Rafferty v Sammiller
[2003] WASCA 181
•15 AUGUST 2003
RAFFERTY -v- SAMMILLER [2003] WASCA 181
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 181 | |
| Case No: | SJA:1049/2003 | 31 JULY 2003 | |
| Coram: | EM HEENAN J | 15/08/03 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| B | |||
| PDF Version |
| Parties: | EMMA RAFFERTY LINDA LOUISE SAMMILLER |
Catchwords: | Road traffic Road Traffic Act 1974, s 64(1) Driving with percentage of alcohol in blood exceeding 0.08 per cent Blood analysis result admissible if taken within four hours of driving Controversy over time of driving Standard of proof for establishment of the time of driving Circumstantial evidence |
Legislation: | Road Traffic Act 1974, s 64(1) |
Case References: | Chamberlain v The Queen [No 2] (1984) 153 CLR 521 Fox v Percy [2003] HCA 22; (2003) 77 ALJR 989 Gibbons v Oliver [1969] WAR 112 Norden v Miller (1985) 3 MVR 163 Shepherd v The Queen (1990) 170 CLR 573 Casson v Johnston (1995) 12 WAR 1; 21 MVR 196 Devries v Australian National Railways Commission (1993) 177 CLR 472 Grbic v Pitkethly (1992) 38 FCR 95 Lee v R (1998) 195 CLR 594; 157 ALR 394 Smithers v Andrews [1978] Qd R 64 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
LINDA LOUISE SAMMILLER
Respondent
Catchwords:
Road traffic - Road Traffic Act 1974, s 64(1) - Driving with percentage of alcohol in blood exceeding 0.08 per cent - Blood analysis result admissible if taken within four hours of driving - Controversy over time of driving - Standard of proof for establishment of the time of driving - Circumstantial evidence
Legislation:
Road Traffic Act 1974, s 64(1)
Result:
Appeal allowed
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Category: B
Representation:
Counsel:
Appellant : Ms L M Ellery
Respondent : Mr M A G Jenkin
Solicitors:
Appellant : McKenzie Lalor
Respondent : State Crown Solicitor
Case(s) referred to in judgment(s):
Chamberlain v The Queen [No 2] (1984) 153 CLR 521
Fox v Percy [2003] HCA 22; (2003) 77 ALJR 989
Gibbons v Oliver [1969] WAR 112
Norden v Miller (1985) 3 MVR 163
Shepherd v The Queen (1990) 170 CLR 573
Case(s) also cited:
Casson v Johnston (1995) 12 WAR 1; 21 MVR 196
Devries v Australian National Railways Commission (1993) 177 CLR 472
Grbic v Pitkethly (1992) 38 FCR 95
Lee v R (1998) 195 CLR 594; 157 ALR 394
Smithers v Andrews [1978] Qd R 64
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1 EM HEENAN J: On 17 April 2003 the appellant, Emma Rafferty, was convicted in the Court of Petty Sessions of Southern Cross of an offence contrary to s 64(1) of the Road Traffic Act 1974, namely, that on 9 November 2002 at Yilgarn Shire she drove a motor vehicle, registered No 1AJE 091 on a road, namely, Great Eastern Highway, with a percentage of alcohol in her blood exceeding 0.89 per centum, that alcohol content calculable as 0.14 per centum. The trial was conducted in the Court of Petty Sessions at Southern Cross and then adjourned for final decision to the Court of Petty Sessions at Midland. Upon conviction, the learned Magistrate, Mr P A Nicholls SM, imposed a fine of $1,200 plus costs of $321.70 and suspended her motor vehicle driver's licence for a period of 12 months from 17 April 2003.
2 By leave granted by Barker J on 15 May 2003, Emma Rafferty now appeals against that conviction. The nine grounds of appeal are variations upon one theme, namely, that the learned Magistrate erred in admitting into evidence, Exhibit B tendered by the prosecution, namely a Form B under reg 8 of the Road Traffic (Blood Sampling and Analysis) Regulations 1975 certifying that a sample of the appellant's blood, later submitted for analysis, was taken from her at 0755 hours on 9 November 2002. It was argued that when this certificate was tendered it was not then established and that it was never later established to the requisite degree of proof, that this blood sample had been taken within four hours after the driving of the motor vehicle that gave rise to the alleged offence - as required by s 70(1)(d) of the Road Traffic Act 1974.
