The Queen v Pluto
[2020] NTSC 11
•28 February 2020
CITATION:The Queen v Pluto [2020] NTSC 11
PARTIES:THE QUEEN
v
PLUTO, Christopher Bob
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:21900048
DELIVERED: 28 February 2020
HEARING DATE: 25 February 2020
JUDGMENT OF: Hiley J
CATCHWORDS:
EVIDENCE – admissibility – BAC Certificate – effect of the words “taken to be” in s 29AAT of the Traffic Act 1987 (NT) – whether the existence of a BAC reading precludes the tender of other evidence about the driver’s intoxication in a prosecution under s 174F of the Criminal Code 1983 (NT) – admissibility of lay evidence about the driver’s intoxication
IMM v The Queen (2016) 257 CLR 300, R v Barnsley [1972] 2 NSWLR 220, R v Jones (1986) 19 A Crim R 236, R v Leaf-Milham (1987) 47 SASR 499, R v McConnell [2013] NTSC 81; 284 FLR 16, R v Williams [1992] 1 VR 374, referred to
Criminal Code 1983 (NT) s 174F(1), s 174(2), s 174F(3)(a), s 174F(3)(c)
Evidence (National Uniform Legislation) Act 2011 (NT) s 55(1), s 137
Misuse of Drugs Act 1990 (NT) s 40(c)
Rail Safety (National Uniform Legislation) Act 2012 (NT) s 30
Traffic Act 1987 (NT) s 29AAA, s 29AAA(5), s 29AAK, s 29AAT, s 29AAT(4)(a), s 29AAT(5)(a), s 29AAU, s 44AREPRESENTATION:
Counsel:
Crown:M Nathan SC and R Everitt
Accused:G Chipkin and T Clelland
Solicitors:
Crown:Director of Public Prosecutions
Accused:Northern Australian Aboriginal Justice Agency
Judgment category classification: B
Judgment ID Number: Hil2002
Number of pages: 20
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINThe Queen v Pluto [2020] NTSC 11
No. 21900048
BETWEEN:
THE QUEEN
AND:
CHRISTOPHER BOB PLUTO
CORAM: HILEY J
REASONS FOR JUDGMENT
(Delivered 28 February 2020)
Introduction
The accused has been charged with two offences said to have been committed near Borroloola on 20 July 2018 when a motor vehicle which he was driving, a Toyota Landcruiser utility, hit a small termite mound and rolled over (the accident), resulting in the death of one passenger and serious harm to another. Count 1 is that he drove a motor vehicle dangerously and caused the death of Joseph Pluto, contrary to s 174F(1) of the Criminal Code 1983 (NT). Count 2 is that he drove a motor vehicle dangerously and caused serious harm to Paul Daylight, contrary to s 174F(2) of the Criminal Code.
At the time of the accident (about 6 pm), there were six people travelling in the vehicle. Three of them (including the accused) were inside the passenger cab and the other three, including the two victims, were on the rear tray of the utility.
The accused and the others had previously travelled in the utility on the bitumen road from Borroloola to the Heartbreak Hotel at Cape Crawford where they consumed some alcohol. After leaving the Heartbreak Hotel they travelled back towards Borroloola on a dirt road. When they were about 30 km short of Borroloola the accused drove off the dirt road intending to locate and chase a “killer”.
The off-road terrain consisted of a level black soil plain featuring moderate timber with intermediate dispersion.[1] The accident site was about 40 m off a dirt track used to access a parcel of land which is commonly used for hunting.[2]
In the process of pursuing a cow, the vehicle turned around a tree and drove over a small mound of hardened earth believed to be a termite mound.[3] The police accident investigator was unable to calculate the precise speed the vehicle was travelling at the time it went over the small termite mound.[4] Bobby Pluto (a passenger in the cab of the utility) has said that the vehicle was travelling about “40 km per hour” and “steady turning” around the tree.[5] Mackewan Lansen, the other front seat passenger, said the car “had a bit of revs, but was going a bit quick”.
After going over the termite mound, the vehicle’s left side wheels became airborne and the vehicle rolled onto its back.[6] Both victims were thrown from the tray of the vehicle and suffered various injuries at the scene.[7] Mr Pluto, said he did not see anything on the ground and only heard about the termite mound after the accident. The other passenger, Mr Lansen, said he did not remember if he saw anything on the ground before the car tipped over.
