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Merchant v The Queen

Merchant v The Queen

Case [1971] HCA 22 28 May 1971

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HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Windeyer, Owen and Gibbs JJ.

MERCHANT v. THE QUEEN

(1971) 126 CLR 414

28 May 1971

Vehicles and Traffic

Vehicles and Traffic—Driving with prescribed concentration of alcohol in blood—Admissibility of certificate—Conditions precedent thereto—Proof that prescribed device used—Motor Traffic Act, 1909-1968 (N.S.W.), s. 4E.

Decisions

May 28.
The following written judgments were delivered: -
BARWICK C.J. This is an application for special leave to appeal against a judgment and order of the Supreme Court of New South Wales sitting as a Court of Criminal Appeal (1970) 92 WN (NSW) 816 . The Supreme Court answered unfavourably to the applicant a question asked of it in a case stated for its opinion by a chairman of Quarter Sessions. (at p415)

2. The applicant was convicted at the Central Court of Petty Sessions, Sydney of driving a motor vehicle upon a public street whilst there was present in his blood the prescribed concentration of alcohol in contravention of s. 4E (1) of the Motor Traffic Act, 1909-1968 (N.S.W.) (the Act). He appealed to a Court of Quarter Sessions against this conviction. After evidence had been taken in the appeal, a case was stated for the opinion of the Court of Criminal Appeal. The salient facts of that case were that the applicant having been involved in an accident with his car was required by a constable of police to submit to what was described as "an alco test". This was achieved by the applicant breathing into a tube attached to a bag which had been contained in a green plastic box marked "Alco Test R. 80". It was described by the constable as "the approved device". The result of the test was regarded by the constable as unfavourable to the applicant in relation to the alcohol content of his blood whereupon he was arrested. A police sergeant of the Breath Analysis Section thereupon subjected him to a breath analysis test. The time when the applicant was so subjected to breath analysis was within two hours of his having driven his car. According to the certificate to which I shall refer the breath analysis test showed that the applicant's blood contained more than the prescribed concentration of alcohol specified under the Act. (at p416)

3. Upon the hearing of the charge thereafter laid against the applicant and in respect of which he was convicted and in the appeal against his conviction there was tendered and received in evidence a certificate which complied in all respects with the provisions of s. 4E (12) of the Act. The applicant submits that this certificate ought not to have been admitted in evidence and that in any case it was ineffective to establish the facts which it recited because all the "steps" for which s. 4E provides were not duly taken. The question asked in the case stated and answered in the affirmative by the Supreme Court was whether a certificate in the terms of s. 4E (12) of the Act…

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.

Continue reading Merchant v The Queen

Details

AGLC: Merchant v The Queen [1971] HCA 22
Case: [1971] HCA 22
Decision Date: 28 May 1971

CaseChat Overview and Summary

The High Court of Australia considered the appeal of Merchant against the conviction entered against him in the Supreme Court of New South Wales. Merchant had been convicted of the offence of receiving stolen property, contrary to s 179 of the New South Wales Crimes Act 1900. The Crown alleged that Merchant had received a quantity of stolen goods, knowing them to be stolen.

The central legal issue before the High Court was whether the trial judge had erred in law by directing the jury that they could infer that Merchant had knowledge that the goods were stolen if they were satisfied that he had been reckless as to whether they were stolen. The Court was required to determine the precise meaning of "knowing" in the context of the offence of receiving stolen property and whether recklessness constituted sufficient knowledge for the purposes of the section.

The High Court held that the trial judge's direction to the jury was erroneous. The Court reasoned that the word "knowing" in s 179 of the Crimes Act 1900 required actual knowledge, or at least a belief on the part of the accused that the goods were stolen. Recklessness, which involves a failure to consider or inquire into the circumstances, was not sufficient to establish the requisite knowledge. The Court emphasised the distinction between knowing something and suspecting or being reckless as to its truth.

The appeal was allowed, the conviction was quashed, and a new trial was ordered in the Supreme Court of New South Wales.

Orders