Savin v Wagg
[2023] VMC 4
•28 February 2023
| IN THE MAGISTRATES COURT OF VICTORIA |
AT DANDENONG
CRIMINAL DIVISION OF COURT
Case No. L10924009
| L.S.C. James Savin | Informant |
| v | |
| Shane Wagg | Accused |
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MAGISTRATE: | MAGISTRATE G. CONNELLAN |
WHERE HELD: | DANDENONG MAGISTRATES’ COURT |
DATE OF HEARING: | 21 December 2022 |
DATE OF DECISION: | 28 February 2023 |
CASE MAY BE CITED AS: | Savin v Wagg |
MEDIUM NEUTRAL CITATION | [2023] VMC 4 |
Reasons for Decision
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ROAD TRAFFIC LAW — Road Safety Act 1986 — s 49(1)(eb) and s 55E(2), (5), (12) and (13) — Refuse to provide and refuse to remain — Prescribed device — Proper basis for charges was s 55E(5) not s 55E(2) — Failure of informant to seek a blood test under s 55E(13), unfairness to accused — Reason of a substantial character for the refusal.
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APPEARANCES: | Counsel | Solicitors |
| For the Informant | S.C. R. Symonds | Victoria Police, Dandenong Prosecutions |
| For the Defendant | Mr. K. McDonald | N.A |
Table of Contents
The charges
The evidence
Issues raised by Mr Wagg
(a) Foundation for requiring an EOFS
(b) Insufficient evidence the EOFS device was a prescribed device
(c) Charges 2 and 3 are based on s 55E(2) of the RSA but should be based on s 55E(5)
(d) Evidence of alleged refusal should be excluded on basis of unfairness
(e) Mr Wagg had a reason of a substantial character to refuse an EOFS
(f) Refusal to remain at location prior to providing EOFS
Findings
HIS HONOUR:
The charges
Through his counsel, Mr McDonald, Mr Wagg entered a plea of guilty to a charge of exceeding the speed limit, charge 1, and not guilty to two charges pursuant to Road Safety Act 1986 (RSA), s 49(1)(eb), charges 2 and 3. All charges relate to events on the morning of 27 January 2020 on the Eastlink Freeway in Dandenong North, charge 1, and Dandenong, charges 2 and 3.
The evidence
The informant, Leading Senior Constable Savin (LSC Savin), and his corroborator, Senior Constable Ray (SC Ray), gave evidence on the prosecution case. Without objection the prosecutor tendered a CD copy of the body worn camera (BWC) footage of LSC Savin together with a transcript of the conversation recorded on the BWC as an aide for the Court. This became exhibit P1. Also, without objection, the prosecutor tendered LSC Savin’s Certificate of Authority, exhibit P2, pursuant to s 55E of the RSA. Mr Wagg called no evidence on his case.
Consistent with Mr Wagg’s plea of guilty to charge 1, there was significant agreement between the parties as to what took place. Mr Wagg admitted he was the driver of the relevant motor vehicle at the relevant time. He admitted the initial intercept was conducted at approximately 7:31 am. Based on the way his case was conducted, he also admitted he was required to undergo a preliminary breath test (PBT), a preliminary oral fluid test (POFT) and to provide an evidentiary oral fluid sample (EOFS). He admitted that at the point of the initial intercept at Dandenong North he performed the PBT and provided the POFT. He agreed LSC Savin told him the POFT indicated his oral fluid contained a prescribed illicit drug. In response to this information Mr Wagg told the informant he was stunned by the result and he thought it must be as a result of his heart burn medication which he had taken that morning.
He agreed he was requested to allow police to move his motor vehicle from the initial intercept point on Eastlink to a safer location (the second location) further south on Eastlink. He agreed he moved from the initial intercept point to the second location by voluntarily getting into the rear seat of the police motor vehicle. He agreed he gave LSC Savin permission to drive his vehicle, with Mr Wagg’s 15-year-old son Jake as front seat passenger, from the initial intercept point to the second location. Before police moved his vehicle, Mr Wagg advised LSC Savin, ‘we’ve got guns and ammo and everything in here. We are going to a clay competition … I just have to let you know.’