3 It was this blood sample which was later analysed in accordance with the Act and Regulations and was found to contain an adjusted blood alcohol level for 0530 hours as 0.145 per cent and 0600 hours as 0.140 per cent. Those two times were taken because the event (driving) at the time the analysis was performed was alleged to have occurred between 0530 hours and 0600 hours on 9 November 2002. If the driving of the appellant was proved to have occurred on or after 0355 hours on 9 November 2002 then the sample of blood taken at 0755 hours would have been taken within the statutory period of four hours and so the results of the analysis would be admissible and, by virtue of s 71(4) the percentage of alcohol so calculated to have been present in the appellant's blood at the particular time would be conclusively presumed to have been present at that time.
4 The case for the prosecution against the appellant depended entirely upon the admissibility and effect of the certificate of blood analysis performed in accordance with the Act and the Regulations which, in turn,
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- depended upon the blood sample which was taken at 0755 hours being taken within four hours of the driving. There was no other independent evidence to that effect and, if the certificate of the alcohol content of the blood sample, adjusted for the alleged period within which the driving occurred, was inadmissible then the charge against the appellant should have been dismissed.
Undisputed facts
5 Shortly after six o'clock on the morning of 9 November 2002, Mr Peter Gavin O'Neil was driving alone on Great Eastern Highway and was about 20 kilometres west of Southern Cross en route from Kalgoorlie to his house at Katanning and then on to Albany for a fishing trip. Mr O'Neil had left Kalgoorlie at about 0230 hours that morning and had driven the 200 kilometres or so to Southern Cross and was proceeding further west. He said that on the highway west of Southern Cross he was travelling at his usual speed of about 100 to 120 kilometres per hour. The sun was up, having risen in that area at some time before 0513 hours but it was still low in the east behind his direction of travel.
6 Having come around a bend, Mr O'Neil noticed what he took to be a flash of sunlight reflecting from the windscreen of an oncoming vehicle a couple of kilometres ahead but he then lost sight of the object. He told his Worship that when he saw the glint from the windscreen on what he took to be a vehicle ahead, he just saw it for a second or so and did not really take much notice of it as he did not need to pay attention to it until it came within about 100 metres of his vehicle. He continued on his westward journey.
7 About 90 seconds later, at a point where the highway was running along the side of a dry salt lake, he noticed a damaged motor vehicle which had evidently overturned and was stationary upside down on the lake bed some 40 or 50 metres off. He stopped, went back to the point where this car had run off the road and investigated. He saw a person, the appellant, lying on the ground about 20 metres on the far side of the overturned car. She was very confused and dazed. She tried to get up but had no idea where she was or what she was doing. After satisfying himself that the appellant did not appear to be seriously injured he settled her down, went back to the roadway, flagged down a passing car and asked the occupants to call the police and an ambulance from Southern Cross. He went back to the place where the appellant was lying down and then went to the overturned car and turned off its ignition, noticed that the engine was very hot and that the radiator was making a ticking noise.
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8 Although no finding to this effect was made by the learned Magistrate, it follows from this unchallenged evidence that if Mr O'Neil continued at a speed of 100 to 120 kilometres per hour for about 90 seconds after seeing the reflected sunlight ahead he must have covered a distance of approximately 2.5 to 3.0 kilometres before arriving at the accident scene. This would appear to be the minimum distance between Mr O'Neil's vehicle and the object which reflected the sunlight when that was first noticed because, if that object was indeed another vehicle, then approaching, then the closing speed of the two vehicles would have been significantly in excess of 100 to 120 kilometres per hour unless, indeed, the object was in fact the appellant's car which then immediately ran off the road and approached no further.
