Peter Phillip Brown v Dean Edward Lowe - [2013] NTSC 14

Peter Phillip Brown v Dean Edward Lowe [2013] NTSC 14
PARTIES: Peter Phillip Brown

v
Dean Edward Lowe

TITLE OF COURT:   SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:   SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:   132 of 2012 (21247669)
DELIVERED:   26 March 2013
HEARING DATES:   8 March 2013
JUDGMENT OF:   HILEY J
CATCHWORDS:

TRAFFIC LAW – Interpretation – Traffic Act s 29AAD(2) – Stated case – Whether a person who has provided a sample of his breath that was not sufficient for analysis is entitled to request that a further analysis be carried out.

Justices Act s 162
Traffic Act s 29AAD(2)
Police v Ioannou (2010) NTMC 16, approved
REPRESENTATION:
Counsel:
Applicant:   David Morters
Respondent:   John Moore
Solicitors:
Applicant:   Director of Public Prosecutions
Respondent:   NAAJA
Judgment category classification:   B
Judgment ID Number:   HIL1301
Number of pages:   9

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Peter Phillip Brown v Dean Edward Lowe [2012] NTSC 14
No. 132 of 2012 (21247669)
BETWEEN:

Peter Phillip Brown

Applicant

AND:

Dean Edward Lowe

Respondent

CORAM: HILEY J
REASONS FOR DECISION
(Delivered 26 March 2013)

By a special case dated 15 November 2012 under s 162 of the Justices Act, this Court has been asked to provide its opinion on a question of law arising out of the hearing of a complaint made by the applicant against the respondent concerning an alleged traffic offence on 5 April 2012.
The question on which the Court’s opinion is sought is:
“Whether, on a true construction of section 29AAD(2) of the Traffic Act, the phrases ‘a person who has submitted to a breath analysis’ and ‘after receiving the result of the initial analysis’ include, respectively, a person who has not supplied a sufficient sample of breath for an analysis to be obtained; and a result which is that there has not been an analysis.”
Set out here are the main facts provided by the learned Magistrate in the special case stated:
“ I.       The above-named complainant made a complaint against the above-named defendant for that the said defendant did, on 5^th day of April 2012 at Katherine in the Northern Territory of Australia, fail to provide a sufficient sample of breath for analysis contrary to section 29AAE of the Traffic Act (and other charges, about which no question arises).
II.         The said complaint came on for hearing before me on 25^th day of October 2012 and the result of such hearing was as follows:
III.       At the hearing, the following facts were either proved, or admitted, by the parties:
1.On the 5^th day of April 2012, the said defendant, having been the driver of a motor vehicle on a road, was properly arrested for the purpose of a breath analysis and taken to the Katherine Police Station.
2.At Katherine Police Station, Senior Constable Anthony Charles Jones, an authorised operator, required the said defendant to submit to a breath analysis, having properly prepared a prescribed breath analysis…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Peter Phillip Brown v Dean Edward Lowe

Details

AGLC: Peter Phillip Brown v Dean Edward Lowe [2013] NTSC 14
Case: [2013] NTSC 14
Decision Date: 26 March 2013

CaseChat Overview and Summary

In the case of Peter Phillip Brown v Dean Edward Lowe, the dispute arose under the Traffic Act and involved whether a person who had provided an insufficient sample of breath for analysis was entitled to request that a further analysis be carried out. This matter was heard in the Supreme Court of Queensland.

The primary legal issue that the court had to decide was whether the statutory language in section 29AAD(2) of the Traffic Act allowed a person who had submitted to a breath analysis but had not provided a sufficient sample for analysis to request a further analysis. The court was required to interpret the phrase "a person who has submitted to a breath analysis" and whether it included individuals who did not provide a sufficient sample for analysis. Additionally, the court needed to determine what constituted the "result of the initial analysis" under the Act.

The court concluded that a person who has made an attempt to provide a breath sample, despite not providing a sufficient one, is considered to have "submitted to a breath analysis" for the purposes of section 29AAD(2). This interpretation aligns with the ordinary meaning of the word "submit" and recognises that the offence under the Act is failing to provide a sufficient sample of breath for analysis, not failing to submit to a breath analysis. The court further found that the "result of the initial analysis" included situations where the initial breath analysis was unsuccessful due to the inability or failure to provide a sufficient sample. This interpretation allows individuals who have submitted to a breath analysis but did not provide a sufficient sample to request a further analysis, provided they do so without undue delay.

The court's decision established that individuals who have attempted to provide a breath sample, even if it was insufficient for analysis, are entitled to request a further analysis under section 29AAD(2) of the Traffic Act, subject to the condition of requesting the further analysis without undue delay.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

It may also be relevant to note that s 19(4) provides that “in this Part, a reference to a failure to submit to a breath test or breath analysis” is to be taken to be a reference to “a refusal or failure to submit to a breath test or breath analysis, or to provide a sufficient sample of breath for a breath test or breath analysis”.Consideration Counsel for both parties provided helpful submissions both written and oral, and both have submitted that the answer to the stated question should be “Yes”. I agree, subject to a small qualification. The critical words in s 29AAD(2) for present purposes are the words:(a) “[a] person who has submitted to a breath analysis”; and(b) “after receiving the result of the initial analysis”, following the words in a) above. As to (a), I can see no basis for a contention that a person who does make some attempt to provide a sample of his or her breath, following a requirement by a police officer under s 29AAC that he or she “submit to” a breath analysis, does not in fact “submit” until and unless he or she does something in addition, namely “provide[s] a sample sufficient for the analysis to be carried out”. There is no reason to so limit the normal meaning of the word “submit”. In fact, despite the heading to s 29AAE (“offence of failing to submit to breath analysis”) the offence is not failing to submit to a breath analysis. Rather, the offence is the failure “to provide a sample of breath sufficient for the analysis to be carried out.” This important distinction is recognised by the fact that the respondent in the present matter has been charged with failing to provide a sufficient sample of breath for analysis, not with failing to submit to a breath analysis. On the facts stated, the respondent was a “person who has submitted to a breath analysis” for the purposes of s 29AAD(2). As to b), the question is whether the “result of the initial analysis” (i) is confined to the actual “breath alcohol content” – ie the “BrAC” - recorded (after the initial breath analysis has been sufficient to enable a reading to be obtained), or whether it (ii) also includes other situations where the initial breath analysis has or can not be completed and is simply unsuccessful? A breath analysis (from a person who has submitted to a breath analysis) might be unsuccessful for any number of reasons, including an inability or other failure to provide a sufficient sample. I consider that there is no justification for construing the words “result of the initial analysis” as narrowly as in the first of the above senses. As previously noted, there are a number of other “deeming” provisions which would not apply to a situation such as that here: namely where a person has actually failed to submit to a breath analysis (cf ss 29AAE(8) & (9)) or where a person has prevented a police officer from requiring the person to submit (cf s 29AAE(7)). But the present matter involves a person who has submitted to a breath analysis, and who desires to have a second chance to have his or her breath analysed after receiving the “result” of the first “analysis” (provided that he or she has requested the further analysis “without undue delay” – s 29AAD(3)).