Police v Ghuede - [2007] SASC 351

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v GHUEDE
[2007] SASC 351
Judgment of The Honourable Justice Vanstone
27 September 2007
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA
Appeal by police against acquittal by reason of mental incompetence of refusing to submit to an alcotest under s 47E Road Traffic Act - appellant argues s 47E impliedly excludes application of Part 8A Criminal Law Consolidation Act such that mental incompetence defence not available - whether Parliament's intention to exclude Part 8A is evinced by the language or content of s 47E. Held: mental incompetence defence available in defence of charge of refusing to submit to an alcotest - appeal dismissed.
Criminal Law Consolidation Act 1935 Part 8A; Road Traffic Act 1961 s 47E, s 47EAA, referred to.
Meertens v Falkenberg (1981) 92 LSJS 202, applied.
Bottomley v Symons (1982) 31 SASR 18; Daire v Rollins (1982) 30 SASR 156; Bormann v Coldwell (1986) 43 SASR 297; Czerwinski v Hayes (1987) 47 SASR 44, discussed.
Police v Wilkey (2004) 89 SASR 460, considered.

POLICE v GHUEDE
[2007] SASC 351
Magistrates Appeal
Criminal
VANSTONE J:
Introduction

A magistrate found that the respondent was not guilty of refusing to submit to an alcotest by reason of mental incompetence. The appellant argues that the mental incompetence provisions of the Criminal Law Consolidation Act 1935 (“CLCA”) have no work to do in respect of this offence, as the section creating the offence provides what is effectively a code, stipulating the only criteria upon which a refusal to submit to an alcotest on the basis of a medical condition can be excused.
Background
The respondent was charged on complaint with a number of offences including speeding and driving without due care. These followed his arrest after a high speed pursuit by police. Upon apprehension the police required him to submit to an alcotest. The respondent refused and was charged with an offence against s 47E(3) Road Traffic Act 1961 (“RTA”) in these terms:
Count 6.On the second day of April 2002 at Bordertown in the said state being a person who was required under section 47E of the Road Traffic Act 1961 to submit to an alcotest refused to comply with all reasonable directions of a member of the Police Force in relation to the requirement.
Before the magistrate the objective elements of the offences were not in dispute. Psychiatric evidence was provided to the effect that at the time of all the charged conduct the respondent was in a psychotic state consequent upon the condition of schizophrenia. In respect of all the charges, bar count 6, the prosecution accepted that the respondent was not mentally competent at the time of the conduct and should be dealt with in accordance with Part 8A CLCA, being the mental impairment provisions.
The submission on behalf of the police that count 6 stood differently rested on the terms of s 47E(4), (5) and (5a) of the RTA. It was argued that subsections (4) and (5a) operate to exclude the mental competence provisions of the CLCA, because together they provide the only means by which a refusal or failure to comply with a requirement or direction to submit to a test could be excused on the basis of a medical condition. Those subsections were, at the relevant time, as follows:
47E.   (4)     It is a defence to a prosecution under subsection (3) that—
(a)the requirement or direction to which the prosecution relates was not lawfully made; or
(ab)the person was not allowed the opportunity to comply with the requirement or direction after having been given the prescribed oral advice in relation to—
(i)the consequences of refusing or failing to comply with the requirement or direction; and
(ii)the person's right to request the taking of a blood sample under section 47F; or
(b)there was, in the circumstances of the case, good cause for the refusal or failure of the defendant to comply with the requirement or direction.
(5)     No person is entitled to refuse or fail to comply with a requirement or direction under this section on the ground that—
(a)the person would, or might, by complying with that requirement or direction, furnish evidence that could be used against himself or herself; or
(b)the person consumed alcohol after the person last drove a motor vehicle or attempted to put a motor vehicle in motion and before the requirement was made or the direction given.
(5a)   A person may not raise a defence that the person had good cause for a refusal or failure to comply with a requirement or direction under this section by reason of some physical or medical condition of the person unless—
(a)a sample of the person's blood was taken in accordance with section 47F; or
(b)    the person made a request as referred to in section 47F(2), but—
(i)a member of the police force failed to facilitate the taking of a sample of the person's blood as required by that section; or
(ii)a medical practitioner was not reasonably available for the purpose of taking such a sample; or
(c)the taking of a sample of the person's blood in accordance with section 47F was not possible or reasonably advisable or practicable in the circumstances by reason of some physical or medical condition of the person.
(emphasis added)
I note that these provisions have changed since 2002, but the changes are not significant in terms of this argument. Also, provisions comparable to subsections 4(b) and (5a) have been introduced to apply to persons required to submit to drug screening tests, oral fluid analysis or blood tests: s 47EAA(10)(c) and (14) RTA.
