Police v Wilson
[2024] ACTMC 21
•23 September 2024
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Police v Wilson |
Citation: | [2024] ACTMC 21 |
Hearing Dates: | 30 July 2024 |
Decision Date: | 23 September 2024 |
Before: | Magistrate Temby |
Decision: | See [137] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – EVIDENCE – ADMISSILITY – application to exclude evidence under section 138 of the Evidence Act 2011 – Driving offences – interpretation of sections 13A, 13D, 13E and 14 of the Road Transport (Alcohol and Drugs) Act 1977 |
Legislation Cited: | Road Transport (Alcohol and Drugs) Act 1977 ss 8, 13A, 13D, 13E, 13G, 13H, 14, 14, 20 Evidence Act 2011 (ACT) ss 138 Crimes Act 1900 (ACT) s 212 Legislation Act 2001 ss 139, 142 Road Transport (Alcohol and Drugs) Legislation Amendment Act 2010 Road Transport (General) Act 1999, Dictionary Road Transport (Alcohol and Drugs) Amendment Act 2014 Motor Traffic (Alcohol and Drugs) Ordinance 1977 s 8 Motor Traffic (Alcohol and Drugs) (Amendment) Ordinance 1982 |
Cases Cited: | Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 R v Daley (2002) 132 A Crim R 169 DDP (Vic) v Marjanevic (2011) 33 VR 440 Bunning v Cross (1978) 141 CLR 54 at 74 |
Texts Cited: | Report of the House of Representatives Standing Committee on Road Safety, May 1980, ‘Alcohol, Drugs and Road Safety’ Explanatory Statement, Road Transport (Alcohol and Drugs) Amendment Bill 2013 The Australian Law Reform Commission Report (No 4), ‘Alcohol, Drugs and Driving’ Explanatory Statement, Road Transport (Alcohol and Drugs) (Random Breath Testing) Amendment Bill 2009 |
Parties: | Dean Leeson (Informant) Bradley Wilson ( Defendant) |
Representation: | Solicitors Director of Public Prosecutions Aboriginal Legal Services ( Defendant) |
File Number: | CC 2023/7920 |
MAGISTRATE TEMBY:
Introduction
1․On 2 June 2023, Mr Wilson, the Defendant, was driving his motor bike up and down Appleford Circuit in Jacka. Mr Wilson lived on that street.
2․One of Mr Wilson’s neighbours complained to police about his conduct, which resulted in Detective Acting Sergeant Leeson (DAS Leeson) attending the location. He arrived at approximately 9.45 p.m. He was in an unmarked police vehicle.
3․DAS Leeson saw Mr Wilson driving his motor bike as described. Mr Wilson was not wearing a helmet and did not have his lights on, even though it was dark. Mr Wilson drove past DAS Leeson’s vehicle twice. DAS Leeson estimated that he saw Mr Wilson drive approximately 50 metres.
4․DAS Leeson activated his lights so that Mr Wilson would pull over, which he did. He stopped on the street outside his house and walked his bike up onto the nature strip outside his house.
5․DAS Leeson obtained Mr Wilson’s details. Despite this, Mr Wilson asked if he could go inside his house to obtain proof of his identity. DAS Leeson said that that was not necessary but did not stop him doing so. Mr Wilson returned around 45 seconds later with a proof of identity card.
6․DAS Leeson undertook certain enquiries of police indices with respect to Mr Wilson, which he confirmed through Police Operations. These enquiries revealed that Mr Wilson’s licence had been disqualified and that he was subject to a Good Behaviour Order.
7․DAS Leeson placed Mr Wilson under arrest. He did so at approximately 9.50 p.m. He informed Mr Wilson that he was under arrest for driving while disqualified and gave him a caution.
8․Another police vehicle conveyed Mr Wilson to the City police station. DAS Leeson requested that Mr Wilson be subject to a drug test. DAS Leeson explained that he could not perform a drug test himself as he was not a prescribed person. He did not tell Mr Wilson that he would be required to undergo a drug screening test.
9․DAS Leeson was aware that there were statutory restrictions which limited the power of police to require a person to undergo a drug screening test. He identified one such restriction, which was that the test needed to be undertaken within a two hour period and stated that he was aware of others. He indicated that those restrictions weren’t applicable to his actions because he had not required Mr Wilson to undergo a test.
10․At approximately 10.20 p.m. First Constable Cavana (FC Cavana) was tasked with attending the City police station to conduct a drug screening test on Mr Wilson. FC Cavana was aware that Mr Wilson had been arrested for driving a motor vehicle whilst being disqualified.
11․FC Cavana arrived at the City police station at approximately 10.30 p.m. He required Mr Wilson to undergo a drug screening test in accordance with his directions. This occurred between 10.30 p.m. and 10.35 p.m, around 45 minutes after Mr Wilson had alighted from his motor bike.
12․The screening test resulted in a positive indication to a prescribed drug, being methylamphetamine. FC Cavana advised Mr Wilson of the result and said that further analysis would be conducted. He escorted Mr Wilson into the oral fluid analysis room within the City police station.
13․At approximately 10.46 p.m. FC Cavana gave Mr Wilson a direction to provide a sample of his oral fluid in accordance with his directions, which Mr Wilson did. Laboratory analysis of that sample confirmed the presence of methylamphetamine and also detected delta-9-tetrahydrocannabinol (cannabis).
14․Mr Wilson was charged with driving a motor vehicle with a prescribed drug in his oral fluid, contrary to s 20 of the Road Transport (Alcohol and Drugs) Act 1977 (Alcohol and Drugs Act).
Objections to evidence made under s 138 of the Evidence Act 2011
15․Mr Wilson objects to the admissibility of all evidence led or tendered at the hearing with respect to the requests made of him to undergo drug tests and of the results of those tests. He seeks the exclusion of that evidence under s 138 of the Evidence Act 2011 (Evidence Act).
