Thompson v Byrne [1999] HCA 16; 196 CLR 141; 161 ALR 632; 73 ALJR 642 (14 April 1999)

Last Updated: 14 April 1999

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GAUDRON, McHUGH, GUMMOW, KIRBY AND CALLINAN JJ

IAN MACLEOD THOMPSON APPELLANT

AND

HIS HONOUR JUDGE BYRNE OF THE

COUNTY COURT MELBOURNE & ORS RESPONDENTS

Thompson v His Honour Judge Byrne & Ors [1999] HCA 16

14 April 1999

M106/1997

ORDER

Grant of special leave to appeal revoked.

On appeal from the Supreme Court of Victoria

Representation:

B J Salmon QC with D H Colman for the appellant (instructed by

Hoyle Da Silva)

No appearance for the first respondent

W H Morgan-Payler QC with D M Salek for the second and third respondents (instructed by Director of Public Prosecutions (Victoria))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Thompson v His Honour Judge Byrne & Ors

Criminal law - Motor traffic offence - Prescribed concentration of alcohol - Breath samples furnished within 3 hours after driving exceeded prescribed limit - Later blood sample showing concentration of alcohol within prescribed limit - Whether offence committed - Proper interpretation of s 49(1)(f) of the Road Safety Act 1986 (Vic).

Precedent - Stare decisis - High Court - Whether Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214 should be reconsidered.

Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214.

Road Safety Act 1986 (Vic), s 49(1)(f).

1. GLEESON CJ, GUMMOW, KIRBY AND CALLINAN JJ. This appeal from the Court of Appeal of Victoria[1] secured special leave provisionally to permit an application for reconsideration of the decision of this Court in Mills v Meeking[2]. If the authority established by that decision stands, the appeal must fail.

2. The parties presented arguments on the preliminary question of whether, in accordance with established principles, the Court should reconsider its authority in such a recent decision. For convenience, the matter having gone so far and the merits of the argument being relevant to the question of reconsideration, the Court permitted the criticism of Mills (and its defence) to be fully debated. In our opinion, the decision in Mills was correct. It should be affirmed. No question therefore arises as to overruling it.

   The facts

3. Mr Ian Thompson (the appellant) was stopped by police at Kalorama in the State of Victoria early in the morning of 18 July 1994. He was not stopped for a suspected traffic offence. There had been no accident involving his motor vehicle. In accordance with the Road Safety Act 1986 (Vic)[3] ("the Act") a preliminary breath test was undertaken. That test led the police officer to form the opinion that the appellant's blood contained alcohol. The results of this test were not recorded, although the appellant led expert evidence at trial in an effort to prove that his likely blood alcohol reading at that time would probably have been 0.043 grams per 100 millilitres of blood. Proof of this fact would have been a defence to a charge under s 49(1)(b) of the Act, a matter to which we will return later. In accordance with s 55(1), the appellant was required to take a breathalyser test, administered about one hour after the preliminary test. This showed a blood alcohol concentration of 0.105 grams per 100 millilitres of blood. A second test was performed about 20 minutes later in accordance with the then provisions of the Act 1986 [4]. The result was unchanged. Exercising his rights under the Act[5], the appellant requested that arrangements be made for the taking of a sample of his blood for analysis by a designated medical practitioner. This was done. The test was taken exactly three hours after the appellant last drove his motor vehicle. According to the analysis of the blood sample, a blood alcohol concentration of 0.043 was found.

4. The appellant was charged with two offences against s 49(1) of the Act, namely those created by pars (b) and (f) of that subsection. The Court was informed that the practice of prosecutors in Victoria, where persons are required to submit to breath analysis and a reading of over 0.05 results, is that such persons are charged under both pars (b) and (f). Customarily the prosecution under par (f) proceeds first. If a conviction of that offence is recorded, the charge under par (b) is either withdrawn or dismissed. In accordance with that practice, the prosecution first proceeded against the appellant on the charge based on par (f). A magistrate at Ringwood convicted the appellant of that offence. According to the certified extract of the Magistrates' Court register, the charge based on par (b) was then withdrawn.

5. The appellant appealed against his conviction to the County Court of Victoria[6]. His appeal was heard by Judge Byrne (the first respondent). Judge Byrne has submitted to the orders of this Court. The hearing before him proceeded as a hearing de novo but one limited to the offence charged pursuant to par (f). The appellant called evidence to suggest, by a comparison of the results of the breath and blood tests and normal rates of elimination of alcohol from the blood, that the equipment which had earlier recorded the results of breath analysis was not in working order or properly operating. A defence to a charge under par (f) is available if that is proved[7]. Judge Byrne rejected that defence on his evaluation of the evidence. His conclusion in that regard is not now contested.

6. However, in addition to that defence, the appellant sought before Judge Byrne to rely on evidence to show that, at the time of driving three hours before the blood sample was taken for analysis, the "prescribed concentration of alcohol" was not present in his blood[8]. He relied on the report of the analysis of his blood (together with some evidence given by himself). He contended that, if the Act were properly construed, he was not guilty of the offence against par (f). Judge Byrne rejected this submission. He commented that the appellant had presented a "plausible case" that at the time of driving "he may not have been over .05". But as that fact was irrelevant to the only charge before the Court and as it afforded no defence to that charge, the appellant's conviction of the offence against par (f) of s 49(1) was confirmed.

