Mills v Meeking

[1989] HCATrans 134

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No Ml6 of 1989

B e t w e e n -

ANDREW JAMES MILLS

Applicant

and

KAREN MICHELLE MEEKING and

RODNEY LESLIE CRISP, Magistrate

of Victoria

Respondents

Application for special

leave to appeal

BRENNAN J
DAWSON J

Mills

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 9 JUNE 1989, AT 11.23 AM

Copyright in the High Court of Australia

MlT 6/1/RB 1 9/6/89

MR M.E.J. BLACK, QC:  If the Court pleases, I appear with my

learned friend, MR S.P. GEBHARDT, for the applicant.

(instructed by David Bullard)

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

learned friend, MISS A. RICHARDS, for the first-

named respondent. (instructed by the Victorian

Government Solicitor)

BRENNAN J:  Mr Black.

MR BLACK: If the Court pleases, this case involves the use,

and we would say possible abuse, by the police of

the provisions of Part 5 of the ROAD SAFETY ACT of

Victoria and these are the provisions - I have copies for the Court if the Court does not have its own- - -

BRENNAN J:  I think we would be advantaged by having some extra

copies.

MR BLACK:  These are the provisions which attack, by means of

compulsory breath and blood analysis, the social

problem or evil of driving when a person's ability to

do so is impaired by alcohol or drugs. This case

concerns alcohol and the breath analysing instrument.

The section essentially in issue in this case

is section 49(1) which creates a spread of drink

driving offences, all the relevant ones of which are

treated with equal severity and all of -whichare subject

to specified mandatory penalties, including in certain

specified circumstances mandatory cancellation of

licence for mandatory periods. I will come to

section 49 in detail in a moment but it is critical, in our submission, to note that the purposes of this

Part of the Act are clearly defined and under the

INTERPRETATION OF LEGISLATION ACT those purposes are

of great relevance in determining what the Act means.

Section 47 provides that:

The purposes of this Part are to -

(a) reduce the number of motor vehicle

collisions of which alcohol or other drugs

are a cause; and

(b) reduce the number of drivers whose driving

is impaired by alcohol or other drugs; and

(c) provide a simple and effective means of

establishing -

blood alcohol content in substance. The sections do

not reflect the philosophy of the prohibition era but

they may have that effect because, as interpreted by the Full Court, section 49(l)(f), which is a section

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of absolute liability unrelated in terms to the
alcohol present in a person's blood at the time of
driving a motor car, and that is the section with

which the applicant was charged. It brings about the

result, and this has been acknowledged in all the courts

below, that a person who is morally and socially innocent

of any wrongdoing may, even with good faith on the part

of the police, be charged with an offence having serious

consequences - perhaps of his livelihood if he is a

driver - to which he has no effective defence.

The reasons why this section was introduced I

will come to in a moment. It was designed to overcome

what was perceived to be and no doubt was a gap in the

legislation, but it has gone a very long way.

Mr Justice Crockett, who first considered this matter, in our submission by legitimate processes of

interpretation, confined it consistently with the

purposes of the Act and the wording of the Act; the

Full Court has interpreted it literally with the

result that a person who has not had a drop to drink

before driving may be convicted of a drink driving
offence with no chance of proving that in fact all the
alcohol that caused the reading was consumed after the

driving.

Now, there were amendments to the Act which I

think were proclaimed this week - or maybe have yet

to be proclaimed, but I will have to take the Court

to them because it is on the statute books and

doubtless will be proclaimed - which reflect some

endeavour to limit the harshness of the.section but
raise the same point and have the same consequences
with the one exception, that a person who is morally

completely innocent may be convicted,without being able

to say that all the consumption was after he got home

and had a big bottle of red wine if the person has had
one light ale before he drove. And the point that

Mr Justice Crockett decided is still raised by the legislation, assuming that it is altered.

Mr Justice Crockett interpreted section 49(l)(f)

with which the applicant was charged, in our submission,

in a way that furthered the objects of the Act,

avoided absurdities, including the absurdity of

attracting serious unarguably defensible consequences
to morally blameless acts, and avoided inconsistencies

for the purpose of the Act. And importantly,

His Honour's interpretation of the section took out of

the hands of the police, simply as a matter of

statutory interpretation, not discretion, the capacity

to charge a person who they find driving and who they

suspect to be over the limit under the section

which was designed for that very purpose. It takes

out of the hands of the police the power to circumvent

the various defences that are available to a person

who is stopped on the road, found driving and charged,

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to get out of that situation, charge him with an

offence for which there are no relevant defences.

McHUGH J:  Mr Black, you lay great stress on persons being

morally innocent, but in the way that the Act works,

is that really so?

MR BLACK:	Yes, Your Honour, it is.
McHUGH J:	Because you cannot be required to take a breath test

under section 55 unless you have had the preliminary

test under section 53.

MR BLACK:	Yes.
McHUGH J:	So a person is driving a vehicle under (a) or (b),

is he not?

MR BLACK:	Yes.
McHUGH J:	Or he comes under (c) when he is suspected of having

been involved in an accident.

MR BLACK:  Yes.

McHUGH J: If somebody is tested under 53(l)(a) or (b) and he

fails the preliminary breath test and then the

breath analysis under 55 follow, he can hardly be

said to be morally innocent in that- - -

MR BLACK:  Oh no, certainly not, Your Honour, and indeed - the

morally innocent person is this, and might I illustrate

the worst case example and unfortunately this is not - unfortunately for the special leave application, it is not this worst case, but the worst case is this, and

this does not seem to have been disputed; indeed,

accepted in the courts below. This is under the old

Act; the new Act substitutes one small ale before

driving for the nil consumption before driving under

this Act.

McHUGH J: The "new Act" you mean the unproclaimed legislation?

MR BLACK: The unproclaimed Act to which I must refer the Court.

