Mills v Meeking

[1989] HCATrans 273

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M33 of 1989

B e t w e e n -

ANDREW JAMES MILLS

Appellant

and

KAREN MICHELLE MEEKING and

RODNEY LESLIE CRISP

Magistrate of Victoria

Respondents

MASON CJ
BRENNAN J
DAWSON J
TOOHEY J

McHUGH J

Hills(2)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 10 NOVEMBER 1989, AT 11.49 AM

Copyright in the High Court of Australia

C2T27 / 1 /SH 1 10/11/89

MR M.E.J. BLACK, QC:  May it please the Court, I appear with

my learned friend, MR P. GEBHARDT, for the appellant.

(instructed by David Bullard)

MR P.G. NASH, OC: If the Court pleases, I appear with my

learned friend, MRS A. RICHARDS, for the first-named

respondent. (instructed by the Victorian Government

Solicitor)

MASON CJ:	Mr Black.
MR BLACK:	May it please the Court may I hand to the Court

an outline of our submissions, together with a road

map taking the Court through the relevant sections

which I will explain shortly into the argument.

MASON CJ: Mr Black, there is no appearance for the second

respondent, the magistrate. Normally one expects

that the magistrate would submit.

MR BLACK:  Yes, I am sure - that has been the position,

I am told - - -

MASON CJ: Throughout the history of the matter.

MR BLACK:  - - - throughout the history of the proceedings,

yes.

MASON CJ:	Yes.
MR BLACK:	May it please the Court, as the Court will have

observed, the case concerns what might loosely be

described as the drink-driving provisions of the

ROAD SAFETY ACT. That was an act enacted in Victoria

in 1986. It replaced earlier legislation. To a

considerable extent it reproduced it but it added

new sections, one of which is particularly in issue

in this appeal and that is section 49(1)(f). I

will take the Court to the legislation in some detail

but 49(1)(f) provides in substance that if a person:

within 3 hours after driving ..... furnishes

a sample of breath for analysis ..... and the

result -

if I might use the expression throughout "over the

prescribed limit", the person is guilty of an offence,

full stop.

(Continued on page 3)

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MR BLACK (continuing): It is unrelated to the alcohol

content at the time of driving. Now, the appellant

was charged under that subsection, that is to say,

49(1)(f), and only under that subsection. There

were other offences which were dealt with by the

magistrate and are not relevant. The primary

argument before this Court is one of construction.

I will take the Court to the factual history

very briefly when I have explained the - or taken

the Court through the legislation. But the

primary argument is one of construction and our

basic submission is that Mr Justice Crockett, at

first instance, correctly interpreted the section.

The section has been described, judicially,

as having an operation that is ludicrous,

draconian and by the Full Court, itself, as capable

of producing what Their Honours describe as

"gross personal injustice" and as, indeed, a

section for which injustice might well result.

Now, Mr Justice Crockett's interpretation, in our

submission, conformed with the purpose of the Act

and avoided some of the enormities that have been

ascribed to the operation of the section.

The alternative argument is an abuse of process argument. It is only necessary, of course,

if the first argument fails and I should say at

once that the abuse of process argument starts

with the difficulty - though not insuperable, in

our submission - that if, as a matter of

construction, the person could have been charged

under the section 49(1)(f), how could it be

an abuse of process to so charge him? Well, we

will be saying, as to that, that this legislation

is - perhaps I should not say virtually unique but -
almost unique and there are very special

circumstances affecting it and I will develop

that argument alive right from the outset-to the

apparent logical difficulty in the argument. But,

we submit that that can readily be overcome in

the special circumstances of this case.

It is not an argument that you must always

charge the person with the offence that will give

him the best chance. It is an argument, however,

that you should not charge him in circumstances

where, without any cause at all, he will be

deprived of his central right of a fair trial.

(Continued on page 4)

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MR BLACK (continuing): I turn now to ~e legislation and

for that purpose might I in'\° :e the Court to

have regard to the chart that we handed up. That

chart seeks to outline the course of events from
the initiation of a breath test to ultimate possible
conviction. In breath analysis cases there are

provisions in the Act for blood rest and they are

substantially pararrel. I will take the Court

to them briefly, but the concentration in this

appeal is on the breath analysis section. Might

I start by taking the Court to the purposes of

Part 5, which are to be found specified in

section 47 of the Act, which is at page 24 of

the Court's reprint.	Now the purposes of the Part
are to:

reduce the number of motor vehicle collisions

of which alcohol or other drugs are a cause;

reduce the number of drivers whose driving is

impaired by alcohol -

and one might interpolate, no doubt for that end -

provide a simple and effective means of

establishing that there is present in the blood

of a driver

and we stress "driver" -

more than the legal limit of alcohol.

The purposes do not include purposes of general

prohibition, nor do they include, except incidentally,

and I will come to this, any embargo upon post-driving

drinking, so that the method that the Victorian

Parliament adopted to address the undoubted social

evil of the road toll, particularly the alcohol

induced road toll, is to make sure, and to make

it an offence, that people do not drive when their

alcohol content is above a particular limit. In

the case of Victoria it is .OS per cent per 100

milligrams of blood. But the purposes of the part,

in our submission, are quite clear and they are

aimed at drivers and in our submission the purposes

are quite fundamental to an understanding of how the

section then works. The Court will, of course, be

aware that Victoria has a purposive construction

in its INTERPRETATION OF LEGISLATION ACT, section 35(a)

I recognise irmnediately the obvious limits to that

stat ·.tory cormnand. It cannot turn black into white,

but .t certainly can and does and must operate where

ther:; are shades of grey involved. If I could take

the Court to the chart. What happens first to a

person in these circumstances is that he or she may

be required under section 53 of the Act, which is at

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page 30 of the print, by a member of the police force

to undergo a preliminary breath test. The chart

is divided into two parts, because indeed that was

Mr Justice Crockett's way of looking at it. It is

a way which we contend is correct. So might I

take the Court through the path which we say the

Act requires for a person who is found driving a

motor vehicle. Such a person may be required under

53(l)(a) to undergo a preliminary breath test and

there are various qualifications on that and it

is expressed how the person shall do it. It must be

done, however, within three hours; after that there

is no obligation to do so. That is section 53(4).

If that test proves positive in the opinion of the

police officer who puts it to the person, then
section 55(1) takes over and its provides in substance:

If a person undergoes a preliminary breath test when required ..... under section 53 ..... and

the test in the opinion of the member
or officer in whose presence it is made
indicates that the person's blood contains

alcohol in excess -

then a requirement exists for -

the person to furnish a sample of breath for

analysis by a breath analysing instrument -

which is a more sophisticated device than what I

think is colloquially called the puff-bag.

(Continued on page 6)

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MR BLACK (continuing): It is a simple portable device,

the preliminary test, and can be taken out on the

road. The breathalyzer itself, or breath analysis

instrument, is a more sophisticated device.

Now, for that purpose, under section 55(1), the person may be required to accompany the police

officer to a police station and to remain there

either until the sample has been furnished or three
hours after the driving, whichever is the sooner.

So, on the chart, the person now is at the police

station; he is required to blow into the breath

analysis instrument and, depending upon the reading
that the instrument gives, he may or may not be
charged.

The Act then addresses the question of how you prove all this and I will come to that in a

moment but if he is over the limit, then, in our submission - indeed, this part of the submission

would not be a matter of controversy, we imagine -
he may be charged under section 49(l)(b), page 25.
That provides that:

A person is guilty of an offence if he or she drives a motor vehicle or is in charge

of a motor vehicle while more than the prescribed concentration of alcohol is present in his or her blood.

So that the power to initiate; that is to say, the power to require the preliminary test, flows through

or enlivens the power under 55(1) and, in our
submission, at least is capable of and, indeed, in

our submission it must, lead to a charge under 49(l)(b).

BRENNAN J:  But does that not require that link between the

time of driving and the time of the breathalyzer to

be established?

MR BLACK:  Yes, it does, Your Honour, it does. Both sections

in contention essentially require the same link; the

three hours is critical however you go about proving

it and I will make that good in a moment, Your Honour.

So that a person charged under section 49(l)(b) is

then confronted with the evidentiary provisions and

they are in substance, first of all, section 58(1),
(2) and (4). Section 58 provides, leaving out the

preliminary words and going down to about point 9

of the page, that:

Evidence may be given -

reading from about the fourth line from the bottom -

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Mills(2)

of the concentration of alcohol indicated
to be present in the blood by a breath

analysing instrument operated by a person

authorised ..... under section 55 and the
concentration of alcohol so indicated is,

subject to compliance with section 55(4),

evidence of the concentration of alcohol .....

at the time his or her breath is analysed.

That, of course, does not yet get you to the time of the driving but it is evidence of what it is at that time, at the time of blowing into the machine.

Then, section 58(2) provides that a certificate

is admissible of various critical facts and it is
conclusive proof of them unless you give seven days'
prior notice to the informant that he requires the
person giving the certificate to be called as a witness.

Section 58(4) provides for prima facie proof that

the apparatus was in proper working order and that

everything was done that ought to have been done

in substance.

(Continued on page 8)

C2T30/2/SH	7	10/11/89
Mills(2)

MR BLACK (continuing): Section 58(5) provides, in substance,

that it is enough to describe the writing in numbers

on the machine; one does not have to go through the

early absurdities when this information was new, of

proving that it was the precise black box and it was

tracing itsprovenance; so all that is now dealt with. But that being the position, although the evidentiary

burden cast upon the defendant is heavy, it is not

one that cannot be discharged. The last section in

the process of proof is section - one has to go back

to section 48(l)(a) for that, and it provides in

substance, that if it is established that at any time

within three hours after an alleged offence under
49(1) (a) or (b) - that is the "found driving" offence -

a certain concentration was present in the blood,

it must be presumed, until the contrary is proved,

that not less than that concentration was prE: ent at
the time the offence was cormnitted, and that is how

you tie in your proofs. You get the certificate:

that is conclusive - prima facie proof, I should say,

and may be conclusive proof, of what the alcohol

content was at the time of the breath analysis, and

then you tie that back to the offence through 48(l)(a).

Having been convicted, the penalties are severe,

and in relation to the matter that most people are

concerned with, that is the licence to drive a motor

car, they are mandatory. They are provided for by

two sections: 49(3) provides for minimum and maximum

penalties, for first offences and for second and

subsequent offences. The Court will have noted that

those penalties are cormnon to both the subsections in

issue in this appeal, and that is the pattern.

Whichever subsection, (b) or (f), you are charged

under, the same penalty provisions effectively

apply.

DAWSON J:	What is the penalty unit at the moment?
MR BLACK:	One lrundred dollars, Your Honour, so the legislature clearly, naturally,
obviously disapproves of this type of conduct. It is
legislation that undoubtedly, in our submission, is
a severe deprivation on traditional rights. It provides
for self-incrimination, but of course it does so for
a very important social purpose. But, of itself, it would no doubt once, and was once, described as Draconian.
Then the loss of licence provisions are in section 50, essentially, for these purposes,
subsections(l) and (2). I might just explain to the Court:S0(l)(a) is a reference to section 52; that is the probationary licence holder; he is subject to a
zero alcohol prohibition, but he may not necessarily lose his licence if the alcohol concentration is less than .05 per cent, but in every other case every other person must lose their licence and the method of doing

C2T31/l/FK	8	10/11/89
Mills(2)

that is set out in sections 50(l)(b) and 50(2).

There is, in fact, a sliding scale, which appears

in the first schedule, which is as page 67 of the reprint, and the more your reading is, the longer you lose your licence for - these are minimum

periods, I should add -up to a maximum of 24 months
for a first offence, which is - might I also

interpolate -what you lose it for it you refuse to

take the test altogether. So there is no profit

in refusing to take the test; that is a special

section, and for a second offence it is 48 months.