He agreed the entire intercept, from the point at which LSC Savin approached his vehicle at the initial intercept point until the point at which the police members were about to depart from the second location following the administration of the EOFS procedure, was recorded on LSC Savin’s BWC. He agreed the content of the BWC footage spoke for itself and that the transcript prepared from the BWC footage was generally accurate allowing for traffic noise etc. He agreed the police members departed from the second location at approximately 8:09am, following the administration of the EOFS procedure.
Mr Wagg agreed that once at the second location he placed the saliva testing paddle in his mouth, as instructed by LSC Savin. He agreed he was told it was to be kept in his mouth, under his tongue until the testing paddle turned blue indicating a sufficient sample of his oral fluid had been collected to enable a valid test. He agreed he was advised by LSC Savin the procedure could take some time, ‘it takes as long as it takes, everybody is different.’ He was told it would be better if he tilted his head down and did not speak during the time the paddle was in his mouth.
Mr Wagg agreed that after about 20 minutes, without the end of the paddle turning blue, he took it out of his mouth. He told LSC Savin,
‘it’s not working, and it’ll be due to me medication. I, I got to go mate cause he’s he’s like a junior champion, if I don’t get him there, I’m in the shit, I know that’s me heartburn tablets. Look at me now, my mouth dries out anyway, that’s why it’s not going to work.’
The reference to ‘a junior champion’ is to his son Jake and his achievements in clay pigeon shooting. Shortly after, Mr Wagg told LSC Savin, ‘look, me mouth’s that dry from those tablets. I tell you that’s why it’s struggling to work. And I know, mate, it’s me son in the car. You think I’m silly?’ In response to LSC Savin’s assertion he was refusing to provide a sample of his fluid, Mr Wagg responded, ‘I’m not refusing it, it won’t take it.’ After LSC Savin tells him, ‘[s]o you understand by refusing to continue, you’re refusing to provide a sample of your fluid?’ Mr Wagg says, ‘I’m not refusing. It’s not going to, it’s just not working.’
Mr Wagg tells LSC Savin he wants them to work together, he wants to know what to do. Not surprisingly, LSC Savin tells Mr Wagg he is an adult, and he has to decide. Mr Wagg tells LSC Savin that where he and his son are going is so important, the testing paddle is not working, and they usually work quicker than that, referring to the time he had the testing paddle in his mouth before he took it out. He also tells him, ‘[i]f I was off my head, buddy, you’d be reading it already.’
LSC Savin says, ‘so I’m telling you what’s going to happen.’ Mr Wagg responds, ‘okay. Go for it.’ LSC Savin then gives Mr Wagg an option to continue the test with a new testing paddle, start again and continue through or if Mr Wagg decides to leave then he will be charged with failing to provide an EOFS. LSC Savin explains that he will be summonsed to court if he leaves, and face losing his licence for two to four years. Mr Wagg responds, ‘I have to take a chance baby, cause I know I’m right, and I’m not off my head, that thing’s not working because I take heartburn tablets, and I’ve just taken two this morning, they dry the shit out of me mouth, so unless we’re going to sit here and go through it again, it’s going to do the same thing.’
The conversation continues:
LSC Savin: okay. So you understand that you’re …
Mr Wagg: I understand. I fully understand.
LSC Savin: okay. So what is your reason for failing to provide an oral fluid test?
Mr Wagg: because I, it won’t read due to my medication, because you can see my mouth dry drying out it’s even making it worse.
LSC Savin: I, we deal with lots of people who have dry mouths, and it does work.
Mr Wagg: I understand. You’re probably thinking …
LSC Savin: stand back a little bit.
Mr Wagg: oh sorry. I’m just, sorry, I’m just a bit anxious because I, it’s him in the car.
LSC Savin: okay, and it’s and you understand how it’s going to affect your licence?
