QPS v Bergstrom - [2016] QMC 15

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

QPS v Bergstrom [2016] QMC 15

PARTIES:

Senior Const Mervyn Hollier
(Applicant)

v

Bo Lennart Andres Bergstrom
(Defendant)

FILE NO/S:

MAG-00234102/15(0)

DIVISION:

Magistrates Courts

PROCEEDING:

Criminal

ORIGINATING COURT:

Rockhampton

DELIVERED ON:

11 January 2016

DELIVERED AT:

Rockhampton

HEARING DATE:

4 November 2015, 5 November 2015

MAGISTRATE:

M Morrow

ORDER:

CATCHWORDS:

Vehicle and traffic – Failing to provide specimen of breath for analysis – Evidence breath analysing instrument incapable of measuring concentration provided – Whether reason of substantial character for failure – Onus on defendant to provide reason for failure

COUNSEL:

SOLICITORS:

A/Sgt M Barwick appeared for the Queensland Police Service

Mr P Lammersdorf, Solicitor, David Mills Lawyers, for Defendant

Bo Lennart Andres BERGSTROM is charged with the offence that on the 27 March 2015 at Rockhampton in the Magistrates Courts District of Rockhampton in the State of Queensland he was guilty of an offence against section 79(1) of the Transport Operations (Road Use Management) Act 1995 in that he upon a requisition duly made by Senior Constable Mervyn Hollier a police officer under sub-section (8) of the section 80 of the said Act failed to provide as prescribed a specimen of his breath for analysis.
Mr Bergstrom says he has a number of medical conditions at that time that caused him not to supply a specimen of breath as directed.
The Prosecution has called Senior Constable Mervyn Hollier and Sergeant McDonald Duus to give evidence on their behalf and the defence called the Defendant, Mr Bergstrom, and Doctor Winston Nicolaai.
The burden of proof lies with the Prosecution to prove each and every element of the offence and the standard of proof is beyond reasonable doubt.
The Defendant does not have to give evidence, or call other people to give evidence on his behalf, or otherwise produce evidence. That he has done so does not mean that he assumed a responsibility of proving his innocence. The burden of proof has not shifted to him. His evidence is added to the evidence called for the Prosecution. As I have said, the Prosecution has the burden of proving each of the elements of the offence beyond reasonable doubt, and it is upon the whole of the evidence that I must be satisfied beyond reasonable doubt that the Prosecution has proved the case before the Defendant may be convicted.
In relation to this particular matter I have, during the course of the trial, had an opportunity of listening to and observing the demeanour of the witnesses that have given evidence. This has assisted me in assessing credibility, although I accept that there is a need to keep the appearance and demeanour of a witness in perspective and the weight of that aspect in the light of the other more objective considerations.
The Law
Section 80(8) of the Transport Operations (Road Use Management) Act 1995 (TORUMA) provides that any person who has been arrested for drink driving under section 79 of the Act for the purpose of providing a…

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 QPS v Bergstrom

Details

AGLC: QPS v Bergstrom [2016] QMC 15
Case: [2016] QMC 15
Decision Date: 11 January 2016

CaseChat Overview and Summary

In the matter of QPS v Bergstrom, the defendant, Mr Bergstrom, was accused of failing to provide a breath specimen for analysis as required under the Transport Operations (Road Use Management – Alcohol and Other Drugs) Act 1995 (Qld). The matter was heard in the District Court of Queensland. The crux of the dispute was whether Mr Bergstrom had a reason of substantial character for his failure to provide a breath specimen, and if the breath analysis instrument was capable of measuring the concentration provided.

The court was required to determine if Mr Bergstrom’s failure to provide a breath specimen was due to a reason of substantial character, as per section 80(11A) of the Transport Operations (Road Use Management – Alcohol and Other Drugs) Act 1995 (Qld). The court also had to consider whether the breath analysis instrument was capable of measuring the concentration provided, which was a point of contention. The onus was on Mr Bergstrom to provide a reason for his failure, which needed to be substantiated if it was to be considered of substantial character.

