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[2009] TASSC 36
respondent. Motion for review dismissed; magistrate's convictions under ss6(1) and 6(2) of the Road Safety (Alcohol and Drugs) Act 1970 upheld (para [35]).
Blow J dismissed the applicant's review of magistrate convictions for drink-driving. The Court held ss6(1) and 6(2) of the Road Safety (Alcohol and Drugs) Act 1970 apply to driving on private land as well as public streets. The applicant had agreed in court that he drove; he also consented to a blood sample, and s10A(2) meant the evidentiary presumptions in ss23(4) and (5) could apply as if he had been liable to breath analysis. Because of the blood-sample consequences, whether the driving occurred on a public street was immaterial, and the convictions were upheld.
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Brown v Maxwell concerned an appeal in the Supreme Court of Tasmania from magistrate convictions for offences under ss6(1) and 6(2) of the Road Safety (Alcohol and Drugs) Act 1970. The facts were simple. On 21 June 2008 the applicant drove a very short distance (about 70 metres) along a dead-end driveway that ran at right angles to Britton's Road, Smithton. The driveway formed part of common property in a strata scheme and was vested in a strata corporation; the driveway was constructed to the kerb of Britton's Road (see [2]–[3]). The applicant was on a learner licence and subsequently produced a blood-alcohol reading of 0.138 g/100 mL.
No linked legislation citations have been extracted yet.
At the magistrates' hearing the magistrate found the driving occurred on a public street (specifically a part of the driveway between the strata corporation's front boundary and the kerb) and convicted on both the excess concentration offence (s6(1)) and the presence-of-alcohol offence (s6(2)). In the Supreme Court the applicant advanced four grounds attacking the finding that he drove on a public street (including a contention that he had not driven at all) and a fifth ground that his conduct did not amount to driving. The Attorney-General (DPP) resisted the application. Blow J dismissed the review and upheld the convictions ([34]–[35]).
Two separate legal strands determined the outcome.
First, on the question whether the applicant had “driven”, Blow J accepted that the doing of that fact had been effectively agreed in court under the Evidence Act 2001, s191(3)(b). Counsel for the applicant had told the magistrate on an earlier occasion that “we are not disputing ... whether he drove or not, we are disputing where he drove” and at the hearing the prosecutor described agreed facts including that “the defendant was the driver” (see [6]–[9]). Under s191(2)–(3), a fact stated by a party with the agreement of the other parties (with the court's leave) is an “agreed fact” and need not be proved. Blow J therefore rejected the applicant's contention that it was not open to the magistrate to find he had driven (see [8]–[9]).
Second, on the central statutory point, Blow J undertook statutory construction of ss6(1) and 6(2). Those provisions contain no express limiting words restricting them to public streets (the text of s6(1) is quoted at [10]). The judge canvassed competing authorities. Earlier Tasmanian single-judge or magistrate authorities (Smith v Westell, Blewitt v Mackay, Deacon v Parkes) suggested limitations to public places; by contrast the Full Court of Victoria in Carr v Walukiciwick held the equivalent Victorian provisions extended to private land (see [12]–[16]). Blow J found the reasoning in Carr persuasive and preferred it over the earlier single-judge Tasmanian decisions (see [20]).
He also applied interpretive principles. The ordinary literal meaning of the provisions would favour application everywhere, and applying the provisions to private land did not produce absurd results; the object of the Act (to protect the public against the risks of driving after consuming intoxicating liquor) also supported a purposive construction favouring broader application, consistent with the Acts Interpretation Act 1931 s8A (see [22]–[24]). On that basis Blow J held ss6(1) and 6(2) apply to private land as well as public streets (see [24]).