7. The appellant then sought relief in the nature of certiorari from the Supreme Court of Victoria. His application was heard by Ashley J who rejected it[9]. Nothing daunted, the appellant further appealed to the Court of Appeal against the construction of par (f) on which his conviction rested. The Court of Appeal dismissed the appeal[10]. That Court rejected grounds of alleged procedural unfairness which have not concerned this Court[11]. Relevantly, it dismissed the submissions of the appellant concerning the meaning and operation of the Act in the case of a charge based on par (f). The Court of Appeal held that it was bound to apply the construction of the Act accepted by this Court in Mills. Such construction was incompatible with the submissions of the appellant[12].

8. Following the dismissal of the appeal to the Court of Appeal, the appellant obtained the provisional grant of special leave already referred to. The contesting respondents[13] raised no procedural contest concerning the availability of an order in the nature of certiorari if the appellant could make good his arguments. In the circumstances, it is appropriate to accept that concession[14].

   The Act

9. The provisions of the Act essential to the disposition of the appeal include the provisions of s 49(1), which, at the time applicable to the charge against the appellant, relevantly read:

   "A person is guilty of an offence if he or she -

   (a) drives a motor vehicle or is in charge of a motor vehicle while under the influence of intoxicating liquor or of any drug to such an extent as to be incapable of having proper control of the motor vehicle; or

   (b) drives a motor vehicle or is in charge of a motor vehicle while more than the prescribed concentration of alcohol is present in his or her blood; or

   ...

   (f) within 3 hours after driving or being in charge of a motor vehicle furnishes a sample of breath for analysis by a breath analysing instrument under section 55(1) and -

   (i) the result of the analysis as recorded or shown by the breath analysing instrument indicates that more than the prescribed concentration of alcohol is present in his or her blood; and

   (ii) the concentration of alcohol indicated by the analysis to be present in his or her blood was not due solely to the consumption of alcohol after driving or being in charge of the motor vehicle".

10. The words in sub-par (ii) were not contained in the Act at the time of the offence considered in Mills. But they had been added[15] by the time Mills was decided[16], presumably as an attempt by Parliament to meet some of the suggested criticisms of the offence stated in par (f), as originally expressed. Most of the other provisions of Part 5 of the Act, relevant to the operation of the offence expressed in par (f), remain as they were when Mills was before this Court. They include s 47 which states the purposes of Part 5 of the Act, s 48(1) containing certain interpretive provisions and s 53, apart from the addition of sub-section (1)(d)[17], dealing with the requirements for preliminary breath tests.

11. The appellant submitted that the Court had been led into error in Mills by a failure to read par (f) in its statutory context and by a failure to appreciate the significance, for the construction preferred by the majority, of the terms of ss 55(10) and 57(2) of the Act. The first of these submissions amounts to a repetition of the arguments rejected in Mills. The second, although adding something new, is unpersuasive.

    The reasoning in Mills

12. In order to meet the attacks on Mills, it is necessary to remember how the Court came to its conclusion in that case. This can be understood by comparing the arguments advanced by the appellant which persuaded the minority (which arguments, in substance, were repeated by the appellant in this appeal) and the way in which those arguments were dealt with by the majority[18].

13. The arguments which appealed to the minority in Mills can be simply stated. The construction of the offence in par (f) of s 49(1) of the Act requires consideration not only of the words of the paragraph, but of its context and the purpose of Parliament in enacting the offence which was not previously part of the applicable law[19]. For the minority, it was important to preserve, so far as possible, the "symmetry" of the provisions providing offences against the Act[20] and to avoid a construction of those provisions which would be "drastic"[21], "draconian"[22] or "obviously very harsh"[23]. If another construction were available which would avoid such results, not ordinarily to be imputed to the legislative "intention"[24], it should be preferred.

14. Each judge in the minority in Mills suggested that the construction favoured by the majority led to results which could not have been intended by Parliament. Thus, Dawson J instanced the case of post-driving consumption of alcohol, where a person would be denied a defence to a charge under par (f) that at all times while driving he was under the prescribed limit[25]. McHugh J considered that it was unlikely that Parliament would have intended to repose in the police officer, apprehending the person charged, a decision which would effectively determine the availability or unavailability of proof to the contrary of the presumption established by the Act[26]. It should not be inferred that such a person would enjoy such a power when deciding whether to lay a charge under par (b) (when contrary proof was generally available) or only under par (f) (when it was not)[27]. If par (f) were given its literal meaning, this would afford an "unfettered discretion"[28] to the apprehending officer which McHugh J considered would be inconsistent with the "constitutional tradition of the State of Victoria"[29].

15. To these arguments were added various references to the statements made in Parliament at the time when the Bill which became the Act was being debated[30] and textual references thought to be inconsistent with the construction favoured by the majority[31]. The notion of attaching criminal liability to the consequences of breath analysis within three hours of driving or being in charge of a motor vehicle (as distinct from accepting such analysis as a means of proof of the presence of a prescribed concentration of alcohol at the time of driving) was seen as inconsistent with the stated purposes of the Part of the Act in which par (f) of s 49(1), along with the other offences, was found. Those purposes were all treated as related to a driver's having a prescribed concentration of blood alcohol at the time of driving or being in charge of a motor vehicle. Accordingly, he or she should be able to prove the contrary if that were, in fact, the case[32].

