Rollings v Barter [2003] ACTSC 57 (21 July 2003)

Last Updated: 15 August 2003

STEPHEN ROLLINGS v PETER ANDREW THOMAS BARTER

[2003] ACTSC 57 (21 July 2003)

MOTOR TRAFFIC (ALCOHOL AND DRUGS) ACT 1977 (ACT) - motor vehicle accident - no attendance by police - no immediate attendance at hospital - assertion that alcohol was consumed post-accident - meaning of "relevant period" for taking samples - nexus between accident and attendance at hospital - proximity of testing to time of accident - a "reasonable time" - extension of time under the Act - impracticable for police to take sample - obligation of attending doctor or nurse to take sample for alcohol concentration determination - reasonable belief of doctor or nurse - admissibility of analyst's certificate as to alcohol concentration determination.

Magistrates Court Act 1930 (ACT), s 219B(1)(a)

Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 3, 14, 15, 15AA, 18A, 19, 23(1A), 41, 42

Motor Traffic (Alcohol and Drugs) (Amendment) Act (No.2) 1997 (No. 53 of 1997)

Road Transport Legislation Amendment Act 1999 (ACT), Schedules 1, 3, 4

Motor Traffic (Alcohol and Drugs) Act 1977 (ACT)

Legislation Act 2001 (ACT), s 139

Evidence Act 1995 (Cth), ss 9(3)(d), 135, 136, 137,138

McLachlan v Mackey (1994) 124 ACTR 1; 119 FLR 332; 77 A Crim R 250

R v Britton [1973] RTR 502 (UKCA)

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 14 of 2003

Judge: Higgins CJ

Supreme Court of the ACT

Date: 21 July 2003

IN THE SUPREME COURT OF THE )

) No. SCA 14 of 2003

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: STEPHEN ROLLINGS

Plaintiff

AND: PETER ANDREW THOMAS BARTER

Defendant

ORDER

Judge: Higgins CJ

Date: 21 July 2003

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The parties may be heard as to costs.

1. This is an appeal by way of order to review pursuant to s 219B(1)(a) of the Magistrates Court Act 1930 (ACT) (the MC Act).

THE BACKGROUND

2. The appellant is a police officer who, as informant, charged the respondent with contravening s 19(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (the RT (A & D) Act) in that "he in the Australian Capital Territory on 27 March 2002, did drive a motor vehicle, on a public street, with level 4 alcohol in his blood".

3. Though that was the brief description of the offence, it was more particularly alleged that, on 27 March 2002, the respondent drove a motor vehicle on the Tidbinbilla Road, between 5.15 pm and 5.30 pm. He had an accident, in that he swerved to avoid hitting a kangaroo. The vehicle left the road and rolled over. He called his wife on his mobile phone. She attended and transported him home.

4. At about 8.15 pm, having allegedly consumed intoxicating liquor at home, the respondent, who by then was in considerable pain, attended Calvary Hospital. On being given a history that he had been injured in a motor vehicle accident, the attending nurse felt obliged by virtue of s 15AA of the RT (A & D) Act to take a blood sample and did so.

5. Though not dealt with as required by s 15AA(4) of that Act, the blood sample was subsequently analysed and found to contain 202 milligrams of alcohol per 100 millilitres of blood, expressed as 0.202%, a level 4 reading. The result was eventually reported to police and the respondent was charged as noted above.

6. Section 19 of the RT(A & D) Act provides as follows:

19 Prescribed blood alcohol concentration exceeded

(1) A person who--

(a) has been the driver of a motor vehicle on a public street or in apublic place; and

(b) has, within the relevant period, a concentration of alcohol in his or her blood equal to or more than the prescribed concentration;

commits an offence punishable, on conviction, by a penalty ascertained in accordance with section 26.

(2) In proceedings for an offence against subsection (1), evidence may be given of the concentration of alcohol in the person's blood as determined by--

(a) an analysis of a sample of the person's breath or blood carried out in accordance with this Act; or

(b) any other analysis.

(3) In subsection (1)(b):

relevant period means the period beginning when the person ceased to be the driver of the vehicle and ending at the latest time when--

(a) a breath analysis of the person may be carried out in accordance with this Act; or

(b) if section 15 or 15AA applies--a sample of the person's blood may be taken in accordance with that section.

PROCEEDINGS BEFORE MAGISTRATE SOMES

7. On 28 August 2002, the respondent pleaded not guilty to the charge. After the filing of written submissions the matter came before Magistrate Somes on 14 February 2003. His Worship was asked to assume facts as agreed, namely:

"(a) the respondent was the driver of a motor vehicle on a public street on 27 March 2002;

(b) the vehicle, driven by the defendant, was involved in an accident on 27 March 2002 (the defendant further asserting positively that the accident occurred at or about 5.30 pm and the prosecution not conceding this but acknowledging that it could not positively prove the exact time of the accident);

(c) no police officer required the respondent to undergo any screening test, any breath analysis test or to permit a sample of his blood to be taken by a doctor or nurse in accordance with either sections 14 or 15 of the Road Transport (Alcohol & Drugs) Act 1977.

(d) the respondent attended at hospital at about 7.54 pm on 27 March 2002, not having been taken to the hospital either by the police or by ambulance (the defendant further asserting positively that he was not taken to the hospital from the scene of the accident, the prosecution not conceding this but acknowledging that it could not positively prove the contrary); and

(e) a blood sample was taken from the respondent by a doctor or nurse at the hospital at 8.15 pm on 27 March 2002, and subsequently analysed."