Parliament has not, in the subsections set out above, explicitly provided that a person charged with a s 47E offence is denied resort to Part 8A CLCA. The appellant argues that it has done so by implication, that implication flowing from the comprehensive way in which it has stipulated the circumstances under which a medical condition could excuse conduct. In effect, the appellant puts that the words of subsection (5a) operate to cover the field of defences based on medical or physical grounds.
In order for the appellant’s argument to succeed it must, for a start, be demonstrated that the terms of these subsections (and particularly subsection (5a)) are capable of applying to a person in the respondent’s position. In order to reach that point it is necessary first to classify mental incompetence as a “defence”, then to see schizophrenia as a type of “medical condition” and finally to find that the expression “good cause” is compatible with the notion that a psychotic state led to the refusal.
But even if subsection (5a) is capable of applying to the respondent, it must further be shown that Parliament intended in enacting subsection (5a) to exclude Part 8A.
Analysis
The argument proceeded on the basis that an offence against s 47E is one of strict responsibility and that mens rea need not be proved. It was further assumed that generally speaking, a defendant may answer a charge for an offence of strict responsibility by asserting that the act was involuntary, or with a plea of mental incompetence. These assumptions are well supported by authority: Gilles, P, Criminal Law, 4^th ed, Law Book Company, 1997, p 81-96; Howard, C, Strict Responsibility, Sweet & Maxwell, 1963, Ch 9; Meertens v Falkenberg (1981) 92 LSJS 202.
I turn first to the question of whether mental incompetence is a “defence” as that word is used in s 47E(5a). Mental incompetence comprehends and expands upon the common law notion of insanity. Insanity was traditionally seen as a defence. The ambit of the word “defence” can change depending on its context. I note that s 269E(1) CLCA refers to the defendant raising “a defence of mental incompetence”. I do not think that for this purpose there is any need to confine the meaning of the word to those defences such as provocation, necessity and duress which stand outside the elements of a charge. Therefore I am prepared to find that “defence” as used in this context comprehends mental incompetence.
The next question is whether “medical condition” includes a psychiatric condition such as schizophrenia. In everyday speech the expression “medical condition” is often used in contradistinction to the expression “psychiatric condition”. However, dictionary definitions of “medical” do not support such a distinction. For example, Onions, CT (ed), The Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1987, defines “medical” as:
1.Pertaining to the healing art or its professors; also, pertaining to ‘medicine’, as distinct from obstetrics, surgery, etc. b. Of diseases: Requiring medical as distinct from surgical treatment or diagnosis …
Moreover, the expression occurs in the phrase “some physical or medical condition” and that could support the view that it is used in such a way as to cover the field of all conditions, apart from those which are physical in nature. (Although I acknowledge that the expression “physical” probably takes in permanent as opposed to transient conditions associated with illness.) I am prepared to find that “medical condition” includes a psychiatric or mental condition. It appears that Nyland J in Police v Wilkey (2004) 89 SASR 460 proceeded on that assumption.
I turn to the question of whether psychosis consequent upon schizophrenia leading to a refusal to submit to an alcotest could amount to “good cause” for that refusal. In my view it is one thing to suggest that that psychosis might explain a refusal or failure to submit, but it is another to assert that it provides good cause. The expression is such as to connote a process of analysis or reasoning leading to a refusal, or a deliberation about the refusal. That could be contrasted with the lack of understanding or awareness or lack of control more commonly associated with mental illness.
In Bottomley v Symons (1982) 31 SASR 18 the Full Court considered the meaning of good cause as used in an earlier version of this subsection of 47(e) RTA. There the appellant had refused to submit to an alcotest and contended that good cause for that refusal was found in his belief that the insulin in his system by reason of his being a diabetic would produce a falsely positive result and lead to a charge of an offence involving alcohol. Both King CJ and Wells J, Jacobs J agreeing, held that the expression “good cause” connoted something more than a belief entertained without any reasonable basis. In Daire v Rollins (1982) 30 SASR 156 Mitchell J, with whom King CJ and White J agreed, upheld a magistrate’s finding that good cause was constituted by the defendant quite reasonably suspecting on the basis of things said that the police were deliberately denying him his right to a blood test. In Bormannv Coldwell (1986) 43 SASR 297 the appellant justified his refusal to submit to a breath analysis test by reason of his wish to obtain legal advice as to his obligations. Von Doussa J found that such a reason for refusing was not “good cause”.
In Czerwinski v Hayes (1987) 47 SASR 44 the Full Court held that a reasonable belief that consumption of liquor after driving might increase a blood alcohol concentration to the prescribed concentration is capable in law of amounting to good cause for refusing to submit. King CJ made the following observations at 45:
The phrase “good cause” is one of wide import. I see no reason to circumscribe its meaning as has been done with the phrase “without reasonable excuse” under the corresponding English provision: R v Lennard [1973] 1 WLR 483; R v John [1974] 1 WLR 624. The phrase is wide enough to comprehend any fact or combination of facts which reasonably commend themselves to the court, subject only to any limitation arising necessarily from the language or evident purpose of the section, as good cause for a person to refuse to comply with a requirement or direction.
