Seears, G.H. v McMellon, C.J

[1986] FCA 142

Re: GEORGE HENRY SEEARS
And: COLIN JOHN McMELLON
No. NT G30 of 1985
Motor Traffic

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Toohey J.
Beaumont J.
Wilcox J.

CATCHWORDS

Motor Traffic - Blood concentration of alcohol exceeding 80 milligrams per 100 millilitres of blood - Person deemed to have blood concentration shown by blood test or blood analysis at time of occurrence of "event" giving rise to requirement of police member of blood test or blood analysis - Requirement of police member that respondent submit to blood analysis - Interval of time between driving and requirement - Period of time to which deeming provision relates.

Traffic Act 1983 (N.T.) ss.8, 8C, 8D.

Rowlands v Hamilton (1971) 1 Q.L.R. 647, Beckwith v The Queen (1976) 135 C.L.R. 569, Waugh v Kippen (High Court of Australia, unreported, 20 March 1986) referred to.

HEARING

DARWIN

#DATE 11:4:1986

Counsel for Appellant: Mr R Ellis

Solicitors for Appellant: Crown Solicitor for Northern Territory

Counsel for Respondent: Mr G Muecke

Solicitors for Respondent: Messrs Poveys

ORDER

The appeal be allowed.

The order of the Supreme Court, to the extent to which it allowed the appeal against conviction under s.8(2) of the Traffic Act (N.T.) and quashed that conviction and penalty imposed upon the respondent in that behalf, be set aside; in lieu thereof, order that, to that extent, the appeal to the Supreme Court be dismissed.

The respondent be granted a certificate under s.6 of the Federal Proceedings (Costs) Act 1981 in respect of the costs incurred by him in relation to the appeal to this Court.

Note: Settlement and entry of Orders is dealt with in 0.36 of the Rules of Court.

JUDGE1

The appellant appeals from orders made by a Judge of the Supreme Court of the Northern Territory allowing an appeal against the conviction of the respondent under s.8(2) of the Traffic Act (N.T.) ("the Act") by a decision of a Stipendiary Magistrate.

1. Section 8 of the Act, relevantly, provides:
   
   

"8. DRIVING UNDER THE INFLUENCE OF INTOXICATING LIQUOR OR OF A DRUG OR WITH HIGH ALCOHOL-BLOOD CONTENT

(1) A person shall not, on a public street or public place -

(a) drive a motor vehicle;

(b) start the engine of a motor vehicle; or

(c) put a motor vehicle in motion,

if he is under the influence of intoxicating liquor or of a drug or psychotropic substance to such an extent as to be incapable of having proper control of the motor vehicle.

Penalty: $1,000 or imprisonment for 12 months, or both.

(2) A person shall not, on a public street or public place -

(a) drive a motor vehicle;

(b) start the engine of a motor vehicle;

(c) put a motor vehicle in motion,

if he has a concentration of alcohol in his blood equal to 80 milligrammes or more of alcohol per 100 millilitres of blood.

(3) ..."

1. The facts, as found by the learned Magistrate, were recited by his Honour as follows. Shortly before 7 a.m. on 25 December 1984, Constables Corey and Ruzsicska, having been on vehicle patrol, were returning to the Police Station to finish duty at 7 a.m. Driving along Todd Street, approaching the intersection of Stott Terrace, they saw a gold coloured Datsun motor car travelling along Stott Terrace towards Stott Terrace Bridge. It appeared to the constables to be exceeding the speed limit. The applicable limit was 60 kilometres per hour. They followed the vehicle for 800 or 900 metres, measuring its speed at about 100 kilometres per hour. During the first part of that distance, the Datsun was seen to cross the centre line twice. At the latter part of the distance, the Datsun crossed the unbroken white line on the left side of the road. Constable Ruzsicska, who was driving, drew up behind the Datsun and Constable Corey operated the blue flashing light and siren. The Datsun continued to travel. Constable Corey slowed down to negotiate a roundabout at Undoolya Road. The Datsun did not slow down to the same extent and gained some distance on the police vehicle. After the roundabout, the Datsun turned left into Burke Street. The pursuing vehicle followed. The Datsun turned into the driveway of premises at 23 Burke Street and stopped. The police car stopped on the other side of the road.

2. The respondent, who had been driving the Datsun, got out of his car, leaving the keys in the ignition, the engine running and the door open. Constable Corey called on him to wait. The respondent looked at the police and ran into the house. The two constables walked to the house where Constable Corey spoke to a woman. She called the respondent out. He came to the door and closed it. Constable Corey called to the respondent to come out, saying he wanted to talk to him about the manner and speed of his driving. The respondent said he was not going to speak. He demanded that the police get off his property unless they had a warrant. Constable Corey then sent a radio message requesting the attendance of a Sergeant First Class. Shortly after, Sergeant Stevens arrived. After a short conversation with Constable Corey, he knocked on the respondent's door. Mrs. McMellon opened the door. Sergeant Stevens had a conversation with her. The respondent came to the door with a glass of what appeared to be liquor. His eyes were glazed and bloodshot, and he smelt of alcohol.

