R v Johnson No. Sccrm-97-327 Judgment No. S6498

[1997] SASC 6498

R  v JOHNSON

Reasons for Ruling

Millhouse J

Before the accused's trial on the charge of causing death by dangerous driving I had a voir dire hearing.  He had applied for the exclusion of the evidence of his blood alcohol level, 0.185%, measured from a sample of his blood.

There was no dispute about the facts, either on the voir dire or at the trial.  [Of course on the voir dire I had to work from the statements of witnesses rather than oral evidence.]  The accused, a young man now aged 21, at about 9.30pm on 23 December 1995 drove his Torana motor car at a speed of probably nearly 100kph (the estimates varied between 78 to over 140) south along Hamblyn Road at Elizabeth Downs.  He had with him in the front passenger seat his friend, a young man only a little older than he, Michael James Frost.  They had just visited the house of another friend.  Both the other friend and the other friend's father gave evidence that before the accused and Michael Frost drove off, each had suggested to the accused that he should not drive because he had had too much to drink.

As they went south along Hamblyn Road the near side wheels of the Torana scraped along the gutter.  Witnesses to the accident saw sparks: the police afterwards found scrape marks on the gutter.  The road curved gently to the right.  The Torana did not take the curve.  It went straight on and wrapped itself around a tree.  Michael Frost was killed: the accused was seriously injured.

The accused was taken to the Lyell McEwin Hospital. He was admitted at 10.18 pm: at the most he was semi-conscious. Dr Jennifer Garner was on duty. She gave evidence on the voir dire. The accused's condition was life threatening. Dr Garner immediately took a sample of blood for the purpose of his treatment. That sample came from his arm. Ten minutes later, to comply with the obligation in s47I of the Road Traffic Act another sample of blood was taken, this time from the femoral artery (at the top of the thigh). As Mr David Edwardson for the accused pointed out, it was not Dr Garner but her senior, Dr Pala, who actually inserted the needle and withdrew the blood. Having done so Dr Pala immediately handed the syringe to Dr Garner. Dr Garner did all the rest, including complying with the directions of s47I(7).

I should mention that s47I is no longer in the form in which it was on 23 December 1995. Ironically Parliament had a few days earlier amended it. The amendment was not proclaimed to come into effect though until April 1996. Had the amendment been the law at the time of this tragedy this application could not have succeeded and would not, I expect, even have been made.

I had to consider the section in the old form.  I shall set out only subsection (7).  [The whole section may be found in the joint judgment of Hogarth ACJ and Mitchell J in The Queen v Turner (1975) 12 SASR 373 @ 375-378]:-

"(7)   A medical practitioner by whom a sample of blood is taken under this section shall place it, in approximately equal proportions, in two separate containers, shall seal the containers and-

(a).... shall make available one of these containers, clearly identified as containing the blood of that patient, by notice signed by the medical practitioner and attached to the container, to a member of the police force;

and

(b)shall cause the other container to be delivered to, or retained on behalf of, the person from whom the sample of blood was taken, or if he is dead, a relative or personal representative of the deceased."

Mr Edwardson took two points:-

1.. That Dr Garner signed the notice required by subsection (7)(a) when she had not been the medical practitioner who had taken the sample of blood,

2.. That Dr Garner had simply put "the other container" referred to in subsection (7)(b) with the accused's clothes on the shelf under his barouche: she had not literally delivered to the accused.

The accused did not give evidence (either on the voir dire or at trial) and there was no evidence of whatever happened to the container: the Crown, Mr Edwardson argued, had not discharged the onus of proving what was required by subsection (7) (b).

............. The Crown Prosecutor Miss Rosemary Davey, acknowledged that s47(I)(7) had not been literally complied with: she conceded the factual accuracy of both points taken by Mr Edwardson.

............. The question of law which I had to decide is whether the decision in R v Turner is still law or whether it ceased to be good law after the High Court decision in Bunning v Cross (1978) 141 CLR 54.
............. Turner had been charged with causing death by dangerous driving at about 4.45pm on 12 July 1974. At about eight o'clock in the evening of the same day a medical practitioner at the Port Pirie Hospital took from him, without his consent, some of his blood. The Crown could not prove that a sample of the blood taken had ever been delivered to Turner. The Court (Hogarth ACJ and Mitchell J in a joint judgment, Zelling J in a concurring judgment) decided that, for the evidence of the alcohol content of the blood to be admitted, the Crown must prove strict compliance with every requirement of s47I. As it could not, the evidence should not be admitted.