To reinforce the severity with which this is

and the 49(l)(f) offenders are separately dealt with, but dealt with in the same way, and these are people

all regarded, only certain people can get their
licence back without going to a magistrate's court,

and those are the people dealt with in section 50(3).

who are less than .1. Over· that, one must

apply to the magistrate's court and the court must hear evidence and it generally has a discretion in the matter, including, in the exercise of it, having

regard to the conduct of the applicant with respect

to intoxicating liquor or drugs, as the case may be.

(Continued on page 10)

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Mills(2)

MR BLACK (continuing):  Now, that is the first line of operation

that the section may have. There is one important

matter before we pass to line 2 and that is this,

that no defences are excluded by the legislation

in respect of a person changed under the, the driving

driver, the found driving person. He can, and

indeed the cases show does successfully, from time

to time, challenge matters bearing upon his guilt

or innocence and sometimes bearing not just as a

matter of technicality, dealing with STAMPS ACT

points, but dealing with his - if one might

~ntroduce the concept legitimately - his moral

innocence.

The next line is the line that we submit

commences "when a person has been involved in an

accident" and that line goes hack to section 53(1)(c)

and there is a separate power onferred on a member

of the police force where that member:

believes on reasonable grounds -

that the person -

has within the last 3 preceding hours

driven or been in charge of a motor

vehicle when it has been involved in

an accident -

and that qualification is specifically put on the

power. So such a person may be required to submit to

a preliminary breath test;. if the breath test is,

in the opinion of the policeman, positive, the person
may then be required to undergo the full breath test
under section 55; he may be detained until the test

is completed or three hours has elapsed from the

driving and then he may be charged under section 49(l)(f).

Might I now take the Court to section 49(l)(f), in

express terms. It reads:

(1) A person is guilty of an offence if. ....

in charge of a motor vehicle he furnishes

a sample of breath for analysis by a

breath analysing instrument under

section 55(1) and the result of the

analysis as recorded or shown by the
breath analysing instrument indicates

that more than the prescribed

concentration of alcohol is present in
his or her blood -

(f) within 3 hours after driving or being

that the machine determines your guilt under that offence
and it almost literally does because, unlike the

person who is found driving and who, in our submission,

was intended to be charged by the parliament under

section 49(1)(b), a person who is charged under

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section 49(l)(f) comes into collision with

section 49(6) which provides - page 26 - that:

In any proceedings for an offence under paragraph (f) or (g) -

and paragraph (g) is the blood test equivalent of

paragraph (f) -

evidence as to the effect of

consumption of alcohol on the defendant

is inadmissible for the purpose of

establishing a defence to the charge.

The way that has been interpreted and the way it

works is something I will come to shortly, but what

it means is that if you say - and you produce the

steward and the half-drunk bottle and the other person who consumed the other quarter - to say,

"Look, something must be wrong here", you cannot

lead that evidence.

So if you are charged under section 49(l)(f)

you are guilty unless you have some very lucky chances.

Now, I will explain that in more detail in a moment,

but that is a situation unique to section 49(l)(f)

and (g).	It is explicable, or we contend it is
explicable.	If section 49(l)(f) is designed to

cover, as we say the intention is, the mischief of

the person who is in an accident, runs home, consumes

a significant quantity of alcohol so that when, as

no doubt one hopes he inevitably would, the

policeman arrives and requires the person to submit to a breath test, as the police are entitled to do, the reading will be falsified and the person will

be able to say, "But you cannot prove what my

reading was at the time of the accident", and so

escapes.

(Continued on page 12)

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MR BLACK (continuing):  It might be termed the

trickster's ploy, a social evil of itself to which
section 49(l)(f) is aimed. But the way in which

section 49(1)(f) has been used is not to catch the
trickster but to catch the ordinary driver who has
been in police company, if not custody, from the

moment of apprehension until the moment the test

is performed and so cannot go away and falsify

the reading. Then, one goes to the penalties and

they are all exactly the same; minimum and maximum,

mandatory suspensions and so forth.

The evidence in each case is the same save

that, and this is an important part of our subsequent

surplusage argument, the provisions of section 48(1)(a)

are not necessary to proof under section 49(l)(f)

because section 48(1)(a) s designed to get you back

to the time of driving,- the breathalyzer will give
you the blood alcohol reading at the time of the test -

section 48(1)(a) gets it back to the time of driving;

that is not relevant to section 49(1)(f) because

the offence there is having the excess reading within
three hours after driving but otherwise the proofs
are the same. And, on analysis, the evidence
required in each case is the same because one would

have to prove that there has been driving because you

need to prove that to prove that the test was done

within three hours after driving. The way the

ingredients all work is slightly different but the

essential elements in the police proof are the same.

TOOHEY J:  Mr Black, does the preliminary breath test carry

any consequence other than to ground the right to a

breath analysis under section 55?

MR BLACK:  I think not, Your Honour. It is an offence to

refuse one but, no, it does not. We say it is

the gateway and it offers three gateways each

leading along separate paths to offences.

TOOHEY J:

In other words, you cannot be charged, I take you on the preliminary breath test unless it is followed

to be saying, by reason of anything that is found

up by a breath analysis under section 55.

MR BLACK:  That is so, Your Honour. It is either positive

or negative and if it is negative in the opinion of

the officer you go on your way; if it is positive
then you may be and, no doubt, always would be

required to undergo a test under the subsequent section.

Now, there is a third possibility which - it is

not part of our argument and I do not believe has

been part of the argument anywhere, what are
colloquially termed the "booze buses" is the term

used in the newspaper. These are wayside stations

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often, nowdays, outside hotels where the police set

up a post which under the statute has to have flashing or suitable signs, lights, and other

devices, where the motorist is pulled over and he is

required then to stop and a test may be administered

under section 53(1)(b) leading, in our submission,

in those cases to prosecution under section 49(1)(b)

not under section 49(1)(f). So that the essential

point that Mr Justice Crockett made and it was

supported, we submit with respect, powerfully by

other indications to which we will come, was that

there was a discernible linkage between the initiating
process and the offences and if one looked at the
offences and looked at the scb2me of the Act to see

what it was intended to do, that linkage in

.His Honour's view was not only a permissible one

but a necessary linkage to draw. His Honour then
perfected, if we may say so, the point by notionally
reading in to section 49(1)(f) words to the effect

of 'within three hours after having been in an

accident''and that is the battle ground. Our learned

friends will doubtless contend that not that you
can never read words in but that you should hardly

ever.

(Continued on page 14)

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!:1R. BLACK (continuing):  We would not dispute that but say

that this is a case where, whether one reads them

in or not, the statutory intention is perfectly

plain. The source of the power indicates the

statutorily intended end charge point. If I might,

now, before developing the argument, indicate to

the Court very briefly what the facts were.	It
will take me about two minutes.	The appellant

was a young man; he was found driving - the

evidence was not particularly good - he did not

put on his turning indicators and he gave various

unsatisfactory answers. It is not the worse case

one would ever have seen by any means, but it is

not the perfect case but, of course, the magistrate

had only heard one side of it, ancr this from the

police point of view. He was found driving. He was

co-operative and all that was eLu::ited, and so forth; he was

given a preliminary breath test. That proved

positive in the opinion of the operator. So he

then was required to submit to breath analysis

under 55·•· There was no accident and he was in

police "company" at all relevant times. He

had no opportunity to consume any further alcohol.

He was then asked to submit his breath for analysis.

It produced two readings:· one was .125 and the

other was .130 in descending order. He was charged -

never charged with 49(1)(b) but charged solely

with 49(1)(f) and solely and vigorously with 49(1)(f)

in a manner which I will explain in a moment.

When the matter came on before the magistrate,

counsel for the present appellant objected that

section 49(1)(f) was the wrong offence, it was
not fair and in fact, it was an abuse of process.

The magistra was inclined to agree with that but

said the simple solution was to amend the charge

to read to be under 49(1)(b). Now, for their

respective purposes, both parties objected to that

amendment. However, there would have been nothing

to have stopped the police, had they chosen -

they did not choose - to lay a-new information
under 49(l)(b).	I do not think they were out of

time at that stage.

So, each party, for its own purposes, was

saying, "Keep it to (f)". The defendant, for

his purpose saying, "Keep it to (f) and dismiss it";

the Crown, for its purpose, say.;".".g, "Keep it to

(f) and convict". That ended 1	...: with a couple of
orders nisi to review about wh:. _::1 there was	some

technical argument as to whether there was a party

on the other side interested in maintaining the

order. But it ultimately came before the court on

judicial review proceedings under order 56 of the

Supreme Court Rules and thus it happened that it

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came before Mr Justice Crockett and thus it happened

that there was, indeed, an appeal to the Full Court.

Ordinarily, in an order nisi situation there is no

appeal from the decision of the primary judge. So,

in brief substance that is how it happened but the

relevant point and the point from this appeal is

that he was never charged under 49(1)(b), the choice

was made to charge him solely under 49(1)(f) and

we say,in our second argument, for purposes that

must be inferred were ultirrate in a legal sense.

Now, might I now make good the point, for the

purpose of showing that this cannot be what Parliament intended to allow - might I make submissions to the Court as to how the "gross

personal injustices" can arise and I shall seek

to do so without taking silly cases although, no

doubt, they would not always be common cases.

Before doing that, however, might I take the

Court to what is perceived in Victoria to have been

the mischief aimed at by section 49(1)(f) and might

I do so, respectfully inviting the Court to remember the purposes of the Act in section 47.

The purposes of the Act in 47 of the Part

are to keep over-the-limit people off the road.

(Continued on page 16)

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MR BLACK (continuing): It is not hearkening back to the

prohibition era and it is a purpose that is

effected deliberately in terms that will make

people incriminate themselves, punish them severely
if they do not but, for the ultimate purpose of

keeping the roads clear.

Now, the mischief was identified by

Mr Justice Crockett at page 41 point 9 of the

appeal book where His Honour said:

Paragraph (f) has been introduced into the legislation to deal, of course, with those

cases in which the apparently culpable driver

is not detected at the time of his driving

and, although when so detected he is then

found to have more than the prescribed

concentration of alcohol in his blood he is
able to claim - often without possibility
of proof of the contrary - that that
concentration was due to post-accident

drinking. See the unreported cases of

McDONALD V BELL and GIANKOS V ELLISON.

Then, His Honour continued:

Consistently with the creation of such

an offence there is to be found in S.49(6)

a provision -

and then His Honour sets out the prov1s1on that

exclude~ evidence 3S to the consumption of alcohol

and His ~onour continues:

Thus, the only defence that it would appear

could exist is that the breath analysing

instrument that was used was not in proper

working order or was not properly operated

when the defendant's breath sample was

detected. Indeed, such a defence is expressly

preserved by S.49(4).

And so it is but, as I shall seek to demonstrate,

it is of no use to you unless you have an incredibly

lucky break. It is of no use to you if your defence

is really ore of legal and moral substance because

you cannot say that, "I only had one beer" or "I

only had no beers, I had nothing to drink". Then, an earlier judgment of another judge of the court,

Mr Justice Phillips, who was concerned about the

operation of the section, so concerned, indeed,

that he, Mr Justice Phillips, thought that the

discretion to prosecute should be vested in the

Director of Public Prosecutions, a view that, on

Mr Justice Crockett's analysis, was quite unnecessary.

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But, in the middle of page 44, Mr Justice Phillips

said:

S.49(1)(f) is aimed at those drivers who,

out of a sense of guilt and in an attempt to

escape prosecution, give to investigating

police officers false accounts as to the

circumstances of when and where they have

consumed alcohol. If s.49(1)(f) succeeds in

bringing about the conviction and punishment

of such drivers, so be it.

I might read the next, if I may:

But its application could also result in the conviction and punishment of completely

innocent citizens, who in truth have not

consumed a drop of alcohol before driving

their motor cars.