Under the existing Act a person - let us suppose a
reformed drinker who has a prior conviction, just to

make the case a bit worse and to make the person more

susceptible to a close eye from the local policeman - the person knowing of his past and all the rest of it

does not drink at all on his way home. If that person

has an accident, then the person would be morally

stupid to then go home, consume a strong bottle of

whisky or something, because that person would know

that a logical consequence of that was that he could

be asked to furnish a breath test and he would produce

a reading that was in excess of the limit.	So he
would be very silly -

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BRENNAN J:	Only if he left home, because otherwise there would have to be a warrant under 48(4).
MR BLACK:	Yes, that is so, Your Honour. But the position that

Mr Justice Crockett posited was a person who is not

involved in an accident.	On the way home he is found
driving by a policeman.	It may not be necessary to

introduce this element, but let us suppose the

policeman, who knows him and knows his background, stops

him and says, "I believe you have been drinking". The

person concerned said, "No, I haven't.", the policeman

smells his breath and believes him. The person goes

home and consumes a considerable quantity - enough to

get him over .05. The policeman goes back to the

police station, tells the sergeant that the person

had not been drinking that day, the sergeant is

sceptical, genuinely sceptical, and says, "Go back

and see if he will take a breath test", either with

or without a warrant. He takes the breath test, he is

over the limit, he is morally innocent, he has been

trying to do the right thing, there is no defence.

McHUGH J: How does he take the breath test? It has got to be

under 55, has it not?

MR BLACK: That is so, Your Honour.

McHUGH J: And 55 is conditioned on a preliminary test under 53,

is it not?

MR BLACK:  That is so. The policeman would say, "I found you

driving" - the point is he cannot use 53(l)(c)

because he has not been in an accident. That was

Mr Justice Crockett's point. But he has found him

driving. In my example, I have not got into the area

of whether you can find a person driving just be seeing

them. It is an interesting - it may be a debatable

point - but he has actually found him driving and he

has spoken to him and he is satisfied that - the

particular constable is satisfied that he has not been

drinking so he does not ask him to submit to a
preliminary breath test.	The sergeant - a grizzled old

sergeant, wise in the ways of the world, genuinely
believes that this is nonsense; requires the constable

to go back and administer a preliminary breath test.

That is positive. He then goes on to 55. He will

do all this within three hours. He produces a

reading that is greater than the prescribed amount, he

has no defence to the charge. He is innocent.

Now, Mr Justice Crockett's analysis prevents

that situation because Mr Justice Crockett reads into

the section by, in our submission, permissible means
the requirement that the three hour automatic

absolute section, 49(l)(f), is to be used and is to be

read as if it is only to be used after the person has

been involved in an accident. And he does that in

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several ways which we submit are appropriate and

correct and the Full Court's very literal interpretation

of the section, which denies that possibility, was

wrong. And I now seek briefly to develop those

arguments.

BRENNAN J: It is right to say, I suppose, that if the police

officer is driven to 49(l)(a) or (b) the old and
familiar problem of proving the blood alcohol level
at the time of driving, in comparison to the blood

alcohol level at the time of the test, arises?

MR BLACK: It does not, Your Honour, in Victoria, because the Act

takes over and creates presumptions of the alcohol

within three hours. But what you can do, and what is

done, not often successfully but in some cases

successfully and no doubt properly so, if you are

charged under the presumption - by reference to the

presumption which will operate in let us say 98 per cent

of cases - if you are charged under the presumption and

you desire to contest it, what you can do is to say to

the court - to swear - that you only had three beers or four or five or whatever and to call evidence which, if

your own evidence is accepted, will show either that the

policeman made an error in writing down your reading -

because these machines do not print out, the policeman

has to write down what he finds on the instrument -

either that the policeman made an error in writing down

the reading or that the machine was not working. And

obviously one would be suspicious of this evidence but

the fact is that one could imagine absolutely credible

evidence that the person had only had so many glasses

to drink, that scientifically that could not have

produced the reading and in a criminal - or even in

a civil onus, the matter is discharged. So the

person was innocent of an offence and he could prove it.

Now, if he is charged - and that is what

Mr Justice Crockett said 49(l)(b) was intended to cover

and the various presumptions and the growth of the

legislation over the years, this being a consolidation,

the problem for the police and thus for the cormnunity

did not arise. But it admitted of a defence in a

proper case. Now, to get over the problem that used to

exist whereby people in an accident would go home and

gulp down a bottle of Scotch to confuse the reading -

and it was socially reprehensible conduct no doubt -

but to avoid that situation a section 49(1)(f) was

introduced which is now being used by the police, and

was in this case, in circumstances where, according to

Mr Justice Crockett - and we will make this good, we say His Honour was correct - it was never intended to

be used and, indeed, reference to Hansard will, in our

submission, support that. So the question is, by

introducing section 49(1)(f) to cover the irresponsible

person with strong motives of self-preservation who

gulps down the bottle of whisky to avoid detection

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after an accident,to prevent that evil has the

parliament created an offence - did it intend to

create an offence which would catch you, even though

you were not within the mischief which the section was

introduced to cover. Now, that is really the point of

the case.

McHUGH J: Having regard to 53(4), how can you say that

49(l)(f) was not intended to catch these extreme

illustrations that you give?

MR BLACK:	Because, Your Honour, it is quite general- - -
McHUGH J:	But it contemplates that even though a member of the

police force is acting under (a) or (b), he can

administer the breath test up to three hours later.

MR BLACK:  Yes, but three hours after the relevant event. Now,

the relevant event - - -

McHUGH J: Which is the driving.

MR BLACK:	In every case it must be driving.
DAWSON J:	I wonder about that.  I might be wrong. At least

there would be an argument that if, in the example
that you gave, notwithstanding (4), if the policeman

takes a test and then comes back and has a second go,

he is not doing it under section 53(l)(a), that is

requiring a person he finds driving a motor car, but

that may not be right.

McHUGH J:	I think in your illustration he did not give a- - -
MR BLACK:	No, he did not. He went back and the sergeant said

you silly young policeman, this chap - - -

DAWSON J: Certainly if he had given a preliminary breath test,

you could not have a second go.

MR BLACK: No, he could not. But what he does - - -

DAWSON J: Which means that there must be some limits anyway on

(4), I suppose.

