Taylor v Younge - [2000] WASCA 64

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: TAYLOR -v- YOUNGE [2000] WASCA 64

CORAM: SCOTT J

HEARD: 22 FEBRUARY 2000

DELIVERED : 16 MARCH 2000

FILE NO/S: SJA 1205 of 1999

BETWEEN: TERRY CHARLES TAYLOR
Appellant
AND
SHARRON PATRICIA CHARMIAN YOUNGE
Respondent

Catchwords:

Appeal against decision on a voir dire - Admissibility of blood and urine samples - Driving under influence of drugs to such an extent as to be incapable of having proper control of vehicle - Samples taken from respondent not "given" to respondent in accordance with Road Traffic Act 1974 s 69(1) - Respondent under sedation in hospital - Unable to comprehend questions or statements - Respondent not of sufficient consciousness to be aware of samples being give to her - Divergence in wording of legislation between States - Respondent denied of lawful opportunity to independently test samples taken from her - Evidence rightly excluded

Legislation:

Road Traffic Act 1974 s 63(1), s 69(1)

Result:

Appeal dismissed

Representation:

Counsel:

Appellant: Mr J A Thomson
Respondent: Mr I Weldon

Solicitors:

Appellant: State Crown Solicitor
Respondent: Corinne Griffin & Associates

Case(s) referred to in judgment(s):

Beauglehole v Smith [1972] WAR 61
Bunning v Cross (1978) 141 CLR 54
Currie v Houweling (1994) 20 MVR 376
McKechnie v Jones (1975) 13 SASR 184
Police (SA) v Fountaine (1999) 29 MVR 191
Police v Jervis (1998) 70 SASR 429
R v Swaffield (1998) 192 CLR 159
R v Turner (1975) 12 SASR 373
Smith v Brooks (1983) 1 MVR 89
The Queen v Little (1976) 14 SASR 556

Case(s) also cited:

Bracken v Gordon [1981] WAR 14
DPP v Kindred (1995-96) 15 WAR 133
IW v City of Perth (1997) 146 ALR 696
Thompson v Lill (1989) 9 MVR 287

