Stephen Rollings v Peter Andrew Thomas Barter - [2003] ACTSC 57

STEPHEN ROLLINGS v PETER ANDREW THOMAS BARTER
[2003] ACTSC 57 (21 July 2003)

MOTOR TRAFFIC (ALCOHOL AND DRUGS) ACT 1977 (ACT) – motor vehicle accident – no attendance by police – no immediate attendance at hospital - assertion that alcohol was consumed post-accident – meaning of “relevant period” for taking samples – nexus between accident and attendance at hospital – proximity of testing to time of accident – a “reasonable time” – extension of time under the Act – impracticable for police to take sample – obligation of attending doctor or nurse to take sample for alcohol concentration determination – reasonable belief of doctor or nurse – admissibility of analyst’s certificate as to alcohol concentration determination.

Magistrates Court Act 1930 (ACT), s 219B(1)(a)

Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 3, 14, 15, 15AA, 18A, 19, 23(1A), 41, 42

Motor Traffic (Alcohol and Drugs) (Amendment) Act (No.2) 1997 (No. 53 of 1997)

Road Transport Legislation Amendment Act 1999 (ACT), Schedules 1, 3, 4

Motor Traffic (Alcohol and Drugs) Act 1977 (ACT)

Legislation Act 2001 (ACT), s 139

Evidence Act 1995 (Cth), ss 9(3)(d), 135, 136, 137,138

McLachlan v Mackey (1994) 124 ACTR 1; 119 FLR 332; 77 A Crim R 250

R v Britton [1973] RTR 502 (UKCA)

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 14 of 2003

Judge: Higgins CJ
Supreme Court of the ACT
Date: 21 July 2003

IN THE SUPREME COURT OF THE  )
  )  No. SCA 14 of 2003
AUSTRALIAN CAPITAL TERRITORY  )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:STEPHEN ROLLINGS
Plaintiff

AND:PETER ANDREW THOMAS BARTER
Defendant

ORDER

Judge:  Higgins CJ
Date:  21 July 2003
Place:  Canberra

THE COURT ORDERS THAT:

The appeal is dismissed.

The parties may be heard as to costs.

This is an appeal by way of order to review pursuant to s 219B(1)(a) of the Magistrates Court Act 1930 (ACT) (the MC Act).

THE BACKGROUND

The appellant is a police officer who, as informant, charged the respondent with contravening s 19(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (the RT (A & D) Act) in that “he in the Australian Capital Territory on 27 March 2002, did drive a motor vehicle, on a public street, with level 4 alcohol in his blood”.

Though that was the brief description of the offence, it was more particularly alleged that, on 27 March 2002, the respondent drove a motor vehicle on the Tidbinbilla Road, between 5.15 pm and 5.30 pm. He had an accident, in that he swerved to avoid hitting a kangaroo. The vehicle left the road and rolled over. He called his wife on his mobile phone. She attended and transported him home.

At about 8.15 pm, having allegedly consumed intoxicating liquor at home, the respondent, who by then was in considerable pain, attended Calvary Hospital. On being given a history that he had been injured in a motor vehicle accident, the attending…

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: [2003] ACTSC 57
Decision Date

CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory considered an appeal from a Magistrates Court decision that dismissed a charge against the respondent, Peter Andrew Thomas Barter, for driving a motor vehicle with a blood alcohol concentration exceeding the prescribed limit. The appeal hinged on the interpretation of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) concerning the timing and conditions under which blood samples can be taken to test for alcohol concentration. The respondent was involved in a motor vehicle accident and attended a hospital several hours later, where a blood sample was taken and found to contain a high level of alcohol. The prosecution argued that the sample was validly taken under s 15AA of the Act, which imposes a duty on medical staff to take a blood sample if they reasonably believe a person is a driver involved in an accident. The respondent contended that the sample was not validly taken as it was not within the "relevant period" defined by the Act, which starts from the cessation of driving and ends two hours after arrival at the hospital. The Court agreed with the respondent, concluding that the duty under s 15AA only applies if there is a continuous nexus between the accident and the attendance at the hospital, which was broken in this case. The Court found that the sample was not taken within the relevant period and thus could not be used to prove the offence. The appeal was dismissed.

Orders