16. It was also suggested that the Court should adopt a "purposive" construction of the legislation[33]. Although McHugh J acknowledged that there were some difficulties in identifying precisely the words which Parliament would have used to overcome the omission in giving effect to its purpose had the defect been drawn to its notice[34], like Dawson J he concluded that the words to be added could be stated adequately and "with precision"[35]. To achieve the legislative purpose the words "when it was involved in an accident" should be added to the preconditions of the offence provided in par (f) of s 49(1)[36]. That would reflect the "verbal similarity" between the provisions of par (f) and the provisions of s 53(1)(c) where the words to be added appear[37]. Adopting this approach would confine the operation of par (f) so that it dealt with the problem of a driver "who is involved in an accident, imbibes alcohol after the accident, thus making it difficult or even impossible to prove his blood alcohol concentration at the time of the accident."[38] It would avoid the drastic results of the alternative construction, considered unpalatable, whilst still leaving par (f) with work to do.

17. Although many problems of statutory construction which reach this Court involve matters upon which minds may differ and although the minority in Mills make a number of telling points concerning the serious consequences of the literal construction of par (f) of s 49(1) of the Act, the answers given by the majority are convincing, quite apart from the authority of the Court which they establish.

18. First, as a simple matter of construction, it is extremely difficult in the face of the language used by Parliament to confine the operation of par (f) to a case in which the motor vehicle in question "was involved in an accident". The precondition to the application of par (f) is nothing more than that, within three hours after driving or being in charge of a motor vehicle, the person charged has furnished a sample for breath analysis by a breath analysing instrument under s 55(1). That section, as was pointed out[39], refers, in turn, to the conduct of a "preliminary breath test" under s 53 of the Act. The last-mentioned section provides that a member of the police force may at any time require a person to undergo a preliminary breath test by a prescribed device if one of four stated circumstances exists. Two of the four[40] expressly contemplate that the motor vehicle "was involved in an accident". But two of them[41] have no such requirement. Relevant to the present case, it is sufficient that the person is found "driving a motor vehicle or in charge of a motor vehicle"[42]. Had Parliament's purpose been to limit the undertaking of "preliminary breath tests" to the aftermaths of accidents, it would have said so. If the legislature had done so, it would have severely circumscribed the availability of the police power to require persons to undergo preliminary breath tests.

19. Having omitted to confine the exercise of the power to post-accident situations, it is impermissible for a court to read such a condition into the requirements of the offence provided in par (f). The language of the Act is clear and unambiguous. The duty of a court is to give effect to the purpose of Parliament as expressed in that language[43]. That obligation is not altered because the Act is penal in character[44].

20. Secondly, even accepting that the offence provided by par (f) is a far-reaching one, it is clearly enacted, as the stated purposes of the Part of the Act in which it appears make plain, to deal with a major social problem. The provision of the offence in such terms is the means by which Parliament has sought to achieve those generally stated purposes, viz to reduce the number of motor vehicle collisions to which alcohol or other drugs are causally related, to reduce the number of drivers whose driving is impaired by such causes and to provide a simple and effective means of establishing the presence in the blood of a driver of more than the legal limit of alcohol[45].

21. As demonstrated in Mills, the Ministerial remarks made during the passage of the Bill which became the Act cannot be determinative. They do not contradict the construction which was preferred by the majority. The adoption of that construction certainly gives effect to Parliament's purpose to overcome technical defences which had been raised before the offence provided by par (f) was enacted[46]. Even if, contrary to this view, there were a disharmony between what the Minister said or what the members of Parliament subjectively believed to be the intended operation of par (f) and what the Act provided, the Court may not rewrite the Act[47]. This is what, in effect, the appellant's argument invited the Court to do.

22. Thirdly, the complaints about the drastic consequences of the construction favoured by the majority in Mills should not be overstated. As the majority there pointed out, it was a precondition to a conviction of the offence provided by par (f) of s 49(1) that a person, whose vehicle was not involved in an accident, has been found by a police officer to be driving or in charge of a vehicle or stopped at a preliminary breath testing station. Such preconditions provide some safeguards "against a person being intercepted after drinking with dinner at home and being required to undergo a breath test within three hours of having driven home without incident from work."[48] Some of the concerns which appear to have troubled Dawson J, in particular, seem, with respect, to be remote. As a matter of practicality, if the preliminary breath test were required in the two instances specified in s 53(1) which do not involve an accident, the person charged is likely (as in the facts of Mills and as in this case) to remain for several hours in the custody of police officers after "failing the test". The spectre of innocent post-prandial consumption of alcohol being turned into the foundation of an offence having no real connection with driving, or being in charge of a motor vehicle, is thus illusory.

23. Fourthly, as to the concern that the construction adopted by the majority afforded a discretion to the apprehending police officer, in effect, to deprive the person charged of the right to disprove the presumed presence, at the time of the alleged offence under par (b) of s 49(1), of the equivalent concentration of alcohol and that established within three hours thereafter[49], there are several answers.

24. Parliament has in terms confined the provision for contrary proof to the case of "an alleged offence against paragraph (a) or (b) of section 49(1)"[50]. Had it been Parliament's purpose to extend the availability of such proof to an alleged offence against par (f), it would be expected that it would have said so expressly. It did not. In any case, the offence as defined in par (f) does not select as its criterion the coincidence of intoxicating liquor or the concentration of alcohol at the time the person charged "drives a motor vehicle or is in charge of a motor vehicle"[51]. Instead, it attaches its consequences to the result of the recording of breath analysis, so long as such analysis was performed in accordance with the Act on a sample provided by the person within three hours after driving or being in charge of the motor vehicle[52]. The offence enacted by par (f) is quite different from that enacted by the earlier paragraphs of the sub-section. Whilst it is true that the consequence is to afford to the apprehending officer and the prosecuting authorities discretions the exercise of which has significance for the charge which the accused must meet, that is by no means unique. Ordinarily, at least in cases which do not give rise to a collateral attack on the lawfulness of the exercise of the discretion[53] or to a complaint that its exercise involves an abuse of process affording a ground for relief against prosecution on that charge[54], courts will not interfere in such decisions[55]. In Mills, the majority expressly reserved the position which would arise if it were shown that the prosecution of the person upon one offence rather than another amounted to an abuse of process[56]. But in this, as in many other cases where alternative charges are available arising out of the same facts, it is for the police and prosecuting authorities to determine which charges may be brought. If that determination has consequences for the ingredients of the offence which must be proved and the defences available to the person charged, that affords no reason for assuming that Parliament must have meant something different from what it has stated in clear terms.