Prior to the accident the accused and the passengers had purchased and consumed alcohol. The precise amount of alcohol differs between the witnesses but evidence was given at the oral committal that the accused drank about “5-6 beers”[8] and “3 nips of rum”[9] at various points over a six hour period prior to the accident.[10] Mr Lansen said that the accused “had a can in his hand” when he was driving and was driving “maybe a bit half shot”, and “a bit over half shot, but like half full drunk, sort of.”
After police attended the scene of the accident, the accused was taken to the Borroloola medical clinic for treatment of an injury to his right arm. At the clinic, the accused was spoken to by Constable Amy Bennett who requested he undergo a breath test. The breath test was conducted at 9.54 pm and returned a positive reading of 0.009 grams of alcohol in 210 litres of exhaled breath.[11]
At 11.04 pm, the accused was subjected to a blood test at the clinic which was later sent for toxicological analysis and found to contain “Nil grams of alcohol per 100 Millilitres (g/100mL) of blood”.[12]
Crown’s case
The Crown contends that the accused’s driving was dangerous because of a combination of factors including the state and condition of the vehicle, the accused’s manner of driving and the accused’s intoxication. The Crown asserts that the accused drove a vehicle: (1) whilst in an unroadworthy condition; (2) whilst under the influence of alcohol; (3) whilst there were unrestrained passengers in the tray of the vehicle; (4) in a manner given the circumstances above that placed the passengers at risk of injury and was thereby dangerous; and (5) that the accused’s conduct caused the death of one person and serious harm to another.
In relation to the first particular the Crown intends to adduce evidence of a range of defects in the vehicle that existed at the time of the accident. Counsel for the accused objects to the tender of any such evidence unless it relates to a defect that contributed to the accident. The Crown is in the process of seeking a further expert report in relation to these matters. Accordingly, consideration of this objection must be deferred until that happens.
In relation to the second particular, namely driving whilst under the influence of alcohol, it appeared that the Crown may be relying upon: (i) a “countback” from the blood alcohol readings obtained during the breath test and later during the blood test; and (ii) lay evidence of various passengers concerning the accused’s consumption of alcohol prior to the accident and his apparent state of intoxication at the time as an accident. The Crown does not intend to adduce any expert evidence regarding these matters.
Counsel for the accused objected to the Crown adducing any of this evidence. At the hearing of the voir dire counsel for the Crown indicated that the Crown would not be relying on the BAC readings and a countback, but would be tendering the lay evidence foreshadowed.
Accordingly, the hearing on 24 February, and these reasons, only relate to the proposed tender of the lay evidence.
Contentions on behalf with the accused
The primary focus of defence counsel’s written submissions was the result obtained from the blood test (BAC) and the “deeming” effect of s 29AAT, in particular s 29AAT(4)(a) and or s 29AAT(5)(a) of the Traffic Act 1987 (NT). In short, counsel contends that because the accused’s BAC was nil at 11.04 pm, his blood alcohol content is “conclusively” deemed to have been nil at the time of the accident. Accordingly, that, and any other evidence of his intoxication, at the time of the accident, cannot be relevant within the meaning of s 55(1) of the Evidence (National Uniform Legislation) Act 2011 (NT) (ENULA), as it could not “rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.”
Defence counsel also contended that those provisions in s 29AAT preclude the tender of any other evidence that might go to showing the actual state of intoxication of the driver.
Such evidence might be that of an expert performing a “countback” exercise from the BAC and or evidence that the driver had consumed alcohol between the time of his driving and the time of the BAC. Such evidence might also be that of lay people, such as the other occupants of the motor vehicle, who could give direct evidence relevant to the driver’s actual state of intoxication at the time of the accident.
As the Crown is not seeking to adduce evidence of the first kind, it is not necessary for me to determine that legal question. However, it is necessary for me to rule on counsel’s contention that s 29AAT precludes the tendering of any evidence of the latter kind, namely evidence that might otherwise be relevant to showing whether and to what extent the driving ability of the accused may have been affected by his prior consumption of alcohol.
That contention primarily goes to whether such evidence would be admissible at all, because of the alleged conclusive deeming effect of s 29AAT. Counsel contended in the alternative, that even if such evidence was prima facie relevant and admissible, it must be rejected under s 137 of the ENULA because its probative value would be weighed by the danger of unfair prejudice to the accused.