8. There was no agreement by the prosecution that the respondent had consumed some or all of the alcohol found in his blood after the accident but prior to his attendance at Calvary Hospital. However, it was inherently unlikely that the prosecution could have disproved that assertion, which appeared in the written submissions of the respondent to the learned Magistrate.

9. The evidence supporting the prosecution case rested on the certificate of the analyst who tested the blood sample taken as agreed in (e) above. That, in turn, raised an issue as to whether the nurse (it was agreed a nurse, not a doctor, took the sample) who took the sample had been authorised or required to do so by virtue of s 15AA of the RT (A & D) Act.

10. Mr Whybrow, for the respondent, objected to the tender by Ms McKay, for the informant, of that certificate, asserting it lacked effect under that Act.

11. Magistrate Somes, having considered the submissions of both counsel, upheld the objection. Absent the certificate, Ms McKay conceded that the prosecution could not succeed. The information was dismissed accordingly with costs.

THE LEARNED MAGISTRATE'S REASONS

12. His Worship's reasons for acceding to the objection were expressed as follows:

"The Road Transport (Alcohol and Drugs) Act sets up a scheme, to quote the preamble of the Act, to provide for the detection of persons who drive motor vehicles after consuming alcohol or drugs, for offences by those persons and to provide measures for the treatment and rehabilitation of those persons. The Act therefore sets out a scheme which allows the police to require persons to do things that they would not, as a general rule, have the power to require. It is not necessary, in all of the circumstances, to go through the whole of the Act, but I intend to look at some of the sections a little more closely.

Looking at the scheme of the Act, the first section, I think, which requires consideration is section 14. This allows a police officer to require a person to undergo a screen test or to provide a sample of breath for analysis and sets out a scheme as to how that is to occur, and in particular sets out limitations upon the powers that police officers have to make those forms of requests.

In particular, in section 14(1)(a) and (c), there are time limitations imposed upon the police relating to the making of requests under section 14. In 14(1)(a) where a person has been involved in an accident, and that person has been taken to the hospital, then no more than two hours have passed before the request is made. In any other case, that is to say where a person is not taken to the hospital, more than two hours after the accident. In circumstances where there has not been an accident, then there is a limitation of two hours from the time the person ceased to be the driver of a motor vehicle.

Those provisions then - that is to say in section 14 - go on to indicate in subsection (2) circumstances in which it is inappropriate, for whatever reason, as set out in the Act - and I must say in passing that I am referring to an Act that seems to be dissimilar insofar as the numbering is concerned, to the legislation that the prosecution have and it would seem that the legislation that I'm referring to, which says in the copy that I have, is in force on 1 March 2000, has been changed since that date, but it seems to have been changed only in relation to the numbering of sections, and there doesn't seem to be any change to the law itself. If this matter is to be looked at again elsewhere, it will be necessary for the person looking at it to look at the same Act that I am looking at, to see the sections that I'm referring to, as I am now referring to them.

In subsection (2) of section 14, there are circumstances set out where police shall not require a person to undergo a screening test, and it would seem, in the circumstances, that those sections don't apply in this particular case, save to say that each one refers to a requirement by a police officer to do things or not to do things as the case may be.

That section 14 provides the scheme whereby police officers are entitled to require persons to undergo screening tests or breath analysis tests. As already indicated, section 14 also indicates that there will clearly be circumstances in which it is not appropriate or practicable for either of those tests to be carried out and section 15 provides for the taking of blood samples in circumstances set out in that section.

It is necessary, I think, in the circumstances, to quote the whole of section 15(1), which is in the following terms:

`Where a police officer does not, by reason of paragraph 14(2)(a) or (b), require a person to undergo a screening test, or to provide a sample of his or [sic] breath for breath analysis, or because the breath analysis instrument available is not in working order, or an approved breath analysis instrument is not available, it is not practicable to carry out the breath analysis, the police officer may require the person to permit a sample of his or her blood to be taken by a doctor or nurse for analysis and if the person is not in hospital and they take the person into custody and take the person or place the person in the custody of another police officer who shall take the person, as soon as practicable, to a hospital for that purpose.'

Subsection (3) of section 15 is in the following terms:

`A sample of a person's blood shall be taken as soon as practicable after the arrival of the person at the hospital and shall not be taken more than two hours after the arrival of the person at the hospital.'

All of that, so far, would seem to be remarkably straightforward, that there is a clear regime that allows the police to conduct screening tests and breath analysis and there is an alternatively clear regime that allows the police to require a person to permit a sample of his or her blood to be taken in the nominated circumstances.

The difficulty that arises in this case is that none of those things have occurred. The police were not involved, as I found, in the transport of the defendant, as he now is, to the hospital. There was never a requirement put to the defendant to undergo a screening test or a breath analysis test. The police officer was not in a position to form any views in relation to 14(2) where it was relevant or appropriate to require a blood sample to be taken and the police officer did not require the defendant, at any stage, to permit a sample of his blood to be taken.

It would seem, looking at the scheme in 14 and 15, that that would be the end of the matter as far as the prosecution is concerned. The prosecution, however, rely upon an amendment to the Act, which was introduced, as I understand it, in 1997, which is in the following terms, as to paragraph (1):

`A doctor or nurse who, in a hospital, attends to a person whom the doctor or nurse believes on reasonable grounds to be a driver involved in an accident, shall within two hours of the person's arrival at the hospital, take from that person a sample of the person's blood for analysis and maximum penalty, 10 penalty units.'

