Police v Parker

[2013] NSWLC 10

Local Court

New South Wales

Medium Neutral Citation:	Police v Parker [2013] NSWLC 10
Hearing dates:	15/01/2013
Decision date:	22 January 2013
Before:	Magistrate Bone
Decision:	The accused was an "accident patient" within the meaning of the Road Transport (Safety and Traffic Management) Act. The certificates as to the taking of a blood sample and its analysis are to be admitted into evidence.
Catchwords:	EVIDENCE - admissibility of certificates as to the taking of a blood sample and its analysis - taking of blood sample from an "accident patient" under the Road Transport (Safety and Traffic Management) Act - whether the accused an "accident patient"
Legislation Cited:	Road Transport (Safety and Traffic Management) Act 1999
Cases Cited:	Bell v Wood (1989) 15 NSWLR 708 Fenton v J Thorley & Co Ltd [1903] AC 443
Category:	Procedural and other rulings
Parties:	Police David Mervyn Parker (the accused)
Representation:	Det Const C Mortimer (for the prosecution) Mr P Bevan (for the accused)
File Number(s):	2012/259416

Judgment

Reasons for Decision

1. It is alleged against David Mervyn Parker that he drove a motor vehicle at Araluen on 3 March 2012, while there was present in his blood the middle range prescribed concentration of alcohol. It is the prosecution case that a sample of the accused's blood was taken by a nurse at Braidwood Hospital and that evidence relating to that sample and its analysis should be admitted into evidence. The defence have objected to the admissibility of that evidence.

The facts

1. The facts which I accept for the purposes of determining the admissibility of the evidence are as follows. Sometime between 7pm and 7.30pm on Saturday 3 March 2012, the accused attempted to drive a motor vehicle through a creek which flows across a minor road near Araluen. The vehicle had traversed the creek successfully some time earlier but there had been heavy rain in the meantime, the water was deeper and faster than the accused had expected and the vehicle stalled because of the water. The accused and passengers alighted from the vehicle but were in dire straits. As it turned out one passenger died. The accused climbed onto a tree and was there for some time before he was rescued. He was subsequently taken to Braidwood Hospital and was admitted suffering from hypothermia. At 11.20pm a nurse, Janine Bradley, took a blood sample from the accused and that sample was subsequently analysed by Diana De Losa.

1. The prosecutor seeks to have certificates completed by Ms Bradley and Ms De Losa admitted into evidence. The accused opposes this course arguing that Ms Bradley did not have the right to take the sample because the accused was not an "accident patient".

The approach

1. The first thing which the court needs to address in the current circumstances is whether the sample was taken in accordance with the relevant statutory provisions. If it was, the evidence is admissible.

Relevant statutory provisions

1. The relevant statutory provisions are to be found in Division 4 Part 2 of the Road Transport (Safety and Traffic Management) Act 1999. Parts of those provisions are as follows:

20 Blood samples to be taken in hospitals from accident patients

(1) In this section, "accident patient" means a person at least 15 years of age who attends at or is admitted into a hospital for examination or treatment in consequence of an accident on a road or road related area (whether in New South Wales or elsewhere) involving a motor vehicle or other vehicle or a horse.

(2) Any medical practitioner by whom an accident patient is attended at a hospital is under a duty to take a sample of the patient's blood for analysis as soon as practicable.

(3) The medical practitioner is under a duty to take the sample whether or not the accident patient consents to the taking of the sample.

(4) If there is no medical practitioner present to attend the accident patient at the hospital, the blood sample is to be taken by a registered nurse who is attending the patient and who is accredited by a hospital as competent to perform the sampling procedures.

(5) This section does not require the taking of a sample of blood from an accident patient unless, at the time of the accident concerned, the accident patient was:

(a) driving a motor vehicle involved in the accident,

...

23 Analysis of samples of blood taken under this Division

(1) The medical practitioner or nurse by whom a sample of a person's blood is taken in accordance with this Division must:

(a) place the sample into a container, and

(b) fasten and seal the container, and

(c) mark or label the container for future identification, and

(d) give to the person from whom the sample is taken a certificate relating to the sample that contains sufficient information to enable the sample to be identified as a sample of that person's blood.

(2) The medical practitioner or nurse must, as soon as reasonably practicable after the sample is taken, arrange for the sample to be submitted to a laboratory prescribed by the regulations for analysis by an analyst to determine the concentration of alcohol in the blood.

...

(8) An analysis referred to in subsection (7) may be carried out, and any act, matter or thing in connection with the analysis (including the receipt of the sample of blood, or the portion of the sample of blood, to be analysed and the breaking of any seal securing the sample or portion) may be done, by a person acting under the supervision of an analyst, and in that event is taken to have been carried out or done by the analyst.

1. The defence argument, put simply, is that a blood sample which is taken purely for the purposes of the legislation is to be taken only in circumstances in which the person from whom the sample is taken is a person at least 15 years of age who attends at or is admitted into a hospital for examination or treatment in consequence of an accident on a road, and in this particular case there was no accident and the accused was not admitted for examination or treatment as a consequence of an accident.

