DPP v Ridley

Supreme Court of NSW|2015-10-07|Before: Adamson J

Solicitors: Solicitor for Public Prosecutions (Plaintiff) Commins Hendriks Solicitors (Defendant) File Number(s): 2015/00154759 Decision under appeal Court or tribunal: Local Court of New South Wales Jurisdiction: Criminal Date of Decision: 30 January 2015 Before: Dare LCM

Judgment

On 30 January 2015, in the Local Court at West Wyalong, Magistrate Dare dismissed a charge of an offence contrary to s 112(1)(a) of the Road Transport Act 2013 (NSW) at the conclusion of the voir dire. On 13 February 2013 his Honour extended time within which to institute an appeal to 22 May 2015.
By summons filed on 22 May 2015 the plaintiff appealed pursuant to s 56(1)(c) of the Crimes (Appeal and Review) Act 2001 (NSW) against his Honour's dismissal of the charge on the following grounds: (i) Failing to conduct the proceedings in accordance with the requirements of s 202(1) of the Criminal Procedure Act 1986. (ii) Excluding evidence from the proceedings without identifying the evidence excluded or the basis for the exclusion. (iii) Failing to provide adequate reasons for excluding the evidence or for dismissing the proceedings. (iv) Excluding evidence from the proceedings and dismissing the proceedings.

The facts

The following narrative is derived from the evidence relied on by the police prosecutor in the Local Court, which comprised the statements of Senior Constable Katherine Carey and Senior Constable Steven Holmes.
At about 1.40am on 10 May 2014, Senior Constable Carey and Senior Constable Holmes saw the defendant's car drive over a gutter on the way out of the car park of the West Wyalong Sports and Citizens Club. They followed the car, which drifted across the centre line of the road and returned to the correct side a number of times. They stopped the car to conduct a random breath test. The defendant returned a positive reading of 0.160g/210L of breath.
Senior Constable Carey noticed that the defendant's speech was slow; his words were slurred and he smelled of alcohol. Her evidence of her conversation with the defendant at the roadside was as follows: "I said, 'Hi. You've been stopped for the purpose of a random breath test. Have you had any alcohol to drink?' The accused replied, 'Yeah, I'm gone.' I said. 'How long ago was your last drink?' The accused replied, 'I'm gone.' I said, 'Can you remember how long ago since you had your last alcoholic drink?' The accused replied, 'At the club' I said, 'Ok, can you remember what time you had your last drink?' The accused said, 'I'm gone, you've got me.' … I said to the accused, 'Ok as I said you've been stopped for the purpose of a random breath test. I now require you to undergo a breath test for the purpose of indicating the concentration of alcohol present in your blood. I now direct you to blow air from your lungs into this device until I tell you to stop. Failure to comply with this direction is an offence.' [The breath test was then administered and the defendant produced his licence] I said to the accused, 'James. You've returned a positive roadside reading. You are under arrest and will be taken to West Wyalong Police Station for a breath analysis'."
When the defendant got out of the car he was unable to stand unsupported. Senior Constable Holmes described him as being "very unsteady on his feet". He, too, noticed that the defendant smelled of alcohol.
The officers, both of whom considered the defendant to be affected by alcohol, took him to the West Wyalong Police Station for breath analysis. Senior Constable Holmes administered a formal caution. When he asked the defendant whether he suffered from any illnesses or injuries, the defendant responded "Asperger's". The defendant refused to nominate a next of kin.
Senior Constable Holmes read a form of demand which referred to a requirement that the defendant provide a sample pursuant to the Road Transport (Safety and Management) Act 1999 (NSW) (the 1999 Act). At the time of the demand, the 1999 Act had been repealed and replaced by the Road Transport Act 2013 (NSW) (the 2013 Act).
None of the defendant's three attempts to submit a sample of his breath was successful: the first was analysed as "blowing too softly"; the second as "insufficient sample"; and the third as "alcohol in mouth". The defendant was told that he had either refused or failed to submit a breath analysis in accordance with Senior Constable Holmes' direction. He responded, "What did I do wrong though, I'm not real good at practising this sort of stuff". He refused to have a doctor examine him to take blood samples. He asked for someone to come to collect him from the police station. He was informed that he would receive a Court Attendance Notice (CAN) and was released.
In the CAN, it was alleged that, contrary to s 112(1)(a) of the 2013 Act, between 1.45am and 3.05am on 10 May 2014 at West Wyalong the defendant did drive a vehicle under the influence of alcohol.

