Thompson v Judge Byrne

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M106 of 1997

B e t w e e n -
IAN MACLEOD THOMPSON
Appellant
and
HIS HONOUR JUDGE BYRNE OF THE COUNTY COURT MELBOURNE and THE DIRECTOR OF PUBLIC PROSECUTION and SIMON DAVID COVERLEY

Respondents

GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 11 FEBRUARY 1999, AT 10.25 AM

MR B.J. SALMON, QC: May it please the Court, I appear with my learned friend, MR D.H. COLMAN, for the appellant. (instructed by Hoyle Da Silva)

MR W.H. MORGAN-PAYLER, QC: If it please the Court, I appear with my learned friend, MR D.M. SALEK, on behalf of the second and third respondents. (instructed by the Director of Public Prosecutions (Victoria))

GLEESON CJ: Just before you go any further, Mr Salmon, I mention that I have a certificate from the Senior Registrar saying that she has been informed by the Victorian Government Solicitor representing the first respondent that the first respondent will not be taking part in this appeal and will abide by the Court’s decision save any order as to costs.

Is it convenient to both counsel if we proceed with the matter on the basis that we will hear argument on the merits of the appeal, reserving until we deliver our judgment in the matter our decision on the question of whether we will reopen Mills v Meeking?

MR SALMON: That is certainly convenient to the appellant.

GLEESON CJ: So that you can put whatever arguments you want to put as to whether we should or should not reopen that decision in the course of putting your arguments on the merits.

MR SALMON: We are perfectly prepared to do that, thank you, your Honour.

GLEESON CJ: Yes, Mr Salmon.

KIRBY J: Can I just ask a little question that puzzles me about the title? I thought the Court said some time back that one should name the court and not the person. Judges should not be embarrassed by having their names put in the title. It may be that that is a different practice in Victoria, and as this is an appeal from Victoria that is how it has come up. Is that how it happens that Judge Byrne is named as the defendant?

MR SALMON: Your Honour has put a question to me which I had not considered at all.

KIRBY J: Do not worry. I thought some years ago we said that instead of naming, say, the deputy presidents of the Industrial Relations Commission, you should name the institution, but I may be wrong on that. I will make my own inquiries. Do not worry about it, Mr Salmon.

MR SALMON: If the appellant managed to succeed and the Court amended the title, I am sure the appellant would not be concerned about it. Having read the judgments in the court below, the point has not been mentioned there.

KIRBY J: No.

MR SALMON: In fact, your Honour having raised that matter, the form of relief sought is the subject of some comment in both the Supreme Court and the Court of Appeal, but as I understand the matter it is not the subject of any argument before this Court. The only issue that is between the parties is as to whether or not Mills v Meeking should be reconsidered and, if so, whether or not the relief sought should be granted, that is the conviction under 49(1)(f) should be quashed.

If I could just remind the Court that the appellant, having been apprehended and tested by breath analysis on two occasions and then having exercised his right to a blood test, was dealt with in the Magistrates’ Court first. There were two arguments which he sought to press upon the court, the breath analysis having read at a figure more than the prescribed level of alcohol. The first was as a result of the breath analysis results themselves, combined with the blood analysis, combined with expert evidence which he called, was that he had proved that the breathalyser machine was not properly operating, itself, or had not been properly operated. Either it was not working properly or it had not been properly operated. That was one of the matters that he sought to have determined. His other argument was that at the time of driving the concentration of alcohol in his blood was less than the prescribed limit.

Now, the appellant was dealt with only under section 49(1)(f) and that is the section which provides it to be an offence to fail the breath test within three hours of driving a motor vehicle and because he was dealt with only under that section it was possible under the Victorian legislation for the argument which I first described, that is the argument that the breath test machine was not working properly or that it had not been operated properly, to be determined. But it was not possible for the material which was based on similar evidence, that is evidence of the blood tests, the breath tests and the expert evidence which the appellant sought to establish, proved that at the time of driving he was driving with less than the prescribed quantity of alcohol in his blood. That argument was not available to him.

GLEESON CJ: Mr Salmon, could you just remind us. As I understand it, it was common ground ultimately that he had – perhaps I should withdraw that expression “common ground” - he gave evidence before Judge Byrne as to what he had in fact had to drink on the evening in question. Could you just remind us what his evidence was?

MR SALMON: Yes. His evidence was that shortly before he commenced driving – I will go back further. At an earlier time in the evening he had had some alcohol – I cannot tell your Honours how much – but some.

GLEESON CJ: I thought it was three or four bourbons and coke.

MR SALMON: Something of that kind, and on his expert evidence, by the time – at a period just before he commenced driving, the effect of that alcohol would have been completely eliminated but he had a very large glass, according to his evidence, of benedictine just before he commenced to drive.

GLEESON CJ: So, his evidence was he had had three or four bourbons and coke earlier in the evening and then he had had two thirds of a beer glass full of liqueur just before he started to drive.

MR SALMON: Yes, but added to that was the evidence that because of the time that had elapsed since the bourbon and coke drinking that was irrelevant, that would have been irrelevant.

GLEESON CJ: Yes, I only wanted to get the facts as to what he had had to drink rather than the conclusions that ought to be drawn from that.

MR SALMON: The argument - yes, thank you.

KIRBY J: Totally irrelevant, totally eliminated as you understand it. It seems an awful lot of alcohol to me, or eliminated to the point that it brought him below the level which was the prescribed alcohol level, which he might then have topped up with the benedictine.

MR SALMON: I can only really tell your Honour this, that the material he put forward to the court was that the earlier drinking would have had an insignificant effect, that the whole of the reading can be explained by the consumption of benedictine and this, of course, depended on expert evidence about the times at which the breath test was taken and the result of the breath test and the time at which the blood test was taken and the result of the blood test. It was all tied back together.

In other words, his expert evidence was such as to indicate that the amount he consumed just shortly before driving would have been sufficient to explain all the analyses. Whether or not, your Honour – which has the effect of saying that the earlier drinking was irrelevant – but that was his argument and you may have noticed ‑ ‑ ‑

KIRBY J: I thought people drank benedictine in tiny little thimble glasses, not beer glasses.

MR SALMON: But we must remember this is Victoria where they do not have real beer glasses, your Honour, so it is not quite the same.

KIRBY J: I know nothing of these things.

MR SALMON: In any event, it is still, even with Victoria sized beer glasses, it would be quite a lot of benedictine. I would concede that. The actual merits of his defence, fortunately, would not concern your Honours if we succeeded here.

KIRBY J: But at least arguably this is the sort of thing which the Parliament of Victoria was trying to avoid in having a somewhat arbitrary offence which was simply and easily proved, as distinct from one which got into the details as to the amount of alcohol consumed.

MR SALMON: Well, our argument, of course, is your Honour that they were prepared to do that in relation to drivers who had been involved in an accident, but the whole scheme of the Act provided a totally different regime for those who had been apprehended driving but had not been involved in an accident.

GLEESON CJ: Why would you limit to drivers who had been involved in an accident? What about drivers who had been involved in a near accident or drivers who had been seen by the police to be swerving from one side of the road to the other?

MR SALMON: Well, I suppose it is much easier to prove an actual collision or an actual injury having occurred than to have in every case where that has not happened a witness describing driving and then having some qualification as to whether that particular kind of driving got you into the category or not. That would be the only reason that I would suggest to the Court, that actually having an incident that properly be described as an accident is a bit easier to establish than some of the other possibilities that your Honour put to me. You would have evidence of them, but whether or not the evidence got them into the category would be the problem.

GLEESON CJ: My puzzlement was just this, Mr Salmon: I can understand the reasons that have led some judges who have looked at this provision to want to read it down. My puzzle was why they would select that precise manner of reading it down. There are things apart from being involved in an accident that might draw you to the attention of police.

MR SALMON: Certainly. The reason for reading ‑ ‑ ‑

KIRBY J: Justice McHugh, in his reasons, acknowledged the difficulty of the third step, that is to say of finding a phrase which Parliament had overlooked or omitted, but he hit upon “accident”.

MR SALMON: Yes. But the reason for that, if I may draw the Court’s attention to the wording of the Act is concerned, is where the various descriptions of conditions on which the police are entitled to take preliminary tests and then other tests, are set out in 53(1) of the Act. If I could just read it:

A member of the police force may at any time require –
(a) any person he or she finds driving a motor vehicle or in charge of a motor vehicle.

So that is that category:

(b) the driver of a motor vehicle that has been required to stop at a preliminary breath testing station –

that is the random test person who is stopped, and:

(c) any person who he or she believes on reasonable grounds has within the last 3 preceding hours driven or been in charge of a motor vehicle when it was involved in an accident.

So, to authorise the testing of people, they did not include in the Ordinance those people who had not been apprehended at the time but who had been seen driving a motor vehicle in the manner perhaps described by your Honour the Chief Justice. Of course, if they were stopped at the time of driving, then they could be dealt with under 53(1)(a) and if they just happened to be stopped at a breath test, they could be dealt with under 53(1)(b). But people who were not in those categories, only people who were involved in an accident, were required to submit to a preliminary test. Of course, it was the way in which the legislation created those categories which are justified, as I understand it, both in his Honour Justice McHugh’s judgment and in Justice Dawson’s judgment - the same words as were in 53(1)(c) to be inserted to interpret 49(1)(f).

Your Honours will have noted that our allegation in our submissions that it is the practice in Victoria for drivers who are apprehended and found to have had more than the prescribed quantity of alcohol after analysis to be charged both under 49(1)(b) and 49(1)(f) and then in practice for the charge under 49(1)(b) to be either withdrawn or dismissed and the proceedings to continue under 49(1)(f).

That practice which we mention in passing in our submissions is agreed. So that the current situation in relation to drivers is that the defence which might have been open to the appellant in this case, had he been charged under 49(1)(b), is just never available because of course of the decision in Mills v Meeking.

KIRBY J: Why would that practice be, if it be not for the reason that proving the offence under (f) is so much more objective – final, indisputable, beyond time‑consuming arguments of the kind that used to bedevil the courts – and that therefore, if you make out the ingredients of (f), that is it; that is the purpose of Parliament.

