Tasmania v Moyle

[2008] TASSC 64

[2008] TASSC 64

CITATION:            Tasmania v Moyle [2008] TASSC 64

PARTIES:  TASMANIA (STATE OF)
  v
  MOYLE, Jai

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  CRIMINAL
FILE NO/S:  276/2008
DELIVERED ON:  28 October 2008
DELIVERED AT:  Burnie
HEARING DATE:  27 and 28 October 2008
JUDGMENT OF:  Slicer J

CATCHWORDS:

Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Propriety of police questioning and other conduct by police – Generally.

Aust Dig Criminal Law [429]

Traffic Law – Offences – Particular offences – Alcohol and drug related offences – Tasmania – Testing and analysis procedure – Breath analysis not practicable.

Aust Dig Traffic Law [81]

REPRESENTATION:

Counsel:
           Appellant:  J Hartnett
           Respondent:  G A Richardson and C Hanson
Solicitors:
           Appellant:  Director of Public Prosecutions
           Respondent:  Greg Richardson

Judgment Number:  [2008] TASSC 64
Number of paragraphs:  12

Serial No 64/2008
File No 276/2008

TASMANIA v JAI MOYLE

ORAL RULING DURING TRIAL  SLICER J

28 October 2008

1. The accused is charged on indictment with one count of causing grievous bodily harm through dangerous driving and two of perverting justice contrary to the Criminal Code, ss167B, 105.

1. The allegations arise from a motor vehicle accident in which the partner of the accused was seriously injured.  The prosecution case is that the accused was the driver involved in the single vehicle accident, who was affected by alcohol and tiredness which resulted in acts of speeding and failure to properly control the vehicle, and who had made false statements to the emergency 000 reporting centre, and to a police officer who attended the scene of the accident. 

1. Following the accident the accused was taken by ambulance to a hospital for examination and treatment.  There an authorised officer, entitled to direct the accused to provide a sample of breath for analysis, elected to direct the submission to the taking of a sample of blood for analysis.  The State seeks to lead evidence that the results of the analysis of that sample support its case of an act of dangerous driving. 

1. The evidence of analysis of a sample of blood taken from the accused on 14 May 2008, will be admitted on the trial. 

1. The Court accepts that the police officer was authorised to give directions, administer a breath test and exercise other powers within the meaning of the Road Safety (Alcohol and Drugs) Act 1970 ("the Act"). He was entitled to require the accused to undertake a breath test following the events which gave rise to this indictment. He elected not to do so. The accused was being treated in a hospital and at the relevant times was being attended by a medical practitioner. The officer purported to exercise a power afforded by the Act, s10(6)(c), which provides:

"10 — (6)    Where a person is liable to submit to a breath analysis a police officer, if —

(a)… ;

(b)… ; or

(c)it appears to that officer that, by reason of that person's condition, it is not practicable for that person to submit to the analysis —

may direct that person to submit to the taking of a sample of his blood for analysis."

1. He gave as his reasons:

(1)There was blood on the face, hands and clothes of the accused, although it was the first which was relevant to his decision. 

(2)The patient had been fitted with an oxygen mask, which would require removal before a breath test could be administered. 

(3)The nature of the injuries, namely the presence of the blood rather than a specific condition, made it difficult to undertake the procedure, or at least its mechanics. 

(4)The presence of blood with its attendant risks of infection or transmission posed a potential risk to the health of the officer. 

(5)The nature and components of the breathalyser instrument made it susceptible to the effects of fluid intrusion.  If the subject of the tests were to cough or vomit up blood, the intrusion of blood was likely to render the instrument inoperable. 

1. The primary evidence of the officer is accepted.  The defence did not seek to give or adduce evidence.  Defence counsel contends that the legislative provision is restricted to the actual medical condition of the patient and the taking of the blood by an invasive procedure rendered the results of the sample taken improper or in contravention of law as provided by the Evidence Act 2001, s138, (“the Act”) and is not to be admitted unless there is an affirmative exercise of discretion in favour of the prosecution.