The Full Court referred to the section in somewhat

similar terms at page 62 of the appeal book. If I

might read, indeed, from the middle of page 62

because it gives the whole context of what

Their Honours were saying. Reading from line 15:

Evidence such as that -

that is to say, evidence as to alcohol concentration

and rebutting it -

held admissible in LAMB V MORROW (1986) VR 623

as to the accuracy of breath analysing machines

and otherwise as to rise and fall from peak

levels ..... may be received to rebut the

presumption. Effectively however the only

defence to a s.49(1)(f) prosecution is under s.49(4) that the breath analysing instrument

used was not on the relevant occasion in

proper working order, a defence which for

practical purposes may be without real value	if examination of a particular machine by or
on behalf of a person whose breath has been
tested has no practical possibility.
Section 49(6) excludes evidence of the effect
of the consumption of alcohol, and the nature
of the offence in s.49(1)(f) renders irrelevant
any evidence of post-driving consumption of
alcohol.

(Continued on page 18)

C2T35/2/SH	17	10/11/89
Mills(2)

MR BLACK (continuing):

It may be accepted that LAMB V MORROW inspired

the insertion of s.49(l)(f) although it was not

a case concerning the admissibility of post-driving

consumption of alcohol. The effect of

s.49(l)(f), however, is for practical purposes

to render inadmissible the type of evidence

which might be available on a charge under

s.49(l)(a) or (b) going to rebut the presumption

mentioned in s. 48. A ~.umber of unreported first

instance judgments su: Jrt this.

Their Honours set them out and I need read :- :,

more from that part. Now, how it all works, in

our submission, does indeed justify the e~ithet

"Draconian" and might I give the Court some· examples .

Example 1 is simply this, and I am assuming in

all these examples that there are honest people in

the world and the breathalysers can make a mistake;

both assumptions, in our submission, are amply

justified and there are people who do not lie about

their alcohol consumption. Obviously there are
plenty that do and plenty that just get it mistaken
without any deliberation., matters which can be

sorted out in the ordinary judicial way, but example 1.

As a matter of fact, all supported by irrefrangible

evidence, the actual bottle and the steward and so

forth, a person has consumed only three standard

drinks in three hours - a careful person. He is

found driving.	He submits his breath to analysis and
the reading comes out, let us suppose at .125.	He

says "That is impossible and here is the scientific

evidence to prove it". And he says,"What is more I want to lead that evidence because, if one accepts

that it is impossible, having regard to my weight

and build and so forth, the inference I ask you to

draw ,·magistrate, is that the machine is not working

properly", which is a. defence that is pres.e.:.1:.Yed, "It

was not properly operated", which is preserved,

"The operator either by mistake or", one would hope

a non-existent case "has deliberately written down

the wrong reading".

(Continued on page 19)

C2T36/l/CM	18	10/11/89
Mills(2)

MR BLACK (continuing):  The Victorian machine does not give

you a receipt; it is unlike the cash register.	The
operator is required under the Act to write down the reading and give it to you, and there are strict provisions that require him to do that.

There is a human element between the reading - there is a human element right through because the machine

has to be operated, but there is a human intervention

between the actual observation of the dial and

the certificate the person gets. In those

circumstances the person is, let us assume, morally

blameless; he has not been in an accident, he has

tried,and succeeded, in drinking very little; he is

not engaged in the trickster's defence of drinking

after the police have caught him; he cannot do that

anyway; he is then charged; if he is charged under

(b) he has a defence, a moral and proper defence,

no mere technicality; if he is charged under (f) he has no effective defence. More to the point, in our submission, Parliament has not sought to

exclude his defence if he is charged under (b); it

has left that open. We go on later to say that that

person does not get a fair trial, but that is the

second argument. A less morally meritorious

person has gone rather too - - -

BRENNAN J: Section 48(l)(a) is posited on the proposition that

there is a certain concentration of alcohol present in
the blood at a particular point of time, it is only

the corelation between the two points of time.

MR BLACK:	Yes, that is so, Your Honours, as I understand it, yes.
BRENNAN J:	So that the person who has had his two glasses and

who has given a reading of .125 has not got any

protection under 48(l)(a)?

MR BLACK:	No, he has not, Your Honour, but he can call evidence
about his two glasses, and that leads to the inference
that the machine has not worked properly, or the operators
DAWSON J: Until the contrary is proved.
MR BLACK:	Yes, it allows him to do that; it allows the contrary
to be proved.  The only time you get absolutely caught
is if you do not give seven days notice of your
intention to call the operator, then, I think, you are caught, probably.

(Continued on page 20)

C2T37/l/FK	19	10/11/89
Mills(2)

MR BLACK (continuing):  But elsewhere if you have evidence

that is relevant to the matter, you can lead it.

It might be rubbish, it might be the absolute truth,
but it is determined by the magistrate, but not

if, as a matter of executive discretion, on the

Full Court's interpretation, the police choose

to charge you under 49(1)(f), a section that

Parliament put there whilst at the same time leaving

49(l)(b) in the statute and introducing the present

version of 48(1)(a) which obviously was intended

to have some work to do.

BRENNAN J: Is that not the very problem? I mean, take your

client n this case, let us assume that the police

gave chase, he escaped and after a high-speed

movement down a street, got home. The police found

him half an hour afterwards - they found his car

in the garage at his place half an hour afterwards,

what could they do?

MR BLACK:  They would have power to give him a breath test.

BRENNAN J: After getting a warrant to enter?

MR BLACK:  Yes.

TOOHEY J: Is that right,that they can give him a breath test

as opposed to a breath analysis?

MR BLACK:  I am sorry, Your Honour, they could give him - - -

TOOHEY J: If you look at section 55(2), that seems to cater

for the situation that Justice Brennan was alluding

to. He is the person who has not been apprehended

at the scene, as it were, but has been caught up

with some time later.

MR BLACK:  He is one of those persons, Your Honour. He, in

fact, is the old driving under the influence person.

TOOHEY·J:	He cannot be given a preliminary breath test under
section 53 because he does not fall within any
of the categories.
MR BLACK:	That is so.
TOOHEY J:	But he can be required to give a breath analysis
under section 55?
MR BLACK:	With respect, Your Honour, I would have to say that he may be a person found driving under 53(1)(a) and,
indeed, we do say that for the purposes of our later
horror stories.
TOOHEY J:	Found driving?

C2T38 /1 /ND	20	10/11/89
Mills(2)

BRENNAN J: Indeed 55(2) applies only to driving under the

influence.

MR BLACK:  Yes, although in Your Honour Mr Justice Brennan's

example it would not take much imagination to say

that such a person - well it depends how he drove,

I suppose. He might be a legitimate object for

being caught under 55(2) in which case, if he were,

he could not be charged under 49(l)(f). So such

a person who, if the prima facie case has got

any substance, is the worst sort of person that you

find on the road.	He could not be charged under
49(l)(f).	He would have to be charged under 49(l)(a)

and he would have all the defences.

DAWSON J:  Am I right in thinking that the burden of your

argument comes to this. If there is suspect driving

on a roadway.

MR BLACK:	Yes.
DAWSON J:	If there is any sort of a collision then it could

go under 49(l)(f), but ir it is a near miss, it cannot?

MR BLACK. Yes. Even in those circumstances the person who has

been involved in an accident, he can get himself

into terrible trouble, whilst being silly, but

morally innocent, but at least he knows that he

has been in an accident and knows that if you have

been in an accident you should not drink for three

hours.

DAWSON J:  And your point is that the accident will normally

cause the person who is so inclined to go and drink

half a bottle of whiskey - - -

MR BLACK: Yes, that is so, Your Honour.

DAWSON J:  That could be what motivated him to do it.

MR BLACK: Yes. I cannot, I suppose, exclude entirely

Your Honour Mr Justice Brennan's-in ones mind's eye

of the person knowing the police are following him

because of the flashing lights and so forth.

DAWSON J:  I was not thinking of the difficulty of it. I was

thinking of what in fact happens with the very

irregular driving, police pursuing, getting home,

saying to the police, "I am at home now; you cannot

touch me. Go and get a warrant". The police having

to go and get a warrant. No chance of tieing it up with driving under the influence under (a) and then

you have a court battle on your hands if your

argument is right about 49(l)(b). And was that not the

very purpose all this was intended to stopi

C2T39/l/CM	21	10/11/89
Mills(2)

MR BLACK:  No, Your Honour, it was not. That may be a case -

the person then - I might answer Your Honour very

briefly. The person in those circumstances would

have been found driving and he would be charged

properly under section 49(l)(b); a breath test would

be administered; he would, indeed, have the defences

available to any section 49(1) (b) driver. :It- would

be a matter for the magistrate as to whether he

believed a word of what such a person said.

But, such a person is in the same legal position as

the entirely innocent, honest person who I will come

to in example number three and our argument does

not - it might cause difficulties with

Your Honour's example but what it does not do is

to convict the person, the innocent person, in

example number three. Now this is, in our submission,

not far-fetched but it does rely upon the notion

of a person being found driving in the sense that

the police see him driving. He is found driving and

let us say it is a small community and that the

young constable knows him, sees him driving, knows

that he has got a drink driving offence, knows that

he has got an alcohol problem but also believes that

he is genuinely trying to reform. He sees the man and

he talks to him, he is satisfied that he has not had a drop to drink. The man goes home o~ let us say to

avoid the warrant problem, he goes to some public

place but it could be his home.-, 'Tue young policeman

goes back to the police station. ~he experienced

sergeant has a different view of the progress

towards reform of the suspect. Ke says, "Go back and

give him a breath test", which he does. The man

having got horn~ absolutely moral other than his
ultimate drinking problem, and he has had a quantity

to drink and two hours later the policeman comes

back and he is over the limit; he has no defence;

he is innocent and yet if he is a second offence he

suffers dreadful penalties -mandatory dreadful

penal ties i<f ·suc-h- c3; person is caug~t ·- perhaps

the less far-fetched example and he cannot - and an

unusual concept to say to the Court - prove his

innocence and that is what he has got to do; that is

the way it has been turned around and we do not

complain about that but he cannot prove his innocence.

(Continued on page 23)

C2T40/l/JH	22	10/11/89
Mills(2)

MR BLACK (continuing): Example 4: police on duty outside an

hotel, as they are these days. A person goes into the

hotel; police know him and observe him; he leaves

his car outside and he drinks too much.	He does as he
ought to and starts to walk home.	He goes to the

car to collect his bag. The police apprehend him.

He has obviously been drinking; he protests his

innocence and he is charged not under section 49(l)(b),

as we submit he ought and which would allow him to

tell his story, but under section 49(l)(f) and he

has no chance of escape;	loses his job and in the
context of compulsory self-incrimination.	Now,

there may be a trick in it, we have not seen it,

but that seems to follow.

The less meritorious example which I started

but did not finish and is this sort of case where

a person is close to the limit. He might be .04

or he might be .06 and he decides to chance it.

Now, the evidence is led in Victoria, and it is in

LAMB V MORROW, and I do not think it would be disputed

that the breathalyser may read under but it may also
read over to about .02 per cent and it is not completely
accurate or may not be completely accurate. The person

who has run a bit of a risk cannot, if charged with

section 49(l)(f), lead any evidence to show that the

breathalyzer may not have been accurate in his case.

He might have been a particular fat person or a

particularly thin person, or for whatever reason.	He
is deprived of a defence.	But if he is charged under

section 49(l)(b) he does have such a defence for

what it is legally and morally worth; a matter to be

assessed as to the legal worth by the magistrate.

TOOHEY J:  On your argument, Mr Black, a person, the driver,

could be stone-cold sober at the scene.

MR BLACK: Absolutely.

TOOHEY J: Not involved in an accident.

MR BLACK:  Not involved in an accident.

TOOHEY J: But involved in an incident, let us say; the vehicle

identified.

MR BLACK:	Yes.
TOOHEY J:	Returns home;  an hour or so later, the police having

learnt the identity of the vehicle arrive at the house.