Section 29AAT argument
In their written submissions counsel for the accused contended that:
… s 29AAT eliminates the need to engage in a fact finding exercise as to whether the accused was affected by alcohol at the time of the accident.
Section 29AAT governs the use of blood alcohol content (BAC) readings in court proceedings. Importantly, s 29AAT is not limited to offences under the Traffic Act and applies “in any proceedings in a court”.
Section 29AAT operates as a conclusive deeming provision for BAC test results. It provides that a BAC reading on a blood analysis certificate taken after an accident is deemed to be the BAC reading of the driver at the time of the accident.
Defence counsel set out the relevant subsections of s 29AAT and underlined those parts they wished to emphasise:
Use of indicated BrAC or BAC in court proceedings
(1) This section applies:
(a)in any proceedings in a court; and
(b)even if evidence is given that the person consumed alcohol after the time of the alleged commission of the offence (the relevant time) and before the breath analysis was carried out or the sample of blood was taken.
…
(4) If a sample of a person's blood is taken in accordance with section 29AAK:
(a)the BAC indicated by analysis of the sample is taken to be the BAC of the person at the relevant time; and
(b)any prohibited drug detected in the person's blood is taken to have been present in the person's body at the relevant time.
(5) If the person's blood is analysed because the person was taken to a hospital or health centre with injuries that may have been caused in a crash:
(a)the BAC indicated by the analysis is taken to be the BAC of the person at the time of the crash; and
(b)any prohibited drug detected in the person's blood is taken to have been present in the person's body at the time of the crash.
Defence counsel contended that in the present case, both subsections (4)(a) and (5)(a) are enlivened as the accused’s blood was taken in accordance with s 29AAK and it was also analysed because the accused was taken to a medical centre with injuries suspected of arising from the accident.[13] “As the accused returned a blood analysis certificate showing ‘Nil grams of alcohol’ it follows that the accused’s blood alcohol reading at the time of the accident is conclusively deemed to be nil.”
I interrupt here to note that s 29AAT does not use the words “conclusive” or “deem”. Rather it use the words “is taken to be”. Also, the BAC indicated by the analysis is “taken to be the BAC” at the relevant earlier time.
Defence counsel contended that “s 29AAT is clear in its terms. It is not framed as a rebuttable presumption, nor is there any exception.[14] The alcohol reading on the blood analysis certificate is the conclusive factual determination of the accused’s BAC reading at the time of the accident. When s 29AAT applies – as it does in this case – no fact finding is required in relation to whether the accused was affected by alcohol.”
During oral submissions, and in their supplementary written submissions, counsel for the accused went further than the contention put in the last sentence above. Counsel contended that s 29AAT renders it impermissible for other evidence to be given as to whether the accused was affected by alcohol at the relevant time, namely the time of the accident.
I reject that contention. Even where these particular backdating provisions of s 29AAT apply they would only apply to provisions where a particular BAC reading was an element of the offence. All they do is to create an artificial, but nevertheless prima facie presumption, that the driver would have had the same BAC reading at the relevant time (in most cases the time of the driving, or the time of the accident) as that later revealed when the blood test was actually taken.
The obvious example is the drink driving provisions of the Traffic Act, where a particular BAC reading defines whether the “blood alcohol content” falls within the ambit of “low-range”, “medium-range” or “high range”. See s 19(1) for the relevant definitions, and ss 21 to 23 for the relevant offences. As is clear from the explanatory statement[15] the main purpose of s 29AAT is to create a presumption which would apply despite the time lapse between the time of the driving and the time of the blood test and despite there being evidence that the driver consumed alcohol after the driving and before the blood test.
Interestingly, whilst the vast majority of the drink driving charges would be brought under one or other of ss 21 to 23 and would be based upon the breath alcohol content reading (BrAC) and/or blood alcohol content reading (BAC) obtained some time after the relevant driving, there are other drink driving offences which do not require evidence of a BrAC or BAC. For example, s 29AAA of the Traffic Act creates an offence where a person drives under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle. That provision could operate where there has not been a breath analysis or blood test and thus no BrAC or BAC. Further, s 29AAA(5) expressly permits the tendering of evidence other than the result of a breath analysis or blood test.