25. Fifthly, the suggestion that Parliament's purpose can be achieved, and the apparently "conflicting objectives of the Act"[57] reconciled, by reading the words "when it was involved in a motor accident" after the words "motor vehicle" in s 49(1)(f) is unpersuasive. Whilst that precondition is relevant to the scheme of the Act, it does not appear at all in the offences stated in s 49(1). Relevantly, it appears in s 53(1), where it is only expressly mentioned for one of the offences[58], or incorporated by reference for some of the other offences[59]. Far from curing any suggested "lack of symmetry"[60], the addition of the words proposed to par (f) would create serious dissymmetry. The offence expressed in par (f), like that in par (g), is quite different from the offences provided by pars (a) to (e) of s 49(1). The former attach criminal liability to the analysis respectively of breath and blood samples taken within a specified time of driving or being in charge of a motor vehicle. They do not, as such, attach that liability to the driving or charge of the motor vehicle itself. To add the words suggested would not be to fill an obvious gap in the statute. It would be to change the structure of the Act and to defeat the apparent purpose of the several offences in s 49(1), including that in par (f).

    The suggested oversights are unpersuasive

26. The appellant, having exhausted the efforts to plough the same field as had been done in Mills, then submitted that two provisions of the Act, overlooked (or given insufficient attention) by the Court in its earlier decision, demonstrated the correctness of his argument. The provisions were ss 55(10) and 57(2). It was submitted that these sub-sections made it clear that Parliament contemplated, including for the offence provided by par (f) of s 49(1), that the blood tests provided for in the identified sub-sections were also to be available to defend a charge brought under par (f). Hence, the appellant submitted, the literal interpretation which might otherwise be adopted of par (f) must be rejected. Another construction had to be found which would permit a person in the appellant's situation to prove the contrary of the presumption that the concentration of alcohol indicated by breath analysis accurately stated the concentration of alcohol present at the time of driving.

27. The first of the provisions on which the appellant relied read, at the applicable time, as follows:

    "55(10) A person who is required under this section to furnish a sample of breath for analysis may request the person making the requirement to arrange for the taking in the presence of a member of the police force of a sample of that person's blood for analysis at that person's own expense by a registered medical practitioner nominated by that person or by the member of the police force at the request of that person."

    Section 55(4)(a), as it then stood, imposed on the person operating the breath analysing equipment, as soon as practicable after a sample of a person's breath was analysed, to sign and give to the person concerned a certificate in the prescribed form "of the concentration of alcohol indicated by the analysis to be present in his or her blood."[61] That provision was complied with in the case of the appellant. It led to his taking advantage of the facility afforded by s 55(10).

28. The second provision to which the appellant referred was s 57(2). It provided, relevantly:

    "If the question whether any person was or was not at any time under the influence of intoxicating liquor or any other drug or if the question as to the presence of alcohol or any other drug or the concentration of alcohol in the blood of any person at any time or if a finding on the analysis of a blood sample is relevant -

    ...

    (c) on a hearing for an offence against section 49(1) of this Act ...

    ...

    then, without affecting the admissibility of any evidence which might be given apart from the provisions of this section, evidence may be given of the taking, within 3 hours after that person drove or was in charge of a motor vehicle, of a sample of blood from that person by a registered medical practitioner, of the analysis of that sample of blood by a properly qualified analyst within twelve months after it was taken, of the presence of alcohol or any other drug and, if alcohol is present, of the concentration of alcohol expressed in grams per 100 millilitres of blood found by that analyst to be present in that sample of blood at the time of analysis."

29. Provision was also made in s 57 for a certificate in the prescribed form to be admissible in any of the proceedings referred to in s 57(2) and to be admitted as proof of the facts and matters contained in it in the absence of evidence to the contrary[62]. On the basis of these provisions, not considered in Mills, the appellant submitted that Parliament had indicated a purpose of permitting, and facilitating, proof of the concentration of alcohol in his blood for any offence against s 49(1) of the Act. Hence, contrary to the holding in Mills, such proof was available for consideration in the case of the offence provided by par (f) of that sub-section and thus to him.

30. This submission by no means requires reconsideration of the Court's authority in Mills. Whilst it is true that par (c) of s 57(2) refers to offences against s 49(1) in their generality, that reference must be read in the context of the work which s 57(2) is expressed to do. In terms, the sub-section applies only where specified questions are "relevant". They are only relevant on the hearing of an offence against s 49(1)(a) and (b). The question of whether or not at any time a person was "under the influence of intoxicating liquor or any other drug" is obviously relevant to the offence provided in s 49(1)(a). But it is not relevant to the offence provided by par (f). Nor, having regard to the terms of par (f), is the question as to the presence of alcohol or any other drug or the concentration of alcohol in the blood of any person as such, relevant to the offence provided by par (f), in the terms in which that offence is expressed. The desideratum of the last-mentioned offence is not the existence of the prescribed concentration of alcohol in the blood. Rather, it is that of the "result of the analysis as recorded or shown by the breath analysing instrument". Accordingly, whilst apparently applicable to all of the offences provided by s 49(1) of the Act, the actual issues to which s 57(2) is relevant are confined to the offences provided by pars (a) and (b). This is because those offences alone address the elements stated. The offence in par (f) is expressed in different terms.

