Platsis v Garrow

[1988] HCATrans 143

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No Bl3 of 1988

B e t w e e n -

MICHAEL PLATSIS

Applicant

and

JANELLE GARROW

Respondent

Application for special
leave to appeal

MASON CJ WILSON J

GAUDRON J

Platsis

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 1 JULY 1988, AT 11.51 AM

Copyright in the High Court of Australia

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MR D.F. JACKSON, QC:  May it please the Court, I appear with

my learned friend, MR R.R. CAMPBELL-BREWER, for

the applicant. (instructed by Deacon & Milani)

MR J.E. GALLAGHER, QC: If the Court pleases, I appear with

my learned friend, MR T.J. RYNNE, for the respondent.

(instructed by Director of Prosecutions)

MASON CJ:	Yes, Mr Jackson.
MR JACKSON:	Your Honour, may I hand to the Court copies

of our outline of submissions together with a document

which contains the evidence below; I may wish refer

to some passages in it.

Your Honours, if I could come immediately

to the question of the reason why special leave
should be granted; it is, in our submission, because

the case does involve the question which is referred

to in paragraph 1 of the outline of submissions

and that is that it raises a question of the lawfulness	of a campaign known popularly as the 0 reduce impaired
driving" campaign which involves stopping motorists
at random to look for drink drivers but at the
same time using the mechanism thought to exist
in the Act to check licences and the apparent condition
of the vehicle but having as a main purpose to reduce the incidence, no doubt, of drivers on the
roadway who are under the influence of liquor.

MASON CJ: That is a rather broad statement of the question,

is it not?

MR JACKSON: Well, it is, Your Honour, in the sense that

that is the reason why the issue is of importance,

in our submission.

MASON CJ: That is the reason why the precise issue becomes

important as a matter of public importance?

MR JACKSON:  Yes, Your Honour, and the regularity of the

matter is one which assists in the Court taking

the view that it is of sufficient importance to merit

the grant of special leave because it affects, potentially, in our submission, every motorist driving in Queensland and a particular occasion,

is an example, where 130 vehicles were stopped

on the evening.

Now~ Your Honours, if I could turn from that

to the provisions of the TRAFFIC ACT which are

relevant. So far as breath testing is concerned

the TRAFFIC ACT, to put it popularly first of all,

does not permit random breath testing and the provision

which imposes the restriction upon that is

section 16A(2)(a). Your Honours have the Act and

it is to be found at page 37 of the pamphlet copy.

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Your Honours will see, if I could refer to the

relevant parts of it:

A member of the Police Force may request any person found by him or who he suspects on

reasonable grounds was during the last

preceding two hours:-

and then it is sufficient to go to paragraph (i) -

(i)     driving a motor vehicle ..... ;

to provide a specimen of breath for a breath

test by him if he suspects on reasonable grounds -

one·of two things. The first of them is:

that, having regard to the behaviour of the person
in relation to the motor vehicle ..... or having
regard to the behaviour of the motor vehicle

in question, the person has alcohol or any

drug in his body; or

that in relation to the motor vehicle ..... the

person. has committed an offence against this

Act during the last preceding two hours.

So, Your Honours, if I could pause there for just one moment, that provision requires there to be

a suspicion on reasonable grounds as to the driving
of the motor vehicle and, secondly, a suspicion,
again on reasonable grounds, of one -of the two

matters referred to in the concluding parts of

section 16A(2)(a).

Your Honours, the judgments in the' Full Court,

however, treated that provision as not applicable

because in the Full Court the actions of the police

officers in question were divided into two parts.

Your Honours, the first of them was: there was a

random stopping of vehicles that, it was said,

was authorized either by section 35 or by section 39

of the TRAFFIC ACT - and I will come to those provisions

in just a moment. The second part into which the

action of the police officers was divided was that

it was said that the requiring breath testing was not

something that was in contravention of,section 16A(2)(a)

because there was no randomness about it and the

vehicle had been stopped and after the vehicle

had been stopped lawfully the relevant suspicion

was arrived at.

Your Honours, that appears in the reasons

for judgment of members of the Full Court at

page 46 point 9 going through to page 47.point 5

in the judgment of the Chief Justice and, in particular,

the first two sentences in the first new paragraph

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and it is put, pithily, by Mr Justice de Jersey

at page 55 in the second-last paragraph of his

judgment.

WILSON J:	The second-last paragraph - the centre paragraph?
MR JACKSON:	Yes, it is, Your Honour, although it is rather

dominated ,by that which precedes it. Your Honours,

may I come back to paragraph 5 of our outline of

submissions but move on in the same train, as it
were, to paragraph 6 for the moment.