MR SALMON: This might be a convenient time to remind the rest of the Court, at least, of your Honour’s report on alcohol and drugs in the Australian Capital Territory and the draft Act which was recommended by the Law Reform Commission when your Honour presided. All the arguments are set out in the report of the commission. We have the relevant part of that and we have the draft Ordinance, as it was in those days, which was appended to the report. We will have those up to the Court before we conclude our argument. I do not necessarily want to read it, but what your Honour pointed out then was that the legislation such as 49(1)(b) involved a statutory lie.

It was to avoid that that the legislation in the Territory as a result of the report of the commission creates an offence very similar to 49(1)(f) for all drivers. That report of course was delivered in the seventies and the Ordinance, as it originally was, has been in force in the Territory for 20 years now or more. The interesting thing is that notwithstanding that report and the adoption of the offence in the Territory, Part 5 with which we are now dealing was enacted in Victoria or reorganised and included in the 1986 legislation. The 1986 legislation included the offence under 49(1)(b) of driving with more than the prescribed concentration of alcohol.

More particularly, it included 48(1)(a) which provides for the statutory lie, as it were, that it will be presumed that the concentration of alcohol in the blood at the time of driving is the same as the test, but then it uses the words “unless the contrary is proved”. It is the existence of section 48(1)(a) in the Act, and I suppose one can say all the surrounding circumstances, which, in our submission, suggests that the legislature in Victoria intended that those who could affirmatively prove a concentration at the time of driving which was less than was shown on the reading would be entitled to an acquittal.

The opportunity, of course, for dealing with the problems that your Honour raised, and would have made out task virtually impossible, would have been if after Mills v Meeking the Victorian legislature had just repealed 49(1)(b). The effect of Mills v Meeking, if it is upheld after this case, is that there is no need for 49(1)(b). All people apprehended can be apprehended under 49(1)(f) which is similar to the provision that has been introduced in the Territory as a result of a law reform report, and that is that the offence of failing the test – and that would have been open. Had that happened, of course, the various arguments against the High Court reconsidering its decisions would have been overwhelmingly on the other side. But, what has continued is that the sort of dual situation has remained.

GLEESON CJ: Mr Salmon, is it the case that the only way you could prove an offence against 49(1)(b) is by a breathalyser or blood test?

MR SALMON: My learned junior thought of the possibility of a person admitting that his reading was above the level.

GLEESON CJ: What about admitting that he had consumed a certain quantity of alcohol which an expert then said in evidence would necessarily put you above that level? Or, not admitting it, but having been seen to consume it. In other words, could you prove a case of an offence against 49(1)(b) where there had been no breathalyser or blood test by calling someone who said, “I saw that man drink a bottle of whisky over the period of an hour before he drove the car”. Then an expert would come along and say anybody who drank a bottle of whisky over that period of time would necessarily have more than the prescribed concentration of alcohol in his blood?

MR SALMON: I think the answer to that must be yes, that it would be possible. It would, of course, mean that all the other supporting sections regarding evidence would be irrelevant and unnecessary.

GLEESON CJ: Yes, but that might be why they did not repeal 49(1)(b), might it not? They might want to charge somebody with an offence in a situation where they have no breath test or blood test.

MR SALMON: That might be so, but they left 48(1)(a) in as well, and 48(1)(a) would be absolutely irrelevant altogether in a case that your Honour postulates. Section 48(1)(a) is the deeming provision. So that whilst it is true - at least I would have to concede on our earlier consideration of this very problem. We thought of admissions, but we had not quite gone the extra step that your Honour has taken of actual proof of consumption.

There would, of course, be a difficulty about that in actually proving that what was consumed was, in fact, whisky which contained the necessary amount of alcohol, but that could probably be assumed, especially if the evidence went so far as to show the source of the bottle and that sort of thing. So, it must be conceivable that such an offence might be available.

But section 48(1)(a) is the traditional driving under the influence charge which would also be equally open to be proved by the sort of evidence that your Honour has dealt with. It would need 48(1)(b) for that because, of course, the expert evidence not only would prove the blood alcohol but it would also prove that anyone who had that level was under the influence of intoxicating liquor, inevitably.

GLEESON CJ: Well, that might depend on the circumstances. I mean, the sort of argument you get into when you charge somebody under 49(1)(a) is the defence that says, “I am a hardened drinker”.

MR SALMON: Certainly, your Honour, the quantity needed under 48(1)(b) might be different. I would have to concede that too.

KIRBY J: I did not quite understand your argument on the history. Is it that because it was revealed by and before 1986 that you did not really need (b) if you have this offence (f), the fact that the Victorian Parliament went ahead with (b) and included the capacity to prove otherwise somehow reflects upon what they said in respect of (f). Is that how the argument runs or is it something that I have missed because it may be simply copying an old precedent which is an offence. It is very hard to take offences out of Crimes Acts and Motor Traffic Acts.

Prosecutors tend to like to have lots of offences that they can choose between whereas the whole effort of the mid‑1970s was to try to get to offences like (f) which got away from the time consuming and often meritless arguments in courts and simply had objective criteria and Parliaments all around the country and all around the world moved to offences like (f). Though they are a bit draconian, they are designed to meet a very large social problem – people driving when they have drunk alcohol.

MR SALMON: Your Honour, I mentioned the argument more as an argument that related to the issue of whether or not Mills v Meeking should be revisited rather than as necessarily proving any particular attitude by the legislature, the point being, of course, that had, as a result of Mills v Meeking, 49(1)(b) been repealed there would be an almost insurmountable argument against this Court reconsidering Mills v Meeking. I suppose I also tried to take advantage of the fact that the section has always been there and the defence provided by 48(1)(a) has remained there as indicating, at least prima facie, the notion that people who were charged under 49(1)(b) would have the opportunity of calling the sort of evidence that the appellant called in this case, but I would not want to take it much further than that. It is certainly not the strongest argument on which we rely at all.

CALLINAN J: Mr Salmon, I wonder whether the definition of “prescribed concentration of alcohol” argues against the use or reliance upon a scientific measurement, or argues against the use of anything other than a scientific measurement for an offence under 49(1)(b), because the definition, (b) of “prescribed concentration of alcohol” is quite specific as to quantities. You would really know how much blood a person had in his body.

MR SALMON: Yes, so your Honour is reading from the ‑ ‑ ‑

CALLINAN J: The definition in section 3, “Prescribed concentration of alcohol” means –”, and it is (b):

concentration of alcohol present in the blood of that person of 0.05 grams per 100 millilitres of blood.

That sort of precision could never, I would have thought, have been a matter of estimation. In other words, even in the case of a bottle of whisky, although it may seem very unlikely, the precision that the definition requires argues against anything other than the use of a scientific measurement.

MR SALMON: Yes, I would respectfully adopt that suggestion that, really, in accordance with the Act, the need for the other evidentiary sections and the analysis appears to be required to establish a case under 49(1)(b). I am grateful to your Honour for pointing that out. It does appear to – I think the issue arises by virtue of the suggestion that there would be no need for 49(1)(b) at all after Mills v Meeking and the issue as to whether that is right or not does not solve what we are submitting. But, of course, it is not an irrelevant matter.

If I could just comment or add to the material by saying that there have been several amendments to the Act since Mills v Meeking apart from the amendment that had actually been made by the time Mills v Meeking was decided. And that was an amendment to 49(1)(f) itself which introduced into the Act a defence for a person who had been charged under 49(1)(f) and who could prove that the concentration was solely the result of post-driving drinking. The defence was very much hedged around in that it had to be solely the result of post-accident drinking, and it had to be corroborated by another witness. That was the introduction of section 48(1A) into the section. That was already there by the time Mills v Meeking reached the High Court. It was inserted there presumably to deal with the problems that had been pointed out by Mr Justice Crockett at first instance in Mills v Crisp, I think it was called, and subsequently by the Court of Appeal. But, in addition to that amendment, there have been other amendments but ‑ ‑ ‑

T13 AR
GLEESON CJ: Can I just get that straight? The amendment was after the decision of the Court of Appeal or before?

MR SALMON: After the Court of Appeal but before the High Court.

GLEESON CJ: Thank you.

MR SALMON: That is referred to in the joint judgment of the Chief Justice and Justice Toohey in Mills v Meeking, but there have been other amendments as well. We have gone through the Act and those amendments and it is our submission that they make absolutely no difference in any practical way. For all intents and purposes, the argument that is before your Honours today was equally open at the time of Mills v Meeking. In other words, none of the amendments changed the situation. It is not as a result of any – we cannot come here and say, “You should reconsider Mills v Meeking because the legislation has changed”. It has not, in any relevant way.

At the time of the special leave application which the appellant conducted in person, another subsection of the Act was mentioned which had not been mentioned in any of the judgments in Mills v Meeking specifically and the relevant section was 55(10). That section is the one which facilitates a person who has had a breath analysis taken and been handed the certificate being given the opportunity of having a blood test and it was pursuant to section 55(10) that the appellant in this case was able to get his blood test. Now, that section has some very minor amendments since Mills v Meeking but they make no relevant difference to the argument, I concede.

KIRBY J: How do you meet the conventional argument of statutory construction that courts at least take into account the fact that where there is a disputed interpretation that Parliament has had the opportunity to resolve the dispute and has made some amendments but held back from resolving the dispute in the way that you favour?

MR SALMON: Well, there is only one area which they did not consider and it is only referred to in one of all the judgments in the court so far as I am aware, certainly in the High Court, and that is that the matter which was ventilated in Mills v Meeking before the Court of Appeal and is referred to in the majority judgment and in Justice Dawson’s judgment, was the taking away the defence of a person who innocently drinks alcohol after driving and that particular criticism was dealt with. I suppose it must be assumed or it could be argued – I know that my learned friend will argue it must be assumed – that the legislature also look at Justice McHugh’s judgment in Mills v Meeking which is the only judgment which goes into detail about, as it were, the statutory lie, the relevant effects of alcohol, the fact that 48(1)(a) provides the defence.

