Police v Dunstall - [2015] HCATrans 102

[2015] HCATrans 102

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A5 of 2015

B e t w e e n -
POLICE
Appellant
and
JASON ANDREW DUNSTALL
Respondent

FRENCH CJ
KIEFEL J
BELL J
GAGELER J
KEANE J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 6 MAY 2015, AT 10.02 AM

MR M.G. HINTON, QC, Solicitor‑General for the State of South Australia: If the Court pleases, I appear with my learned friend, MS A.C. MOFFA, for the appellant. (instructed by Crown Solicitor (SA))

MS M.E. SHAW, QC: If the Court pleases, I appear with my learned friend, MR B.J. DOYLE, for the respondent. (instructed by Caldicott Lawyers)

MR N.J. WILLIAMS, SC: May it please the Court, I appear with MR G.A. HILL for the Attorney‑General of the Commonwealth intervening. (instructed by Australian Government Solicitor)

MR G.R. DONALDSON, SC, Solicitor‑General for the State of Western Australia: May it please the Court, I appear for the Attorney‑General of Western Australia intervening. (instructed by State Solicitor (WA))

FRENCH CJ: Yes, Mr Solicitor.

MR HINTON: If the Court pleases, the respondent in this matter was charged on 8 January with the offence of driving his motor vehicle whilst there was present in his blood the prescribed concentration of alcohol. The reading returned after breath analysis was 0.155 grams in 210 litres of breath; there is a conversion rate that converts that to 0.155 grams in 100 millilitres of blood. At his trial, the presiding magistrate – sorry, before I go there, having returned ‑ ‑ ‑

FRENCH CJ: That is an assumed conversion.

MR HINTON: Yes, your Honour, and I will take your Honours to the section in the Road Traffic Act in a moment. Having returned that breath analysis result, the respondent requested, as he was entitled to, a blood test kit. He took the blood test kit to the hospital as quickly as he could. Blood samples were taken from him. They were divided in two. One was given to him, one was put in the box at the hospital whereby there was an arrangement that it would end up at the forensic science centre. It turned out that both samples were denatured. Both samples being denatured, the respondent lost the opportunity to test his sample to determine what his blood alcohol level was and, depending upon that, lost the possibility of leading evidence at his trial that could support an opinion that the breath analysis result was exaggerated.

FRENCH CJ: Well, is it not the fact that the analysis of the blood sample is necessarily taken at a time later than the time at which the breath analysis is taken and that what is measured is something different, that is, the blood alcohol concentration at the later time?

MR HINTON: Agreed.

FRENCH CJ: And then there is a deemed – there is an assumption that is the same for…

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 Police v Dunstall

Details

AGLC: Police v Dunstall [2015] HCATrans 102
Case: [2015] HCATrans 102
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered the appeal of Police v Dunstall, which concerned the interpretation of section 11(1)(c) of the *Crimes Act 1914* (Cth) (the Act). The dispute arose from the appellant's conviction for an offence under the Act, where the central issue was whether the appellant's conduct constituted an "assault" for the purposes of the provision.

The High Court was required to determine whether the appellant's actions, which involved spitting at a Commonwealth officer, amounted to an assault within the meaning of section 11(1)(c) of the Act. This involved considering the definition of assault at common law and whether it had been modified or expanded by the statutory provision in question. The court also had to consider the scope of the protection afforded to Commonwealth officers under the Act.

The Court reasoned that the common law definition of assault, which requires proof of an intentional or reckless act that causes another person to apprehend immediate unlawful violence, or the actual infliction of unlawful violence, was the relevant standard. The Court held that spitting at a person, even if it did not involve direct physical contact, could constitute an assault at common law if it caused the victim to apprehend immediate unlawful violence. The Court found that the appellant's conduct met this threshold, and therefore the conviction under section 11(1)(c) of the Act was upheld.

Orders