Counsel for the accused correctly pointed out that s 29AAT may apply “in any proceedings in a court”, including proceedings other than those under the Traffic Act. One example of this is the usage of BAC and BrAC in the Rail Safety (National Uniform Legislation) Act 2012 (NT). Indeed s 30 of that Act is substantially similar to s 29AAT of the Traffic Act.
Counsel for the accused relied on the decision of Olsson AJ in R v McConnell[16] and contended that that decision “makes clear that s 29AAT applies with respect to offences under the Criminal Code.” This is not correct. McConnell was not concerned with s 29AAT.
Rather the main concern of McConnell was s 29AAU of the Traffic Act which provides that: “In any proceedings in a court, a certificate” (which would include a BrAC or BAC certificate) “is prima facie evidence of the matters stated in the certificate and the facts on which they are based.” In McConnell counsel for the accused contended that the relevant breath analysis certificate was inadmissible in proceedings brought under s 174F(2) and (3)(c) of the Criminal Code. Olsson AJ rejected that contention and said, at [25]:
…, it has long been established that, absent some specific statutory provision to the contrary, evidence of breath or blood analysis results are admissible in relation to relevant criminal charges of offences other than those created by the Traffic Act.[17]
As noted that matter also concerned “drive motor vehicle dangerously” offences under s 174F of the Criminal Code. Further, again like this matter, the Crown was not relying on the deeming provision under s 174F(3)(a) where the driver is said to have been “under the influence of alcohol … to such an extent as to be incapable of having proper control of the vehicle.”
Counsel for the accused disagreed with the next part of Olsson AJ’s reasons where his Honour agreed with the Crown that:
… the dicta in the case of Williams[18] make it clear that the introduction of a certificate showing the result of a breath analysis as a basis for founding expert evidence of a back calculation of the level of alcohol at the time of commission of an alleged offence is both appropriate and proper. The reasoning in Williams renders it clear that the fact that a certificate is conclusive proof of a concentration at the “relevant time” as referred to in s 29AAT of the Traffic Act does not prohibit its use in proceedings under the Criminal Code as a basis for establishing an actual concentration level at the time of an alleged offence under that Code.[19]
Although the Victorian legislation, and hence the statutory presumption involved in the Victorian Court of Criminal Appeal’s decision in Williams, is slightly different to that under consideration here, the conclusions of the Full Court are apposite. At p 382:
… the certificate [analogous to a certificate rendered admissible under s 29AAU of the Traffic Act (NT)] was conclusive evidence of the facts and matters contained in it. It was conclusive evidence that the reading obtained, at the time stated, was 0.105 grams per millilitre of blood or 0.105 per cent. It was not conclusive evidence of the actual level of alcohol in the blood of the applicant at that time, or any other time. The certificate did not purport to contain those facts or matters. Such facts or matters would have to be implied or inferred from facts or matters contained in the certificate. But conclusiveness is given to the facts and matters contained in the certificate and not to any facts or matters that might be implied or inferred.
… It would remain open to both parties … to lead evidence to demonstrate that the blood alcohol level was in fact something different from the level indicated by the breath analysis certificate.
(underlining mine)
Similarly, a certificate under s 29AAU of the Traffic Act would be prima facie evidence of the matters stated in the certificate, and s 29AAT would have the effect that a BAC recorded in such a certificate would be “taken to be” the BAC at the “relevant time”[20] or at the time of the crash[21]. However, this would not be conclusive evidence of the actual level of alcohol in the blood of the accused at the time of his driving. Where the relevant offence is not one which depends upon a BAC reading, for example an offence of driving under the influence under s 29AAA of the Traffic Act or driving a motor vehicle dangerously under s 174F of the Criminal Code, the relevant question is the driver’s degree of intoxication at the time of his driving. Evidence of this can be led in the usual way, for example from lay witnesses who made relevant observations of the driver prior to and at the time of the alleged offending.
In their supplementary written submissions counsel for the accused distinguished Williams, as I have done, and contended that s 29AAT(5)(a) “means that the result of the analysis conducted pursuant to [the Traffic Act (NT)] is taken to be the actual blood alcohol content of the person at the time of the crash.” I disagree. Section 29AAT(5)(a) does not say that. All it says is that “the BAC indicated by the analysis is taken to be the BAC of the person at the time of the crash.” As I have already pointed out, this is all that is required for the purposes of satisfying the relevant elements of ss 21 to 23 of the Traffic Act.