The 2013 Act

Section 112 of the 2013 Act relevantly provides: "Use or attempted use of a vehicle under the influence of alcohol or any other drug (1) A person must not, while under the influence of alcohol or any other drug: (a) drive a vehicle, . . ."
Schedule 3 of the 2013 Act relevantly provides: "3 Power to conduct random breath testing (1) A police officer may require a person to submit to a breath test in accordance with the officer's directions if the officer has reasonable cause to believe that: (a) the person is or was driving a motor vehicle on a road, or (b) the person is or was occupying the driving seat of a motor vehicle on a road and attempting to put the motor vehicle in motion, or (c) the person (being the holder of an applicable driver licence) is or was occupying the seat in a motor vehicle next to a learner driver while the driver is or was driving the vehicle on a road. (2) Before requiring a person to submit to a breath test under subclause (1), and for the purpose of determining whether to conduct such a test, a police officer may conduct a preliminary assessment to determine if alcohol is present in the person's breath by requiring the person to talk into a device that indicates the presence of alcohol. (3) Without limiting any other power or authority, a police officer may, for the purposes of this clause, request or signal the driver of a motor vehicle to stop the vehicle. (4) A person must comply with any request or signal made or given to the person by a police officer under subclause (3). . . . 4 Arrest following failed breath test (1) A police officer may exercise the powers referred to in subclause (2) in respect of a person if: . . . (c) it appears to the officer from a breath test carried out under clause 3 (1) by the officer that the device by means of which the test was carried out indicates that there may be present in the person's breath or blood a concentration of alcohol of not less than 0.05 grams in 210 litres of breath or 100 millilitres of blood, or (d) the person refused to submit to a breath test required by a police officer under clause 3 (1) or fails to submit to that test in accordance with the directions of the officer. (2) A police officer may: (a) arrest a person referred to in subclause (1) without warrant, and (b) take the person (or cause the person to be taken) with such force as may be necessary to a police station or such other place as the officer considers desirable, and (c) detain the person, or cause the person to be detained, at that police station or other place for the purposes of submitting to a breath analysis in accordance with this Division, and . . . 5 Breath analysis following arrest (1) A police officer may require a person who has been arrested under clause 4 to submit to a breath analysis in accordance with the directions of the officer. (2) A breath analysis must be carried out by a police officer authorised to do so by the Commissioner of Police at or near a police station or such other place as that officer considers desirable. (3) As soon as practicable after a person has submitted to a breath analysis, the police officer operating the breath analysing instrument must deliver a written statement to that person signed by that officer specifying the following: (a) the concentration of alcohol determined by the analysis to be present in that person's breath or blood and expressed in grams of alcohol in 210 litres of breath or 100 millilitres of blood, (b) the day on and time of the day at which the breath analysis was completed. . . . 31 Evidence of alcohol concentration in proceedings for offences against section 110 (1) This clause applies to any proceedings for an offence against section 110 (Presence of prescribed concentration of alcohol in person's breath or blood). (2) Evidence may be given in proceedings to which this clause applies of the concentration of alcohol present in the breath or blood of the person charged as determined by: (a) a breath analysis carried out by a police officer authorised to do so by the Commissioner of Police, or (b) an analysis of the person's blood under this Schedule. (3) In any such proceedings, the concentration of alcohol so determined is taken to be the concentration of alcohol in the person's breath or blood at the time of the occurrence of the relevant event referred to in clause 3 (1) (a), (b) or (c) if the breath analysis was made, or blood sample taken, within 2 hours after the event unless the defendant proves that the concentration of alcohol in the defendant's breath or blood at the time concerned was: . . . (c) in the case of an offence against section 110 (3) - less than 0.05 grams of alcohol in 210 litres of breath or 100 millilitres of blood, or . . . 40 Double jeopardy in relation to alcohol and other drug offences (1) A person is not liable to be convicted of both an offence against section 112 (1) and a related alcohol or drug offence if the offences arose directly or indirectly out of the same circumstances. (2) A person who: (a) is required by a police officer to submit to a breath test by reason of the occurrence of an event referred to in clause 3 (1) (a), (b) or (c) and, as a consequence, to submit to a breath analysis or to provide a sample of the person's blood under Division 2 of Part 2, and (b) submits to the breath analysis in accordance with the directions of a police officer, or to the taking of a blood sample in accordance with the directions of an authorised sample taker, cannot be charged with any of the following offences against section 112 (1): (c) the offence of driving a motor vehicle, at the time of that event, while the person was under the influence of alcohol, (d) the offence of occupying the driving seat of a motor vehicle and attempting to put such motor vehicle in motion, at the time of that event, while the person was under the influence of alcohol. . . . (4) In this clause: related alcohol or drug offence means an offence against any of the following provisions: (a) section 110 [presence of prescribed concentration of alcohol in driver's breath or blood], (b) section 111 [presence of certain drugs in driver's bodily fluids], (c) clause 16 [refusal or failure to submit to test or analysis], (d) clause 17 [refusal or failure to provide samples], (e) clause 18 [wilful introduction or alteration of concentration]."

Law Enforcement (Powers and Responsibilities) Act 2002

Part 9 of LEPRA

Part 9 of LEPRA is entitled "Investigations and Questioning" and relevantly contains ss 111, 112 and 113. Section 111 of LEPRA relevantly provides: "Persons to whom Part applies (1) This Part applies to a person, including a person under the age of 18 years, who is under arrest by a police officer for an offence. It is immaterial whether the offence concerned was committed before or after the commencement of this Part or within or outside the State."
Section 112 of LEPRA relevantly provides: "Modification of application of Part to certain persons (1) The regulations may make provision for or with respect to the modification of the application of this Part to: . . . (d) persons who have a disability (whether physical, intellectual or otherwise)."
Section 113 of LEPRA relevantly provides: "Effect of Part on other powers and duties (1) Existing powers relating to arrest and other mattersThis Part does not: . . . (b) prevent a police officer from asking or causing a person to do a particular thing that the police officer is authorised by law to ask or cause the person to do (for example, the power to require a person to submit to a breath analysis under Division 2 of Part 2 of Schedule 3 to the Road Transport Act 2013), or …"

Part 15 of LEPRA

Section 201 of LEPRA is contained in Part 15, which is entitled "Safeguards relating to powers". Section 201(1) of LEPRA (as in force at the relevant time) imposed various obligations on police officers to provide his or her name, place of duty and the reason for the exercise of power to the person who is the subject of the exercise of power, including when exercising the power to arrest a person: s 201(3). Section 201(6) expressly excluded the section from the exercise of a power conferred by an Act or regulation specified in Sch 1. The 2013 Act was specified. Accordingly, s 201 did not apply where the arrest was for the purposes of the person submitting to a breath analysis pursuant to cl 4(2) of Sch 3 of the 2013 Act.