As the legislation let 49(1)(b) remain, notwithstanding the decision in Mills v Meeking, there are two possibilities. One, they dealt with what might be called the major injustice possible as a result of 49(1)(f), that is, the innocent post‑alcohol drinking but just neglected to deal with the much lesser one of a person who would have been able to prove that, at the time of driving, he was less than the prescribed concentration or, alternatively, it left that defence in for 49(1)(b) and decided that they would not do anything about 49(1)(f).

KIRBY J: I think there is a passage in a judgment of Justice Dixon which was referred to in this Court’s consideration in Zickar, a case involving workers’ compensation.

GUMMOW J: That is 187 CLR 310 at 329, that is in a joint judgment, and Justice Kirby’s judgment at 351.

KIRBY J: That, in essence, as I recollect it, says that although lawyers often refer to the fact that Parliament has paid attention to the matter, that that is attributing too much to Parliament and it is a very unsure foundation for an assumption that Parliament deliberately refrained from amending the legislation in a particular way.

MR SALMON: I certainly adopt that argument. But also, in a sense, it seems to be more likely that that is the case in that, having had the issue ventilated so thoroughly in Mills v Meeking, that they did not do anything at all about 48(1)(a). That is the opportunity of people to call evidence in relation to the ‑ ‑ ‑

KIRBY J: But in the old days they would have been strongly against you because it would have been said the Parliament could have put into the section “where it happened in an accident” or words to that effect, as the minority thought should be there to make clear the matter, and refrained from doing so and therefore must be assumed that Parliament has sanctioned the interpretation adopted by the Court.

MR SALMON: Yes. I would have to accept that that argument is against me and it remains against me. But, on the other hand of course, that argument is only relevant to the issue of whether or not the Court will look again at Mills v Meeking. It does not mean that a reconsideration of the correctness of Mills v Meeking might not result in it being found that the reasoning was incorrect and that the minority view should be preferred.

I think I was just getting on to 55(10) which was the subject of quite a lot of discussion on the special leave application. As I indicated, that was the section that enabled or facilitated the obtaining of a breath test. I should say that the existence of that subsection which is not actually specifically mentioned in any of the judgments in Mills v Meeking, I do not suggest for a moment that that destroys the majority reasoning.

GLEESON CJ: The minority reasoning in Mills was that you should interpret (f) as though it were limited to somebody who was involved in an accident.

MR SALMON: That is so, your Honour.

GLEESON CJ: How does the potential to prove that at the time you were driving you were under the limit alter the operation of 49(1)(f), assuming it has the meaning that the minority gave it?

MR SALMON: It does not have any effect if the person charged has in fact – it is proved that he was involved in an accident. It can only be relevant if he is charged under 49(1)(b). Once you are charged under 49(1)(f), the effect of it is to take away, if I have understood your Honour ‑ ‑ ‑

GLEESON CJ: Exactly, so, on your construction, a person can be charged under 49(1)(f) provided he has been involved in an accident.

MR SALMON: Yes.

GLEESON CJ: All right. Suppose a person has been involved in an accident, is charged under 49(1)(f) and that person demonstrates, as a result of a blood test under 55(10), that he was under the limit at the time of the accident. What follows from that?

MR SALMON: Because he is in the category of persons for whom the defence under 48(1)(a) is expressly excluded, he cannot use it. In other words, if you are involved in an accident, you have been categorised differently. That is our submission.

GLEESON CJ: Even though you are under the limit?

MR SALMON: Even though you have been able to prove that at the time of the accident you were under the limit, yes. That defence has gone and the reason for it was, one assumes, that that offence was for people who were not apprehended at the scene who had the opportunity of destroying the effect of the blood test because they had an opportunity to do things before they were ultimately tested. There is no reason why a person who has been involved in an accident cannot be charged under 49(1)(b) but the right to test such a person, notwithstanding that he has left his car and has gone to his home or is somewhere else, in a café, it is necessary to have a right for somebody who is no longer connected with a motor vehicle at the time of testing to be tested.

McHUGH J: The result of the police practice is to turn what was supposed to be Parliament’s intention on its head. When you read the debates, 49(1)(f) was seen as a provision dealing with a residual category of people. The expectation was that people would normally be charged under 49(1)(b) but the prosecuting authorities really only ever pursued the (f) charge and, to all intents and purposes, they have written 49(1)(b) out of the Act.

MR SALMON: The only reason for the practice of charging under both that we can contemplate is that if the right defendant happens to come along the prosecuting authority say, “This bloke, this particular accused, we will give him the chance and only proceed under 49(1)(b)”. Otherwise the practice can have ‑ ‑ ‑

McHUGH J: I thought we were told in Mills v Meeking that they just did not prosecute under - they might be charged, but they did not proceed with the (1)(b) charge. They always proceeded with the (1)(f) charge.

MR SALMON: That is still the practice entirely.

McHUGH J: So that takes away the defence under 48(1)(a).

MR SALMON: Yes, but I did not know that the Court was told that, but certainly we have told you that and it is agreed by the respondents.

McHUGH J: I think we were told that during the argument in Mills v Meeking. It is seven or eight years ago. I am just relying on my recollection.

KIRBY J: If you remember the history of this, of how Parliament first of all – I mean, we all remember in our youth people prosecuted for driving under the influence. Then, in came the first attempt at breathalyser legislation, but with the so‑called statutory lie, which is paragraph (b). Then there were all sorts of arguments, time consuming, and so on, and so then there was the third way, which was paragraph (f). So, it is not unusual in the history of the criminal law to have old offences which remain on the books, sometimes charged and rarely prosecuted, but the caravan moves on. Here it moved on to (f) which did not provide the defence, as it seems to me, I could be persuaded out of it, but for a very good social purpose.

MR SALMON: Your Honour’s argument would be stronger, I submit, if (f) had been added. But what happened was that at the time of the complete rewrite in 1986, both (b) and (f) were included and section 48(1)(a) providing the defence to (b), remained in the same form, or remained in that form.

KIRBY J: That could just be draftsman’s lethargy rather than the notion that this is some complete reconceptualisation. Do we have the history of the Victorian law, because it must have existed before the Road Safety Act 1986?

MR SALMON: I am afraid the histories that have been provided by my learned friend and by us, and our consideration of it, has only gone back to 1986 because the Act was ‑ ‑ ‑

KIRBY J: Mr Morgan‑Payler may know what the history was before it.

MR SALMON: I cannot assist your Honour. But, I would concede, as Victoria, as I recall, was the first place in the world to introduce random breath test – certainly with safety belts, and I think random breath tests, as well – one assumes that they had some predecessor to 49(1)(b). I suppose you can use it both ways. The prospects of them knowing the problems of 49(1)(b) would have been well and truly evident by 1986 and yet it was still included in the legislation. On the other hand, there is your Honour’s equally, I suppose, strong point that it just may be draftsman lethargy and has left it there and thought they had covered the field by 49(1)(f).

KIRBY J: Look at all those funny old laws that are still in the New South Wales Crimes Act and which have been inherited by the Australian Capital Territory. I mean, law makers do not like to take out laws just in case one day, somehow, for some reason, they might be useful.

MR SALMON: A lot of them have been taken out, your Honour.

KIRBY J: Well, I am glad to hear it.

MR SALMON: There are now about 100 sections in the Act that have been taken out but there are certainly still some in that condition. Anyway, they still exist in New South Wales.

McHUGH J: Correct me if I am wrong. Once again, I am only relying on my recollection, but I thought it was made reasonably plain in the Parliament that 49(1)(f) was only intended to deal with the person who had the accident and gone home or is my recollection wrong on that?

MR SALMON: There was certainly a speech which is, I think, quoted in Justice Dawson’s judgment, which would support that view, your Honour. If I could just try and pick it up.

KIRBY J: It is at page 225.

MR SALMON: It is in the joint judgment. Yes, it is set out in the joint judgment at 225. Thank you, your Honour. I had better read the whole lot. The Minister said, on moving an amendment to 55(2):

“The amendment restores the current law, allowing breath‑tests to be administered without a preliminary breath‑test having first been undergone, but restricting prosecutions following on from such tests to the existing drink‑driving offence.
Evidence of alcohol drunk after driving can be given in such a case. A preliminary breath‑test can be administered where a person has been found driving or has been in an accident. A breath analysis after this can still lead to a ‘fail the test charge”.

It is the earlier one, I think, that is set out at the bottom of 224:

The Minister’s second reading speech contains this passage, on which the appellant relies:
“The only grounds on which a breath analysis reading may be challenged will be th
at the particular instrument was operated improperly or was defective. Motorists will need to be aware that the offence is being over the legal limit at the time of being tested. Consequently, a motorist who drinks after being involved in an accident but before being tested cannot use this to subvert the possibility of a conviction as at present and runs the risk that the penalty may be substantially increased by a higher reading when tested. The seriousness of the offence of drink‑driving is such that measures such as these are warranted”.

That was the reading speech which the appellant relied on in Mills v Meeking and then the one I read to you earlier was the, as it were, answer to that when there was an amendment to another section where it seemed as if the amendment that was there referred to ‑ ‑ ‑

McHUGH J: What I had in mind - I see now appears at 226 in the joint judgment - that originally the legislation was so drafted so that there was no defence concerning post-accident consumption, or post-driving consumption, or challenging the accuracy, and Parliament deleted those two sections and their Honours go on to say:

It would seem that, by deleting pars (a) and (c) from cl. 49(6), Parliament contemplated that defences based on post-driving alcohol consumption and the general unreliability of breath analysis instruments would be available to anyone charged under s 49(1)(f). What appears to have been overlooked is that, because of the terms of par. (f), evidence of such matters remained irrelevant – - -

MR SALMON: Yes. Then they go on to point out in the last paragraph what I had indicated to the Court that:

As a matter of history…..proof of post-driving consumption of alcohol –

was made “a defence under s. 49(1)(f)”, and that is the rather draconian defence. It requires corroboration and proof that the whole of the reading was the result of the post-accident drinking. So, it is a very restricted defence but it was allowed.