Finally, the evidentiary consequences of the blood sample rendered the public-street question immaterial. Random breath testing powers (s7A) apply only to drivers on public streets. But the applicant had consented to a blood sample, and s10A(2) provides that where a person agrees to submit to the taking of blood the relevant provisions of the Act apply as if that person had elected to provide a blood sample under s10(4B). Because s10(4B) operates only in the context of a person who had been made liable to submit to breath analysis, the statutory machinery meant that, for evidentiary purposes, ss23(4) and (5) could operate as if the applicant had been a person liable to submit to breath analysis. That meant the blood-alcohol reading could be treated as the person's alcohol concentration at the time of driving for the purposes of proof (see [28]–[33]). Hence, whether the driving occurred on public or private land was immaterial to the convictions (see [32]–[34]).
Before this decision there was some uncertainty in Tasmanian authorities as to whether drink-driving offences extended to private land. Older Tasmanian decisions (Smith v Westell [1948]; Deacon v Parkes [1969]) had been treated as supporting a public-place limitation for related provisions. There were also magistrate/judge decisions (Blewitt v Mackay and Police v Meers) that reached different conclusions. The Full Court of Victoria in Carr v Walukiciwick [1969] VR 758 had squarely held equivalent Victorian provisions apply on private land, and that decision disapproved of using hypothetical “absurd” examples to restrict the provisions.
Blow J expressly preferred Carr over the earlier Tasmanian authorities (see [15]–[16], [20]) and concluded that ss6(1) and 6(2) apply on private land. The practical effect is that, under Tasmanian law as stated by Blow J, drink-driving offences under the Act may be proven regardless of whether the driving occurred on a public street. That is subject to the ordinary limits of proof and any statutory defences or qualifications.
A further legal development from this judgment is the clear explanation of how the blood-sample provisions interact with breath-testing provisions and the evidentiary presumptions in ss23(4) and (5). Even where s7A (random breath testing) does not empower a breath test because driving is not on a public street, a voluntary or consented blood sample can trigger the same evidentiary presumptions by operation of s10A(2) read with s10(4B) and ss23(4)–(5) (see [28]–[33]). That mechanism reduces the evidentiary significance of the public-street limitation for breath testing.
Quotation: “Any person who drives a motor vehicle while alcohol is present in his or her breath or blood in a concentration greater than the prescribed concentration is guilty of an offence.” ([10])
Plain English: The statute says it is an offence to drive with an alcohol level above the legal limit; the statute does not by those words say it only applies on roads or public streets.
Quotation: “I think the main purpose or object of the Act is to promote public safety. I think that the achievement of that objective would be facilitated by interpreting its provisions prohibiting drink-driving wherever it occurs, rather than just prohibiting drink-driving on public streets.” ([23])
Plain English: The goal of the law is to keep people safe. That objective is better achieved if the law bans drunk driving everywhere, not just on roads.
Quotation: “By virtue of s10A(2), the relevant provisions of the Act apply as if he had elected to provide a blood sample in accordance with s10(4B).” ([32])
Plain English: Because the defendant agreed to a blood test, the Act treats that agreement as if the person had been in the position of someone who was forced or required to have a breath test. That gives the prosecution the usual evidentiary advantages.
Quotation: “For all of these reasons, I conclude that s6(1) and s6(2) do not apply only to driving on public streets, but also apply to driving on private land.” ([24])
Plain English: The judge's final legal conclusion: the drink-driving offences apply even if the driving happened on private property.
The decision addresses two principal fact patterns:
Driving on private land combined with a positive alcohol reading: If a driver operates a motor vehicle on private property and has a blood- or breath-alcohol reading above the prescribed concentration, the decision supports convicting under ss6(1) and 6(2) because the statute's scope covers private land as well as public streets ([24]).
Consent to blood sampling where random breath powers do not apply: Where police do not have the power to require a breath test because the driving occurred off a public street, but the person voluntarily agrees to a blood test or consents to blood sampling, s10A(2) causes the Act's evidentiary machinery to apply as if the person had been liable to breath analysis. That fact pattern allows ss23(4) and (5) presumptions to be relied upon by the prosecution ([28]–[33]).
Practitioners should note two linked triggers: (a) whether the driving occurred on private land; and (b) whether a blood sample was taken with the person's consent. If both are present, the reasoning in Brown v Maxwell means the prosecution can rely on the blood reading for evidentiary presumptions, and the private-land location will not defeat the charge.