16․Mr Wilson has made a number of discrete objections, however the central thrust of Mr Wilson’s submission is that, if he was going to be required to undertake a drug screening test, that requirement needed to be made once he alighted from his motor bike. He says that the legislative scheme did not permit that requirement to be made once he was brought to the police station, and that the results of tests undertaken there were obtained in contravention of the Alcohol and Drugs Act.
17․His objections gave rise to a number of issues with respect to the interpretation of the Alcohol and Drugs Act, namely:
(a)How should s 13A(1)(a)(i) be interpreted and, in particular, is it limited in its application to roadside testing of drivers?
(b)How should the words ‘shortly before’ in s 13A(1)(b) be interpreted?
(c)How is s 13D of the Act to be interpreted when a person is already in custody?
(d)Is there a source of authority, other than s 13E, to require a person to provide a sample of oral fluid for analysis?
(e)Does s 14(3)(c)(iii) limit when screening tests can be undertaken in all cases where a driver alights at their place of residence, or is it limited in its application to circumstances where the requirement to take a test is made while the person remains at their place of residence.
18․A further issue that was raised, the importance of which depends on the answer to the first of the above issues, is how is the test in s 13A(1)(b) to be applied in circumstances where there is no evidence that FC Cavana held the relevant suspicion identified in that provision before requiring Mr Wilson to undergo a drug screening test.
19․I also raised with the parties whether there was an issue with respect to the lawfulness of Mr Wilson’s arrest, in circumstances where DAS Leeson did not give any evidence as to having turned his mind to whether proceeding by summons would not achieve one of the purposes set out in s 212(1)(b) of the Crimes Act 1900 (Crimes Act). However, neither party submitted that I should make a finding that Mr Wilson’s arrest was unlawful and I have not considered this issue any further.
Interpretation of the scheme
Approach to statutory interpretation
20․As the High Court stated in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, at [69]:
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute (See Taylor v Public Service Board (New South Wales) [1976] HCA 36; (1976) 137 CLR 208 at 213 per Barwick CJ). The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole” [Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 at 320 per Mason and Wilson JJ; see also South West Water Authority v Rumble’s [1985] AC 609 at 617, per Lord Scarman, “in the context of the legislation read as a whole]. In Commissioner for Railways (NSW) v Agalianos [(1955) [1955] HCA 27; 92 CLR 390 at 397], Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
21․Consistently with these observations, ss 139 to 142 of the Legislation Act 2001 provide that, in working out the meaning of an Act:
(a)the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation;
(b)the provisions of the Act must be read in the context of the Act as a whole; and
(c)regard may be had to material not forming part of the Act, including any explanatory statement for the bill that became the Act and the presentation speech made to the Legislative Assembly during the passage of the relevant bill.
Relevant aspects of legislative scheme for drug testing drivers
22․The Alcohol and Drugs Act provides police with a number of powers with respect to the testing of drivers of motor vehicles for alcohol and drugs. It is not in dispute that a motor bike is a motor vehicle.
23․The relevant aspects of that scheme that apply in this case concern the powers given to police and the processes to be followed, in order to test a driver, who has not been involved in an accident, for the presence of drugs in their system. References to particular provisions in these reasons are to provisions of the Alcohol and Drugs Act unless otherwise stated.
Screening tests
24․Section 13A gives police officers the power to require a person to undergo drug screening tests. Section 13A(1) provides for two circumstances when the requirement may be made:
(a)if the person is the driver of a motor vehicle on a road; or
(b)if the police officer has reasonable cause to suspect that, shortly before the requirement is made, the person was the driver of a motor vehicle on a road.
25․A person required to undergo a drug screening test must remain at the place where the test is being carried out until the test is completed: s 13A(2)
26․Further, if a drug screening device is not immediately available and the police officer has reasonable cause to suspect that the person has a drug in their system, the police officer may direct the person to remain at the place where the drug screening test is to be carried out for the time reasonably necessary for a drug screening device to be made available and the test to be completed, provided the time does not exceed 30 minutes: s 13A(3).
Confirmatory tests
27․If the drug screening test indicates that a prescribed drug is in the person’s oral fluid, the police officer may take the person into custody: ss 13D(1) and (2). If the person is taken into custody, a police officer must take the person to a police station or other convenient place (for example, a police vehicle) as soon as practicable in order to carry out an oral fluid analysis for the person: s 13D(3).
28․A person who has been taken into custody under s 13D must give a sufficient sample of the person’s oral fluid for oral fluid analysis: s 13E(1). An authorised operator must carry out an oral fluid analysis on a part of the sample: s 13E(2); and provide the person with a statement regarding the results of the analysis (eg., a print-out from the oral fluid analysis instrument): s 13E(6).
29․The authorised operator must seal the other part of the sample: s 13E(5); which is then sent to an approved laboratory for analysis: s 13G(1) to (3). A statement is given to the person with the results of the analysis: s 13H.
30․Section 13E was inserted into the Alcohol and Drugs Act by the Road Transport (Alcohol and Drugs) Legislation Amendment Act 2010. The Explanatory Statement to the Road Transport (Alcohol and Drugs) Legislation Amendment Bill 2010 explained that the primary purpose of the provision was to ensure that prosecutions are based on the results of laboratory results rather than results from on-site oral fluid analysis instruments.
Restrictions on testing
31․Section 14 imposes certain restrictions on a police officer’s power to require a person to undergo a screening test under s 13A or to provide a sample of their oral fluid for analysis under s 13E.
32․As identified in DAS Leeson’s evidence, one restriction is that the requirement cannot be made if more than two hours have elapsed since the person ceased to be the driver of the motor vehicle: s 14(1)(b).
33․Another restriction is that a requirement cannot be made of a person who is at the place where the person usually lives unless the requirement is made immediately after the motor vehicle driven by the person has stopped at or near that residence and the police officer making the requirement followed the motor vehicle while it was being driven on the road: s 14(3)(c)(iii).
