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Date: 5 April 2007

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed and the conviction and sentence at first instance confirmed with effect from this date.

IN THE SUPREME COURT OF THE ) No. ACTCA 24 - 2006

) No. SCA 99 of 2005

AUSTRALIAN CAPITAL TERRITORY )

)

COURT OF APPEAL )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: ROGER HAUSMANN

Appellant

AND: GARRY WAYNE SHUTE

Respondent

Judges: Higgins CJ, Connolly and Lander JJ

Date: 5 April 2007

Place: Canberra

REASONS FOR JUDGMENT

HIGGINS CJ and CONNOLLY J:

1. The appellant appeals against his conviction on 9 December 2005 before Magistrate Campbell in the ACT Magistrates Court of an offence against s 22(d) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (“RT (A & D) Act”). That 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) he or she refuses to provide a sample of breath for analysis; or

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

2. A fine of $500 and disqualification from holding or obtaining a drivers licence for six months was imposed.

3. On 9 December 2005, the appellant appealed to the Supreme Court against conviction asserting as grounds: 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.

4. There has been no appeal against sentence.

5. The appeal was heard and dismissed by Gray J on 25 May 2006 for reasons handed down on 6 June 2006.

6. On 15 June 2006 the appellant filed a further Notice of Appeal to this Court. The grounds now relied upon are: (a) His Honour erred in his construction of what was necessary to make out the offence; (b) His Honour erred in finding that the evidence was sufficient to sustain a conviction.

7. The appellant does not seek to challenge the facts found by the learned Magistrate and set out by Gray J in his reasons.

8. We adopt the following summary of the facts set out by his Honour at [2] and [3] of his judgment: 2. On 14 August 2005, the appellant was driving a motor vehicle on Monaro Crescent towards Red Hill, a suburb in Canberra, when he was stopped by Sergeant Shute (the respondent). He was required to undergo a screening test for the purposes of determining whether he should be required to provide a sample of his breath for analysis. On his third attempt the screening test proved positive and he was then taken to the Woden Police Station to undergo a breath analysis test. The appellant was given the following direction by the respondent, You are still in custody following the screening test you underwent. You are required to supply a sample of your breath that is sufficient for analysis. I now require you to submit for breathe analysis by exhaling breath from your lungs, calm and continuously directly into the breath analysing machine until I direct you to stop. Do you understand? 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".

9. We also note the following passage from her Honour’s reasons for decision at first instance: There was also Detective Sergeant Shute’s observations that he [the appellant] appeared not to form a seal around the tube.

10. She concluded that “there is simply no evidence to support any suggestion that there was anything wrong with the mouthpiece”, continuing: In my view, any failure to provide a sample was attributable to the defendant not the machine.

11. Taken as a whole this was an acceptance of an inference from Detective Sergeant Shute’s evidence that the appellant was, simply, not genuinely attempting to provide a sufficient sample of breath.

12. It was also open to Detective Sergeant Shute to conclude, as he did, that the appellant was slightly to moderately affected by intoxicating liquor.

13. It was the appellant’s contention that his stated inability to provide a sufficient sample could have been due to a partial blockage of the mouthpiece provided for the purpose rather than lack of cooperation on his part. Mr Gill, for the appellant, pointed out that the appellant had complained of that difficulty at the time and the particular mouthpiece used had not been retained for testing so as to confirm or deny the hypothesis that it was at least partially blocked. The subsequent testing of the breath analysing device used in the attempted analysis merely tested and excluded the hypothesis that the tube itself was blocked. A fresh mouthpiece had been used, as is the practice for reasons of hygiene, for that subsequent test. Mr Gill acknowledged the evidence of Detective Sergeant Shute that the appellant did not form a sufficient seal around the mouthpiece but contended that that was consistent with a genuine but unsuccessful effort to provide a sample frustrated by a defective mouthpiece.

14. Mr Gill pointed out that, though the appellant had twice failed to provide a sufficient sample for the roadside screening test, he had succeeded on the third occasion. That evidence was, he submitted, equivocal. For the appellant it was suggested that it indicated that he had an innate difficulty, albeit able to be overcome by persistence but liable to be frustrated by an abnormality blocking or restricting a mouthpiece.