I should also, though, remind the Court that the interpretation preferred by all Justices in Mills v Meeking was from a reading of the Act and no relying on the speeches in Parliament. As it were, the difficulty of trying to ascertain the intentions of Parliament from all the various speeches and from the speeches on the introduction of amendments was such that, in the circumstances, the intention could be derived from the words themselves. What then took place was both sides, if I can put it that way, relying on Cooper Brookes (Wollongong), one to say that the section should not be read so as to include the words “after having been involved in an accident” and, on the other hand, relying on the intention of Parliament which seems plain by the existence of section 48(1)(a), saying that, clearly, the only way Parliament’s intention can be given effect to is by reading in the words.

So, the difference of view is stark. There is no doubt about that. But the basis of the interpretation in both the majority judgment and the minority judgment was relying on the words in the Act itself and the scheme of the Act and, in our submission, the reading of the Act which does involve the addition of the words brings about a symmetry and makes sense of the Act as it has been left whereas the interpretation favoured by the then Chief Justice and Justice Toohey has the effect of ignoring any intention that can be elicited from looking at 48(1)(a).

The only support for us which arises from 55(10) is that any blood test which is taken in accordance with 55(10), the evidence of which can be given in accordance with 52, I think it is, but the evidence of the result of the blood test, provision is made in the Act for that as well, yes 57(2). The only additional relevance of that is that that supports, we say, the interpretation of the Act relying on the existence of 48(1)(a). In other words, part of the material which would be available to a defendant charged under the Act is the result of the blood test, and Parliament has allowed that defence to be given in charges under 49(1)(b); 49(1)(b) remains and the Act therefore has a scope to operate in every category.

GLEESON CJ: If an accused person insisted on a blood test under 55(10) and that blood test showed that at the time of driving the accused’s blood did not contain the prescribed concentration of alcohol, would that not at the same time show that the breath analysing instrument used was not in proper working order, because by hypothesis the breath analysing instrument will have shown a higher reading.

MR SALMON: Could I answer that in two ways: one, we concede that 55(10) still has a utility even under 49(1)(f), that is that the evidence of the blood reading could certainly be used – as it was attempted to be done here ‑ to prove that the breath analysis was not accurate. But the blood alcohol reading could also, combined with the breath test reading without necessarily making the breath test reading inaccurate, be used to assist scientific calculation as to what the reading was at the time of driving. As I understand it, when looking at a curve, if you have a reading at a particular level and then a subsequent reading, taken by a blood test, at a particular level, the calculation of the curve is assisted by that reading. So that it does not inevitably prove that the breath test was inaccurate, although it can be used for that purpose and it can still be used for that purpose.

We concede that 55(10) still has a utility on a charge under 49(1)(f), and that is to prove a defect in the breath test. But it can also have a utility, we submit, in relation to calculating the reading at the time of driving. So it is not, as it were, an argument that makes the reasoning of the majority in Mills v Meeking - it does not destroy it. The existence of 55(10) is just a factor to support the defence under 48(1)(a).

I think, your Honour, I have departed – I have not tried to read the submissions which I have submitted in writing.

GLEESON CJ: No, we have read them.

MR SALMON: In the course of answering your Honour’s questions, it seems to me that I have dealt with all the matters we wish to raise. I have not concentrated on the potential consequences of revisiting Mills v Meeking - they are set out in the submissions – but the more dire consequences that could be involved in reversing the High Court decision we submit just do not apply in this particular case. No one is going to be harmed. Victorian police still have ample scope to deal with drink driving. In fact, in our submission, a reversal of Mills v Meeking would give asymmetry and effect to the whole of the existing Act in Victoria which is not there at the moment, in our submission.

KIRBY J: Is your argument essentially the same as you read it in Mills? Is there any new insight? Is there anything that you say was overlooked by the Court at that time or are all the arguments on both sides of the statutory construction problem reflected in the opinions of the Court?

MR SALMON: The only comment I can make in answer to that is that it is not evident from anything written in the judgments of the Chief Justice and Justice Toohey that they considered the issue of a person who could prove under 48(1)(a) that they were less than the prescribed concentration, but of course that particular aspect was referred to in several passages in Justice McHugh’s judgment. Of course, he, as it were, relies on 48(1)(a) as demonstrating a particular intention. The only criticism I make of the majority, that there is anything in what they actually wrote which has changed in any way or that is clearly wrong, but that that particular aspect was not dealt with in the majority judgments, whereas it is in particular in Justice McHugh’s. Otherwise, I would say that the argument which we propose is eloquently set out and adequately set out in the judgment of Justice McHugh and that the only little additional factor is the potential relevance of a test under 55(10).

KIRBY J: If that is the position that is arrived at – and there are new members of the Court – we have the decision which is a decade old on a particular little provision of a particular statute of the Parliament of Victoria which has plenty of opportunity to revisit it. Why should the Court go back casting doubt on its own authority, given that all matters of disputed statutory construction are matters upon which different minds can operate? Is that not fundamentally undermining the authority of the Court on such a matter that would need very good reasons to warrant the Court doing? I mean, it is different from the Constitution. This is just provision of a statute of one State.

MR SALMON: Yes, it is certainly conceded that the flexibility which the Court refers to in dealing with constitutional issues is contrasted with - one of the very examples given is a question of statutory interpretation. That argument is clearly against us. All we can put against that is that in this

particular case none of the other vices exist. It is not as if it has been the result of a long line of authority. It is not as if the Court has referred to it in subsequent cases with approval. It is not as if any of the vices in revisiting a decision which are mentioned in our submissions exists in this particular case. I have to concede that the point which your Honour makes is against us but we submit that it is only an argument against which we can put up all the counter arguments. The main one, I suppose, is this: that by overruling Mills v Meeking, the effect is given to sections of the Victorian Act which, at the moment, have had their effect completely obliterated by the practice which has developed in accordance with the judgment in Mills v Meeking.

I concede your Honour has also suggested that may not be a serious matter because the legislature deliberately left in ancient offences with little effect any further. But this is an area which involves probably almost more members of the public than most other statutory offences. A large number of people are affected by this legislation every day. It is, we submit, at the least untidy that there should remain what appears to a person who is charged with an offence a defence and that defence can be subverted by using another section of the Act which, we submit, was clearly designed to deal with another circumstance. I do not think I can put it any higher than that. Thank you, your Honours.

GLEESON CJ: Thank you Mr Salmon. Yes Mr Morgan‑Payler.

MR MORGAN-PAYLER: If it please the Court, this appeal concerns the construction of some legislation from a State where the courts of that State have applied the ordinary meaning of the words of that statute, where this Court has then visited that question and, again, in a clear majority where there was no divergence in the views of the majority of this Court, again the plain and ordinary meaning of the words of that statute were applied. It is submitted by the respondents that this Court now, some nine years later, ought not revisit that question, particularly in light of the fact that the earlier decision simply cannot be said to be plainly wrong or attenuated with the type of problem or difficulty which will encourage this Court to reconsider an earlier decision.

KIRBY J: Could I mention a little difficulty I have with that, and it may be answered by the terms in which special leave was granted. It seems to me that that is a very powerful argument – very powerful – at the threshold as to whether the Court should grant special leave. Overwhelmingly powerful in most cases. But once special leave is granted and the matter is before the Court, is not the Court then duty bound to reach its own conscientious decision on the matter, keeping in mind the desirability of not disturbing authority and so on, but are we not, once it has got through the gateway, bound to determine the matter according to our understanding of the law?

MR MORGAN‑PAYLER: Could I answer that in two ways? Firstly, and perhaps most importantly, we would rely on the fact that it was a conditional special leave that was granted in this case. Conditional on a Full Bench of this Court not revoking that special leave, and a Full Bench of this Court being persuaded to revisit the earlier decision. Secondly, we submit that certainly at the time of the special leave hearing, the appellant relied quite heavily on the fact that section 55(10) had not been referred to in any of the judgments in Mills v Meeking, and by inference was apparently not referred to in argument. We would endeavour, in our submissions to this Court, to develop that further, because we would submit that that omission was for a very good reason if section 55(10) is of no assistance in looking at this question.

Your Honour Justice Kirby, I think it was, earlier asked about the previous history prior to the passage of the Road Safety Act in 1986. I regret we did not bring the earlier legislation with us, although I sent out to see if we can provide the Court this morning with the relevant sections under, I think it was then the Road Traffic Act, an Act under which much difficulty had developed in that the - and I think it might have been Justice Kirby again, made reference to the fact that all around this country and probably around the world, difficulties, initially, were faced with breathalyser cases, and if we might call it, an industry, grew up in attacking various aspects of the test, or the reading, and various presumptions.

GUMMOW J: Was it the Motor Car Act?

MR MORGAN‑PAYLER: Thank you, your Honour, yes, the Motor Car Act, I think it was, yes.

This Court, in Mills v Meeking, the majority relied fairly heavily on section 47 which set out the objects of this legislation:

The purposes of this Part are to –
(a) reduce the number of motor vehicle collisions of which alcohol or other drugs are a cause; and
(b) reduce the number of drivers whose driving is impaired by alcohol or other drugs; and
(c) provide a simple and effective means of establishing that there is present in the blood of a driver more than the legal limit of alcohol.

GAUDRON J: None of those purposes informs the situation where there is a driver who does not have more than the legal limit of alcohol, and it is not proved that his driving is impaired, and there is no collision, which is the situation you have here. In fact, those purposes would really seem to limit the application of 49(1)(f), would they not, if one adopted the purposive approach to construction?

MR MORGAN-PAYLER: Save, your Honour, that the argument under 49(1)(f) is that a driver may well – and 49(1)(f) strikes at the reading, that is delivered at the time of testing – there is no presumption about readings at the time of driving and the offence is being over the limit, the prescribed limit at the time of testing within three hours of the driving.

Now, if one bears in mind that when one looks at section 53(1) – and it might be necessary just to trace the scheme through. Section 53(1) sets out the circumstances in which a preliminary breath test might be administered and (a), (b) and (c) are the relevant ones. They are:

any person he or she finds driving a motor vehicle or in charge of a motor vehicle; or

any person who –

has been required to stop at a preliminary breath testing station under section 54(3); or

any person who he or she believes on reasonable grounds has within the last 3 preceding hours driven or been in charge of a motor vehicle when it was involved in an accident –

and it is the belief that the driver had been involved in an accident which, of course, is the important part there.