In the meantime he has had a number of drinks.

C2T41/l/PLC	23	10/11/89
Mills(2)

MR BLACK:	Yes, and in quick succession
TOOHEY J:	- - - and then be charged under ( f).
MR BLACK:	Yes, and no defence.  The Full Court recognized

this. This is the gross personal injustice and the

injustice that "might well result" that the Full Court

had in mind. This is why the epithets; Draconian,

ludicrous, et cetera, have been applied to this section
in its potential operation. In our submission, it is

an operation that the Parliament did not intend.

TOOHEY J: But, having said all that, you still have to support

some reading down of paragraph (f) or, if not reading

down, the insertion of some sort of qualifying words

into the paragraph.

MR BLACK: Yes, we do, Your Honour, and we accept immediately

that it is not enough to say it is horrendous and

awful. If that is what the Parliament, that is too

bad but, in our submission, the scope, purposes,

objects and, indeed, language of the Act leave fairly

open the approach of Mr Justice Crockett. It is an

approach that can still lead to harsh consequences

but not to gross personal injustice such as of such

a level, in our submission, that the Parliament could

never have intended, conformably with its statutory

purposes as expressed in section 47.

MASON CJ:  The Court will adjourn until 2 o'clock.

AT 12.46 PM LUNCHEON ADJOURNMENT

C2T42/l/SH	24	10/11/89
Mills(2)

UPON RESUMING AT 2.02 AM:

MASON CJ:  Yes, Mr Black? You were going to come to your

argument in the matter.

J:1R BLACK:  If the Court pleases. Your Honours, the horror

stories are, indeed, part of the argument because - - -

MASON CJ:	Perhaps they are the argument.
J:1R BLACK:	Oh no, Your Honour, there is more to it than that.

Although even if they were only the argument, so long as there was some rational interpretation capable of being placed on these words, it would be

sufficient if the result was capricious and
arbitrary or whatever unpleasant term one cares
to put it on, in our submission and the point

Your Honour made in the COOPER BROOKES case which

was cited by the Full Court but not the passage
from which Your Honour made those points but,

Your Honour, might I - - -

MASON CJ:  It was not my judgment that was cited; it was

Justice Gibbs' judgment.

J:1R BLACK:  And only part of Mr Justice Gibbs' judgment not,

in our submission, the most critical part.

Your Honours, might I just if I may add one more
point, firstLy, in answer to an example

Your Honour Mr Justice Brennan gave me and I have

given the answer. There is one further point,

Your Honour, and that is that the bad driver who escapes that Your Honour referred to, of course,

may not have been a drinking driver at all. The

wild conduct that Your Honour postulated would,

no doubt, attract penalties and convictions and

penalties on a range of severe o£fences but it would

not be right if he were convicted of a drink driving

offence if he were not a drinker and the same

problem would arise in his case even though he is not

a man of great merit. But, if he were to be charged

with a drink driving offence then however bad he was

he would be entitled to a fair trial which he would

not get under this section.

(Continued on page 26)

C2T43/l/JH	25	10/11/89
Mills(2)

MR BLACK (continuing):  The next limb of the argument, perhaps

more classical, and it is one Mr Justice Crockett

used to support his ultimate conclusion which he

arrived at independently, is that section 49(1)(b)

would not be there at ~11 if it had no part to play.

The answer given to that, no doubt, is it is there

for old time's sake. The reply to that, in our

submission, is that this is a 1986 statute which is

enacted for a serious social purpose and apparently

not only codifies but expands the law and it cannot

be imputed to parliament but with that serious

intention in mind, to put the whole of the law on the

subject of road safety in one Act, that it simply

left 49(1)(b) there for old time's sake, nor can

it be assumed that it put section 48(l)(a) into the

Act if, in truth, it would hardly ever have any

work to do.

Now, section 48(1)(a) in its present form is

new, and that is the section which, of course, is

specifically directed to linking the breathalyser

reading to the actual alcohol content at the time
of driving within the preceding three hours. Given
that the driving under the influence offence is not

a common one, section 48(1)(a) would have no work to do if section 49(l)(b) were a dead letter. Now, in

our submission,that is a classical argument in all

the books, that parliament should not be presumed to

put sections in that do not mean anything, and

further to that, if one looks through the succeeding

sections - and they are in the outline. I will not

both the Court with details - but section 49(l)(b) and

section 49(1)(f) are separately dealt with.	There
is not infrequent reference to both sections.

Now, the short point is that if the Act may be interpreted as the way the Full Court considered

to be correct, why is section 49(l)(b) there at all,

because no policeman would use it.

(Continued on page 27)

C2T44/l/HS	26	10/11/89
Mills(2)

BRENNAN J: It is a bit like manslaughter and culpable driving

causing death, is it not?

MR BLACK:  With respect not, Your Honour, because those two

offences are different in kind and different in social

purpose.

McHUGH J:	And different in penalty.
MR BLACK:	Yes, exactly, with respect, Your Honour. Here,

everything is the same except in one case you have

virtually no defence and, presumably, if the

breathalyser operator were to concede that blue

smoke was corning out of the machine but even then

you could not give evidence that you had not had

anything to drink and might I make the final point
before going on to the next limb of the argument,

human experience suggests, in our

respectful submission, that there is no such thing

as the perfect machine; the most sophisticated machines
that we have produced - spacecraft, Apollo and so forth,

have failed; nuclear power stations have been known to fail;

the unsinkable ship sinks; the perfect mouse trap
in fact, does not alway amazingly catch the mouse;

the typewriter malfunctions and lifts are notorious

from time to time stopping; they are highly designed

machines of varyin8 degrees of

sophistication; they fail.

The central, then, is this, in our submission:

consistently with the policy of the Act, the mischief

that we say 49(1)(f) was aimed at, it is legitimate to

do what Mr Justice Crockett did and that is to look at

the source of the power to see what linkage it has with

the offences with which a person may be charged and

basically His Honour's analysis, supported by the

other arguments that we have raised and one more

that I will come to, basically the analysis was that

one can discern from the whole of the Act a pattern

and it is a sensible pattern that achieves the objects

of the Act and, in our submission, it does no violence	to the accepted canons of interpretation to discern
the intention of the legislature in that way and to interpret the Act accordingly so as to avoid the
gross injustice or potential for it that the Full Court
considered the section might produce and injustice that has no social purpose.

Now, the legislative history was something that

both the courts below found comfort in.

Mr Justice Crockett, at page 51 of the appeal book,

considered that the legislative history supported

his interpretation and might I hand to the Court

the page from the second reading speech that His Honour

cited because the full citation is, in our submission,

C2T45/l/SH	27	10/11/89
Mills(2)

slightly more revealing than the passage that

His Honour cited. The entire debates, I gather,

have been reproduced by the Crown and are available

should the Court desire them and I gather they are

before the Court but we have about three pages to

which we would desire to make brief reference.

Now, in the passage that Mr Justice Crockett

cited in the legislative council at page 1026, not

only does the passage that His Honour cited appear

but, just above that, at about point 4 of the page,

the following passage appears:

Motorists will need to be aware that

the new offence is being over the legal

limit at the time of being tested.

Consequently, a motorist who drinks after

being involved in an accident but before
being tested cannot use this to subvert

the possibility of a conviction as at present

and runs the risk that the penalty may be

substantially increased -

Now, that is reflected in what the minister in the

lower house in his second reading speech said on

the same subject-matter. That is in the report

of the debates of the assembly on 11 September 1986,

at page 230, at the foot of the page. The discussion

proceeded under the heading "Technical Defences against Drink Driving Charges"; there are some statements about

how it was necessary to remove:

"Smart esoteric points ot law that lead to

a diminution in the capacity of the police

to see that our roads are free of motorists

who are affected by drink".

And that is reflected in the policy of the Act.

But at the bottom of the page the following appears:

(Continued on page 29)

C2T45/2/SH	28	10/11/89
Mills(2)

MR BLACK (continuing):

The only grounds in which a breath analysis reading

may be challenged will be that the particular

instrument was operated improperly or was

defective. Motorists will need to be aware -

et cetera.

Consequently, a motorist who drinks after being

involved in an accident -

which is the same as the minister in the other

house - the same words as the minister in the other

house used. Now, Mr Justice Crockett derived

support from that and, in our submission, strong

support can be derived from that. The Full Court,

at page 67 of the appeal book, cited another passage

which, in our submission, is cited out of its

full context. Now, the full passage, at page 1998

of the reports of the debates of the Legislative

Assembly, has now been handed to the Court and, in

our submission, taken in context it does not support

the strong conclusion that the Full Court reached.

What was happening at that point in the debate

was that it was desired to remove from clause 49,

as it then was, of the bill, a provision that
allowed a person who was breathalysed under the

driving under the influence provisions of 55(2),

it allowed such a person to be charged under

section 49(1)(f). The original 49(l)(f) in the

bill had section 55(1) and (2) in it and the

"and (2)" was deleted. Now, the concern of the

house and the concern of the minister at that stage
was to avoid the situation where a person could be
prosecuted who had consumed alcohol only after
driving.

Now, such a person, on the argument before the house, was a drunk-driving type of person,

in other words, the allegedly worse type of

offender and what we ask, rhetorically, is how

could it have been the intention of the house to

protect that person; at the same time give no

protection to the ordinary citizen who might be

.06 and have that person charged in such a way

that he could not give evidence of post-driving

consumption? It just does not make sense. But
in that context, in our submission, the bottom

four lines on the page read very differently.

Where the minister said - I am reading from the

second sentence:

A preliminary breath-test can be administered

where a person has been found driving or has

been in an accident. A breath analysis after

this can still lead to a "fail the test"

charge.

C2T46/1/DR	29	10/11/89
Mills(2)

In our submission, he is not saying that you

can be put in the undefendable situation except

where one has been found driving or been in an

accident. It just does not support, in its full
context, what the Full Court said. The other part
of the context is the passage earlier cited by
the same minister in the same house at page 230,

to which I think reference has already been made,

and that is:

Consequently, a motorist who drinks after

being involved in an accident but before

being tested cannot use this to subvert

the possibility of a conviction.

That is the same minister, on the same bill,

in our submission, making it lain that the

interpretation ultimately der ved at by

Mr Justice Crockett does, inceed, reflect the

intention of the parliament. Now, in our submission,

is becomes clearer still when consideration is

given to what happened to the bill thereafter.

(Continued on page 31)

C2T46/2/DR	30	10/11/89
Mills(2)

MR BLACK (continuing): In 1988, before this case, in fact

just a few days before this case came on before

Mr Justice Crockett, a bill was introduced into

the house to amend the ROAD SAFETY ACT and the

explanatory memorandum, which I will hand to the

Court, if I may, and the debates, indicate the clear understanding of those introducing the bill that the

failing the breath test situation was, at least on

the face of it, restricted to the accident situation.

If I might take the Court to the explanatory

memorandum, clause 7, which reads:

amends sections 48 and 49 of the Act

to ensure that a person who has a blood

alcohol reading solely as a result of

drinking after driving is able to lead

evidence of that fact when charged with

failing a breath or blood test within

3 hours after an accident.

Now, those are not the specific words of the statute

but, in our submission, they reflect the parliamentary

understanding of what the statute did and was intended

to do. Likewise, if I might take the Court to the

second reading speech of the minister, Mr Kennan -

he was, in 1986 Attorney-General in the upper house,

same person now Minister for Transport in the lower

house - on 3 November 1988 in the second reading

speech on the bill under the heading Other Matters

at page 508, the second last page of the document

handed to the Court, said this at about point 6 on

the page:

evidence of drinking alcohol after an

accident will be admissible in cases

where the court is satisfied there was

no blood alcohol present at the time

of driving. However, the onus will be

on the defendant to satisfy the court

of this.