In our submission, the Full Court erred in the view that a police officer was empowered to stop any vehicle which the police officer might

choose to stop. The two provisions which might

conceivably give rise to that power were

section 35 and section 39. Section 35, Your Honours,

is to be found at page 37 and Your Honours will

see that the first paragraph of it provides:

Every member of the Police Force ..... shall, in all other cases, at all times cause the provisions of this Act to be duly observed,

and any such member may make or cause .to be

made any inquiry, investigation, inspection,

examination or test which in the opinion of

such member is necessary to establish whether

or not a breach of this Act has been committed

by any person or by any person in respect

of any vehicle.

And, secondly, it provides in the second paragraph

that:

In all cases not expressly provided for by

this Act, any member.of the Police Force may

give to all drivers of ..... vehicles ..... on
or about to enter on any road, such directions,

signals, orders as may, in his opinion, be

necessary for the safe and effective regulation

of traffic therein or thereon.

Now, in our submission, Your Honours, the second.

paragraph would not be wide enough to empower a

random stopping; that is a stopping of any vehicle

which a police officer chose to order to stop in

the absence of something to indicate that the stopping

was necessary for the safe and effective regulation

of traffic. By that I mean, in the absence of

anything to indicate any basis for the formation
of an opinion of the nature referred to in that

paragraph.

Your Honours, as to the first paragraph of

section 35, it does not, in our submission, confer,

in its own terms, any power to stop and if, contrary

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to our submission, it should be held to be wide

enough, on the face of it, to confer such a power

then it ~hould be read down· in the light of the

specific powers to order a vehicle to stop given

by the provision to which I will next come - section 39.

Your Honours, may I, before doing that, refer

to page 5~ in the judgment of Mr Justice de Jersey,

and in the fifth line on that page His Honour

paraphrases section 35 and says:

Under s. 35, she -

that is referring to the police officer -

was entitled to order any driver to stop if

necessary in her opinion for the safe and

effective regulation of the - - -

WILSON J: This is page 55?

MR JACKSON:  Yes, Your Honour.

MASON CJ: ·It is page 4 of Mr Justice de Jersey's judgment.

MR JACKSON: It is the sentence commencing on the fifth line

but, with respect, Your Honours, that does not

paraphrase the section.

MASON CJ:  No. His Honour seems to have run the two paragraphs

together.

MR JACKSON:  Yes. Your Honours, if one goes from there to

section 39, Your Honours will see that it involves

in subsection (1) a number of circumstances - it

states a number of circµmstances in which a police

officer may order someone, if I could put it

neutrally for the moment, to stop or to do certain

other things. Could I take Your Honours first

to the opening words of section 39(1) which provides

that:

Any member of the Police Force who -

and may I come back to the subparagraphs - finds

certain things or is doing certain things and then,

Your Honours, the third line on page 68 of the

pamphlet "may require that person" to do various

things:

(i) to stop, or where that person is the

driver of any vehicle ..... to stop that vehicle .....

(ii) to produce any licence issued to him

under this Act; and

(iii) to state his name and address.

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Now, if I could come back then, Your Honours, to

section 39 and to the text of paragraphs (a), (b)
and (c) and so on. In a case of random stopping

it would be impossible, of course, for paragraph (a)

to be satisfied in the absence of there being some

movement of the vehicle which might constitute

the commission of an offence or the ground for

a reasonable suspicion. The widest provision,

and the provision which was regarded by the Full Court

as apposit~ is paragarph (b) which says that:

Any member of the Police Force who -

(b) is making inquiries or investigations with a view to establishing whether or not an offence under this Act, including an offence

against this section~ has been committed by

any person .....

may require that person -

(i) to stop.

Now, Your·Honours, we accept immediately, of course,

that the provision is wide in its terms but it

does require, in our submission, that there be at

the time of the stopping something which is capable

of being regarded as an inquiry or investigation

in being, not one which is about to commence when

whoever happens to be the next car - I put that

badly but - whichever car or vehicle happens to
be next is brought into the place where the
investigation will then take place. In support
of that contention, Your Honours, one looks at

the words of the provision and it simply does not

in terms say what might otherwise have been apposite

and that is that any member of the police force

may order any vehicle to stop. And we would direct

attention also, Your Honours, to the fact that

the words which follow paraRraphs (a), (b), (c)

and (d) use the expression 'may require that person",

that is the person who is referred to in the last

few words of paragraph (b).

Your Honours, the view that the stopping was

authorized by the Act was one which was material

to the question whether the breathalyser certificate

and the evidence of indicia should have been

admitted in evidence and Your Honours will see

that - if I could go to page 55, page 3 of

Mr Justice de Jersey's judgment - in the last

paragraph on that page, His Honour said:

The principal submission by Counsel

for the appellant was that the evidence of

the appellant's being affected by liquor,

especially the certificate, should have been
excluded by the Magistrate in the exercise

of a discretion.