Now that provision clearly creates an offence in a doctor or nurse who does not carry out the requirement set out in that section. It does not, in that section or in any part of the following subsections of section 15AA, authorise a doctor or nurse to take a blood sample from a person, other than in those nominated circumstances, and indeed, there is no authorisation at all, other than that to be found in section 15, which can only be triggered, in my view, by a requirement being made by a police officer.

During the course of the submissions, Ms Mackay [sic] appeared for the prosecution. I indicated to Ms Mackay [sic] that if the position put by the prosecution, as I understood it, was correct, that is to say that 15AA in effect stands on its own feet and creates what would be, in the circumstances, a third situation in which a citizen of the Territory could be required to submit to either a breath or blood test. That is to say, that in addition to the powers to be found in sections 14 and 15 of the Act, there is a third procedure available, and it is available, if one reads, strictly speaking, the provisions of 15AA, only on the decision of a doctor or a nurse who somehow has to form a view or a belief, in accordance with the words of the section, on reasonable grounds that the person at the hospital, at any time, was involved, again at any time, in an accident, that that doctor or nurse, under pain of criminal sanction, is required to take a sample, provided the sample is taken rather within two hours of the patient arriving at the hospital.

To form that view, the meaning of the Act would indicate that the legislature has created a third circumstance in which a person, at any point in time, could be required, upon the doctor or nurse being satisfied in accordance with the provision, to submit to a blood test, with a view to that blood test being dealt with under provisions of section 15A and in due course, the police are satisfied that the blood showed more than the prescribed concentration of alcohol, if they are able to tie that to an accident that had occurred at any time, would be able to prosecute. It would seem that that cannot be what was intended.

Mr Whybrow, in his submissions, included a reference to the speech made by the then relevant minister, Mr Kaine, at the time of the introduction of the bill that amended the legislation and introduced, amongst other things, section 15AA. Mr Kaine, in his speech, as referred to in Mr Whybrow's submissions, says as follows:

`The current provisions of the Motor Traffic, Alcohol and Drugs Act 1997 already allow the police to have blood or bloody samples analysed for alcohol or drugs. In the case of injured people, this process was often hindered, firstly because the police were unable to have the samples taken while injured people were being treated by hospital staff. This meant that the police had to wait around at hospitals while these people received medical attention. Secondly, the law requires that these samples be taken within two hours of arriving at the hospital. This period often expired during the course of treatment.

The overall effect was that people were unable to be prosecuted because of the lapse of time. With these amendments, this can no longer happen. These amendments will make it compulsory for medical staff at a hospital to take a blood sample from any person aged 15 years or more, if the police have reasonable cause to believe that they may have contributed to a traffic accident. These may include drivers of motor vehicles, injured pedestrians, bicycle riders and horse riders.'

That last sentence refers to some other amendments that were introduced and are to be found in section 18A of the Act.

If the intention of the legislature was to allow more time for blood samples to be taken after a person arrived at the hospital, it seems, with the greatest of respect, as I understand the legislation, that that result was not achieved. Section 15 already had a limitation imposed that prevented a sample of blood being taken no later than two hours after the arrival at the hospital, and 15AA seems to say the same thing. The only difference would be if the intention of the legislature was that, as I've indicated earlier, that there was to be an open ended right on a doctor or a nurse, at any time, in any circumstances, upon them being satisfied that a person had been involved in an accident, to take a test or a blood sample and then to run some form of raffle to see whether that might be able to be tied to some relevant accident that somebody might be able to be prosecuted for.

I'm not able to understand what section 15AA means, other than to read it together with section 15, which indicates that the first step is that there must be a requirement from the police officer, and the second step is that if a doctor or a nurse, for some reason doesn't wish to take the test or a sample within the two hour period as provided in section 15, then a prosecution may be launched against that person for failing to assist the police, in effect, in the execution of their duty.

I cannot accept that 15AA is intended to create a third category of testing procedures under this Act. It seems to me that in this circumstance, as there was no requirement ever put upon the defendant by a police officer, pursuant to section 15, and that there is no additional scope within 15AA to allow the testing to occur as it did, that the evidence must be excluded. And it is accordingly, I dismiss the information."

13. The essence of his Worship's reason for so finding was that the duty imposed on a doctor or nurse under s 15AA could only be triggered by a request from a police officer pursuant to s 15 of the RT (A & D) Act.

THE RELEVANT LEGISLATION

14. It is convenient to set out the relevant provisions of the RT (A & D) Act to which his Worship referred in his reasons.

"14 Restrictions on screening tests and breath analyses

(1) A police officer shall not require a person to undergo a screening test under section 8, 9 or 10 or require a person to provide a sample of his or her breath for breath analysis under section 12, and an approved operator shall not begin or continue the breath analysis of a person under section 12--

(a) for an accident--

(i) if the person is taken to hospital--if more than 2 hours have elapsed since his or her arrival at the hospital; or

(ii) in any other case--if more than 2 hours have elapsed since the accident occurred; or

(c) in any other case--if more than 2 hours have elapsed since the person ceased to be the driver of the motor vehicle.

(2) If subsection (1) (a) (ii) applies and--

(a) a police officer attending the scene of the accident has doubt as to the time when the accident occurred; and

(b) the relevant person is found at or near the scene of the accident; and

(c) the police officer has reasonable cause to suspect that the person was in the vehicle at the time of the accident;

subsection (1) applies in relation to that person if more than 2 hours

have elapsed since the person was found.