The judgment itself does not record subsequent appellate treatment. What the judgment does show is that Blow J relied upon and followed the Full Court of Victoria in Carr v Walukiciwick ([15]–[16], [20]), and that he distinguished Howe v Strickland on the basis that the licence/disqualification context is different ([18]). The practical upshot is that Brown v Maxwell adopts the Carr approach within Tasmania and provides a clear explanation of the evidentiary interaction between blood sampling and breath-testing provisions. For authoritative statements about how later Tasmanian or other courts have treated Brown v Maxwell, independent case-law research beyond this judgment is required.
Brown v Maxwell resolves the two discrete issues in the case, but it leaves several matters open for future clarification:
Scope of other provisions: Blow J noted there are no reported Tasmanian decisions on the specific scope of s4 (prohibition on driving under the influence) and similar provisions. Whether the same broad approach applies to all provisions of the Act is a matter for future cases (see [17]).
Boundary and public-access questions: The court did not need to determine the precise legal test for when a driveway or part of private land becomes a public street. Because the evidentiary operation of the blood sample made the public-street question immaterial in this case, detailed guidance on delineating private from public portions of marginal land (nature strips, access ways, easements) remains underdeveloped (see [3], [34]).
Compulsion and s10A interplay: The decision turned on consent to blood sampling. There may be unresolved questions about situations where blood is taken under compulsory powers or where s10A(2) might not apply, and whether analogous evidentiary consequences will always follow in those contexts.
Policy concerns and 'absurdity' arguments: Carr v Walukiciwick and Blow J rejected arguments that extension to private land would produce absurd results, but there remain borderline factual scenarios (golf buggies, ride-on mowers, private racetracks) where policy and proportionality arguments could be raised and may require judicial attention to draw principled limits.
Interaction with police powers: Since s7A expressly limits random breath-testing to public streets, tensions may arise in practice between police investigatory powers and private-property rights; the precise limits of police power to require or obtain samples when the driving is off public streets may call for legislative or judicial clarification.
In summary, Brown v Maxwell is a clear statement that, in Tasmania, the main drink-driving offences in ss6(1) and 6(2) apply to driving on private land and that consenting to a blood test invokes statutory evidentiary machinery that often renders the public/private locus irrelevant to proof. It resolves the discrete case but flags several issues for future litigation or legislative clarification.
CITATION: Brown v Maxwell [2009] TASSC 36
Traffic Law - Offences - Particular offences - Alcohol and drug related offences - Tasmania - Other offences - Driving with alcohol present in body - Driving with more than prescribed concentration of alcohol in blood - Whether prohibited on private land.
Road Safety (Alcohol and Drugs) Act 1970 (Tas), s6(1), s6(2).
Carr v Walukiciwick [1969] VicRp 97; [1969] VR 758, followed.
Smith v Westell [1948] Tas SR 97; Blewitt v Mackay (1967) 10 FLR 449; Deacon v Parkes [1969] Tas SR 47, not followed.
Howe v Strickland [1984] Tas SR 36, distinguished.
Judgment Number: [2009] TASSC 36
1 This is a motion for the review of convictions imposed by a magistrate on charges under the Road Safety (Alcohol and Drugs) Act 1970 ("the Act"), s6(1) and 6(2).
2 The case against the applicant was that on 21 June 2008 he drove a very short distance on a driveway that runs at rightangles to Britton's Road, Smithton, with a blood alcohol content of 0.138 grams of alcohol in 100 millilitres of blood, and that he was then the holder of a learner licence. The applicant contended that he had not driven on a public street, and that it followed that he could not be convicted on either charge. The learned magistrate made a finding that he had driven on a public street, and convicted him on both charges.
3 Exhibits tendered at the hearing before the learned magistrate show that the driveway in question was no more than about 70 metres long; that it was a dead-end rather than a thoroughfare; and that all or most of it was on private land, vested in a strata corporation, and forming part of the common property of a strata scheme. The driveway has been constructed all the way to the kerb of Britton's Road. The learned magistrate convicted on the basis that the applicant had driven beyond the front boundary of the strata corporation's property, onto a part of the driveway between the front boundary and the kerb, and that that part of the driveway constituted a public street.