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And, Your Honours, I mention that because

Your Honours will see there that His Honour refers

to the fact that the submission went both to the
evidence of·indicia and to the evidence of the

admission of·the breathalyser certificate.

Your Honours, in the judgment of Mr Justice Thomas,

at the page which is the back of page 51,

His Honour says, immediately after the reference to

BUNNING V CROSS:

In this respect it should be noted that

Mr Brewer -

and he is speaking about the proceedings before

the magis~rate -

confined his objection to the evidenc~ relating

to the obtaining of the breathalyser reading.

Now, Your Honours, it is true to say that literally

in the sense that Mr Brewer did object specifically
to the breathalyser certificate at the time when

1 shows that at the bottom of that page he

the document was tendered. If one looks, however, page

at the opening page of the document which I handed to

indicated that as: . ·-

The prosecutor and myself have had discussions

beforehand I think it should be indicated

at this stage Your Worship, subject to the

Prosecutor's consent, that it is an R.I.D.,

what might be called a test case in relation

to it. It probably won't form any part of
the proceedings except the evidence will be

viewed on that basis.

And the magistrate said:

Yes, very well.

And, Your Honours, that, in our submission, was

sufficient to raise that issue and I should also

refer to the fact that the Chief Justice in his

reasons for judgment - - -

WILSON J: Before you leave the page in Mr Justice Thomas'

judgment, Mr Jackson, to what is His Honour referring:

As the conviction can be sustained on other

grounds the present case is unsuitable to

raise the wider question whether there is

any impropriety at the point of stopping

vehicles.

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MR JACKSON~ Yes, what His Honour is referring to is the

fact that - and I was going to come to this in

just a moment - -

WILSON J: Well, come to it in your own time.

MR JACKSON:  Yes, it is the next thing with which I wish

to deal. The final matter I wish to mention to

Your Honours in this connection is at page 47 in

the reasons for judgment of the Chief Justice and

His Honour said - in the second new paragraph on

page 47 - that:

Counsel for the appellant submitted that

the whole procedure followed by Constable Garrow

on the night in question was a sham or trick

calling for the exercise of the discretion

discussed in BUNNING V CROSS.

Could I move then from that, Your Honours,

to the provisions which make relevant the question

of indicia which I mentioned a moment ago.

Your Honours, section 16(1) of the TRAFFIC ACT

which appears at the bottom of page 30 creates

the offence of, to put is shortly, "driving under

the influence of liquor or a drug". There are

two means by which it is possible to arrive at

the conclusion that a person charged is guilty

of that offence. One means is by what I might

call the more traditional and less scientific

approach and that is by the conduct and observable

signs on the part of the accused showing .that in

some way his conduct is observably under the influence

of liquor. The other way is by the procedure referred

to in section 16(3) at page 33, which is ~hat:

Where upon the hearing of a complaint of an

offence against subsection (1) the court is

satisfied that at the material time the

concentration of alcohol .... ~exce~ds 150 milligrams

of alcohol per 100 millilitres of blood, the

defendant shall be conclusively presumed to

have been at that time under the influence

of liquor.

Now, Your Honours, it may be inaccurate, slightly,

to refer to there being two ways of arriving at

the conclusion of guilt because if subsection (3)

applies there would seem to be no room for consideration

T8 of any further matter. However, in the present

case the view taken by the magistrate was that

in addition to the certificate, which he treated as being

admissible, which showed matters which would satisfy

the test in·subsection (3), there were also observable
signs which led him to the view that the present

applicant was under the influence of liquor by

the indicia test, if I can call it that, at the time .

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Now, Your Honours, in our submission, the question

whether the stopping of the ·Vehicle was lawful
was relevant not merely to the question whether

the breathalyser evidence was admitted but was

relevant also to the question whether a discretion

should be exercised not to admit the evidence of

indicia if there had been an unlawful stopping.

Your Honours, in that regard, if it be correct

to say that the powers of the police officers to stop motorists were limited by the provisions of

section 39 and, to the extent relevant, section 16A(2)

then the case is one in which, in·our submission,

the observations made by Justices Stephen and Aickin

in BUNNING'.V CROSS, (1978) 141 CLR 54 at pages 77 and 78

were relevant.	May I hand to Your Honours copies
of that decision?

MASON CJ:  Yes. We have it actually, Mr Jackson.

MR JACKSON:	Your Honours,.the particular passage to which I wish to refer is that in the last paragraph on
page 77 which continues on to page 78 but it refers,
importantly, to the liberty of the subject and,
Your Honours, if the true position be that there was a concerted campaign to stop motorists without
there being a lawful power to do so and, in fact, in excess of the powers that did exist then there
would seem to be no very compelling reason why
evidence obtained in consequence of deliberate contravention of statutory provisions of that kind
would be admitted. But, in any event, Your Honours,
the question  whether sections 35 or 39 empowered
such a stopping is one (a) of importance and, (b) on
which there is an arguable case and, in our submission, the special leave should be granted.