9 Mr O'Neil was unable to identify the object which he saw at a distance causing the reflected sunlight as the appellant's vehicle which he later found overturned. However, he was convinced that it was and he was accepted as a truthful witness. His conviction that it was Miss Rafferty's vehicle is the product of several inferences from associated circumstances which Mr O'Neil readily acknowledged. These were that: no oncoming vehicle passed him between the point where he saw the flash of sunlight ahead and where he came across the accident scene; he had not previously seen another vehicle ahead of him also travelling west which might have caused the reflection; there were no major side roads or laybys between the point which O'Neil had reached when he saw the reflected sunlight and the accident scene; he did not see any vehicle turn off Great Eastern Highway and head north or south along any minor tracks before coming upon the accident scene; and, as previously noted, he found that the engine of the overturned vehicle was very hot, or hot, when he examined it shortly after his arrival. In relation to this last observation, however, there was other evidence at the trial that a motor vehicle engine can still be found to be quite hot for up to three or four hours after it has stopped running. It later emerged that Miss Rafferty had also set out from Kalgoorlie in the early hours of 9 November, had driven west to Southern Cross and on to Moorine Rock before heading back to Southern Cross when the accident occurred. So her car had been driven at high speed for two hours or more before the accident.
10 The photographs of the damaged vehicle show that it was heavily coated in red dust and gravel which was found all over the bonnet and in crevices on the damaged panelling. Heavy markings of dust and gravel were also found on the interior roof padding of the passenger compartment. The ground surface at the accident scene was red clay, dust
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- and gravel. Despite the appellant's car finishing up overturned in this dusty and gravelly environment an appreciable distance from the road verge, Mr O'Neil did not see any dust cloud, plume or other signs of dust in the air on his arrival at the accident scene or during his approach to it.
11 A number of empty containers of Vodka Cruisers were found in or near Miss Rafferty's vehicle at the accident scene, one of these near where she was found lying on the ground by Mr O'Neil. Their presence, as submitted by the appellant both at the trial and on the appeal, gave rise to the possibility that the appellant had consumed alcohol after the driving and that, consequently, the blood analysis test result might have been affected by that consumption and would, therefore, have no probative value: Norden v Miller (1985) 3 MVR 163. The appellant further submitted that the onus of establishing that there had been no alcohol consumed by the appellant after the driving, and before the blood sample was taken, rested upon the prosecution and required proof beyond reasonable doubt: Gibbons v Oliver [1969] WAR 112. Those submissions about the onus and standard of proof and the need for the prosecution to refute any inference that alcohol may have been consumed by the appellant after the driving but before the blood test can be accepted but that still left the issue of fact to be decided by the learned Magistrate at the trial.
12 Fortunately, Miss Rafferty was not seriously injured in this accident. Apart from being dazed and confused at the accident scene, she complained of a bump to the head and bruising to the right shoulder area and left hip area. She had amnesia and could not remember anything that had happened after leaving Moorine Rock some time before the accident in circumstances which are important but which will be described later. Of course, her amnesia and her dazed and confused condition when found would be consistent with a blow to the head and a loss of consciousness. Bruising to the shoulder and hip would be consistent with the restraining effect of a lap and sash seatbelt worn at the time of the crash. The vehicle was fitted with such a seatbelt but there was no direct evidence about it being worn at the time the vehicle overturned, although it seems highly probable that it was.
13 Mr O'Neil was asked whether he noticed any footprints in the vicinity of the vehicle near the place where the appellant was found on the ground but he does not appear to have noticed any, or any significant, sign of footprints. However, this evidence must be somewhat inconclusive having regard to the nature of the ground surface (as appears from the photograph) and with his natural pre-occupation with the condition of the
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- injured driver, the vehicle and the need to fetch help. The suggestion, through questions in cross-examination, to Mr O'Neil that there were multiple footprints in the area, was significant for two reasons. First, it was submitted that the vehicle had come to rest with Miss Rafferty still restrained in the driver's position, and that she had extricated herself and crawled or walked away from the car about two hours or more before she was discovered, leaving tracks demonstrating this long presence. Secondly, it was established that Miss Rafferty's mobile phone and a bag containing a large amount of money which had been in her possession before the accident were missing and may well have been stolen. If so, as it was submitted, then the thief or thieves must have come across the accident scene long before Mr O'Neil first arrived. There are, of course, other possibilities, namely that the mobile phone and the money were simply lost, or if stolen, were taken sometime after the police and the ambulance collected Miss Rafferty from the scene and before the vehicle was collected and removed by a truck some hours later.