So, again, the supposition is that the fail the test

if I can so use it - offence is related to a post-

accident situation. That was on 3 November, before

Mr Justice Crockett's judgment. On 10 May 1989

in the council, when the bill came to the council for

its second reading, at page 48 of the hansard for that

day, at about point 3 of the page, the same appears.

Now, in our submission, under the Victorian

INTERPRETATION OF LEGISLATION ACT, if the matter is

relevant, to use the words of section 35, it may be
used. Of course, we do not put it in the forefront
of our submissions and we recognize that the

parliamentary debates cannot turn the word "yes"

into the word "no" but, in our submission, it is

relevant and thus of assistance and a proper aid

to interpretation in this case.

C2T47/l/HS	31	10/11/89
Mills(2)

In our submission, that leads to the conclusion

that Mr Justice Crockett was correct, that the literal

refer to the outline, at paragraph 11 of the

interpretation placed upon the section by the Full

outline, we set out what, in our contention, are

the merits.

McHUGH J:  Just before you go to that, would you explain to

me again the use you seek to make of the statement in the assembly on 3 November and the statement in

the council on 10 May, since both those statements

deal with legislation which is passed after the date

of this - - -

MR BLACK:  Yes. Your Honour, the only use we can make of it

is this:  we say that under the Victorian

INTERPRETATION OF LEGISLATION ACT the test is that of

relevance. We say that if the same parliament has

indicated its perception of what the existing law is

when it is amending it, then that is relevant and thus

legitimately admissible, if I can use the expression,

in the interpretation of that law. There are cases,

but they are of a very narrow nature, where,

without the assistance of the INTERPRETATION OF

LEGISLATION ACT and special circumstances the courts

have looked at later legislation for the purpose of

clarifying the meaning of earlier legislation that

was being amended. If I could give the Court

brief reference to GRAIN ELEVATORS BOARD V THE SHIRE

OF DUNMUNKLE, 73 CLR 70, in the judgment of

Mr Justice Dixon at the top of page 86.

(Continued on page 33)

C2T47/2/HS	32	10/11/89
Mills(2)

MR BLACK (continuing): There were limited circumstances but

the subsequent legislation was looked to.

MASON CJ:	But is there any authority for the proposition that
it is permissible to look at statements made in the
house, subsequent to the - - -
MR BLACK:	No, there is not, Your Honour, and we can found it only upon the words of the INTERPRETATION OF
LEGISLATION ACT that talked in terms of relevance,
section 35, which I will take the Court to.
Section 35 of the Victorian INTERPRETATION OF LEGISLATION
ACT provides:

In the interpretation of a provision of an

Act or subordinate instrument -

(a) a construction that would promote the

purpose or object -

et cetera, is to be preferred -

(b) consideration may be given to any

matter or document that is relevant

including but not limited to .....

reports of proceedings in any House of the

Parliament.

So it gives the - under Victorian law - a very

wide scope to the courts. Now, in our submission, what somebody says after the event about what they

mean may be excluded on policy grounds - and I

withdraw that - there would be circumstances in

which, in the construction of an instrument, what

somebody says about its meaning, if admissible at

all, would be just as admissible if said after the

event as at the time of the event. That is how it is

put.

MASON CJ: There is a judgment of Justice Dawson's in

MELVILLE V HUNTER RESOURCES, which goes some way to

supporting that proposition of yours.

MR BLACK:  I very much regret to say that had escaped -

MASON CJ: It was a case decided about two years ago, I think-

two or three years ago.

MR BLACK:	That makes my position all the worse, Your Honour,
but we - - -
MASON CJ:	It means you have only had two or three years to forget it, Mr Black.
MR BLACK:	Your Honour, what can I say?  Your Honour, we
would, if I may say so without disrespect, rely upon
that as getting us half-way, but say that the

C2T48/l/FK	33	10/11/89
Mills(2)

Victorian legislation, speaking in terms of relevance, in unt ~mmelled terms, there being no

policy reason no ~o look at the subsequent

legislation woul carry us the rest of the way.

MASON CJ:	My recollection is that the judgment did draw on
the DUNMUNKLE case.

DAWSON J: It did, I was the only one who said it and

Justice Wilson expressly disec±ated himself from

what I said, however.

MR BLACK: Well, Your Honour, I am covered in confusion, I am

sorry I have not read the case. Finally, we -~bmit

that the Ful Court's vi~ of what the liter	rules
of interpretation require , was, ~e respecti~_ly

s·J.bn.it, marred by its failure tc as it were, if I may say so, read on in COOPER BRCOKES (WOLLONGONG) which Their Honours cite, 147 CLR 297, in the

judgment of the then Chief Justice Sir Harry Gibbs

at page 305, after the part that the Full Court
cite at appeal book page 63, His Honour said this:

Since language, read in its context, very often proves to be ambiguous, this

last mentioned rule -

that is the two construction avoid the injustice

rule-

is one that not infrequently falls to be

applied.

.And Your Honour the Chief Justice and Justice Wilson,

at page 320, towards the bottom of the page, dealt

with it in some more detail, where, having dealt

generally with the rules of construction, said at

the last paragraph, this:

The rules, as D.C. Pearce says in rules of common sense, designed to achieve	Statutory Interpretation, are no more than
this object. They are not rules of law. If
the judge applies the literal rule it is because it gives emphasis to the factor which in the
particular case he thinks is decisive. When he
considers that the statute admits of no reasonable alternative construction it is because (a) the
language is intractable or (b) although the
language is not intractable, the operation of the statute, read literally, is not such as to
indicate that it could not have been intended by
the legislature.

And then, perhaps more directly for our purposes, at

the top of 321:

C2T48/2/FK	34	10/11/89
Mills(2)

MR BLACK (continuing):

On the other hand, when the judge labels

"extraordinary", "capricious 11 , "irrational" or	the operation of the statute as 11 absurd11 ,
"obscure" he assigns a ground for concluding
that the legislature could not have intended
such an operation and that an alternative
interpretation must be preferred. But the
propriety of departing from the literal
interpretation is not confined to situations
described by these labels. It extends to any
situation in which for good reason the operation
of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions.

So in those circumstances we respectfully submit

that it was wrong to conclude, as the Full Court did

at page 65, the following, line 10:

The present contentions, we think, stem from

confusion caused by the introduction of clearly

harsh laws capable as such laws always are of

producing gross personal injustice, into a

society accustomed to enjoyment of unique

private liberty and rights which protect it.

Now, in our submission, the parliament knows the

rules. The parliament knows what this Court

has said about statutory interpretation and if

the parliament does wish to cause gross personal

injustice, in a society that is indeed accustomed

to, with the protection of the courts, the enjoyment

of unique private liberty, then it should say so

in express and absolutely explicit terms and it did

not do so in this case. In fact, in our submission,

all the indications are to the contrary and most

particularly the policy of the Act, as revealed in

section 47. That is the construction argument and,

in our submission, that argument which reflects and respectfully adopts what Mr Justice Crockett found

at first instance is the argument which should

prevail. If that argument does not find favour with

the Court, there is a second argument and that is that

the choice to prosecute, in these circumstances, in

this very particular type of legislation, was an

briefly seek to make that good, but the argument has

abuse of the process of the Court on the narrow view.

to be prefaced with the disclaimer that in the

ordinary case, if the section is there to be charged,

how can it ever be an abuse to charge it. The reason,

C2T49/l/CM	35	10/11/89
Mills(2)

in our submission, the argument is open here, is

that the legislation seeks to achieve the same

social purpose. It has the same proofs; the same

penalties and is in all respects the same, in broad

substance, except in the one vital respec4 that in

one instance there is no effective defence and the

other instance, the parliament has left those

defences open.

And what we therefore say is that in those very special circumstances the position where a

person is charged under one section rather than

the other, requires close examination. Particularly is

this so when. on, in our submission, any rational

view section 49(l)(f) had as an aim, if not on this argument the sole aim, the stamping out of a soc:.'. . .:..

mischief, that is to say, the tricksters c.:._ fence
post accident drink, that confounds the purposes of

the Act, by keeping the impaired driver on the

road without proper proof to the contrary.

(Continued on page 37)

C2T49/2/CM	36	10/11/89
Mills(2)

McHUGH J:	But how could it ever be an abuse Qf pr9cess to take advantage of a cause of action which does not
make available a defence? Supposing somebody sues
in contract for a personal injury case instead of suing in tort to avoid a defence of contributory negligence or sues in contract to take advantage of a right to serve a writ out of the jurisdiction.
1:1R BLACK:	Your Honour, the argument requires - there is an answer - several steps and they are very special
steps, not special in a sp~rious sense, in our
submission, but special to the circumstances of this case and there are about four propositions if I
might - and it is the argument - so if I can answer
Your Honour by really putting the argument.
McHUGH J:	Yes.
1:1R BLACK:	The defence that is excluded by section 49(6)

is no mere technical defence, It may be a defence

of real merit, that is to say it may show that the

person in moral terms, at least, is innocent of

anything. Now, in our submission, it is contrary

to all notions of a fair trial that relevant

evidence admissible on ordinary principles and

capable of affording a real answer to a charge and,
of course, the onus is reversed which makes it worse,

is excluded from consideration.

McHUGH J:  But a fair trial depends upon what the issues are

and the issues are defined by the cause of action.

1:1R BLACK:  Your Honour, it_ is_ conceded that parliament -

and this is the next step in the argument - may for

its special purposes or for such purposes as it

sees fit or for no purpose render inadmissible

evidence that would give one a defence and one might

complain about that politically if one likes but it

is done. But where it is discernible as it is here

that the evidence is excluded for a particular

legislative purpose, then absent that purpose and

present an equality of eveything else then, in our

submission, to charge a person by executive

discretion with one offence rather than another is

to act on the basis that you want to have the

person to have what in law is an unfair trial. You

want the person not to be able to lead evidence that

is legitimately open to him under a charge that the

parliament has identically dealt with in terms of

penalty and social object, you want the person not

to have a defence and, indeed, the evidence in that

case goes a .. !1ong way to making explicit what we would

s~y is the irresistible inference anyway because

the evidence was from the police at page 32 point 5

as follows - this is in the affidavit that started the

proceedings off before Mr Justice Crockett:

C2T50/l/JH	37	10/11/89
Mills(2)

In response to questions from Mr Bourke -

who was counsel for the defendant -

as to the appropriate charge

the witness said that there was no

discussion as to the appropriate charge,

that "we all know it is 49(l)(f). He

further said "If a person is given a

preliminary breath test then 49(l)(f) is

the appropriate section". "The reason is

to negate the allegation they have had

further alcohol".

Now that is a totally wrong reason where the person

has been in police company, if not custody, at all relevant times. There is only one reason they are

doing it and that is so they cannot lead that

evidence by way of defence. That is what is so

unique about this case. There is a further passage

in not such express terms at page 29 of the appeal

book, line 10:

In response to questioning by Mr Bourke

as to why the information was laid down

under Section 49(l)(f) of the ROAD SAFETY ACT

the witness said that she was sorry, that she

believed that she was charging him under the

correct section. That the instructions she

had received were that Section 49(l)(f) was the appropriate section. She said that she

saw me driving and that she observed me

sitting in the driver's seat ..... She agreed

that there was no suggestion that I had

absconded -

et cetera. Line 20:

She agreed that I had been driving a motor car and that she had had a test conducted

before deciding to charge me under
Section 49(l)(f).	She said that so far as

she believed it was the law that I should be

charged under that section, but that she

did not read Section 48 at the time. She

said that a brief was submitted and that it

went through normal channels ..... was

authorised by a Senior Sergeant.