Your Honours, I should say one further thing

about the other basis on which the magistrate found

against the applicant and it is this: in relation

to the question of the condition of the applicant

the evidence, in fact, was, in our submission,

evidence which was relatively weak and we would

submit that the magistrate could not on it, in

any event,. have drawn the conclusion which he did.

Your Honours, the evidence in that regard

appears at - and · there ~re a number of pages

in the evidence to which I go very shortly if I

may - and one has to bear in mind, of course, in

this regard that the certificate can play no part -

page 5, at the top of the page - "a smell of liquor"
on the breath of the applicant and "his eyes appeared

to be very bloodshot". At page 13 - when he got out of the vehicle - and the vehicle was a sports

model car so that he had been sitting down in it -

this is a third of the way down the page:

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,.

,

/I

I

i	He leant on the side of his vehicle, had
I	his hip sort of leaning against the vehicle.

Then, Your Honours, page 14, and Your Honours will

see about a fifth of the way down the page:

the defendant walked across the road and I

opened up the back door for him and he got

into the back seat.

And then, Your Honours, about half-way down the

page, she was asked:

Did you notice anything at all with respect to his gait, for instance, his walking?

And her answer was he:

appeared to be swaying and he wasn't walking

very well.

And penultimately, page 35 about a third of the

way down the page:

The defendant today appears -

"today" meaning in court -

a lot brighter than he did on the night -

this is two o'clock in the morning when he was

picked up and he had been working at night, he

was a restaurateur -

he appeared to be sleepy and rather sluggish.

And:

He was ..... fiddling with his hands.

And, finally, page 41, the evidence which one might

have thought of any importance was really just
that he walked across the road - I am sorry, Your Honours,

page 41 deals with the fact that he appeared then

to have a cold and it is apparent, Your Honours,

from the passage to which I referred at, I think,

page 14, that the only evidence there was of-his

walking was simply that he walked across the road,

in effect, from one vehicle to another and, in

our submission, on evidence such as that a magistrate
should have had a reasonable doubt that he was

affected by li~uor. When I say "should have had", Your Honours, 'must have had", our submission is,

of course.

MASON CJ:  Mr Jackson, I was going to ask you_-I have not

quite followed, at the moment, why the first paragraph

of section 35 is not available. Now you did suggest

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earlier, I thought, that the first paragraph of 35 may be excluded, in effect, by reading it in

conjunction with 39.

MR JACKSON:  Yes, Your Honour, that is our second argument

on the point. The first argument is simply this,

that to require a car to stop on the roadway is not

to make an "inquiry, investigation, inspection,

examination or test".

MASON CJ:  But if you are authorized to make an inquiry,

and inquiry extends to production of a licence

why does it not include authority to request a

driver to stop so that you can inspect the licence?

MR JACKSON:  Because, Your Honour, it is not an inquiry but

a direction. - There is a question of classification

involved, of course, but, in our submission, if one looks at the words of 35 it is referring to

things which are capable of being described as

an "inquiry, investigation, inspection or examination"

and so on but if one is going to require a person

to stop something that he is prima facie otherwise

at liberty to do one would expect that to be covered

by - I am sorry, that is capable of description,

in our submission, only as a direction or something

akin to that and that would not fit within the

description of inquiry et cetera.

WILSON J:  But if the police department planned a licence

crack-down it could stop vehicles at random under

35 to check licences, could it not?

MR JACKSON: In our submission, not, Your Honour.

WILSON J:  I have not quite perceived why this section would

not apply to that.

MR JACKSON:  The way in which Your Honour put it to me really

assumes the existence of power to do that in the

first place and then use section 35 as the vehicle.

WILSON J: Police officers could be instructed to cause inquiry

to be made of every driver travelling along this

road in order to ensure that the provisions of

the Act are being duly observed.

MR JACKSON:  Yes, but, Your Honour, no doubt they might be

instructed in that way and no doubt when they ask

the person who had been stopped, "Do you have a

licence?" that would be something that fell within

that description. But having said that, Your Honour,

in order to stop that requires a power to do so.

The stopping would not be authorized by 35.

Your Honours, those are our submissions.

I should have added that the application for special
leave or the affidavit referred to a question of

an appeal against penalty - that is not pursued.

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MASON CJ:  The Court need not trouble you, Mr Gallagher.

The Court is of opinion that the decision of the

Full Court is not attended with sufficient doubt

to justify the grant of special leave to appeal.

The application is, therefore, refused.

AT 12.22 PM THE MATTER WAS ADJOURNED SINE DIE

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