HIGH COURT OF AUSTRALIA
GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY AND CALLINAN JJ
IAN MACLEOD THOMPSON APPELLANT
AND
HIS HONOUR JUDGE BYRNE OF THE
COUNTY COURT MELBOURNE & ORS RESPONDENTS
Thompson v His Honour Judge Byrne & Ors (M106-1997) [1999] HCA 16
14 April 1999
ORDER
Grant of special leave to appeal revoked.
On appeal from the Supreme Court of Victoria
Representation:
B J Salmon QC with D H Colman for the appellant (instructed by
Hoyle Da Silva)
No appearance for the first respondent
W H Morgan-Payler QC with D M Salek for the second and third respondents (instructed by Director of Public Prosecutions (Victoria))
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Thompson v His Honour Judge Byrne & Ors
Criminal law – Motor traffic offence – Prescribed concentration of alcohol – Breath samples furnished within 3 hours after driving exceeded prescribed limit – Later blood sample showing concentration of alcohol within prescribed limit – Whether offence committed – Proper interpretation of s 49(1)(f) of the Road Safety Act 1986 (Vic).
Precedent – Stare decisis – High Court – Whether Mills v Meeking (1990) 169 CLR 214 should be reconsidered.
Mills v Meeking (1990) 169 CLR 214.
Road Safety Act 1986 (Vic), s 49(1)(f).
GLEESON CJ, GUMMOW, KIRBY AND CALLINAN JJ. This appeal from the Court of Appeal of Victoria[1] secured special leave provisionally to permit an application for reconsideration of the decision of this Court in Mills v Meeking[2]. If the authority established by that decision stands, the appeal must fail.
[1]Thompson v His Honour Judge Byrne [1998] 2 VR 274.
The parties presented arguments on the preliminary question of whether, in accordance with established principles, the Court should reconsider its authority in such a recent decision. For convenience, the matter having gone so far and the merits of the argument being relevant to the question of reconsideration, the Court permitted the criticism of Mills (and its defence) to be fully debated. In our opinion, the decision in Mills was correct. It should be affirmed. No question therefore arises as to overruling it.
The facts
Mr Ian Thompson (the appellant) was stopped by police at Kalorama in the State of Victoria early in the morning of 18 July 1994. He was not stopped for a suspected traffic offence. There had been no accident involving his motor vehicle. In accordance with the Road Safety Act 1986 (Vic)[3] ("the Act") a preliminary breath test was undertaken. That test led the police officer to form the opinion that the appellant's blood contained alcohol. The results of this test were not recorded, although the appellant led expert evidence at trial in an effort to prove that his likely blood alcohol reading at that time would probably have been 0.043 grams per 100 millilitres of blood. Proof of this fact would have been a defence to a charge…
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- Case
- [1999] HCA 16
- Decision Date
CaseChat Overview and Summary
The central legal issue before the High Court was whether the decision in *Mills v Meeking*, which interpreted s 49(1)(f) as creating an offence based on the breath analysis result irrespective of the blood alcohol concentration at the time of driving, should be reconsidered and overturned. Mr Thompson contended that the section should be read to apply only to drivers involved in an accident, arguing that the literal interpretation led to an unjust outcome given the discrepancy between the breath and blood test results. The Court also considered the broader legislative intent behind provisions creating offences based on breath analysis.
The High Court unanimously held that *Mills v Meeking* was correctly decided and affirmed its reasoning. The Court reasoned that the legislative purpose of s 49(1)(f) was to overcome the evidentiary difficulties associated with proving the blood alcohol concentration at the precise moment of driving, a problem inherent in earlier "driving under the influence" offences. The Court found that the literal construction of s 49(1)(f), which focuses on the result of a breath analysis conducted within three hours of driving, was a deliberate legislative choice to simplify proof and enhance enforcement. The Court also noted that the legislative history and subsequent amendments to the Act did not suggest any intention to alter this interpretation.
Consequently, the High Court revoked the grant of special leave to appeal. As the Court found no reason to reconsider its previous decision in *Mills v Meeking*, the appeal on the merits of Mr Thompson's case did not proceed. The Court emphasised that its duty was to give effect to Parliament's clearly stated purpose in the legislation.
Orders
Orders of the court
Grant of special leave to appeal revoked.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by:
There may be some discordances between the presumption apparent in s 48(1)(a) of the Act and the true operation of par (f) of s 49(1). This was remarked upon by McHugh J in Mills[63]. However, they are not sufficient to cast doubt on the overall scheme of the legislation and the meaning of the applicable offence as preferred by the majority in that case.[63](1990) 169 CLR 214 at 243.Two additional considerations There are two further considerations which came to light during argument of this appeal and which reinforce the conclusion which the majority preferred in Mills. The first relates to the solution which the minority favoured, involving the insertion of the phrase "when it was involved in an accident" into the definition of the offence provided by par (f) of s 49(1). The inclusion of those words would not alter the nature of the offence provided by par (f), expressed as it would still be in terms of the result of breath analysis as recorded or shown by a breath analysing instrument. The adoption of the additional phrase would not have the consequence of altering the character of that offence. It would simply add a precondition: that the motor vehicle was "involved in an accident". That would leave most of the suggested defects of the offence created by par (f) applicable in the case of motorists submitted to breath analysis after an accident. The appellant would escape; but his criticisms of the section would remain unrepaired. Secondly, counsel for the appellant very properly drew to the notice of the Court the report of the Law Reform Commission ("the Commission"), Alcohol, Drugs and Driving[64]. Although concerned with the laws of the Australian Capital Territory, and not those of Victoria, that report provides a useful reminder of the background against which, in the various jurisdictions of Australia, in England and elsewhere, legislation such as the Act was enacted to supplement the armoury of the police and prosecuting authorities with novel offences designed to overcome demonstrated deficiencies of earlier legislative provisions[65]. [64]Alcohol, Drugs and Driving, Report No 4 (1976) (hereafter "ALRC 4").[65]ALRC 4 at 115. When that report is read to afford knowledge of the general legal context in which offences such as that in par (f) of s 49(1) were enacted, the purpose of the provision becomes clearer. As the Commission points out, the proliferation of motor vehicles after the early years of this century presented a serious social problem caused by driving which was affected by the consumption of alcohol and other drugs. This led, initially, to the adaptation of established criminal offences and the invention of new ones such as "driving under the influence". Section 49(1)(a) of the Act is an offence of the last-mentioned kind. However, that offence gave rise to difficulties of proof and contested evidence concerning the appearance of the person charged or of that person's driving or conduct[66]. This in turn gave rise to a "rash of breath analysis legislation" which, it was hoped, would "put at rest disputes of the past."[67] However, it was quickly found that the expression of the offence in terms of driving with a specified quantity of blood alcohol concentration itself led to further disputation. The offence so described had the inherent defect of requiring an equation between the presumed blood alcohol concentration at the time of driving and the finding established by the relevant test, necessarily taken some time later. The Commission described the "back-calculation" imported by the new offence (of which par (b) is an example) as prone to import either injustice or uncertainty[68]:"If the solution adopted is that the finding at the time of the test is deemed to be the level at the time of driving, ie that the two levels are the same, the legislation will be enacting on its face a 'statutory lie'. Every scientist qualified in this field will tell a court … that it is almost impossible that the two levels should be the same. But if they are not the same, and if they are known not to be the same, why should a statute require a presumption, known to be false, that they are the same?"[66]ALRC 4 at 115 par 267.[67]ALRC 4 at 115 par 267.[68]ALRC 4 at 115-116 par 270. (Footnote omitted.)