The court considered Mr Bergstrom’s claim that he had a reason of substantial character for failing to provide a breath specimen. The court found that while it was not necessary for the excuse to be substantiated by medical or other evidence in all cases, there must be a condition related to the capacity of the person concerned to supply a sample of breath. The court found that Mr Bergstrom’s condition, Chronic Obstructive Pulmonary Disease (COPD), did not necessarily prevent him from supplying a sufficient sample of breath, as the breath testing instrument requires a minimum exhalation time and flow rate. The court held that Mr Bergstrom had not provided sufficient evidence to substantiate his claim of a reason of substantial character for failing to provide a breath specimen.

The court concluded that Mr Bergstrom’s failure to provide a breath specimen was not due to a reason of substantial character, and the breath analysis instrument was capable of measuring the concentration provided. The court dismissed Mr Bergstrom’s appeal against his conviction for failing to provide a breath specimen for analysis.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

No palsy was evident from my observations when he gave evidence and gave a demonstration at one stage of taking a deep breath and exhaling and appeared to me to be no discernible facial palsy. If he has or had Bell’s palsy, to what extent is not particularly apparent.Conclusion Mr Bergstrom claims he has a reason of substantial character for failing to provide at the Rockhampton Police Station. Persons may have a “reasonable excuse of a substantial character” for failing to provide a breath test sample, which would mean they should not be prosecuted. To prove the excuse is reasonable, however, the police — and ultimately the court — will often ask a person to produce medical evidence of physical or mental infirmity. This usually includes cases with drivers with respiratory problems like emphysema and severe asthma. I accept that it is not necessary in all cases for a defence under section 80(11A) to be substantiated by medical or other evidence being adduced.[4] [4]Zwann-Ward v Barran [2005] QDC 376 at [17]. In truth for an excuse to be capable of being of substantial character, it must be an excuse which is related to the capacity of the person concerned to supply a sample of breath. It is not related to a belief whether or not they ought because of their personal faith or belief, to be required to supply a sample of breath. There is, in the view of this court, this very marked difference between the two positions. One depends on whether or not, for example, there is a mental or physical condition which enables them physically to give the sample. It may be in some cases that there will not be that condition. Such facts, if proved, may at least be capable of affording a reasonable excuse of substantial character for not giving the sample. It is true, as the prosecutor indicates, that if Mr Bergstrom knew he tried his hardest yet was unable to provide a specimen, he could seek to obtain a report from an expert explaining why his physical condition prevented him from providing a specimen to identify any problems Mr Bergstrom has. It is obvious the breath testing instrument has a minimal exhalation requirement before obtaining a breath sample. It would seem to follow that a person must exhale for a minimum period of time at a minimum flow rate. It is accepted that subjects with Chronic Obstructive Pulmonary Disease (COPD) may have difficulty in undertaking the tests but medical evidence is nearly always required of the impact of co-morbid respiratory illnesses and the minimum lung function of a subject to see if that meets the requirements to activate various breath test instruments. But to consider that Mr Bergstrom, because of his COPD condition, could not supply a sufficient sample of breath means I have to be satisfied that he first sealed his lips around the mouthpiece of the instrument so the instrument could attempt to measure a specimen of his breath. Section 80(8F) of TORUMA relevantly provides “ … by placing the person’s mouth over the mouthpiece of the instrument and blowing directly and continuously (and without escape of breath otherwise) …” (my emphasis).

Ratio Decidendi

Legal Principle Established

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CITATION:	QPS v Bergstrom [2016] QMC 15
PARTIES:	Senior Const Mervyn Hollier (Applicant) v Bo Lennart Andres Bergstrom (Defendant)
FILE NO/S:	MAG-00234102/15(0)
DIVISION:	Magistrates Courts
PROCEEDING:	Criminal
ORIGINATING COURT:	Rockhampton
DELIVERED ON:	11 January 2016
DELIVERED AT:	Rockhampton
HEARING DATE:	4 November 2015, 5 November 2015
MAGISTRATE:	M Morrow
ORDER:
CATCHWORDS:	Vehicle and traffic – Failing to provide specimen of breath for analysis – Evidence breath analysing instrument incapable of measuring concentration provided – Whether reason of substantial character for failure – Onus on defendant to provide reason for failure
COUNSEL:
SOLICITORS:	A/Sgt M Barwick appeared for the Queensland Police Service Mr P Lammersdorf, Solicitor, David Mills Lawyers, for Defendant