Schmidt v Renwick

[2009] QDC 136

DISTRICT COURT OF QUEENSLAND

CITATION:

Schmidt v Renwick [2009] QDC 136

PARTIES:

WERNER SCHMIDT
(Appellant)

V

JASON SCOTT RENWICK
(Respondent)

FILE NO/S:

Appeal 519/2009

DIVISION:

District Court

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court Caboolture

DELIVERED ON:

27 May 2009

DELIVERED AT:

Brisbane

HEARING DATE:

18 May 2009

JUDGE:

Samios DCJ

ORDER:

Appeal dismissed

CATCHWORDS:

Vehicles and traffic – drink driving offence – obligation of police to “blood test” defendant

Transport Operations (Road Use Management) Act 1995 section 80(15G), section 80 (15H)

Teelow v Commissioner of Police (2009) QCA 84 applied

COUNSEL:

The appellant appeared on his own behalf
Ms Litchen for the respondent

SOLICITORS:

Director of Public Prosecutions for the respondent

1. On 3 February 2009 the appellant was found guilty in the Magistrates Court of the offence that on 31 May 2008 whilst he was over the general alcohol limit but was not over the high alcohol limit did drive a motor vehicle namely a motor car on Piggott Road, Bellmere.

1. This is the appellant’s appeal to the District Court against the decision of the learned Magistrate.

1. The police officers who gave evidence, Sergeant Renwick and Constable Kermond said they saw the appellant driving his Daihatsu motor vehicle in Piggott Road, Bellmere at about 8.45 pm on 31 May 2008.  They decided to pull him over for the purpose of a random breath test.  The test was administered and as a result of the test the appellant was taken back to the Caboolture Police Station where he provided a sample of breath for analysis which indicated that he had a blood alcohol concentration of 0.091 per cent.

1. The ground stated in the Notice of Appeal was that “the conviction/order has been enforced under the incorrect use of the law and not complete proofing guilt by the requirement of the law”.

1. The appellant has expanded upon this ground of appeal in his Outline of Submissions.

1. The issues in my opinion are generally speaking:

(a)      whether the magistrate should have found the police witnesses to be   credible witnesses;

(b)       whether the appellant should have been found to be a credible witness;

(c)       whether the appellant should have been taken for a blood test rather than a   breath test;

(d)      the accuracy of the breath testing that was done at the police station in any                  event.

1. It is a normal attribute of an appeal by way of rehearing that “the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellant court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error…At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance.  On an appeal by way of rehearing an appellate court can substitute its own decision based on the facts and the law as they stand at the date of the decision of appeal. (See Muir JA Teelow v Commissioner of Police 2009 QCA 84 citing Allesch v Maunz (2000) 203 CLR172 at 180-181, 181).

1. The appellant represented himself before the learned Magistrate and in the District Court on the hearing of his appeal.

1. During the course of evidence led by the prosecution a certificate pursuant to s 80(15G) of the Transport Operations (Road Use Management) Act 1995 (the Act) was tendered.  This subsection and subsection (15H) provide as follows:

“(15G)   Evidence from breath analysing instrument

Evidence by a doctor or an authorised police officer or by a copy of a certificate referred to in subsection (15) purporting to be signed by a doctor or an authorised police officer of the concentration of alcohol indicated to be present in the blood or breath of a person by a breath analysing instrument operated by such doctor or authorised police officer is, subject to subsection (15H), conclusive evidence of the concentration of alcohol present in the blood or breath of the person in question at the time (being in the case of such certificate the date and time stated therein) the breath of that person was analysed and at a material time in any proceedings if the analysis was made not more than 2 hours after such material time, and at all material times between those times.

(15H)     Evidence may be negatived

The defendant may negative such evidence as aforesaid if the defendant proves that at the time of the operation of the breath analysing instrument it was defective or was not properly operated.”

1. The appellant contested that he was the driver of the vehicle.  This did not arise until he was cross-examined.  He had not put this allegation to the police witnesses during their cross-examination nor did he put to them that he could not have been seen driving the motor vehicle.  The appellant said a friend was driving and had gone to seek help from neighbours about directions.

1. The learned Magistrate had explained the rule in Browne v Dunn to the appellant before the proceedings got under way.  The learned Magistrate found that he could not rely on this aspect of the appellant’s evidence as he had not complied with the rule in Browne v Dunn.

1. In my opinion it was open to the learned Magistrate  to come to this conclusion.

1. The appellant also complains of inconsistencies in the evidence given by the two police officers.  When giving his reasons the learned Magistrate said he had listened carefully and observed closely the witnesses while they had given their evidence.  He also referred to his opportunity to examine each witness’s powers of judgment, observation and memory.  It is not as if the learned Magistrate did not observe the inconsistencies.  He noted that one officer stated that he was drawn to the appellant as he had seen him drive a number of times around a roundabout and the other officer said that the appellant was travelling east along Piggott Road.  Another inconsistency noted was that one officer had denied that he had spoken with the second police unit while the other officer stated that both he and the other officer may have spoken with this unit that attended the scene. 

1. The learned Magistrate considered these issues and in my opinion there is nothing so remarkable about the inconsistencies to lead the learned Magistrate to reject the evidence of one or both police officers.  In any event, the learned Magistrate noted that the evidence of the two police officers was consistent when it came to the administration of the roadside breath test and the events thereafter.  The learned Magistrate found that the police evidence in relation to who was driving the vehicle was “consistent and corroborative” and accepted that the appellant was the driver of the vehicle.   In my opinion it was open to the learned Magistrate to come to this conclusion.

1. From the appellant’s Outline of Argument and from what he said on the hearing of the appeal it appears to me his main complaint is that he should have been blood tested rather than breath tested because blood testing is more accurate. 

1. There was no evidence led before the learned Magistrate nor sought to be led before me that this is correct.  Further, the prosecution case against the appellant does not fail because a blood test was not done.  Legally there was no obligation upon the police to have the appellant undergo a blood test.  A blood test can be required by the police in certain circumstances which did not arise in this case.

1. The effect of the certificate tendered by the prosecution pursuant to s 80(15) of the Act was that it was conclusive evidence of the concentration of alcohol present in the appellant’s blood at the material time. The appellant has not proved that at the time of the operation of the breath analysing instrument it was defective or was not properly operated. Although the appellant gave evidence he had not consumed alcohol that day or the day before, the learned Magistrate was not obliged to accept this evidence.

1. Therefore, in all the circumstances, in my opinion, the learned Magistrate did not make any error of fact or law or discretion that would lead me to set aside the orders made by the learned Magistrate.

1. I dismiss the appeal.