3. The following conversation took place:
   
   "Sgt. Stevens: 'The members have chased you in hot
   

pursuit to speak to you concerning your manner of driving. We have powers of entry to obtain such particulars. How much have you had to drink? How many glass (sic) of whisky have you had to drink?'

Respondent: 'Glasses? Bottles.'

Sgt. Stevens: 'What do you mean by bottles?'

Respondent: 'I've had two bottle (sic), l upended them.' (said with a motion of grasping bottle by neck)

Sgt. Stevens: 'When did you commence? How long have you been drinking?'

Respondent: 'From 6 o'clock until now.'

Sgt. Stevens: 'Due to these factors, I'm asking you to accompany me to the police station to supply a sample of your breath for breath analysis.'

Respondent: 'I'm not coming with you and you'll have to arrest me. Are you arresting me?'

Sgt. Stevens: 'I am arresting you for the purpose of supplying a sample of your breath for breath analysis.'

1. The respondent walked out of the house. Sgt. Stevens entered the house with Mrs. McMellon. He saw 2 bottles of whisky on a small table. Meanwhile the respondent was causing some commotion outside. Sgt. Corey took the respondent to Alice Springs Police Station where he was placed in an interview room. Sgt. Stevens left the room for a short time. When he returned, the respondent was crying, agitated and obstreperous. A breath analysis was carried out. A certificate on completion of breath analysis was prepared. It showed a concentration of alcohol in the respondent's blood of 0.190 grammes per 100 millilitres.

2. The learned Magistrate also found that no member of the Police Force had reasonable cause to suspect that the respondent had committed an offence against section 8 of the Act until after he had entered the premises at 23 Burke Street: as the learned Judge put it, the speed and manner of driving alone did not, and were not capable of, giving rise to such reasonable cause to suspect.

3. To prove its case, the prosecution sought to rely upon the deeming provisions of s.8C of the Act:
   
   

"8C. RESULTS OF BREATH ANALYSIS OR BLOOD TEST

(1) Where, in any proceedings in a court, the court is satisfied that one or 2 breath analyses were carried out on a sample or samples, as the case may be, of a person's breath before the expiration of the period of 2 hours after the occurrence of the event referred to in section 8D(1) or (lA) as a result of which the breath analysis or analyses were carried out, that person shall be deemed, whether or not evidence is given that he consumed alcohol after the time of the occurrence of that event, to have had, at the time of the occurrence of that event, a concentration of alcohol in his blood not less than the concentration, or the lower concentration, assessed by the analysis or analyses.

(2) ..." (emphasis added).

Section 8D provides, so far as relevant:

"8D. REQUIREMENT TO SUBMIT TO BREATH TEST AND BREATH ANALYSIS

(1) A member of the Police Force may require a person to submit to a breath test or breath analysis if he has reasonable cause to suspect that -

(a) the person has committed an offence against section 8 or an offence of culpable driving;

(b) the person was the driver of a motor vehicle at the time of the occurrence of an accident on a public street or public place in which the motor vehicle was involved; or

(c) the person was in an accident upon a public street or public place owing to the presence of a motor vehicle and that person has, or had at the time of the accident, alcohol in his blood.

(1A) A member of the Police Force may require a person to submit to a breath test or breath analysis if

(a) he calls on the person to stop a motor vehicle that is travelling -

(i) on the carriageway on which a breath testing station is set up; and

(ii) in the direction in which the vehicle that is parked at the breath testing station is facing;

(b) the person stops such a motor vehicle; or

(c) it reasonably appears to him that the person may have taken action to avoid being called on to stop such a motor vehicle

at or near the breath testing station.

...

(6) A member of the Police Force shall not, by reason of the occurrence of an event referred to in sub-section (1) or (lA), require a person to submit to a breath test or breath analysis -

(a) if it appears to the member of the Police Force that the person has injuries and the member of the Police Force is not satisfied that it would not be detrimental to that person's medical condition for him to submit to the breath test or breath analysis within the period of 2 hours after the occurrence of the event; or

(b) at any time after the expiration of the period of 2 hours after the occurrence of the event."

1. Before the learned Magistrate, a question arose as to the proper construction of ss.8C and 8D. In particular, a question arose as to the meaning of the phrase "the event referred to in section 8D(1) or (lA) as a result of which the breath analysis...(was) carried out." On behalf of the respondent, it was submitted that the relevant "event" was the requirement referred to in s.8D(1) and (lA) by a member of the Police Force that a person submit to a breath test or breath analysis in certain circumstances. It would follow that the effect of s.8C was merely to deem the person to have had the concentration of alcohol in his blood which was revealed by the breath test or the breath analysis as at the time of the requirement. Where, as here, there was an interval between the time of the driving and the time of the requirement the certificate would not directly establish the blood alcohol concentration of the person at the former time; and if there had been an opportunity for the person to consume alcohol during that interval the certificate might have no evidentiary value at all.