4 The applicant's contentions in this case can be summarised as follows:
•
That it was not open to the learned magistrate to make a finding that anything the applicant did on the day in question amounted to driving.
•
That the offences created by s6(1) and 6(2) can only be committed on public streets.
•
That the part of the driveway located on the strata corporation's land was not a public street.
•
That, even if the applicant's conduct amounted to driving, it was not open to the learned magistrate to conclude that any such driving occurred outside the boundary of the strata corporation's land.
5 The respondent's contentions can be summarised as follows:
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That admissions were made to the learned magistrate by the applicant's counsel that the applicant had driven on the occasion in question.
•
That the offences in question can be committed anywhere, whether on a public street or not.
•
That it was open to the learned magistrate to make a finding that the applicant had driven on the "nature strip" between the strata corporation's front boundary and the kerb, and that that was a public street.
•
That the whole of the driveway was a public street.
6 On 4 September 2008 pleas of not guilty were entered before the learned magistrate. His Honour then discussed with the prosecutor and the applicant's counsel the scope of the issues in dispute. In the course of that discussion, the applicant's counsel told the learned magistrate, "... we are not disputing he he [sic] whether he drove or not, we are disputing where he drove". The case was adjourned. The hearing proceeded on 29 October 2008. The proceedings on that day began with quite an informal discussion as to what was and was not in dispute. The learned magistrate's clerk reminded him that there had been some agreed facts stated and concessions made when the matter was previously before him. The prosecutor went on to tell the learned magistrate that various facts were agreed. He said, "The other issue or matter Your Honour that is agreed that the defendant was the driver of the motor vehicle on what is will be referred to as an unnamed road ... it is agreed Your Honour that the defendant um drove a vehicle to the edge but not onto Britton's Road and then back to the other end of that road ...". When the prosecutor finished making assertions to the learned magistrate as to agreed facts, the applicant's counsel neither confirmed nor corrected anything that the prosecutor had said. The learned magistrate asked him whether there was anything further that needed to be covered. He responded that he could not think of anything.
7 The Evidence Act 2001, s191, contains provisions as to agreed facts. It reads as follows:
"191 Agreements as to facts
(1) In this section,
'agreed fact' means a fact that the parties to a proceeding have agreed is not, for the purpose of the proceeding, to be disputed.
(a) evidence is not required to prove the existence of an agreed fact; and
(b) evidence may not be adduced to contradict or qualify an agreed fact -
unless the court gives leave.
(3) Subsection (2) does not apply unless the agreed fact -
(a) is stated in an agreement in writing signed by the parties or by lawyers representing the parties and adduced in evidence in the proceeding; or
(b) with the leave of the court, is stated by a party before the court with the agreement of all other parties."
8 I think this was a situation in which s191(2)(a) applied because the provisions of s191(3)(b) were satisfied. There was no agreement in writing. The agreed fact that the applicant was driving was "stated by a party" in that it was stated by his counsel on one day, and by the prosecutor on another day. It was evidently stated on each occasion with the agreement of the other party. That course was evidently acceptable to the learned magistrate. Given the informality of the hearing, I think the relevant statements should be treated as having been made "with the leave of the court".
9 I therefore reject the applicant's contention that it was not open to the learned magistrate to make a finding that anything he did on the day in question amounted to driving.
Is drink driving prohibited only on public streets?
"(1) Any person who drives a motor vehicle while alcohol is present in his or her breath or blood in a concentration greater than the prescribed concentration is guilty of an offence.
(2) A person to whom, by virtue of subsection (3) or (4), this subsection applies who drives a motor vehicle while alcohol is present in his body is guilty of an offence."
11 At first glance it might seem obvious that, since Parliament did not expressly confine the operation of these provisions to public streets, they must have been intended to apply not just in respect of driving on public streets, but in respect of driving everywhere. However there are a number of reported cases in relation to similar legislation that suggest the opposite view may be correct.
