Stone v McIntyre - [2007] VSC 406

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5178 of 2007

CATHERINE STONE	Appellant
v
ANNE McINTYRE	Respondent

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JUDGE:	FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 October 2007
DATE OF JUDGMENT:	19 October 2007
CASE MAY BE CITED AS:	Stone v McIntyre
MEDIUM NEUTRAL CITATION:	[2007] VSC 406

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CRIMINAL LAW – Motor vehicles – Evidence – Blood sample – Error of law - Compliance with s. 56 of Road Safety Act1986 – whether person who took blood sample was a doctor within meaning of s. 56 - Road Safety Act 1986 s 49, 56, 57

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr S. Hardy	Law Offices of Barry Fried
For the Respondent	Mr T. Gyorffy	Angela Cannon, Solicitor for Public Prosecutions

TABLE OF CONTENTS

Facts...................................................................................................................................................... 2

The hearing before the Magistrate................................................................................................. 3

Issues on the appeal........................................................................................................................... 4

The relevant provisions.................................................................................................................... 5

The certificate.................................................................................................................................... 10

Counsel's argument........................................................................................................................... 9

Appeal on the question of law...................................................................................................... 10

Analysis.............................................................................................................................................. 12

Does the Road Safety Act s 56 require the blood sample to be taken by a doctor? 14
Was it open to the Magistrate to find that a doctor took the sample ? 16

Summary............................................................................................................................................ 19

Orders................................................................................................................................................. 18

HIS HONOUR:

Facts

In the early morning of the 26th day of March 2006 the appellant, whilst driving a motor vehicle, collided with another motor vehicle at the controlled intersection of Canterbury Road and Wantirna Road, Heathmont.

Soon after the collision, the respondent, Constable Anne McIntyre, attended the scene. Her evidence was that there was considerable damage to the appellant’s vehicle. When asked how the accident had happened, the appellant replied “I don’t know, I thought the light was yellow”.

The respondent gave the following unchallenged account of the appellant’s presentation:

“She seemed to be extremely intoxicated from alcohol. There was a very strong alcohol – and I can actually remember standing there being very concerned, very surprised that this young girl had driven, and I remember thinking how fortunate she was and indeed the people in the other vehicle that no-one had been seriously injured. Her eyes were heavily bloodshot, she was unsteady on her feet and her words were very slurred. I still remember quite clearly to this day how surprised I was. I remember standing having a conversation with her at the scene, I’m sure I said to her that I was very glad that she was OK”.

Subsequently the appellant was taken by ambulance to the Maroondah Hospital. Both the respondent and a Senior Sergeant McGregor attended the hospital, having followed the ambulance to the hospital. At the hospital a blood sample was taken and subsequently a certificate provided to the appellant in respect of the taking of the sample. It is the contents of that certificate which form the subject of the appeal.

On the 31st day of August 2006 the appellant was charged with breaching s 49(1)(g) of the Road Safety Act - the blood sample disclosed an…

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.

Continue reading Stone v McIntyre

Details

AGLC: Stone v McIntyre [2007] VSC 406
Case: [2007] VSC 406
Decision Date: 19 October 2007

CaseChat Overview and Summary

In the case of Stone v McIntyre, the dispute arose following an incident where the defendant, McIntyre, was charged with a drink driving offence. The evidence against him included a blood sample taken at the scene. The primary issue before the court was whether the blood sample was lawfully obtained and whether it complied with the requirements of the Road Safety Act 1986. Specifically, the court needed to determine if the person who took the blood sample was qualified as a "doctor" within the meaning of section 56 of the Act. The court also considered whether the failure to comply with section 56 rendered the evidence inadmissible under section 57 of the Act.

The court addressed the question of who constituted a "doctor" for the purposes of section 56, which requires that a blood sample be taken by a doctor or under a doctor's direction. The court examined the legislative intent and relevant case law to interpret the term "doctor". It concluded that the person who took the blood sample in this case did not meet the statutory definition of a doctor, thereby rendering the blood sample inadmissible under section 57. The court held that the error in the procedure for taking the blood sample constituted a significant irregularity that could not be overlooked, leading to the suppression of the evidence. The court's decision hinged on a strict interpretation of the statutory requirements and the importance of procedural compliance in ensuring the integrity of the evidence.

The outcome of the case was that the blood sample evidence was deemed inadmissible due to non-compliance with the statutory requirements. Consequently, the charges against the defendant McIntyre were dismissed. The court's ruling underscores the necessity for strict adherence to legislative mandates in the collection of evidence, particularly in criminal proceedings where the admissibility of evidence can significantly impact the outcome of a case.

Orders