2. The learned Magistrate rejected this submission, holding that the "event" mentioned in s.8C was one of the events or circumstances defined in s.8D(1)(a) (b) or (c) or in s.8D(1A)(a)(c) or (c).

3. The respondent appealed to the Supreme Court. The learned Judge allowed the appeal for the reason, shortly stated, that the only "event" which could possibly be relevant in the present case was the commission of the offence against s.8 referred to in s.8D(1)(a); but that such a construction was impermissible because the commission of the offence was the very issue to be tried. Since there was no other relevant "event", the prosecution could not avail itself of the deeming provision contained in s.8C.

4. In our opinion, as a matter of construction of s.8C and s.8D(1)(a), the "event" referred to in s.8C is the action - that is the driving, starting or putting in motion of a motor vehicle on a public street - which is the subject of the reasonable suspicion of the member of the Police Force that an offence under s.8(1) or (2) or an offence of culpable driving has been committed. There is nothing circuitous in such a construction of these provisions. A member of the Police Force might observe conduct which induces in him or her a reasonable suspicion that a person is driving under the influence of liquor to such an extent as to be incapable of having proper control of the vehicle (s.8(1)) or that the person has a concentration of alcohol in his or her blood exceeding 80 milligrams per 100 millilitres (s.8(2)). Yet proof of the alcohol blood concentration will still be desirably obtained by a breath test or breath analysis.

5. His Honour was much influenced by the reference, in s.8D(1)(a), to the phrase "committed an offence against" s.8. However, those words must be read in the whole context of s.8D(1). It was perhaps unfortunate that the draftsman, in an understandable desire to avoid having to repeat in that paragraph the full list of actions made offences under s.8, used wording which might be read as requiring that the offence must first be found proved before s.8C could be applied to s.8D(1)(a). However we think that the intention is clear. When read in context the provision does not assume that an offence has already been committed, let alone that it has been found to have been committed. It merely provides that a requirement to submit to a test or analysis may be made by a member of the Police Force in the defined circumstances. For present purposes, those circumstances are that the member of the Police Force has reasonable cause to suspect that the person has committed an offence against s.8, that is to say, has driven a motor vehicle on a public street having a concentration of alcohol in his blood equal to or in excess of the prescribed amount.

6. It follows, in our view, that the relevant "event" for the purpose of s.8C, in this case, was the driving of the motor vehicle on a public street which was the subject of the suspicion of Sgt. Stevens, based on reasonable grounds, that Mr. McMellon had a concentration of alcohol in his blood equal to or in excess of the prescribed amount. The certificate of the breath analysis required by Sgt. Stevens was admissible to prove the concentration of alcohol in Mr McMellon's blood at that time.

7. It was submitted on behalf of the respondent that the relevant "event" for present purposes was the requirement by a member of the Police Force to submit to a breath test or breath analysis. We reject this construction. It is clear from the terms of s.8D(6) that a distinction was intended to be drawn between an "event" referred to in s.8D(1) or (1)(a) and such a requirement.

8. It was further submitted on behalf of the respondent that the relevant "event", for present purposes, was the formation by the member of the Police Force of a suspicion, reasonably based, that the appellant had committed an offence under s.8. We reject this construction also. A suspicion might be formed long after the completion of the driving, when the member of the Police Force first learned the facts. We agree with the learned Judge that there is nothing in logic or in the language or context of ss.8C(c) and 8D to suggest that such a meaning was intended. Furthermore it is not possible to apply this construction to s.8D(1A) for there is nothing in that subsection referring to reasonable cause to suspect.

9. Finally, it was submitted on behalf of the respondent that, at the least, there is some ambiquity in the statute and that a strict construction of the statute calls for his acquittal. Reliance was placed on the decision of the House of Lords in Rowlands v. Hamilton (1971) l WLR 647.

10. The modern approach in construing penal statutes was stated by Gibbs J. (as he then was) in Beckwith v. The Queen (1976) 135 CLR 569, at p 576 as follows:
    
    

"The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences: see R. v. Adams (1935) 53 CLR 563, at pp 567-568; Craies on Statute Law, 7th ed.

(1971), pp 529-534. The rule is perhaps one of last resort".

1. This passage was approved recently by Gibbs C.J., Mason, Wilson and Dawson JJ. in Waugh v. Kippen (High Court of Australia, unreported, 20 March 1986, at p 7). The application of the ordinary rules of construction here lead to a conclusion which involves no ambiguity in or doubt as to the meaning of s.8C and s.8D. It follows that no question can arise of resolving any doubt or ambiguity in favour of the respondent. In other words, this is not a case of the kind described by Lord Reid in Rowlands v. Hamilton, supra, (at p 650) where a statutory provision is reasonably capable of two competing interpretations.

2. We would allow the appeal and set aside the order of the Supreme Court quashing the conviction of, and penalty imposed upon, the respondent under s.8(2) of the Act.