Wilson v Wedd
[2001] TASSC 153
•20 December 2001
[2001] TASSC 153
CITATION: Wilson v Wedd [2001] TASSC 153
PARTIES: WILSON, Anthony George
v
WEDD, Nicola Lee
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 57/2001
DELIVERED ON: 20 December 2001
DELIVERED AT: Hobart
HEARING DATES: 27 November 2001
JUDGMENT OF: Evans J
CATCHWORDS:
Traffic Law - Offences - Alcohol and drug related offences - Tasmania - Testing and analysis procedure - Blood analysis - Whether applicant agreed to submit to the taking of a sample of blood - Whether container containing part of the sample of blood was tendered to the applicant.
Road Safety (Alcohol and Drugs) Act 1970, ss6(1), 10A(1) and (2), 13(5B).
Smith v Brooks A50/1983, considered.
Aust Dig Traffic Law [81]
REPRESENTATION:
Counsel:
Applicant: A G Melick SC
Respondent: F C Neasey
Solicitors:
Applicant: Chris Boland
Respondent: Director of Public Prosecutions
Judgment Number: [2001] TASSC 153
Number of Paragraphs: 23
Serial No 153/2001
File No LCA 57/2001
ANTHONY GEORGE WILSON v NICOLA LEE WEDD
REASONS FOR JUDGMENT EVANS J
20 December 2001
The applicant appeals against his conviction and sentence on a charge of breaching the Road Safety (Alcohol and Drugs) Act 1970 ("the Act"), s6(1), by driving a motor vehicle whilst alcohol was present in his blood in a concentration greater than the prescribed concentration of .05 of a gram of alcohol in 100ml of blood.
The charge arose from a single vehicle accident in which the applicant, the driver of the vehicle, was injured. His injuries included an undisplaced left frontal/orbital skull roof fracture and a de-gloving laceration in the area of the fracture. Constable De Vries, who attended the scene of the accident, described the applicant's scalp injury as fairly horrific. Constable De Vries said it looked like a big piece of skin had been "scalloped" from the applicant's head. The applicant was taken to the Royal Hobart Hospital where he was approached by Const Cooper, a breath analysis operator, who formed the view that pursuant to the Act, s10A(1), he should require the applicant to submit to the taking of a sample of blood for analysis. At the time the applicant was on a trolley in a cubicle in the casualty section of the hospital waiting to be taken for surgery. His only attire was apparently an operating gown. Constable Cooper spoke to the applicant and sought a sample of his blood. The applicant responded that he would prefer to provide a breath analysis. On being told that a breath analysis was not an option, the applicant acquiesced to a sample of his blood being taken. The sample was placed into three containers. The applicant selected the container he wished to take and that container was handed to a member of the hospital staff for placement with the applicant's belongings. The applicant did not see that container again.
In the course of pronouncing his reasons for convicting the applicant, the learned magistrate found:
(1)that in accordance with the Act, s10A(1) and (2), Const Cooper had requested the applicant to submit to the taking of a sample of blood for analysis and the applicant had agreed to do so; and
(2)that a container containing the applicant's blood had been tendered to the applicant in compliance with the Act, s13(5B).
The applicant challenges both of these findings and says that the sample of blood was taken from him in contravention of the above provisions. In consequence, the applicant says the blood sample was not taken in accordance with the Act, and the deeming conditions contained in the Act do not apply to the results derived from an analysis of the sample.
Did the applicant agree to submit to the taking of a sample of blood?
The Act, s10A(1) and (2) provide as follows:
"10A (1) Where a police officer reasonably believes that a person was the driver of a vehicle involved in an accident in which personal injury was sustained and that alcohol or a drug may have been present in that person's blood at the time of the accident, the police officer may require that person to submit to the taking of a sample of blood for analysis.
(2) Where a person agrees to submit to the taking of a sample of blood, the relevant provisions of this Act apply as if the person were a person who had elected to provide a sample of blood in accordance with section 10(4B)."
It is conceded that the evidence establishes that Const Cooper was entitled to request the applicant to submit to the taking of a blood sample. The applicant contends, however, that the evidence does not establish that the sample which was taken was obtained with his agreement.
On the evidence it was open to the learned magistrate to be satisfied that, notwithstanding the extent of the applicant's injuries, he was conscious and able to understand what was going on when he was requested to provide a blood sample, and he was able to rationally exercise his judgment about whether he would do so.
As to what amounts to agreement to submit to a blood test for the purposes of the Act, s10A(2), it should be borne in mind that a driver's refusal to submit may result in a charge of breaching the Act, s14(1A), which provides that any person who, without a reasonable excuse, refuses to comply with a requirement made to him by a police officer under the Act, s10A(1), is guilty of an offence. In consequence, a driver's agreement to submit to the taking of a blood sample may in many instances be coerced by the fear of that consequence. There is no evidence in this case as to whether or not this legitimate form of coercion played any part in the applicant's acquiescence.