15. On the appeal, issue was taken with the test Gray J applied to determine criminal responsibility for the offence charged.

16. His Honour acknowledged the decision of the High Court in Hammond v Lavender (1976) 50 ALJR 728 where, albeit obiter, Mason J observed that a similar offence was committed merely by an omission to provide a sample as directed. The defendant in that case was acquitted despite his stated refusal to provide a sample because, having heard the refusal, the relevant police officer had not given a formal direction to do so, considering, incorrectly as it transpired, that such a direction was unnecessary.

17. A similar approach to the elements of a like offence was adopted, as his Honour noted, in R v Walker (1994) 35 NSWLR 384 and Adair v Gough (1990) 10 MVR 558. The latter decision was questioned by Crawford J in Maher v Horton (1993) 17 MVR 362.

18. In Adair v Gough (supra) the respondent had, for reasons unknown, failed to provide a sufficient sample of breath for a preliminary breath test, an offence against s 67(2) of the Road Traffic Act 1974 (WA). Following Hammond v Lavender (supra), Nicholson J held that “fails” did not require proof of wilfulness.

19. However, the Act also provided (per s 67A(5)) that it was a defence to such a prosecution if the defendant satisfied the court that there was some “substantial reason” for the failure to comply, other than, of course, a desire not to provide evidence of intoxication. As his Honour noted, at 561: If a person, proven to have earnestly tried to comply with the directions, fails to produce the sample of breath there may be evidence relating to the physical condition of that person which would satisfy a court that there was a requisite “substantial reason”.

20. The matter was remitted back to the learned Magistrate to determine if there was a “substantial reason” for the failure to provide a sample as that issue had not been addressed.

21. In Maher v Horton (supra), Crawford J considered the case of a motorist who had been involved in an accident. The driver could not provide a breath sample due to his injuries and so was directed to permit a sample of blood to be taken. He neither gave nor refused. The police officer left. A sample of blood was taken in any event but not analysed. The motorist was charged with refusal to supply a sample contrary to s 14(4) of the Road Safety (Alcohol and Drugs) Act 1970 (Tas). It was clearly possible, on the evidence, that the defendant might not have been capable of giving or withholding an informed consent due to his injuries. The offence of failure to provide a sample was qualified by the words “without reasonable excuse”. The learned magistrate considered that even unconsciousness would not be a “reasonable excuse” but found a failure to submit had not been provided as the doctor had, after the police officer left, apparently taken a sample.

22. Crawford J considered that the learned Magistrate was in error. If there had been a failure to consent to provide a sample of blood, it had already occurred before the police officer left the hospital. However, the charge was of “refusal” not “failure”. The condition of the defendant was such as to negate “refusal”. There may or may not have been a “reasonable excuse” for the failure in question.

23. His Honour commented on Adair v Gough (supra) as follows (at 368): … Nicholson J … held that the word “fails” in the Road Traffic Act 1974 (WA), s 66(2)(b) means “does not” and an element of wilfulness is not implied in the word. Nicholson J came to this conclusion upon a consideration of the obiter dicta of Mason J, as he then was, in Hammond v Lavender (1976) 50 ALJR 728 at 730. With respect I comment that I would have some reservations about accepting that a person could be convicted of an unintended failure to submit to the taking of a sample of his blood and I have considerable reservations about the comment of the learned magistrate in this case which suggests that a person who is unconscious at the time of the police officer’s direction could be convicted of a failure.

24. With respect to Crawford J, whose decision was plainly correct, the decision of Nicholson J was not at any variance with his comment. Firstly, as Mason J noted, “refusal” does imply wilfulness, “failure” does not. However, the reason for the failure may or may not have a “reasonable excuse”. Inability to comply due to intoxication is one thing, unconsciousness or injury is another.

25. In R v Walker (supra) McInerney J addressed the issue in the following terms, at 387: Section 4E(7) of the Act contains the words "refuses or fails to submit" to a breath analysis test. An examination of the legislation reveals the legislature had in mind that there would be occasions when the person, the subject of the test, would be unable to take the test without necessarily refusing to take the test, some of the reasons for which may be obvious having regard to the nature of the offence sought to be detected. It would therefore defeat the object of the legislation intended for the protection of the public, for example, to hold that the fact that the person was too drunk to understand what was said to him could form the basis of a reasonable excuse for failing to undergo the test. In my view, the legislature has made it clear that it is sufficient to establish a breach of the section if the person was required to do so by an authorised police officer and failed to do so, the legislature having in mind a failure to undertake a breath test for whatever reason was absolute.

