R v Clauss

[1993] QCA 298

IN THE COURT OF APPEAL [1993] QCA 298

Q	UEENSLAND
B	risbane
[	R v Clauss]

C.A. No. 42 of 1993

T H E Q U E E N

v.

EARL RICHARD CLAUSS

(Appellant)

──────────────────────────────────────────────────────────────

The Chief Justice Mr Justice Davies Mr Justice Demack

──────────────────────────────────────────────────────────────

Judgment delivered 16.08.1993.
Separate reasons of the Chief Justice, Davies J.A. and Demack J.

All agreeing as to the form of order made.

──────────────────────────────────────────────────────────────

APPEAL DISMISSED. APPLICATION FOR LEAVE TO APPEAL AGAINST
SENTENCE REFUSED.

──────────────────────────────────────────────────────────────

CATCHWORDS:	VEHICLES AND TRAFFIC - Driving in a dangerous manner - Applt sought to overturn conviction for dangerous driving causing death - Taking of blood sample for analysis - Admissibility of analyst's certificate where could not be shown specimen obtained within two hours of time of driving - Traffic Acts ss. 16A(2), (8)(c), (16)(b) - Whether sentence manifestly excessive.
Counsel:	Mr T. Carmody for the appellant. Mr L. Clare for the respondent.
Solicitors:	Legal Aid Office for the appellant. Director of Prosecutions for the respondent.

Hearing date: 24 June, 1993
IN THE COURT OF APPEAL

Q	UEENSLAND
B	risbane

Before The Chief Justice
Mr Justice Davies

Mr Justice Demack

[ R v Clauss]

C.A. No. 42 of 1993

T H E Q U E E N

v.

EARL RICHARD CLAUSS

(Appellant)

REASONS FOR JUDGMENT - THE CHIEF JUSTICE

Judgment delivered 16.08.1993.

Davies J.A. and Demack J. have provided in their reasons an outline of the facts and also the terms of a number of the statutory provisions with which we are concerned in this appeal and I shall avoid unnecessary repetition.

The blood specimen in this case was taken at the hospital at 10.12 p.m. The fatal crash occurred at a time which was not precisely established but was near a point two hours before the specimen was taken and that two hour interval is given importance by certain provisions of the Traffic Act. The driving at the time of the crash constituted the dangerous driving which was the offence charged.

We are concerned in this appeal with the statutory scheme for the taking and testing of blood samples and the admissibility of evidence of alcohol concentrations that is brought into existence by the procedures described in the Act.

Particular provision is made for trials on indictment and proceedings brought under s. 328A of the Criminal Code but, as shall later be seen, it is in a form which requires reference to be made to other provisions of the scheme which have a primary application to proceedings for offences under the Traffic Act. It is most convenient to consider first those more general provisions.

By s. 16A(8)(c) a requisition may be made for a blood sample of a person being treated at a hospital but safeguards are put in place by the subsection. One safeguard ordains that the requisition not be made unless it is made as soon as practicable and "within two hours after the occurrence of the event" whereby a member of the police force is authorised under subs. (2) to requisition a breath specimen. This reference back to subs. (2) draws attention to one matter that was argued. Relevantly under subs. (2)(a), a breath specimen can be requested when a member of the police force "suspects on reasonable grounds (that a person) was during the last preceding two hours" driving or in charge of a motor vehicle, etc. and a similar authorisation is given under subs. (2)(b) in the case of a motor vehicle, etc. involved in injury, death or damage to property when a member of the police force suspects on reasonable grounds that a person was driving or in charge. By subs. (4) requests under subs. (2) must be made within two hours of "the event" whereby a member of the police force is authorised by subs. (2) to make that request. As already mentioned, the operation of subs. (8)(c) is geared to the application of subs. (2). There are competing possibilities concerning the two hour time limit specified for both subsections. Since the requisition has to be made within two hours after "the event" which serves as authorisation, does this mean that the requisition is to be made within two hours after the driving or being in charge, or within two hours of the time that the member of the force suspects the act of driving, etc. took place? Cases where the ambiguity inherent in the words has received attention are referred to in the reasons of Davies J.A.