Counsel for the applicant submits that as the applicant expressed a preference for a breath analysis when responding to Const Cooper's request for a blood sample, the learned magistrate could not have been satisfied that the applicant agreed to submit to the taking of a blood sample.
As to the request made by Const Cooper and the applicant's response, Const Cooper said in his evidence-in-chief:
"… I required a blood sample on the basis that the defendant had received a personal injury in relation to a motor vehicle accident, and that it was suspected that alcohol had been consumed at some time by the defendant, through my own observations and relayed observations of the officer attending the scene of the accident.
…
… I completed and read to the defendant, a notice under s.10A of the Road Safety Alcohol & Drugs Act, in relation to the taking of a blood sample from him for the purpose of blood alcohol concentration analysis. In response to this direction, the defendant replied 'yeah, no worries mate, I can blow, I’d prefer that'. I then advised the defendant that it was more appropriate in this situation that I take a blood sample from him, which provided no further - no objection to, and directed the attending physician, Dr Stanley, that I required a blood sample from the defendant. At 450 hours I supervised the taking of a blood sample from the defendant by Dr N Stanley."
The following is a portion of the transcript of the cross-examination of Const Cooper about obtaining the sample:
"And from what I’ve put it’s clear that Mr Wilson didn’t consent to that, did he? He said, 'I prefer to blow a breathalyser' … Initially Mr Wilson did want to blow into a breathalyser, which I noted on that form itself.
Yeah … And I advised him that it was more appropriate, in the circumstance.
Yeah … That I was taking a blood sample.
Yeah … And the blood - the blood alcohol analysis would be done by blood.
Right, okay. And he didn’t say any more? … No. He didn’t object any further.
He didn’t - but he didn’t do anything? He was just there? … Yes.
Submitted to the blood test. ... Yes."
The applicant said that his recall of what had occurred when the blood sample was taken was very hazy. He did, however, have a recall of saying "Well I prefer a breathalyser than the blood test”.
Mrs Carol Kane, a witness called on behalf of the applicant, was at the Royal Hobart Hospital when the applicant was spoken to in relation to the provision of a blood sample. She said that, at a time when staff and a police officer were present, the need to take blood was raised with the applicant who said that he would prefer to be "breathalysed", and it was then explained to the applicant that because of his injuries he could not be breathalysed.
The learned magistrate was entitled to accept this evidence and find that the applicant was requested to submit to the taking of a blood sample and made a response to the effect that his preference was to provide a breath analysis. That response was not a refusal. The expression of a preference for one of two different procedures is not a rejection of the least preferred procedure. Upon it being explained to the applicant that he could not give a breath analysis, the applicant did not object to providing a blood sample and apparently did nothing to hinder the sample being taken. It was plainly open to the learned magistrate to conclude, as he did, that the applicant agreed to submit to the taking of a sample of his blood. I reject the applicant's challenge to the learned magistrate's finding in this regard.
Was a container containing part of the sample of blood tendered to the applicant?
The Act, s13, details the duties of medical practitioners and nurses in relation to the taking of blood samples. The duties include dividing the sample into three parts and placing each part in a container issued for that purpose by an approved analyst. With reference to one of the containers the Act, s13(5B), provides:
"(5B) One of the containers containing a part of the sample of the blood or urine shall, as soon as practicable after it has been taken, be tendered to the person from whom it was taken, unless he is in custody, and, if he is in custody, shall forthwith be delivered to a police officer."
As to the tender of a container to the applicant, Const Cooper said in his evidence-in-chief:
"… As the defendant was conscious and comprehending and responding to questions asked of him, or making comment throughout the procedure, I offered him the choice of one of the three containers to be taken into his own possession should he see fit to analyse that container, and of which the defendant selected one of the three containers, and took it into his possession. …"
The following is a portion of the transcript of the cross-examination of Const Cooper about what occurred in relation to the container:
"What did he do with that vile of blood? ... The - Mr Wilson indicated which container he wished to have by pointing at it. I then held that one to him, and the doctor at - Mr Wilson told Mr Wilson - took and said, 'I’ll put that in your property'.
All right. So Mr Wilson didn’t ever take it into his possession at all, did he? ... Well he touched it.
Right. What I’m trying to get at, if it’s tendered to him and he touches it in that condition, he’s naked, he’s going into surgery, he doesn’t get it in his possession at all, does he? … Well, I tendered it to him. He selected one of the three containers. I confirmed that selection with him, and the doctor then took it into possession and put it amongst his possessions.
Right. So the doctor took it in possession ... Following an indication from Mr Wilson that that was the container he required.