MR BLACK:  Yes.

DAWSON J: And it may be arguable that if he did not require

him at the time he found the person driving a motor

car, then you do not come within (a) if you go back
again, notwithstanding (4) which is perhaps designed

to cover a person who flees or in some way avoids- - -

MR BLACK:  Yes, Your Honour, and we would submit that it is part

of the general scheme that three hours is the limit,

no doubt for scientific reasons, that after three hours

it is really not sensible to be making presumptions

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about the relevant time, even though no doubt in a

high reading you could. It is a policy cut-off point

and what I would answer to Your Honour Mr Justice McHugh

is that that section necessarily covers the whole spread

and really does not diminish the force of

Mr Justice Crockett's thread argument which was that you

look at the source of the power and the source of the

power is 53, which has three separate elements, and

you trace the source of the power through 55, which is

the full breath test, the one that convicts you; then
the thread is still running through to the various

sections of 49(l)(b) and (f) and thus the thread is

maintained. Now, that produces a result that - - -

McHUGH J:  I know, but it comes to this; this is what troubles

me, Mr Black, is that you say 49(l)(f) can only apply -

was only intended to apply to a 53(l)(c) situation.

MR BLACK:  Yes.

McHUGH H: Notwithstanding that by reason of 53(4), 49(l)(f)

can quite rationally apply, and intelligently apply,

to a 53(l)(a) or (b) situation.

MR BLACK: But, Your Honour, 53(4), in our submission, it truly

is non-specific but it does not tangle the thread; it

simply applies as a matter of safeguard to wherever

the thread leads because each of the matters in

53(l)(a),(b) and (c) involves driving, either finds

driving, stopping at a preliminary breath station -

which, of course, can only happen when you are driving,

or being involved in an accident whilst driving or in
charge of a vehicle, so in our submission it does not

cross the threads; it is not an indication that the threads do not remain separately. And the powerful reason why they should, in our submission, is the

policy of the Act which is not to stop people drinking

when they get home from work, whether or not that is

desirable is another question, it is to stop people drinking the relevant quantity before they drive or to stop people who have been in an accident and have

reason to wish to conceal their drinking,pre-accident

drinking, from consuming half a bottle of whisky to

confuse the breathalyzer. That is the purpose of the

Act.

BRENNAN J:  Mr Black, you mentioned a presumption before.

Could you give us a reference - - -

MR BLACK: Yes, I am sorry, Your Honour, 48(1). 48(l)(a) of

the print:

if it is established that at any time within

3 hours after an alleged offence against

paragraph (a) or (b) of section 49(1) -

and might I interpolate to say (a) is the old drunk

driving offence - driving under the influence and (b)

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is the classical breathalyzer offence, driving with

more than the prescribed limit -

a certain concentration of alcohol was

present in the blood of the person charged

with the offence it must be presumed ..... until

the contrary is proved -

those are the critical words -

that not less than that concentration of

alcohol was present in the person's blood at

the time at which the offence is alleged to

have been committed;

There is another evidentiary·provision to which I

should refer Your Honours and that is section 58,

in relation to breath tests, and what it says - it is

complicated but what it says in substance and what it achieves in substance is that if a certificate,

a regular certificate is tendered, it proves everything
that it needs to prove unless you call the operator
to be cross-examined, in which case parts of the

various evidentiary presumptions still apply but you

can cross-examine him and it is not conclusive, it

only becomes prima facie. So that is the scheme.

McHUGH J:  Mr Black, is the effect of the argument against you

that 49(l)(b) has no operation except at the discretion

of a police officer?

MR BLACK:  Our argument is·-

McHUGH J: No, the effect of the argument against you.

MR BLACK:  Yes, Your Honour, it is, and it is surplusage except

at the discretion of the police officer. This

troubled one of the supreme court judges so much

that he said perhaps there should be legislative

amendment whereby the Director of Public Prosecution

should decide whether you are charged under -

motives of the police and so force, but recognizing	stating at the same time that he did not impugn the
the problem His Honour Mr Justice Phillips in an
earlier case said, well, the DPP should be in charge
of this discretion. Mr Justice Crockett noted that
but did not agree with it because he said, as a matter of statutory interpretation, you do not need those
devices to protect the citizen because of His Honour's
thread, the policy and the mischief. Now, might I - - -

McHUGH J: It would also mean that 48(1)- - -

MR BLACK: 48(l)(a) is surplusage too, Your Honour-

McHUGH J:  - - -in so far as it relates to (b) anyway.

MR BLACK: Exactly, and there are some other curiosities to

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which I should refer the Court. Section 49(4) and (6)

exclude defences - I am sorry, 49(4) creates a

defence that the machine was not working properly but

49(6) excludes in 49(l)(f) proceedings evidence as to

the effect of the consumption of alcohol. Now,

logically it would, because that was the michief - it
was the post-accident drinking that was the mischief
to which 49(l)(f) was directed. All the (b) sections

are surplusage if - and 49(7), I am reminded - they

are all surplusage if the police can decide, well, I

will charge this person under 49(l)(f) because he will

have fewer defences. Now, that argument did not meet

with favour in the Full Court, which said, with

reference to a passage in a judgment of this Court,
that the prosecutor can decide what he thinks

appropriate.

But it is wrong, in our submission. Clearly the

prosecutor, if he has got a choice of murder,

manslaughter or corrnnon assault, will choose the corrnnon

assault if the corrnnon assault is what can be proved.

But those are different crimes on the scale. These

are all the same.	The penalties are exactly the same.
Does it mean - - -

BRENNAN J:  The maximum penalties are the same but it does not

mean that - - -

MR BLACK:  I am sorry, Your Honour, yes, the maximum penalties

are the same. Well, no, Your Honour, with respect,

the minima will be the same in certain circumstances

and the minima may disqualify you from drivine and be

otherwise deleterious to one. The minima are the

same so it is not the case of the prosecutor

selecting the offence that fits the crime; it is the case of the prosecutor ignoring the section that was created to deal with the on-the-road apprehension

having the power to decide to prosecute somebody under

an offence designed to get over a particular social

evil but knowing that if he does this the person will

not be able to come to court and say, "But I only had

five beers and your reading would have me dead drunk."