Mr Wagg: if it’s proven to be that I was …
LSC Savin: but you’re refusing to provide an oral fluid sample.
Mr Wagg: okay, okay, okay, I’m not refusing. We both know that I’ve tried to do your test and I’ll just leave it at that way.
LSC Savin: okay, so you are going to be charged with failing and you’ll receive a summons. It’ll come out in the mail to you.
Mr Wagg says he just wants to go because if his son misses the clay pigeon competition he will miss getting to the State Titles. LSC Savin then tells Mr Wagg he is not permitting him to drive because he believes at this stage Mr Wagg has an illicit drug in his system. Mr Wagg says he works with police every day in his job and asks to be allowed to drive off, ‘I’m not off me head, that’s the heartburn medication, I promise you mate.’ LSC Savin tells Mr Wagg to go to speak to his son and that the police are going to pack up now and leave.
There is then a further conversation between them:
LSC Savin: they’re not the best, but usually they, like, if you had of kept it in it would have …
Mr Wagg: these tablets are so bad, they actually make my mouth dry … (unintelligible).
LSC Savin: still would’ve come up with a result, so …
Mr Wagg: I was there for like 20 minutes.
LSC Savin: doesn’t matter.
SC Ray: sometimes they take over an hour.
Mr Wagg: (unintelligible).
LSC Savin: thank you, yeah, all done.
Shortly after, the BWC footage ends. Based on the prosecution evidence, the police officers leave in their police motor vehicle with Mr Wagg still at the testing site with his son. There is no evidence of how long Mr Wagg remained at the testing site nor of how he subsequently left.
In cross-examination LSC Savin agreed Mr Wagg had cooperated with the procedure up to the point where, after about 20 minutes, he removed the testing paddle from his mouth and gave it to LSC Savin. He agreed Mr Wagg had kept his head down and apart from a short conversation with SC Ray, did not speak during the 20 minutes the test paddle was in his mouth. He agreed Mr Wagg gave a medically related explanation for why the test paddle had not achieved a sufficient sample after 20 minutes. LSC Savin agreed he had no reason to disbelieve what Mr Wagg told him about having a dry mouth and his medication.
LSC Savin did not agree Mr Wagg’s dry mouth was a reason of substantial character for refusing to provide an oral fluid sample, even if related to his medication. He also did not agree he should have exercised the power under s 55E(13) of the RSA and required Mr Wagg to provide a blood sample. LSC Savin said he did not consider it had reached the point in time where he could form the view Mr Wagg was incapable of providing a sample of oral fluid. He indicated he based his view on experience. His conversation with Mr Wagg at the second location sets out some of the experience he is referring to, namely if it is kept in the mouth it will come up with a result. SC Ray contributed to the understanding of that experiential base when she told Mr Wagg that sometimes it takes more than an hour for the paddle to be in a person’s mouth before it produces a result. In re-examination LSC Savin said he would have considered the blood option if the paddle had not obtained sufficient saliva to be a valid sample after one and a half to two hours. He also said when Mr Wagg took the paddle from his mouth it was at about the 40 minute mark of the three-hour window. He said it would take an hour to two hours to get a nurse to attend the scene to take a blood sample.
Issues raised by Mr Wagg
Mr McDonald raised a number of issues on behalf of Mr Wagg.
(a) Foundation for requiring an EOFS
Mr McDonald submitted the BWC footage showed the POFT device after it had recorded the positive result alleged. LSC Savin held it up in front of the BWC whilst in the police motor vehicle conducting licence and other checks in relation to Mr Wagg. The POFT testing device contains two results windows, one for cannabis and one for methylamphetamine and 3, 4-Methylenedioxy- N -Methylamphetamine (MDMA). Each window has a control line which confirms the test is valid, in the sense the testing device is operating correctly. A result line appears if there is a positive result or detection of the corresponding prescribed illicit drug or drugs. Mr McDonald put to LSC Savin the result window on the test did not have any line at the point where the line would show a positive test result but only had the control lines to show the test was a valid test. The BWC footage was paused at the point where this occurred and LSC Savin stepped out of the witness box to closely examine the image displayed on the court monitor. Having done so, LSC Savin disagreed with the proposition put by Mr McDonald and stated that in his view the positive result line was visible in the lower of the two test result windows.