Answers to issues raised by Defendant’s objections
How should s 13A(1)(a)(i) be interpreted and, in particular, is it limited in its application to roadside testing of drivers
34․Both parties submit that s 13A(1)(a)(i) should not be interpreted literally – that is, that it is not limited in its application to circumstances where a police officer requires a person to undergo a screening test at the time that the person is the driver of a car.
35․In support of that interpretation, the Prosecution points to the comments made in the Explanatory Statement for the Road Transport (Alcohol and Drugs) Legislation Amendment Bill 2011, which amended s 13A of the Alcohol and Drugs Act to allow for the detention of drivers. It said: ‘A detention power is essential as the tests are not conducted in the person’s vehicle’.
36․This commentary, and the detention power itself, address a slightly different issue, which is where a screening test is to be undertaken, rather than the location of the driver at the time a requirement to undergo a screening test is made. The commentary leaves open the possibility that the requirement to undergo a screening test might be made while a person is in their vehicle, albeit that it is not expected that the test would be conducted there. The commentary also indicates there is a close connection, in time and space, between the person being in the vehicle, the requirement for the screening test being made and the conduct of the test.
37․Mr Wilson submits that s 13A(1)(a)(i) is temporarily limited in its application such that it captures persons who were driving ‘immediately previously’ to the requirement for a test being made, for example, a person who is required to undergo a screening test when stopped on the roadside.
38․The Prosecution submits that the provision relates to scenarios where a police officer ‘has direct evidence for, or observations of, a person being the driver of a motor vehicle’, for example when a police officer pulls over a vehicle and observes a person behind the wheel.
39․I do not accept the Prosecution submission that the provision could extend to circumstances where a police officer has evidence of a person driving that does not come from their direct observation. They would then be relying on the ‘reasonable cause to suspect’ test in s 13A(1)(b).
40․That submission aside, there is not much difference between the parties’ positions. Both of the examples identified by the parties concern a police officer pulling a person over, having observed them driving. I agree that that is how s 13A(1)(a)(i) must be interpreted.
41․It may be that the person ‘is’ the driver of the vehicle at the time they are pulled over, at least if the car remains running, given that the definition of ‘drive’ includes ‘be in control of the steering, movement or propulsion of the vehicle’ (Road Transport (General) Act 1999, Dictionary). A person who is driving a vehicle does not stop being a driver when they bring their car to a halt at a set of traffic lights and I do not consider that any different view should be taken of a person who pulls over to the side of the road for a random drug and alcohol test.
42․On that view, the literal interpretation of s 13A(1)(a)(i) would make sense because the requirement to undergo a screening test would be made while the person is still the driver of the vehicle, even if the test is to be taken once the person ceases to be the driver. Nevertheless, I agree with the parties that the exercise of the power in s 13(1)(a)(i) should not be limited to circumstances where a requirement is made while a person is driving, and extends to circumstances where the person has stopped the vehicle. This is consistent with s 14(3)(c)(iii), which contemplates a requirement being made immediately after a motor vehicle being driven by a person stops at or near their residence.
43․The difference between the parties is that the Defendant argues that the requirement to undergo a screening test must be made at the time of driving or immediately after, whereas the Prosecution’s position is that, so long as the police officer has observed the person driving, the requirement to undergo the test need not be made at that point.
44․I agree with the Defendant that the requirement must be made at the place where the person is pulled over. The provision gives a police officer the power to require someone to undergo a drug screening test where a person ‘is’ the driver of a vehicle. As the parties accept, the requirement need not be made at the time the person remains the driver, but the language of the provision points to a degree of temporal immediacy.
45․Further, it is clear from the interaction between ss 13A, 13D and 13E that the power to require a person to undergo a screening test under s 13A (whether under s 13A(1)(a) or s 13A(1)(b)) is to be made where the police officer comes across the person. At least in relation to s 13A(1)(a), this will be roadside, given the requirement for the police officer to have observed the person driving. Given the legislative history of the provision, it appears that the power provided for in s 13A(1)(b) must be exercised roadside as well.
46․Subsections 13A(2), 13A(3) and 13D identify how the testing process is to progress. The police officer having made the testing requirement, ss 13A(2) and (3) require the person to remain at the place where the testing is being carried out until it is completed, and give the police officer the power to direct the person to remain at the place where the drug screening test is to be carried out if a screening device isn’t immediately available.
47․There is no power to require a person to whom a screening testing requirement has been made to go anywhere. Accordingly, the place where the drug screening test is to be carried out must, at least in the case of a requirement issued under s 13A(1)(a), be at or near the person’s motor vehicle (unless, perhaps, the person voluntarily agrees to go somewhere else). It is only if a person returns a positive result to the drug screening test that the person may be taken into custody under s 13D.
48․This interpretation is supported by the Explanatory Statement for the Road Transport (Alcohol and Drugs) Amendment Bill 2013, being the bill to the Road Transport (Alcohol and Drugs) Amendment Act 2014, which introduced what is now s 13A(3) (then s 13A(2)). The Explanatory Statement stated that the purpose of the provision was to:
Create a power for police officers to direct drivers to remain at the scene where they were originally pulled over by police for the purpose of an alcohol or drug screening test where a screening test is not immediately available or not in working order.
Currently police officers have no legislative power to require that a driver who they reasonable suspect of driving under the influence of drugs or alcohol must [sic] remain for a screening test if a screening device is not immediately available at the scene, or a device is not in working. Delays can occur if the screening device malfunctions, or a driver is stopped for some other purpose but the police officer subsequently suspects the driver has driven under the influence of drugs or alcohol but they do not have a screening device in their vehicle …
30 minutes has been identified as the preferred maximum period, as that would allow a drug screening device to be sourced from the Traffic Operations Centre in Belconnen … and delivered to any part of metropolitan Canberra where the driver has been directed to remain.
49․If a person is taken into custody, a police officer must then take the person to a police station or convenient place (such as a police vehicle) to carry out oral fluid analysis under s 13E. This provision emphasises the fact that s 13A is directed at the conduct of a roadside test. Section 13D does not envisage the person even being taken to a police vehicle until after a positive result has been obtained from the screening test and the person has been taken into custody.