(3) A police officer shall not require a person to undergo a screening test under section 8, 9 or 10 or to provide a sample of his or her breath for breath analysis under section 12--

(a) if it appears to the police officer that it may be, because of injury suffered by the person or otherwise, dangerous or not practicable for that person to undergo a screening test or to submit his or her breath for analysis; or

(b) if the person is in hospital and the doctor attending the person, after being informed by the police officer of his or her intention to make the requirement, certifies in writing his or her opinion that compliance with the requirement would be detrimental to the person's medical condition; or

(c) for a person who is at the place where the person usually lives--

(i) unless the person was, or the police officer has reasonable cause to suspect that the person was, the driver of a motor vehicle at the time when it was involved in an accident on a public street or in a public place; or

(ii) unless the police officer has reasonable cause to suspect that the person has committed an offence of culpable driving; or

(iii) unless the requirement is made immediately after a motor vehicle driven by the person has stopped at or near the place where the person usually lives and the police officer making the requirement has followed the motor vehicle while it was being driven on the public street.

15 Taking blood samples from persons in custody

(1) If--

(a) a police officer does not, because of section 14 (3) (a) or (b) require a person to undergo a screening test or to provide a sample of his or her breath for breath analysis; or

(b) because the breath analysis instrument available is not in working order or an approved breath analysis instrument is not available, it is not practicable to carry out the breath analysis;

the police officer may require the person to permit a sample of his or her blood to be taken by a doctor or a nurse for analysis and, if the person is not in hospital, may take the person into custody and take the person, or place the person in the custody of another police officer who shall take the person, as soon as practicable to a hospital for that purpose.

(2) A requirement shall not be made under subsection (1) after the end of whichever of the periods specified in section 14 (1) or (2) applies in relation to the person.

(3) A reference in this section to the taking of a blood sample is a reference to the taking of a blood sample under a requirement under subsection (1).

(4) A sample of a person's blood shall be taken as soon as practicable after the arrival of the person at hospital and shall not be taken more than 2 hours after the arrival of the person at hospital.

(5) A doctor or nurse shall not refuse to take a sample of a person's blood for analysis--

(a) if permitted to do so by the person under subsection (1); or

(b) if the doctor or nurse is of the opinion that the person is, because of his or her medical condition, incapable of giving or refusing permission to the taking of such a sample--if requested to do so by a police officer under this section.

Maximum penalty: 10 penalty units.

(6) A police officer shall not make a request under subsection (5) after the end of whichever of the periods specified in section 14 (1) or (2) applies in relation to the person.

(7) The doctor or nurse taking a sample of a person's blood under this section shall--

(a) take a sample of that person's blood in the presence of a police officer; and

(b) place approximately equal quantities of the sample blood into 2 containers and, on a label attached to each container, sign his or her name and write the name of the person from whom the sample was taken and the date and time when the sample was taken; and

(c) ensure that each container is sealed.

(8) The doctor or nurse shall--

(a) if he or she is of the opinion that the person was, at the time the blood sample was taken, incapable of giving or refusing his or her permission to take a sample of his or her blood--put both sealed containers in a one-way box; and

(b) in any other case--give 1 sealed container to the person and put the other sealed container in a one-way box.

(9) The police officer shall arrange for the container or containers to be collected from the one-way box by an approved analyst as soon as practicable.

15AA Taking blood samples from persons in hospital

(1) A doctor or a nurse who, in a hospital, attends to a person whom the doctor or nurse believes on reasonable grounds to be a driver involved in an accident, shall, within 2 hours of the person's arrival at the hospital, take from that person a sample of the person's blood for analysis.

Maximum penalty: 10 penalty units.

(2) A person taking a sample of blood under this section shall--

(a) place approximately equal quantities of the sample into 2 containers; and

(b) mark or label each container for future identification; and

(c) ensure that each container is sealed.

(3) A person who has taken a sample of blood under this section shall--

(a) if satisfied that the person from whom the sample has been taken is incapable of understanding the procedures that have been applied to him or her--put both sealed containers in a one-way box; or

(b) in any other case--give 1 sealed container to the person and put the other sealed container in a one-way box.

(4) A police officer shall arrange for the container or containers to be collected from the one-way box by an approved analyst as soon as practicable.

THE ORDER TO REVIEW

15. On 12 March 2003, Mr Refshauge SC (the Director of Public Prosecutions (DPP) for the ACT), sought an order nisi to review his Worship's decision.

16. This was granted upon the grounds that:

(a) the Learned Magistrate erred in holding that the [sic - "evidence of"] analysis of the blood sample was inadmissible;

(b) the Learned Magistrate erred in holding that a requirement by a police officer to the respondent to permit a sample of his blood to be taken by a doctor or a nurse under s 15 of the Road Transport (Alcohol and Drugs) Act 1977 was a prerequisite for the taking of a blood sample by Nurse Karen McKinnon [from the respondent on 27 March 2002] under section 15AA of that Act; and

(c) the decision of the Learned Magistrate to dismiss the information was in error, not in accordance with the law and should not have been made.

17. The order nisi was returnable on 21 April 2003 and came before me for hearing on 23 April 2003.

SUBMISSIONS OF COUNSEL

18. Counsel relied, primarily, on the written submissions placed before the Learned Magistrate supplemented by further written and oral argument.

19. The DPP submitted, relevantly for present purposes, that the primary purpose of the RT (A & D) Act is to detect and punish persons who drove motor vehicles after having consumed such a quantity of drugs or alcohol that they were or might, during the course of driving, become impaired so as to endanger themselves or the public.

20. It was accepted by the DPP that no police officer had made any request supportable by s 14 or s 15 of the RT (A & D) Act.