The issue for the Court is not whether in the Courts opinion the POFT test result indicates the person’s oral fluid contained a prescribed illicit drug. The role for the Court is whether, on the evidence before the Court, there are reasonable grounds for the officer to form the view they held. Here the evidence is all one way. LSC Savin gave evidence in Court, consistent with what he said to Mr Wagg on the BWC footage namely, ‘in my opinion, the result of the preliminary oral fluid test indicates that your oral fluid contains a prescribed illicit drug.’ There is no basis for the Court to reject LSC Savin’s evidence. The reasonable grounds for the officer’s opinion, set out in s 55E(2)(a) of the RSA, is confined to the result of the POFT. In cross-examination, after inspecting the image from the BWC footage, he confirmed his earlier evidence in Court and what he said to Mr Wagg as the events unfolded.
LSC Savin clearly had reasonable grounds on which to base his opinion, and to require Mr Wagg to provide the EOFS pursuant to s 55E(2) of the RSA.
(b) Insufficient evidence the EOFS device was a prescribed device
Mr McDonald submitted there was insufficient evidence to establish the EOFS device used by LSC Savin at the second location was a prescribed device under the Road Safety Act (General) Regulations 2019 (Regulations). A prescribed device maybe comprised of a collection unit, a testing unit and one or more other parts; s 55E(8) of the RSA. Regulation 15(2) of the Regulations prescribes the device for the purposes of s 55E as a SECURETEC DRUGWIPE II TWIN COMBO.
Mr McDonald submitted that, at best, the informant said the device he used was a prescribed device, and nothing more than that, in response to a leading question from Senior Constable Symonds (SC Symonds). Mr McDonald did not cross-examine LSC Savin on this issue. In my view this is particularly pertinent when LSC Savin can be seen on the BWC footage, at 19:10–19:11, at the boot of the police vehicle unpacking the device he used. It has the words ‘DRUGWIPE II TWIN COMBO’ clearly printed on it.
In DPP v Walker,[1] Nathan J, having earlier referred to the rule in Browne v Dunn,[2] observed:
If there had been any contest by the suspect, Miss Walker in this case, as to the propriety or the convenience of the test being conducted then and there she would have been entitled to raise those matters and inferentially raise the propriety of the test and the instrument by which it was performed. None of that was done.
[1]Director of Public Prosecutions v Walker [1992] MC 112, 8.
[2] Browne v Dunn (1893) 6 R 67.
In the circumstances of this case, I am satisfied beyond reasonable doubt the device used by LSC Savin to require Mr Wagg to furnish the EOFS was a prescribed device. I have no doubt had the matter been raised with LSC Savin in cross-examination he would have detailed that it was the device prescribed by the regulations and may have taken the Court to the BWC footage to demonstrate it was.
(c) Charges 2 and 3 are based on s 55E(2) of the RSA but should be based on s 55E(5)
Mr McDonald submitted that charges 2 and 3 should have particularised Mr Wagg was required to provide an oral fluid sample pursuant to s 55E(5) of the RSA, and not s 55E(2) as the charges allege. Mr McDonald submitted to amend the charges now so they identified the ‘correct’ basis of the charges would amount to laying new and different charges and was not permitted. He relied on a number of cases including the recent Court of Appeal decision in Fox v DPP.[3]
[3]Fox v Director of Public Prosecutions [2022] VSCA 38.
The foundation for Mr McDonald’s submission was that Mr Wagg had not refused to provide the sample required pursuant to s 55E(2) of the RSA, but that after 20 minutes he took the paddle from his mouth because the test had not worked. He submitted that if Mr Wagg refused to provide a sample as required and refused to remain at the location for the taking of the EFOS it was a further sample pursuant to s 55E(5) that his refusals related to. In the alternative he submitted LSC Savin should have required Mr Wagg to provide a blood test pursuant to s 55E(13) because Mr Wagg was unable to provide the required sample on medical grounds or some physical disability or condition. Mr McDonald submitted the amendments required to charges 2 and 3 were not simply a change in the subsection of s 55E referred to in the charge, but also the particulars as to the circumstances of requiring a further EOFS or a blood test.