31. This conclusion, which is based on the plain language of ss 55(10) and 57(2), is confirmed when reference is made to other provisions in the Act. Thus, by s 49(6) it is provided, relevantly, that in proceedings for an offence under par (f), evidence "as to the effect of the consumption of alcohol on the defendant is admissible for the purpose of rebutting the presumption created by section 48(1A) but is otherwise inadmissible." The presumption referred to has no application to this case. That does not leave s 55(10) without work to do in the case of a charge brought under par (f) of s 49(1). The facility of blood analysis is available in such a case, as indeed it was used in this case, to tender an issue relevant to the defence provided by s 49(4). That defence is confined to the question whether the breath analysing instrument used "was not on that occasion in proper working order or properly operated." Clearly, an analysis of blood which is seriously inconsistent with the analysis of breath conducted by the breath analysing instrument could, in a given case, cast doubt on the working order or proper operation of the breath analysing instrument. However, the appellant failed on that issue. It is not now before this Court.

32. There may be some discordances between the presumption apparent in s 48(1)(a) of the Act and the true operation of par (f) of s 49(1). This was remarked upon by McHugh J in Mills[63]. However, they are not sufficient to cast doubt on the overall scheme of the legislation and the meaning of the applicable offence as preferred by the majority in that case.

    Two additional considerations

33. There are two further considerations which came to light during argument of this appeal and which reinforce the conclusion which the majority preferred in Mills.

34. The first relates to the solution which the minority favoured, involving the insertion of the phrase "when it was involved in an accident" into the definition of the offence provided by par (f) of s 49(1). The inclusion of those words would not alter the nature of the offence provided by par (f), expressed as it would still be in terms of the result of breath analysis as recorded or shown by a breath analysing instrument. The adoption of the additional phrase would not have the consequence of altering the character of that offence. It would simply add a precondition: that the motor vehicle was "involved in an accident". That would leave most of the suggested defects of the offence created by par (f) applicable in the case of motorists submitted to breath analysis after an accident. The appellant would escape; but his criticisms of the section would remain unrepaired.

35. Secondly, counsel for the appellant very properly drew to the notice of the Court the report of the Law Reform Commission ("the Commission"), Alcohol, Drugs and Driving[64]. Although concerned with the laws of the Australian Capital Territory, and not those of Victoria, that report provides a useful reminder of the background against which, in the various jurisdictions of Australia, in England and elsewhere, legislation such as the Act was enacted to supplement the armoury of the police and prosecuting authorities with novel offences designed to overcome demonstrated deficiencies of earlier legislative provisions[65].

36. When that report is read to afford knowledge of the general legal context in which offences such as that in par (f) of s 49(1) were enacted, the purpose of the provision becomes clearer. As the Commission points out, the proliferation of motor vehicles after the early years of this century presented a serious social problem caused by driving which was affected by the consumption of alcohol and other drugs. This led, initially, to the adaptation of established criminal offences and the invention of new ones such as "driving under the influence". Section 49(1)(a) of the Act is an offence of the last-mentioned kind. However, that offence gave rise to difficulties of proof and contested evidence concerning the appearance of the person charged or of that person's driving or conduct[66]. This in turn gave rise to a "rash of breath analysis legislation" which, it was hoped, would "put at rest disputes of the past."[67] However, it was quickly found that the expression of the offence in terms of driving with a specified quantity of blood alcohol concentration itself led to further disputation. The offence so described had the inherent defect of requiring an equation between the presumed blood alcohol concentration at the time of driving and the finding established by the relevant test, necessarily taken some time later. The Commission described the "back-calculation" imported by the new offence (of which par (b) is an example) as prone to import either injustice or uncertainty[68]:

    "If the solution adopted is that the finding at the time of the test is deemed to be the level at the time of driving, ie that the two levels are the same, the legislation will be enacting on its face a 'statutory lie'. Every scientist qualified in this field will tell a court ... that it is almost impossible that the two levels should be the same. But if they are not the same, and if they are known not to be the same, why should a statute require a presumption, known to be false, that they are the same?"

37. It was in this context that the Commission proposed "an offence expressed in terms of 'failing the test'"[69]. It pointed out that this was not "an entirely novel approach"[70], having been earlier adopted in England[71]. That offence had been reviewed by a committee established to re-examine the operation of the English law[72]. No alteration had been proposed of that aspect of the law. To the objection that such a reworded offence (akin to that in par (f) of s 49(1) of the Act) misdirected the law from the antisocial behaviour of driving (or being in charge of) a motor vehicle when affected by alcohol to the neutral event of taking a breath test, the Commission responded that such criticism was "simplistic" and "misconceives the proposed offence"[73]:

    "If 'driving' the vehicle is a statutory precondition to imposing a test and if a relevant time connection exists between such driving and the conduct of a test, sufficient nexus will exist between the antisocial conduct and the test, to warrant punishment being attached to the failure of the test. The temporal and causal link between the two will exist and will be manifest."

