Roger Hausmann v Garry Wayne Shute - [2007] ACTCA 5

HUMAN RIGHTS ACT

ROGER HAUSMANN v GARRY WAYNE SHUTE
[2007] ACTCA 5 (5 April 2007)

MOTOR VEHICLE OFFENCES – Failure to provide breath sample – hypothesis that tube partially blocked – whether offence had been made out on the evidence

Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 8, 9, 10, 11, 12, 14, 15AA, 16, 22, 23, 27, 34
Road Traffic Act 1974 (WA), ss 66, 67A
Road Safety (Alcohol and Drugs) Act 1970 (Tas), s 14(4)
Criminal Code 2002 (ACT)
Human Rights Act 2004 (ACT)
Traffic Acts 1949-1974 (Qld) s 16A
Motor Traffic Act 1909 (NSW) s 4E
Road Traffic Act 1974 (WA) ss 66, 67A
Road Traffic Act 1961 (SA) s 47E(3)
Criminal Code 2002 (ACT), ss 8, 10, 22, 23, 24, 25, 26, 27, 28, 29, 34, 58, 59
Human Rights Act 2004 (ACT), s 18

Hammond v Lavender (1976) 50 ALJR 728
R v Walker (1994) 35 NSWLR 384
Adair v Gough (1990) 10 MVR 558

Maher v Horton (1993) 17 MVR 362
Police v Wilkey (1994) 89 SASR 460
DPP v Storey (1997) 26 MVR 316, 318-9
Jasinski v Police (SA) (2004) 41 MVR 117
Proudman v Dayman (1941) 67 CLR 536, 540
Ingram v Ingram (1938) 38 SR (NSW) 407, 410
Zecevic v DPP (Vic) (1987) 162 CLR 645
Perkins v Pohla-Murray (1983) 51 ACTR 3

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 24 - 2006
No. SCA 99 of 2005

Judges: Higgins CJ, Connolly and Lander JJ
Court of Appeal of the Australian Capital Territory
Date: 5 April 2007

IN THE SUPREME COURT OF THE     )          No. ACTCA 24 - 2006
  )          No. SCA 99 of 2005
AUSTRALIAN CAPITAL TERRITORY )
  )

COURT OF APPEAL )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:ROGER HAUSMANN
Appellant

AND:GARRY WAYNE SHUTE
Respondent

ORDER

Judges:  Higgins CJ, Connolly and Lander JJ
Date:  5 April 2007
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be dismissed and the conviction and sentence at first instance confirmed with effect from this date.

IN THE SUPREME COURT OF THE     )          No. ACTCA 24 - 2006
  )          No. SCA 99 of 2005
AUSTRALIAN CAPITAL TERRITORY )
  )

COURT OF APPEAL )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:ROGER HAUSMANN
Appellant

AND:GARRY WAYNE SHUTE
Respondent

Judges:  Higgins CJ, Connolly and Lander JJ
Date:  5 April 2007
Place:  Canberra

REASONS FOR JUDGMENT

HIGGINS CJ and CONNOLLY J:

The appellant appeals against his conviction on 9 December 2005 before Magistrate Campbell in the ACT Magistrates Court of an offence against s 22(d) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (“RT (A & D) Act”). That provides:

A person who—
(a)has been the driver of a motor vehicle on a public street or in a public place; and
(b)has, in accordance with the provisions specified in this Act, been…

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 Roger Hausmann v Garry Wayne Shute

Details

AGLC: Roger Hausmann v Garry Wayne Shute [2007] ACTCA 5
Case: [2007] ACTCA 5
Decision Date: 5 April 2007

CaseChat Overview and Summary

Roger Hausmann (the appellant) appealed his conviction for failing to provide a breath sample to Garry Wayne Shute (the respondent), a police officer. The appeal was heard by the Supreme Court of Queensland, constituted by Higgins CJ, Connolly and Lander JJ. The central dispute concerned whether the offence had been made out on the evidence, particularly in light of a hypothesis that the breathalyser tube may have been partially blocked.

The legal issues before the Court were whether the evidence presented at trial was sufficient to establish beyond reasonable doubt that the appellant had failed to provide a sufficient breath sample as required by the relevant legislation. This involved considering the effect of the defence's hypothesis regarding a potentially blocked tube on the prosecution's case and whether the magistrate had properly considered all the evidence in reaching their conclusion.

The Court reasoned that the magistrate had been entitled to find that the appellant had failed to provide a sufficient breath sample. The evidence indicated that the appellant had made a deliberate attempt to blow into the tube, but the device registered an insufficient sample. While the defence raised the possibility of a blocked tube, the Court found that the evidence did not support this hypothesis as a definitive explanation for the insufficient sample. The magistrate was entitled to weigh the appellant's actions and the device's readings against the speculative defence, and the evidence was sufficient to satisfy the prosecution's burden of proof.

Consequently, the appeal was dismissed, and the conviction and sentence imposed at first instance were confirmed.

Orders

Orders of the court

The appeal be dismissed and the conviction and sentence at first instance confirmed with effect from this date.

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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