Roger Hausmann v Gary Wayne Shute - [2006] ACTSC 54

ROGER HAUSMANN v GARY WAYNE SHUTE [2006] ACTSC 54 (6 JUNE 2006)

TRAFFIC LAW – offences – failure to provide a sample of breath – Road Transport (Alcohol & Drugs) Act 1977 (ACT), s 22 – appellant provides sample insufficient to register analysis – ‘fails’ – fails or refuses to provide sample of breath in accordance with reasonable directions – whether offence of absolute liability.
WORDS & PHRASES – ‘fails’.

Road Transport (Alcohol & Drugs) Act 1977 (ACT), s 22

Hammond v Lavender (1976) 50 ALJR 728
R v Walker (1994) 35 NSWLR 384
Adair v Gough (1990) 10 MVR 558
Proudman v Damon (1941) 67 CLR 536
He Kaw Teh v The Queen (1985) 157 CLR 523

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 99 of 2005

Judge: Gray J
Supreme Court of the ACT

Date: 6 June 2006

IN THE SUPREME COURT OF THE )
) No. SCA 99 of 2005
AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:ROGER HAUSMANN
Appellant

AND:GARY WAYNE SHUTE
Respondent

ORDER

Judge:  Gray J
Date:  6 June 2006
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be dismissed.

On 25 May 2006, I dismissed the appeal by Roger Hausmann (the appellant) against his conviction in the Magistrates Court for an offence of failing to provide a breath sample. Consequential upon the conviction, the appellant was fined $500.00 and disqualified from holding or obtaining a driver’s licence for six months. These are my reasons for so doing.

The circumstances of the alleged offence

On 14 August 2005, the appellant was driving a motor vehicle on Monaro Crescent towards Red Hill, a suburb in Canberra, when he was stopped by Sergeant Shute (the respondent). He was required to undergo a screening test for the purposes of determining whether he should be required to provide a sample of his breath for analysis. On his third attempt the screening test proved positive and he was then taken to the Woden Police Station to undergo a breath analysis test. The appellant was given the following direction by the respondent,

You are still in custody following the screening test you underwent. You are required to supply a sample of your breath that is sufficient for analysis. I now require you to submit for breath analysis by exhaling breath from your lungs, calm and continuously directly into the breath analysing machine until I direct you to stop. Do you understand?

Following that direction, the appellant blew into the breath analysis machine but an insufficient sample was given for the machine to register. The direction was given again and the machine again did not register that a sufficient sample for analysis had been provided. The appellant was further questioned on the basis of his failure to provide a sufficient sample and in answer to the question “What is your reasons for failing to supply a sufficient sample of breath for analysis?”, the appellant said “I…

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.

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Details

Case: [2006] ACTSC 54
Decision Date: 6 JUNE 2006

CaseChat Overview and Summary

In the matter of Roger Hausmann v Gary Wayne Shute, the appellant, Hausmann, sought to appeal a conviction for an offence under the Road Transport (Alcohol & Drugs) Act 1977 (ACT). The conviction arose from an incident where Hausmann was suspected of driving under the influence of alcohol and was directed to provide a breath sample for testing. The sample provided by Hausmann was deemed insufficient to register an analysis, leading to the charge that he had failed to provide a sample in accordance with reasonable directions. The case was heard in the Supreme Court of the Australian Capital Territory.

The central legal issue before the court was whether the offence of failing to provide a breath sample under section 22 of the Road Transport (Alcohol & Drugs) Act 1977 (ACT) constitutes an offence of absolute liability. This question was crucial as it determined whether the prosecution needed to prove that Hausmann had the requisite mens rea (intent) to fail to provide the breath sample, or if his failure alone was sufficient to constitute the offence. The court was required to interpret the term 'fails' within the context of the statute and its implications for the appellant's defence.

The court examined the legislative language and the context in which the term 'fails' was used. It concluded that the offence of failing to provide a sample of breath was indeed one of absolute liability, meaning that the prosecution only needed to prove the act of failing to provide the sample, without needing to establish any fault or intent on the part of the accused. The court held that the statutory language and the broader legislative purpose supported the imposition of absolute liability in such cases. Consequently, the appeal was dismissed, and the conviction was upheld.

Orders

Orders of the court

The appeal be dismissed.

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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