They include R. v. Pennell (1985) 2 M.V.R. 18, Stewart v. Horler N.S.W. Supreme Court, 13 December, 1989, unreported and R. v. Wilson (1990) 19 N.S.W.L.R. 535. Notwithstanding the ambiguity, it should be concluded that it is a reference back to the time when the driving or being in charge actually occurred rather than the time at which the officer in question believed these events took place. It can be assumed that the statutory scheme is meant to be a workable one and that there should be a certain consistency and purpose in its operation. The possibility of a haphazard and perhaps major extension of the time limit by the formation of an inaccurate suspicion on the part of a police force member should be rejected. It is true that in a particular case an investigating officer may have no precise view of the time when the driving or being in charge occurred but no doubt he will endeavour to conform with the limitation which the statute places upon his authority. This interpretation of "event" should be adopted for the regime for hospital blood tests under subs. (8)(c) as well as for breath tests under subss. (2) and (4).

Since a question was raised at the trial whether the requisition for the test was authorised under subs. (8)(c) because of the interval between the accident and the requisition for the sample, this incidental question should have been determined by the learned trial judge. The legislation does not expressly say that if a requisition is made in breach of the terms of that subsection either the results or any certificate subsequently prepared are inadmissible in evidence. The admissibility of certificates resulting from the testing procedures implemented by s. 16A does not depend on strict compliance with all of the nominated earlier steps. It is independently provided for: see, for example, subs. (16)(b) and cf. Merchant v. The Queen (1971) 126 C.L.R. 414 at 417 and 418 and Jones v. O'Neill [1979] Qd.R. 142 at 147. However, in some cases a discretion will have to be exercised by the judge or magistrate who will have to decide whether the evidence, illegally obtained as it may have been, should be excluded. This is a familiar category of case which arises for consideration under Bunning v. Cross (1978) 141 C.L.R. 54 and similar authorities but, it has to be said that in the present case, the grounds for refusing to exclude the evidence were strong.

It did not, on the evidence, positively appear that the requisition was outside the two hour time limit, and the judge appears to have thought that this could not be exactly determined. Obviously, it was either just inside or just outside that limit. However, the police officer involved was not shown to be acting other than conscientiously in the performance of his duty and he does not appear to have proceeded with any awareness of being in breach of the law. It was a serious matter for investigation that he was undertaking. No real case was made out for exclusion of the evidence and from the point of view of the issues so far mentioned, the certificate was correctly admitted. The fact that the judge admitted the evidence of the test and its results without a consciousness that a finding of fact on the time relationship and also a possible exercise of discretion were called for, turns out to have caused no error in the result. Similarly, his refusal to undertake a hearing on the voir dire to consider the facts relevant to admission has in the result not been productive of error.

The next question is whether certain further aspects of the statutory scheme which were referred to in argument should alter the view that the certificate of analysis was correctly admitted.

As has been mentioned, one particular provision of the Act picks up certain other more general provisions making them applicable to trials on indictment and charges under s. 328A of the Criminal Code even if tried summarily. It is subs. (24) which does this and in the present case we are really concerned with questions of admissibility of evidence which are controlled by that subsection. Some repetition of the concepts made relevant under earlier subsections appears there and, to the extent that it is possible, a consistent approach to questions of construction should be adopted.

Subsection (24) speaks of evidence of alcohol concentration in a person's blood "at a time material to the time of an offence". A somewhat similar reference is made in subs. (16)(e)(i), although the corresponding phrase there is "at a material time in any proceedings" and there is then added a reference to "and at all material times between those times" (the reference in context being to times between the first- mentioned material time and the time within two hours of it when the specimen was provided).

In neither subs. (24) nor subs. (16)(e) is reference specifically made to the time of the alleged offence but rather to a time material to it or to a time material in proceedings. Further, subs. (16)(e) envisages the possibility of a plurality of material times. These considerations point to a construction of the phrase in subs. (24) as one which allows the "material" time to be understood as one which derives its meaning and application from the evidence and the issues in a particular case. I think that the further phrase in subs. (24) providing for admissibility of evidence when it is "obtained in accordance with any of the provisions of this section", means merely something generally equivalent to "evidence obtained by action taken under any of the section's provisions" rather than "evidence brought into being in strict compliance with the terms of the section".

Subsection (24)(b) adopts the procedures earlier stipulated for the giving of evidence by witness or by certificate in the case of offences under the Traffic Act and it adds a provision that evidence which under the statutory scheme is indicative of a concentration of 150 milligrams of alcohol per 100 millilitres of blood is to be taken as conclusive evidence of being adversely affected by alcohol at the times which it specifies.

