Shelmerdine v SA Police

[2001] HCATrans 289

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A14 of 2000

B e t w e e n -

STEPHEN ROSS SHELMERDINE

Applicant

and

SOUTH AUSTRALIAN POLICE

Respondent

Application for special leave to appeal

McHUGH J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON FRIDAY, 17 AUGUST 2001 AT 10.36 AM

Copyright in the High Court of Australia

MR S.R. SHELMERDINE appeared in person.

MR B.M. SELWAY, QC:   If your Honours please, I appear with my learned friend, MS S.D. COLE, for the respondent.  (instructed by the Director of Public Prosecutions (South Australia))

McHUGH J:   Yes, Mr Shelmerdine.  You appreciate you have 20 minutes to put your argument?

MR SHELMERDINE:   Yes, your Honour.

McHUGH J:   You do not have to take the whole of the 20 minutes, but you have 20 minutes and a light will come on, I think, three minutes before your time expires.

MR SHELMERDINE:   Thank you.  Before I start, your Honours, I received some information from the prosecution last night that they were going to talk more about the statistical side, which I thought had been heard in the two previous courts, and I have been informed that I should be talking more on the relevance of the general importance to the public as a whole.

McHUGH J:   That is a matter for them.  You probably know that this Court does not sit as a general court of appeal, that it only takes matters on when there is something about the case special enough to warrant the Court granting leave.  Of the many thousands of cases – probably tens of thousands of cases – that are heard in Australia each year, this Court can only hear 70 to 80 cases.

MR SHELMERDINE:   I will do my best.  First of all in regard to the respondent’s summary of argument on page 59 of the application book at 1.2:

The subject matter of the appeal concerns the interpretation of a South Australian Act which has no equivalent in other States.  The appeal does not raise any issues of general importance.

I disagree with that in the fact that the Road Traffic Act, section 47E(2a) of the papers I provided with you yesterday. You will have to excuse me, but I did not get to number them:

A member of the police force may require the driver of a motor vehicle that approaches a breath testing station established pursuant to section 47DA to submit to an alcotest.

Obviously, I presume the police can stop whoever they would like to.

Then further on in the papers I provided, I have some crime injustice statistical figures.  I have got it from 1999, 1998, 1997, 1996.  I have only highlighted on my one here the reading between .080 to .149.  The driver was convicted in 1999 with penalty for – 1 January to 31 December 1999, 2,736.  Then over the page, 1 January to 31 December 1998, with penalty, 3,238.  Over the page again to 1997, 1 January to 31 December, 3,051.  Then finally 1 January to 31 December 1996, 2,400.  That is just between .08 and .149, which is presumably the matter which relates to me.  That is a total of 11,425 people.

McHUGH J:   That is understandable.  The case really turns on the construction and application of the term “exaggerated” in section 47G(1) of the Act.

MR SHELMERDINE: I am sort of working towards that, your Honours. You can correct me if you think I am going the wrong way. As to the matter of importance, I think it is important for all those drivers. Then on page 84 of the papers I provided with you, section 55 of the Victorian Road Traffic Act – I just want to make this point.  On (10), which is paragraph 4 – have you got that in front of you?

McHUGH J:   Yes.

MR SHELMERDINE:   It says:

A person who is required under this section to furnish a sample of breath for analysis may, immediately after being given the certificate referred to in sub‑section (4), request the person making the requirement to arrange for the taking in the presence of a member of the police force of a sample of that person’s blood for analysis at that person’s own expense by a registered practitioner –

That is just to answer 1.2, “which has no equivalent in other States”.  I see that as an equivalent.

Getting back to the word “exaggeration”, also page 22 of the New South Wales Motor Vehicles Act, 1E, 1F and 1G, they all say:

Any person who, while there is present in his blood, the low range –

it is just trying to make a point here.  Then 1F, “Any person who, while there is present in his blood”, the middle range; “Any person who, while there is present in his blood”, the high range.  Most of the Acts which I have seen from Victoria and New South Wales, they seem to have more of a definite position, like a range or ‑ ‑ ‑

McHUGH J:   That is so but the case turns, does it not, on the majority of the Full Court’s construction of the term “exaggerated reading” and what that meant?

MR SHELMERDINE:   That is correct, your Honour.  Also, just today in the papers that you provide at the front there about my case, Sherlmerdine v The Police, it says an incorrect reading there of the back calculation:

the Full Court erred in relying on a difference in levels of 0.0063 –

It was actually demonstrated that the rate was 0.0065, not 63.

McHUGH J:   That document is not put out by the Judges.  I assume it is some document that is put out by the office staff.  It is nothing to do with us.  I have never seen it and neither ‑ ‑ ‑

MR SHELMERDINE:   Yes, but it is a lower rate which is 0.081 minus 0.0745, which is .0065.  I mean, we are talking about scientific evidence and I think any amount should be deemed to be seen as exaggerated, considering that all the professional witnesses - Dr Sykes worked out all the margins for error, and that has been taken into account.  I have always admitted guilt to the lesser offence, which I believe that is what I should have been charged with in the first place.

HAYNE J:   Half of your case is, is it not, that “exaggerated” means not right by being too high to any extent?  That is the nub of it, is it not?

MR SHELMERDINE:   That is what the Supreme Court was suggesting, your Honour.  I think that any amount should be deemed to be exaggerated, so if I am under – I mean, I do not think you can have the wording of a category 2 offence.  The statutory definition, as you know, fixes its lower limits as a concentration of alcohol in the blood of not less than; it also says “not less than”.  That could be more than but it is not less than.