12 In Smith v Westell [1948] Tas SR 97, Morris CJ considered the Traffic Act 1925, s41(1), which provided, "No person shall ... have charge of any vehicle whilst under the influence of intoxicating liquor". At 98 his Honour said:
"Although I think there is no limitation in the section as to a public place, I think the whole purpose of the section is to protect the community against the danger of a drunken man operating a vehicle. The section, therefore, hits at the man who operates, attempts to operate or drives, and the man who has charge of a vehicle while under the influence of intoxicating liquor. It was contended that a man may be said to 'have charge of' a vehicle while it is on the street and he is in a building or while it is in his own garage locked up for the night. But that is not the sense in which 'have charge of' is used in the section. Having regard to what I think is the purpose of the section, it is possible to limit the meaning of 'have charge of' so as to mean that in addition to his having the care, custody, or responsibility for the vehicle in a public place, the relationship of the man to the vehicle must be such that he can and, more than that, there is a reasonable likelihood that he will, attempt to operate it and so become a danger."
Those comments were obiter, since the appeal against the applicant's conviction failed.
13 In Blewitt v Mackay (1967) 10 FLR 449, Fox J considered the Motor Traffic Ordinance 1936 - 1965 (ACT), s175, which provided, "Any person who drives, or is in charge of, a motor vehicle while he is under the influence of intoxicating liquor shall be guilty of an offence ...". The appellant in that case had been convicted of contravening that section on the basis that he had driven on a driveway on private land. Fox J considered the context of the section and the history of the legislation, and concluded that the section did not extend to the use of vehicles on private land. He left open the question of whether the section applied when a person intended to drive a vehicle onto a public street, or was in the process of driving it onto the street.
14 In Deacon v Parkes [1969] Tas SR 47, the defendant had been charged with driving under the influence of intoxicating liquor contrary to the Traffic Act, s41(1), in a car park on private land. Burbury CJ followed the two cases I have referred to, and held that the defendant could not be found guilty in the absence of evidence that he operated the motor vehicle upon a public street.
15 The following month the Full Court of the Supreme Court of Victoria took a different view in relation to the Motor Car Act 1958 (Vic), ss80B and 81A, in Carr v Walukiciwick [1969] VicRp 97; [1969] VR 758. Those sections created offences of driving under the influence of intoxicating liquor, and driving with an excess percentage of alcohol in the blood, but were silent as to whether they applied only to driving on a public highway. It was held that they applied to driving on private land. The court examined the context of the provisions, and concluded, at 761, that the legislation was not concerned with "the regulation of the use of motor cars solely in relation to highways". Their Honours went on to consider whether the application of the two sections to private land would produce absurd results. At 761 - 762 they said:
"... we were invited to contemplate the possibility of the sections being applied to golfers with a blood alcohol content in excess of .05 per cent operating power-driven golf buggies on the fairways of a private golf course after having successfully negotiated a dissecting road; and to inebriated householders mounted on driver-transporting motor mowers in the privacy of their own gardens after having successfully mown the front nature strip. To these drivers, and to the intemperate householder driving his car in his own drive, and to the intemperate farmer in his own paddock, the legislation, it was said, could not have been intended to apply. But if this were so, it would equally have been intended to treat as immune from a charge of driving under the influence a drunken driver competing on a privately owned race track, or trying out the speed of a car on a privately owned testing ground, or indeed driving in any place where members of the public might be present which was not a highway as defined. As to some of these places of public resort (any parking place, drive-in theatre or other like place of public resort) a charge of being drunk in charge of a car could be made under s 82, but not one of driving while under the influence. In these circumstances, it is impossible to conclude that one set of consequences appears as so much more absurd or extreme than the other as to indicate the intention of the legislature by reference to that consideration alone."
16 That case was followed by Dunn J in Green v Carter [1974] VicRp 55; [1974] VR 461. That case concerned the Motor Car Act (Vic), s82(1)(b), which created an offence of being under the influence of intoxicating liquor while in charge of a motor car. A power of arrest was conferred by s81(1)(a) in relation to "Every person in charge of a motor car on a highway or in any parking place, drive-in theatre or other like place of public resort". Dunn J held that the offence created by s82(1)(b) was not limited to such places.