BRENNAN J: Is this the result of it all, that the choice between

49(l)(b) and 49(l)(f) from the prosecution's point of

view is in 49(l)(b) they can rely upon the
presumption, which is not a conclusive presumption,

and under 49(l)(f) then it is simply failing the

breath test?

MR BLACK: That is right, that is exactly it, Your Honour.

BRENNAN J:  So the question is whether or not the presumption

is enough.

MR BLACK: That is what it comes down to, Your Honour, and the

police chose in this case - this is not the innocent -

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I withdraw that - this is not the case of the person

who apparently is saying, "I didn't have a drop to

drink beforehand". This is your ordinary person apprehended, he made some admissions that he had

something to drink, they gave him a breath test but

instead of charging him under 49(l)(b), in which case he would be able to lead evidence to say, "But I only
had five beers" or whatever and "You must have got it

wrong" and having a chance to be believed, they

charged him under 49(l)(f) where he has got no defence.

BRENNAN J: What was the reading?

MR BLACK:  The reading was .13 on one occasion then .125. I

say this is not -

BRENNAN J:	Not the best of cases.
MR BLACK:	The problem is, Your Honour, one never has the

ideal case, but Your Honour, this case will determine

the fate of the .06 person forever under Victorian

law. But, even so, so one is told, there are cases

that exist where there has been a great disparity

between what the breathalyzer reading says and what

the accused says it ought to read and that is an

issue that ought to be tried. The magistrate might

laugh it out of court but the person ought to have
the fair go, the chance, that he might be right. Now,
under this, he can never prove it.

Your Honour, it is a pity for this case that the

reading was not .06, but it is not. Next week's case
throughout anywhere in Victoria might be the .06 or

it might be the .125 which is within the known categories

of error which could bring you out of the mandatory loss
of licence situation into the discretionary loss of

licence situation which could be very important to a

person. A lot of these people might be just telling

lies. Some of them will not be, and they should have

their chance. Under the way that the Full Court has

interpreted, they have no chance.	Mr Justice Crockett,
in our submission, not only did no violence to the

legislation in interpreting it the way he did but in

fact, we would respectfully submit, was completely

correct.

What His Honour said - His Honour explained the

purposes of the section and its history, and its

history is plain enough, it was to get over this

business of people having an accident and then having
a bottle of whisky or something toconfuse the

breathalyzer, but His Honour then pointed out that this

was not the situation in which the defendant was

charged. He was in the company, if not the custody of

the police, from the moment he was picked up until the

moment he was required to blow into the machine.

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Now, Your Honours, the arguments in our

submission are these: first, one has regard to the
draconian nature of the legislation, but more

importantly than that - and one would not expect the Parliament to have intended that an innocent person,

morally and socially innocent, could have been

charged with an offence for which there was no defence.

One would not expect that. Clear language could produce it but it would be a bizarre result.

Secondly, His Honour used the thread argument and he traced through the source of the power to - the original source of the power to administer the breath test, in our submission, logically through

to the ends of the thread which are the various

offences in 49(l)(f). And by so doing, looking at

source of poweill' to offence, His Honour approached

the matter in a logical and proper way, seeking to

divine the intention of the legislature. Then

His Honour referred to the surplusage matter that

Your Honour Mr Justice McHugh mentioned. There are

parts of the Act which have been identified in

argument which would be mere surplusage if a contrary

construction were to be preferred. And of course

implicit in His Honour's findings and, indeed, explicit

is the absurd result argument.

Now, there was reference to Hansard. I will

come to that in a moment if I may because the

amendment, in our submission, the explanatory papers to

the amendment and the speeches on the amendment, one
of which was delivered before Mr Justice Crockett

delivered his judgment, just a matter of days,

indicate in our submission clearly that the Parliament

had in mind that the 49(l)(f) situation would apply

after an accident and we would say inferentially only

T6	apply after an accident. So that what the Full Court
did, by comparison, was to adopt a literal analysis. The court was unimpressed with the argument about the
liberty of the subject and, in our submission,
respectfully submit is unsatisfactory. dismissed that argument in a way that we would Their Honours said at page 65 of the application
book, 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 accumstomed to

enjoyment of unique private liberty and

rights which protect it.

In our submission, the courts have not adopted that

approach. The approach of the courts is that, indeed,

injustice may be a concomitant of the use of express

language, but one should not presume that Parliament

MlT7/l/RB	12	9/6/89
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did not int·end to respect the unique private liberty

and rights which are the very_essence of our society.

One shrinks from the proposition that Parliament

intended to ignore those and to produce what is

described as gross personal injustice, though it

might, but one would need, in our submission, language
much stronger and much more literal and explicit than

this to overcome the method of interpretation that
Mr Justice Crockett adopted which preserves the remedy
against the social evil whilst, at the same time,
preserving a degree of liberty for the subject. It
is not fashionable any more to talk of breath analysis
as an invasion of liberty, but the only reason it is
not fashionable is that the social evil of drink
driving is firmly recognized. But it is an invasion

of a person's ordinary rights to be made to incriminate

him or herself and if that is to be done, then it

should be squarely for the overcoming of the social

evil which justifies that invasion. It should not

happen, in our submission, absent the possibility of

that social evil.

Nor should it happen, in our submission, that the

police should have a discretion to charge out of a

series of offences of equal severity in the calendar

the one that will deprive the person of what may be

a perfectly good defence. It may not be either. That

is the substance of the argument.

I did mention to the Court that I would refer to the amending legislation. Might I now do that. It

is the ROAD SAFETY (MISCELLANCOUS AMENDMENTS) ACT

1988.      I hand to the Court it in bill form but my

instructions are that it was passed but it has not

yet been proclaimed. Might I hand that to the Court.