McHUGH J:   But Justice Williams took the view in your favour that any overstatement should be treated as a significant inaccuracy and the majority judges did not agree with that view.  They thought it should be taken as meaning “unduly magnified” or “inflated beyond the limits of fact, justice and truth” or “excessive”.  They relied on dictionary definitions.  Why should we grant special leave to appeal to determine an issue like that?  This provision is unique to South Australia.  None of the comparable legislation in any other State has a similar provision to the South Australian provision.  It is no doubt a matter of importance to people in South Australia, but is it sufficiently important legally that this Court should grant special leave to appeal?  That is the question.

MR SHELMERDINE:   Correct me if I am wrong, your Honour.  I thought the Victorian legislation was similar, that you can work out ‑ ‑ ‑

McHUGH J:   But it does not use the word “exaggerated”.

MR SHELMERDINE:   No, that is what I mean.

McHUGH J:   That is the critical factor, that the case turned on the construction, as lawyers call it, or meaning and the application to the facts of this case of the term “exaggerated”.

MR SHELMERDINE:   But, as you just said, your Honour, my whole future obviously relies on a dictionary meaning of the word “exaggerated” when we are talking about scientific evidence.

McHUGH J:   I understand that, but you probably heard the last case.  There was a man convicted of murder.  His whole future lies on it, but we did not think that he had sufficient prospects of success to warrant the grant of special leave.  This Court is not an appeal court generally.  It is an appeal court in one sense but its primary function is to declare the law for the nation.  There are thousands of cases decided in this country every year and arguably decisions are wrong in a percentage of them, but that is not sufficient for us to grant leave.  There has to be something more than an argument that the decision is wrong or may be wrong.

MR SHELMERDINE:   Your Honour, I am led to believe then in Evans v Benson, Chief Justice King, that blood is intrinsically superior to breath.  So then if you have worked out the margins for error and you are stating that blood is intrinsically superior, how can you then come along and say, “Forget the blood because we’re going to go by this word ‘exaggerated’”?  If you state that it is intrinsically superior in Evans v Benson ‑ ‑ ‑

McHUGH J:   That is what Chief Justice King said but it is against you, is it not, that the legislature departed from what he said in Evans v Benson and has used this term “exaggerated reading”?  There are obviously two views open as to what it means.  Justice Williams took one view and the majority judges took another view.  Why should this Court grant leave to decide which of those two views is better?  A point has now been settled in South Australia.

MR SHELMERDINE:   Because you are probably going to have lots of people come before the courts now and ‑ ‑ ‑

McHUGH J:   That is so but their cases will be determined in accordance with what the Full Court said in this State in this particular case.  This is a very important case from your point of view.  We understand that, but we have to look at other interests.

MR SHELMERDINE:   So what you are saying then is my notice of appeal and the readings in regard to category 2, the statutory meaning of a category 2 offence, because of the word “exaggerated”, that really the category 2 offence makes it a little bit sort of iffy of what that really means then?  If you are under .08, you are convicted of a category 2 offence and if you are over, you are a category 1 offence.  So it stems on a word called “exaggerated”.

McHUGH J:   I am afraid that is what it does depend upon.  That is what Parliament has said and if you think that is unfair, then the proper forum is the Parliament to change it.

MR SHELMERDINE:   I have written to the Parliament, your Honour.  It did not help.

McHUGH J:   That is what Parliament has said and that is what the courts have to apply.

MR SHELMERDINE:   I would just like to say one thing if you do not mind.

McHUGH J:   Yes.

MR SHELMERDINE:   On page 55 of my application book I quoted the Macquarie dictionary meaning.  It has probably got no relevance to you what you have just said to me.  Intrinsically:  belonging to a thing by its very nature.  Superior:  higher in rank, of greater grade or quality, greater in quantity.  That is when I used to be a motor mechanic.  We are talking about millimetres in bores.  I will not get too far off the question.  That is deemed to be a large amount.  So when you are talking about “exaggerated”, would not a fair person think you should be able to quantify the difference at least, especially when you have got a fixed category 2 definition of under .08.

HAYNE J:   The solution that other Parliaments have adopted is the solution that prevents the driver effectively challenging the result.  The result of the test is the result of the test, period.  That is the solution that other Parliaments have adopted.

MR SHELMERDINE:   I understand you saying that, your Honour, but it then raises the point – obviously drink driving is not good, I agree with you, but what is the use of having blood tests at all really if no one can quantify the word “exaggerated”?  What is the use really?

McHUGH J:   That is an argument you really have to address to the Parliament.  Courts have to do their best to apply it to particular facts.  The majority gave the term a meaning and they said the facts of your case did not come within it.

MR SHELMERDINE:   I did think that is what I was here for today, your Honour.  I thought you people had sort of the power to change the legislation, which I believe it should be.

McHUGH J:   We have no power to change legislation.  We have to interpret legislation, the same as any other court, but before we interpret legislation we have to be convinced:  one, that you have an arguable case; and two, that it is of sufficient importance that it should be one of the handful of cases, so to speak, that this Court will hear each year.  The Court has to hear cases concerning the powers of government, whether Acts of Parliament are valid or invalid, and we can only hear about 80 cases a year.  That is the most we can hear out of the all the cases that are decided in Australia.

MR SHELMERDINE:   Okay, your Honour, I have no further questions.

McHUGH J:   Thank you very much for your – no, we need not hear you, Mr Selway.

The decision of the Full Court in this matter turned on the construction and application of the term “exaggerated” in section 47G(1a) of the Road Traffic Act 1961 (SA). The statutory provision is unique. No other State has a similar provision in its comparable legislation. The construction which the majority of the Full Court gave to the term “exaggerated” in section 47G was one that was open to it. In our view there is nothing about the case that would warrant the grant of special leave to appeal. Accordingly, the application is dismissed.

AT 10.56 AM THE MATTER WAS CONCLUDED