KIRBY J: But which one applied here?

MR MORGAN-PAYLER: In this case, your Honour, (a).

KIRBY J: I see.

GAUDRON J: There is no belief there had been an accident.

MR MORGAN-PAYLER: No, none at all. This appellant was simply apprehended driving.

GAUDRON J: And there had been no accident?

MR MORGAN-PAYLER: Yes, your Honour.

GLEESON CJ: This was just a random breath test, was it not?

MR MORGAN-PAYLER: In effect, it was, yes. He was simply pulled over and asked if he had been drinking and then asked to submit to a preliminary breath test which proved positive. He was then taken back to a police station and required to undergo a breathalyser test.

GLEESON CJ: And then he, for his part, demanded a blood test?

MR MORGAN-PAYLER: Yes, yes. Now, when the preliminary breath test is administered and if the police officer then, under section 55(1)(a), forms the requisite opinion, then he is entitled to require that driver to undergo the breath test. So it is a twofold process. There is the preliminary breath test which is a general test which enables a police officer to form an opinion or not to form an opinion, then there is the breathalyser test and then, we say, if a result is produced that is above the limit an informant then has a variety of possible charges but, particularly, there is the choice between 49(1)(b) and 49(1)(f).

GLEESON CJ: There is one gap in this scheme. I am not suggesting that anything necessarily turns on it but one gap in that scheme is that it does not seem to cover the case where a person is observed by a member of the public to be driving recklessly or dangerously or causes a near accident and by the time the member of the police force gets to that person the person is no longer driving the car.

MR MORGAN-PAYLER: That is right. No.

GLEESON CJ: You cannot make such a person undergo a breath test.

MR MORGAN-PAYLER: I would agree with your Honour on that. Yes, you must either be found driving or join the queue at the roadside breath testing station or be believed on reasonable grounds to have been involved in an accident within three hours. Now, interestingly, there is only one circumstance that we can find in the Act where a driver can go straight to the breath testing stage, and that is under section 55(2) of the Act:

A member of the police force may require any person whom that member reasonably believes to have offended against section 49(1)(a) or (b) to furnish a sample of breath for analysis by a breath analysing instrument –

So, if you are reasonably believed to have simply driven above the limit then you can be required to furnish a sample of your breath within the various parameters but the arguments, your Honour, of the right ‑ ‑ ‑

McHUGH J: It has to be more than just above the limit, has it not? It has to be ‑ ‑ ‑

MR MORGAN-PAYLER: I am sorry, your Honour?

McHUGH J: The belief has to go to more than above the limit, has it not? It has to be also that you are incapable of having proper control of the vehicle.

MR MORGAN-PAYLER: Or, I think, your Honour – yes.

GLEESON CJ: That closes the gap I referred to, does it not?

MR MORGAN-PAYLER: Well, it may, your Honour, yes, but the point we make out of that is that there it is an offence against either paragraphs (a) or (b) where the driver would have available to him on the prosecution the argument that at the time of driving the reading may have been something different than that indicated by the machine at the time of analysis.

McHUGH J: But under the Victorian practice would that happen, because you would charge them under (f) eventually. That is what you press, is it not?

MR MORGAN-PAYLER: Well, a driver may not be charged under (f), he may not fit into the prerequisites for a preliminary test under section 53(1), your Honour, in that he may not be either found driving or at a road block or have been believed to have been in an accident. His safeguard, because he has not been through what we would call the screening process of the preliminary breath test, if we assume an ultimate breath analysing instrument that may not be working correctly, if there is the screen of the preliminary breath test which may indicate no alcohol at all or a very low level of alcohol, he would never be asked to take the test. That is one driver who can go straight to the breathalyser. He has available to him the various defences under section 49(1)(b) and could not be prosecuted under 49(1)(f).

McHUGH J: But that makes it even more extraordinary, does it not, to give (f) this very general operation? The one person who cannot be prosecuted under (f) is the person who is given a test under 55(2) because he is thought to be incapable of having proper control of the vehicle. Could he run the 48(1) defence?

MR MORGAN-PAYLER: He can under 55(2), your Honour, yes.

McHUGH J: So he is the one driver that you cannot prosecute under (f).

MR MORGAN-PAYLER: Yes, and we say the distinction, your Honour, is that he has missed out on the intermediate screening process of the preliminary breath test. Not a lot might hang on it. We simply draw the Court’s attention to that provision.

McHUGH J: I wish I had thought of that when I was writing my judgment in Mills v Meeking. It seems an argument in favour.

MR MORGAN-PAYLER: If it please the Court, what we say in effect this appellant complains of – he makes three complaints or makes three points. Firstly, he has an argument that, he submits by inference, had it been put to this Court in Mills v Meeking the result might be different, namely, the effects of section 55(10). We will look at that in a little bit of detail in a moment if we might. Secondly, he seems to be repeating the two arguments that were put in Mills v Meeking: firstly, that the words of section 49(1)(f) ought to be read down to confine its operation to only those drivers believed to have been in an accident within the past three hours; and in the alternative, that to proceed under both (b) and (f), or indeed to proceed under (f) when a prosecution might be launched under (b), would be an abuse of process. The appellant does not spell that out in his submissions but it may be by inference he also contends for that position which was the position that was also put originally in Mills v Meeking.

As to the novel argument of section 55(10), we would submit that there is simply no substance to that argument. Section 55(10) is simply a provision enabling a driver to insist on a blood test being taken. This appellant so insisted and, if the Court notes the chronology, he just to the minute managed to have the test taken within the required three hours.

McHUGH J: I am not sure that it lacks any relevance. Does it not indicate that for the protection of the citizen the legislature intended that that person should be able to have a blood analysis so that that person could be able to argue that he or she was not under the influence at the time of driving the vehicle?

MR MORGAN-PAYLER: Yes, in part, your Honour, the legislature certainly intended that the driver prosecuted under 49(1)(f) should be able to avail himself of the provisions of section 55(10), as this appellant did unsuccessfully.

GAUDRON J: For what purpose? Just to satisfy himself or herself as to his or her moral probity, is that the only point of it?

MR MORGAN-PAYLER: No, your Honour. To demonstrate - the one defence in regards to the operation of the machine and the reading that is open to a driver under 49(1)(f) is to establish that the machine was not functioning properly or that it was not operated properly. A blood test giving a reading that is quite inconsistent with the reading on the breathalyser would be very good evidence to that effect. That is precisely what this appellant sought to do in these proceedings. However, he simply was not successful on an evidentiary basis. That was simply not accepted by the court. The court ultimately accepted that the machine was operating properly, and that it was operated properly. He sought to mount an argument based on elimination rates and based on his evidence of his consumption and when he consumed, that because at 3.00 am in the morning the amount of alcohol in his blood was X, then the amount of alcohol in his blood at the time the two breath tests were taken could not have that that was indicated in the readings. He litigated that point. It was not decided in his favour. That is how section 55(10) may operate to assist a driver in establishing an offence under section 49(1)(f). We submit ‑ ‑ ‑

McHUGH J: What your argument really comes down to is that if you give 49(1)(f) its literal meaning it means that Parliament intended to punish a person who happened to have more than the prescribed concentration of alcohol in his or her blood more than three hours after driving, irrespective of whether the person was affected by liquor at the time of driving or had even been in an accident.

MR MORGAN-PAYLER: Yes, your Honour.

McHUGH J: It serves no purpose.

MR MORGAN-PAYLER: Yes, they must have been in an accident, your Honour, or been found driving. There is ‑ ‑ ‑

McHUGH J: But you only have to be found driving.

MR MORGAN-PAYLER: Yes, found driving or pulled up at a road-side preliminary breath testing station, or have been in an accident. But since the amendments, must also have consumed some alcohol prior to driving, given that ‑ ‑ ‑

GAUDRON J: Must be able to prove.

MR MORGAN-PAYLER: Well, yes, your Honour.

GAUDRON J: Must not be able to prove that he did not.

MR MORGAN-PAYLER: That is quite correct, your Honour.

GAUDRON J: Yes.

MR MORGAN-PAYLER: Yes, I have put it the wrong way, providing he is in a position to be able to prove that the alcohol he consumed was solely explicable by alcohol consumed post driving. Parliament ‑ ‑ ‑

GAUDRON J: So it is really “and” cannot prove that ‑ ‑ ‑

MR MORGAN-PAYLER: Yes. I would have to concede, your Honour, Parliament has set the bar fairly high for drivers who drive with any alcohol at all in the State of Victoria.

McHUGH J: Well, not necessarily. Parliament laid down a scheme which worked quite rationally: 53 interlocks with 49 in a nice way. What has happened is as a matter of administrative practice, the prosecuting authorities have closed off all of the defences. They have thwarted what Parliament intended, they have made a dead letter. There has been an executive repeal.

GAUDRON J: If you take that view of it, is that not a substantial reason for reconsidering the decision. Are you not almost in the same territory as was involved in John where tax avoidance had proliferated as a result of a decision. That was thought to call for reconsideration, perhaps more strongly so than in John because here you have law enforcement authorities, as it were, in a sense frustrating the possibility of taking defences that the Parliament seemed to intend to leave open.

MR MORGAN-PAYLER: Can that be so, your Honour, when we know that Parliament has been aware of the matters raised by the appellate courts in respect of these sections given the amendment of 48(1A) and the partial amelioration of the harsh effects of this Act? Can it be so when that part of the Act, Part 5, has been again revisited, not directly on this section, but that part of the Act has been revisited now on a number of occasions by Parliament and Parliament has not seen fit ‑ ‑ ‑

GAUDRON J: I think the same could be said of the legislative history of the Income Tax Act when it was considered in John.