38. So it is in the case of the offence created by par (f) of s 49(1) of the Act. The actual offence, as expressed, is not the driving or being in charge of a motor vehicle with the prescribed concentration of alcohol. It is, as the Commission described in its proposal, "failing the test". Legislation based on the Commission's report was enacted in the Australian Capital Territory. It included an offence in terms of the proposal[74]. The "traditional" offence of driving under the influence (par (a)) and the later offence of driving with more than the prescribed concentration of alcohol present in the blood (par (b)) were re-enacted in Victoria when the present Act became law. The former carries a maximum penalty greater than that provided in respect of the offences enacted in pars (b) and (f) which share an identical penalty. Although the preconditions for the offences in pars (a) and (b) are not precisely the same, the survival of par (b) probably owes more to legislative apathy and the caution often exhibited in repealing criminal offences than to a conviction that par (b) is necessary for circumstances not adequately covered, in practice, by the offence provided for in par (f).

39. When this background to the creation of offences such as that contained in par (f) of s 49(1) of the Act is understood, the decision which the Court reached in Mills is reinforced. Far from producing an outcome which was contrary to the parliamentary intention, which departed from the stated purposes of the relevant Part of the Act, or which was ambiguous or so drastic and unreasonable that another construction was demanded, the contrary is the case. Offences of this kind are now common not only throughout Australia but also overseas.

40. Still further confirmation, albeit non-conclusive[75] for this opinion, may be derived from the history of the legislation since the decision in Mills was announced. After the orders of the Full Court of the Supreme Court of Victoria, affirmed in that case, Parliament amended the Act to address the particular problem of post-driving consumption of alcohol. Otherwise, it left the offence as provided by par (f) of s 49(1) unchanged. Although there have been many amendments to the Act in the decade since Mills was decided, no amendment has been proposed, and none adopted, to repeal the provisions of par (f). The defects of the previous offences had led to a completely new approach to such offences. This new approach was apparently a deliberate one by Parliament. The duty of courts is to give effect to Parliament's clearly stated purpose. The "purposive approach" to the construction of legislation affords no authority to do otherwise. On the contrary, it obliges that approach.

    Reopening, conclusion and order

41. In the light of the conclusion that Mills was correctly decided, its authority must stand. There is no occasion, therefore, to consider the circumstances in which this Court will review one of its own decisions in which the law on a particular subject has been authoritatively expressed[76]. The further exploration of those circumstances should await a case in which the Court is convinced that error has been shown[77].

42. The application that the Court reconsider and change its holding in Mills should be rejected. As special leave was only granted on the footing that the appellant sought to reopen Mills, and as he has failed to achieve that end, the proper order is that the grant of special leave should be revoked.

43. GAUDRON J. Mr Thompson seeks to challenge the construction placed on s 49(1)(f) of the Road Safety Act (Vic) ("the Act") in Mills v Meeking[78]. He received a grant of special leave to appeal from a decision of the Court of Appeal of Victoria applying s 49(1)(f) as construed in Mills v Meeking, conditional upon this Court ruling that it should reconsider that decision. In my view, Mills v Meeking is correct and should not be reconsidered.

44. It is not in issue that, construed literally, s 49(1)(f)[79] of the Act makes it an offence for a person to have more than the prescribed concentration of alcohol in his or her blood within three hours of driving or being in charge of a motor vehicle. The applicant contends that words should be read into that paragraph so as to restrict the offence to persons driving or in charge of a motor vehicle involved in an accident.

45. It is a fundamental rule of construction that, where the words of a statute are clear, they should be given their natural and ordinary meaning unless that would result in absurdity, conflict with some other provision of the statute or lead to a "result which cannot reasonably be supposed to have been the intention of the legislature"[80]. Were it otherwise, those who are subject to the law would find it impossible to know on what basis they should conduct their affairs.

46. The words of s 49(1)(f) are not lacking in clarity. If given their ordinary meaning, they may produce results that some would consider draconian, but that is very different from saying that the results are absurd. Indeed, it was not so argued. Rather, the argument for Mr Thompson was directed to the other two matters which may sometimes necessitate departure from the clear words of a statute.

47. The first argument concerned the relationship between ss 49(1)(f) and 55(10) of the Act. By s 55(10), a person who has been required to submit to breath analysis may request that a blood sample be taken for analysis by a medical practitioner. There is no conflict between ss 49(1)(f) and 55(10). Nor is it accurate to say that, if s 49(1)(f) is construed according to its terms, s 55(10) is mere surplusage. By s 49(4), it is a defence to a charge under sub-s (1)(f) that "the breath analysing instrument used was not ... in proper working order or properly operated." Blood analysis may ground a defence in accordance with that sub-section.

48. The second argument for Mr Thompson was directed to what was said to be the purpose of the Act. As Dawson J pointed out in Mills v Meeking[81], the Act is to be construed observing the command in s 35 of the Interpretation of Legislation Act 1984 (Vic). That section requires that "a construction that would promote the purpose or object underlying the Act ... be preferred to [one] that would not"[82]. That requirement is independent of any other rule of construction and gives greater emphasis to legislative purpose than do the general rules of statutory interpretation. As with the general rules, however, the problem is to identify the legislative purpose.