26. Hunt CJ at CL and Bruce J agreed.

27. Gray J in Jasinski v Police (SA) (2004) 41 MVR 117 agreed that under the local equivalent legislation a “failure” should be equated with an “omission” rather than a deliberate failure.

28. As counsel for the respondent conceded, however, the offence under that legislative scheme was subject to a pecuniary penalty only.

29. Further, there was a statutory defence. That defence was considered by Nyland J in Police v Wilkey (1994) 89 SASR 460. It was a defence if there was “good cause” for the failure to comply with the direction. The learned magistrate had found that the respondent had failed to comply due to his mental and physical health. The onus of establishing that defence was expressly placed on the respondent. The learned magistrate had erroneously imposed it on the appellant.

30. The RT (A & D) Act contains no express defence if failure to provide a sufficient breath sample as directed is established.

31. However, there are two pieces of legislation potentially affecting the interpretation of s 22 RT (A & D) Act.

32. The offence allegedly occurred on 14 August 2005. The Criminal Code 2002 (ACT) (“the Code”) came into effect on 6 March 2005. However, the provisions concerning fault elements were yet to come into general effect (see s 8(1)(a)). Section 10 now prescribes 1 July 2007 as the commencement date of those provisions.

33. The Code does provide (s 22): (1) If the law creating an offence does not provide a fault element for a physical element that consists only of conduct, intention is the fault element for the physical element. (2) If the law creating an offence does not provide a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for the physical element.

34. Even if such a law provides that an offence is one of strict liability, the defence of mistake of fact is available (the Code s 23(1)(b) and (2)(b)). “Other defences” are not necessarily excluded (the Code, ss 23(3) and 24(3)).

35. One obvious non-excluded defence is age (the Code, ss 25 and 26). See also mental impairment, (the Code ss 27-29). There may, as well, be scope for the application of the Code, s 34: A person is not criminally responsible for an offence if the person’s conduct making up the offence was as a result of intoxication that was not self-induced.

36. It should be noted that an offence against s 23 RT (A & D) Act may be punished by a fine of not more than 30 penalty units ($3000) and/or a term of imprisonment, for a first offender, of six months (s 27 RT (A & D) Act) and an automatic licence disqualification of between six months and three years (s 34(1) RT (A & D) Act). For a repeat offender the disqualification period is between 12 months and five years (s 34(2) RT (A & D) Act) and the term of imprisonment may be twelve months.

37. There is also the Human Rights Act 2004 (ACT) (“HR Act”). There is, however, nothing in the HR Act which prevents the legislature from enacting offences of strict liability.

38. Section 18(1) of the HR Act provides: Everyone has the right to liberty and security of person. In particular, no-one may be arbitrarily arrested or detained.

39. That provision would be inconsistent with disproportionate punishments or the imposition of punishment for conduct for which the actor is not, on any rational view, responsible.

40. There are offences, such as occupational health and safety offences, which call for a high degree of foresight on the part of the responsible person. It is no affront to justice to impose strict or even absolute liability for such offences particularly where public safety is involved. Examples which spring readily to mind are food manufacturing and occupational health and safety.

41. Liability for the offence in question here, would, consistently with the public policy underlying the legislation, not be avoided simply because the subject failed successfully to undertake the test by reason of intoxication, whether as a result of lack of comprehension of instructions or of lack of physical coordination.

42. However, justice demands some limit to the apparently unlimited liability apparently suggested by McInerney J in R v Walker (supra).

43. Indeed, Dowd J in DPP v Storey (1997) 26 MVR 316, 318-9 made reference to that issue, stating: With respect to that decision, I do not think their Honours contemplated a circumstance where the person being tested has done everything within his or her power to comply with the requirements of the Act and the machine does not operate or is not available. It would be an extremely harsh result if the simple failure of a machine, where a machine has become, for some reason, inoperative, that a person becomes guilty of an offence.