50․The proposition that s 13A is directed at roadside screening tests is supported by a range of explanatory material that has been produced in relation to s 13A and s 8 (upon which s 13A was based), which has consistently referred to the powers in s 8 and s 13A as being directed at requiring people to undergo roadside screening tests.
51․The Prosecution points out that the word ‘roadside’ has never appeared in the Alcohol and Drugs Act (nor the original Motor Traffic (Alcohol and Drugs) Ordinance 1977 (Motor Traffic Ordinance). However, the scheme established by the legislation – for a person to be subject to a screening test, then taken into custody and conveyed to the police station or somewhere else convenient for a confirmatory test – is clearly, at least in relation to s 13A(1)(a), directed at roadside screening tests.
52․As the Prosecution notes, the Alcohol and Drugs Act was originally a Commonwealth ordinance, the Motor Traffic Ordinance. Like s 13A does now, section 8 of the Motor Traffic Ordinance permitted a police officer to require a person to undergo a screening test where the person is the driver of a motor vehicle or the police officer has reasonable cause to suspect that the person was, shortly before the requirement is made, the driver of a motor vehicle.
53․The additional requirement, at the time of the introduction of s 8, was that the police officer also have reasonable cause to suspect that the person have alcohol or a drug in their body. The Australian Law Reform Commission Report (No 4), ‘Alcohol, Drugs and Driving’, provides context for that requirement. The Foreword to the Report states:
This Report arises from a Reference which was occasioned by vexed problems in the application of the laws of the Australian Capital Territory designed to control the driving of motor vehicles, by persons who had consumed alcohol or other intoxicating drugs.
…
The present Ordinance provisions were introduced in 1971 following a Report by the Joint Parliamentary Committee on the Capital Territory. It was not long before serious deficiencies in the Ordinance were pointed out by the courts...
… A number of issues were posed by the Terms of Reference. The most controversial was undoubtedly whether ‘random tests’ should be introduced in the Capital Territory … In the result, the Commission does not recommend in favour of this facility … It is traditional in British societies, before police intervention into the ordinary conduct of citizens is tolerated, that some reasonable cause to warrant a suspicion on the part of the police officer is generally required …
.. This said, the Report contains large numbers of significant proposals to facilitate the work of the police in combating the problems of the intoxicated driver …
·Screening tests, that is to say simple roadside breath tests, should be introduced for the first time, to bring Canberra into line with every other part of Australia.
·…
·The criterion to permit police to submit drivers to testing should be made more simple. Nothing more should be required than a reasonable suspicion that the driver has alcohol in his body...
54․The Commission noted that, for the first time, it had the advantage of a joint session with Members of the Legislative Assembly of the Territory.
55․The introduction of s 8 of the Motor Traffic Ordinance should be understood in this context, in particular the recommendation of the Commission that legislation in the ACT provide for roadside breath screening tests.
56․As the Commission recommended in the report, s 8 did not provide for random breath tests, but instead required that the police officer exercising the power to require a person to undergo a screening test to suspect that the person had alcohol or a drug in their system. It sought to balance the objective of detecting persons who were driving with alcohol or a drug in their system with a concern for the rights and liberty of drivers.
57․Random breath testing was introduced in 1982, when the requirement for a police officer to suspect that a person had alcohol or a drug in his or her system was removed from s 8 by the Motor Traffic (Alcohol and Drugs) (Amendment) Ordinance 1982. The introduction of random breath testing had been recommended in the Report of the House of Representatives Standing Committee on Road Safety, May 1980, ‘Alcohol, Drugs and Road Safety’.
58․The Explanatory Statements to more recent amendments to the Alcohol and Drugs Act have continued to refer to the focus of ss 8 and 13A on roadside screening tests.
59․Mr Wilson points to the Explanatory Statement for the Road Transport (Alcohol and Drugs) (Random Breath Testing) Amendment Bill 2009 which, amongst other things, introduced the power for the Minister to approve a drug screening device. The Explanatory Statement said:
The intention of this Bill is to amend the Road Transport (Alcohol and Drugs) Act 1977 to allow for random roadside drug testing (RDT) to be conducted alongside or independent to random roadside breath testing (RBT) …
60․As noted earlier in these reasons, the Explanatory Statement for the Road Transport (Alcohol and Drugs) Amendment Bill 2013 noted the need for a power to direct drivers to remain ‘at the scene where they were originally pulled over by police’ for the purposes of an alcohol or drug screening test where a screening device is not immediately available or not in working order. Again, the intention that s 13A would be used for roadside screening tests is clear.
61․What is also clear is that there remained a continued focus on balancing the objective of detecting persons who are driving with alcohol or a drug in their system with a concern that police powers only impact on the liberty and human rights of drivers to the extent necessary to achieve that objective. The Supplementary Explanatory Statement to the Road Transport (Alcohol and Drugs) Amendment Bill 2013 noted that, in addition to limiting the period of time a person could be directed to remain at the location:
The concern that has been raised is that, in order to invoke the power to require the driver to remain for up to 30 minutes, while a screening device is obtained, there should be some circumstance that justifies the exercise of that power to avoid scope for an arbitrary exercise of the power.
…
The amendments to the Bill modify the amendments to sections 8 and 13A to provide that, where an alcohol or drug screening device is not immediately available, a police officer may only direct a driver to remain at the place where the screening test is to be conducted for the time (not exceeding 30 minutes) reasonably necessary for the screening test to be made available and the test to be completed, where the police officer has reasonable cause to suspect that the person has alcohol or a drug in the person’s body.
…
Roadside drug and alcohol testing is an integral part of the Government’s road safety strategy. The promotion of road safety through prevention of drink or drug driving is of high importance, given the well-known risks of death and injury associated with drink and drug impaired driving.
…
The limitation is directly relevant to the purpose of clarifying the power of police officers to require a person to remain to undertake a roadside screening test to enforce the drug and drink driving provisions of the road transport legislation.