49. The legislative purpose of an enactment cannot be determined simply by having regard to its stated purpose or, where that is permitted, the relevant legislative debates. Neither is likely to be an exhaustive exposition of the legislation in question or of its purpose. Rather, where "the words of the statute are in themselves precise and unambiguous ... [they] best declare [its] intention"[83]. Given the clear language of s 49(1)(f) and its context, there is, in my view, no basis for concluding that it was intended to apply only to those driving or in charge of a motor vehicle that was involved in an accident.

50. Special leave should be revoked.

51. McHUGH J. Special leave to appeal was granted in this matter on the condition that, unless the appellant could persuade the Court to reopen its decision in Mills v Meeking[84], the grant of special leave would be revoked.

52. In Mills, the majority judges gave s 49(1)(f) of the Road Safety Act 1986 (Vic) ("the Act") a literal interpretation. Dawson J and I dissented. We thought that the paragraph should be given a purposive construction. Consequently, we read down the literal meaning so as to avoid the injustice that would arise if a motorist could be charged under that paragraph instead of s 49(1)(b) in circumstances where the motorist had not been involved in an accident.

53. In my opinion, Dawson J and I were correct in reading down s 49(1)(f), and Mills was wrongly decided. But that is not a sufficient reason to re-examine its correctness. The decision has stood for nine years. Notwithstanding that Dawson J and I thought that the legislature had only intended that s 49(1)(f) should apply where the motorist had been involved in an accident, the legislature has made no attempt to amend the Act to give effect to that supposed intention. Furthermore, s 49 was amended after the decision of the Supreme Court of Victoria in Mills and before the appeal in this Court. The amendment dealt with at least one of the draconian consequences of the effect of laying a charge under s 49(1)(f), instead of s 49(1)(b), of the Act.

54. In support of his case for re-examining the correctness of Mills, the appellant relied on the fact that the majority judgment in Mills made no reference to s 55(10) of the Act. He contended that the majority judges must have overlooked that provision and that, if they had considered it, the case would have been decided differently. However, I do not think that the terms of s 55(10) throw any light on the proper construction of s 49. At all events, the effect of s 55(10) on the interpretation of s 49 is too slight to think that the majority judges in Mills would have reached a different conclusion. It affords no reason to reopen the correctness of Mills.

55. It follows, therefore, that I would not reopen the correctness of the decision in Mills v Meeking and that the grant of special leave to appeal must be revoked.

---

[1] Thompson v His Honour Judge Byrne [1998] 2 VR 274.

[2] [1990] HCA 6; (1990) 169 CLR 214.

[3] The Act, s 53(1)(a).

[4] The Act, s 55(4)(c).

[5] The Act, s 55(10).

[6] Magistrates' Court Act 1989 (Vic), s 83(1).

[7] The Act, s 49(4).

[8] The Act, s 49(1)(b), s 49(1)(f)(i).

[9] Thompson v His Honour Judge Byrne, unreported, Supreme Court of Victoria, 8 November 1995.

[10] [1998] 2 VR 274 per Charles JA (Winneke P and Hayne JA concurring).

[11] [1998] 2 VR 274 at 283 per Charles JA .

[12] [1998] 2 VR 274 at 279-280 per Charles JA.

[13] The Director of Public Prosecutions and Mr Simon Coverley (the informant).

[14] cf Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163; Hansford v His Honour Judge Neesham, unreported, Supreme Court of Victoria, 31 August 1994 at 12-14 per J D Phillips J, affd [2000] VSCA 198; [1995] 2 VR 233.

[15] By Road Safety (Miscellaneous Amendments) Act 1989 (Vic), s 7.

[16] A point noticed by Mason CJ and Toohey J. See Mills [1990] HCA 6; (1990) 169 CLR 214 at 226.

[17] Inserted by Road Safety (Drivers) Act 1991 (Vic), s 9(1), commencing on 12 June 1991 in accordance with s 2(1) of that Act.

[18] Mason CJ and Toohey J, Brennan J concurring; Dawson and McHugh JJ dissenting.

[19] See Motor Car Act 1958 (Vic), esp s 80F.

[20] Mills [1990] HCA 6; (1990) 169 CLR 214 at 230 per Dawson J.

[21] Mills [1990] HCA 6; (1990) 169 CLR 214 at 232 per Dawson J.

[22] Mills [1990] HCA 6; (1990) 169 CLR 214 at 220 per Mason CJ and Toohey J.

[23] As the Full Court of the Supreme Court of Victoria had described it when Mills was in that Court. See Meeking v Crisp [1989] VR 740 at 743.

[24] Dawson J acknowledged that "the intention of Parliament is somewhat of a fiction." See Mills [1990] HCA 6; (1990) 169 CLR 214 at 234.

[25] Mills [1990] HCA 6; (1990) 169 CLR 214 at 236 per Dawson J.

[26] The Act, s 48(1).

[27] Mills [1990] HCA 6; (1990) 169 CLR 214 at 241-242 per McHugh J.

[28] Mills [1990] HCA 6; (1990) 169 CLR 214 at 243 per McHugh J.

[29] Mills [1990] HCA 6; (1990) 169 CLR 214 at 241 per McHugh J.

[30] Dawson J acknowledged, as the authority of this Court requires, that parliamentary speeches may not be substituted for the text of the law. See Mills [1990] HCA 6; (1990) 169 CLR 214 at 236-237 citing Re Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514 at 518.

[31] See eg Mills [1990] HCA 6; (1990) 169 CLR 214 at 241-242 per McHugh J.

[32] Mills [1990] HCA 6; (1990) 169 CLR 214 at 235 per Dawson J, 241-242 per McHugh J.

[33] Mills [1990] HCA 6; (1990) 169 CLR 214 at 235 per Dawson J, 242 per McHugh J.