MR MORGAN-PAYLER: Yes, it could, your Honour. I concede that. I think it is why our submissions go quite strongly because questions of statutory construction are questions that might strike different courts or different judges in a different way. We submit quite strongly in these circumstances clear and apparent error not being demonstrated, nor any particular problem being demonstrated. Your Honour Justice Gaudron points out that this is something that may have caused problems for some time. We would put it quite to the contrary that ‑ ‑ ‑

GAUDRON J: It depends from whose point of view you are looking at it. It may not cause problems to the prosecuting authorities - indeed it may eliminate them - but, on the other hand, it does have the potential to make the law a laughing stock, at least in the eyes of the motorist.

MR MORGAN-PAYLER: Your Honour, we would submit that for nearly 10 years now the law has been administered in the state of Victoria in accordance with the manner in which it was interpreted by this Court. It has not caused disquiet or tumult. It has not caused difficulty or injustice.

GLEESON CJ: Mr Morgan-Payler, I would like to understand a little better the practical operation of section 55(10). As I would understand it, the use that the appellant in the present case sought to make of 55(10) was a use that went directly to what might be called the merits of his case. He sought to prove from the blood test that the breath test was wrong.

MR MORGAN-PAYLER: Yes.

GLEESON CJ: Now, there is a theoretical possibility, I suppose, that there could, in a case I find it difficult to imagine, be a situation where there is a difference between proving the result of the breath test was wrong and proving that you were not over the limit at the time you were driving.

MR MORGAN-PAYLER: A very big difference, we would say, your Honour, if you will pardon my interrupting.

GLEESON CJ: In a case where a person charged under 49(1)(f) uses a blood test to prove that the breath test was wrong and is therefore acquitted, that person will usually also be demonstrating, would he not, that he was not driving over the limit?

MR MORGAN-PAYLER: He may or may not, your Honour, depending, I presume, on the actual evidence and the rise in the blood alcohol after the ingestion.

GLEESON CJ: The person who suffers the injustice with which we are concerned, as I would understand it, is a person who can prove that the breath test was wrong but cannot prove – I am sorry, a person who would like to be able to prove that he was under the limit at the time he was driving but who cannot prove the breath test was wrong.

MR MORGAN-PAYLER: Once he has proved the test was wrong, your Honour, he is safe on both (b) and (f).

GLEESON CJ: But the gap that exists, the injustice that arises, if it exists, will arise, will it not, in the case of a person who by hypothesis cannot rely on the blood test as a matter of fact to show that the breath test was wrong but would like to be able to attempt to prove that he was under the limit at the time he was driving. That is the problem, is it not, and I am trying to inquire whether that is a practical problem.

MR MORGAN‑PAYLER: I expect that is the nub of this appellant’s complaint in that primarily he endeavoured to prove that the test was wrong either through the machine not operating properly or it not being operated properly.

KIRBY J: Now, that is a permissible thing for him to do.

MR MORGAN‑PAYLER: That is the permissible thing, we submit, for him to do ‑ ‑ ‑

KIRBY J: He failed on that on the evidence?

MR MORGAN‑PAYLER: He failed on that on the evidence. He, I think, even indeed on the materials, adduced evidence although to no avail, trying to establish that his reading may well have been under the limit at the time of driving, and he relies in his ‑ ‑ ‑

GLEESON CJ: What I am seeking assistance about is the extent to which that is a practical problem. I simply do not know one way or the other.

McHUGH J: It can be. I once had a man called Holmes acquitted of culpable driving in New South Wales by proving, through expert evidence, that although he was above the prescribed concentration when the police arrived, at the time of the accident, having regard to a whole body of evidence about what he had drank and when, he would not have been at the time of the collision.

MR MORGAN‑PAYLER: Yes, and in Victoria, this very blood test could be used again to that end in a culpable driving prosecution on indictment.

KIRBY J: Let me pause to ask you this, following up the Chief Justice’s question. Is it my understanding that because this kind of evidence was introduced into courts, and taking up an awful lot of time in courts, that Parliament move to the (f) paragraph, and concentrated attention on a sort of special statutory offence to which the defence would be that the equipment was wrong but would not permit the proof which takes up so much time about body weight, about when amounts were drunk, about the process of elimination and all the other things that took magistrates and an awful lot of time before offences like (f) were enacted. Now, have I got that right or wrong?

MR MORGAN‑PAYLER: Yes, your Honour, yes, that is precisely to avoid ‑ ‑ ‑

McHUGH J: You say it is precisely right, but is it, because in respect of a charge under (b) you can still do the very things that Justice Kirby pointed out. Secondly, do not the debates and discussion, particularly in the Legislative Council, the amendments, show that (f) was intended, or believed anyway, they were expected to have a very limited operation, only in the case of the accident. It was meant to apply to the absconding driver

GAUDRON J: Who either then consumed alcohol or said he consumed alcohol.

McHUGH J: Yes.

GUMMOW J: The trouble is what they intended may not be reflective of what they enacted.

McHUGH J: Well, that is right. That is (b).

MR MORGAN-PAYLER: Yes, your Honour.

GLEESON CJ: Even at the level of intention, if the injustice is not permitting someone to use the blood test to prove that he was not over the limit at the time he was driving, how do you cure that injustice by limiting the operation of (f) to the case of somebody who has been involved in an accident because that injustice will continue to apply in the case of somebody who has been involved in an accident.

MR MORGAN-PAYLER: Indeed, your Honour, it still applies. The class of persons who may be susceptible to, we would not call it an injustice but to the provisions, is simply narrowed.

McHUGH J: Well, you cannot, but is not Parliament’s answer to say, “If you do not stop at the scene of the accident so that you can be tested under 53(1)(a), then that is your bad luck. Subsection (f) has been brought in to deal with you decamping.”

KIRBY J: That is one answer Parliament might give but the other answer might be, “If you happen to be breathalysed and you are found with this concentration then, unless you can show the equipment which measured you is defective, that is the offence.”

MR MORGAN-PAYLER: Yes, and, your Honour, we would submit very strongly for that in light of the amendment of 48(1A) which was brought in after the first curial pronouncements on the harshness of the operation of section 49(1)(f).

GLEESON CJ: Has anyone ever suggested that (f) only applies to people who fail to stop after an accident?

MR MORGAN-PAYLER: Yes, your Honour. At the very first instance in front of the primary judge, Justice Crockett, he was prepared to read section 49(1)(f) down to limit its application to paragraph (c), those reasonably believed to have been involved in an accident within three hours.

GLEESON CJ: But, I am sorry, suppose an accident happens and nobody leaves the scene of the accident, on Justice Crockett’s approach would (f) be inapplicable then?

MR MORGAN-PAYLER: Yes, and it is limiting the area of harshness or injustice. We do not resile from the fact that there have been various curial descriptions of this provision as harsh – I think the word “draconian” is used from time to time – it certainly appears to be. We take great heart from the fact that it is clearly - those criticisms have clearly been brought to the attention of Parliament, given the subsequent amendments. Initially, there was no defence in so far as consumption of alcohol to a prosecution under paragraph 49(1)(f). Parliament saw fit, however, to permit a driver, albeit with an onus on him to establish that the presence of alcohol in his blood was due solely to consumption after the collision.

GLEESON CJ: But if you construe the section in the way in which the minority in Mills v Meeking would have construed it, then it applies to somebody who has been involved in an accident ‑ ‑ ‑

MR MORGAN-PAYLER: Or reasonably believed to have been, yes.

GLEESON CJ: Whether or not that person left the scene of the accident.

MR MORGAN-PAYLER: Yes.

GLEESON CJ: Suppose such a person can prove, as a result of a breath test, that he or she was under the limit at the time of the accident.

MR MORGAN-PAYLER: He is in the same position as this appellant, your Honour.

GLEESON CJ: Does that person have any defence?

MR MORGAN-PAYLER: No.

GLEESON CJ: Well, then, is not that unjust?

MR MORGAN-PAYLER: That would involve further reading down, however, your Honour. The very gravamen of the offence ‑ ‑ ‑

GLEESON CJ: What I was suggesting for your comment is that it does not cure the injustice, although it may limit it to some extent, by reading the section down in that way.

McHUGH J: It is an argument in your favour.

MR MORGAN-PAYLER: I am sorry, your Honour?

McHUGH J: What the Chief Justice is putting to you is an argument in your favour and even if you read it down in the way the minority did in Mills v Meeking ‑ ‑ ‑

MR MORGAN-PAYLER: Yes, there is still an injustice.

McHUGH J: It is still capable of working injustice, except that it just does not work as much injustice.

MR MORGAN-PAYLER: If the law were, as your Honour contended in Mills v Meeking, simply the class of persons who may be subject to, be it the injustice or the harshness, is reduced from anyone who comes under the provisions of section 53, the preliminary breath test provisions, to only those who fall under paragraph (c). The very gravamen of the offence under paragraph (f) is having more than the required amount of alcohol in one’s blood at the time of testing, as distinct from paragraph (b) which relates to being above the limit at the time of driving and there is the statutory presumption that the reading is prima facie evidence of one’s limit at the time of driving.

We tend to forget about paragraph (a) too, which seems to be the old drive under the influence provision which I suppose people could say that one would be surprised if that was used often. It is still there. We have not looked into that matter but ‑ ‑ ‑

McHUGH J: But you have to use it if you give a test under 55(2).

MR MORGAN-PAYLER: (a) or (b) your Honour.

McHUGH J: Yes, that is right. If you do not rely on 55(1), is it?

MR MORGAN-PAYLER: Yes. You can only charge (a) or (b) each of which will permit ‑ ‑ ‑

McHUGH J: So if the policeman thinks that the driver is incapable of proper control of his vehicle, he gives the test under (2) and then the policeman cannot rely on (f).

MR MORGAN-PAYLER: And that prosecution permits of argument of the reading at the time of driving.

KIRBY J: Are there differential penalties that attach to (a) (b) and (c)?

MR MORGAN-PAYLER: Yes, there is a much higher penalty for (a).

KIRBY J: Yes. So, and what about (b) and (f)?

MR MORGAN-PAYLER: Your Honour, I think they are same.

McHUGH J: They are the same, (b) (c) (d).

MR MORGAN-PAYLER: I will ask Mr Salek just to check that whilst we are discussing it. We are not contending that the contrary view is one that simply cannot be propounded. What we contend very strongly is that the State court, firstly, has looked at this question, and then this Court has looked at it.