Whilst I acknowledge the force of these observations as to the width of the expression and the need to approach each matter in terms of its own facts, I remain of the view that the expression is incompatible with a refusal to submit being a product of psychosis. In support of that I note that in each factual situation examined in these cases the court was concerned with a deliberate decision by the driver made after an analysis of the situation he faced.
My tentative view is, then, that the defence provided by s 47E(4)(b) and (5a) is not available to a person whose refusal is explicable by reference to psychiatric ill health. If that is so then it is apparent that Parliament, in introducing 47E(5a), did not intend to provide for all circumstances in which a failure to submit could be excused by reference to a medical condition.
I am fortified in that view by reference to observations made by King CJ in Meertens v Falkenberg, which I mentioned earlier. In that case the Full Court was concerned with an appeal from a single judge of this court who had set aside a magistrate’s acquittal of a man for refusing to submit to a breath analysis. The case was decided in the context of an earlier version of s 47E RTA. The essential difference, for these purposes, was that under the then s 47e(4) the availability of the defence of “good cause” was not restricted by the current s 47E(5a). There, the appellant had been the driver of a vehicle which had collided with a fence. Police found the appellant seated in the drivers seat. He was taken to the police station and directed to blow into a breath analysis instrument. He swore at the officers and did not comply. The appellant contended that he had suffered concussion in the collision and called evidence as to the observations by a doctor of injuries to his forehead, as well as expert neurological evidence. The magistrate chose to treat the defence as an attempt to make out “good cause” for the defendant’s failure to comply and then acquitted him on that basis.
The Full Court unanimously reinstated the magistrate’s acquittal, but not on the basis of the defence of “good cause”. Sangster J, with whom Legoe J agreed, found that the prosecution had failed to establish that the appellant had knowingly and wilfully refused the request or direction by the police officer. King CJ reached a similar conclusion. His Honour said, at 202-203:
The offence of refusing (or for that matter failing to comply) with a requirement or direction cannot be committed unless the person required or directed is capable of understanding and considering the request. The refusal or failure to comply contemplated by the section is a deliberate act or omission and involves a conscious decision by a person who has heard and understood the requirement or direction. This was the issue in the case. If the appellant was not able, by reason of concussion, to understand and consider the directions given to him by the police officer, there was no refusal and it is unnecessary to consider the defence of good cause.
In my view this case is clear authority for the proposition that, at least as the section stood in 1979, the offence of refusing or failing to submit to an alcotest or breath analysis required proof by the prosecution of a voluntary act and, the defence of insanity would have been available.
The question then is whether the more recent amendments to the section have changed the position. I earlier set out s 47E(5a). The subsection has the effect of restricting and regulating the circumstances in which a person can justify his refusal or failure to comply by reference to good cause, where that cause arises from a physical or medical condition. In my mind there is no reason to apprehend that in seeking to more closely circumscribe such opportunity the Parliament also aimed to deny to a defendant resort to a plea of mental incompetence. That would be a significant change. If it intended to do so then I think plain words demonstrating its will would have been chosen. The amendment seems to me to be addressing quite a different perceived problem, namely the situation where a driver is by reason of a physical condition or ill health unable to comply with the direction, but yet is able to provide a sample of blood.
Therefore, my decision rests not only upon my perception that the words “good cause” are not apt to apply to a refusal consequent upon a psychosis, but also on my conclusion that no clear intention is evinced by the language or content of s 47E(5a) to exclude the general criminal defence, now called mental incompetence.
I might add that the brief reference in Hansard to subsection (5a) does nothing to support the appellant’s argument: South Australia, Parliamentary Debates, House of Assembly, 8 September 1993, 642. The work of the subsection is exemplified by reference to a driver who has undergone a tracheotomy and is “physically unable to supply a sample of breath”.
Counsel for the appellant, Mr Jacobi, suggested that policy reasons were a factor favouring a conclusion which denied to a person such as the appellant the benefit of a mental incompetence defence. It is true that the object of sections such as this is to control risks to public safety presented by drug affected drivers. There is a need to regulate persons suffering from psychiatric conditions by requiring them to submit to analysis, just as there is in relation to other road users. But such policy reasons apply without discrimination to the offence under consideration and to other offences provided by the RTA. If it is accepted that a defence of mental incompetence is available for persons charged with such offences as speeding, or driving whilst affected by alcohol, then why should it be denied to a person charged with refusing to submit to an alcotest? The policy reasons mentioned do not seem to me to advance the appellant’s argument.
Conclusion
In my view it was open to the respondent to raise a Part 8A CLCA defence to the s 47E(3) charge of refusing to submit to an alcotest. I would uphold the magistrate’s decision. The appeal is dismissed.