44. The issue before Dowd J was whether, having genuinely attempted to submit to a breath test and the machine failing to analyse the sample, the defendant was entitled to statutory immunity (per s 4E(15) Traffic Act 1909 (NSW)) from a charge of driving under the influence. Unsurprisingly, that claim was rejected though, obiter, Dowd J also rejected a suggestion that the defendant could have been charged with the offence of refusing or failing to submit to breath analysis under s 4E(7).

45. Not dissimilar to the present case was Jasinski v Police (SA) (supra). The appellant in that case claimed that he had failed to submit to breath analysis because he suffered a panic attack when he attempted to do so. Police evidence was that he gave no apparent sign of such an attack at the relevant time. The appellant was convicted, though the learned magistrate found that he could not exclude the possibility of such an attack having occurred. There was a statutory defence if the subject had “good cause” for his or her failure to comply but only if the subject gave or offered a blood sample. The magistrate rejected a submission that a deliberate non-compliance had to be shown.

46. Gray J concurred with the Crown submission that the offence was one of strict liability with genuine inability to comply being recognised by the statutory defence.

47. As noted in Police v Wilkey (supra) that particular statutory defence expressly cast an onus on the defendant to establish it, not merely the onus of raising it (that is, a legal onus not a merely evidential onus).

48. Otherwise, the limitation observed by Dixon J in Proudman v Dayman (1941) 67 CLR 536, 540, cited by Gray J in Jasinski (supra), would be applicable: As a general rule an honest and reasonable belief in a state of facts which, if they existed, would make the defendant’s act innocent affords an excuse for doing what would otherwise be an offence.

49. It is, as Jordan CJ observed in Ingram v Ingram (1938) 38 SR (NSW) 407, 410 a matter to be determined by the content of the legislation as to what causes for a prescribed omission will be included or excluded from the scope of a reasonable and lawful excuse for that omission.

50. It is also a matter for interpretation whether a matter affording reasonable excuse for non-compliance must be established by the defendant on the balance of probabilities or excluded by the prosecutor beyond reasonable doubt. In either case there must be evidence from which it could be inferred that the matter of reasonable excuse is a reasonable hypothesis, as is the case with self-defence (see Zecevic v DPP (Vic) (1987) 162 CLR 645).

51. The Code would, in the absence of express words, merely cast an evidential burden on a defendant in respect of a matter of excuse.

52. Section 58(3) of the Code provides: Subject to section 59, a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence (whether or not it accompanies the description of the offence) has an evidential burden in relation to the matter.

53. Sections 58(4) to 58(7) of the Code provide: (4) To remove any doubt, for a strict liability offence that allows the defence of reasonable excuse, a defendant has an evidential burden in relation to the defence. (5) The defendant no longer has the evidential burden in relation to a matter if evidence sufficient to discharge the burden is presented by the prosecution. (6) The question whether an evidential burden has been discharged is a question of law. (7) In this Act: evidential burden, in relation to a matter, means the burden of presenting or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.

54. For a burden cast on a defendant to be a legal burden, s 59 (the Code) provides that the law in question must expressly so provide.

55. Whilst the Code did not expressly apply to offences such as that created by s 22 of the RT (A & D) Act at the time of the alleged offence nor at the time of the appeal before Gray J, the RT (A & D) Act does not expressly provide that any burden of proving a reasonable excuse lies on the person accused of an offence against s 22. That is a point of distinction from Jasinski v Police (supra) and Police v Wilkey (supra).

56. Further, in Perkins v Pohla-Murray (1983) 51 ACTR 3, Kelly J accepted that to challenge the accuracy of an otherwise properly conducted breath test it was sufficient to adduce or point to evidence which, if accepted, would contradict the result of the test and be consistent with innocence. The prosecution then had the legal burden to exclude that hypothesis beyond reasonable doubt.

57. That approach is consistent with s 58 of the Code. It is applicable therefore, as declaratory of the approach to be taken to offences such as that created by s 22 RT (A & D) Act. That interpretation is consistent with the HR Act.