21. It was the DPP's submission that s 15AA of that Act addressed a situation left unaddressed by ss 14 and 15. Namely, that those provisions did not apply to persons taken to or presenting themselves to a hospital after an accident not having been, nor within two hours of such attendance at hospital having been, the subject of any requirement by a police officer to give or submit to the taking of a relevant sample. Section 15AA was designed, it was submitted, to "broaden" the available methods for detecting offenders.

22. The DPP pointed to the speech of the relevant Minister, Mr Kaine, on 19 June 1997, introducing the amendment inserting s 15AA into the RT (A & D) Act.

"The Government is further supporting the drive against this dangerous practice (drinking and driving) with the amendments now presented. From now on, alcohol-affected people who contribute to traffic accidents can no longer escape the law simply because they are injured and receiving medical attention."

23. He also pointed out that the prescription of a "relevant period" following driving and the failing of the relevant test also captures within its terms persons who might seek to cover up their guilt by consuming, or by claiming to have consumed, alcohol (or drugs) following the relevant event but before a sample is or is required to be taken.

24. The DPP's submission was, therefore, relatively straightforward. The possible post-accident consumption of alcohol, if any, was irrelevant. The "relevant period" commenced with the accident and only ended when the respondent, having attended hospital, had been there for two hours. On revealing he had been involved in a motor vehicle accident, the respondent triggered a duty imposed by s 15AA(1) upon the attending doctor or nurse to take a blood sample and deal with it according to s 15AA(4). It was taken within the relevant period. Thus, if the result of the testing of that sample demonstrated the presence of alcohol in the blood of the subject which exceeded .05%, the offence would, subject to any relevant matter of defence, if any, be made out. Section 15AA was not merely a provision in aid of ss 14 and 15 but a separate prescription of a "relevant period" for the purpose of the offence provided for in s 19.

25. Thus, on the DPP's contention, s 15AA enabled a relevant sample to be obtained even if no police officer had requested that such a sample be obtained.

26. The DPP concedes, however, that while open-ended as to time on its face, the duty imposed by s 15AA, triggered as it is by reference to an "accident", in which the patient had been involved could only refer to an accident sufficiently proximate to the obtaining of a sample to make it a reasonable hypothesis that the person may have consumed alcohol and been affected by it at the time of that accident. If the accident was so remote in time as to exclude such a possible connection, s 15AA(1) would not be engaged.

27. It would, he agreed, be absurd for the duty to be triggered by an accident occurring many hours or even days before the attendance at a hospital by "a driver involved" in that accident.

28. The DPP further conceded that it was not possible to prove that the provisions of s 15AA(4) had been complied with, though the extent of the non-compliance was not addressed by the agreed facts. He contended, however, that such non-compliance would not necessarily be fatal to the prosecution case.

29. Mr Whybrow, for the respondent, contended that, as no police officer had attended the accident scene so as to "find" the respondent and the respondent was not, relevantly, "taken to hospital", the "relevant period", referred to in s 19, had ceased two hours after the accident occurred. If s 15AA was not triggered, then only s 14(1)(c) applied, thus confining the "relevant period" to two hours after the accident. He pointed out, and the prosecution conceded, that whatever the prosecution may suspect to the contrary, it could not prove that the two hour period since the accident had not elapsed when the respondent was requested to submit to the taking of a blood sample. Indeed, the assumed facts were clearly to the contrary of any such assertion. The DPP did not contest the assertion put on behalf of the respondent that more than three hours had elapsed after the accident before the respondent was taken to the hospital.

30. Mr Whybrow further submitted that, as s 15AA is a penal provision, authorizing, indeed requiring, an invasive procedure, it should be read down in favour of the freedom of the subject from such bodily interference.

31. He conceded that the purpose of s 15AA was to avoid a situation where persons, who had driven a motor vehicle after excessive consumption of alcohol, were able to escape detection because they were under treatment and isolated from investigating police. But it was only intended, he contended, to apply to persons taken directly from an accident scene to a hospital for treatment who might escape police attention by reason of their isolation from police at the hospital as a result of their need for treatment. If the subject could not be approached directly by police to permit a sample being taken, then police could request an attending doctor or nurse to do so, without the need to address a request to the driver personally.

32. I note that, had the respondent refused to consent to a sample being taken by the doctor or nurse pursuant to s 15AA, then, short of brute force, the doctor or nurse in question could not take the sample. Indeed, they are then relieved of the duty so to do. The sanction against the uncooperative subject is that contained in s 23(1A). It states:

"A person from whom a blood sample is required to be taken under section 15AA(1) shall not behave in such a manner as to make it impossible or impractical for the sample to be taken. Maximum penalty: 30 penalty units."

33. Both parties have had to contend with the difficulty that s 15AA cannot mean what it says. Mr Whybrow contends that it must be read as applying to a person who, having been in an accident, is taken to hospital but, by reason of being treated by hospital staff or otherwise, cannot be accessed by police so that they can require the person to submit to relevant sampling and where the staff are not able to be accessed either so that they can be required to take a blood sample pursuant to s 15(5). That construction of the provision assumes that the belief on reasonable grounds that the subject had been involved in a motor vehicle accident must come from police. That accords with the objective stated by Mr Kaine, the then relevant Minister, in his speech introducing the amendments:

"The amendments will make it compulsory for medical staff at a hospital to take a blood sample from any person aged 15 years or more, if the police have reasonable cause to believe that they may have contributed to a traffic accident."