The power of arrest under s 99 of LEPRA

The power of arrest conferred by cl 4(2) of Sch 3 of the 2013 Act is to be distinguished from the power conferred by s 99 of LEPRA (which is contained in Part 8) which relevantly provides: "Power of police officers to arrest without warrant (1) A police officer may, without a warrant, arrest a person if: (a) the police officer suspects on reasonable grounds that the person is committing or has committed an offence, and (b) the police officer is satisfied that the arrest is reasonably necessary for any one or more of the following reasons: (i) to stop the person committing or repeating the offence or committing another offence, (ii) to stop the person fleeing from a police officer or from the location of the offence, (iii) to enable inquiries to be made to establish the person's identity if it cannot be readily established or if the police officer suspects on reasonable grounds that identity information provided is false, (iv) to ensure that the person appears before a court in relation to the offence, (v) to obtain property in the possession of the person that is connected with the offence, (vi) to preserve evidence of the offence or prevent the fabrication of evidence, (vii) to prevent the harassment of, or interference with, any person who may give evidence in relation to the offence, (viii) to protect the safety or welfare of any person (including the person arrested), (ix) because of the nature and seriousness of the offence. . . . (3) A police officer who arrests a person under this section must, as soon as is reasonably practicable, take the person before an authorised officer to be dealt with according to law. (4) A person who has been lawfully arrested under this section may be detained by any police officer under Part 9 for the purpose of investigating whether the person committed the offence for which the person has been arrested and for any other purpose authorised by that Part. . . ."

Law Enforcement (Powers and Responsibilities) Regulation 2005 (NSW) (LEPRR)

Regulation 24(1)(b) of LEPRR relevantly defines vulnerable persons as persons who have impaired intellectual functioning. Clause 24(2) provides: "Pursuant to section 112 (1) of the Act, the application of Part 9 of the Act to vulnerable persons is modified by this Division."
Division 3 of the LEPRR includes various provisions for support persons to be present where police are taking particular steps in relation to vulnerable persons, as defined in cl 24(1).

Criminal Procedure Act 1986 (NSW)

Section 38 of the Criminal Procedure Act provides: "Hearing procedures to be as for Supreme Court In any proceedings for an offence (other than in the Supreme Court for an indictable offence), the procedures and practice for the examination and cross-examination of witnesses, and the right to address the court on the case in reply or otherwise, are, as far as practicable, to be conducted in accordance with Supreme Court procedure for the trial of an indictable offence."
Section 202 of the Criminal Procedure Act relevantly provides: "202 Determination by court (1) The court must determine summary proceedings after hearing the accused person, prosecutor, witnesses and evidence in accordance with this Act. (2) The court may determine the matter by convicting the accused person or making an order as to the accused person, or by dismissing the matter. . . ."

Evidence Act 1995 (NSW)

Section 137 of the Evidence Act provides: "Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant."
Section 138(1) of the Evidence Act provides: "Exclusion of improperly or illegally obtained evidence (1) Evidence that was obtained: (a) improperly or in contravention of an Australian law, or (b) in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained."