[34] Applying Jones v Wrotham Park Estates [1980] AC 74 at 105 per Lord Diplock.

[35] Mills [1990] HCA 6; (1990) 169 CLR 214 at 236 per Dawson J.

[36] Mills [1990] HCA 6; (1990) 169 CLR 214 at 236 per Dawson J, 244 per McHugh J.

[37] Mills [1990] HCA 6; (1990) 169 CLR 214 at 244 per McHugh J.

[38] Mills [1990] HCA 6; (1990) 169 CLR 214 at 229 per Dawson J.

[39] Mills [1990] HCA 6; (1990) 169 CLR 214 at 223 per Mason CJ and Toohey J.

[40] The Act, s 53(1)(c) and (d).

[41] The Act, s 53(1)(a) and (b).

[42] The Act, s 53(1)(a).

[43] Miller v The Commonwealth [1904] HCA 34; (1904) 1 CLR 668 at 674; Wacal Developments Pty Ltd v Realty Developments Pty Ltd [1978] HCA 30; (1978) 140 CLR 503 at 510, 513, 521, 522; Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1 at 20.

[44] cf Clyne v Director of Public Prosecutions [1984] HCA 56; (1984) 154 CLR 640 at 648.

[45] The Act, s 47.

[46] Mills [1990] HCA 6; (1990) 169 CLR 214 at 223.

[47] As Dawson J conceded. See Mills [1990] HCA 6; (1990) 169 CLR 214 at 235.

[48] Meeking v Crisp [1989] VR 740 at 743.

[49] The Act, s 48(1)(a).

[50] The Act, s 48(1)(a).

[51] As stated in both pars (a) and (b) of s 49(1) of the Act.

[52] The Act, s 49(1)(f).

[53] cf Ousley v The Queen [1997] HCA 49; (1997) 192 CLR 69 at 79-80, 89, 98-99, 130-131, 144-146.

[54] R  v Weaver [1931] HCA 23; (1931) 45 CLR 321 at 334; Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 at 96; Connelly v Director of Public Prosecutions [1964] AC 1254 at 1304, 1337.

[55] cf Director of Public Prosecutions v B [1998] HCA 45; (1998) 72 ALJR 1175 at 1193; [1998] HCA 45; 155 ALR 539 at 563.

[56] Mills [1990] HCA 6; (1990) 169 CLR 214 at 226 per Mason CJ and Toohey J, 227 per Brennan J.

[57] Mills [1990] HCA 6; (1990) 169 CLR 214 at 242 per McHugh J.

[58] The Act, s 49(1)(c).

[59] The Act, s 49(1)(e), (f) and (g).

[60] Mills [1990] HCA 6; (1990) 169 CLR 214 at 230 per Dawson J.

[61] The Act, s 55(4)(a).

[62] The Act, s 57(3).

[63] [1990] HCA 6; (1990) 169 CLR 214 at 243.

[64] Alcohol, Drugs and Driving, Report No 4 (1976) (hereafter "ALRC 4").

[65] ALRC 4 at 115.

[66] ALRC 4 at 115 par 267.

[67] ALRC 4 at 115 par 267.

[68] ALRC 4 at 115-116 par 270. (Footnote omitted.)

[69] ALRC 4 at 116 par 273.

[70] ALRC 4 at 116 par 273.

[71] Road Traffic Act 1972 (UK), s 6(1).

[72] Blennerhassett Report, referred to in ALRC 4 at 117 par 275.

[73] ALRC 4 at 117 par 273. (Footnote omitted.)

[74] Motor Traffic (Alcohol and Drugs) Act 1977 (ACT), s 19.

[75] Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; (1996) 187 CLR 310 at 329, 351 citing R v Reynhoudt [1962] HCA 23; (1962) 107 CLR 381 at 388.

[76] cf Re Tyler; Ex parte Foley [1994] HCA 25; (1994) 181 CLR 18 at 39.

[77] cf Babaniaris v Lutony Fashions Pty Ltd [1987] HCA 19; (1987) 163 CLR 1 at 13; John v Federal Commissioner of Taxation [1989] HCA 5; (1989) 166 CLR 417 at 440.

[78] [1990] HCA 6; (1990) 169 CLR 214.

[79] Section 49 of the Act relevantly provides:

"(1) A person is guilty of an offence if he or she-

...

(f) within 3 hours after driving or being in charge of a motor vehicle furnishes a sample of breath for analysis by a breath analysing instrument under section 55(1) and-

(i) the result of the analysis as recorded or shown by the breath analysing instrument indicates that more than the prescribed concentration of alcohol is present in his or her blood; and

(ii) the concentration of alcohol indicated by the analysis to be present in his or her blood was not due solely to the consumption of alcohol after driving or being in charge of the motor vehicle".[80]

Pinner v Everett [1969] 3 All ER 257 at 258 per Lord Reid. See also Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 at 310-311 per Stephen J, 320-321 per Mason and Wilson JJ, 334 per Aickin J (dissenting); Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1 at 20 per Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ, citing with approval the statement of the purposive approach by McHugh JA (as he then was) in Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 423.

[81] [1990] HCA 6; (1990) 169 CLR 214 at 235.

[82] Section 35(a).

[83] The Sussex Peerage Case (1844) 8 ER 1034 at 1057. See also Re Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514 at 518 per Mason CJ, Wilson and Dawson JJ, 532 per Deane J.

[84] [1990] HCA 6; (1990) 169 CLR 214.