Conclusion

1. There is no doubt that the incident in which the accused was involved was not what might be described as a typical motor vehicle accident. A typical motor vehicle accident is one in which two or more cars collide or one in which the driver of a car loses control and either hits something such as a tree or has his or her car roll over. It would be uncommon or even rare for a person to be admitted to hospital to be treated for hypothermia rather than injuries following an incident involving a motor vehicle.

1. The word "accident" is not defined in the Road Transport (Safety and Traffic Management) Act. It has numerous dictionary meanings including:

• an event that is without apparent cause or unexpected,
• an unintentional act,
• an unforeseen and unplanned event or circumstance, often with lack of intention or necessity. It usually implies a generally negative outcome which may have been avoided or prevented had circumstances leading up to the accident been recognized, and acted upon, prior to its occurrence,
• an unfortunate mishap; especially one causing damage or mishap.

1. In Fenton v J Thorley & Co Ltd [1903] AC 443, Lord Lindley said:

The word "accident" is not a technical legal term with a clearly defined meaning. Speaking generally, but with reference to legal liabilities, an accident means any unintended and unexpected occurrence which produces hurt or loss. But it is often used to denote any unexpected loss or hurt apart from its cause; and, if the cause is not known, the loss or hurt itself apart from its cause; and, if the cause is not known, the loss or hurt itself would certainly be called an accident. The word "accident" is also often used to denote both the cause and the effect, no attempt being made to discriminate between them. The great majority of what are called accidents are occasioned by carelessness; but, for legal purposes it is often important to distinguish careless from other unintended and unexpected events.

1. In determining the meaning of the word in relation to the Road Transport (Safety and Traffic Management) Act it is useful to consider the objects of the Act. The objects of the Act are outlined in s 3 and include the following:

(a) to provide for a system of safety and traffic management that is consistent with the uniform national approach envisaged by the agreements scheduled to the National Road Transport Commission Act 1991 of the Commonwealth,

(b) to re-enact with some modifications certain other provisions of the Traffic Act 1909 (as in force immediately before its repeal by the Road Transport Legislation Amendment Act 1999) relating to safety and traffic management.

1. In most circumstances an accident would be considered as something which, although it may have resulted from some carelessness or negligence, was not the result of a deliberate action. If one considers the objects of the Act, however, it would obviously be the case that a person who deliberately drove into a tree as a form of intended suicide, was injured and taken to hospital for injuries received upon impact would be an "accident patient".

1. An accident, for the purposes of the legislation, would include any unfortunate mishap involving a motor vehicle which resulted in the hospitalisation of a person as a result of that mishap. The stalling of the vehicle being driven by the accused came about because the vehicle was driven into water which, as it turned out, was too deep to allow the engine to keep running. This was an unfortunate mishap and it led to the accused's subsequent hospitalisation for hypothermia.

1. It could be suggested that, even though the stalling of the vehicle in the flooded creek was an accident, the accused's admission to hospital was not for examination or treatment of a condition that was a consequence of that accident. The issue of the link or connection between the accident and the condition was considered, at least peripherally, by Yeldham J in Bell v Wood (1989) 15 NSWLR 708. The facts in that case were that a motorist had driven into a parked car, had alighted from his car without injury, was then assaulted by an unknown person, sustained injury, was admitted to hospital and a blood sample was taken in compliance statutory provisions which then applied and which were identical to s 20 of the Road Transport (Safety and Traffic Management) Act. The driver was subsequently charged with driving under the influence of alcohol. The major issue under consideration was whether the driver had been charged with the appropriate offence. Yeldham J did, however, consider briefly the issue of the link or connection between the accident and the injuries for which treatment was required and said this. It was argued that:

.... There was sufficient proximity between the injuries suffered by the respondent and the motor vehicle accident. In that regard I would merely say that the findings of fact do not enable a conclusion to be drawn as to the person who committed the assault. Perhaps if it had been shown that it was the driver (or even a passenger) from the other vehicle the admission to hospital would be "in consequence of an accident involving a motor vehicle". The expression "in consequence of" normally denotes a form of causal relation.... However, in the present case the evidence is simply not sufficient.

1. In the present case, the accused became cold and was treated for hypothermia because of only one thing - his car had stopped in a flooded creek and the conditions were inhospitable. There was a causal relationship between the accident and the admission into the hospital.

1. I am satisfied that the accused was an "accident patient" and the certificates of the nurse and the analyst will be admitted into evidence.

Magistrate C Bone

Queanbeyan Local Court

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Editorial note: The accused was subsequently convicted, fined $500 and disqualified from driving for a period of 6 months. On 11 September 2013, on appeal to the District Court, the accused was found guilty but without proceeding to conviction was directed to enter into a good behaviour bond for two years pursuant to section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999.

Decision last updated: 16 September 2013