QPS v Grace - [2016] QMC 18

MAGISTRATES COURTS OF QUEENSLAND

CITATION: QPS v Grace [2016] QMC 18

PARTIES:
Senior Constable S D Hughey
(Applicant)

v

Damien John Grace
(Defendant)

FILE NO/S: MAG-00114760/16(1)

DIVISION: Magistrates Courts

PROCEEDING:
ORIGINATING
Criminal – TORUM Act.

COURT: Maroochydore

DELIVERED ON: 21 September 2016

DELIVERED AT: Maroochydore

HEARING DATE: 25 August 2016

MAGISTRATE: H Stjernqvist

ORDER: Guilty

CATCHWORDS:
Vehicle and traffic – Where road side saliva test was positive – Where unavailability of authorised officer to operate a saliva analysing instrument for the further test – Lawfulness for then taking Defendant to a hospital – Requirement to provide specimen of blood – Failure to provide specimen of blood for analysis – Principle of legality – Whether reason of substantial character for failure – Onus on Defendant to provide reason for failure.

COUNSEL: Mr C van der Weegen

SOLICITORS: Snr Sgt D R Bradley for the Queensland Police Service
Mr C van der Weegen I/B Mr B Johnston of Metro Q Law, for Defendant

Charge.

Damien John Grace is charged with the offence that on 17 April 2016 at Nambour in the Magistrates Court District of Maroochydore 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 S D Hughey, a police officer under sub-section (8) of the section 80 of the said Act, failed to provide as prescribed a specimen of his blood for a laboratory test.

Facts.

This matter proceeded as a question of law to be determined by the Court. The following written facts[1] were agreed as follows:
[1] Exhibit 1.
At about 11pm on Saturday the 16^th of April 2016 police from Palmwoods were conducting RBT, licence checks and Drug Tests in Margaret Street, Palmwoods when they intercepted a silver Hyundai sedan with Qld registration 866-RRQ.
Police spoke to the deft in relation to a licence issue and conducted a breath test which returned a 0.00 result.
Police then conducted a roadside drug test which returned a positive result for a relevant drug.
The deft was subsequently advised that he was detained and would be conveyed to Nambour for further test.
Enroute to Nambour police made attempts to locate an officer authorised to operate a Saliva Analysing instrument however none was available.
Police subsequently advised the deft that he would be transported to the Nambour Hospital where a blood sample would be taken.
The deft immediately advised police that he would not be providing police with a blood sample as they could only take another saliva sample.
After arriving at the Hospital the deft was interviewed with his responses recorded in an official police notebook.
During that interview the deft stated that he believed that he had some ‘mull (cannabis) the previous night through a joint but had been drinking so he couldn’t remember.
At 12.05am on the 17^th of April 2016 the deft was given a requirement to supply a sample however…

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 Grace

Details

AGLC: QPS v Grace [2016] QMC 18
Case: [2016] QMC 18
Decision Date: 21 September 2016

CaseChat Overview and Summary

In the case of QPS v Grace, the defendant was suspected of driving under the influence of alcohol. A roadside saliva test was conducted and found to be positive. However, there was no authorised officer available at the scene to operate the saliva analysing instrument for a further test. Consequently, the defendant was taken to a hospital where it was required for them to provide a specimen of blood for analysis. The defendant refused to provide a blood specimen. The primary legal issue was whether the defendant's failure to provide a blood specimen was justified on the basis of substantial character and if the onus was on the defendant to provide a reason for their failure.

The court examined the principle of legality and determined that the defendant had the burden to provide a substantial reason for their refusal to provide a blood specimen. The court found that the defendant did not provide a compelling reason for their failure, and as such, their refusal was unlawful. The court emphasised that the principle of legality required individuals to adhere to legal requirements, and failure to do so could result in adverse consequences.

Consequently, the court found the defendant guilty of the offence. The court held that the principle of legality was a fundamental aspect of the legal system, and individuals must comply with legal requirements. The court further held that the defendant's failure to provide a blood specimen was not justified on the basis of substantial character, and as such, they were found guilty of the offence.

Orders

Orders of the court

Guilty

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	QPS v Grace [2016] QMC 18
PARTIES:	Senior Constable S D Hughey (Applicant) v Damien John Grace (Defendant)
FILE NO/S:	MAG-00114760/16(1)
DIVISION:	Magistrates Courts
PROCEEDING: ORIGINATING	Criminal – TORUM Act.
COURT:	Maroochydore
DELIVERED ON:	21 September 2016
DELIVERED AT:	Maroochydore
HEARING DATE:	25 August 2016
MAGISTRATE:	H Stjernqvist
ORDER:	Guilty
CATCHWORDS:	Vehicle and traffic – Where road side saliva test was positive – Where unavailability of authorised officer to operate a saliva analysing instrument for the further test – Lawfulness for then taking Defendant to a hospital – Requirement to provide specimen of blood – Failure to provide specimen of blood for analysis – Principle of legality – Whether reason of substantial character for failure – Onus on Defendant to provide reason for failure.
COUNSEL:	Mr C van der Weegen
SOLICITORS:	Snr Sgt D R Bradley for the Queensland Police Service