Thompson v Judge Byrne

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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).

  1. 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.

  2. 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

  3. 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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Details
Case
[1999] HCA 16
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr Ian Thompson against a decision of the County Court of Victoria, which had applied the interpretation of s 49(1)(f) of the *Road Safety Act 1986* (Vic) established in *Mills v Meeking*. Mr Thompson was charged with driving with a prescribed concentration of alcohol after providing breath samples indicating a blood alcohol concentration of 0.105 grams per 100 millilitres of blood, despite a later blood sample taken within three hours of driving showing a concentration of 0.043 grams per 100 millilitres. The prosecution proceeded under s 49(1)(f), which creates an offence if a person furnishes a breath sample within three hours of driving and the analysis indicates a concentration above the prescribed limit.

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

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 under s 49(1)(b) of the Act, a matter to which we will return later. In accordance with s 55(1), the appellant was required to take a breathalyser test, administered about one hour after the preliminary test. This showed a blood alcohol concentration of 0.105 grams per 100 millilitres of blood. A second test was performed about 20 minutes later in accordance with the then provisions of the Act[4]. The result was unchanged. Exercising his rights under the Act[5], the appellant requested that arrangements be made for the taking of a sample of his blood for analysis by a designated medical practitioner. This was done. The test was taken exactly three hours after the appellant last drove his motor vehicle. According to the analysis of the blood sample, a blood alcohol concentration of 0.043 was found.[3]The Act, s 53(1)(a).[4]The Act, s 55(4)(c).[5]The Act, s 55(10). The appellant was charged with two offences against s 49(1) of the Act, namely those created by pars (b) and (f) of that subsection. The Court was informed that the practice of prosecutors in Victoria, where persons are required to submit to breath analysis and a reading of over 0.05 results, is that such persons are charged under both pars (b) and (f). Customarily the prosecution under par (f) proceeds first. If a conviction of that offence is recorded, the charge under par (b) is either withdrawn or dismissed. In accordance with that practice, the prosecution first proceeded against the appellant on the charge based on par (f). A magistrate at Ringwood convicted the appellant of that offence. According to the certified extract of the Magistrates' Court register, the charge based on par (b) was then withdrawn. The appellant appealed against his conviction to the County Court of Victoria[6]. His appeal was heard by Judge Byrne (the first respondent). Judge Byrne has submitted to the orders of this Court. The hearing before him proceeded as a hearing de novo but one limited to the offence charged pursuant to par (f). The appellant called evidence to suggest, by a comparison of the results of the breath and blood tests and normal rates of elimination of alcohol from the blood, that the equipment which had earlier recorded the results of breath analysis was not in working order or properly operating. A defence to a charge under par (f) is available if that is proved[7]. Judge Byrne rejected that defence on his evaluation of the evidence. His conclusion in that regard is not now contested.[6]Magistrates' Court Act 1989 (Vic), s 83(1).[7]The Act, s 49(4).

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GLEESON CJ, GUMMOW, KIRBY AND CALLINAN JJ (dissent) GAUDRON J (dissent) HUGH J (dissent)
Still further confirmation, albeit non-conclusive[75] for this opinion, may be derived from the history of the legislation since the decision in Mills was announced. After the orders of the Full Court of the Supreme Court of Victoria, affirmed in that case, Parliament amended the Act to address the particular problem of post-driving consumption of alcohol. Otherwise, it left the offence as provided by par (f) of s 49(1) unchanged. Although there have been many amendments to the Act in the decade since Mills was decided, no amendment has been proposed, and none adopted, to repeal the provisions of par (f). The defects of the previous offences had led to a completely new approach to such offences. This new approach was apparently a deliberate one by Parliament. The duty of courts is to give effect to Parliament's clearly stated purpose. The "purposive approach" to the construction of legislation affords no authority to do otherwise. On the contrary, it obliges that approach.[75]Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310 at 329, 351 citing R v Reynhoudt (1962) 107 CLR 381 at 388.Reopening, conclusion and order In the light of the conclusion that Mills was correctly decided, its authority must stand. There is no occasion, therefore, to consider the circumstances in which this Court will review one of its own decisions in which the law on a particular subject has been authoritatively expressed[76]. The further exploration of those circumstances should await a case in which the Court is convinced that error has been shown[77].[76]cf Re Tyler; Ex parte Foley (1994) 181 CLR 18 at 39. [77]cf Babaniaris v Lutony Fashions Pty Ltd (1987) 163 CLR 1 at 13; John v Federal Commissioner of Taxation (1989) 166 CLR 417 at 440. The application that the Court reconsider and change its holding in Mills should be rejected. As special leave was only granted on the footing that the appellant sought to reopen Mills, and as he has failed to achieve that end, the proper order is that the grant of special leave should be revoked. Mr Thompson seeks to challenge the construction placed on s 49(1)(f) of the Road Safety Act 1986 (Vic) ("the Act") in Mills v Meeking[78]. He received a grant of special leave to appeal from a decision of the Court of Appeal of Victoria applying s 49(1)(f) as construed in Mills v Meeking, conditional upon this Court ruling that it should reconsider that decision. In my view, Mills v Meeking is correct and should not be reconsidered.[78](1990) 169 CLR 214. It is not in issue that, construed literally, s 49(1)(f)[79] of the Act makes it an offence for a person to have more than the prescribed concentration of alcohol in his or her blood within three hours of driving or being in charge of a motor vehicle. The applicant contends that words should be read into that paragraph so as to restrict the offence to persons driving or in charge of a motor vehicle involved in an accident.[79]Section 49 of the Act relevantly provides:"(1) A person is guilty of an offence if he or she‑...(f)within 3 hours after driving or being in charge of a motor vehicle furnishes a sample of breath for analysis by a breath analysing instrument under section 55(1) and-(i) the result of the analysis as recorded or shown by the breath analysing instrument indicates that more than the prescribed concentration of alcohol is present in his or her blood; and(ii)the concentration of alcohol indicated by the analysis to be present in his or her blood was not due solely to the consumption of alcohol after driving or being in charge of the motor vehicle".

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.)