It is considered that there are no less restrictive means reasonably available that would achieve the purpose of the amendment …
62․In my view, the drafting of s 13A (and s 8) reflects the intention of the legislature, which has remained consistent over time, to provide police with powers to detect persons who are driving with alcohol or a drug in their system, subject to limitations designed to ensure that the impact on the human rights of drivers is minimised. The scheme that was established was one that permitted police to subject drivers to roadside testing. While the scope of police powers has increased over time, the focus of the various iterations of the legislation has consistently remained on a scheme directed, in the first instance, at the testing of drivers roadside.
63․In my view, the application of s 13A(1)(a)(i) is limited to roadside screening tests of drivers by a police officer who has directly observed the person driving the motor vehicle.
64․I am also of the view that the power in s 13A(1)(b) is to be exercised when the person the subject of the requirement is roadside, although I do not rule out the possibility that its application could extend beyond the scene of the person’s car because, for example, a driver had alighted from their car and tried to leave the scene. Ultimately, s 13A(1)(b) is temporarily limited by the fact that the police officer must have reasonable cause to suspect that the person was the driver of a motor vehicle shortly before the requirement to undergo a screening test is made.
How should the words ‘shortly before’ in s 13A(1)(b) be interpreted?
65․The parties agree that the phrase ‘shortly before’ does not denote an exact period of time. The parties agree that the phrase is intended to accommodate the circumstances in which a police officer may have reasonable cause to suspect that a person was the driver of a motor vehicle.
66․I agree with the position taken by the parties.
67․I do not agree with Mr Wilson’s submission that the inclusion of the 30 minute period in s 13A(3) means that ‘shortly before’ in s 13A(1)(b) must mean less than 30 minutes. The two provisions are directed at different parts of the drug testing scheme. Paragraph 13A(1)(b) is directed at ensuring there is a close temporal connection between when the requirement to undergo a test is made and the time when the person was driving, in order to ensure that there is confidence that a positive test indicates that the person had the relevant drug in their system at the time they were driving. Subsection 13A(3) is simply the outer limit of the time that the legislature considered reasonable to have a person wait while a screening test device is obtained.
68․However long ‘shortly before’ might be in a particular case, if a police officer forms the relevant suspicion within that timeframe, the officer may require a person to undergo a test and, if one is not available, may require the person to remain where they are, for up to 30 minutes, while a drug screening device is made available. That is, one period of time follows the other.
69․Given the words used, being ‘shortly before’, and given the view I take that s 13A is directed at roadside screening tests, it seems to me that, ordinarily, it will encompass a period of time that is less than 30 minutes. Nevertheless, I agree with the Prosecution that the application of the phrase needs to be determined on a case-by-case basis having regard to the circumstances of each matter.
How is s 13D to be interpreted when a person is already in custody?
70․I agree with Mr Wilson’s submission that a person who is already in custody (in this case apparently as a result of DAS Leeson’s exercise of a power of arrest under s 212 of the Crimes Act) cannot be taken into custody. As a matter of logic, they are already in custody.
71․A person’s existing custody might be justified or continued for additional reasons, for example, on the basis of additional charges. However, it would not be correct to say that they had been ‘taken into custody’ for those additional reasons.
72․As I have noted, the scheme contemplated by the Alcohol and Drugs Act is one where a person undergoes a roadside screening test under s 13A, with the power to take them into custody arising if a positive screening test result obtained. The person may then be taken into custody for the purposes of undergoing oral fluid analysis. The scheme does not contemplate a requirement for a screening test being made once a person is already in custody.
73․While this interpretation may not seem to advance the general purpose of the Alcohol and Drugs Act which, relevantly, is to provide for the detection of people who drive motor vehicles after consuming alcohol or drugs and to deter such conduct by the creation of offences, the Act establishes a particular scheme by which tests are to be administered to detect such conduct. That scheme is one that starts with the requirement to undergo a screening test being made roadside.
74․It would be inconsistent with that scheme to permit a person to be subject to a requirement for a screening test when, as in this case, they are already in custody and have been conveyed to a police station. In addition, as discussed below, it would circumvent the operation of s 14(3)(c)(iii), when it is clear that the restriction provided for by that provision would have applied in this case had the power in s 13A been properly exercised roadside.
Is there a source of authority, other than s 13E, to require a person to provide a sample of oral fluid for analysis?
75․The parties agree that s 13E is the only provision which requires a person to provide a sample of oral fluid for analysis.
Does subsection 14(3)(c)(iii) limit when screening tests can be undertaken in all cases where a driver alights at their place of residence, or is it limited in its application to circumstances where the requirement to take a test is made while the person remains at their place of residence?
76․Mr Wilson submits that, because he was at the place where he usually lives when he was pulled over by DAS Leeson, any requirement that he undergo a drug test was required to be made immediately after the motor bike he was driving had stopped near his house. He relies on s 14(3)(c)(iii) in support of that submission.
77․The Prosecution’s submission at the hearing was that s 14(3)(c)(iii) has no application to the present case because DAS Leeson did not require Mr Wilson to undergo a drug screening test at his house. The Prosecution submitted that it is irrelevant that DAS Leeson pulled Mr Wilson over at his house when Mr Wilson was not required to undergo any form of drug testing until he was conveyed to the City police station.
78․However, in written submissions, the Prosecution submitted that s 14(3)(c)(iii) was applicable in this case and was not complied with.
79․The obvious purpose of s 14(3)(c)(iii) is to ensure the integrity of any test that is undertaken at a person’s house. It seeks to ensure that any positive result that is returned following a screening test reflects the presence of a prescribed drug (or alcohol) in the driver’s system at the time when they were driving their motor vehicle, and avoid the possibility that the result might reflect the person having consumed the drug (or alcohol) in their house after they ceased driving.