58. It follows that, in interpreting implicit matters of excuse allowed by s 22 (RT (A & D) Act), if a defendant discharges the evidential burden of pointing to or adducing evidence which, if it were accepted, would constitute a reasonable and lawfully acceptable excuse for non-compliance, then the prosecution has the legal onus to exclude that hypothesis beyond reasonable doubt.

59. In the present case the defendant deposed that, despite his best efforts, the breath analysing instrument would not receive his breath sample. That might, apart from the deliberate withholding of a sample or inability, though genuine, arising from intoxication, have been the result of a genuine physical inability such as broken ribs, asthma or emphysema or from a physical blockage of the tube or mouthpiece. In the latter case, an issue may arise as to whether a properly functioning instrument was available, as in DPP v Storey (supra).

60. The uncontradicted evidence of the breath test analyst in this case was that, with a fresh mouthpiece and following the appellant’s failure to provide a sample, there was no difficulty in the way of a breath sample being received by the breath analysing instrument. There was no evidence from or on behalf of the appellant that suggested some pathological condition or injury was responsible for his inability to give a sufficient sample.

61. The only matter pointed to by the appellant was that, absent a test of it, there could not be excluded an hypothesis that the mouthpiece had some partial blockage due to a random manufacturing error that, it being a clear plastic item, was not noticed by or was not apparent to the operator.

62. Mr Gill submitted that it was, therefore, an error for her Honour to have concluded that “there is no evidence before me from which I can be satisfied even on the balance of probability (sic) that the mouthpiece was not working properly”.

63. Certainly, that statement, viewed in isolation, does purport to reverse, and even confuse, the onus of proof. However, her Honour had also positively found that the appellant had not genuinely attempted to provide a sufficient sample.

64. It was also contended that the possibility of a partial blockage of the mouthpiece was not considered by Gray J. That may be so but, as Mr Refshauge SC submitted, that was not a matter raised before his Honour. It was therefore not an error for him not to have considered it. Sergeant Shute’s evidence, if accepted, constituted a refutation of the hypothesis that the mouthpiece was blocked. Her Honour at first instance was not in error in accepting that evidence and Gray J was entitled to so find.

65. Even accepting that it is now open to the appellant to put forward the hypothesis of partial blockage, it was open to her Honour to have rejected it, as she did, given the undisputed evidence of Sergeant Shute that the appellant made no seal around the mouthpiece with his lips. Indeed, that evidence was inconsistent with the appellant’s assertion that he had tried to blow but could not because of the mouthpiece being blocked. A seal would have been formed some at least of the time had that been so. It is true that it would have been more prudent, the appellant having claimed to have tried his best, to have retained the mouthpiece actually used, as evidence to refute the appellant’s implicit contention that it was faulty but her Honour was entitled to and plainly did accept Sergeant Shute’s evidence. That evidence was inconsistent with the appellant’s current contention and, indeed, with any reasonable hypothesis open on the evidence other than conscious or alcohol induced failure to comply with Detective Sergeant Shute’s directions.

66. It follows that the appellant has not demonstrated any error in the decision to convict him nor in the decision of Gray J to dismiss his appeal.

67. The appeal must be dismissed and the conviction and sentence at first instance confirmed with effect from this date. I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment herein of their Honours Higgins CJ and Connolly J.

Associate:

Date: 5 April 2007

IN THE SUPREME COURT OF THE ) No. ACTCA 24 - 2006

) No. SCA 99 of 2005

AUSTRALIAN CAPITAL TERRITORY )

)

COURT OF APPEAL )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN: ROGER HAUSMANN

Appellant

AND: GARRY WAYNE SHUTE

Respondent

Judges: Higgins CJ, Connolly and Lander JJ

Date: 5 April 2007

Place: Canberra

REASONS FOR JUDGMENT

LANDER J:

The Charge

68. The appellant was charged in the Magistrates Court in the Australian Capital Territory with a contravention of s 22(d) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (“the Act”) in that ‘on 14 August 2005, a first offender, did fail to provide a breath sample as directed by a police officer’. The Legislation

69. Section 22 of 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.

70. Two preconditions must be met before a person can commit an offence under s 22. First, the person must be a driver of a motor vehicle on a public street or in a public place and, secondly, the person must have been required to provide a sample of breath for breath analysis “in accordance with the provisions specified in this Act”.