The Local Court hearing

The defendant pleaded not guilty to the charge. At the commencement of the hearing at the Local Court at West Wyalong on 30 January 2015 Mr Hutchings, who appeared on behalf of the defendant, informed the Court that it had been agreed that the Police brief would be tendered on the voir dire; admissibility of certain portions of evidence would be the subject of argument; rulings would then be made; and argument would then proceed on the basis of evidence admitted.
The police prosecutor tendered on the voir dire the statements of Senior Constable Carey (to which was annexed the custody management record) and Senior Constable Holmes (to which the records of unsuccessful attempts at breath analysis were annexed). The statements included descriptions of the officers' observations of the defendant's driving, his demeanour at the roadside and his conversations with them set out above.
Counsel for the defendant then made submissions to the Magistrate, including the following: 1. Part 9 of LEPRA was applicable as the defendant was under arrest; 2. The defendant suffered from Asperger's and was, accordingly, a vulnerable person within the meaning of cl 24 of LEPRR; 3. He was not provided with a support person as required by Part 9 of LEPRA, as modified by Division 3 of the LEPRR; 4. The 1999 Act had been repealed at the time of the alleged offence; and accordingly the demand made of him at the police station to provide a sample was not in accordance with the 2013 Act in that it referred to a repealed Act;
Mr Hutchings contended that: 1. the roadside breath analysis was inadmissible without further testing or record and that it ought, in any event, be excluded pursuant to s 137 of the Evidence Act because its probative value was outweighed by the danger of unfair prejudice to the defendant; 2. as a vulnerable person, the defendant was entitled at all times to have a support person present while he was required to provide a breath sample; 3. the failure to comply with cl 24 of the LEPRR (and, in particular, the failure to provide a support person) ought result in the evidence of what occurred at the police station when the defendant attempted to provide a sample being excluded pursuant to s 138 of the Evidence Act as being improperly obtained; and 4. the alcometer testing carried out at the police station ought accordingly be rejected.
Mr Hutchings submitted that, if his contentions were accepted, the police evidence would comprise "some subjective descriptions of the manner in which [the defendant] drove his motor vehicle and some observations of him after he ceased driving his motor vehicle". The Magistrate responded: "that is what it usually comes down to in a driving under the influence charge, isn't it?" Mr Hutchings agreed but contended that, because of the defendant's "overwhelming condition", which is "debilitating in its effect on him", the Magistrate would not be able to draw the inference that he was driving while intoxicated.
The police prosecutor submitted on the voir dire: 1. The police had given the defendant an approved breath test; 2. The defendant was arrested for the purposes of breath analysis and not for an offence and therefore the custody requirements of LEPRA did not apply; 3. The defendant was told, correctly, that he would be taken back to West Wyalong police station for a breath analysis; 4. Even if the custody requirements did apply, they did not apply until the defendant arrived at the police station; 5. The defendant did not disclose that he had Asperger's until he was asked various questions about his health at the police station and therefore there was no basis for suggesting that he was known to be a vulnerable person prior to that time; 6. Although the form of demand read to the defendant at the police station referred to the 1999 Act, it was substantially the same as the wording provided for in the 2013 Act, which, in any event, was not mandated by the 2013 Act; 7. The offence of driving under the influence, with which the defendant was charged, was based on observations at the scene; the custody manager's observations; and the defendant's responses to questions about his alcohol consumption.
The police prosecutor also submitted that the police officers' observations were not based on anything to do with a reading and that there was a "case to answer in relation to the s 138 argument" on the basis of "the probative value versus the prejudicial effect of the custody versus vulnerability". The police prosecutor contended that the probative value of the evidence outweighed its prejudicial effect.
In response counsel for the defendant submitted that, as soon as the defendant had informed the officers that he suffered from Asperger's, police were obliged to arrange for a support person to be present and to consider the effects of his condition on their interaction. In support of this submission, Mr Hutchings tendered some medical reports which became Exhibit 2 on the voir dire. The reports indicated that, as a result of Asperger's, the defendant had difficulties not only in communicating but also in processing information from others. The reports also contained an indication that he might have had difficulty following instructions at the police station.
His Honour then canvassed, with counsel for the defence, what the police ought to have done when they became aware that the defendant was a vulnerable person and whether the defendant's demeanour could also be attributed to alcohol. Mr Hutchings accepted that "objectively" there was a degree of intoxication. His Honour responded that "it comes down to that narrow provision" in LEPRA, which he described as a "troublesome piece of legislation in many respects, for both sides".
The police prosecutor, in reply, reiterated his earlier submission that the defendant was not in custody for an offence; rather that he had been arrested for the purposes of a breath analysis. The prosecutor referred to s 113 of LEPRA in support of a submission that the police were entitled to do what they did, since Part 9 related to a person in custody who had been arrested for an offence, rather than, as in the present case, a person who had been brought back to the police station to undertake breath analysis pursuant to cl 4(2) of Sch 3 of the 2013 Act. The prosecutor submitted that the evident purpose of s 113 was to ensure that compliance with Part 9 did not delay the obtaining of a sample for the purposes of analysis within two hours of the defendant driving the vehicle (which I take to be a reference to the deeming provision in cl 31 of Sch 3 of the 2013 Act, set out above).
His Honour observed that a person who is arrested and taken to the station for the purposes of submitting to a breath analysis "will be charged with something". The prosecutor accepted that proposition but repeated his contention that "he's not under arrest for that purpose". His Honour responded by describing the argument as "a very fine distinction" and a "nice try on".
The police prosecutor reminded the Magistrate that the case was based on what happened and the observations of the police of the defendant. He submitted that the only relevance of Part 9 of LEPRA was to the "double jeopardy clause" (which I take to be a reference to cl 40, Sch 3 of the 2013 Act).
Magistrate Dare invited a response from defence counsel, who submitted that cl 24 of LEPRR modified the whole of Part 9 of LEPRA in relation to custody. The police prosecutor then contended that what occurred at the station was not relevant (except as to double jeopardy) as the charge was driving under the influence of alcohol rather than fail or refuse breath analysis.
Magistrate Dare responded as follows: "I accept that. It is a technical argument that is raised by the defence, it is a technical defence that is raised by the defence but that does not deprive it of its legitimacy. Factually I accept all that I have heard and I hear and understand your submissions. It is a technical point that has been technically taken but it is not to be criticised simply for that. That is what so many of these arguments in the law are all about."
His Honour then purported to deliver reasons and make a final order as follows: "I think s 24 [sic, cl 24] of the regulations specifically provides - it refers specifically to its applicability to s 99 [sic, Part 9], so your s 99 [sic, Part 9] is validly made but for s 24 [sic, cl 24] of the regs point. I do not think it is necessary to go into - I have got the benefit of all the things here, I would be inclined in the exercise of my discretion to exclude the evidence because of that very narrow - I mean, I have my own feelings about it. If I was looking strictly at the facts of it - and no doubt what common sense cries out to be done, but the point is validly taken and validly made and I accept your submissions. Not without some misgivings I find the defendant not guilty. Don't drink and drive again, Mr Ridley, will you?"

The appeal

It is common ground that the appeal ought be allowed and the matter remitted for determination according to law. Because there is a degree of overlap between particular grounds I propose to address the errors of law which I consider were made by the Magistrate.
The starting point is s 38 of the Criminal Procedure Act, which requires proceedings for an offence, which include summary proceedings in the Local Court, to be conducted in accordance with the procedure in this Court for the trial of an indictable offence. Section 201 of the Criminal Procedure Act, as set out above, is also relevant and provides for a right to be heard as well as for the determination of the matter.