The conclusion in this case should be that the analyst's certificate, showing blood alcohol concentration at 10.12 p.m., was admissible without qualification under subs. (16)(b) (no grounds of restriction of admissibility being stated by that subsection) and further that there was no reason to reject the certificate on any discretionary ground by reason of circumstances involved in the taking of the sample of blood resulting in the analysis which formed the basis of the certificate. The evidence of the blood alcohol concentration at 10.12 p.m. was evidence of that matter at a "material" time because although it was not the time of the offence charged it was a time made material through the connecting evidence of the expert witness who was called to relate it back to the time of the offence. Therefore it was "material" because it was a link in the necessary chain of proof. Accordingly, while, for reasons earlier discussed, there may be some uncertainty that the time when the appellant was shown by the evidence to have been driving was within two hours of the time stated on the certificate, the Crown case here was not dependent on the deemed extension back of that result for the preceding two hours under subs. (16)(e). The expert called at trial provided the connection.

For these reasons the grounds argued against conviction fail and the appeal should be dismissed. I agree that the application for leave to appeal against sentence should be refused.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 42 of 1993

Brisbane

Before The Chief Justice Mr Justice Davies Mr Justice Demack

[R. v. Clauss]

T H E Q U E E N
v.
EARL RICHARD CLAUSS

(Appellant)

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered 16/08/1993

The appellant was convicted on 15 December 1992 of driving a motor vehicle dangerously while adversely affected by alcohol and causing the death of another person. On the same day he was sentenced to a term of imprisonment of four years. He appeals against that conviction and seeks leave to appeal against that sentence.

The circumstances in which the death occurred were as follows. Sometime between 8 and 8.16 p.m. on 9 March 1992 a motor vehicle carrying the appellant and the deceased left the Bruce Highway near Yandina and collided with a tree. Apparently the driver lost control. Neither occupant had been wearing a seat belt. The appellant and the deceased had spent the afternoon of that day drinking tequila and playing pool at the Eumundi Hotel.

The appellant was found unconscious with his feet and lower legs in the driver's seat, his torso across the middle console and his head in the back face up. The deceased was found with his lower body over the front passenger's seat, his feet under the glove box on that side and his upper body hanging out of the back window on that side. The main injuries to the appellant were fractured ribs and a blunt abdominal injury, both consistent with the front part of his body having collided with the steering wheel. The deceased died in the collision.

Shortly before 10.10 p.m. a police officer spoke to the appellant in the presence of his doctor. He had obtained a clearance from the doctor before speaking to the appellant. He asked the appellant if he was the driver and the appellant replied that he was. He then asked for a blood sample which was taken at 10.12 p.m. An analyst's certificate, which was tendered at the hearing, showed that the concentration of alcohol in the appellant's blood at 10.12 p.m. was 0.269 per cent. A medical practitioner gave evidence that, on the basis of that certificate, his blood alcohol concentration two hours earlier would have been 0.309 per cent, and that he would then have been adversely affected by alcohol to a marked degree. The deceased's mother visited the applicant in hospital and swore that the appellant told her that he was the driver. She also said that he told her that his lungs were sore because the steering wheel had hit him. This conversation was denied both by the appellant and his wife.

There were, in effect, two grounds of appeal against conviction.
The first was that the trial judge erred in refusing to conduct
a voir dire to determine whether or not he should exercise his
discretion to exclude evidence of admissions made by the
appellant in circumstances where, to admit such evidence, would
operate unfairly to the appellant. The second was against the
admission of the evidence concerning the concentration of
alcohol in the blood of the appellant when it could not be shown
that the specimen of blood analysed had been obtained from the
appellant within two hours of the time of driving. There was a
further ground of appeal of unreasonableness on the basis that
the evidence could not lead to the conclusion beyond reasonable
doubt that the appellant was the driver of the vehicle but this

was not pursued beyond the first ground and indeed it could not

have been.

Furthermore, the first ground was not in the end pursued. Mr Carmody, for the appellant, rightly in my view, conceded that, even if the learned trial judge had wrongly exercised his discretion not to allow a voir dire, he had to show that that failure resulted in a miscarriage of justice; and he could not do so because there was adequate evidence, apart from the appellant's confession, from which the jury could and should have concluded that he was the driver of the car. This was the evidence of the respective positions of the occupants of the car after the collision. In any event, I do not think that his Honour wrongly exercised his discretion. According to the doctor who examined him, the appellant was, when interviewed by the police, in a stable condition and aware of the goings on around him. There was no reason to think that he was not fit to be interviewed or that for any other reason the prejudicial effect of his answers would outweigh their probative value.