80․The approach taken by DAS Leeson, having pulled Mr Wilson over at his house, not to immediately require him to undergo a screening test but to let him go into his house and then arrange for him to undergo a screening test at the station, was contrary to the purpose of s 14(3)(c)(iii). Having let him go into his house, he could not then have required Mr Wilson to undergo a test at his house because the test would not have been required immediately after Mr Wilson stopped his motor bike.
81․Having said that, the position taken by the Prosecution at the hearing is correct. Paragraph 14(3)(c)(iii) places a limitation on a police officer requiring a person to undergo a drug test in circumstances where the person is ‘at the place where the person usually lives’. The requirement that Mr Wilson undergo a screening test was not made at Mr Wilson’s house and I do not consider that the restriction in s 14(3)(c)(iii) was contravened.
82․While this may seem like a narrow interpretation of s 14(3)(c)(iii), the operation of s 14(3)(c)(iii) must be understood in the context of ss 13A, 13D and 13E, the effect of which I have discussed earlier in these reasons. The fact that the approach taken by DAS Leeson was contrary to the purpose of s 14(3)(c)(iii) is relevant to that context.
83․Section 14 sets out a number of restrictions on police officers requiring a person, relevantly, to undergo a screening test under s 13A or to provide a sample of oral fluid under s 13E. As I have found earlier in these reasons, the power to require Mr Wilson to undergo a screening test under s 13A needed to be exercised, if at all, when DAS Leeson pulled Mr Wilson over. Had that been done, s 14(3)(c)(iii) would have been engaged. It is because the approach taken by DAS Leeson and FC Cavana was not authorised by s 13A that s 14(3)(c)(iii) then had no work to do.
Mr Wilson’s objections
First objection – drug testing should have been undertaken immediately after Mr Wilson stopped his motor bike – s 14(3)(c)(iii)
84․As I have found above, s 14(3)(c)(iii) is limited in its application to circumstances where the requirement to take a test is made while the person is at their place of residence. The requirement that Mr Wilson undergo a screening test was not made when he was at his residence and I therefore do not consider that the restriction in s 14(3)(c)(iii) was contravened.
Second objection – screening test should have been undertaken where Mr Wilson was pulled over – s 13A(3)
85․Mr Wilson submits that a screening test should have been undertaken where he was pulled over by DAS Leeson. He submits that DAS Leeson had the power, under s 13A(3) of the Alcohol and Drugs Act, to direct him to remain where he was for up to 30 minutes, in order for a drug screening test to be undertaken by someone with authority to do so, but DAS Leeson instead chose to have Mr Wilson conveyed to the City police station.
86․In this respect, I note that it was clear from DAS Leeson’s evidence that he suspected that Mr Wilson had a drug in his system. Provided that that suspicion was reasonably held, DAS Leeson could have exercised the power given to him by s 13A(3).
87․However, the Prosecution submits that s 13A(3) provides a discretionary power that DAS Leeson was not required to exercise. The Prosecution submits that it made sense in this case for Mr Wilson to undertake drug testing at the police station because DAS Leeson arrested Mr Wilson promptly and arranged for him to be conveyed to the police station. In this respect, I note that DAS Leeson explained that, as he was not authorised to carry out the screening test, and as he intended to arrest Mr Wilson (for driving whilst disqualified), he considered that the test could be conveniently carried out by someone who was authorised, at the station.
88․I agree that DAS Leeson was not required to exercise the discretionary power given to him by s 13A(3) to direct Mr Wilson to remain where he was. However, as I have found earlier in these reasons, the power to require Mr Wilson to undergo a screening test under s 13A needed to be exercised, if at all, when DAS Leeson pulled Mr Wilson over.
89․Under s 14(3)(c)(iii), that requirement needed to be made immediately after Mr Wilson stopped his motor bike. In circumstances where he was not authorised to carry out the test himself, he had the option under s 13A(3) of directing Mr Wilson to remain where he was to allow time for a drug screening device (and operator) to be made available, but he chose not to take that option.
Third objection – no power to direct Mr Wilson to undergo a screening test
90․Mr Wilson submits that FC Cavana could only direct Mr Wilson to undergo a screening test under s 13A if FC Cavana had reasonable cause to suspect that Mr Wilson was the driver of a motor vehicle shortly before the requirement was made. Mr Wilson relies on s 13A(1)(b)(i) of the Alcohol and Drugs Act in support of that submission.
91․He submits that s 13A(1)(a) is not applicable because he had long ceased being the driver of his motor bike by the time FC Cavana required him to undergo the screening test.
92․The Prosecution submits that DAS Leeson’s evidence establishes that Mr Wilson was the driver of a motor vehicle and thus reliance can be placed on s 13A(1)(a). The Prosecution also submits that DAS Leeson had reasonable cause to suspect that Mr Wilson was the driver of a motor vehicle as he saw him riding his motor bike.
93․FC Cavana was the police officer who required that Mr Wilson undergo a screening test. He did not see Mr Wilson drive his car and, for the reasons set out earlier in this decision, s 13A(1)(a) therefore did not give him power to require Mr Wilson to undergo a screening test.
94․Further, the requirement made of Mr Wilson, to undergo a screening test, was not made whilst he was roadside. For the reasons set out earlier in this decision, he could therefore not be required to undergo a screening test under s 13A(1)(a) or s 13A(1)(b).
95․As I have also noted earlier in this decision, to permit FC Cavana to require Mr Wilson to undergo a screening test under s 13A(1)(b) would circumvent the operation of the restriction that s 14(3)(c)(iii) placed on DAS Leeson’s use of the power in s 13A to require Mr Wilson to undergo a screening test outside his residence.
96․In any event, even if the power in s 13A(1)(b) could be exercised by a police officer at a police station, in relation to a person who had been taken into custody and arrested for other reasons and brought to the police station, I do not consider that the power could be exercised by FC Cavana in this case.