71. The circumstances in which a person may be called upon to provide a sample of breath for breath analysis under the Act are provided for in Part 2 of the Act. In s 8 of the Act a police officer is empowered to require a person to undergo a screening test if the person is the driver of a motor vehicle on a public street or in a public place or a police officer has reasonable cause to suspect that shortly before the requirement is made the person was the driver of a motor vehicle on a public street or in a public place.

72. A “screening test” is defined in the Dictionary to the Act: screening test in relation to a person, means a test of sample of the breath of the person carried out for this Act by means of an approved screening device.

73. Section 9 empowers a police officer to require a person to undergo a screening test where the police officer has reasonable cause to suspect that the person was the driver of a motor vehicle which was involved in an accident on a public street or in a public place or in other circumstances provided for in s 9(b).

74. Section 10 empowers a police officer who has reasonable cause to suspect a person had committed an offence of culpable driving to require the person to undergo a screening test.

75. Section 11 provides for a regime where a police officer has required a person under any of s 8, s 9 or s 10 to undergo a screening test and the screening test indicates to that police officer that the concentration of alcohol in the blood of the person is equal to or more than the prescribed concentration.

76. “Prescribed concentration” is defined in the Dictionary: prescribed concentration means— (a) in relation to a special driver—0.02g of alcohol per 100mL of blood; and (b) in relation to any other person—0.05g of alcohol per 100mL of blood.

77. Section 11 also addresses circumstances where a police officer has required a person to undergo a screening test under any of s 8, s 9 or s 10 and the person has refused to undergo the screening test or fails to undergo the screening test in accordance with the direction of a police officer.

78. In any of those circumstances, the police officer is empowered to take the person into custody and that police officer or another police officer is empowered to take that person as soon as practicable to a police station for the purpose of having a breath analysis of the person carried out.

79. “Breath analysis” is defined in the Dictionary: breath analysis, in relation to a person, means an analysis of a sample of the person’s breath carried out for this Act by means of an approved breath analysis instrument.

80. Section 11(2) also empowers a police officer to deal with a special driver as defined in s 4(b) of the Act. That regime is unimportant for the purposes of this appeal.

81. Sections 12(1) and (2) provide: (1) Subject to section 14, a person who has been taken into custody under section 11 shall, when required to do so by a police officer, provide, in accordance with the reasonable directions of that officer, a sample of his or her breath for breath analysis. (2) A breath analysis shall be carried out by an approved operator.

82. An “approved operator” is defined in the Dictionary: approved operator means a police officer who is authorised by the chief police officer under section 6(1).

83. Section 12(3) provides that regulations may be made for the procedure to be followed by an approved operator. Those regulations are also unimportant for the purpose of this appeal.

84. Section 14 restricts the circumstances in which a person may be required to undergo a screening test under s 8, s 9 or s 10 or provide a sample of his or her breath for breath analysis under s 12. Essentially, a police officer shall not require a person to undergo a screening test or provide a sample of his or breath for breath analysis if the person has been involved in an accident and has been taken to hospital and more than two hours have elapsed since the person’s arrival at the hospital; or in any other case if more than two hours have elapsed since the accident occurred.

85. A police officer shall not require a person to undergo a screening test or provide a sample of the person’s breath for analysis in the following circumstances contained in s 14(3): (a) if it appears to the police officer that it may be, because of injury suffered by the person or otherwise, dangerous or not practicable for that person to undergo a screening test or to submit his or her breath for analysis; or (b) if the person is in hospital and the doctor or authorised nurse practitioner attending the person certifies in writing that, in his or her opinion, complying with the requirement would be detrimental to the person’s medical condition; or (c) for a person who is at the place where the person usually lives— (i) unless the person was, or the police officer has reasonable cause to suspect that the person was, the driver of a motor vehicle at the time when it was involved in an accident on a public street or in a public place; or (ii) unless the police officer has reasonable cause to suspect that the person has committed an offence of culpable driving; or (iii) unless the requirement is made immediately after a motor vehicle driven by the person has stopped at or near the place where the person usually lives and the police officer making the requirement has followed the motor vehicle while it was being driven on the public street.

86. There are other provisions of the Act which deal with the taking of a sample of a person’s blood if the person is admitted to hospital: s 15AA.