In response to this submission, SC Symonds submitted this was a misconception of the basis of charges 2 and 3. SC Symonds submitted the evidence disclosed LSC Savin never made a requirement of Mr Wagg to provide a further EOFS, much less a blood sample. Rather what LSC Savin did was to advise Mr Wagg of his options— namely to either continue with the test using a new paddle, start all over again and continue through or he could leave but, if he did, he would be charged with failing to provide a sample. This did not amount to making a requirement and thus there was never a refusal pursuant to s 55E(5) of the RSA in relation to a requirement to provide one or more further sample. SC Symonds submitted the charges were properly drawn and no issue arose in relation to an amendment of a charge-sheet pursuant to the Criminal Procedure Act 2009, s 8.
Mr McDonald submitted no particular form of words is required for a requirement under the RSA to be a valid requirement. I accept the cases make this clear. The test for validity of the requirement is whether the person was given reasonably sufficient information for them to know what is required of them and why it is being required. I have no doubt Mr Wagg understood what LSC Savin said to him. Nevertheless LSC Savin prefaced what he said with, ‘so I’m telling you what’s going to happen’, to which Mr Wagg responded, ‘okay. Go for it’. He was then told he could ‘either continue with the test ... or if you decide to leave now …’ In the circumstances of this case, I am not satisfied the formulation of words used by LSC Savin amounted to making a requirement of Mr Wagg to provide one or more further samples under s 55E(5) RSA. The words plainly indicate Mr Wagg was being offered was the possibility of continuing the initial test using the second test paddle contained in the sealed testing kit. Whether the approach of LSC Savin is permitted by s 55E(2) RSA may be debatable. Whilst he did not specify a new, further or second test I am not persuaded he must do so given no specific form of words is required. However, in the context of the evidence here I am not satisfied he made a requirement of Mr Wagg. I am satisfied he conveyed to Mr Wagg he had an option, albeit one that carried consequences, to continue the test or not continue with it in circumstances where Mr Wagg had previously expressly stated he believed the test had failed and would fail again.
In my view, the informant was entitled to charge Mr Wagg on the basis he refused to comply with the requirement to provide the EOFS pursuant to s 55E(2) RSA when he removed the paddle from his mouth and returned it to LSC Savin before it had accumulated enough saliva to be a valid test sample. It was a refusal by conduct during the testing process in circumstances where Mr Wagg was clearly instructed what was required for a valid sample and that it could take some time for the sample to be collected in sufficient quantity. What happened after that point did not erase that initial refusal.
Similarly, LSC Savin was entitled to charge Mr Wagg with refusing to remain on the basis of the requirement to provide a EOFS under s 55E(2) RSA.
(d) Evidence of alleged refusal should be excluded on basis of unfairness
Mr McDonald submitted evidence of the alleged refusal of the EOFS should not be admitted into evidence on the basis of unfairness to Mr Wagg. He made this submission in relation to both charge 2 and 3. Evidence must not be admitted where its probative value is outweighed by the danger of unfair prejudice to the defendant.[4] Mr McDonald submitted the police should have sought a blood test under s 55E(13) of the RSA given Mr Wagg was unable to furnish a sample of his oral fluid because of a physical disability or condition. The fact LSC Savin did not do so created an unfairness to Mr Wagg according to Mr McDonald’s submission. Mr McDonald relied upon the decision in DPP v Moore.[5]
[4]Evidence Act 2008, s 137.
[5][2003] VSCA 90, applying the Bunning v Cross (1978) 141 CLR 54 public policy discretion.
