applicant had committed the offence charged. Even if the learned magistrate had been asked to exercise his discretion to exclude the evidence of the breath test, in the circumstances of this case, the proper exercise of his discretion would have compelled him to admit the evidence. It is apposite in this respect to cite the following passage from the judgment of Barwick CJ in Bunning v Cross (supra) at 65:
"This question of the competition of the public interest in conviction with the unfairness to the applicant in connexion with the taking of the test, the magistrate did not consider. If he had, the only conclusion to which, in my opinion, he could properly have come, was that there was no unfairness to the applicant in the circumstances and manner of the obtaining of the evidence as to the alcoholic content of his blood. There was nothing whatever to out-balance the public interest in the enforcement of the law."
In these circumstances, it is unnecessary to consider either ground of appeal for even if one or both of them succeed, there is no answer to the proposition that no substantial miscarriage of justice has occurred as is provided by the Justices Act 1959, s110(1)(ab).
The motion to review is dismissed.
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