Counsel also submitted that:
If evidence of a back calculation were allowed in, then the operation of s 29AAT would be rendered meaningless and the provision would have no work to do. This would be at odds with the broad ambit of s 29AAT(1) which expressly applies “in any proceedings in a court” as well as the statutory purpose outlined in the explanatory statement.
As the Crown does not propose to rely on any back calculations this contention does not need to be addressed now. However, I see no reason to disagree with Olsson AJ’s findings on that topic. In all cases where a particular BAC needs to be established, namely in common drink-driving cases under ss 21 to 23 of the Traffic Act (as distinct from cases such as McConnell and other cases where a particular certificate might be used under s 29AAU) s 29AAT clearly has work to do. This would be so irrespective of whether or not additional evidence was tendered, for example evidence of the kind referred to in s 29AAT(1)(b).
Further, acceptance of counsel’s contentions to the effect that s 29AAT precludes a party from tendering evidence of a person’s actual state of intoxication at the time of driving, could lead to obvious unintended consequences. For example, reliable and compelling evidence of multiple sober impartial bystanders that a driver had been consuming a considerable amount of alcohol and was at the relevant time obviously intoxicated would not be admissible if there was a BAC reading, even if that reading was taken many many hours after the relevant time.
In conclusion, I reject the contentions made on behalf of the accused in the present matter based on s 29AAT of the Traffic Act.
Relevance – s 55(1)
Evidence of other people who observed the accused and his drinking and who can give evidence about his appearance including his apparent intoxication, is relevant and admissible (subject to any relevant exceptions such as s 137 of the ENULA).
It is well established that the test to be applied in relation to offences similar to those under s 174F of the Criminal Code is objective “so that juries are invited to place themselves, in their minds’ eye at the scene of the accident, and to say whether the manner of driving was a dangerous piece of driving.”[22] Per Brinsden J at p 241 of Jones:
The fact that a driver is adversely affected by liquor is a relevant circumstance, and accordingly that evidence is admissible if it tends to show that the amount of drink taken would adversely affect a driver or in fact adversely affect the driver …
A jury may draw inferences about a person’s manner of driving. These may include drawing inferences, without medical evidence, “that alcohol tends to loosen inhibitions and diminish social responsibility, effects which could in turn tend to support the evidence” of other witnesses concerning other dangerous aspects of the person’s driving.[23]
Section 137 ENULA
Section 137 of the ENULA stipulates that a court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. The provision is framed in mandatory, not discretionary, terms. “Probative value” is defined in the Schedule to the ENULA as: “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.”
In IMM v The Queen, the High Court clarified that in assessing probative value for the purposes of s 137, a trial judge must proceed on the assumption that the jury will accept the evidence (and thus it is to be regarded as both credible and reliable).[24]
Counsel for the accused acknowledge that the Crown seeks to rely upon evidence of the accused’s alcohol consumption to infer a fact in issue, namely that the accused’s driving ability was adversely affected by alcohol.
They contend that “vague evidence about the consumption of ‘5-6 beers’ and ‘3 nips of rum’ over a 6 hour period prior to the accident is an extremely weak basis for such an inference to be drawn.” Counsel submitted that the probative value of that evidence is low because “the consumption of a small number of beers and a few swigs of rum over a six hour period is still consistent with the accused being able to control the vehicle without impairment.” I disagree. In my view evidence of the accused’s consumption of that quantity of alcohol within the period of six hours or so leading up to the time of the accident is probative and can assist the jury in drawing other inferences concerning the dangerousness of his driving. So too is Mr Lansen’s evidence that I referred to previously.
As to prejudice, counsel for the accused contended that the evidence may provoke “some irrational, emotional or illogical response from the jury”, or “the jury might be inclined to punish the accused for the prior conduct rather than confining its attention to the question of whether the Crown has established the elements of the offence in question beyond reasonable doubt.” Counsel did not state what they meant by the “prior conduct” apart from the accused’s consumption of alcohol prior to the accident and the fact that he was driving the vehicle with passengers on the rear tray. This is not relevant prejudice. Evidence of such prior conduct is admissible, relevant and probative of the dangerous driving said to have caused the death and serious injury to two of the three passengers on the tray of the utility.