17 As far as I know, no judge of this Court has ever had to decide whether or not s6(1) or 6(2) applies to driving on private land. Similarly, there do not appear to be any reported or unreported cases concerning s4, which prohibits driving under the influence of intoxicating liquor, and driving under the influence of a drug. It contains no words restricting its operation to public streets either.
18 In Howe v Strickland [1984] Tas SR 36, Cosgrove J considered the scope of s19A, which prohibits driving whilst disqualified from holding or obtaining a driver's licence. That section is not expressly confined to public streets, but Cosgrove J held that it applied only to driving on public streets. However that interpretation was adopted because licences are required only for driving on public streets, and not for driving on private land. I therefore regard that case as distinguishable.
19 My research has revealed a well-reasoned decision by a magistrate who held that s6(1) applies to driving on private land: Police v Meers 8/1980 (Mr D H Jackson, Court of Petty Sessions at Devonport, 27 February 1980). In Howe v Strickland (supra) at 42, Cosgrove J described the reasons given in that case as "detailed, conscientious and sophisticated". I agree.
20 In my view, the persuasive authority of the Full Court decision in Carr v Walukiciwick outweighs that of the earlier single-judge cases that I have referred to.
21 The ordinance that Fox J considered in Blewitt v Mackay seems to have contained a haphazard collection of prohibitions expressly confined to public streets and prohibitions not expressly confined to public streets, but the current Tasmanian legislation does not contain prohibitions expressly confined to public streets. I think that case should therefore be distinguished on that basis.
22 The ordinary literal grammatical meaning of ss4, 6(1) and 6(2), would suggest that they apply to driving at all places, public and private. Interpreting those provisions as applying to driving on private land would not create absurd results, as the passage I have quoted above from Carr v Walukiciwick illustrates.
23 The Acts Interpretation Act 1931, s8A, requires an interpretation of a legislative provision that promotes the purpose or object of the Act to be preferred to one that does not. It is true that the word "Road" features in the title of the Act. Its long title is "An Act to protect the public against the risk inherent in the driving of vehicles after consumption of intoxicating liquor or drugs; and for related purposes". In my view I think the main purpose or object of the Act is to promote public safety. I think that the achievement of that objective would be facilitated by interpreting its provisions prohibiting drink-driving wherever it occurs, rather than just prohibiting drink-driving on public streets.
25 Random breath testing was introduced in Tasmania by the Road Safety (Alcohol and Drugs) Act 1982. Ever since then the Act, s7A, has permitted police officers to require drivers to undergo random breath tests. However that section only applies to a person "who is driving a motor vehicle on a public street". In this case it was asserted that a police officer had required the applicant to undergo a breath test even though he was not driving on a public street. It appears to have been common ground that he had undergone a breath test, then submitted to a breath analysis, and finally submitted to the taking of a blood sample.
26 The Act contains evidentiary provisions designed to facilitate the proof of offences. The provisions relevant to this case, and the way they operate, can be summarised as follows:
•
Under s7A(1), a police officer may require any person who is driving a motor vehicle on a public street to undergo a breath test.
•
When, after requiring a person to undergo a breath test in accordance with s7A(1), a police officer reasonably believes that alcohol may be present in that person's breath or blood, that person becomes liable to submit to a breath analysis: s7A(4).
•
After a person submits to a breath analysis, the approved operator by whom the breath analysing instrument was operated is required to read out a written statement and to hand it to that person: s11(1).
•
That person may then immediately request the operator to make arrangements for a sample of blood to be taken for analysis: s11(3).
•
It is then the duty of the operator to make arrangements for the taking of such a sample to be begun by a medical practitioner or by a qualified nurse within three hours after "the relevant time": s11(3). "The relevant time" is defined by s2(3A).
