Mills v Zvatora

[2005] QDC 42

[2005] QDC 042

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE ROBIN QC

No D464 of 2005

HEIDI KAY MILLS	Appellant
and
DANIEL ZVATORA	Respondent

SOUTHPORT

..DATE 18/02/2005

ORDER

CATCHWORDS:  Appeal to District Court from Magistrate'

refusal to admit into evidence a certificate under s80(16C) of the Transport Operations (Road Use Management) Act 1995 upon a charge of failing to give a specimen of blood under subsection (11)- requisition held not duly made under subsection (8C) because it fell outside the 2-hour time limit in subsection (8D) - appeal dismissed.

The State authorities and the community are properly concerned to deal with the evil of persons driving while their capacity is impaired by ingestion of alcohol or other substances. That concern has led to provisions, formerly included in the Traffic Act 1949 and now in the Transport Operations Road Use Management Act 1995, providing for condign penalties for driving where concentrations of alcohol in the driver's blood exceed defined limits. Provision is made for the requiring by police officers of the giving of breath and/or blood samples, testing of which may result in production of certificates of more or less conclusive evidentiary effect in proceedings.

The propensity of people apprehending they might face successful prosecution if they were tested to refuse to give samples has been recognised in the legislation and to the extent that failure or refusal to provide a specimen is an offence potentially attracting the same penalty as if an incriminating specimen actually had been given.  The present respondent faced a charged under section 80(11) of the TORUM, as it is often inelegantly called, of failing to provide a specimen of blood.

The appeal is brought by the police against the Magistrate's dismissal of the charge on the basis that the prosecution could not show a requisition of a specimen of blood "duly made by a police officer under (8) or (8C)".  The background circumstances appear to be that the respondent was one of the drivers in a two-car collision which occurred a few minutes before midnight. 
Police attended at about 10 minutes after midnight.  People, including the respondent, had been injured.  He was taken to hospital.  As things turned out, it was at 2 a.m. that both a police officer and a medical practitioner made a request for provision of a specimen of blood. 

At the accident scene, the police, doing their duty, had sought a specimen of breath, but, in two attempts, the respondent was apparently unable to supply a sufficient specimen.  The requisition at the hospital comes within (8C) of section 80.  The respondent's response to it was, "I don't want to."  No specimen was given in those circumstances.

On the basis of what has been recounted, in the absence of something emerging under (11A), one would expect the respondent to have been convicted, however, reference to the terms of (8C) is not the limit of the Court's task.  Subsection (8D) provides that:

"A requisition shall not be made under (8C) unless it is made as soon as practicable and within two hours after the occurrence of the event whereby a police officer is authorised under (2) or (2A) to require the person to provide a specimen of breath or a breath test by the person."

The offence in the circumstances has, it seems, by common consent, been taken to be actual driving of a motor vehicle by the respondent. 

While there are other possibilities in subsections (2) and (2A) related to attempts to drive a motor vehicle, or even being in charge of one, there appears to have been no attempt made here to argue for a longer time frame for the making of a requisition on the basis of "being in charge".  It might well be thought unfair to have taken such an approach. 

(8D), if applicable, imposes a double time-related requirement for a requisition.  Firstly, it must be made "as soon as is practicable"; secondly, it must also be made "within two hours after the occurrence of the event".  It's only by minutes that the prosecution miss out.  But, in this context, it seems to me a miss is as good as a mile. 

For perfectly defensible reasons alluded to above, the serious offence of failing to provide a specimen has been created.  It has its technical aspects, however, and there is no justification for extension of the circumstances which constitute offences beyond what the language of the Act requires.

Ms Currie's argument is that (11) picks up (8C) but not (8D).  She, as I understood it, was able to provide a commonsense justification for the outcome, if her submission succeeded, in terms of the relevant offence being the failure to provide a specimen as opposed to an offence of driving when, by the tests of the legislation, a person is not fit to drive.  One can readily appreciate the importance of a two-hour or similar requirement in the latter context.  There is no good reason in principle why there need be similar respect paid to an arbitrary time limit in the former context.

I consider that it is not possible, as a matter of statutory interpretation, to separate (8C) and (8D).  In other words, whenever attention is being paid to a requisition or requirement asserted to be within (8C), reference must be made to (8D) to determine whether it happened in time.  If it did not, then it seems to me that within subsection (11) there is no requisition "duly made".  It would have been quite easy for the drafter to include in subsection (11), after the reference to (8C), words such as "without reference to (8D)".  That has not happened.

The inapplicability of a two-hour requirement was acknowledged by the Full Court in Bensley v. Roche ex parte Bensley [1980] Queensland Reports 297. There, the requisition was under the equivalent of subsection (8) of section 80, which, at the relevant time, was subsection (8) of section 16A of the Traffic Act 1949-1977. It concerned a requisition of a specimen of breath for analysis and not one for a specimen of blood in a hospital.

HIS HONOUR:  The two-hour requirement referred to was in section 16A(2) which provided that:

"A police officer may require any person found by the officer or who the officer suspects on reasonable grounds was, during the last preceding two hours, driving a motor vehicle et cetera to provide a specimen of breath."

There is no basis for distinguishing Bensley v Roche on the basis that it concerned failure to give a specimen of breath as opposed to failure to give a specimen of blood provided the legislative provisions are indistinguishable.  However, it seems to me they are different.  The Full Court would not have to consider any - and there was no - equivalent of subsection (8D). 

Reference was made to the Court of Appeal decision in Clauss [1994] 1 Queensland Reports 427 which indicated that there may be life in certificates given under the legislation even though were not obtained strictly lawfully.  The particular passage relied on in the judgement of Demack J at 437 quoting the views of the unanimous Full Court in Jones v. O'Neill  ex parte Jones [1979] 2 Queensland Reports at 142 at 147-148  was as follows:

"Although I have reached the conclusion that the doctor's conduct established that he approved of the taking of the sample and that he was familiar with the respondent's injuries and apparent state of health, I think it is necessary for this Court to reiterate the proposition that there is no warrant for introducing into this legislation, by implication, conditions precedent to the admissibility of a certificate given under subs(15) or subs (16) in respect of a specimen of breath, or of blood, provided pursuant to a requisition under subs(8), or of blood provided pursuant to one under subs (9).  It must be understood that I am not referring to the exigencies of proof of the offence of failing to provide a requisitioned specimen, nor to the necessity of proving compliance with a procedural step expressly stipulated by the Legislature."

In the present matter, the certificate said to describe the offence and the exvidentiary effect of it are provided for in s80(16C) ans (16E). The Magistrate, I think, correctly ruled the proffered certificate inadmissible.

The result is that the present appeal should be dismissed. 

Essentially, there is no way of denying section 80(8D) its effect.  The observation is appropriate that if it is denied effect in respect of the two-hour requirement, then it may surely also be denied effect in respect of the "as soon as practicable" requirement with the consequence that so long as a driver is still in hospital, a requisition may be made under subsection (8C) at any time, even days after an event on the roads.  It is difficult to see that that could have been the legislature's intention.

The appeal is dismissed.

The appellant is ordered to pay the respondent's costs to be assessed.  Unless it is thought that I am wrong, it is probably something those who determine what goes into the Torum should have a look at.  -----