But more particularly might I hand to the Court the

explanatory IIEIIDrandum that accompanies _ the bill and

refer the Court especially to the section, section 7,

if the Court pleases. I refer the Court especially,

in the expalantory memorandum, to clause 7 on the

first page which, in our submission, makes it plain

that the legislature thought that what it had enacted

in 49(l)(f) was something that caught you after you

had been involved in an accident. So that is what

the Parliament thought it had in mind and, indeed, I
will not trouble the Court with pieces of paper but

they are here, in the first reading speech, I think

it was in the Assembly, which was some days before

Mr Justice Crockett's judgment, a similar statement

was made by the relevant minister and that was

repeated in the second reading speech in, I think, the

Council, which took place in May of this year.

The Hansard relating to the original Act is

voluminous; it contains passages that help both parties;

Mr Justice Crockett picked on a passage that would now

help this applicant; the Full Court picked on another

MlT7/2/RB	13	9/6/89
Mills

passage, but· there certainly is reference in the

minister's second reading speeches in both houses to

this legislation, 49(l)(f) I mean, being related to

the post-accident bottle of whisky evil and being

related to post-accident situations.

The alternative argument which was rejected by

the Full Court and not considered necessary to be

dealt with by Mr Justice Crockett is an abuse of

process argument. I concede that that argument is

difficult because if the Act on its true construction

allows you to do what the police are doing, how can it

be said that it is an abuse of process to do what the

law allows. Our answer to that is that the protective

device of the court saying that something is an abuse

of process is now established to be used for the broad

purpose of ensuring fairness and it would not be fair

for a policeman to exercise his discretion in such a

way to charge somebody with an offence which is

unrelated to the mischief underlying the particular
offence for the reason, no doubt, that it is difficult

to escape conviction under that offence.

And might I give the Court brief reference to

BARTON's case, BARTON V REG, (1980) 147 CLR 75. I hand that to the Court. The passage to which we would refer

is the passage in the judgment of Mr Justice Gibbs and

Mr Justice Mason at page 96 at about point 5 of the page where the following is said:

There is ample authority for the proposition

that the courts possess all the necessary powers
to prevent an abuse of process and to ensure

a fair trial. The exercise of this power

extends in an appropriate case to the grant

of a stay of proceedings so as to permit a

preliminary examination to take place.

Then Their Honours said this:

As a result of the speeches in CONNELLY V

DIRECTOR OF PUBLIC PROSECUTIONS and DIRECTOR

OF PUBLIC PROSECUTIONS V HUMPHRYS, it is now

established in the United Kingdom that although

a judge has no power to refuse to allow a

prosecution to proceed ..... that, as a matter of
policy, it ought not to have been brought, the
courts have a general power to prevent
unfairness to the accused, even to the extent of
preventing an abuse of process resulting from
the prosecution of proceedings brought without
reasonable grounds.

Now, it is the general power to prevent unfairness, in

our submission, that we would say is applicable here.

McHUGH J: At 97 in the judgment Their Honours went on to say:

MlT7/3/RB	14	9/6/89
Mills

The High Court of Australia has not yet

had to decide whether the power of the courts

to prevent an abuse of process extends so

far.

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

DAWSON J: And there is some question as to whether the power

they are talking about there is the power which

extends to magistrates courts.

MR BLACK:  Your Honour, they are difficult questions and it is

a difficult argument.

DAWSON J:  But you would get it by implication if not by

inherent power.

MR BLACK:  Yes. We would say that it does not arise as a

matter of construction but if the section is to be

interpreted as literally as the Full Court said it

was, then there are powerful reasons why that question

should be examined, even though I concede the

difficulty of the argument. But it is certainly

something, in our respectful submission, ought to be

examined.

McHUGH J: It is difficult to see that it arises. If the

legislation on its proper construction did intend to

confer this discretion on the police officer, it is

hard to say it is an abuse of process.

MR BLACK:  It is hard, Your Honour, and I opened by conceding

it, but not impossible, and this is the place, in

our submission, to decide it. It would just be so

unfair, and all the other sections would be

surplusage and the alternative suggested by

Mr Justice Phillips, that you send it all off to the

DPP, in our submission - well, it has not happened and it is hardly satisfactory and in our submission,

although Mr Mills has, on the face of it, a difficult

case, one just does not know what the evidence will

bring it; that is what the fight is all about. disclose were he allowed to bring it. He wanted to

DAWSON J: What do you say about the amendment, Mr Black?

MR BLACK:  The amendment leaves all the points intact, except

that it is not quite as - - -

DAWSON J: It gives you a defence or sort of defence, anyway.

MR BLACK:  It gives you a sort of defence but only if, only if you

have not had a drop to drink beforehand. So if you

are about to go home and your colleague says, "Look,

a shandy won't hurt" and you have the shandy, you are

in the same position as you ever were.

McHUGH J:  The onus is on you, under that defence,as well.

MlT7/4/RB	15	9/6/89
Mills
MR BLACK:	Yes.	But if you have had the shandy, it is no use

calling all the reputable people with whom you were drinking orange juice until the last minute.

BRENNAN J: What that means, of course, is that the legislature,

I take it, with knowledge of this case, has enacted

these provisions which create a stricter presumption

requirement than in 48(l)(a).

MR BLACK:	Your Honour, the knowledge of the case is a problem because the bill was introduced before this case was
heard before Mr Justice Crockett and the second reading
speech indicates or suggests that it was only the
post-accident person that was involved. The matter
went through the Parliament with the later second
reading speeches and the explanatory memorandum
reflecting the same intention and we would suggest
that the Parliament has simply not been alive to matters that are happening at the other end of Melbourne. Either that or the matter was somehow set in the
procedure that rolled on and it was ignored. But that
is all one can say.

It perhaps ought to be a presumption but we

would invite the Court not to draw it in this case.

For those reasons, we submit that irrespective of the

reading in this case, it applies to the .06 person;

there may well be a legitimate reason for all this

fight in the evidence Mr Mills' wishes to call and

fairness and statutory construction indicate that he

and no doubt thousands like him should be allowed to

call it. Thus the question can be decided ultimately

in the magistrate's court on its true merits.	The
innocent will be cleared and the guilty will be
punished.	May it please the Court.