97․Firstly, I am not satisfied that FC Cavana had reasonable cause to suspect that, shortly before he required Mr Wilson to undergo a screening test, Mr Wilson was the driver of a motor vehicle on a road. I cannot be satisfied that he formed any suspicion as to when Mr Wilson was the driver of a motor vehicle on a road, let alone a suspicion that Mr Wilson had been a driver of a motor vehicle ‘shortly before’ he was required to undergo the screening test.
98․FC Cavana simply says in his statement that he was asked to conduct a drug screening test on a person who was in custody for driving a motor vehicle whilst disqualified. That information provided him with a basis to suspect that Mr Wilson had driven a motor vehicle at some point earlier in the evening, but not to suspect that Mr Wilson had driven ‘shortly before’ FC Cavana required him to undergo the screening test.
99․FC Cavana does not say that he was told any information as to when Mr Wilson was found to be driving while disqualified. Nor is there any evidence that requests of the kind that was made of FC Cavana are always made shortly after a person is found to have driven a motor vehicle.
100․Secondly, I do not consider that FC Cavana could have reasonably suspected that Mr Wilson had been the driver of a motor vehicle shortly before he required Mr Wilson to undergo a screening test, even if he had he been fully briefed by DAS Leeson and turned his mind to the test in s 13A. Forty-five minutes had elapsed between when Mr Wilson had ceased to be the driver of a motor vehicle and him being required to undertake the drug screening test. I do not consider that FC Cavana could reasonable have thought that such a period could be described as ‘shortly before’, particularly in circumstances where DAS Leeson had permitted Mr Wilson to enter his house during that period.
101․Accordingly, I find that FC Cavana did not have power to require Mr Wilson to undergo a screening test and the result of that test was therefore obtained in contravention of the Alcohol and Drugs Act.
Fourth objection – no power to direct Mr Wilson to give a sample of his oral fluid
102․Finally, Mr Wilson submits that FC Cavana had no power to direct him to give a sample of his oral fluid for oral fluid analysis because the power to do so, in s 13E of the Alcohol and Drugs Act, required Mr Wilson to have been taken into custody under s 13D following a positive result having been obtained from the drug screening test undertaken under s 13A. Mr Wilson submits that, in addition to the requirements of s 13A having not been met, he was, in any event, not taken into custody under s 13D. Mr Wilson submits that his detention in custody was based solely on his arrest for driving whilst his licence was disqualified.
103․The Prosecution accepts that Mr Wilson was not taken into custody under s 13D but submits that he was lawfully in custody. The Prosecution submits that FC Cavana’s failure to take Mr Wilson into custody was immaterial as FC Cavana had lawfully required Mr Wilson to undergo a drug screening test under s 13A and an arrest power was available under s 13D or s 212 of the Crimes Act.
104․I agree with Mr Wilson’s submissions. In circumstances where FC Cavana did not have power to require him to undergo a screening test under s 13A, he could not rely on the positive result obtained from that test to take Mr Wilson into custody in order to direct him to provide a sample of his oral fluid under s 13E.
105․Further, even if I accepted the Prosecution’s submission that FC Cavana properly exercised the power in s 13A to require Mr Wilson to undergo a screening test, there is no evidence that FC Cavana did, in fact, take Mr Wilson into custody. He says in his statement only that, having viewed the positive screening test result, he advised Mr Wilson that ‘we [undefined] would conduct a further analysis inside City Police station. I escorted the defendant into the oral fluid analysis room within City Police station’.
106․I am satisfied that FC Cavana contravened s 13E in carrying out a confirmatory test without first having a lawful basis to require Mr Wilson to undergo a screening test under s 13A. That meant he had no power to take Mr Wilson into custody under s 13D in order to require him to provide a sample of oral fluid under s 13E. He did not take Mr Wilson into custody in any event, which is a precondition to the obligation in s 13E to provide an oral sample.
Section 138 considerations
107․The results of the drug screening test and oral fluid analysis that Mr Wilson was required to undergo were obtained in contravention of the Alcohol and Drugs Act.
108․I have found that FC Cavana’s requirement that Mr Wilson undergo a screening test was in contravention of the limitation in section 13A of the Alcohol and Drugs Act that any such requirement be made roadside.
109․Even on the Prosecution’s case, FC Cavana had no power under s 13A to require Mr Wilson to undergo a screening test. That is because the Prosecution submits that DAS Leeson did not comply with s 14(3)(c)(iii), by not requiring that Mr Wilson undergo a screening test immediately after he alighted from his motor bike. A failure to comply with s 14(3)(c)(iii) precluded any requirement being made under s 13A or s 13E.
110․The absence of a power for FC Cavana to require Mr Wilson to undergo a screening test under s 13A (and, therefore, to provide a sample of his oral fluid) is compounded by the facts that:
(a)FC Cavana did not have a reasonable suspicion that Mr Wilson had been driving shortly before he made the requirement for Mr Wilson to undergo a screening test (such that he had no power to require Mr Wilson to undergo a screening test in any event);
(b)because the requirements of s 13A were not complied with, FC Cavana had no power under s 13D to take Mr Wilson into custody, being the precondition to requiring an oral fluid sample under s 13E; and
(c)FC Cavana did not in fact take Mr Wilson into custody in any event.
111․Accordingly, the evidence of the tests that Mr Wilson was required to undertake, and the results of those tests must not be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained: s 138(1), Evidence Act. Mandatory considerations are set out in s 138(3).
Probative value and importance of the evidence: ss 138(3)(a) and (b)
112․The parties agree that the evidence of the test results is highly probative, such that it is determinative of the matter. Without the evidence of the testing and subsequent results, the Prosecution case fails.
113․Accordingly, these considerations favour the admission of the evidence.
The nature of the offence: s 138(3)(c)
114․As the Prosecution notes, the more serious the offence, the greater the weight that should be placed on admitting the evidence: R v Daley (2002) 132 A Crim R 169. While, as Mr Wilson accepts, there is a public interest in detecting offences of the present kind, the maximum penalty is three months’ imprisonment, 25 penalty units or both which, as the Prosecution accepts, places it towards the lower end of the spectrum of penalties in this jurisdiction.