34. Thus, on Mr Whybrow's argument, absent any such police involvement, the only relevant period is two hours after the accident.

THE CONSTRUCTION OF s 15AA AND RELATED ISSUES

35. The Motor Traffic (Alcohol and Drugs) (Amendment) Act (No.2) 1997 (No. 53 of 1997), which introduced the amendments to which Minister Kaine referred (supra [21] and [32]), was notified to commence on 2 March 1998. The Principal Act and amending Acts were later repealed and their provisions re-enacted by the Road Transport Legislation Amendment Act 1999 Sch 1. It was further amended by Sch 3 thereof, having been re-named by Sch 4. Schedule 3, however, merely amended s 15AA(1) by substituting "doctor or a nurse" for "medical practitioner". The Act has now been republished (as authorized by the Legislation Act 2001 (ACT)) and includes the amendment referred to above. The effect of those amendments in 1999 was simply to rename the Motor Traffic (Alcohol & Drugs) Act 1977.

36. The issue of the intended scope of operation of s 15AA has not been legislatively revisited since it was first enacted.

37. The reference to a person aged 15 years or more in the Minister's speech ([32] supra) is a reference to the Dictionary (see s 3, RT (A & D) Act) which defines the phrase "driver involved in an accident" to mean:

"a driver of a motor vehicle that is involved in an accident who -

(a) appears to be at least 15 years old; and

(b) attends, or is admitted to, a hospital for the purpose of examination or treatment as a consequence of the accident."

38. I also note that s 139 of the Legislation Act 2001 (ACT) enjoins me to prefer "... [T]he interpretation that would best achieve the purpose of the Act ...."

39. The purposes of the RT (A & D) Act are tolerably clear, as has been noted. To repeat that objective: It is to detect and punish persons who have driven motor vehicles after consuming such a quantity of alcohol that they had been or might, but for an accident or apprehension, have been driving whilst their blood alcohol level equals or exceeds the prescribed concentration. That will be evidenced by a test sample taken within a "relevant period" after driving has ceased which then demonstrates that the blood alcohol level then equals or exceeds that prescribed concentration. If it does, the offence under s 19 is committed.

40. In my opinion it would not advance, or be consistent with, the purposes of the RT (A & D) Act to submit a person to a blood test where the result could have no relevance to the driving of a motor vehicle by that person within a reasonably proximate time frame. That is, generally, two hours after a specified event. That is consistent with the view of the Australian Law Reform Commission (ALRC) in recommending the original Motor Traffic (Alcohol & Drugs) Act 1977 that, given that time constraint, no separate offence relating to the consumption of alcohol after ceasing to drive and before a test sample had been obtained needed to be created.

41. The ALRC in its Report No. 4 "Alcohol, Drugs and Driving" par 280 referred to that issue in the following terms:

"Drinking and Driving. Framing the offence in terms of `failing the test' gives rise to another problem. Drivers may, deliberately or innocently, consume alcohol or another drug between the time of driving and the time the test is administered. Deliberate drinking in this interval to frustrate the relevance of a subsequent test must obviously not be tolerated. The problem is to find a formula or words which, whilst inhibiting such tactics, does not intrude oppressively into the activities of drivers who may innocently consume alcohol or some other drug during this interval. In part, the inhibition upon innocent consumption, is controlled by fixing a time limit for the conduct of the test. In part, it is controlled by the very preconditions that must be established before the test is conducted in the first place. In part, police instructions and proper practice can prevent consumption designed to or having the effect of frustrating the reliability of the test. In the case of accidents, it is clearly not unreasonable to require that no alcohol at all should be consumed for a period of two hours following the accident. If it is consumed in this period, the result should not advantage the accused in any way. The medicinal use of alcohol after accidents is dubious. It must not be permitted to defeat the tests necessary to determine criminal liability. Non-accident situations will usually involve the immediate intrusion of the police. Innocent opportunities for consumption will not arise. If they do, they should likewise not be permitted to defeat the test during a period of two hours after the time that the suspect is first found by a member of the police force."

42. The term "hospital" is not defined in the RT (A & D) Act but it was not disputed that Calvary Hospital Emergency Department was "a hospital".

43. Whether or not the nurse who apparently took the blood sample believed that the respondent had attended "for the purpose of examination or treatment as a consequence of the accident" (Dictionary - supra) is not expressly addressed by the agreed facts, but it does seem that the respondent concedes that his attendance at hospital was for such a purpose. It seems likely that the attending nurse did so conclude from information provided by the respondent or on his behalf.

44. It is also apparent that, in the case of a person apprehended whilst driving or who is at an accident scene attended by police or ambulance or both, the opportunity for that person to consume intoxicating liquor, after the relevant event and before a relevant sample is obtained, will be limited.

45. It is also true that the two hour limit contemplated by the ALRC may well be exceeded in the circumstances contemplated by s 14(2). However, that subsection can come into play only if s 14(1)(a)(ii) applies. Then the time is extended only for two hours after the person is "found". To be "found" the person must be at or near the accident scene when discovered and be reasonably suspected of having been "in" the vehicle at the time of the accident.

46. It may be assumed that, if such a person consumed liquor at the accident scene, it would, in all likelihood, be an attempt to conceal the pre-accident level, actual or potential, of intoxication. It may also be assumed that the "doubt" as to the time of the accident relates to whether more than two hours had elapsed since it occurred. It will, usually, be apparent that the accident was relatively recent. Thus, if the person, as this respondent suggests he did, returns home, reasonably assumes that no request for a sample can any longer be made, for instance, because s 14(1)(a)(ii) applies, it does not seem to be reasonable that, if the person then consumes alcohol, a request for a sample could thereafter properly be made in reliance on the pre-accident driving.