SCOTT J: The respondent was charged by summons that on 29 January 1998 at Maida Vale, she drove a motor vehicle, registration No 6ZW 649 on a road, namely Kalamunda Road, whilst under the influence of drugs to such an extent as to be incapable of having proper control of such vehicle, contrary to s 63(1) of the Road Traffic Act 1974 (the "Road Traffic Act"). Following a voir dire, as to the admissibility of the analysis of the respondent's blood taken in circumstances to which I will refer later in these reasons, the blood analysis results were excluded. The prosecution was therefore unable to prove the charges which were dismissed.
The appellant relies upon three grounds of appeal, namely:
"The learned Magistrate erred in dismissing the complaint in that he:
(a)erred in fact and in law in finding that samples of blood and urine taken from the Respondent were not given to or retained by the Respondent in accordance with Section 69(1) of the Road Traffic Act 1974;
(b)erred in law in excluding evidence of the results of the analysis of the samples of the Respondent's blood and urine;
(c)further and in the alternative, erred in law in excluding evidence of the results of the analysis of the Respondent's blood and urine without considering whether or not that evidence should be excluded in the exercise of his discretion".
The charges arise out of an incident on 29 January 1998 when the respondent was driving a Gemini sedan down Kalamunda Road towards Boonooloo Road. There was some evidence that the Gemini being driven by the respondent was "tailgating" the vehicle in front. Eventually the Gemini failed to navigate a bend and veered off the road swiping another vehicle and ultimately overturning.
At the time of the accident, the respondent was driving her children to school. The evidence establishes that the respondent was very severely injured in the accident and suffered extensive facial trauma. A statement made by her to the police after the accident indicated that she had no recollection of the accident.
The respondent was taken from the scene of the accident to Royal Perth Hospital where she was visited at 12.20 pm by a police officer, Senior Constable Geoffrey Gordon Linnley ("Linnley"). The respondent was in the emergency section of the hospital and her face and eyes were bandaged to the extent that she was unable to talk. Linnley testified that he asked the respondent to provide a sample of blood and urine. He also told the respondent that because of the accident in which she had been involved, and because her injuries prevented her from providing a sample of her breath for analysis, he required her to provide samples of blood and urine. Linnley testified that in response to that, the respondent nodded her head up and down in agreement.
Linnley explained to the respondent that the doctor, who had been looking after her, would take the sample, and again, he said, the respondent nodded her head up and down in approval. The doctor then obtained a sample of the respondent's blood for analysis. The sample was divided into two parts as required by s 69 of the Road Traffic Act and the blood sampling analysis regulations. It is common ground that the sample was dealt with in accordance with those regulations. In addition, the same doctor took a urine sample, part of which was also provided to Linnley, and part to the respondent.
In accordance with the requirements of s 69 of the Road Traffic Act, part of the samples taken from the respondent were placed by Linnley on a stainless steel table which was a short distance away from the bed upon which the respondent was lying. Linnley's evidence was that the table was about 1‑1/2 metres from her. He said that he did not recall any response from the respondent when he told her that he was leaving those samples for her.
The respondent's evidence on the voir dire was that she had no recollection of anything that happened to her between the time that she arrived at the hospital and the time that she came from the operating theatre at about 10.00 pm on the night of the accident. In particular, the respondent testified that she had no knowledge of the samples that Linnley said he had provided to her. The respondent testified that she was not conscious and that she had no recollection whatsoever of Linnley at the hospital.
The basis of the voir dire and the difficulty that arose for the learned Magistrate arises out of the construction of s 69(1) of the Road Traffic Act which provides:
69Blood Analysis
(1)Where, pursuant to the provisions of Section 66, a medical practitioner takes a sample of a person's blood for analysis the sample shall be taken in accordance with the regulations, or otherwise in a proper manner, and shall be divided into two parts, each of which shall be deemed to be sample of the person's blood for the purposes of this Act, and one of which shall be given to or retained for the person from whom it was taken, or shall be given to some other person on behalf of the first mentioned person, and the other of which shall be given to a member of the Police Force."
The question that fell for determination was whether Linnley's act of leaving the blood sample for the respondent in the circumstances in which I have described was a sufficient compliance with the provisions of s 69(1). I would add that the focus of the case was on the blood sample rather than the urine sample, but for present purposes nothing turns upon that distinction.
The evidence, which the police proposed to adduce at the respondent's trial from a chief forensic scientist of the chemistry centre was that analysis of the respondent's blood revealed Diazepam 0.3 mg/l; Desmethyldiazepam 0.2 mg/l; Morphine 0.17 mg/l; Carboxytetrahydrocannabinol <10 ug/l. The urine was also analysed but the only relevant finding was the detection of Monoacetylmorphine.
It was made plain to the learned Magistrate that the prosecution wished to call Professor Patterson, as an expert chemist, to explain the significance of those findings in the respondent's blood and urine, but the case never progressed that far.
In dealing with the issues on the voir dire, the learned Magistrate gave some consideration to those matters. His Worship recited the respondent's history from the time of the accident until she arrived at the hospital, including the arrival of Linnley. His Worship also referred to the drugs (Morphine and Maxillon) that the hospital had administered.