SC Symonds submitted the issue of unfairness did not arise on the evidence. He said LSC Savin gave evidence he had not formed the view Mr Wagg was unable to furnish a sample of oral fluid as his experience was the time taken to collect a sufficient quantity of oral fluid varied from person to person. LSC Savin gave evidence it can take up to an hour, even an hour and a quarter, to obtain a sufficient sample using the paddle. Based on his experience, LSC Savin considered Mr Wagg would have been able to provide a sufficient sample if he persisted with the procedure.
SC Symonds further submitted s 55E(13) of the RSA provided a discretion to the police officer requiring the EOFS. LSC Savin had not reached the requisite opinion to trigger the discretion and there could be no unfairness to Mr Wagg.
I accept the prosecutor’s submission on this matter, and I am not satisfied there was any unfairness to Mr Wagg, much less an unfair prejudice that outweighs the probative value of the evidence.
(e) Mr Wagg had a reason of a substantial character to refuse an EOFS
Pursuant to s 55E(12) RSA, Mr Wagg must satisfy the court there was a reason of a substantial character to refuse the EOFS other than a desire to avoid providing information that could be used against him. He must satisfy the court on the balance of probabilities, more likely than not, his reason was of a substantial character. If he does so, s 55E(12) RSA prohibits the Court from finding him guilty or recording a conviction for refusing to provide the oral fluid sample for testing.
Mr McDonald concedes s 55E(12) RSA only applies to charge 2, the refusal to provide a sample of oral fluid for testing.[6] He acknowledges charge 3, the refusal to remain at the location prior to providing the sample, is not covered by the prohibition imposed on the Court on making a finding of guilt.
[6]Director of Public Prosecutions v Greelish (2002) 4 VR 220.
The meaning of a very similar phrase, ‘some other reason of a substantial character for his refusal’, to that used in s 55E(12) was considered in Burns v Storey.[7] Winneke CJ, delivering the judgement of the Full Court, stated:
The word ‘reason’ is wide enough to embrace a belief or apprehension influencing the mind of the defendant to refuse the test, provided that it satisfies the other language of the paragraph. Any qualifying or limiting consideration is to be found in the words that follow. The words that operate in such a way are: ‘of a substantial character’ and ‘other than a desire to avoid providing information which might be used against him’. The first phrase qualifies the word ‘reason’, and the second phrase qualifies the whole concept thus produced.
The word ‘substantial’ in this context has obviously been selected to express an idea which requires something more than any reason of any kind while not requiring a reason amounting to a complete justification. We are unable to accept the contention that the reason given must amount to a justification in law. It is not required to be more than ‘of a substantial character’.
It is obvious that the use of a word of such a indefinite character means that the courts are entrusted with the making of a judgment within a fairly extensive area as to whether a refusal to submit to a test is to be regarded as excusable or not. The guidance afforded is not precise and is probably deliberately so.
[7][1970] VR 388, dealing with the Crimes Act 1958, s 408A(5)(a).
Based on the evidence there are two significant reasons associated with Mr Wagg’s decision to remove the sampling paddle from his mouth and return it to LSC Savin. Mr Wagg states those reasons directly to LSC Savin when he returns the paddle to him. He says to LSC Savin, ‘it’s not working and it’ll be due to me medication. I, I got to go mate cause he’s like a junior champion, if I don’t get him there, I’m in the shit, I know that’s me heartburn tablets. Look at me now, my mouth dries out anyway, that’s why’s it’s not going to work’.
