Hausmann v Shute [2006] ACTSC 54

3. Following that direction, the appellant blew into the breath analysis machine but an insufficient sample was given for the machine to register. The direction was given again and the machine again did not register that a sufficient sample for analysis had been provided. The appellant was further questioned on the basis of his failure to provide a sufficient sample and in answer to the question "What is your reasons for failing to supply a sufficient sample of breath for analysis?", the appellant said "I guess I'm not totally familiar with the necessary exertion to ensure an appropriate so called supply.". The appellant was asked, "Do you realise it is an offence to supply sufficient [sic] sample of breath for analysis?", and the appellant responded, "I appreciate that may be an offence. But I do believe I did my best in the circumstances.". He was also asked "Will you now provide a sample of your breath sufficient for analysis?" and the appellant replied "I believe that is what I did.".

4. The grounds set out in the notice of appeal are as follows:

1. The evidence could not sustain a finding of guilt.

2. Her Honour erred by reversing the onus of proof.

3. Her Honour erred in making findings of fact not available on the evidence.

5. Mr Sabharwal, who appeared for the appellant on the appeal, in effect submitted that the appeal could only succeed on the first ground and that the other two grounds were "subsumed" by the first. It became quite clear that unless the appellant could show that there was no evidence to support an element of the offence, his appeal could not possibly succeed. The principal submission put was that the appellant did not provide a sample of his breath but that "the essential question on the appeal was whether the court could be satisfied the fault was at his feet alone". Strictly, that submission does not pose the question that must be asked. That question is whether there is evidence upon which the prosecution can establish that it has made out the elements of the offence that has been charged beyond reasonable doubt.

6. Section 22 of the Road Transport (Alcohol & Drugs) Act 1977 (ACT) (the Act) provides,

A person who--

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

(b) has, in accordance with the provisions specified in this Act, been required to provide a sample of breath for breath analysis;

commits an offence punishable, on conviction, by a maximum fine of 30 penalty units if--

(c) the person refuses to provide a sample of breath for analysis; or

(d) the person fails or refuses to provide a sample of breath in accordance with the reasonable directions of the police officer who made the requirement.

1. The defendant has been the driver of a motor vehicle on a public street;

2. The defendant, in accordance with the Act, has been required to provide a sample of breath for breath analysis;

3. Reasonable directions are given by the police officer who made the requirement to provide the sample of the defendant's breath;

4. The defendant has failed to provide a sample of breath in accordance with those directions.

8. The appellant conceded that there was evidence upon which the court could find beyond reasonable doubt each of the first three elements of the offence that I have identified. The appellant's submission was directed solely to the issue that there was no evidence upon which a court could find beyond reasonable doubt that there was a failure to provide a sample of breath.

Whether there was a failure to provide a sample

9. The question of what is involved in the word "fails" in the section depends upon a construction of the section in its context. In Hammond v Lavender (1976) 50 ALJR 728, Mason J, in considering an offence against the Traffic Acts 1949-1974 (Q.) which was framed in the words "fails to provide ... a specimen of his breath for analysis", pointed out that the word "fails" may connote default on the part of the actor or it may mean no more than "omit" or "does not". He went on to consider that, in the context of the Act that he was construing, particularly in respect of a requirement that was consequential upon a direction capable of action then and there, that the provision fitted more readily into the classification of "omit" or "does not". The other members of the court, Barwick CJ, Stephen and Murphy JJ, agreed with Mason J, with Jacobs J generally agreeing but not finding it necessary to decide the question of classification referred to by Mason J.

10. The case of Hammond v Lavender (supra) was cited in R v Walker (1994) 35 NSWLR 384 where the New South Wales Court of Criminal Appeal held that a similar provision in the Motor Traffic Act 1909 (NSW) was an offence of absolute liability; likewise in Adair v Gough (1990) 10 MVR 558, a similar provision in the Road Traffic Act 1974 (WA) was considered by Nicholson J and he held that the word "fails" in that legislation did not imply any element of wilfulness in its construction.

11. No argument was put to me to satisfactorily distinguish the approach taken in those cases so as to suggest that I should construe the word "fails" in s 22 of the Act any differently from the construction given to it in those cases. Section 22 of the Act is predicated upon a direction being acted upon, as was the section under consideration in Hammond v Lavender. In those cicumstances, s 22 does not seem to me to require an importation of a fault element. That being the case, the appellant's submission that there was no evidence upon which that particular element of the offence could be said to have been made out cannot be sustained.

12. In the submissions made on behalf of the appellant, the suggestion was made that the reason for the failure to provide the breath sample may have been because of a blockage in the mouthpiece. Such a submission is not supported by the statements made by the appellant to the testing officer. The appellant asserted that he did his best in the circumstances. After the second attempt, he was asked again to provide a sample and his response was that he had provided a sufficient sample. I do not regard these statements suggesting that the appellant was undergoing any difficulty in providing the sample.

13. The appellant sought also to rely upon the testing officer agreeing with the cross-examiner that he did not examine the mouthpiece for a blockage. That does not advance the appellant's case nor suggest a circumstance engendering a reasonable doubt. Nor does the fact that, about an hour later, the testing officer conducted an analysis on himself "to ensure that there were no problems with the machine" and to "satisfy myself that there was nothing wrong with the machine". Two other responses of the testing officer essentially negated any possibility that the mouthpiece might have been defective. In cross-examination of the testing officer, the following questions were put:

And if there was no observation made of that, no inspection made of that, then you couldn't rule out the prospect of a blockage?---The instrument wouldn't accept a sample of breath if there was a blockage in the mouthpiece.

...

If there was a blockage or an abnormality in the mouthpiece in terms of its design or construction, if that was to cause a minor, even a minor obstruction, the machine may not pick that up?---In the time that I've used the instrument and the amount of mouthpieces I've used, I've never come across a faulty one.

14. Even if the offence created by s 22 could be said to not be an offence involving absolute liability, but one of strict liability and thereby admitting the proposition that the person charged with the offence could have acted in an honest and reasonable belief in a state of facts which, if true, would not make the conduct an offence (Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536, and particularly see He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523), then there is just no evidentiary foundation that the appellant can point to that gives rise to that proposition.

15. The appellant has failed to make good any of the grounds of appeal and the appeal must be dismissed.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Solicitor for the respondent: Director of Public Prosecutions (ACT)