1. Admissibility of evidence on this trial is not dependent on the specific provisions of the Act (see R v Hawkes [1976] Tas SR 155 (NC 6); R vHinman [1970] Tas SR 285 (NC 8); and Richardson v Shipp [1970] Tas SR 105). Given my eventual conclusion, it is not necessary to determine whether the wording of the Act, s138, alters the position as stated in those cases, although it may be that it does (see R v Swaffield (1998) 192 CLR 159 and Ridgewayv R (1995) 184 CLR 19). I reach the same conclusion whether or not non-compliance renders the evidence as tainted by impropriety or contravention.

1. Here the accused, although affected by the accident, did not object to the taking of a sample of his blood. That affords either a separate basis for reception or negates any claim that its taking was involuntary. He was advised of the consequences of refusal which, even if flawed by the process or procedure followed, was an identical consequence if the direction had been given in accordance with the Act, s10A(1). Even if the power claimed under s10(6) was flawed, the remaining power was afforded by Parliament under another provision. The consent given is a matter relevant to any eventual exercise of discretion afforded by the Act, s138.

1. The term "it is not practicable" is wider than prejudicial to the health, care or treatment of the patient. Its meaning is not unfettered and means more than convenience.  Practicable can be regarded as a neutral word, taking its colour from the context of the legislative provision (see Lane v Soutar [1954] Tas SR 35). Alone it can be defined as "able to be affected, accomplished or done" with an equivalence to "feasible" (Oxford, 1993).  Words and phrases traditionally defined, Butterworths, 1989, refers to English cases and a statutory definition of "having regard to conditions and circumstances" as a question of fact (see Richards v Highway Ironfounders (West Bromwich) Ltd [1955] 3 All ER 205) and although stricter in its application than "cost", the measures adopted ought to be looked at in the light "current knowledge or invention" (see Adsett v K & L Steelfounders & Engineers Ltd [1953] 1 All ER 97, affirmed by the Court of Appeal [1953] 2 All ER 320). Within this legislation, the term differs from other terms used such as "as is necessary or reasonable cause", (the Act, s10); "sufficient for the purpose", (the Act, s13(4)(b)); "as is appropriate to the case", (s11(1)); "not possible", (s13(4)(a)), and the like. The term "as soon as practicable" is used in the context of the Act, s11(1), in relation to the provision of information concerning rights and obligations. Here I am satisfied that the combination of circumstances as described by the officer in the light of current knowledge of blood-related risks entitled the officer to reach a conclusion that:

(1)by reason of the patient's condition, namely the presence of the blood and the desirability of fixing or use of an oxygen mask;

(2)it was not practicable to require submission to a breath analysis.

Once these two conclusions were reached, an authorised officer acting in good faith was entitled to exercise the statutory power to require the person to submit to the taking of a sample of blood for analysis. There had been a valid exercise of power. It follows that the considerations required by the Act, s138, are not necessary.

1. If that determination be incorrect then, nevertheless, I am satisfied that despite taint, the evidence ought to be admitted. The nature of the crime alleged and the circumstances said to give rise to an act of dangerous driving involves sobriety, tiredness and reaction or otherwise to the injury to the partner and the consequences of the conduct. To use the words of the legislation, the desirability of admission outweighs the manner of its obtaining. I do not accept that any breach or propriety, if such be the case, was a systemic process designed to lessen the rights of citizens or to take advantage of persons in a position of vulnerability. The officer acted in a manner which was monitored by a medical practitioner, was recorded fully and was in accordance with a considered interpretation of statutory power. The reading of the form to the medical practitioner, even if it contained reference to both breath/blood samples, was but an oversight and could be said to have alerted the medical practitioner to both forms of the taking of the required sample. I regard the matters set out in the Act, s138(3)(a), (b) and (c) as favouring admission. The gravity of any impropriety or contravention was but minor given the power afforded elsewhere in the legislation (s10). The matters of the consent provided by the accused, absence of objection from the medical practitioner, and the forms of protection designed to ensure the accuracy of the evidentiary outcome, namely, the protection of the sample and the accuracy of the forensic analysis, favour reception of the evidence. I do not regard the conduct of the officer as reckless or indifferent to the rights of the accused. I give the matters identified in s138(d) and (e) little weight. Assuming contravention, the difficulty in obtaining the sample evidence other than by the method chosen by the officer would favour the prosecution.

1. The evidence will be admitted.  Permitted use or reliance on other parts of the legislation, given existing authority, remain another matter.