115․The Prosecution notes that persons facing traffic offences accounted for 57% of all court matters in the Territory between 2022 and 2023. On one view that statistic might be seen to support the admission of the evidence, given the prevalence of offending against traffic laws but, on another view, it would seem to favour excluding the evidence. Given the volume of matters of this kind, police should be encouraged to ensure that evidence is obtained in accordance with the law.
116․This consideration does not favour admission of the evidence.
The gravity of the contravention and whether it was deliberate or reckless: ss 138(3)(d) and (e)
117․As the Prosecution notes, the less serious and deliberate the contravention is, the greater the public interest in admitting the evidence: DDP (Vic) v Marjanevic (2011) 33 VR 440.
118․The Prosecution submits that the contravention in this case was inadvertent and technical. The Prosecution also submits that Mr Wilson’s liberty was not curtailed as a result of the contravention because he was arrested for another offence anyway.
119․In my view the gravity of the contravention favours exclusion of the evidence. If the contravention was inadvertent, as the Prosecution submits, then it highlights an ignorance on the part of two officers with respect to how their powers in the Alcohol and Drugs Act are conditioned.
120․Further, the contraventions were fundamental and infected the whole of the testing process. If Mr Wilson was to be lawfully required to undergo a screening test, that requirement needed to be made immediately that he alighted from his motor bike, yet DAS Leeson permitted him to go into his house. Even though he was in the house for only a short period, that called into question the legitimacy of the results of the later tests.
121․Then, FC Cavana required Mr Wilson to undergo a screening test, without any power to impose that requirement. Even if he thought he could exercise the power at the police station, he had no reasonable basis to support the suspicion that he would have needed to have in order to exercise that power, being a suspicion that Mr Wilson had been driving his motor bike shortly before the requirement was made.
122․Then, without power, FC Cavana required Mr Wilson to provide a sample of his oral fluid for analysis. Again, even if he thought he could exercise the power in s 13E (on the assumption that he lawfully exercised the power in s 13A), he did not turn his mind to the requirement in s 13D that he needed to take Mr Wilson into custody before making the requirement to provide the sample.
123․Not a single step in the process was done correctly. Further, as Mr Wilson notes, he was subjected to two procedures which FC Cavana had no power to require him to undertake.
Whether the contravention was contrary to or inconsistent with a right of Mr Wilson recognised by the International Covenant on Civil and Political Rights: s 138(3)(f)
124․Mr Wilson submits that it would be open to the Court to find that the contravention was inconsistent with the right recognised in Article 14(3)(g) of the International Covenant on Civil and Political Rights, which states that a person must ‘not be compelled to testify against himself or confess guilty’. Mr Wilson submits that a requirement that a person undergo a drug screening test or provide a sample of oral fluid for analysis may infringe this right because it requires them to provide evidence to a police officer which may be used in the case against them.
125․Mr Wilson notes that the Explanatory Statement for the Road Transport (Alcohol and Drugs) Legislation Amendment Bill 2010 states:
The provisions in this Bill authorising a police officer to request a person to provide sample of breath, oral fluid or blood for alcohol or drug testing and to take a person into custody for alcohol or drug testing may engage a number of human rights and the privilege against self-incrimination.
126․Mr Wilson submits that the limitations in the Alcohol and Drugs Act on the power of police officers to require a person to undergo drug testing ensures that the Act infringes on those rights only to the extent necessary to achieve the purposes of the Act.
127․The Prosecution accepts that the timing of the requirement to undergo a screening test does, to an extent, infringe on a person’s right to silence.
128․This consideration favours exclusion of the evidence.
Whether any proceeding is likely to be taken in relation the contravention: s 138(3)(g)
129․There is no evidence that any proceeding is likely to be taken in relation to the contravention.
The difficulty of obtaining the evidence without the contravention: s 138(3)(h)
130․The Prosecution submits that there were significant limitations on police immediately requiring that Mr Wilson undergo a screening test given that there were no authorised officers available roadside to conduct the test.
131․However, as Mr Wilson submits, DAS Leeson could have immediately requested that Mr Wilson undergo a screening test and asked that he remain where he was until an officer arrived with the screening device. That was the procedure that was explicitly provided for by s 13A(3), with the period of time allowed by that provision (30 minutes) being set on the basis that it would allow sufficient time for a screening device to be brought from the Traffic Operations Centre in Belconnen.
132․No evidence was led as to any resourcing constraints that meant that it would not have been possible for any authorised officer to go to the Jacka address within the 30 minute period allowed for by s 13A(3).
133․This consideration favours exclusion of the evidence.
Balancing exercise
134․Ultimately, the Prosecution submits that, in all the circumstances, especially in relation to the public interest of ensuring that persons do not drive when affected by drugs and the innocence of the impropriety in this matter, the desirability of admitting the evidence significantly outweighs the undesirability of admitting the evidence.
135․Mr Wilson submits that the Court has an important role to play, to protect the rule of law by making it clear that police impropriety, including police acting outside the scope of their legislated powers, is not condoned by the Court. Mr Wilson submits that the admission of evidence relating to his drug testing, and the results of that testing, would have the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law (relying on Bunning v Cross (1978) 141 CLR 54 at 74).
136․I agree with Mr Wilson. In this case, it is only the probative value and importance of the evidence that favours admission of the evidence. In circumstances where the offence is not especially serious and where there was a failure to comply with each of the legislated steps in the process, I am not satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting evidence that was obtained in contravention of the Alcohol and Drugs Act. That is especially so in circumstances where the way in which the testing requirements were imposed on Mr Wilson meant that a key process for ensuring the legitimacy of the results of those tests, being that the test not be undertaken once he had been in his house, was not followed.
Determination
137․The evidence of the testing of Mr Wilson for the presence of drugs in his system, and the results of those tests, is excluded.
| I certify that the preceding one hundred and thirty-seven [137] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate Temby. Associate: Niamh Dwyer Date: 23 September 2024 |
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