It is to be noted that, as part of the voir dire, the respondent called Richard James Langham, a senior lecturer in pharmacology, from the School of Pharmacy at the Curtin University in Bentley. Mr Langham testified that the respondent's hospital records indicated that she had received 10 mg of Morphine followed by a further 2 mg of Morphine and 10 mg of Maxillon. Mr Langham testified that the total Morphine administered was likely to have been 10 mg, rather than 12 mg. He said that the effects of the Morphine and the Maxillon was to produce respiratory depression, drowsiness or sedation (which he described as mental clouding). In addition, Mr Langham testified:
"The disruptive effects of 2 drugs would have had a very high probability of disrupting the defendant's ability to comprehend the questions put to her by interviewing police officers, for example, and to give reasoned responses. In other words really to understand the nature of the questions and what was going on. That's I think a reasonable view of the combination of drugs."
Mr Langham went on to testify that as a result of the trauma associated with the accident, and in combination with the drugs supplied to her, "it becomes even more reasonable that she failed to recall events".
Returning to his Worship's reasons, the learned Magistrate referred to the fact that the respondent was able to nod her head up and down in response to Linnley's questioning. His Worship also referred to the fact that when Linnley told the respondent that he was putting the samples with her belongings she did not respond to that comment.
The question that fell for determination was whether the conduct of Linnley, in placing the samples on the table in the manner described, was a sufficient compliance with s 69 of the Road Traffic Act (set out earlier in these reasons). In particular, one question was whether Linnley's conduct, in that respect, was sufficient to comply with the requirement that:
"One of which shall be given to or retained for the person from whom it was taken, or shall be given to some other person on behalf of the first mentioned person".
In dealing with that section, his Worship said when referring to Mr Langham's evidence:
"As I have said he is an expert witness and a pharmacologist. His evidence was that the defendant would almost certainly have suffered substantial deterioration and drowsiness from the administration of the drugs that were administered to her in accordance with the medical records that have been produced and that the effect would have a very high probability of destroying the defendant's ability to comprehend the questions put to her and for her to give reasoned responses with regard to matters that have been put to her".
His Worship referred to the authorities which will be discussed later in these reasons and concluded:
"However, having looked at the evidence that is before me on the voir dire and having read the cases to which I have referred there is no doubt that in this case the defendant was suffering from the effects of a serious injury, traumatised and she had been administered drugs by the medical staff at the Royal Perth Hospital. She after all, as I have said, was in the emergency department of the hospital and was no doubt at the time deeply traumatised regarding her experience.
I am of the view that in the case of - - under the circumstances outlined in this case whether there was a sufficient giving or retaining of the samples that were taken by Dr McNair given to or retained on behalf of the defendant. I am of the view that the evidence before me on the voir dire in relation to the taking of and the analysis of the samples should not be admitted because in my view there was not, given the circumstances of which the defendant found herself in, a sufficient giving of the samples to her in accordance with the provisions of the Road Traffic Act. Therefore the evidence that has been put in with regard to the voir dire as to the taking analysis of the samples should not be admitted into evidence".
The authorities to which his Worship referred, and indeed the authorities to which counsel have referred in the course of the argument in relation to this appeal show the divergence in the legislation that applies in different States of Australia. In the The Queen v Little (1976) 14 SASR 556, Bray CJ, with whom Walters and Jacobs JJ concurred, was dealing with the equivalent South Australian section, which required the second part of the sample to be "delivered to or retained on behalf of" the person from whom the sample of blood was taken. The distinction between that section and the one presently under consideration is the difference between the word "delivered" in the South Australian provision and the word "given" in the Western Australian provision. Whether those two expressions have the same meaning or not will be discussed further in these reasons. In Little's case, Bray CJ said at 566-567:
"I think delivery implies a conscious acceptance of the thing delivered or a previous authorisation of the mode of delivery adopted or, possibly a conscious rejection of it when it is proffered. A man may authorise expressly or impliedly delivery of an article to him by delivery of it at his premises or to his agent and the agency may be general as well specific. No doubt if I order goods by post they are delivered to me when left in my letterbox or on my doorstep, even if they are stolen before their arrival comes to my knowledge. But I do not think putting an article amongst the possessions of an unconscious man can constitute delivery of it to him, until he recovers consciousness and expressly or impliedly accepts it into his custody, or, it may well be, though I express no final opinion on it, on learning of its presence at his bedside rejects it. The risk of disappearance before he becomes conscious of its presence is not one to be borne by him. If that happens there has been no delivery".
In Little's case, Bray CJ went on to consider the common law and Roman law position in supporting the conclusion which he had reached.
In Tasmania, the equivalent provision in that State was considered in Smith v Brooks (1983) 1 MVR 89 where Everett J considered the provision in the Road Safety (Alcohol and Drugs) Act 1970 (Tas). That section (s 13(5)B) provided:
"One of the containers containing a part of the sample of blood or urine shall, as soon as practicable after it has been taken, be tendered to the person from whom it was taken".
Smith v Brooks again illustrates the way in which the different statutes are worded. The use of the word "tendered" in the Tasmanian statute is to be distinguished from the word "delivered" in the South Australian statute and the word "given" in the Western Australian Act presently under consideration.
In Smith v Brooks, Everett J considered the judgment of Bray CJ in Little and said at 95:
"If in fact there is a 'tender' of the container, I am unable to discern in the Act any room for an argument that a supervening event, especially one of a subjective character, may make the established 'tender' legally inadequate".
The important aspect of Smith v Brooks is that the Magistrate in that case found as a matter of fact that the appellant, who was the motorist, was conscious at the time the sample was taken from him but later said that he had no recollection of the events at the hospital. The Magistrate's finding was that the appellant was conscious at the time the containers were offered to him and knew what was going on but had subsequently forgotten. That finding of fact, in my view, was of critical importance in that case. I would stress that there is no such finding in the case presently under consideration. In my view it is clear from his Worship's finding that the respondent, in this case, did not have sufficient consciousness to be aware of, or to be able to recall, Linnley's act in placing the samples on the bedside table.
In McKechnie v Jones (1975) 13 SASR 184, the Full Court of South Australia (comprising Hogarth, Mitchell and Zelling JJ) dealt with a case where the driver's portion of a blood sample was placed in a locked safe at a hospital for 3 months after the taking of the sample and was then destroyed. The sample never came into possession of the defendant, nor was he told that the sample was available for him. In that case, the judgment focussed upon the words of the relevant South Australian provision "retained on behalf of". That is sufficient to distinguish McKechnie's case from the present because there is no suggestion in this case that the respondent's sample was retained by anybody on her behalf.
In Western Australia, the only case that counsel have been able to refer to of some similarity to the present is Currie v Houweling (1994) 20 MVR 376, where Wallwork J considered a case which once again was different on its facts. In that case, the sample of the appellant's blood kept by the police had been interfered with by a third person. The police obtained a valid search warrant and took the appellant's portion of the sample which was being kept in a refrigerator at the appellant's residence. That sample was thereafter analysed and formed the basis of the prosecution. Wallwork J held at 379:
"The certificates on which the conviction was based, were admitted into evidence although the appellant had been deprived of his 'statutory' sample. The learned Magistrate was also not satisfied that the appellant had been informed that his sample was at the Government Chemical Laboratory 'should he require his own independent examination'."
Wallwork J concluded that:
"The appellant was deprived of his sample and his opportunity to independently check the percentage of alcohol in the blood. The 'code' had not been followed and therefore the justification for the statutory presumptions was removed. As the presumptions caused the conviction, that conviction should now be set aside".
The "presumptions" to which Wallwork J was referring in Currie v Houweling goes back to an earlier judgment of Burt J (as he then was) in Beauglehole v Smith [1972] WAR 61 at 62:
"The Act, for its own purposes, adopts a scientific method of proof. For the purposes of section 32 of the Traffic Act (driving a vehicle on the road being admitted) the result produced by the prescribed method leads directly to a verdict of guilty if the reading is in excess of 0.15. If such were the case, then the law operates directly upon the measurement to produce the verdict of guilty. It is a test tube verdict. Between the measurement and the verdict there is no room for judgment. But the method whereby the measurement, and hence the verdict, is reached is of course controlled by the law - by the Act and by the regulations made under it. And if that method is departed from, the result which is produced, whatever scientific validity it may have, has, in my opinion, no statutory significance".
In some respects, in this case, the situation is different. This is not a case of a blood alcohol reading which relied upon a statutory presumption. As I have indicated earlier in these reasons, the findings of drugs in the respondent's blood were findings which, if accepted, could lead to a conclusion that the respondent was under the influence of Heroin and/or some other illegal drug or drugs at the time of the accident. In that sense, this is not a test tube verdict. Nonetheless, that having been said, what is important in this case is that the respondent, through no fault of her own, was deprived of her referee sample and her opportunity to independently check the percentage of drugs in her blood in exactly the same way as happened in Currie v Houweling. In this respect it is to be noted that s 69 not only provides for the second part of the sample to be "given" to the person from whom the test was taken but provides as an alternative that that sample be "retained for the person from whom it was taken, or shall be given to some other person on behalf of the first mentioned person". In any case of doubt, and this was clearly a case where there should have been a doubt, it was not sufficient compliance with the section for the respondent's sample simply to have been left upon the table alongside the bed occupied by the respondent in a public hospital. Whether the samples should have been given to some other person on behalf of the respondent, or retained by the police officer until such time as the respondent had recovered sufficient consciousness for the sample to be "given" to her, does not fall for determination.