............. Section 47I had not long been in force (it came into operation on 1 August 1973) at the time when the Court of Criminal Appeal made its decision. The Court regarded the section as an intrusion on the rights of the subject. Hogarth ACJ and Mitchell J(@ 380):-

"The arbitrary selection of persons from whom blood is to be taken for analysis and the serious invasion of personal rights, consisting of the taking of blood in the absence of consent, would lead us to favour a construction of s. 47i so as to restrict the use of the evidence of the concentration of alcohol or other drug found in the blood to prosecutions under that part of the Road Traffic Act in which s. 47i is to be found, if such a construction were open upon a reading of the whole of s. 47i. However, we do not think that it is open. The purposes of the taking of the sample of blood and its analysis are clearly wider than to provide evidence for prosecutions under the Road Traffic Act.  ... If the Crown were in a position to prove that there had been strict compliance with s. 47i we would be of the opinion that it could lead evidence in this prosecution as to the content of alcohol in the blood of the accused taken from him in hospital."

Zelling J (@ 382) described s47I as "an unwarrantable interference with the liberty of the subject." He went on:-

"... the section as drawn, in my opinion, goes beyond the proper balance which ought to exist between the protection of the public on the one hand and the liberty of the subject on the other."

I venture to suggest, with the greatest respect to three eminent judges, that the decision reflects the deep suspicion of and resistance to (more common twenty years ago but still appearing in recent judgments of this Court), any interference with the freedom of the subject: hence insistence on literal observance with every requirement - no latitude, no discretion.  Sadly (this is a personal view) nowadays we are obliged to concede greater and greater curbs on individual freedom in the interests of the community as a whole.
         Whether or not that be the rationale underlying the decision in R v Turner, it has certainly made the task for the prosecution in such cases as the present much more difficult.

R v Turner has, since, been considered by the Full Court and by single judges of this Court with less than enthusiasm.  I mention a few examples.

In  The Queen v Little (1996) 14 SASR 556 @ 561-562, Bray CJ referring to Turner's Case:

"I cannot say what conclusion I would have come to had I been a member of the Court, but the result, though drastic, is not unreasonable. It is certainly nothing against it that it confines a statute authorizing a serious invasion of the liberty of the subject within narrow bounds. We ought not to depart from it unless we are satisfied that it is wrong. I am not so satisfied. I think that we, as a Court of three Judges, should abide by it. At some future time it may be necessary to convene a Court of five Judges to reconsider s. 47i."

Mazinski v Bakka (1978) 20 SASR 350, was a civil case. King CJ (@360):-

(The Queen v. Turner) "has been made the subject of comment by other Judges of this Court.  In the Queen v. Little, Bray C.J. expressed the opinion that at some future time it might be necessary to convene a Court of five Judges to reconsider s. 47i. In the same case Walters and Jacobs JJ. expressed the view that The Queen v. Turner might require some reconsideration.  The reasoning of Wells J. in his reasons for judgment in the present case raises serious questions concerning the decision in the Queen v. Turner.  The cumulative effect of these expressions of judicial opinion is to give rise to uncertainty concerning the correctness and authority of The Queen v. Turner.  I think it desirable that this uncertainty be laid to rest by a Court of five Judges at the earliest opportunity.  Until this uncertainty is dispelled it is best to treat The Queen v. Turner as authority only for what, on a strict view, it actually decides. In my opinion, the case decides that on the true construction of s. 47i evidence of the result of the analysis of a blood sample tendered by the prosecution on the hearing of a charge is inadmissible if (a) the sample was taken from the defendant when he was by reason of lack of consciousness incapable of objecting to the taking of the blood sample; (b) the sample was taken in performance of the obligation imposed by the section; (c) the defendant was not supplied with a sufficient quantity of blood to enable an accurate evaluation of blood alcohol concentration to be made; and (d) the effect of the failure to supply such quantity of blood was to deprive the defendant of a reasonable opportunity of checking the analysis."

Cox J considered the question in  Brain v Froude (1993) 61 SASR 65. Having referred to the slightly different legal situation in England he said:-

"Any disposition to read implications of evidentiary exclusion into the corresponding South Australian provisions is lessened by the availability to courts here of the wider principles stated in R v Ireland (1970) 126 CLR 321 and later developed in Bunning v Cross itself. ...