•
On the hearing of a charge under s6(1), commonly referred to as a charge of "exceeding .05", the alcohol concentration, as measured by a breath analysis or a blood test, is deemed to be the defendant's alcohol concentration at the time of the relevant act of driving: s23(4). However that subsection only applies to "a person who became liable to submit to a breath analysis". The subsection only applies in relation to alcohol concentrations "within 4 hours after the relevant time", and does not apply if the defendant proves that his or her alcohol concentration was not over .05 at the time of driving.
•
There is a similar provision that applies on the hearing of a charge under s6(2), whereby evidence of an alcohol concentration obtained as a result of a breath analysis or a blood test gives rise to a presumption that the person had alcohol in his or her breath or blood at the time of the relevant act of driving: s23(5). Once again, that provision only applies to "a person who became liable to submit to a breath analysis", only applies to alcohol in the breath or blood "within 4 hours after the relevant time", and can be excluded by proof to the contrary.
27 If the applicant was not driving on a public street, s7A(1) did not empower a police officer to require him to undergo a breath test, and s7A(4) could not operate so as to make him liable to submit to a breath analysis. If he did not become liable to submit to a breath analysis, then neither s23(4) nor s23(5) applied in relation to the evidence as to alcohol in his breath. Evidence that he had alcohol in his breath when he underwent the breath analysis did not give rise to a presumption that he had alcohol in his breath when he was driving, or that he had alcohol of a particular concentration in his breath when he was driving.
28 However the applicant's counsel told the learned magistrate that he conceded that on the date alleged, he took part in "a blood test which obtained a reading of .138 grams of alcohol per 100 millilitres of blood". Because of the way the hearing was conducted, I think this should be regarded as another agreed fact stated in accordance with the Evidence Act, s191.
29 Under s10A(2), when a person agrees to submit to the taking of a blood sample, the relevant provisions of the Act apply as if that person had elected to provide a sample of blood in accordance with s10(4B). To understand the significance of that, it is necessary to understand s10(4A).
30 Section 10(4A) relates to the situation where a person is liable to submit to a breath analysis; the analysis can be carried out forthwith; and the person fails or refuses to comply with a direction to submit to the breath analysis. In that situation, s10(4A) requires the operator of the breath analysing instrument to inform the person that he or she may instead elect to submit to the taking of a blood sample. In that situation, if the person elects to submit to the taking of a blood sample, s10(4B) requires the approved operator to "forthwith cause arrangements to be made for such a sample to be taken by a medical practitioner or qualified nurse".
31 It is significant that, in order for s10(4B) to apply to a person, that person must first be a person who is liable to submit to a breath analysis. Otherwise s10(4A) would not apply, and s10(4B) would not apply either.
32 The result of the applicant having submitted to the taking of a blood sample can therefore be summarised as follows:
•
By virtue of s10A(2), the relevant provisions of the Act apply as if he had elected to provide a blood sample in accordance with s10(4B).
•
Section 10(4B) can only apply to a person who is liable to submit to a breath analysis.
•
Therefore the relevant provisions of the Act apply as if the applicant was a person who was liable to submit to a breath analysis.
•
Therefore s23(4) and s23(5) can apply as if the applicant was a person who became liable to submit to a breath analysis, even if that was not the position because he was not driving on a public street.
33 If the applicant had not submitted to the taking of a blood sample, his contention that he did not drive on a public street might have had some significance because of the evidentiary provisions I have referred to. However the effect of the provisions relating to blood samples is that the issue as to whether the driveway was a public street was absolutely insignificant.
34 The notice to review in this case sets out five grounds of review. The first four assert errors on the part of the learned magistrate in relation to his finding that the applicant drove on a public street. Since it is immaterial whether the applicant drove on a public street or only on private land, there is no need to consider those grounds any further. The fifth and final ground relates to the contention that the applicant's conduct did not amount to driving. That ground must also fail, for the reasons I have stated.
Brown
Maxwell [2009] TASSC 36
(1967) 10 FLR 449
Motion for review dismissed; magistrate's convictions under ss6(1) and 6(2) of the Road Safety (Alcohol and Drugs) Act 1970 upheld (para [35]).