Counsel also contended that “there is a real risk that the jury will impermissibly reason that the accused’s driving capacity was adversely affected by alcohol at the time of the accident, notwithstanding that the Crown has not led expert evidence to support such a proposition”; the jury would assign undue weight to that evidence; “the emphasis on drinking will become a ‘trial within a trial’ … thus artificially elevating its significance in the jury’s determination of the facts in issue”; “the evidence is likely to inflame the passions of the jury and provoke an emotional response given the strong negative connotations associated with drink driving”; and “the evidence is seductive in nature and the jury will be tempted to reason that because the accused consumed alcohol in the hours prior to the accident then he must have been driving dangerously”.
For the most part none of these contentions constitute unfair prejudice in the relevant sense. As I have said evidence of the conduct of the accused before and at the time of the accident is important evidence for the jury to receive and consider when assessing the accused’s driving at the time of the accident. Counsel will have the opportunity of challenging that evidence and making all of these points to the jury, including the absence of expert evidence. The trial judge would give the usual directions, for example about assessing the evidence impartially and drawing inferences in the proper way, and, if appropriate, additional directions about how to approach certain evidence.
I do not consider that the probative value of the evidence is outweighed by the danger of unfair prejudice to the defendant.
Determination
Accordingly, I dismiss this objection, and proposed to allow the Crown to adduce evidence from lay witnesses concerning the conduct and appearance of the accused prior to the accident, including his consumption of alcohol that day.
-------------------------------
[1]Annexe A: “Technical and Accident Related Information”, prepared by S/C Alan Green at [6.3].
[2] Ibid at [6.2].
[3] Ibid at [6.9]. The height of the terminate mound was estimated to be 120mm.
[4] Ibid at [6.12].
[5] Transcript of committal evidence of Bobbly Pluto at T36.5.
[6] See map of accident scene prepared by S/C Alan Graham (annexed to statement of 31 December 2018).
[7] Annexe A: “Technical and Accident Related Information” at [6.10].
[8] Transcript of committal evidence of Bobbly Pluto at T34.9.
[9] Ibid at T39.5 (a “nip” was described as akin to a “swig” from the rum bottle at T39.6)
[10] The main evidence at the committal of the accused’s alcohol consumption came from Bobby Pluto.
[11] Statement of C/1C Amy Bennett (dated 25 July 2018) at [47].
[12] Certificate of blood analysis attached to statement of Ruth Canty (dated 22 August 2018).
[13] The present case can be distinguished from a case where a blood sample is taken under s 29AAK but the driver was not involved in a crash (for example, pursuant to s 29AAG which allows a police officer to request a blood sample where the breath analysis instrument is malfunctioning or the officer has reasonable cause to suspect that the person is under the influence of a drug). Such a scenario would only engage s 29AAT(4)(a) but not s 29AAT(5)(a).
[14] The conclusive deeming provision in s 29AAT can be contrasted with s 44A of the Traffic Act which concerns proof of offences using traffic infringement detection devices (i.e. red light cameras). In relation to such offences, the certified photo is “evidence” of the facts relied upon by the prosecution, however, the section does not go so far as to say it is conclusive proof. Section 29AAT can also be compared with s 40(c) of the Misuse of Drugs Act which creates a rebuttable presumption that drugs in a vehicle are “taken to be” in a person’s possession unless the person proves otherwise.”
[15] Explanatory Statement for the Transport Legislation (Drug Driving) Amendment Bill 2007 (NT).
[16] R v McConnell [2013] NTSC 81; 284 FLR 16.
[17] R v Jones (1986) 19 A Crim R 236; R v Barnsley [1972] 2 NSWLR 220.
[18] R v Williams [1992] 1 VR 374.
[19] McConnell at [26].
[20] Section 29AAT(4)(a). The “relevant time” is defined as “the time of the alleged commission of the offence” per s 29AAT(1)(b) of the Traffic Act.
[21] Section 29AAT(5)(a).
[22] R v Jones (1986) 19 A Crim R 236 at p 241 quoting Jackson CJ in Smith [1976] WAR 97 at 105.
[23] R v Leaf-Milham (1987) 47 SASR 499 at 501.5.
[24] IMM v The Queen (2016) 257 CLR 300 at [43]-[45] (per French CJ, Kiefel, Bell and Keane JJ).
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