47. Subsection 14(3)(c)(i) does not exclude the possibility of a valid request for a sample being made at a person's home, provided s 14(1)(a)(ii) does not exclude it. Nevertheless, a person at home would be entitled to assume, after two hours from the time of an earlier accident, that no request for a sample could validly be made. That was the situation, on the assumed facts, at the time the respondent decided to attend the hospital.

48. So far as attendance at a hospital, following an accident in connection with injury sustained therein, is concerned, it seems a reasonable assumption that to trigger s 15AA(1) the nexus between the accident and that attendance at the hospital has not been broken. That is implicit in the definition of "driver involved in an accident".

49. In my view, mere connection by virtue of the injury, if any, sustained in the accident, could not have been intended to be enough, by itself, to trigger s 15AA(1). A person who in fact sustains injury which does not call for attention until many hours, or even days, after the accident occurred, would, in my view, have ceased to meet the definition of "driver involved in an accident" to which I have referred.

50. Under the currently relevant formulation of s 19 (RT (A & D) Act), the critical question does not now focus upon compliance with the Act and Regulations in demanding and then analyzing a sample of breath or blood. The question now central to the matter is whether there was proved to have been present, "during the relevant period", the prescribed concentration of alcohol.

51. That may be proved by an analysis carried out in accordance with the Act. If the analysis is carried out "in accordance with this Act", the result will have such force as the Act gives it.

52. "Any other analysis" referred to in s 19(2)(b) is probably wide enough to cover any other mode of proof that may have probative force. It would be wide enough to cover evidence of the result of a blood analysis carried out otherwise than in accordance with the Act, if it was otherwise in admissible form.

53. In each case, the provisions of the Evidence Act 1995 (Cth) (the Evidence Act) relating to the exclusion of evidence otherwise made admissible under that Act would be relevant.

54. As I pointed out in McLachlan v Mackey (1994) 124 ACTR 1; 119 FLR 332; 77 A Crim R 250, a result shown by an instrument (or other analysis) is not conclusive (see 124 ACTR 1,10). It is, however, evidence that meets the standard of prima facie proof if it is supported by s 41 of the RT (A & D) Act.

55. I further pointed out in that case that a demand for breath or blood in the face of a condition or circumstance that did not authorize or require such a demand, renders the demand invalid for the purposes of the Act.

DID THE CERTIFICATE PROVE A FACT RELEVANT TO GUILT?

56. The RT (A & D) Act provides for proof of the presence of alcohol in blood, and of its extent, by means of a certificate, pursuant to s 41.

57. There was tendered before Magistrate Somes a certificate, purportedly made under s 41(1)(d) [sic], from an "Approved Analyst". This certificate is more properly supported by s 41(1)(h), however nothing rests on the point. The certificate was brief. It stated:

"(i) I am an approved analyst; and

(ii) I analysed a sample from a sealed container to which was affixed a label purporting to be signed by, Karen McKinnon, a medical practitioner/registered nurse named in the certificate and bearing the name of Peter Barter, a person specified in the certificate as the person from whom the sample was taken, on 27/03/2002 at 20:15 hours;

(iii) The analysis to which the sample was subjected;

Blood ethyl alcohol determination

(vi) The result of the analysis:

Ethyl alcohol was detected at a concentration of not less than 0.202 grams of ethyl alcohol per 100 millilitres of blood."

58. The certificate sought to be tendered, if authorized by the RT (A & D) Act, established, at least to the prima facie level, the matters stated in it.

59. It does not establish the matters referred to in s 41(1)(f) of that Act, as those matters must be attested to by the relevant doctor or nurse. The certificate in question was actually provided by the ACT Government Analytical Laboratory analyst. Nor is there provision for certificate evidence of due collection of the sample taken and of its transmission to the approved analyst.

60. Such further proof might have been tendered had the matter proceeded beyond the learned Magistrate's preliminary ruling.

61. Section 41 is, of course, subject to the provisions of the Evidence Act. Section 9(3)(d) thereof preserves the power of the Territory legislature to enable evidentiary effect to be given to a certificate issued under an enactment.

62. That is the preliminary question. Does the s 41 certificate prove a relevant fact?

63. The extent to which a certifying doctor or nurse would give evidence in conformity with s 15AA(2) and (3) is not known. The matters referred to in s 15AA(1) cannot be proved by a certificate. It seems to have been conceded that s 15AA(4) was not complied with, in that no collection by a police officer took place "as soon as practicable".

64. No sample can be taken for the purposes of the R T (A & D) Act if the relevant period had expired. Of course, the Act does not preclude proof of the presence of the prescribed concentration of alcohol during the relevant period by other means. However, the unauthorized taking of a sample under colour of compulsion, if in fact outside the relevant period, would be unlikely to survive a challenge based on s 138 of the Evidence Act. The critical question is when the "relevant period" expired.

65. In my view, that period does not end merely because two hours have elapsed since the respondent ceased to be a driver of a motor vehicle involved in an accident. For example, the intervention of a police officer coming to an accident scene and "finding" a person at or near the accident scene and forming the necessary suspicion under s 14(2)(c), will extend that time until two hours after the "finding". It is implicit in s 14(2)(a) that the "doubt" relates to whether the person was, within a period of two hours previously, in the vehicle at the time of the relevant motor vehicle accident. The period of two hours starts at the time of that "finding". Within that time either a breath analysis will be completed or, in accordance with s 15, the person will be "taken to hospital for blood analysis".