BRENNAN J: Thank you, Mr Black. Mr Nash.

MR NASH:	If the Court pleases. The fundamental proposition
for the respondent is, firstly, that this legislation
was introduced following the decision of the Full
Court in a case called LAMB V MORROW of which I hand
copies to Your Honour's associate. That was a case
not involving post-accident drinking but which
involved an attack on breathalyzer legislation or, to
be more accurate, it raised directly the question,
"Can one challenge the breathalyzer reading by leading
expert evidence to establish that breathalyzers are
unreliable, combined with evidence that 'I wasn't
drinking'?" The Full Court held that under the
legislation as it then existed one could do that. Both in the Legislative Council and in the Legislative
Assembly there are specific references by the relevant
minister to a recent - in one case a recent circuit
court decision which appears to be a typo for supreme court and in the other, to a recent supreme court decision in which excessively technical defences

MlT7/5/RB	16	9/6/89
Mills

have been raised. So that for the applicant to argue

that this legislation was designed to deal with the

post-accident drinker who avoids apprehension by

consuming a bottle of whisky is at least an over-

simplification.

The second point is that if one takes absurdities,

one has the situation that section 49(l)(f) makes it

an offence to fail a breathalyzer reading if one is

not found driving a motor car but it is not an offence

to fail a breathalyzer reading if one is found

driving a motor car. The anomaly is that in one case,

whether the breathalyzer is right or wrong, one has

clearly at the time one is apprehended driving is taken

by the scruff of the neck or otherwise to the local police station, placed through a preliminary breath

test and then through a breathalyzer test; one does

not normally have an opportunity for further drinking

but failing the breath test is not an absolute offence.

Yet, if one is driving Holden motor car, white,

2467, and someone sees a Holden motor car, coloured

white, 2461, involved in an accident and speeding away

from the scene, misreads the number, and one is

reasonably suspected of having been involved in that

accident, then it is an absolute offence to fail the

breath test.

So that arguments as to absurdity do not, in

our submission, assist the Court one way or the other.

The fact that there is a discretion in the police

officer to choose one offence rather than another is

in our submission, not a guide to the interpretation

of the legislation. The House of Lords in REG V MORRIS,

which I will not trouble the Court except to cite the
reference, (1984) 1 AC 320, specifically held that
there was, so far as the offence of theft and the

offence of obtaining property by deception, an overlap

and Lord Roskill specifically said that he assumed

that in those overlap situations the police would

prosecute not for both offences but for that which

involved the less difficulty. That is a paraphrase

but it is substantially what His Lordship said.

Your HonoursMr Justice Brennan and Mr Justice Mason

as he then was, in CLYNE V DIRECTOR OF PUBLIC

PROSECUTIONS, pointed out that the mere fact that a

particular interpretation of legislation might result

in a capacity for abuse did not affect the interpretation

of that legislation, that that could not be a governing

factor.

McHUGH J: That is the whole question, is it not? If you get a situation where on the same facts you can be charged

with two separate offences, one of which provides you

with a defence and one which does not, and there is a

method of construing the legislation which would provide

MlT7/6/RB	17	9/6/89
Mills

that only one offence should deal with that factual

situation, why should you not choose it?

MR NASH:	In our submission, Your Honour, there is not within
the normal parametres of the guidelines used by the
courts.
McHUGH J:	The Full Court seemed to use a literal interpretation.

That is not the method of statutory construction which

exists today; it is the purposive construction.

DAWSON J:  Or even if you want to bring it in in some classical

doctrine reddendo singula singulis.

MR NASH:	Yes, Your Honour, except if one goes to Hansard, one
obtains no real assistance in relation to the purpose
of the legislation. If one seeks - if I can continue answering Your Honour Mr Justice McHugh for the
moment - the purposive approach leaves one with
LAMB V MORROW,clearly a case on all fours with the
present; it leaves one with a Hansard which contains specific references, one of which is quoted by the Full Court which indicated that a person apprehended
when driving is intended; and other statements which do refer to a person who escapes after an accident, consumes alcohol et cetera.

McHUGH J: But why cannot you approach it this way and you say

that the purpose of 49(l)(f) is to deal with the case

under 53(l)(c) and the considerations which support

that theory of the legislation is the fact that

otherwise a person can be charged under 49(l)(f) and

is deprived of the defence which he would have in

respect of the charge which more naturally fits the

situation?

MR NASH: With respect, Your Honour, there is one phrase there with which we would quarrel and that is "which more

naturally fits the situation". It is clear that

49(l)(a) - if one goes to the Act itself, 49(l)(a)

is now for most purposes obsolete. 49(l)(b) may be

for most purposes now obsolete. That does not, in

our submission, assist in the interpretation of

49(l)(f). Although Your Honour says that the

legislation can be construed as having 49(l)(f) only

apply to the suspected accident situation that, in
our submission, is inconsistent with what Parliament
said; it is inconsistent with what was said in Hansard -
or much of what is said in Hansard; it is inconsistent
with the sequence in relation to LAMB V MORROW and it

leads to, in our submission, a relative injustice

rather than an absolute one which is much more - in our

submission, much more repugnant than that to which our

learned friends refer, namely the situation that the

man who is sitting at home or the man who is sitting

in a restaurant having driven there and who is

suspected of an accident in which he is not involved

MlT7/7/RB	18	9/6/89
Mills

is amenable to the draconian legislation, as it is

called, whereas the man who is driving a motor car

who is apprehended, who has a reading of .13, can

raise the defences which the legisaltors specifically

condemned and which were raised in LAMB V MORROW. In

our submission, there is no basis -

BRENNAN J:	How can he raise those defences?
MR NASH:	He can raise the defence, Your Honour, that he has
under 49(l)(b) - not under 49(l)(f)- - -
BRENNAN J:	No, under 49(1)( b).
MR NASH:	Under 49(l)(b) there is the presumption. The
presumption can be rebutted. Evidence can be led
in relation to the fact that he had only two glasses
of beer prior to driving and evidence can be led that
on a man of this size, shape and configuration his
blood alcohol content would be only .04, in which circumstance, depending on which evidence is accepted, he could be acquitted.
BRENNAN J:	But is that not precisely ..... of looking at the

purposes of the Act, 47(c) relates to the -

simple and effective means of establishing

that there is present in the blood of a

driver more than the legal limit of alcohol.