C2T50/2/JH	38	10/11/89
Mills(2)

MR BLACK (continuing): Now, in our submission, the only

inference that can be drawn in these circumstances

is where you have parallel legislation with the

same social object, the same penalties, the same

everything and absent the reasons for the "unfair

trial" - and I put it in quotes to answer Your Honour

Mr Justice McHugh's criticism - the reason that

you have the unfair trial disappears. Then, by
executive action, you decide to charge somebody - and

I stress "executive" - in circumstances where there

will be no defence. In our submission, that is an

improper motive because, as Your Honour the learned

Chief Justice pointed out in JAGO's case, an unreported

judgment delivered on 12 October 1989. In citing

with approval from Mr Justice Richardson of the

New Zealand Court of Appeal in MOEVAO's case, the

purpose of the criminal law is not to punish the

guilty at all costs. The ultimate precept of the

criminal law involves a fair trial.

Here, there is even another specialty because

were this matter to be stayed under 49(1)(f), no

criminal, if he be one, would escape justice because

the charge would equally be open under 49(l)(b).

The reasons that underlay to a greater or lesser extent the judgments of this Court in JAGO for

extreme caution, it granting a stay or, perhaps,

never granting a stay in certain circumstances,

were the public interest that if you can do anything

else then all interests will be served. You do not

just stay the thing if, in fact, you can cure the

abuse by doing something less than that. Now, this

case is again special because all it needed to happen

if the police chose and they did not choose - and they

deliberately did not choose we would infer - was to

charge the person with one section, the no-defence

section rather than the other. Now, that is the

way we put it; it is a very special case.

DAWSON J: Well, there are cases which say that you cannot,

for instance, charge a person with perjury after

he has been acquitted on some other charge, the

perjury being said to arise out of the proceedings

in which he is acquitted. That is not directly in point.

MR BLACK:	Yes, not quite the point but it is the same idea and, indeed, in Victoria, in a case of McCREADY V REG,
(1985) 20 A Crim R 32, which the Court has, I think,
been given -it was on our list of authorities. But,
in McCREADY's case, Mccready had been charged with -
it was the old conspiracy - cognate offence argument.
Mccready complained that he had been charged with
conspiracy and that was unfair and, needless to say,
that argument did not succeed but what is relevant
for our argument is the way the learned Chief Justice of Victoria dealt with it, the other two members of
the court substantially agreeing.  At page 40,

C2T5 l /1 /SH	39	10/11/89
Mills ( 2>

His Honour said this, at about point 7 oft e

page:

Before a court could interfere with a charge

presented by the Crown on the grounds that

it was an abuse of process, there would have

to be some very strong evidence or basis for
thinking that the Crown was indeed seeking
to achieve an ulterior purpose by the procedure
adopted. That would indeed be an abuse of

process. It may not be the only abuse of

process, but the mere choice of one section

rather than another under which to prosecute,

even though the section charged carries a

higher penalty than the alternative .....

is not in my view an indication -

and we would not respec fully seek to argue against

that.

(Continued on page 41)

C2T51/2/SH	40	10/11/89
Mills(2)

MR BLACK (continuing):  But it is recognition, in our

submission, by the Full Court of Victoria, that what we are saying is not impossible nonsense. We put it higher than that, of course. We say that the learned

Chief Justice of Victoria indicated that in an

appropriate case the choice of charge could be an

abuse of process and it would be a very rare case, but this has all the features of such a rare case,

with the added feature, and the significantly added

feature, that it is done by executive action in

circumstances where the parliament has expressly left

open to people charged with what we would say, on

the other argument, was the more natural offence,

to defend themselves in the course of what could

properly be described as a fair trial.

The problem with the argument is, of course,

as Your Honour Justice McHugh pointed out, how can

it be an unfair trial if it is according to law?

We answer that by saying that the unfair trial is

prescribed for particular social purposes. Absent

those social purposes there is no justification for

it and if the executive action is taken to prefer

one charge rather than the other for the reason that

you do not want the person to have a defence that may

be a real defence, then that is not bringing to the

criminal law a fair trial; that is bringing something

close to the improper notion of conviction at all costs.

McHUGH J:	Well, what do you say about the every-day occurrence of the Crown-police officers charging
somebody summarily with, say, stealing, when they
could. have put him up by way of indictment and he would
have had the advantage of a jury trial?

MR BLACK:  Your Honour, he has still got a fair trial. He

can still defend himself. That is the difference.

This man cannot defend himself and that is a terrible

thing to say in a criminal trial, unless there is

some great social purpose to be served by it.

McHUGH J:	He can defend himself.
MR BLACK:	He cannot, with respect, Your Honour. All he can say is, "The machine was not working".

McHUGH J:  He can say, "It wasn't my recording. The

policeman's lying".

MR BLACK:  But Your Honour, it is no use - everyone says that

but it is no use saying the policeman is lying unless

you can say why and you have all the scientists in

their white coats saying, "You can't read .25 if

you've only had one beer". He cannot defend himself,

in our very respectful submission, Your Honour, and

not in any realistic sense, and the Full Court

recognized that. That is why it was a gross law,

but one which they felt constrained to interpret

C2T52/.l/HS	41	10/11/89
M1lls(2)

in the way they did, though erroneously in our respectful submission.

For those reasons it 1s submitted this is, indeed,

an usual case. It is very special and particularly

special to those who want to lead a defence that they

really have and cannot and, indeed, we would infer

that that is why they were charged, and they should

not have been. It is an abuse of process.

May it please the Court.

MASON CJ:	Thank you, Mr Black.	Yes, Mr Nash.
MR NASH:	If the Court pleases, I hand to the Court seven copies of our outline of argument.	Some part of

that outline, if the Court pleases, anticipates matters

that have not been raised, but essentially the

respondent relies on five simple propositions;	one,
the words of section 49(1)(f) are plain and
unambiguous;	two, the parliamentary debates support

a literal interpretation of the section- section

49(l)(f) was intended to have the operation for

which the respondent contends; thirdly, section 49(l)(b)

is not thereby rendered redundant; and fourthly,

consequently there is no justification for reading

words into the section which are not there;	and,
finally, it is not an abuse of process for the

prosecution to exercise its discretion to prosecute

on the offence most easily proved.

(Continued on page 43)

C2T52/2/HS	42	10/11/89
Mills(2)

MR NASH (continuing): And if we might add an addendum to

that: the obvious example, to borrow from

Your Honour Mr Justice McHugh, is the choice of

an unlawful possession charge, being in possession

of property reasonably suspected of being stolen, rather than a theft charge, where which, in fact,

reverses the burden of proof.	The words of
section 49(l)(f) are clear and unambiguous.	They

relate to a person who within three hours after

driving or being in charge of a motor vehicle,

furnishes a sample of breath for analysis, pursuant

to section 55(1) of the Act. It is significant

that if what is being contended was the intention

of the legislature, the reference to section 55(1)

would be a reference to section 53 (1) (a). Section 55(1)

embraces all of the situation contemplated by

section 53(1) and this is an argument which will

be elaborated in some depth shortly. It is general

in its operation. It applies to a person who has

undergone a preliminary breath test under any of

the paragraphs of 53 ( 1) or under (2).

The words of the Act being plain and unambiguous

should be interpreted literally and in the outline

of argument a number of authorities are cited for

that proposition.

McHUGH J:  Can I ask you two questions which trouble me about

the construction of 5" and 55? Does	section 53(4)
apply to 53(l)(c)?

MR NASH:  I am sorry Your Honours. Subsection (4) - - -

McHUGH J:  53(4). You are'hot obliged •.... ifm:>re than 3

hours have passed since the person last drove."

MR NASH: That is correct, Your Honour. "Not obligecf~ but I

would qualify that to say that there is a string

of authority cited in the outline which existed	prior to the enactment of this Act, under the
MOTOR CAR ACT (1958),which held that under the
old equivalent of section 49(l)(b) - there was a two hour limit in those days -if a breath test was administered or a blood test was administered more
than two hours after the time of driving, that evidence was still admissible on a charge under
the equivalent of the present section 49(1).

McHUGH J: Yes, but~ question was a different _question. Section 51(3)(c)

is grounded on a belief on reasonable ground,

Lf something has occurred within three hours. That belief may be, in fact, quite erroneous, but does

(4) apply to 53(1) (c)? Subsection (4)?

C2T53/l/CM	43	10/11/89
Mills(2)

MR NASH:	It would be our submission that it does,
Your Honour, although of course one has the - 53 (1) (c) has three hours to the time of the preliminary
breath test and the only explanation we can give is that the legislature had in mind a general three hour limitation and did not advert to the
fact that there would normally be that gap between 53(l)(c) testing and testing under a
breath analysis machine, a breathalyser.
McHUGH J:	The same problem arises under 55(1) if you look

at the last three lines or so of 55(1). Must -

remain there -

at the station -

until the person has furnished the sample

of breath or until 3 hours after the driving

or being in charge -

has occurred.

MR NASH:	Because there is no obligation - I stress "obligation" Your Honour - to supply a sample of breath, once
the three hours has passed, but if - and t:hese are the authorities - a breath sample is provided outside the statutory limitation period, which was prevously two hours, the courts in Victoria had held
in a number of decisions that that sample was
evidence under the equivalent of section 58 of
the present  t.

(Continued on p 45)

C2T53,?2/CM	44	10/11/89
Mills(2)

McHUGH J:  But how do you calculate the three hours under

section 55(1) in the case of a person who was first
apprehended under 53(l)(c). You see, the police
officer may think that it happened an hour before

but, in fact, it may have happened three or four

hours before. Can you still require the person to

stay at the station under section 55?

MR NASH:	It presents a factual problem, Your Honour, but as a
matter of law, in our submission, the answer is
simple, he cannot. If he is wrong, and he requires
it - he has acted wrongly and he requires the breath
test outside the period and enforces it, the evidence is illegally obtained and all the consequences
follow. Diverging from the analysis of the Act for a moment, there are two matters that we would like
to point out in relation to the insertion of the
words in the legislation.
The first is that, in the extract from the decision of Your Honour Chief Justice Mason and
Mr Justice Wilson's reasons in that case, Mr Black
did exactly what he accuses the Full Court of
doing, he left out the next paragraph where
Your Honours said:

If the choice is between two strongly

competing interpretations ..... the advantage

may lie with that which produces the

fairer and more convenient operation so

long as it conforms to the legislative

intention. If, however, one interpretation

has a powerful advantage in ordinary

meaning and grammatical sense, it will only

be displaced if its operation is perceived
to be unintended.

What we say is that the burden is on the appellant to show that this operation was unintended and

not only that it is unintended but the words which

have been omitted are clear. Relying on what

Mr Justice Aiken said in COOPER BROOKES at	pages 335 to 336 and the authorities cited by him,	the omission and how it should be remedied must be
very clear indeed.

Now, on a literal interpretation there is,

in our submission, no question that section 53(l)(a),

(b) and (c) are the basis of breath tests under

section 55(1), and 49(1)(f) applies to any test

administered pursuant to section 55(1). That

interpretation is borne out by what happened in

parliament. They refer to what Mr Roper, the reading speech, in the Legislative Assembly on

11 September 1986, at page 228 at about point 3.

C2T54/l/DR	45/46	10/11/89
Mills(2)

MR NASH (continuing):  He says that:

Part 5 -

that is the part of the Act with which we are now

concerned -

deals with the important topic of driving
offences involving alcohol or other
drugs. It contains a number of provisions
intended to: reduce the number of motor
vehicle collisions of which alcohol or
other drugs are a cause; reduce the number
of drivers whose driving is impaired by

alcohol or other drugs; and provide a

simple and effective means of establishing

that there is present in the blood of a

driver more than the legal limit of alcohol.

DAWSON J:	That only reflects section 47.
MR NASH:	Yes, Your Honour, but he goes on at page 230

under a large heading entitled:

TECHNICAL DEFENCES AGAINST DRINK-DRIVING CHARGES

The Bill also contains provisions

designed to prevent technical defences against

drink-driving charges. In a recent decision,
the Victorian Supreme Court decided that it

was permissible for expert evidence to be

given that breathalysers could give incorrect

readings. In an interview given following

that decision the Premier referred to

"smart esoteric points of law that lead to a

diminution in the capacity of the police to

see that our roads are free of motorists

who are affected by drink." He said that

"If it were necessary to legislate to tidy

this up, we would do it".