The admissibility of the analyst's certificate was the main question argued in the appeal against conviction. First the appellant submitted that the certificate was not evidence of the concentration of alcohol in the appellant's blood "at a time material to the time of the offence" within the meaning of those words in s. 16A of the Traffic Act. Secondly, it was submitted that the certificate was not obtained in accordance with any relevant provision of s. 16A; alternatively, it was not made evidence of any matter by any provision of s. 16A. And finally it was submitted that if the provisions of s. 16A did not require the exclusion of the certificate, the failure to comply with that section should have resulted in its exclusion in the exercise of the court's discretion.

It is true, as the appellant submitted, that the certificate was not evidence of the concentration of alcohol in the appellant's blood "at a time material to the time of the offence". The certificate did not purport to do more than certify the percentage of alcohol in the appellant's blood at the time the blood sample was taken. That was not "a time material to the time of an offence" within the meaning of those words in s. 16A(24)(a). That phrase is a reference back to the phrase "a material time in any proceedings" in sub-s. (16)(e)(i). In both cases the material time is relevantly at or about the time when it is alleged the offence was committed. In the present case the analyst's certificate purported to certify as to the blood alcohol content only at 10.12 p.m., approximately two hours after the driving had ceased. It was the oral evidence of a medical practitioner, not the certificate of the analyst, which deposed to the blood alcohol content at the time of the driving, albeit by inference from the analyst's certificate. The question was therefore not whether the analyst's certificate was evidence of the concentration of alcohol in the appellant's blood at that earlier time, but whether it was admissible to prove the blood alcohol content at 10.12 p.m.

The primary submission of the appellant on this question was that the terms of s. 16A(8)(c) excluded from evidence a blood sample obtained in breach of its requirements; and that this blood sample was obtained in breach of those requirements.

The appellant says that the blood sample was taken from him in breach of sub-s. (8)(c) which after providing for a requisition by a police officer for a specimen of blood from a person who is in hospital, provides:

"A requisition shall not be made under this paragraph unless it is made as soon as practicable and within two hours after the occurrence of the event whereby a member of the Police Force is authorised under sub- section (2) to request the person to provide a specimen of breath for a breath test by him."

Sub-section (2) relevantly provides:

(a)  A member of the Police Force may request any person ... who he suspects on reasonable grounds was during the last preceding two hours:-

(i) driving a motor vehicle ... on a road or ... elsewhere;

to provide a specimen of breath for a breath test by
him.

(b)  When a motor vehicle ... is involved in an incident resulting in injury to or death of any person or damage to property a member of the Police Force may request any person who he suspects on reasonable grounds -

(i) was driving or attempting to drive the motor vehicle ... on a road or elsewhere;

...

at the time of the incident to provide a specimen of
breath for a breath test by him."

The evident purpose of sub-s. (8)(c) is to provide a specific relevant time limit between the event of driving and the provision of a blood sample. The same is true of sub-ss. (2)(a) and (16)(e). Consequently, although the way in which it is expressed is not entirely clear, the occurrence of the event stated in sub-s. (8)(c) is the driving of the motor vehicle referred to in sub-s. (2)(a) and (b), in the latter case at the time of the incident therein referred to. See R. v. Herstorff (Court of Criminal Appeal, unreported, 18 May 1980); and compare Stewart v. Horler & anor. (N.S.W. Supreme Court, 13 December 1989, unreported); R. v. Wilson (1990) 19 N.S.W.L.R. 535; Evans v. Sparrow (1973) 6 S.A.S.R. 519 at 527.

As the appellant submitted, it was for the judge to determine the admissibility of the analyst's certificate; and if he had held it to be admissible because the requisition was within two hours of the event (sub-s. (8)(c)), he would have had to find that as a fact. He did not do this, apparently because he thought the certificate to be admissible whether or not the requisition was made within the two hour period.

The only specific evidence on this question was that of a Mr McEwan, whose house was near the point of collision and who, immediately after the collision, looked at his watch which showed a quarter past eight. His evidence was consistent with approximations of other neighbours and with the time at which the ambulance was called; and it was not suggested that there was any reason why his evidence should have been disbelieved. However, not only did his Honour fail to make a finding as to the time of the collision, but he thought the evidence on this question to be "vague". This Court cannot, in those circumstances, make that finding.

It therefore becomes necessary to consider the question whether, if the blood sample was provided outside the two hour period, the analyst's certificate was admissible to prove the blood alcohol content of the appellant at the time the sample was provided. There can be no doubt of the relevance of the certificate because the medical practitioner who gave evidence was able to infer from it the blood alcohol content of the appellant at the time of the relevant incident.