Not of somebody who was a driveronce upon a time, so

that the simple and effective means which are

contemplated of a driver under 49(l)(b) are those

which are provided for in 48(l)(a), combined with

53, 55 and 58, whereas you have not got that

purposive achievement if you say that 49(l)(f) applies

to the driver - or perhaps you have a fortiori of

saying that.

MR NASH:	I was going to say it is either a fortiori, Your Honour,
or 47 does not cover the ambit intended to be
covered by the part generally. Either 49(l)(f)
applies to a driver, Your Honour, or any assistance
given by section 47 in the construction of the part
almost disappears.

BRENNAN J: I suppose really what I was putting to you is that

if one is looking for the purpose of this Act so far

as it consists of simplifying the task of the

prosecution avoiding those interminable discussions

about the movement of blood alcohol levels between

driving and test, the Act makes it perfectly clear

what the simple solution is; it is the presumption.

MR NASH:	With respect, Your Honour, that gets rid of the arguments as to movement. It does not get rid of
the specific arguments that were raised in LAMB V MORROW

MlT7/8/RB	19	9/6/89
Mills

and this is, in our submission, one of the problems

with the argument, that 49(l)(f) is designed only

to deal with the person who consumes alcohol after he

has been involved in an accident. LAMB V MORROW,

Your Honours, was the Full Court decision which inrrnediately, so far as there is any inrrnediacy between legislation and Full Court decisions, that was the technical decision which led to, in so far

as there was any technical decision extant at the

time, which led to this legislation. And in LAMB V

MORROW, the accused was a man who was driving, who

was found driving- - -

DAWSON J:  When you say led to this legislation, not just the

insertion of (f)?

MR NASH:	No, the whole revamping of this part of what used to
be the MOTOR CAR ACT.
DAWSON J:	So one really cannot draw much from that.

MR NASH: Except, Your Honour, that one finds that, in effect,

the most distinct change is contained in 49(l)(f) and

also in - there are a number of sections, but

49(l)(f) and also the defence raised by subsection (4)
and then one goes to (6):

In any proceedings for an offence under paragraph (f) or (g) of sub-section (1)

evidence as to the effect of the consumption

of alcohol on the defendant is inadmissible
for the purpose of establishing a defence to

the charge.

"Evidence as to the effect of the consumption of
alcohol on the defendant", not evidence as to the
consumption of alcohol by the defendant but evidence

as to the effect of consumption of alcohol on the

defendant. In our submission, that is a very general

provision; it does not apply in respect of

paragraph (a) and if it is to have general operation

in terms of being available generally to prevent

technical defences, it only has that operation if
49(l)(f) is of general application.

It is difficult, if the Court pleases, to say that the point is a moot point but on the facts of this case as they appear before the Court at the

moment, this is not in our submission an appropriate

vehicle to test this matter if this matter does need testing but, in our submission, the reasoning of the Full Court is manifestly correct. Your Honour

Mr Justice Dawson raised reddendo singula singulis,

in order to apply that maxim one has to extrapolate

a considerable amount of material from - - -

DAWSON J:  One had to find a natural correlation between two

things one is trying to connect and Mr Justice Crockett

MlT7/9/RB	20	9/6/89
Mills

found a natural correlation between 53(l)(c) and

49(l)(f).

:MR NASH:	Yes, Your Honour, and we would say that there is not
that natural correlation between them; that one
cannot - - -

DAWSON J: It does not require much imagination to see it though,

does it?

:MR NASH:	If one looks at 53, Your Honour, and one starts with
the proposition that 49(l)(c) has a certain limited operation, then it does not require imagination but, with respect, unless one first says one of two things:
either this legislation is draconian and therefore
must be limited I do not quite know how, or alternatively, one starts with the proposition that 49(l)(f) is in
some way different and is limited in its ambit- - -
DAWSON J:	One thing you can start with is to say it appears to

render (b) at least otiose if you give it the

construction the Full Court gives it. Now, that

would lead you to say, well, perhaps there is some

other construction which does not have that effect.

:MR NASH:	We concede that, Your Honour, yes, but if one also
looks at (a) and (b), (a) is almost in this day and
age a toothless tiger and as a matter of reality, it
is not as if (a) and (b) were new provisions.
(a) and (b) are the old provisions that have been there
for some considerable time and the legislature has tacked paragraph (f) on. That does not mean that the
legislature has even perhaps properly adverted to the fact that it does not need (b) any more, but that does not, in our submission, control the interpretation
to be placed upon the section 49(l)(f) as it stands.
McHUGH J:	(b) may have a long history but after all, this is a

1986 Act in which the legislature also enacted

48(1)(a). Any policeman would have to be remiss in

his duty to charge a person under 49(l)(b), having	regard to the Full Court's decision; he would always	charge him under (f) and that would mean that (b) is
absolutely redundant. Why is it not a special leave case?
Why is it not important enough?

MR NASH:	With respect, Your Honour, it involves a point of statutory interpretation and one must bear in mind
that the Victorian INTERPRETATION OF LEGISLATION ACT itself in section 51 assumes the same facts may give
rise to an offence under more than one section or
more than oneprovision and this is a matter that is
accepted by the legislature.

McHUGH J: True it is that it is the same offence, but the

defences are different.

MR NASH:  Yes, Your Honour, and that may often be the case.

MlT7/10/RB	21	9/6/89
Mills

The same facts may give rise to a defence of being in unlawful possession or of theft or of obtaining by deception and the problems of proof in theft are

in some respects much greater than the obtaining by

deception but that does not mean that the

legislature did not intend to create the two.