And, if I may skip two paragraphs, he goes on:

The only grounds on which a breath analysis

reading may be challenged will be that the
particular instrument was operated

improperly or was defective. Motorists will

need to be aware that the offence is being

over the legal limit at the time of being

tested.

That is general in its operation. The supreme court decision referred to is the decision in LAMB V MORROW,

a decision which involved the person who was

intercepted, if that is the right word, while driving

and who sought to lead expert evidence that

C2T55/l/JH	47	10/11/89
Mills(2)

breathalysers are generally inaccurate and that,

therefore, he should not be convicted and the

supreme court held that that evidence was

admissible. LAMB V MORROW did not involve an

accident situation; it did not involve a person

being tested in circumstances where he had had

an opportunity to run away and consume a large

amount of alcohol. That did not arise in

LAMB V MORROW.

DAWSON J:  What is the purpose of the words in section 53(l)(c):

when it was involved in an accident.

On your argument there is no discernible purpose

for the presence of those words.

MR NASH:  With respect, Your Honour, yes, because, with

respect, the flaw in the reasoning of the appellants
lies in the equation of, or the linking of,
section 49(l)(f) to section 53(l)(c) and the linking

of section 49(l)(b) to section 53(l)(a) and (b).

That is not, if one looks at the words literally, what

section 49(l)(f) does. Section 49(l)(f) talks about

any person who has furnished a sample of breath

pursuant to section 55(1),thereby incorporating

(a), (b) and (c) preliminary breath tests. Of more

significance, Your Honour, section 49(l)(f) was not

originally in that form. Originally it incorporated
breath tests under section 55(1) providing a sample

of breath pursuant to section 55(1) or section 55(2).

It was amended during the course of the debates.

It was amended specifically to deal with what was

described in the debates as the "rogue policemen", one of Mr Black's examples slightly modified, the

man who waits outside the hotel and who breath tests

a person against whom he has a grudge or who has a

bad reputation for drinking and he does so not

under section 53(l)(a) where he finds him driving or

section 53(l)(b) where he intercepts him at a

breath testing station nor under section 53(l)(c)

where he has reason to suspect the person has been involved in an accident but under his general power

where he has reason to believe that he has been

driving a motor vehicle within the previous three

hours under the influence of alcohol or drugs to such

an extent as to be incapable of having proper

control of a motor vehicle. Section 55(2) was deleted.

C2T55/2/JH	48	10/11/89
Mills(2)

MR NASH (continuing):  The appellant's argument involves the

proposition that when parliament deleted the

reference to 55(2), it did not know what it was

doing. It meant to delete the reference to 55(2) and

the reference to two-thirds of 55(1). That can be

said in general broad terms like that.

DAWSON J: Well, I am not sure that I follow that. It really

was a much simpler question I was asking: if the
offence is having a certain blood alcohol reading

within three hours of having a drink in a motor

car, which is what(f)says, then why should not the

policeman under section 53(l)(c), when he has a

reasonable belief about that, be able to require a

person to undergo a preliminary breath test, why

introduce an accident 7

MR NASH: Well, Your Honour's argument, with respect, probably

proceeds - - -

DAWSON J: It is not an argument; it is an inquiry.

MR NASH:  - - - on the assumption that 53(l)(c) is a new

provision. It was not a new provision, it was

contained in - - -

DAWSON J:	When you say the only explanation is to be found
in history?
MR NASH:	Not the only explanation, Your Honour, but all of

(a), (b) and (c) and 55(2), the circunstances where

you had - 55(1), 55(2) and 53(l)(a), (b) and (c) were

all in the old MOTOR CAR ACT. There was an established

situation in which you could require a person to take
a preliminary breath test and established situations in

which you could require a person to provide a sample of

breath for a breathalyser, and the legislature

effectively did not change those, except in one respect,

and the respect in which they were changed, and I will

refer the Court to the relevant equations between the

sections - the respect in which they were changed was

that the words "or in charge" were inserted, effectively,

everywhere.

Prior to the 1986 Act, a person who was in charge

of a motor vehicle, but was not found driving it, could

be charged with being under the influence, the old

equivalant of 49(l)(a), but he could not be charged

with any of the .OS offences. He had to drive or have

driven. The offence was driving; the offence not being in charge, and the power to test was,under (a) and (b),

merely if a person was found driving, not in charge.

The definition of a person in charge of a motor

vehicle is a very narrow one. It is contained in,
if the Court will bear with me - but he has to be

driving or attempting to drive. Lt is in section 48(l)(b):

C2TS6/l/FK	49	10/11/89
Mills(2)

a person is not to be taken to be

in charge of a motor vahicle unless

that person is attempting to start

or drive the motor vehicle or unless there are reasonable grounds for the

belief that that person intends to

start or drive the motor vehicle.

DAWSON J:	Is there no explanation on the face of the Act
why a policeman investigating an offence under (f), which does not involve an accident, is restricted
in investigation to circumstances where there was
an accident? It is a simple question.

MR MASH: Well, with respect, there is no offence under 49(1)(f)

until one breathes into the breathalyser. It is the

furnishing of a sample which indicates, on the

breathalyser, a certain reading.

(Continued on page 51)

C2T56/2/FK	50	10/11/89
Mills(2)

MR NASH (continuing): Historically, and it also app s in

the debates, the Parliament was concerned n 0

expand the circumstances in which a breath st

could be required. Parliament did not expand the

circumstances in which a breath test could be required,

it - - -

TOOHEY J:  Are you speaking of a preliminary breath test or

a breath analysis?

MR NASH:  I am sorry, Your Honour, yes, a preliminary breath

test and, in fact, it did not extend the circumstances

in which a breath test on the breathalyser could

be required except in one respect and that is that

the words "two hours" became "three hours". That

was the only really s	ificant alteration in relatior
to the circumstances	re you could seek a breath
test, a preliminary	~, or require a test on the
breathalyser.

DAWSON J: That is a very odd circumstance, is it not?

You create offence of a certain width and then you

deprive the police by proscribing the methods which

they can employ from proving it except within

narrower limits than the offence.

MR NASH:  Well, section 49(1)(f), of course, Your Honour,

goes further than that. It is only where the

breath test has been taken - it is worse even than

Your Honour puts it in one sense because although

I said earlier that it is th furnishing of the

sample, it is only where you furnish the sample

in one of the three circumstances contemplated by section 53(1) or the circumstance contemplated by

53(2) which, really, relates to the road traffic

authority and commercial vehicles that an offence

is committed. So that it is, in fact, more

surpr1s1ng, if that is the right word, than even

Your Honour put it.

DAWSON J: Well, can I put it another way: what is the

relevance to the reference to an accident to 53(1)(c)?

MR NASH: It is relevant only, Your Honour, to the extent

that Parliament had initially permitted breath tests

of people found driving. It then added "or stopped

at a preliminary breath testing station" and, it

then added, "or who have been involved in an accident

in the last two hours", reasonably suspected of
being involved in an accident in the last two hours.

It also gave the general power under section 55(2)

and from the debates it is clear that one of the

matters that concerned the opposition was that the power of the police to require breath tests should not be extended and, of course, the big - - -

C2T57/1/SH	51	10/11/89
Mills(2)

BRENNAN J: But was 53(l)(c), was that to pick up the hit-run

driver?

MR NASH: It possibly was, Your Honour. Initially, it appeared

as section 80E(l)(b) of the MOTOR CAR ACT, 1958, and

it possibly was, Your Honour.	I just cannot help
Your Honour in that respect.

BRENNAN J: Well, looking at the three of them, the first one

is where the policeman sees somebody driving; the

second where he stops somebody driving and the third

where he has not seen him but there has been an

accident.

MR NASH:  Yes, Your Honour, and then there is 55(2) which is

not relevant to 49(l)(f) where he has reason to believe

that he has been driving under the influence.

TOOHEY J: There is a difference, Mr Nash. I think, again,

it is a difference in terms of the preliminary breath

test and the breath analysis. It seems to me that

section 53 is really looking in practical terms at

the police officer who is on the road and he either

finds someone driving a motor vehicle; that person

has been required to stop because of a breath testing

station or he sees somebody whom he has reason to

believe was involved in an accident so he can pull

up the driver in those circumstances and administer

a preliminary breath test but the breath analysis requires sophisticated equipment; requires having

somebody at the police station and, in those

circumstances, the police officer who can bring
himself within section 55(2) can require the

person to go to the police station. You are

really looking at, I think, different sort of

factual situations.

(Continued on page 53)

C2T57/2/SH	52	10/11/89
Mills(2)

MR NASH:	Yes, Your Honour.
TOOHEY J:	That is not putting a proposition for or against

you. It is simply, I think, suggesting that in

trying to contrast section 53 and 55 you are

contrasting two different forms of blood resting.

One is the sort of ad hoc test that can be

administered on the spot; the other is ~he sort of

sophisticated test that can generally only be

administered at a police station.

MR NASH:  Yes, our only point there, Your Honour, is that

although section 49(1)(f) refers to section 55(1),

that immediately picks up all paragraphs of

section 53(1) and that that was the intention

appears from the very page cited by our learned

friends in	debates in the legislative council
on 18 November 1986 at page 1026.	Mr Kennan, in

the passage cited by Mr Black is referring to the

effect of the amendment of section 49(l)(f) to

delete the reference to section 55(2) and the whole

of that page is significant but the most crucial

is the paragraph in the middle of the page where

Mr Kennan says:

In order to ensure that new provisions do not

result in injustice, the Minister in another

place introduced two significant amendments
which were adopted by the Legislative

Assembly. The first of these gives a driver

the right to ask for a second breath test to

be carried out immediately -

and that was, in fact, an amendment to section 55(4):

The other amendment enables a person

charged with drink-driving offences who

has not been caught behind the wheel or

involved in an accident to give evidence of

alcohol consumption after the cessation Section 49(1)(f) originally applied to a test under of driving.	section 55(1) or section 55(2). With the amendment
it applied only to the provision of a sample under
section 55(1).

DAWSON J:  But if what you are saying is right, that statement

is not correct, is it,because a person who has not

been found behind the wheel of a car may be charged
under section 49(1)(f) whether or not he has been in

an accident?

MR NASH:  No, Your Honour. He cannot be required to give a

sample of breath under section 55(1) unless he is

first given a preliminary breath test under

C2T58/1/JH	53	10/11/89
Mills(2)

section 53(l)(a), (b) or (c) or section 55(2).

Effectively, if one looks at section 53(1)(a) and

(b), they both deal with people found behind the
wheel of a car either driving along the road or

pulled up at a preliminary breath testing station.

Subsection (c) deals with a person who is reasonably

suspected of having been in an accident and to that

extent the language may not be totally apt but if

he is given a test under section 55(2), if he
provides a sample of breath under section 55(2), he

can no longer be charged under section 49(l)(f)

but he can be charged under section 49(l)(b) and

this is part of the next limb of the argument that,

of course, the ambit of section 49(1)(b) and that of

section 49(l)(f) are not identical.

(Continued on page 55)

C2T58/2/JH	54	10/11/89
Mills(2)

MR NASH (continuing):  If I can take the Court to page 1~g3

of the legislative assembl debates of 12 Novemb- ~

1986, Mr Roper, the Minister for Transport - - -

MASON CJ:	This has been read to us, has it not, Mr Nash?
MR NASH:	I think part of the page has, Your Honour, but the

significance that we wish to place upon it is twofold;

one, that it specifically relates to the amendment

of section 49(l)(f) to delete the words "or to"

and, the last two paragraphs on that page:

The amendment restores the current law

allowing breath tests to be administered without a preliminary breath test having

first been undergone but restri2ting

prosecutions llowing on from such

tests to the existing drink driving offence.