66. If a person is "taken to hospital" from the scene of an accident or of apprehension, the time within which taking of the relevant sample may be accomplished is further extended by the time taken, usually brief, to take that person to a hospital and then for a period of two hours thereafter. The person will, usually, be continuously under police or medical supervision for that period. The only exception to that expectation is the person "found" at or near the accident scene. They will not necessarily have been under such supervision between the time of the accident and the "finding". However, because they will have been at or near the accident scene since it occurred, the extension of time is not likely to break the nexus between the driving and the consumption of alcohol (or a drug) so as to be consistent with the primary purpose of the Act.

67. In my view, it was never contemplated that, if, following an accident, a person went home and then, after more than two hours elapsed, voluntarily sought treatment, that person would become liable to be compulsorily tested because he or she chose to attend at a hospital rather than the surgery of a general practitioner.

68. Just as there must be a causal connection between the attendance at hospital and the injuries sustained in the relevant accident, so too, in my view, there must be a continuing connection between the accident and the attendance at hospital. That will be so where a person arrives at hospital by reason of being taken there by police or ambulance from at or near the scene of the accident.

69. It cannot have been intended that if, for example, this respondent's injuries had only troubled him enough to attend hospital several days after the relevant accident, that a failure to have abstained from alcohol on the day of attendance could lead to a liability not only to be tested, but also to be found guilty of an offence if the prescribed concentration was then exceeded.

70. It seems to me that s 15AA contemplates a situation where a person has been taken to hospital in consequence of an accident, without a break in continuity between that accident and the attendance at hospital, but before being made the subject of a police request for a breath or blood test.

71. The purpose of the section, as the Minister noted, was to impose a duty on the attending doctor or nurse to take a blood sample for analysis in those circumstances, even if he or she has not been requested to do so by police.

72. It follows that the duty to be performed by the relevant nurse or doctor pursuant to s 15AA does not depend on a police officer having required them to do so, nor upon the driver having been required by a police officer to submit to the taking of a blood sample. It is a separate and distinct duty triggered only by the relevant belief being formed by the attending doctor or nurse.

73. To that extent, I respectfully differ from the learned Magistrate.

74. However, I arrive at the same conclusion. On the facts asserted by the respondent, and accepted, at least to the level of a reasonable hypothesis, by the appellant, the chain of continuity between the accident and the attendance at hospital had been broken. In that situation, the nurse taking the sample had no duty arising from s 15AA(1) to take the sample she did. The relevant nexus between the accident and the attendance at hospital had been broken. The "relevant period" had ended two hours after the subject accident (see s 14(1)(a)(ii) and s 14(3)(c)(i)). The result of the test even if admitted into evidence could not prove that the prescribed concentration was present in the respondent's blood during that "relevant period".

75. It is unnecessary to comment further on the claimed post-accident consumption of alcohol. It is fair comment that innocent consumption of alcohol within two hours of apprehension by police or motor vehicle accident will be rare and, in any event, it may be assumed by drivers that, within that time, a sample may well be demanded of them. It may be better to ban alcohol consumption after an accident by an express provision, for example, by providing it shall be an offence to consume alcohol within two hours following a specified event. It may be better to rely on a "wilful alteration" offence and/or an attempt to pervert the course of justice (see, for example, R v Britton [1973] RTR 502 (UKCA)). There is an apparent injustice in declaring a person who has innocently consumed alcohol after an accident to be guilty of an offence on the basis of an assumption, known or suspected to be false, that the consumption took place before it. That is as much a legislative fiction as that which the original 1977 legislation was designed to abolish.

76. An objection was also taken, framed in terms that, if it appeared that the evidence obtained lacked any sensible connection with pre-accident consumption of liquor, it may, if the post-accident consumption was innocent, be unfair to admit the evidence of the post-accident and post-consumption test result. That may be an avenue for relief in this area but, again, it is unnecessary further to pursue it.

77. It is, in my view, also unnecessary to consider the effect of the procedural failure to collect the sample in the manner required by s 15AA. That failure seems to relate only to a failure to collect the sample "as soon as practicable" (s 15AA(4)).

78. It may be that it would be demonstrated that such a failure could not have affected the result of the analysis adversely to the respondent (see s 42, R T (A & D) Act).

CONCLUSION

79. The prosecution concedes that s 15AA must be read down to apply only when a person arrives at a hospital "a reasonable time" after he or she has ceased to be the driver of a motor vehicle. The dictionary definition requires a connection between injuries or possible injuries requiring hospital attention and the accident.

80. I agree with the appellant's concession to that effect, but add the further qualification (referred to above) as to continuity of the journey from the accident scene to the hospital, which, more effectively in my view, removes the absurdity conceded by the appellant to be otherwise present. Continuity is clearly broken when, as here, the respondent having been relieved of all liability to be submitted to sampling, thereafter attends a hospital rather than another place of treatment.

81. That implicit qualification obviates the need to consider whether, and in what circumstances, ss 135-138 of the Evidence Act might be invoked to exclude the evidence of the result of the test as a matter of discretion.

82. The appeal is dismissed. I will hear the parties as to costs.

I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 21 July 2003

Counsel for the Appellant: Mr R Refshauge SC

Solicitor for the Appellant: ACT Director of Public Prosecutions

Counsel for the Respondent: Mr S Whybrow

Solicitor for the Respondent: Messrs Colquhoun Murphy

Date of hearing: 23 April 2003

Date of judgment: 21 July 2003