The voir dire

The Magistrate was asked by the parties to determine the admissibility of the police brief, which was constituted by the statements of Senior Constables Carey and Holmes, on the voir dire. In order to fulfill this task, his Honour was obliged to: 1. invite defendant's counsel to identify, in respect to each part of the evidence objected to, the basis for the objection; 2. obtain, where relevant, information from the prosecutor as to the purpose of the tender; 3. hear submissions from both parties as to each objection; 4. if s 137 of the Evidence Act applied, identify the probative value and the prejudicial effect, weigh them and decide whether the probative value is outweighed by the prejudicial effect thereby leading to the exclusion of the evidence; or whether it is not, thereby leading to the admission of the evidence and give sufficient reasons to explain the ruling: R v Harker [2004] NSWCCA 427 at [47] per Howie J, Santow JA and Bell J agreeing; see also R v Blick [2000] NSWCCA 61 at [19]- [20] per Sheller JA; 5. if s 138 of the Evidence Act applied, address the alleged illegality or lack of propriety as referred to in s 138(1) and s 138(2); take into account the matters referred to in s 138(3) and undertake an "evaluative and balancing exercise" (Beckett v R [2014] NSWCCA 305 at [68] per Beazley P, R A Hulme and Bellew JJ agreeing; see also Varty v Director of Public Prosecutions (NSW) [2015] NSWSC 304 at [37]- [38] per Adamson J) before making a ruling and giving reasons for such ruling; 6. make a ruling on the admissibility of evidence objected to, either by admitting it, rejecting it, or admitting it for limited purposes; and 7. give reasons for each ruling in sufficient detail to deal with the objection.
In the present case his Honour failed to require defence counsel to identify with particularity the parts of the evidence objected to and failed to make any ruling on those parts of the evidence. His Honour's reasons included an omnibus ruling which did not differentiate between parts of the evidence or the different bases on which objection was taken. His Honour also failed to give reasons for the ruling. His Honour omitted all the steps referred to above as being required in a voir dire, other than to make a decision to exclude the (unspecified) evidence. The reasons his Honour gave were both insufficient and incomprehensible. The hearing was not one that was conducted as required by law.
Having regard to the submissions of the parties in the Local Court, his Honour was obliged to do the following on the voir dire.

The defendant's objection to the road side breath test

The Magistrate was obliged to ascertain on what basis the evidence of the road side breath test was tendered. There were potentially two bases on which it was relevant: 1. to establish, by reference to the results of the test (a positive reading of 0.160g/210L of breath), that the defendant was intoxicated while he was driving the vehicle; and 2. to establish that the defendant's arrest and conveyance to the police station for the purposes of breath analysis was lawful under cl 4(2) of Sch 3 of the 2013 Act.
The relevance of basis (1) to proof of the offence charged is plain. The only relevance of basis (2) was to establish that cl 40 of Sch 3 of the 2013 Act did not prevent the defendant's being charged for an offence against s 112 of the 2013 Act. While s 137 of the Evidence Act would be engaged if the evidence were tendered on basis (1), it would not be if the evidence were tendered on basis (2). The argument that the roadside breath test ought be excluded on the ground that its probative value was outweighed by its prejudicial effect depended on the results of the test being relied on to establish intoxication, rather than as part of the narrative which led to the breath analysis at the police station to establish that cl 40(2) did not prevent the charge being laid.
It appears from the transcript that the prosecutor was relying on the road side breath test as an "indicator" and then submitted that it led to the defendant's being arrested for the purposes of breath analysis (at the police station). Accordingly, it would seem (although it is not entirely clear) that the prosecutor was relying on the road side breath test only on basis (2).
The Magistrate erred in law in failing to confirm the basis on which the evidence was tendered and in failing to address the objection following that confirmation. If s 137 applied (because basis (1) was relied upon), his Honour erred in failing to identify the probative value of such evidence and its prejudicial effect and in failing to give reasons for considering that the probative value of the evidence was outweighed by its prejudicial effect. If the evidence was tendered solely on basis (2), his Honour could have admitted the evidence but confined its use to proof of what occurred at the police station for the purposes of cl 40 of Sch 3 of the 2013 Act.

The defendant's objection to evidence of what occurred at the police station

The Magistrate was obliged to ascertain the purpose of the tender of evidence of what occurred at the police station. There were potentially two purposes: 1. To show that the defendant was intoxicated at the police station and, accordingly, that he had been intoxicated while driving, since he had not consumed alcohol in the interim; or 2. As part of the narrative to show that cl 40 of Sch 3 of the 2013 Act did not prevent the defendant's being charged for an offence against s 112(1)(a) of the 2013 Act.
The police prosecutor confirmed on a number of occasions in the course of the hearing that the only purpose of the tender of evidence relating to what occurred at the police station was related to "double jeopardy"; in other words, to whether the defendant could be charged with the offence against s 112(1)(a) of driving while under the influence. Absent a concession by the defendant (and no such concession is evident from the transcript), it was necessary for the police prosecutor to establish that the defendant could lawfully be charged with an offence against s 112(1) because he did not fall within the prohibition in cl 40(2) of Sch 3 of the 2013 Act. This involved proving, in the present case, that, although the defendant had been required to submit to a breath test, and, as a consequence, to submit to a breath analysis (cl 40(2)(a) of Sch 3 of the 2013 Act), he did not submit to the breath analysis in accordance with the directions of a police officer (cl 40(2)(b) of Sch 3 of the 2013 Act). Indeed, in the present case, there was no breath analysis at all.
I reject Mr Hutchings' submission in this Court that "the only relevant evidence" was what occurred at the road side, since this submission fails to take account of the need for the prosecutor to prove the matter set out above (that the defendant could be charged with an offence against s 112(1)(a)), absent a concession.
In these circumstances, his Honour failed to appreciate that, even if Part 9 of LEPRA otherwise applied, the alleged failure to comply with Part 9 was irrelevant in light of the limited purpose for which the evidence was tendered. There was, accordingly, no need to consider the exercise of the discretion to exclude improperly obtained evidence under s 138 of the Evidence Act.