Notwithstanding the prohibition against making the requisition, in a case such as this, otherwise than within two hours after the occurrence of the relevant event (sub-s. (8)(c)), s. 16A does not expressly say that any certificate obtained in consequence of a breach of this prohibition is inadmissible. And although the opening words of paragraph (a)(i) of sub-s. (16), which makes the certificate of an analyst admissible and in some cases conclusive evidence in proceedings under the Act, might appear to make the admissibility of the certificate dependent on prior compliance with sub-s. (8) ("As soon as practicable after a specimen of blood has been provided for a laboratory test pursuant to sub-section (8) ...") paragraph (e)(i) thereof provides:

"(e) (i) Evidence by an analyst or by a certificate referred to in paragraph (b) of the concentration of alcohol or drug indicated to be present in the blood of a person by a laboratory test of a specimen of the blood of that person shall, subject to subparagraph (ii), be conclusive evidence of the concentration of alcohol or drug in the blood of that person at the time (being in the case of such certificate the date and time stated therein) when he provided the specimen and at a material time in any proceedings if the specimen was provided not more than two hours after such material time, and at all material times between those times."

It appears to be implicit in paragraph (e) that, notwithstanding that the specimen was provided more than two hours after the material time, the certificate is admissible as evidence of the amount of alcohol in the person's blood at the time he provided the specimen.

Sub-section (24), which extends the operation of the section to offences of the subject kind, provides:

"(a) Evidence of the concentration of alcohol or drug in the blood of a person at a time material to the time of an offence as hereinafter mentioned obtained in accordance with any of the provisions of this section is admissible upon the trial upon indictment of that person of any offence in connexion with or arising out of the driving of a motor vehicle by him or upon any hearing of a charge summarily against him of an offence against any provision of section 328A of The Criminal Code, and shall not be excluded by reason only that such evidence was compulsorily obtained or otherwise obtained in accordance with this section.

(b)  Evidence admissible pursuant to paragraph (a) -

(i) may be given in the same manner, whether by witness or by a certificate, as it may be given pursuant to the provisions of this section, other than this subsection, in respect of an offence against this Act;

..."

Although the "time material to the time of the offence" is prima facie a time proximate to the time when the alleged offence was committed, it is this sub-section which allows the admission into evidence of an analyst's certificate in a case such as the present one. And it appears to do so only if the evidence is "obtained in accordance with the provisions of this section". The question is whether the intention of the legislature was that the admissibility of the certificate should be dependent upon compliance with sub-s. (8). If it was, then the certificate was inadmissible and there was no discretion in the court to admit it.

This is not a case like Bunning v. Cross (1978) 141 C.L.R. 54. There the question was whether a discretion to exclude admissible evidence because of the circumstances and manner in which it was obtained or came into existence should be exercised to exclude that evidence. The evidence in that case was evidence of blood alcohol content obtained from the administration of a breathalyser test by the operation of breathalyser apparatus. No question arose as to the admissibility of that test other than the circumstances or manner in which it was obtained, that is that it was taken under the coercion of an unauthorised demand. The same would be true in the present case of the results of an analysis of the sample of blood if that evidence had been given by the analyst. Here, by contrast, the question was whether evidence which could not have been admissible but for the statutory provision, namely a certificate signed by the analyst, was admissible notwithstanding the failure to comply with sub-s. (8)(c). And the answer to that question must be that it was not, if admissibility under sub-s. (24) was intended by the legislature to be dependent upon compliance with sub-s. (8).

In my opinion, sub-s. (16)(e)(i) is a sufficient indication that an analyst's certificate of the concentration of alcohol in the blood of a person at the time he provided a specimen of blood is evidence "obtained in accordance with ... the provisions of this section" for the purpose of sub-s. (24) notwithstanding that it was obtained in consequence of a requisition made more than two hours after the occurrence of the material event. Compare Jones v. O'Neill, ex p. Jones (1979) Qd.R.. 142 at 147. Consequently, the analyst's certificate was admissible for the purpose for which it was tendered, even if the requisition under sub-s. (8)(e) was made outside the two hour period.

The appeal against conviction should therefore be dismissed.

The application for leave to appeal against sentence was not seriously argued. That is not surprising. A sentence of four years' imprisonment for an offence of this kind is well within the permissible range, particularly when one has regard to the appellant's appalling history of drinking while driving, an offence for which he has been convicted on five previous occasions, the last resulting in two months' imprisonment and absolute disqualification. He was thus disqualified from driving at the time of this offence. Moreover, his blood alcohol concentration at the time of the accident, 0.309 per cent, was extremely high. The application for leave to appeal against sentence should therefore be refused.