Police v Ioannou - [2010] NTMC 16

CITATION: Police v George Ioannou [2010] NTMC 016

PARTIES: STUART AXTELL DAVIS

GEORGE IOANNOU

TITLE OF COURT: Court of Summary Jurisdiction

JURISDICTION: Criminal

FILE NO(s): 20833154

DELIVERED ON: 15 March 2010

DELIVERED AT: Darwin

HEARING DATE(s): 10 August 2009 & 2 March 2010

JUDGMENT OF: Ms Sue Oliver SM

CATCHWORDS:

CRIMINAL LAW – drink driving – breath analysis tests - blood tests - Bunning v Cross discretion.

Traffic Act ss 29AAD; 29AAE

REPRESENTATION:

Counsel:
Complainant: DPP
Defendant: Woodcock Solicitors

Solicitors:
Complainant: Georgia McMaster
Defendant: Alan Woodcock

Judgment category classification: A
Judgment ID number: [2010] NTMC 016
Number of paragraphs: 16

IN THE COURT OF SUMMARY JURISDICTION
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA

No. 20833154
[2010] NTMC 016

BETWEEN:

POLICE
Complainant

AND:

GEORGE IOANNOU
Defendant

REASONS FOR DECISION

(Delivered 15 March 2010)

Ms Sue Oliver SM:
1. The defendant is charged with two drink driving offences under the Traffic Act. At the conclusion of the prosecution evidence, the prosecution elected to proceed only on count 2, that is, driving a motor vehicle with a high range blood alcohol content namely, 0.150%. I declined to exercise what is commonly referred to as the Bunning v Cross discretion to exclude evidence of the blood alcohol reading which was sought to be given by way of certificates pursuant to s 29AAU of the Traffic Act. The exercise of the discretion was sought on the basis that the evidence disclosed that the defendant was given three opportunities to provide a sample of breath for analysis at the Darwin Watch House comprising an initial failure to provide a sufficient sample and then two successful analyses.
2. The evidence of the two police officers present in the breath analysis room was at variance as to what occurred following the initial failure. Constable Fowler, who was the breath analysis operator, said that he asked the defendant to supply another sample. That sample returned a result of .165%. Constable Fowler said that the defendant then asked if he could provide another sample and that as he was “well within his rights to ask for that”, a further opportunity was provided. The second reading was .150% and it is this reading and the certificate of that result pursuant to s 29AAU on which count 2 relies. Constable Burns’ evidence on the other hand was that it was the defendant who asked for a second opportunity following his initial failure and that Constable Fowler allowed him to have the second go. Constable Burns said that he disagreed with Constable Fowler’s decision.
3. The Bunning v Cross discretion was submitted to arise because there was no power under the Traffic Act to allow the defendant to provide a second sample of breath for analysis once he had failed to provide a sufficient sample. Section 29AAD provides for the giving of a further breath analysis. Section 29AAD(1) gives power to a police officer to require a second breath analysis when a person has provided a sufficient sample of breath 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 Ioannou

Details

AGLC: Police v Ioannou [2010] NTMC 16
Case: [2010] NTMC 16
Decision Date: 15 March 2010

CaseChat Overview and Summary

In the Court of Summary Jurisdiction at Darwin in the Northern Territory of Australia, the defendant, George Ioannou, was charged with two drink driving offences under the Traffic Act. The case, Police v George Ioannou, was presided over by Ms. Sue Oliver, SM. The primary legal issue before the court was whether the discretion under Bunning v Cross should be exercised to exclude evidence of the defendant's blood alcohol content obtained through a breath analysis. The prosecution had decided to proceed only on count 2, which alleged that the defendant drove with a high range blood alcohol content of 0.150%.

The court examined the evidence regarding the defendant's breath analysis. Two police officers provided differing accounts of the events following the defendant's initial failure to provide a sufficient breath sample. The court ultimately found Constable Fowler's account more reliable and accepted that he asked the defendant for a second breath analysis sample. This was deemed permissible under the Traffic Act, as the Act allows for a further breath analysis upon a person's request after receiving the result of the initial analysis. The court concluded that the defendant's legal position was not disadvantaged by this request, as he could have been charged with failing to provide a sufficient sample of breath if he had not been given a second opportunity.

The court declined to exercise the Bunning v Cross discretion to exclude the evidence, finding that the police officer's conduct, while not authorized by the Act, did not result in any unfair or improper disadvantage to the defendant. The court found the defendant guilty of driving with a high range blood alcohol content.

Orders