If the Court pleases, they are the submissions

on behalf of the respondent.

BRENNAN J: Thank you, Mr Nash. Yes, Mr Black.

MR BLACK: If the Court pleases, a technical defence in

meaning 3 in a hypothetical bar dictionary would be

a defence that the police do not like. A technical
defence of the nature described by my learned friend

ought only to succeed if it is made out on the merits.

If it is made out on the merits, then it is a defence

in fact and the person is not guilty. That is the

answer we would make to that.

And the second answer we would make to his

submissions is this: it is now asserted on behalf of

the informant in this case that 49(l)(b) has become
or may become effectively obsolete, but this is

obsolescence not by the Parliament but by police

discretion though when the Parliament enacted this

Act it deliberately put in (b) and (f) and put in

48(1) with its reference to (a) and (b) and it should

not be assumed, in our submission, that Parliament

thereby intended to re-enact or to enact legislation

that was wasting its printer's ink in re-enacting,

leaving it all to the discretion of the local sergeant or the policeman on the spot as to whether the citizen was to have the benefit of a defence, which may not be

technical, bu:::may in fact reveal that he is innocent

of the crime that the legislature has proscribed, or

whether he shall have no such chance of proving that.

BRENNAN J: What this argument comes to, really, is this, that

if you have a CRIMES ACT which contains one crime of

receiving and another of being in possession of goods

suspected of being stolen, that the police must always

charge one rather than the other.

MR BLACK:  No, Your Honour, it does not come to that. That

argument, with respect, is not our argument. In

those circumstances, there will be different

consequences and the offence would be more appropriate

under one than under the other; like the murder,

manslaughter, common assault decision. One obviously

would not prosecute for murder if it were only a

common assault. It is an extreme example. But here,

one has relevantly - - -

BRENNAN J: Well how do you distinguish - take the murder,

manslaughter, where murder in some places is no longer

a mandatory life sentence.

MlT7/ll/RB	22	9/6/89
Mills

MR BLACK:  Your Honour, the prosecutor ought honestly to

determine what is fairly and properly the offence

with which to be charged but in our submission, a
prosecutor going about his job properly in the light

of this legislation where the penalties are the same,

minimum penalties are the same and the maxima are

the same, he ought not to sit down and render a section

obsolete which has defences in it that may be real

defences, true defences, not technical but actual not

guilty defences- - -

DAWSON J: There were charges under (b) here, were there?

MR BLACK:  The prosecutor would not go on with them. The

magistrate offered the prosecutor an amendment and

the prosecutor did not want - - -

DAWSON J: What happened to the charge under (b)?

MR BLACK: There were various attempts to amend it, which the

magistrate was keen on doing; the prosecutor did not

want it - - -

McHUGH J:  The magistrate amended the information, did he not?

MR BLACK: That is right, the magistrate amended the

information.

McHUGH J: There was an appeal against it, was there not?

MR BLACK:  That is right, of course. Yes, I am sorry, Your Honour.

DAWSON J: But originally, was he charged under both (b) and

(f)?

MR BLACK:  No, he was only charged under (f) and that was said

to be wrong; he should have been charged under (b).

The magistrate amended it to (b)- - -

DAWSON J: That is what I wondered. There was never any charge

under (b)?

MR BLACK:	I think, Your Honour, it is true to say -
DAWSON J:	There was more than one charge, was there not? Am

I wrong?

MR BLACK:  No, there was a driving charge that was dismissed,

unrelated.

DAWSON J: Theoretically, you could be charged under both, (b)

and (f) , could you not?

MR BLACK:	I am told they have been doing that, but in our submission, the charge should be the appropriate charge according to the offence to which it was
intended to relate and we say (f) is an accident case
and (b) is a catch you on the spot case and you should
not charge them under both.

MlT?/12/RB	23	9/6/89
Mills

DAWSON J: It is only a point of statutory construction of an

Act which only applies in Victoria, what is the point

of general importance?

MR BLACK:  The point of general importance, Your Honour, is that

it involves the liberty of the people who make up a

substantial - and we would respectfully say important -

part of this Connnonwealth and the invasions on those

liberties and the fact is that many people drink and

many people drive and we know the two shall not mix

but the question is, and it is important, is the literal

interpretation to be preferred which deprives people

of their liberties and of defences they may legitimately
have or is the broader interpretation - the purposive

interpretation of Mr Justice Crockett to be preferred

so that ultimately, injustice - - -

DAWSON J: It is a purposive construction. I am not sure that

it just does not become the adoption of an ordinary

method of construction to avoid a result which is

obviously- - -

MR BLACK:  Which is obviously wrong, in our respectful submission,

difficult, harsh.

DAWSON J: Obviously faulty.

MR BLACK:  And we would say wrong-

McHUGH J: Draconian, I think was the expression you used.

MR BLACK:  Yes, draconian.

McHUGH J: Ludicrous was the magistrate's- - -

MR BLACK: Well, Your Honour, we would say if one is innocent

and one cannot prove it, horrifying and offensive to -

it would be a terrible thing. You would want to tell

the magistrate that you were not drinking and you were

really a very nice person and you are reformed and you

are not allowed to because the police, by administrative

discretion, have rendered part of the Act that gives

you the defence obsolete, in accordance to the there are a lot of people driving; this is, for admittedly socially highly desirable purposes an
submissions of my learned friend. In our submission,

invasion on liberty; it has been misconstrued and this

Court should, in our respectful submission, put it

right. That is the special leave point, in my

submission. If Your Honours please.

BRENNAN J: The Court will consider what course it will take in

this matter and adjourn the further hearing of the

application until 2.15pm.

AT 12.38 PM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

MlT7/13/RB	24	9/6/89
Mills
UPON RESUMING AT 2.16 PM:

BRENNAN J: In this case the Court is of the opinion that

special leave should be granted. Special leave

accordingly will be granted.

MR BLACK:  May it please the Court.

AT 2.16 PM THE MATTER WAS ADJOURNED SINE DIE

MlT7/14/RB	25	9/6/89
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