14 On these subsidiary issues, however, the learned Magistrate concluded that it was likely that the appellant had been thrown out of the car as a result of it rolling over and that this explained how she was found by Mr O'Neil on the ground 90 seconds or so after he had first seen the reflected glare of the sun. Although not expressly stated by his Worship, the implication in this finding, which he appears to have accepted, was that there was insufficient time after the accident, and before Mr O'Neil's arrival, for the appellant to have consumed any alcohol after the crash or for unknown persons to have stolen any of her property. That would certainly be the case if it was indeed the appellant's car which caused the reflected sunlight seen by Mr O'Neil, but if that reflection may reasonably be regarded as having been due to some other cause then there would seem to be a distinct possibility that the accident had happened quite some time before.
15 It is, of course, possible that Miss Rafferty may have been thrown out of the overturning vehicle and come to rest on the ground in a dazed and confused condition some 20 metres away, without any serious injuries, lacerations or abrasions less than two minutes before being found by Mr O'Neil but, with all respect, it seems to be difficult to conclude beyond reasonable doubt that that is what happened in the light of all the evidence, including Miss Rafferty's account of those events which she was able to remember.
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Appellant's account of events
16 Miss Rafferty's parents lived at Southern Cross, which she regarded as her home. However, she was living and working in Kalgoorlie during the week where she had a home unit. On the evening of Friday 8 November 2002 she had been at her unit in Kalgoorlie watching a video and then gone out to join friends. She says that she consumed two Vodka Cruisers at her unit between about 9.00pm and 10.30pm but drank squash while she was out with her friends. She returned to her unit in Kalgoorlie at about 0030 hours on Saturday 9 November (the early morning of the day of the accident), collected her things, which were already packed, and set out to drive to Southern Cross at about 1.00am. She was familiar with the area, having made the journey many times before.
17 On the way to Southern Cross she decided to contact a friend, Carlo, who lived on a farm further to the west near Moorine Rock. She hoped to be able to meet him for an early breakfast because he was expected to rise early for harvesting operations that day. She sent him a text message on her mobile phone to expect her arrival, but there was no evidence of any response. According to her evidence, it took her about two hours to reach Southern Cross but she then kept going straight on to Moorine Rock to meet her friend. However, in the darkness she could not find the turn off to Carlo's place and found herself going straight on into Moorine Rock where she stopped to decide what to do. She says that she was thirsty at this stage and opened one of the six bottles of Vodka Cruisers and drank about a third of the bottle. She decided to go straight back to Southern Cross and go home to see her mother and father rather than delay further in Moorine Rock. She remembers that it was still pitch dark when she left Moorine Rock on her return journey to Southern Cross expecting to arrive about 15 minutes or so later. That memory of leaving Moorine Rock in complete darkness was her last recollection before waking up in hospital in Southern Cross late the next afternoon. The evidence was that it was approximately 22 kilometres from Moorine Rock to Southern Cross and that the accident occurred at a point on Great Eastern Highway approximately 14 kilometres east of Moorine Rock.