McHUGH J: Yes, you have a strong argument that this judgment has stood for years, Parliament has not interfered ‑ ‑ ‑

MR MORGAN-PAYLER: Ten years, yes, your Honour, on a construction that in our submission - we would also rely on John’s. We say that none of those provisions would apply in this case. And we would submit that given the authorities, particularly in cases of statutory interpretation – and constitutional cases may be quite different for obvious reasons – but particularly in questions of statutory interpretations, it would be our submission that this Court is very, very reluctant to revisit earlier decisions. And, indeed, there are passages in some of the judgments that even indicate that if some individual Justices, although of the view that the earlier decision may well be wrong, are still persuaded not to follow it on the basis that this Court ought to demonstrate the reluctance to revisit an earlier, clear decision that cannot simply be said to be plainly wrong or have some other difficulty associated with it.

KIRBY J: That is the solidarity principle of inter-statutory interpretation, is it?

MR MORGAN-PAYLER: Yes, your Honour, yes. And we would say that that is perhaps an even more important principle in this Court than in some inferior courts.

KIRBY J: Well, the other view is that we are sworn to do justice. However.

MR MORGAN-PAYLER: Yes.

GUMMOW J: Justice according to law, though.

GLEESON CJ: One problem you have with John is that a number of people had organised their affairs on the faith of the decision of the High Court in John. It would be a little difficult to say that people have arranged their drinking on the faith of the decision of Mills v Meeking.

MR MORGAN-PAYLER: All we could say, your Honour, is that a number of people may very well have conducted themselves in the Magistrates’ Court and either admitted offences or pleaded guilty to offences who may be left with a sense of disquiet to find now that the law has changed and they would now have a possible defence that was not then available to them. That is as high as we can put that but no, other than that, your Honour, we do not have that.

Similarly, we do not have a situation of there being conflict between the States. It is a pure intrastate matter that relates only to the administration of the law in the State of Victoria. A conservative and, in our submission, unassailable construction has been placed on it, although we concede that the words may well admit of a different construction and in those circumstances it has stood for nigh on nine years now and operated as the law in the State of Victoria for nigh on nine years.

This appellant, when one analyses his argument, produces nothing new to this Court. It may be different if, for example, the argument under section 55 of the right of a blood test actually produced something that may well have operated on the minds of the original justices in the original decision and might have brought about a different result. That might well be a circumstance for this Court to at least consider revisiting the former decision.

It would be our submission in these circumstances that, although the matter is being argued with both questions in one and it would be difficult and time-consuming to do it otherwise, we would submit that this Court really ought not go past the threshold question, namely, has the appellant satisfied the Full Bench of this Court that it ought to revisit?

In the Babaniaris v Lutony Fashions Case (1987) 163 CLR 1 at the bottom of page 22 there is a passage in the judgments of Justices Wilson and Dawson, the last paragraph:

This Court is reluctant to depart from long‑standing decisions of State courts upon the construction of State statutes if the meaning is doubtful, particularly where those decisions have been acted on in such a way as to affect rights and obligations.

Similar sentiments are found in the joint judgment of Justices Brennan and Deane. I think they were in the minority but we would submit that the sentiments they express at page 29 are non‑controversial in that they simply relate to long‑standing principles of revisiting cases and statutory interpretation and, if I might read from the top of page 29, Lord Buckmaster in Bourne v Keane – I am sorry, I will go back over the page:

We have taken the quoted phrase from the speech of Lord Buckmaster in Bourne v Keane where his Lordship collected three principles relating to acceptance of decisions which have been followed for a long time:
“Firstly, the construction of a statute of doubtful meaning, once laid down and accepted for a long period of time, ought not to be altered unless your Lordships could say positively that it was wrong and productive of inconvenience;

Secondly, that decisions upon which title to property depends, or which by establishing principles of construction or otherwise form the basis of contracts, ought to receive the same protection -

We say that does not apply here:

Thirdly, decisions that affect the general conduct of affairs, so that their alteration would mean that taxes had been unlawfully imposed, or exemption unlawfully obtained, payments needlessly made, or the position of the public materially affected, ought in the same way to continue.”

And we would submit that it is the position of the public in so far as driving motor cars is materially affected:

The orthodoxy of non-intervention even by a supreme appellate court to reopen the construction of ambiguous statutes was accepted by the House of Lords in Hanau v Ehrlich –

I will not read the passage that is quoted there to the Court. Their Honours go on:

That axiom attributes authority to judicial precedents in order “to keep the scale of justice steady, and not liable to waiver with every new judge’s opinion”, the first decision being a solemn declaration that “what before was uncertain and perhaps indifferent, is now become a permanent rule” –

And that comes from Broom’s Legal Maxims. Now, we concede one can probably also find passages that may not assist in some of the authorities, but we do place particular emphasis on the fact that this is a question of statutory construction or interpretation and, we would submit, an area of fairly non‑controversial statutory construction. Indeed, even in McKinney, a case dealing with perhaps higher principles than those involved in this, at page 481 in the judgment of Justice Brennan under the heading “Authority of the Court’s decisions”:

As Dawson J points out, it has been uniformly held in this Court that there is no rule of practice which requires a judge in every case to warn a jury of the danger of acting upon uncorroborated confessional evidence.

And I will not take the Court to the cases that are referred to:

Of course, a court of ultimate appeal has power to overrule its own previous decisions –

And some cases are referred to, including John. His Honour goes on:

But it is a power which must be sparingly exercised if the Court is to treat its own decisions as authoritative and effective to settle the law. The authority of this Court’s decisions depends upon its readiness to overrule previous decisions and the grounds assigned for the overruling. The authority of recent decisions no less than decisions of earlier years is subject to that erosion.

At the end of that paragraph, his Honour says – I had best read it all:

If decisions which repeatedly affirm a proposition are overridden without cogent reasons for doing so, the Court’s decisions will be seen to be more an accident of the Court’s constitution than to be statements of the law pronounced with institutional authority. That is not to say that the correction of a manifestly erroneous principle of law is precluded by precedent; but precedent might be expected to be more compelling in matters of practice, as in the present case where none of the factors which justified a departure from precedent in John’s Case is shown to exist.

We would submit that when dealing with legislation that regulates the driving of motor cars and the consumption of alcohol, similar provisions might apply to questions referred to there as questions of ‑ ‑ ‑

GLEESON CJ: One additional reason why John’s Case is against you is that by the time the High Court came to deal with John’s Case, legislation had been enacted to overcome the problem seen to exist with the decision in Curran, so the only purpose of reconsidering Curran in John was to catch people who had arranged their affairs on the faith of the decision in Curran.

MR MORGAN-PAYLER: Yes. Your Honour, we would submit that that does not necessarily put John against us and, again, I will not repeat it but we refer to what Parliament did in this case after the initial curial comments about the quite harsh effects of this legislation, namely, by amending the section and introducing section 48(1A) and, indeed, amending the actual words of paragraph (f) itself to partly ameliorate the harsh effects that had been pointed out. We hesitate to reargue the matters that were argued in Mills v Meeking, although the Court there only referred to it because the amendments were not directly relevant to the case there under question, the amendments having been brought in between the Full Court of the Supreme Court of Victoria hearing the matter and this Court hearing the matter.

We would submit that that is very strong evidence of precisely what Parliament’s intention was. Parliament, mindful of some curial criticisms or, if not criticisms, at least curial statements pointing out the very harsh operation of the section, partially ameliorated that section to give a person at least the right to prove that if the alcohol present at the time of the test within three hours of driving was due solely to the consumption of alcohol after the driving, then that is a defence.

To take it any further than that, of course, the construction contended for by this appellant and, indeed, contended for in Mills v Meeking, as your Honour the Chief Justice has pointed out, does not remove the injustice, if I might call it that, or the harshness, it simply limits those who may be subject to it or further limits those who may be subject to it.

If one were to consider going further and reading the section down even further so that evidence might be able to be adduced that, in spite of the clear words of the section which strike at the reading at the time of the test rather than the time of driving in 49(1)(b) then, we would submit, to so read down the section would be, in effect, to repeal it.

GLEESON CJ: That is not reading 49(1)(f) down. That is reading 48(1)(a) up.

MR MORGAN-PAYLER: Yes, your Honour, one could do, yes. Reading words into 48(1)(a) where 48(1)(a)’s language is very, very clear and it is reading further words into it which simply do not appear there and, in our submission ‑ ‑ ‑

GLEESON CJ: It may be that your real harshness lies not in 49(1)(f) but in 48(1)(a) in what it does not say.

MR MORGAN-PAYLER: That is small (a), your Honour?

GLEESON CJ: Yes, it may be the real problem is that 48(1)(a) does not include a reference to paragraph (f).

MR MORGAN-PAYLER: No, your Honour, because 48(1)(s) can only apply to paragraphs (a) and (b) of section 49 because paragraphs (a) and (b) of section 49 deal with concentration of blood at the time of driving. Section 49(1)(f) deals with ‑ ‑ ‑

KIRBY J: That is the point. You have shifted the focus of the offence from the actual situation at the time of driving to this notional, theoretical offence which is posited on a situation at the time of the test.

MR MORGAN-PAYLER: Yes. Parliament did so, your Honour, in our submission, and it is clear when one reads the preamble - that Parliament did so to avoid what had become a large number of very time consuming pieces of litigation involving evidence, often of a, some would say, dubious nature.

McHUGH J: It is hard to support that submission in the face of 48 itself, because 48 contemplates those very issues being litigated when the defendant is prosecuted under paragraphs (a) or (b).

MR MORGAN-PAYLER: Yes, and that is the scheme, your Honour.

McHUGH J: I know, but the authorities have said Parliament may have contemplated that but we are going to avoid it now and you have got Mills v Meeking which says you can do it.

MR MORGAN-PAYLER: Our answer, your Honour, would be at virtually all levels of the process there will be somebody complaining about the prosecuting authority selecting offence (a) as against offence (b) or, indeed, seeking to proceed under two separate offences for the same conduct and that is the answer, your Honour.

McHUGH J: Yes.