Both counsel made submissions about the standing and possible application of R v Turner. ... That was the case of a failure to comply with the requirements of s 47i, dealing with the compulsory taking of a blood sample. The Full Court held that the blood alcohol evidence was inadmissible on a prosecution for causing death by dangerous driving where it was shown that the medical practitioner who took the blood sample had not complied with the safeguard requirements of sub-s (7b) of s 47i. The Court was assisted in its conclusion by a line of authorities, dealing with the enforcement of food and drug laws, which held that strict compliance with the prescribed inspection procedures was a condition precedent to conviction. Certainly the general principle that was enunciated in Turner - is at variance with the interpretation of s 47e that I have favoured.  Turner, of course, antedated  Bunning v Cross.  Its correctness has not always been assumed in later cases, and the view has been expressed that, pending its reconsideration on an appropriate occasion, it should be treated as authority only for what, on a strict view, it actually decided."  (@72-73).

I pause to say that applying those decisions to the present case, I would have had to exclude the evidence.

Finally I mention the decision of Judge Bishop in the District Court in The Queen v Martin (1988) 144 LSJS 77. His Honour considered that since Bunning v Cross, Turner's Case is not good law.  Nevertheless he exercised his discretion to exclude the evidence in question.

Were it not for Bunning v Cross I would reluctantly have had to come to the conclusion that I was bound by R v Turner and so must exclude the evidence of the blood alcohol reading.

However I accepted the argument of Miss Davey that  Bunning v Cross has overridden R v Turner. 

Bunning v Cross was a case from Western Australia concerning the use of breathalyser evidence.  It eventually got to the High Court.  The effect of the decision of the High Court is that even where there has been illegality in the collection of evidence, the Court has a discretion to allow the evidence in.  Stephen and Aickin JJ (@ 72) cited a passage from the judgment of Barwick CJ in R v Ireland (1970) 126 CLR 321:-

"    'Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence.  He must consider its exercise.  In the exercise of it, the competing public requirements must be considered and weighed against each other.  On the one hand there is the public need to bring to conviction those who commit criminal offences.  On the other hand is the public interest in the protection of the individual from unlawful and unfair treatment.  Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price.  Hence the judicial discretion.'"

Later they said (@ 74):-

"What Ireland involves is no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and 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.  This being the aim of the discretionary process called for by Ireland it follows that it by no means takes as its central point the question of unfairness to the accused.  It is, on the contrary, concerned with broader questions of high public policy, unfairness to the accused being only one factor which, if present, will play its part in the whole process of consideration. ... the discretionary process ... applies only when the evidence is the product of unfair or unlawful conduct on the part of the authorities (or, as Dixon C.J. put it in Wendo's Case, unlawful or improper conduct).  Moreover it does not entrench upon the quite special rules which apply to the case of confessional evidence.  Its principal area of operation will be in relation to what might loosely be called 'real evidence', such as articles found by search, recordings of conversations, the result of breathalyzer tests, fingerprint evidence and so on."

Miss Davey argued that these principles are of universal application and so apply as much to s 47I of the Road Traffic Act as to any other provision of the law. Although Mr Edwardson resisted the argument, I accepted it. I can see no reason why Bunning v Cross should not be applicable to s 47I. It therefore prevails over The Queen v Turner.  I had a discretion to allow in or not the evidence of the blood test.

I exercised the discretion to allow the evidence for these reasons.

This was not the case of a police officer breaking the rules to get evidence to found a prosecution. Here a medical practitioner whose first duty was to treat, indeed to save, if she could, the life of her patient failed to observe the requirements of s 47I only in the most technical sense. It mattered not at all that Dr Pala inserted the needle to take the blood rather than Dr Garner. She did everything else and completed the paper work. As for the sample of his blood meant for the accused what more could Dr Garner do than put it with his clothes?

Moreover the first sample of blood, taken immediately on the accused's arrival at the hospital, was analysed and gave very much the same blood alcohol reading as the later sample. This fortifies me in accepting the accuracy of the reading obtained from the blood taken for the purposes of the Road Traffic Act. That the accused may not have had an opportunity to have the result checked independently is of little significance given that the two tests, (by different laboratories, incidentally) gave the same result. I bear in mind too that a blood test is accepted as much more accurate than a breathalyser test.

Given that the technical slips in the observance of s 47I worked no unfairness on the accused, I thought that the evidence of his blood alcohol level should be before the jury.

Those were the reasons for my ruling.

Having made the ruling, Miss Davey said that she would not press her application to have admitted also the evidence of the reading taken from the first sample of blood. This was a relief as I was able to leave open the question of admitting the evidence of that blood sample, taken with no regard at all for s 47I but only for the purposes of treating the accused.