Trial
18 Essentially, the case for the appellant at trial was that if she had left Kalgoorlie at about 1.00am, had driven straight through to Moorine Rock without stopping and had then travelled about 14 kilometres on her intended return journey from Moorine Rock to Southern Cross, the accident must have happened somewhere in the vicinity of 3.30am or
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- earlier and that Miss Rafferty was probably unconscious or dazed for some hours after extricating herself from the vehicle before being found by Mr O'Neil. However, his Worship did not accept this being satisfied, on the evidence of Mr O'Neil and the other circumstances which I have related, that it was the appellant's vehicle which caused the reflected sunlight about 90 seconds before O'Neil arrived at the scene. His Worship found that the accident had, therefore, occurred at about 6.00am. He accepted that Miss Rafferty was honest in giving evidence about her departure from Kalgoorlie at 0100 hours and about the time that she would normally take to drive from Kalgoorlie to Southern Cross and then on to Moorine Rock but, while accepting her as an honest witness, he doubted the reliability of her evidence in view of what happened to her because she remembered virtually nothing from the time she left Moorine Rock.
19 In particular, his Worship concluded:
"I do not disbelieve what she [Emma Rafferty] says, that when her recollection is she left Moorine Rock it may have been dark but what happened after that is a mystery as far as she is concerned."
- This finding by his Worship that he accepted the appellant's evidence that it was dark when she left Moorine Rock is, in my view, very significant. As already recounted, the appellant claimed that it was still pitch dark when she left Moorine Rock on her intended return journey to Southern Cross. The unchallenged evidence is that the appellant only travelled 14 kilometres on this return journey before her car overturned. At the speed permitted in that locality, and at which the appellant was driving for most of the journey, this can only have taken about seven or eight minutes or, say, to be conservative, 15 minutes or less.
20 I have already noted the evidence that the sun rose that morning at Perth at 5.13am and, therefore, slightly earlier at Southern Cross. Accordingly, at 0600 hours in that area the sun must have been up for more than 47 minutes. It was certainly the evidence of Mr O'Neil that the sun was up and causing reflections when he noticed what he took to be the appellant's oncoming vehicle reflecting the early morning sunlight. But that scenario simply cannot be reconciled with the appellant leaving Moorine Rock in pitch blackness less than 15 minutes before the accident. On the evidence that the appellant left Moorine Rock in complete darkness, then the accident must have occurred well before sunrise and before the usual signs of dawn appeared in the eastern sky.
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21 It is, of course, possible that Miss Rafferty may have been mistaken about the condition of complete darkness which she said existed when she left Moorine Rock, or that her memory of this was distorted by the subsequent events. However, her evidence that she had left Moorine Rock in complete darkness was not challenged in cross-examination and was accepted by his Worship. For the reasons which I have explained, this simply does not reconcile with an accident in daylight 14 kilometres to the east within 15 minutes of leaving Moorine Rock.
22 This discrepancy then renews focus on the reliability of the inference drawn by Mr O'Neil, and the acceptance of his evidence by his Worship, that it was the appellant's approaching vehicle which caused the reflection of the sunlight some 90 seconds before he came across the overturned vehicle by the roadside. It was the evidence of Mr O'Neil that the object causing the reflection was approximately two kilometres away and that he only saw it for a second or so. The calculations about the distance travelled in the next 90 seconds as being between two and a half to three kilometres, even if no regard is made for the possibility that the object causing the reflection was itself approaching at speed for some of that time, can only mean that it must have been extremely difficult, if not impossible, for Mr O'Neil to have observed any detail of the object which caused the reflection.
23 It is a notorious fact that reflected sunlight seen by a driver of a vehicle travelling in the country can turn out to have been caused by many objects other than an approaching vehicle. The identification of the object which caused this particular reflection must, therefore, be taken with some reserve, notwithstanding the confidence with which Mr O'Neil made the association and his undoubted acceptance as a truthful witness by the learned Magistrate.
24 I acknowledge that on an appeal any court asked to review a finding of fact made by the court at first instance must make all due allowances for the advantage which the trial court enjoyed having seen and heard the witnesses give their evidence. However, the appeal court is obliged to conduct a real review of the trial by way of rehearing - Fox v Percy [2003] HCA 22; (2003) 77 ALJR 989 where the authorities on appellate review of findings of fact have very recently been collected and reviewed. In this case I consider, with respect, that there is other evidence, not controverted at the trial, which points strongly to the accident occurring much earlier than 0600. The choice between accepting the evidence of Mr O'Neil against this other evidence was not a choice which could be made simply on the basis of credibility. There is no doubt that Mr O'Neil
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- was a truthful witness, the real question, however, was whether the conclusions which he drew by inference were sufficiently reliable to constitute proof beyond reasonable doubt.