We underline that because that is the literal

interpretation of section 49(l)(f), it is the clear

intention of the legislature in deleting section 55(2),

and we then go on:

Evidence of alcohol drunk after - - -

MASON CJ:  There is no need to read that. It is in the

Full Court judgment and it has been re-read by

Mr Black.

MR NASH:  If Your Honour pleases, but it has to be read,

with respect, in context.

MASON CJ:  Yes. Well that is the point that everyone makes

1n th s case.

McHUGH J:  Can I try you out on something that does not seem

to me to be mentioned below but it perhaps supports the

appellant's argument. If you look at section 49(6)

it cuts out certain defences under both

paragraph (f) or (g).

MR NASH:	Yes, Your Honour.
McHUGH J:	And section 49(1)(g) does not, in terms, mention

an accident, but section 56 is concerned only with

a sample of blood taken in	)nsequence of an accident
involving a motor vehicle.

MR NASH:	Yes, Your Honour.
McHUGH J:	Now, does not that indicate that the purpose of

subsections (f) and (g) and section 49(6) is to concern themselves only with cases of breath testing of persons

who have been involved in accidents?

C2T59/l/HS	55	10/11/89
Mills(2)
MR NASH:	There are two matters, Your Honour;	one, on the

face, with respect, Your Honour, we have to agree

but subsection (f) could just as easily have referred

to a sample of breath for analysis by a breath
analysing instrument provided, after a preliminary

breath test pursuant to section 53(l)(c), it would

then have had the effect which is contended for.

The legislature adverted to the ambit given to

paragraph (f) and it made a specific amendment and

the Attorney-General specifically talks about people

found behind the wheel or involved in an accident.

Persons who are not in that situation as a result of the amendment will not be caught.

(Continued on page 57)

C2T59/2/HS	56	10/11/89
Mills(2)

MR NASH (continuing):  If the Attorney knew what he was

talking about, then it was clearly, in our

submission, his intention that 49(l)(f) have

the literal ambit which is contended. The other

problem is that, with respect, if it is not to

have that effect, it really has to be rewritten.

As it stands, it does - - -

McHUGH J: Well you can insert the words in paragraph (f)

something like "which has been involved in an

accident", can you not, after the words "motor

vehicle" in paragraph (f)?

MR NASH:	Yes. And one has to determine that this is
ambiguous and uncertain,.  what there are two
strongly arguable literal meanings and consequently those words which the legislature intended should
be there, could be put in.

DAWSON J: Well your point,I thought you made a moment ago,

was that result would be achieved by having

section 53(l)(c) rather than section 55(1).

MR NASH:  Yes Your Honour.

DAWSON J: But,:that was not put in the other section.

MR NASH:	That was precisely what they did not do,
Your Honour, yes.
McHUGH J:	But you would have to do more than put 53(l)(c),

because paragraph (f) is dealing with a breath

ar.alysis recording, whereas 53(l)(c) is dealing

wich a preliminary.

MR NASH: With respect, Your Honour, what I emit in my

shorthand was that - - -

McHUGH J: Yes, I know.

MR NASH:	:- - -where a preliminary sample of breath provided
following upon a preliminary breath test pursuant to.

McHUGH J: Yes, I follow, Mr Nash.

MR NASH:	But the legislature specifically did not do that and
there is no reason why, from the debates, that
literal meaning should be departed from. The other
point, in relation to the paragraph (g) analogy - paragraph (g) deals with blood tests and there are only two circumstances in which you are required to give blood tests - blood tests occur effectively -
one where you are in hospital after an accident and
the other where your medical adviser says you cannot
give a blood test. It is inadvisable for you to give

C2T60/l/CM	57	10/11/89
Mills(2)

a breath test and you provide a blood sample

instead. As a practical matter medical practitioners

are required for blood tests and blood tests have

effectively disappeared except for the situation

where a person is in hospital after an accident.

That brings us to another point in respect of which

49(l)(b) continues to operate. If a blood test

is taken in hospital - perhaps it is important to

look at section 58(1) first. Section 58(1)

specifically provides that:

If the question whether any person was or

was not at any time under the influence of

intoxicating liquor or if the question as to

the presence or the concentration of alcohol in

the blood of any person at any time is relevant -

(a) on a trial for manslaughter or for

negligently causing serious injury .....

(b) on a trial or hearing for an offence

against section 318(1) of the

CRIMES ACT 1958; or

(c) on a hearing for an offence against

section 49(1) of this Act -

then evidence obtained from a breathalyser is
admissible as evidence of the blood alcohol content

at the time the blood is analysed.

(Continued on page 59)

C2T60/2/CM	5·a	10/11/89
Mills(2)

MR NASH (continuing): If a test takes place under

section 55(2) - if a sample of breath is provided

pursuant to section 55(2) or if a sample of breath

is provided outside the three-hour limit or if

by virtue of section 55(7) a person who is required

to provide a sample of breath provides a sample
of blood, in all of those circumstances there is

room for 49(1)(b) to operate, although

section 49(1)(f) would not apply.

Section 58 also raises another point, namely

that if the contention put forward is correct, that by some form of reddendo singula singulis

49(1)(b) is to be equated to preliminary tests

under 53(1)(a) and (b) and 49(1)(f) joins with

53(1)(c). In our submission, that is not

necessary if one is to draw that sort of analogy -

that sort of argument, the argument that our learned

friends put in that paper.

If that argument is to be relied upon, that

there is an equation between the various paragraphs

of 49(1) and 53(1), then the ambit of section 58

is limited. First of all, section 58(1) does not

limit its operation, either in terms of time limit

or in terms of the circumstances or the power under

which the sample of breath is obtained.

It would not be possible, if that argument is correct, to pick up a test - a breath sample

provided under 55(2) and use it for the purposes

of a prosecution under 49(1)(b), therefore,

58(1), it would be relevant, in our submission,

but if 49(1)(b) is limited, as it is argued,

58(1) could not have its literal interpretation.

Soit will benecessary not only to qualify L.9(1)(f) but also 58(1) and, of course, 49(1)(b) would also

need to be qualified in terms of breath tests provided

under paragraph (a) or (b) - samples of breath

provided following a breath test pursuant to

section 53(1)(a) or (b). That does not appear in (b); (b), in fact, embraces the situation where

a breath sample is obtained - and this is the point

I was making earlier - even if it is obtained outside

the three-hour limit.

Prior to this Act being passed, the Victorian

courts in SMITH V MADDISON, (1967) VR 307, in
WRIGHT V BASTIN, (1979) VR 329, and in REG V CHEER,
(1979) VR 541, had held that although the presumption
under the two-hour rule that existed under the

old Act would not operate, if a breath test or

a blood test took place outside the two-hour period,

if a person had been, for example, in police custody,
or had admitted that he had not had anything to

C2T61/l/ND	59	10/11/89
Mills (2)

drink in the meantime and two hours and five minutes,
we can now say three hours and five minutes, after

the driving incident, his blood alcohol content

was shown to be . 17 or . 15, the court could, provided

the evidence was there, draw certain inferences.

(Continued on page 61)

C2T61/2/ND	60	10/11/89
Mills(2)

MR NASH (continuing): Clearly, in our submission, there

is no redundancy if the literal interpretation

is given to section 49(l)(f). The parliamentary

debates make it clear that the legislature

adverted to the problem of the ambit of

section 49(1) (f)- and amended itinaParticular

way. To read words into section 49(1)(f) involves

logically reading words into other provisions

in the Act and, in our submission, there is no

basis for it.

The last point raised - - -

McHUGH J:  Could I just ask you this one question,

Mr Nash? If you asked yourself what was the

purpose of parliament enacting section	(6),
why would not the answer be because it	:nted

to overcome the problem of motorists who had

been involved in accidents giving evidence of

subsequent drinking, or drinking between the

time of the accident and the time of their

arrest?

MR NASH:	The answer to that, Your Honour, is yes,
that that was a purpose.  Your Honour will
notice that it says:

evidence as to the effect of the

consumption of alcohol on the

defendant.

That involves two matters, in our submission: one, evidence that he drank so many glasses

after the event, and, also evidence that the

only alcohol he had consumed during the day

was a glass and a half of white wine at lunch,

some six hours before the test; that the

effect of alcohol on him is X and therefore

he could not possibly have produced the reading

under section 49(l)(f) or the reading under

paragraph (g). It is not limited, in our
submission, to the drinking after	situation,

but it applies equally to the situation where
one tries to run the defence that, "This

breathalyser could not have been working properly

because the defendant is a man of 177z stone;

his history of drinking is X; we've experimented

with him and found - "

McHUGH J: Yes, I know, but he can run that defence

under section 49(l)(b).

MR NASH:	Yes, Your Honour, he can run that under section 49(1)(b) but he cannot run it under
section 49(1)(f).
McHUGH J:	I know and that is why - - -

11R NASH:  And that is why we are here.

C2T62/l/JM	61	10/11/89
Mills(2)

McHUGH J:  But does that not lead to the conclusion then

that the presence of subsection (6) indicates
that (f) and (g) are dealing with a snecial

case and the special case is the case of

the driver of a vehicle which has been involved
in an accident. That must almost always be

the case in respect of subsection (g); in

fact, it must always be the case in respect

of subsection (e).

MR NASH:	With respect, Your Honour, our submission would be that not only does - of course,
section 49(1)(6) was originally in different
form and was much wider in the defences it
excluded and it was, once again, amended in
running and, in our submission, it does not
lead to any necessary conclusion that - leaving aside the fact that the ?arlimentary
debates do not support the conclusion and that
the words of section 49(1)(f) do not support
it, that section 49(1)(f) was to be limited
to situations involving an accident, or
situations in which a person was not caught
behind the wheel becaus~ if we are only
talking about post-accident drinking, Your Honour, there may be some point in it, but the subsection
is not limited to post-accident drinking.

(Continued on page 63)

C2T62/2/JM	62	10/11/89
Mills(2)

MR NASH (continuing): And, in the legislative council on

5 December 1986, at page 1672, the amendment to
section 49(6) is, in fact, canvassed by Mr Dunn.

Section 49(6) in its original form is mentioned

in the middle of the page:

the consumption or non-consumption of
alcohol by the defendant at any time before
furnishing the sample of breath for analysis

or having the sample of blood taken from

him or her; or

(b) the effect of the consumption of

alcohol on the defendant; or

(c) the general inaccuracy of breath

analysing instruments of the type used - And, (a) and (c) were, in the course of the

debates, deleted. If one looks at it the matter

that may more readily relate to post-accident

drinking is (a) rather than (b) when one looks at

the original form. There is little that we can

say more about the wording of the Act. It is

clear, it is unambiguous and parliament has

expressed views on it. Parliament, in fact, has

amended 49(1)(f) and not chosen to do what it is

contended should be done. In so far as the

later debates are concerned, they do refer to the
accident situation. In our submission they are

admissible but the weight to be given is slight.

The last matter is the abuse of process

point.

MASON CJ:  We need not trouble you on the last point, Mr Nash.

MR NASH: If Your Honour please. In that case they are the

submissions on behalf of the respondent. If the

Court pleases.

MASON CJ: Thank you, Mr Nash. Yes, Mr Black.
MR BLACK:	One very brief point in reply and that is that

no answer has been given to the horror stories.

Now, those are real stories and can it, therefore,

be imputed to the Victorian Parliament - and this
is, in our submission, the important point of
principle - can it be imputed to the Victorian

Parliament consistently with the specific purposes of the Act and any discernible aim, short of

prohibition in the State of Victoria, any point to

the sections if they mean what my learned friend

contends? And the answer to that must be, no,

in our submission.

C2T63/l/DR	63	10/11/89
Mills(2)

MASON CJ: Yes, thank you, Mr Black. The Court will

consider its decision on this case.

AT 3.41 PM THE MATTER WAS ADJOURNED SINE DIE

C2T63/2/DR	64	10/11/89
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