A further case which illustrates the range of varying circumstances that can apply in these situations is Police (SA) v Fountaine(1999) 29 MVR 191 where a bench of five judges in South Australia reviewed an earlier decision of R v Turner (1975) 12 SASR 373. In Fountaine's case, the driver of the vehicle concerned was taken by ambulance to hospital where a blood sample was taken from her whilst she was unconscious. The sample was placed into two containers as is required and the doctor completed the relevant notice. The law in South Australia require the notice to be supplied to the driver but the driver, as I have indicated, was unconscious. As a consequence, the driver's copy of the notice was handed to a nurse.
The driver, however, did ultimately receive the portion of the blood sample, although she never received the notice.
In that case, Doyle CJ (with whom Prior, Lander, Bleby, and Martin JJ agreed) said at 202:
"41In the present case the magistrate found that the respondent, in due course, obtained her part of the sample of blood that had been taken from her. There is no suggestion that that part of the sample was not suitable for analysis. In fact, the magistrate found that the case was not one in which the 'effect of the failure to supply the certificate (the notice) in the personal manner required of the doctor by the section, has led to a loss of statutory safeguard'.
In my opinion, under those circumstances, Turner did not require the exclusion of the evidence of the result of the analysis of the blood. Nor does there appear to be any reason to do so in the exercise of the discretion that a court has in a criminal case, although that issue is not before us. I consider that the magistrate gave to Turner a wider application than was appropriate, in the light of the manner in which Turner has been limited by later decisions. The evidence should not have been excluded on the basis upon which the magistrate did so.
42What, then, is the status of the proposed evidence of the result of the analysis of the blood taken from the respondent? If I am right in concluding that Turner does not oblige the court in the circumstances of this case to exclude the evidence, it follows, in my opinion, that the admission of the evidence is to be decided by applying the ordinary principles of the law of evidence, including (to the extent relevant) the discretion identified by the High Court in R v Swaffield (1998) 192 CLR 159. On the other hand, it might be argued that logically the principle underlying Turner cannot be confined in the manner proposed in Mazinski, and that properly understood the decision in Turner does not require the exclusion of the evidence in the present case."
The important distinction between Fountaine's case and this one is that in this case the driver of the vehicle concerned was deprived of the blood sample entirely, so that the possibility of obtaining an independent analysis of the blood was thereby lost. The loss of the statutory safeguard in this case was the more critical because of the nature and variety of drugs identified in the portion of the sample retained by the police.
There are many reasons why the driver of a motor vehicle who has been subjected to a blood test may lose the opportunity of having that sample tested: see Police v Jervis(1998) 70 SASR 429 where the driver of the vehicle concerned decided not to have his portion of the blood sample tested because a member of the medical staff at a hospital told him that the reading would likely be higher than the breath analysis. As a result, he did not have his portion of the blood sample tested.
An analysis of these cases indicates that providing the person from whom the sample has been taken is conscious or sufficiently alert to understand that a portion of the blood sample has been supplied then, whether that sample is accepted or rejected does not matter. Once the person concerned has been "given" the sample in the sense that it has been passed on to that person who is in a position to acknowledge its acceptance, then that is sufficient to meet the requirements of the statute. It is, of course, for the prosecution to establish beyond reasonable doubt that this step occurred. If that step is not complied with, then these authorities establish that the court has a discretion to exclude the analysis of the police sample. Ordinarily that will be based upon the usual discretion as outlined in cases such as Bunning v Cross (1978) 141 CLR 54 and R v Swaffield (1998) 192 CLR 159. However, in cases where the failure by the police has caused the loss of the opportunity to have the referee sample analysed as was the case here, then the court may more readily exclude the analysis of the police sample. That, in my opinion, is what occurred here.
In the present circumstances, in my view, his Worship was correct in concluding that the placing of the sample of the respondent's blood on the bedside table was not a sufficient compliance with s 69 in all of the circumstances. The evidence of the analysis of the police portion of the sample, which was incapable of independent verification, was therefore, rightly excluded.
The appellant has failed to satisfy me that his Worship made an error of law or fact in all of the circumstances of the case. The appeal will be dismissed.