MR MORGAN-PAYLER: There is also, of course, 49(1)(a) available as well which, presumably, could also be charged and the practice which, as we understand it, is not uncommon in Victoria of certainly paragraph (b) and paragraph (f) being charged and upon hearing at the Magistrates’ Court, the magistrate calling on the prosecution to elect as to which information it will proceed under. It certainly appears to have been the practice here. Inquiries reveal that the 49(1)(b) information was withdrawn. Your Honour, that would be the answer to that.

McHUGH J: Yes, I understand that.

MR MORGAN-PAYLER: Yes, and it probably is – we have not done any research but we would not seek to argue against the proposition that the majority of convictions in the State of Victoria in recent times have been under paragraph 49(1)(f). We would expect so because one would expect a prosecuting police officer to elect to proceed on the information where the proofs are easier. But, again, our response is, Parliament has been mindful of these matters, Parliament has been well aware of the fact that – and for curial descriptions to describe a statutory provision as draconian is getting fairly high on the scale of at least drawing attention to the effects of a particular piece of legislation, we say, and quite obviously Parliament has been mindful of that by the subsequent amendments that came into force after Mr Mills’ driving in Mills v Meeking to partially ameliorate what otherwise are admitted, harsh effects which some may consider to even operate unjustly on certain people.

However, our answer to that would be, well, the state of the law is clearly well known in Victoria. If one drives a motor vehicle with alcohol present in one’s blood then there may be risks that attend to that and, I think, perhaps, drivers in various other jurisdictions in this country run similar types of risks with some of the legislation. I do not know if the Court would be assisted ‑ ‑ ‑

KIRBY J: We seem to be moving towards your grand peroration now, but I just have two little questions. First, in relation to the relief that is sought, it is in the nature of certiorari, there is no question – I saw some discussion of Craig’s Case and the law in Victoria seems to be a little different – but there is no point taken on anything like that?

MR MORGAN-PAYLER: It was not taken at that time, your Honour, and so no point is now taken ‑ ‑ ‑

KIRBY J: So that, if the appellant is entitled to succeed ‑ ‑ ‑

MR MORGAN-PAYLER: Yes, it is quite arguable that he is entitled to proceed under the provisions of certiorari or an action in the nature of certiorari in Victoria apparently has a slightly different – may have a different flavour than in other jurisdictions in the Commonwealth.

KIRBY J: Well, presumably, statute as in New South Wales is substituted for the old prerogative writs, the statutory equivalent, and is the relief that the appellant seeks at page 107 a relief that is appropriate if the appellant succeeds? It is better to sort these procedural things out now than those on the part of the obligation of re-argument. There is no dispute about the record or ‑ ‑ ‑

MR MORGAN-PAYLER: Yes, I think, your Honour, the relief is probably appropriate if this Court is persuaded to read the Act down to limiting a prosecution under section 49(1)(f) to somebody who is reasonably believed to have been in a motor vehicle collision within three hours, then that would be the appropriate relief and the appropriate ‑ ‑ ‑

KIRBY J: I think at the special leave hearing there was a stay order made in respect of that balance of the sentence of the appellant which he had not served.

MR MORGAN-PAYLER: Yes.

KIRBY J: So that, in the event that the appeal is dismissed, that stay would, by operation of that order, or by special order, be lifted?

MR MORGAN-PAYLER: We would submit that the appeal being dismissed would automatically operate to put the stay to an end.

KIRBY J: There is no need for any other order of this Court?

MR MORGAN-PAYLER: No, your Honour. Thank you for reminding me of that. Just as a precaution, if the appellant seeks - presumably the Court will ‑ ‑ ‑

GUMMOW J: No, it is at page 33 of the transcript, line 30. It seems to me it continues, depending on ‑ ‑ ‑

MR MORGAN-PAYLER: Yes, but if there is any need or application for a further continuance of the stay until such time as there is judgment in this matter, there would of course be no objection to that.

KIRBY J: The only other matter – I think this might be the one you were going to turn to – is related to the Motor Car Act. Was (f) a paragraph that came in with the 1986 Act or did (f) pre-exist?

MR MORGAN-PAYLER: No, it was novel, on my understanding, your Honour, but might I just – my learned junior has been looking for that whilst I have been on my feet.

KIRBY J: Yes.

MR MORGAN-PAYLER: Copies of the Motor Car Act are just being distributed to the Court.

GUMMOW J: But what do they disclose?

MR MORGAN-PAYLER: Section 80 of that Act, which is driving under the influence, and section – if your Honour will pardon me for a moment, I will ask my learned junior to find the appropriate section which ‑ ‑ ‑

GLEESON CJ: Can I take you back to the matter of the stay.

MR MORGAN-PAYLER: Yes, your Honour.

GLEESON CJ: What is the submission you make as to the proper order that this Court should make in the event that it is in your favour on the appeal?

MR MORGAN-PAYLER: Simply that the appeal be dismissed and that the order of the County Court of Melbourne ‑ ‑ ‑

GUMMOW J: Well, the stay will dissolve at the further determination, will it not?

MR MORGAN-PAYLER: The order of the County Court of Melbourne made ‑ ‑ ‑

KIRBY J: Well, would not one simply say that the stay which was granted by the Court on 14 November 1997 be vacated?

GAUDRON J: It will be sufficient for the appeal to be dismissed if you are successful; the stay operates pending further determination.

MR MORGAN-PAYLER: Yes, until such time as the matter is determined.

GAUDRON J: That is all it does.

MR MORGAN-PAYLER: Yes, your Honour. Just a couple of matters I noted, if I might just draw – there was some discussion earlier during the course of the appellant’s argument about speeches. At page 225 of Mills v Meeking the majority there refers to another part of the second reading of one of the speeches, which certainly implies a broader intent in Parliament than confining the section to at the conclusion of an accident, and we would pray in aid the majority in Mills v Meeking who, we would submit, at the end of the day decided that the debates were not of a great deal of assistance in this particular question.

Justice Callinan raised in argument with the appellant, and your Honour the Chief Justice also, whether an offence under section 49 (1) (b) might be proved by evidence other than the results of a breathalyser test, and Justice Callinan referred to the definition section as perhaps suggesting that one might not. However, it might perhaps be worth noting in passing that of course it is not a precise level that need be proved, but just a level in excess of the prescribed quantity, namely .05 per cent or, in the case, I think, of a probationary licence holder, .00 per cent.

CALLINAN J: But you would have to know how much blood was in the person’s body. It might be all right in the Chief Justice’s case of a full bottle of whisky, but in marginal cases the precise quantity of blood in the body might be very important.

MR MORGAN-PAYLER: Marginal cases would be hopeless, your Honour, yes, and perhaps it might be only in cases very clear like those referred to by the Chief Justice or, indeed, in the case of a probationary driver, where the prescribed limit is .00.

CALLINAN J: Well, you have to look at all possible consequences if you are using that as an aid to construction; all possible, reasonable situations, just not the extreme ones.

MR MORGAN-PAYLER: The apparent earlier section under the Motor Car Act was section 80F and the requirement - but fairly different and they got fairly complex and, as I recall it, there were again piecemeal amendments that flowed upon various findings and various cases and determinations and interpretations by the Supreme Court in Victoria and we ended up with a fairly complex piece of legislation. But certainly, to my recollection, there was no equivalent to section 49(1)(f), which related the

offending behaviour to the level of blood alcohol at the time of testing, as distinct from the time of driving. It is on our understanding a novel provision.

If it please the Court, I think we would be probably lapsing into repetition. Unless there are some other matters, we rely on the various cases that we have referred to in our list of authorities. But our primary and strongest submission is that this is just not one of those circumstances. Even if some members of this Court may have some reservations about the earlier judgment, this is not one of those situations where this Court would be moved to revisit the earlier judgment. If the Court does revisit the earlier judgment, then we would submit that there is no reason been advanced by this appellant why the Court ought depart from the construction that was then found by the majority. And, if it please the Court, unless there are any further matters with which we can assist the Court, those are the submissions of the second and third respondent.

GLEESON CJ: Thank you Mr Morgan-Payler. Yes, Mr Salmon.

MR SALMON: Your Honours, I have neglected to hand up the material which was not provided when we made our submissions, that is the parts of the report of the Law Reform Commission. They are all here and could be provided to the Court now or provided ‑ ‑ ‑

GLEESON CJ: Well, now might be a convenient time, thank you.

MR SALMON: Yes.

GLEESON CJ: You go ahead, Mr Salmon, while we are working out the logistics of this.

MR SALMON: Your Honour. the only matter which I would wish to raise in reply is to deal again with the matter raised by your Honour Justice Kirby on the way in which (f) came into the Act. In the material that has just been handed up by my learned friend in which the old Motor Car Act was set out, section 80E(1)(b) provided back in those days:

A member of the police force may at any time require –
(b) any person such member believes on reasonable grounds has within the last two preceding hours driven a motor car or been in charge of a motor car within the meaning of section 82 when it was involved in an accident upon a highway –
to undergo a preliminary breath test –

So, making provision for people who had been involved in accidents was available even beforehand.

But, what then happened, as we understand the matter, was in 1986 the complete group of section 49 was enacted all at once. In other words, whereas prior to 1986 there was no 49(1)(f), that is a special offence for people who fail the test, that offence was introduced at exactly the same time as the new wording for 49(1)(a) and (b). It would be, in our submission, not correct to say that 49(1)(f) was intended to supersede 49(1)(b). You could not read that into it. What happened was that simultaneously a rewording of 49(1)(a) and (b) was introduced and 49(1)(f) was introduced as well. In our submission, you would not be able to infer from that that the Parliament was intending to give no effect at all to 49(1)(b) and necessarily the brand new 48(1)(a) which also was redrafted and introduced at the same time. Otherwise there is no other matter that I wish to put in.

GLEESON CJ: Thank you, Mr Salmon. We will reserve our decision in this matter and we will adjourn until 9.30 tomorrow morning in Melbourne and 9.30 tomorrow morning in Sydney.

AT 12.37 PM THE MATTER WAS ADJOURNED

[1999] HCATrans 8

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