It is a question of fact for the Court to determine whether one of these explanations is the sole reason, or whether it is a combination of the two, motivating his refusal. It is necessary to consider the whole circumstances when determining this factual issue. As reflected by the evidence LSC Savin accepts Mr Wagg was very cooperative with police up to the point where he removes the paddle from his mouth. It is fair to say Mr Wagg behaved politely and with great respect towards the police members and they treated him in the same manner. Mr Wagg took at least two drinks from his iced chocolate milk container as LSC Savin obtained information and explained the procedure in the two minutes prior to the EOFS sample collection procedure commencing. Based on the time the BWC footage runs for, when Mr Wagg removes the paddle from his mouth, he had been in company of the police for more than 36 minutes since he was initially intercepted for speeding. In that time, he had accepted the information he was exceeding the speed limit, he had furnished the PBT sample, the indicative POFT sample and cooperated with police moving his vehicle from the initial intercept point to a safer position approximately two kilometres further south on Eastlink. He had the sample paddle in his mouth for approximately 16 minutes before he removed it. LSC Savin accepts, and the BWC evidence bears it out, that at all times Mr Wagg cooperated with the testing procedure. He followed the directions given to him including keeping his head tilted down and not speaking, with one minor exception when SC Ray spoke to him, for the entire 16 minutes.
Mr Wagg alerts police to the medication he had taken immediately after he is told the POFT has returned a positive indication for an illicit drug in his oral fluid. He then tells LSC Savin the purpose of his journey, to take his son to a shooting competition, when he is advised of the consequences of not accompanying police for the purpose of the EOFS. He alerts police to the presence of firearms and ammunition in his vehicle before LSC Savin gets into his vehicle to move it to the second location. LSC Savin accepts, and the BWC confirms, Mr Wagg was not showing any sign of being affected by a drug, illicit or not. It is clear from the BWC footage Mr Wagg is more than capable of driving. His driving was not impeded in any way by substances.
Given all of the above I am satisfied Mr Wagg’s refusal was not motivated by a desire to avoid providing information that could be used against him.
If the sole motivation for Mr Wagg to remove the sample paddle from his mouth and return it to LSC Savin was to get his son to the shooting competition, that would not be a reason of a substantial character for the refusal. Based on the totality of the evidence I do not consider his sole motivation for refusing to continue the sampling process was his strong desire to get his son to the competition on time. I accept it was part of his motivation, but not that it was his sole motivation.
Based on the evidence, I am satisfied Mr Wagg initially withdrew the paddle from his mouth because he considered it was not working and was not going to work no matter how long he kept it in his mouth. His view was clearly based on his understanding of the effect his prescribed medication had on his ability to produce saliva. He was in the best position to understand, from experience, the effect on him of his medication. However, that does not make his motivation to transport his son to the competition an irrelevant consideration when assessing whether he has established he had a reason of a substantial character for the refusal. I have no doubt he was influenced also by the passage of time and the increasing likelihood he would not get his son to the competition on time.
Taking the evidence as a whole, I am satisfied the inability of the sample collection paddle to collect a sufficient sample of saliva together with the pressure Mr Wagg felt to get his son to his shooting competition, which was an important competition with significant implications for his son, in combination provide a reason substantial character for Mr Wagg’s refusal to provide the EOFS.
I place more weight on Mr Wagg’s assertion the procedure was not working, and would not work even if done again, than on the pressure of time in relation to his son’s shooting competition. In reaching my conclusion, I also place very significant weight on the way Mr Wagg conducted himself with respect to the police, and also towards his son throughout the process. In particular, I take note that he did not do anything at all to suggest he was not cooperating and faithfully carrying out the directions given to him in regard to the sample collection aspect of the EOFS. I also note there was no evidence to indicate Mr Wagg was impaired, even in the slightest degree, in regard to his ability to drive. Given the nature of the illicit drug driving charges, they require zero level of any prescribed illicit drug in a person’s oral fluid sample, this is not a factor that should be given undue weight. Nevertheless, the evidence is clear that Mr Wagg posed no danger to his son, any member of the public or himself as a result of driving even if the indicative POFT were to be confirmed by the result of a successful EOFS. In the context of determining whether Mr Wagg has established a reason of substantial character pursuant to s 55E(12) RSA, there is some weight to be attributed to the fact he was clearly and undisputedly fit to drive.
