Davis v Conroy [2005] ACTSC 8

Davis v Conroy [2005] ACTSC 8 - ACTSC 2005 case summary — Zoe

[11]

The defendant said in his evidence that he did not refuse to provide a sample. Indeed, that is not the charge that's before the court today. He says that he failed to provide it because of a medical illness or a medical condition, the name of which he then, that is on 28 November 2003, did not know.

He says he was unable to blow without experiencing severe chest pain in an area which he identified as just below his right breast. He said he had seen Dr Peachey after the date of this offence. Dr Peachey did not give evidence. I do not know on what date the defendant consulted him other than that the defendant says that Dr Peachey arranged for him to undergo an X-ray and I'm satisfied from the matters before me and the evidence that that X-ray was carried out on 4 December 2003, and that the defendant had therefore seen Dr Peachey at the latest on 4 December 2003.

There was no evidence of any other steps that the defendant took to get medical treatment or to see a medical practitioner until April 2004, shortly before the first return date of this summons in court, which was 8 April.

Dr Griffith gave evidence for the defendant. He had had to rely on the defendant's history as narrated to him by the defendant and the X-rays as he had not seen the defendant between the period 28 November 2003 and April 2004.

He said from reading his notes that the defendant had not informed him when he sustained the injury to his ribs. He said that it was, from looking at the X-rays, very difficult for him as a doctor to tell how old the injury was and that he could not say it was a recent injury, but that his evidence was relying on what the defendant had reported to him, namely the intense and severe pain, that that could have, in the doctor's opinion, caused the defendant to experience pain on the inhalation and exhalation of air.

However, compellingly, this doctor conceded in cross examination that the injury as observed by him from the X-rays did not, in his opinion, affect the defendant's ability to form a seal around the mouthpiece or tube of the Draygar machine.

[33]

[21] The joint judgment in Cobiac v Liddy establishes that the list of relevant considerations for determining the issue of "expediency" is broader than the list of matters specifically listed as factors to which the court must have regard.

[22] The breadth of the discretion is confirmed in the judgment of Windeyer J where his Honour said (at CLR 276; ALR 648):

... the magistrate must be of opinion that the exercise of the power is expedient because of the presence and effect of one or more of the stated conditions, namely character, antecedents, age, health or mental condition. One of these by itself, or several taken together, must provide a sufficient ground for a reasonable man to hold that it would be expedient to extend the leniency which the State statute permits. The Act speaks of the court exercising the power it confers "having regard to" the matters it states. I read that as meaning more than merely noticing that one or more of them exists. Its, or their, existence must, it seems to me, reasonably support the exercise of the discretion the statute gives. They are not mere pegs on which to hang leniency dictated by some extraneous and idiosyncratic consideration. But they are wide words. None of the matters they connote is necessarily to be regarded in isolation from the others, or apart from the whole of the circumstances of the offender and the offence.

[23] This last reference to the "whole of the circumstances of the offender and the offence" opens up a wide range of factors as relevant to the exercise of the statutory discretion. It appears that his Honour, like the judges who signed the joint judgment, did not take a narrow view of the scope of relevant considerations, notwithstanding his Honour's reference to the need for one or other of the specified factors to themselves be of sufficient significance to justify the finding of the expediency.

[24] There may be a difference in approach between the joint judgment and that of Windeyer J. (See Paterson v Fenwick [1994] ACTSC 25; (1994) 115 FLR 462 at 468-9.) Windeyer J appears to apply a test that one of the specified matters must of itself justify the finding of inexpediency, but that in determining that question the full range of relevant considerations may be taken into account. The joint judgment proceeds on the basis that any matter relevant to the issue of expediency can be taken into account in the ultimate exercise of the discretion, whether or not that factor itself falls within one of the facts and matters specified in the respective subparagraphs of 19B(1)(b).

[25] As a practical matter, there may be little difference between the two approaches because of the reference Windeyer J made to the "whole of the circumstances of the offender and the offence", together with the broad approach his Honour took to the scope of "antecedents".

[26] Windeyer J's reference to the relevance of "the whole of the circumstances of the offender and the offence" has been reflected in a number of subsequent decisions. (See for example Aikman v Bourne (1992) 63 A Crim R 467 at 470 per Cox J; McQuestin v Australian Securities Commission [1993] TASSC 118; (1993) 2 Tas R 30 at 36-7; 12 ASCR 279 at 283 per Underwood J.)

[39]

21. It is necessary to examine this proposition by reference to the unchallenged evidence led by the prosecution, the findings made by the Magistrate and the submissions made on sentencing. The circumstances referred to by Mr Colquhoun (summarised at [9] above) and which the Magistrate probably had in mind when referring to the "circumstances surrounding the offence", might arguably constitute extenuating circumstances in the abstract. That might be so because the failure to provide the sample may have flowed from pain the respondent was experiencing arising, in particular, from the condition about which Dr Griffith gave evidence. However, the difficulty with this analysis in the present case is, as noted earlier, the Magistrate said in her reasons of 25 June 2004 when dealing with guilt, there had been no evidence that would have enabled her to find that the respondent was not medically able to seal the tube. Also, as noted earlier, her Worship in making those remarks, was rejecting a submission that pain experienced by the respondent prevented him from complying with the request to provide the sample based on his failure to seal the tube. In my opinion, it would follow that whatever pain the respondent was then experiencing, it could not have been an extenuating circumstance because it did not prevent him from doing that which he was directed to do which constituted "the failure". However, if her Worship was considering these circumstances identified by Mr Colquhoun more generally under the rubric of the "whole of the circumstances of the offender and the offence", to adopt the expression used by Windeyer J referred to by Spigelman CJ in his passage set out at [17] above, then I do not see how they could have been relevant. The fact that the respondent may have suffered an injury prior to the incident and may have been suffering pain at the time of the incident appears to me to be wholly irrelevant to whether it was inexpedient to inflict punishment in circumstances where the basis of the proved offence was the failure to form a seal around the tube. In my opinion, any pain experienced by the respondent was irrelevant unless in some way it contributed to the circumstances leading to the commission of the offence (a submission which was not made below or on appeal) or the pain contributed to the commission of the offence (a proposition rejected by the Magistrate).

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