The defendant's objection to evidence of the demand made of the defendant at the police station that he provide a sample of breath for analysis

There was evidence that the demand made of the defendant at the police station referred to the 1999 Act, rather than the 2013 Act. In order to deal with the defendant's submissions that evidence ought be excluded on that basis, it was necessary for the Magistrate to ascertain the purpose of the tender of evidence of the demand and the effect of the repealed legislation being identified. Since no samples were obtained following the demand, there was no basis for a submission that any samples had been unlawfully obtained and ought therefore be excluded in the exercise of the discretion under s 138 of the Evidence Act. I have been unable to identify any other relevant basis for the tender of the evidence, apart from the purpose of establishing the narrative of what occurred at the police station for the purposes of cl 40 of Sch 3 of the 2013 Act.
I have been unable to identify what ruling, if any, the Magistrate made concerning the demand for the sample and what effect it had on his Honour's decision.

The obligations of counsel on a voir dire

The obligations of counsel with respect to the admissibility of evidence were summarised in the following passage (footnotes omitted) from Cross on Evidence at [1645], (cited with approval in Adamson v Ede [2009] NSWCA 379 at [97] per Campbell JA, Giles and Hodgson JJA agreeing): "It is common for most evidence in a trial to be tendered without objection and without debate about its admissibility. If a doubt arises, counsel should make it clear that a tender or question is pressed. Hence, not infrequently, when a question is asked by one party's counsel and the other says 'I object', the first says either 'I press it' or 'I withdraw it'. If the tender or question is pressed, its legitimacy may then be considered. In short, it is necessary that a party's counsel protect the party's interests in relation to an appeal by 'formally' tendering the evidence and obtaining a judicial ruling on it. When inadmissible evidence is tendered, or a question is asked which may elicit inadmissible evidence, it is the duty of counsel who opposes its reception to object at once. . . . The objection should be made with precision, both as to what is objected to and (if the court requires it) what the specific grounds of objection are. The tendering party should be equally specific. 'It is for a party tendering evidence to make clear to the trial judge the purpose for which the evidence is tendered and how it becomes relevant and admissible'."
The obligations on counsel correspond, in large measure, with the correlative duties of the judicial officer to identify the purpose of the tender of evidence; the basis of the objection (and whether the objection is confined to its use for a particular purpose); and any relevant discretion.
In the present case, the scope and basis for the objections were not, in my view, made sufficiently clear to the Magistrate by counsel for the defendant. Although the prosecutor on a number of occasions properly identified the relevance of the evidence and the purpose of its tender (particularly in relation to cl 40 of Sch 3 of the 2013 Act), the gravamen of the prosecutor's statements does not appear to have been appreciated by the Magistrate, or taken into account by counsel for the defendant. These matters do not lessen the gravity of the errors of law made by the Magistrate on the voir dire. Nonetheless they illustrate the importance of counsel discharging the duties set out above for the purposes of assisting the Court to perform its functions.
I do not, however, suggest that counsel was in any way implicated in the Magistrate's decision to roll up the voir dire with the hearing of the proceedings and skip over the various steps set out below that were required to be taken to hear and determine the proceedings according to law.

The hearing of the proceedings

Upon completion of the voir dire his Honour was obliged, having ascertained that the defendant did not plead guilty to the offence charged, to hear and determine the matter: s 194 of the Criminal Procedure Act. This required the Magistrate to comply with s 195 of the Criminal Procedure Act, which provides for the way in which evidence is to be taken, and s 202 of the Criminal Procedure Act, which provides for the determination of the matter.
The hearing and determination of the matter required the Magistrate to take the following steps: 1. inviting the police prosecutor to adduce in the proceedings such of the evidence as had been admitted following the voir dire (including tender of documents and examination and cross-examination of witnesses, as required by s 195 of the Criminal Procedure Act); 2. inquiring whether there was any further evidence on which the prosecution relied and dealing with any such further evidence; 3. confirming that the prosecution had closed its case (Director of Public Prosecutions v Wunderwald [2004] NSWSC 182 at [23] per Sully J); 4. asking the defence counsel whether he submitted that there was no case to answer: Director of Public Prosecutions v Wunderwald at [24] per Sully J; 5. if so, determining whether there was a prima facie case on the basis of the principles in May v O'Sullivan (1955) 92 CLR 654 at 658; 6. if a finding was made that there was a prima facie case (or if there is no submission that there is no case to answer), inviting defendant's counsel to tender any evidence in the defendant's case: Director of Public Prosecutions v Wunderwald at [26]- [27] per Sully J; 7. inquiring whether there was any prosecution evidence in reply and, if so, hearing that evidence; 8. hearing closing submissions; 9. making a decision, on the basis of the evidence that had been admitted, whether the prosecution had proved its case beyond reasonable doubt and, accordingly, whether to convict the person or to dismiss the charge (s 202 of the Criminal Procedure Act); 10. giving sufficient, comprehensible reasons for the decision and making orders accordingly; and 11. complying with the provisions of the Criminal Procedure Act relating to making a record of conviction or issuing a certificate of an order for dismissal.
The Magistrate wholly failed to undertake any of steps (1) - (8). His Honour purported to undertake step (9) by excluding all the evidence (including that to which no objection had been taken) and dismissing the charge. As to step (10) his Honour's reasons were manifestly inadequate to explain what his Honour had done, or why he had done it. The fundamental errors of law included a failure to accord procedural fairness to the prosecution since the Magistrate dismissed the charge without hearing from the prosecutor.
Ms Davidson, who appeared on behalf of the plaintiff, submitted that one possibility was that the Magistrate ought be regarded as having dismissed the charge on the basis that his Honour found that there was no case to answer. She referred to Director of Public Prosecutions (NSW) v Wililo [2012] NSWSC 713, in which Johnson J construed the decision appealed from as a decision to dismiss the charge on the basis that there was no prima facie case. I do not consider that it is possible to construe the Magistrate's decision in the present case in that way. Indeed, I do not understand Mr Hutchings to have made a no case submission in the Local Court. He appears to have accepted that there would be evidence (to which no objection was taken) of the officers' observations of the defendant's demeanour and his manner of driving the car before he was stopped and required to undertake the breath test. There was no submission that this evidence, taken at its highest, was incapable of establishing every element of the offence charged. Indeed, the time for making such a submission had not arrived since the whole of the proceedings concerned the voir dire.
Even if this was, contrary to my view, what the Magistrate thought he was doing, he was in error in failing to make specific rulings on the evidence objected to; in failing to take into account the evidence to which no objection had been made, as well as the evidence that had been allowed; in failing to hear from the parties on the question; and in failing to set out in his reasons what he was doing or the basis for his decision.