87. Section 16 deals with medical examinations of a person who has been required to undergo a screening test or to provide a sample of a person’s breath for analysis and the person has been the driver involved in an accident, and the police officer has reasonable cause to suspect that the person is under the influence of a drug other than alcohol. The Facts

88. On 14 August 2005 at about 1.00 am, the respondent, Detective Sergeant Gary Shute, was driving his vehicle on Monaro Crescent when he observed a motor vehicle travelling toward him with its high beam lights on. He flashed his lights but the vehicle travelling towards him did not respond. He turned his vehicle around and stopped that vehicle which was being driven by the appellant. Detective Sergeant Shute has been a police officer for 22 years and is authorised to carry out breath analysis tests under the Act.

89. He told the appellant that he was going to be subjected to a screening test and that he was required to supply a sample of his breath into the screening device. The first and second attempts failed. Detective Sergeant Shute advised the appellant that he was required to provide the sample and if he failed to do so he would be taken into custody where he would undergo a breath analysis test. On the third occasion the test was successfully undertaken and was positive.

90. The appellant was taken into custody and conveyed by Detective Sergeant Shute in his car to the Woden Police Station for the purpose of breath analysis.

91. Detective Sergeant Shute activated the breath analysis machine in accordance with the operator instructions and inspected the machine, in particular, a silver seal on the machine which was intact. He fitted a mouthpiece to the tube and said words to the effect: You are still in custody following the screening test you underwent. You are required to supply a sample of your breath that is sufficient for analysis. I now require you to submit to breath analysis by exhaling breath from your lungs calmly and continuously directly into the breath analysing machine until I direct you to stop. Do you understand?

92. He said the appellant said: “M’mm”. He then observed the appellant blow into the tube but that the tube did not appear to be sealed properly around the appellant’s lips. The machine recorded “insufficient sample”. Detective Sergeant Shute gave the appellant a further direction in the same terms as before and the defendant undertook the test again. Detective Sergeant Shute again observed that the appellant did not form a seal correctly around the tube into which he was blowing. The machine again recorded “insufficient sample”.

93. Detective Sergeant Shute then informed the appellant that he should blow into the tube as if he were blowing into a balloon and form a seal to enable the machine to get a proper reading. He then put the direction, previously mentioned, for the third time and reminded the appellant that he was still in custody.

94. The appellant again attempted the test which again was recorded by the machine as “insufficient sample”.

95. Detective Sergeant Shute gave evidence of the conversation which followed with the appellant.

96. Detective Sergeant Shute said: “What is [sic] 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”. Detective Sergeant Shute said: “Do you realise it is an offence to supply sufficient [sic] sample of breath for analysis?” The appellant said: “I appreciate that may be an offence. But I do believe I did my best in the circumstances”. Detective Sergeant Shute said: “Do you have any religious, or other conscientious grounds, or medical reasons for failing to supply a sufficient sample of breath for analysis?” The appellant said: “I am a Catholic. I believe Catholicism does not present any problem”. Detective Sergeant Shute said: “Will you now provide a sample of your breath sufficient for analysis?” The appellant said: “I believe that is what I did”. The rest of the conversation is irrelevant.

97. Senior Constable Guy also gave evidence and in an answer from the Magistrate said that the machine operated upon the assumption that everything utilised in the analysis, including the instrument and the mouthpiece, were operating properly.

98. He was re-examined on that matter by the prosecutor and, having regard to the appellant’s case on appeal, it would be useful to refer to that evidence: MR THOMAS: If the mouthpiece were not operating properly, would the machine – what would the machine do? What would be the result?---If the mouthpiece? If the mouthpiece in which was used to blow to deliver the breath analysis?---Well, I don’t see how it could not work properly, it’s a – it comes in a sealed, sterile paper. Its opening is not touched by the operator. It’s put in the end of the instrument then it’s just – what could you call it, a spit trap mouthpiece, where the sample can go into the instrument, it can’t go through – any saliva can’t go through because of the way the mouthpiece is designed. So is it possible for that mouthpiece to be blocked?---No, it’s a clear mouthpiece. You could see if there’s anything blocking it. And so – but if, for instance, the mouthpiece were blocked and it weren’t observed, what would happen as a result of - - -?---The instrument would come up with the notation on the display of “check airway”. I see. So - - -?---It’s when the instrument does a 0 test, it takes ambient air through the sample hose and through a port in the body of the instrument. If any of those are blocked, it will come up with a “check airway”.