So the doctor took it into her possession? ... Following the direction of Mr Wilson, yes.
Yes. Mr Wilson didn’t take it into his possession? ... No, he had nowhere to put it."
The medical practitioner who took the container to place it with the applicant's possessions was not called as a witness. Her certificate as to what transpired when the sample of blood was taken was tendered in evidence as exhibit P6. In that certificate she states that after dividing the sample of blood into three parts, each part being enclosed in a suitable container, "one of these parts was tendered as soon as practicable to the patient". Pursuant to the Act, s27(1), this certificate is prima facie evidence of its contents.
The applicant's evidence was to the effect that he had no recall of a container containing part of a sample of his blood being tendered to him. He said that before he left hospital a visitor suggested to him that he should have been provided with a container containing a portion of a sample of his blood. The applicant thereupon made enquiries about what had occurred and was informed that a sample had been taken and that the container containing his portion of that sample was in his drawer. The applicant said the container was not in his drawer. He said that his recall of what had occurred when the blood sample was taken was very hazy. As I have said, it was open to the learned magistrate to be satisfied that at the time the sample was taken the applicant was conscious and able to understand what was going on. Evidence which strongly suggests that this was so, included the applicant's evidence of what occurred when he was asked to sign some documents referable to his treatment. The applicant's evidence as to this was:
"And then the nurse come along and said, 'I want you to sign some forms'. I said, 'What’s this for?' And she said, 'This one’s to go into theatre'. And I vaguely remember signing it. And then she said, 'Oh, there’s another form to sign'. And I said, 'What’s that one for?' And she said, 'For a blood transfusion when you go into theatre'. And I said, 'No, I won’t sign that'. And she said, 'Oh, why not?' And I explained that my mother has had blood transfusions and contracted a very rare blood disorder through this transfusion, and I refused the transfusion under those grounds."
Counsel for the applicant submits that the evidence does not establish that there was a tender of the container or at least does not establish a tender which was sufficient for the purposes of the Act, s13(5B). Counsel submits that the purpose of the requirement that part of a blood sample be provided to the driver is to enable the driver to have a check analysis carried out on the blood sample. In Shervill v Shearer (1979) 26 ALR 454 at 458, Foster CJ attributes such a purpose to a requirement contained in Northern Territory legislation governing the taking of blood samples from drivers, which legislation is broadly similar to the Act.
Counsel for the applicant in substance submits that at the time of tender, the circumstances of the affected person must be such as to allow him or her to take possession and control of the container so as to ensure that its contents are kept in a manner which preserve them for future analysis. I am not persuaded that conditions such as these should be grafted onto the ordinary meaning of the word "tendered" for the purposes of the meaning ascribed to that word in the Act, s13(5B). In Smith v Brooks A50/1983, Everett J, rejected an argument to the effect that as the driver in that case had no recall of the tender of a container to him, it had not been tendered for the purposes of the Act, s13(5B). At 10 his Honour said:
"The statute is silent as to any obligation to do other than 'tender' a container as described to the person affected. If in fact there is a 'tender' of the container, I am unable to discern in the Act any room for an argument that a supervening event, especially one of a subjective character, may make the established 'tender' legally inadequate."
Just as the statute is silent as to any obligation to do other than tender a container, so it is silent as to the circumstances of the person affected when the tender is made, save insofar as the meaning of the word "tendered" imports the need for the person to whom the tender is made to be aware of it. The meaning assigned to "tender" by The Macquarie Dictionary, 2nd ed, which I adopt is "an offer of something for acceptance". These ingredients of the meaning of "tender", coupled with the context within which the word "tendered" is used in the Act, s13(5B), show that for a container to be tendered to an affected person, that person must be conscious and aware of what is going on and have the capacity to accept or reject the tender.
In this case, it was plainly open to the learned magistrate to find that the container had been offered to the applicant at a time when he was conscious and aware of what was going on. As to the applicant's capacity to appreciate what was transpiring, it is significant that he had refused to sign a document authorising a blood transfusion should that course have become necessary during surgery, and he had been able to explain his reasons for the refusal. This demonstrates the applicant's ability to make a rational decision. Had the applicant so desired he could have directed that the container which he had selected be dealt with in a manner other than that to which he acquiesced. For example, the applicant could have directed that the container be passed to someone other than the medical practitioner who was present. Relatives and friends of the applicant were at the hospital. The applicant's acquiescence to the medical practitioner taking the container for the applicant does not derogate from the evidence that the container was offered to the applicant at a time when he was able to exercise a judgment about its acceptance and, if accepted, the manner in which it was to be dealt with. I am not persuaded that the learned magistrate erred in finding that the container was tendered to the applicant.
The appeal is dismissed.
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