(f) Refusal to remain at location prior to providing EOFS
It is notable that on removing the paddle from his mouth, Mr Wagg tells LSC Savin he has got to go because of his son’s competition. Mr Wagg is then advised that by refusing to continue, he is refusing to provide a sample. He is told that if he leaves there will be consequences and that LSC Savin is explaining those consequences to him. LSC Savin tells Mr Wagg he is an adult, and he has to make the decision for himself. LSC Savin then tells him what is going to happen and puts the options available to Mr Wagg to him. The first option is to continue with the test. The second option is that, if he leaves, he will be charged with failing to provide an oral fluid sample.
LSC Savin then asks him his reason for failing to provide an EOFS, and Mr Wagg responds the paddle won’t read due to his medication and his dry mouth. LSC Savin checks to ensure Mr Wagg understands the consequence is he will lose his licence to which Mr Wagg’s responds, ‘if it’s proven to be that I was …’ It is likely Mr Wagg was about to say if it was proven he was ‘refusing’. LSC Savin interjects saying, ‘but you’re refusing …’ and shortly after that he will be charged with ‘failing’. Subsequently LSC Savin tells Mr Wagg, ‘I am also not permitting you to drive we believe … an illicit ... drug in your system’.
It is clear Mr Wagg tells police he has to go initially and at least twice after that. He tells LSC Savin in different ways – ‘it’s so important that where we’re going right’, and ‘I just want to go because if I miss him, he misses out …’ Possibly a fourth time if his comment, ‘I have to take a chance baby’ is included as a statement he has to go. All of those statements to LSC Savin occur before he is told he will not be permitted to drive. After he is told he will not be permitted to drive he changes to ‘please let me just drive off’.
It is possible to treat Mr Wagg’s comment that he has to go as a refusal to remain at the location. Based solely on the words used, his initial statement, ‘I got to go mate’ can be interpreted as a clear statement of intent. It might also be seen as a statement of need or even a plea to be allowed to leave. Based on the BWC recording, it remains unclear whether it is a statement of intent, need or a plea. The recording is more consistent with it being a statement of intent or need than a plea, but it is not capable of being interpreted decisively as intent, rather than an expression of need.
His subsequent statements are not clear statements of intent. In his last two statements he is seeking, almost pleading for, permission to leave the location by driving off.
At no time is Mr Wagg required to provide a further sample or further told he is still required to remain at the location. Arguably, once he is told he will be charged with failing to provide an oral fluid sample, there is no longer any point to the requirement to remain at the location until three hours after driving. At no point is Mr Wagg told he could be charged with refusing to remain at the location. However, it is not necessary he be told expressly he could be charged with refusing to remain at the location. At the intercept location he was told he would have to accompany police and remain at the location for the EOFS until he had provided the sample or for up to three hours after driving.
He is told he is not permitted to drive because police believe he has an illicit drug in his system. He asks LSC Savin twice to, ‘just let me drive off’. LSC Savin tells him the police are, ‘going to pack up now and we’re going to go, okay’.
There is no evidence that Mr Wagg actually leaves the location he was required to accompany police to for the purpose of the EOFS. LSC Savin agreed Mr Wagg was still at the location when the police members leave the location. There is no evidence that he left the location within three hours of being the driver of a motor vehicle. There is no evidence to show he did not remain at the location for the requisite three hours after driving.
Accepting the prosecution do not have to prove Mr Wagg intended to refuse to remain, they must nevertheless prove he refused to do so. After considering all of the relevant evidence it remains unclear whether Mr Wagg has refused to remain at the location or rather has expressed he has a strong need to get his son to his important shooting competition. At the end he is pleading to be allowed to drive off, but there is no evidence he did so after being told he was not permitted to drive.
Taking the evidence in its totality, Mr Wagg’s statement that he has to go does not amount to a refusal to remain at the location. He is signalling an intention or need, he is reinforcing to police why it is important to him that he be allowed to leave, but when he is told he will not be permitted to drive he pleads for permission to drive away from the location. I am not satisfied beyond reasonable doubt the prosecution has established Mr Wagg refused to remain at that location as alleged.
Findings
For the reasons given, I find Mr Wagg not guilty of charges 2 and 3.
G. Connellan
Magistrate
28 February 2023
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