The individual grounds of appeal

For reasons set out above, I am satisfied that the order made by the Magistrate must be set aside and the matter remitted to be determined according to law. It is, however, necessary for me to address the individual grounds of appeal, which I propose to do largely by reference to the reasons I have already given.

Ground 1: failure to comply with s 202(1) of the Criminal Procedure Act

For the reasons given above, this ground has been made out.

Ground 2: excluding evidence without identifying which evidence was excluded or the basis for the exclusion

For the reasons given above, this ground has been made out.

Ground 3: failing to provide adequate reasons for excluding the evidence or for dismissing the proceedings

For the reasons given above, this ground has been made out in both respects. While the application of s 138 of the Evidence Act was not fully argued in the Local Court, counsel for the defendant referred to the exclusion of evidence that was said to be "improperly obtained" on the bases: first, of alleged failure to comply with Part 9 of LEPRA as modified by reason of the defendant's status as a vulnerable person under cl 24 of LEPRR; and, secondly, by reason of the circumstance that the 1999 Act was referred to. The Magistrate referred several times to a "technical point" having been made by reference to cl 24, which indicated that his Honour considered that some of the evidence relied on by the prosecution was obtained improperly or in contravention of LEPRA. If some of the evidence objected to was excluded on the basis of s 138 of the Evidence Act, his Honour failed to comply with the section (which included a failure to address the mandatory relevant considerations in s 138(3)) and failed to give adequate reasons for his decision (including failing to identify the evidence excluded on that basis).
His Honour also failed to give sufficient reasons for dismissing the proceedings and therefore the second aspect of ground 3 has been made out. However, in the circumstances of the present case, no reasons, however detailed, could have justified the dismissal of the proceedings before the Magistrate had undertaken the steps set out above. His Honour had neither identified what evidence had been excluded (much less what remained), nor enquired of Mr Hutchings whether he accepted that there was a case to answer.

Ground 4: excluding evidence from the proceedings and dismissing the proceedings

For the reasons given above, this ground has been made out in so far as it alleges that the Magistrate erred in excluding evidence from the proceedings. It has also, for reasons already given, been made out in so far as it alleges that the Magistrate dismissed the proceedings. His Honour, as set out above, failed to accord procedural fairness to the prosecutor, and failed to undertake the steps set out above.
Moreover, the Magistrate's reasons failed to address in any way the evidence of the police officers to which no objection was taken. There was no consideration of whether this evidence amounted to a case to answer (even if it were contended that it did not) or whether it was sufficient to discharge the onus.
Even if all evidence of observations of the defendant by the officers at the police station had been excluded, the balance of the evidence of both Senior Constable Carey and Senior Constable Holmes was not objected to. This evidence comprised their observations of: the defendant's erratic driving of his vehicle, including across centre lines; the smell of liquor when close to the defendant; the defendant's slurred words and difficulty balancing; and Senior Constable Carey's evidence of her conversation with the defendant at the time of conducting the random breath test. Not only their observations but also their impressions that the defendant was intoxicated were admissible: R v Whitby (1957) 74 WN (NSW) 441. Counsel for the defence accepted that the observations made by the police officers were not in dispute, and acknowledged there was no dispute that the defendant was driving the vehicle, as well as that there was "a degree of intoxication". There was, accordingly, evidence capable of making out the elements of the offence, which could not reasonably be regarded as "inherently incredible" (see Haw Tua Tua v Public Prosecutor [1982] 1 AC 136 at 151). If this evidence was accepted the defendant could have been lawfully convicted of the offence charged.
Therefore, even if (contrary to the view I have expressed above) his Honour is to be understood as having determined that there was no case to answer, his Honour was in error in so finding and erred in dismissing the proceedings.