25 This identification can only have been circumstantial and, as with all circumstantial evidence, the tribunal of fact, whether a jury or a Judge or Magistrate sitting alone, must be informed or acknowledge that guilt should not only be a rational inference from the circumstances, but should be the only rational inference which can be drawn from all the circumstances: Chamberlain v The Queen [No 2] (1984) 153 CLR 521. In a case such as the present where the establishment of an intermediate fact is an indispensable basis for an inference of guilt, that is where the establishment of the driving at or about 0600 hours is a necessary basis for accepting that the blood sample taken at 0755 hours was taken within four hours after the alleged driving, it is necessary that that fact should be specifically identified and that the tribunal of fact be directed or aware that such an intermediate fact cannot be accepted as a basis for guilt unless it is established beyond reasonable doubt: Shepherd v The Queen (1990) 170 CLR 573.
26 In the present case the prosecution depended upon the accident occurring at or about 0600 hours, that is, about 90 seconds after Mr O'Neil saw what he took to be the appellant's vehicle approaching him from a distance. If that were not established, beyond reasonable doubt, then there was simply no other evidence for the prosecution about when this accident occurred or must have occurred. If it did not occur at 0600 then it must have occurred at some undetermined time earlier but how much earlier is simply unknown. In this case there was simply no basis for the prosecution to contend, or for a court to find, that whenever the accident did occur it must have been later than 0355 hours, that is within four hours of the taking of the blood sample at 0755 by the nurse at Southern Cross.
27 Once the timing of the last driving, and hence the question of whether the blood sample was taken within four hours, were put in issue it was for the prosecution to prove beyond reasonable doubt that the blood sample was taken within four hours of the driving - see Gibbons v Oliver (supra). When considering whether or not a finding that it was the appellant's car which caused the reflection observed by Mr O'Neil some 90 seconds before the accident, was the only inference of fact which could be drawn beyond reasonable doubt in all the circumstances, it is necessary to have regard to other possible inferences which might reasonably be drawn from the evidence. These include, that whenever it occurred, the overturning vehicle must have caused a substantial dust cloud which
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- would have remained in the air for some moments but nothing of this kind was noticed by Mr O'Neil; that, contrary to the finding of the learned Magistrate that Miss Rafferty must have been thrown from the vehicle as it overturned, she had injuries consistent with forcible restraint by a seat belt and that to have been thrown from the vehicle as it was overturning without suffering more severe injuries or any lacerations or abrasions is not impossible but unlikely. These possibilities appear to me to cast reasonable doubt over the conclusion that the appellant's car which was approaching from the west and was seen by Mr O'Neil about 90 seconds before the accident. When these are coupled with the discrepancy in the evidence that if, as seems to have been accepted, the appellant left Moorine Rock in total darkness on the return journey and the accident probably happened some seven to fifteen minutes at the most, later, when the sun was up before 0513, then I do not see how, on the standard of proof beyond reasonable doubt, a conclusion that the accident happened at about 0600 hours can be sustained.
28 Accordingly, I conclude that the appellant has successfully demonstrated her case, reflected in different ways in the various grounds of appeal, that the learned Magistrate was in error in finding on all the evidence before him that the prosecution had established beyond reasonable doubt that this roll-over had occurred at approximately 0600 hours. As there was no other evidence upon which a finding could be made beyond reasonable doubt that the appellant was driving, or the accident happened, within four hours of the blood sample being taken at 0755, the conviction of the appellant cannot stand.
29 I consider that the order of the court should be that the conviction of the appellant recorded in the Court of Petty Sessions on 17 April 2003 be quashed and that the penalty comprising orders for the payment of a fine, costs and suspension of the appellant's motor vehicle driver's licence should be set aside.
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