Additional question: whether Part 9 of LEPRA applied

The question whether Part 9 of LEPRA applied to the defendant was relevant to the appropriate costs order in these proceedings, as set out below.
Mr Hutchings submitted in the Local Court that Part 9 of LEPRA applied in its modified form because the defendant was a "vulnerable person". He contended that the police were in breach of Part 9 because they did not provide a support person for the defendant at the police station (if not earlier) before requiring that he submit a sample for breath analysis. In the Local Court, the prosecutor submitted that Part 9 of LEPRA did not apply because the defendant was arrested by police under the power conferred by cl 4(2) of Sch 3 of the 2013 Act. The Magistrate appears to have accepted Mr Hutchings' submissions.
In this Court Mr Hutchings accepted that the defendant was lawfully arrested pursuant to cl 4(2) of Sch 3 of the 2013 Act. However, he contended that the real reason for the defendant's arrest may have been "for an offence" and that he was therefore entitled to the protections afforded by Part 9 of LEPRA to "vulnerable persons". He accepted that he had not put the argument in that way before the Local Court and contended that the time for the determination of that question had not arisen since the police officers had not yet been called to give evidence and he had not yet had an opportunity to cross-examine them about the purpose of the arrest.
Ms Davidson contended that there was no evidence before the Magistrate that the defendant was under arrest for an offence. She submitted that the construction of cl 4(2) of Sch 3 of the 2013 Act, cl 24 and Part 9 of LEPRA (as modified in Division 3 of LEPRR) for which Mr Hutchings contended in this Court would be at odds with the plain meaning of the statutory words and, in particular, s 113(1)(b) of LEPRA. She also submitted that such a construction would tend to defeat the purpose of Sch 3 of the 2013 Act, and thwart the operation of the deeming provisions (in cl 31 of Sch 3 of the 2013 Act). Ms Davidson further contended that, in any event, no provision of Part 9 would apply to the road side breath test or to any part of the evidence prior to the arrival of the defendant at the police station.

Costs

The plaintiff sought an order for costs on the following three bases: 1. The ordinary principle that costs ought follow the event; 2. The defendant's counsel contributed to the Magistrate's errors by propounding an interpretation of LEPRA which was erroneous; and 3. The timing of the concession that the appeal ought be allowed (which was made only a few days before the hearing date).
The defendant resisted the costs order and submitted that the construction of LEPRA for which he contended was arguable and its correctness ought not be determined in the present appeal because it was not argued below. Mr Hutchings also submitted that, as the defendant has Asperger's, the delay in making the concession could be seen to arise, at least in part, from the difficulties encountered in obtaining instructions.
I do not propose to express a view on whether Mr Hutchings' contention concerning Part 9 of LEPRA is arguable since the point was not raised before the Magistrate and I consider that, irrespective of the merits of this point, the defendant ought pay the plaintiff's costs of the proceedings.
On 1 October 2015, the defendant filed detailed written submissions in which Mr Hutchings sought to defend the Magistrate's decision and contended that none of the appeal grounds was made out. In the written submissions Mr Hutchings contended that the Magistrate had "plainly excluded all of the police brief" and that his Honour was entitled to do so. This submission was made, notwithstanding that, in the Court below, he had not objected to the police statements in so far as they related to road side events and had conceded that the defendant had been driving and that there was some degree of intoxication. Mr Hutchings also submitted in writing that: "It is plain that that evidence [the evidence of the officers] was not capable of sustaining a verdict of guilty" even though he must have appreciated that the proceedings had only reached the voir dire stage at the time the Magistrate purported to dismiss the proceedings. Moreover, it is difficult to see how it could be said that the evidence of the police officers, if accepted, was not capable of proving the charge.
Whatever the difficulties in obtaining instructions from the defendant might have been, his legal representatives were prepared to make detailed written submissions defending the Magistrate's decision, which have largely been abandoned.
The defendant's concession that the appeal ought be allowed was communicated to my Associate the day before the hearing date and only a few days earlier to the plaintiff.
I am persuaded that it is appropriate to order that the defendant pay the plaintiff's costs, having regard to the lateness of the concession and the ordinary principle that costs ought follow the event.

Whether there should be a certificate under the Suitors' Fund Act 1951 (NSW)

For the reasons given above, I do not propose to determine the argument about whether Part 9 of LEPRA can apply in circumstances such as the present, notwithstanding express statutory wording that it be excluded. However, I consider that the defendant's objections to evidence ought to have been formulated with greater precision in the Court below. I do not, however, regard the defendant's conduct of the proceedings as contributing in any significant way to the Magistrate's errors since neither party could have foreseen that the Magistrate would do other than make rulings on the evidence at the conclusion of the voir dire before proceeding to the next stage of the hearing.
In these circumstances I am persuaded that it is appropriate to grant an indemnity certificate in respect of the appeal to this Court pursuant to s 6(1)(a) of the Suitors' Fund Act. I note that the plaintiff does not oppose the grant of the certificate.

Orders

I make the following orders: 1. Allow the appeal. 2. Set aside the order of Magistrate Dare made on 30 January 2015 at the West Wyalong Local Court dismissing the charge against the defendant for the offence of drive vehicle under the influence of alcohol (first offence) contrary to s 112(1)(a) Road Transport Act 2013 (NSW). 3. Remit the matter to the Local Court to be dealt with according to law. 4. Order the defendant to pay the plaintiff's costs of the proceedings in this Court. 5. Grant an indemnity certificate to the defendant in respect of the appeal to this Court pursuant to s 6(1)(a) of the Suitors' Fund Act 1951 (NSW).

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 October 2015

Suitors' Fund Act 1951(NSW)

Law Enforcement (Powers and Responsibilities) Regulation 2005(NSW)

Road Transport (Safety and Management) Act 1999(NSW)

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