99. He was also further re-examined by the appellant’s counsel. Senior Constable Guy agreed that he had not examined the particular mouthpiece but that the instrument would not accept a sample of breath if there were a blockage in the mouthpiece.

100. He was then asked: What if the blockage was a minor one?---Well, I don’t know. You know, I can just assume certain things. You can’t assume, Senior Constable?---I know. 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. You’ve never had cause to examine them with a great deal of detail, have you?---In training courses I used to do certain things to – I suppose, trick the students, especially with having a fluid in the mouth, some sort of fluid and blowing that into the – in through the mouthpiece.

101. The Magistrate gave ex tempore reasons for convicting the appellant. She accepted Detective Sergeant Shute as a “very” credible witness and recognised that he was an experienced operator.

102. She said: I found him to be a very credible witness and I suspect that there are a few occasions however when he would have liked to have been asked just a little more in relation to the question so he could have amplified things. Mr Sharman has pointed out that one of the primary matters I must deal with is a factual issue of whether the mouthpiece which was attached to the machine was working properly, and he has raised the possibility that the section 41 certificate does not actually cover the mouthpiece as that is an individual item which is added to make the machine operate without there being any risk of infection from one user to the next. My view it’s not necessary for me to make that finding in relation to this one because the reality is there was no evidence before me from which I could be satisfied even on the balance of probability that the mouthpiece was not working properly. The irresistible entrance in the evidence in my view is that the defendant failed to comply with directions. He had failed twice at the roadside when the initial screening device was offered to him to provide a sample of breath. I accept that that’s not part of the charge, but in my view it’s indicative of some lack of co-operation or a reluctance to have his blood alcohol reading taken. There was also Detective Sergeant Shute’s observations that he appeared not to form a seal around the tube. I do not take that to be that it was very weak or mealy mouthed evidence on Detective Sergeant Shute’s behalf as I have indicated it was simply him not painting the lily against the defendant, but he’s saying that he appeared not to form a seal, in my view, is indicative of a defendant who, from observations from the Bar table and there would be no submissions to the contrary, looks at [sic] though he is probably an educated and intelligent man.

103. She also accepted that Senior Constable Guy was an expert who had had considerable experience. She said of his evidence: Senior Constable Guy’s evidence that in his experience which we all agree that he is an expert, and has considerable experience, the instrument would not accept a sample of breath if there was blockage, and in his experience or be it I accept that based on old versions of the machine, no one in his experience had been unable to provide an appropriate sample. In my view, there is simply no evidence to support any suggestion that there was anything wrong with the mouthpiece. In my view, any failure to provide a sample was attributable to the defendant not the machine. In relation to the question of whether the defendant was provided with reasonable directions, it seems to me that the directions that he was provided with and the whole course of conduct was extremely fair.

104. The following can be distilled from her Honour’s reasons. First, there was no evidence that the machine was malfunctioning. Secondly, there was no evidence to suggest that there was anything wrong with the mouthpiece. Thirdly, Detective Sergeant Shute gave the appropriate directions to the appellant. Fourthly, the appellant failed to comply with the directions and failed to provide a sample of breath for analysis.

105. The appellant appealed from her Honour’s decision but that appeal was dismissed by Gray J. Gray J’s Reasons

106. In his reasons, Gray J identified the elements of the offence: 7. The offence has the following elements: 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.

107. The sole issue before Gray J was whether there was a failure to provide a sample.

108. Gray J considered the authorities to which I shall refer later and said: 11. ... In those circumstances, 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.

109. His Honour then directed himself to the facts and said: 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. The Appeal

110. The appellant has appealed from his Honour’s decision. The grounds of appeal are: (a) His Honour erred in his construction of what was necessary to make out the offence; (b) His Honour erred in finding that the evidence was sufficient to sustain a conviction. The First Ground

111. Three separate offences might arise under s 22 of the Act. Assuming the preconditions in s 22(a) and (b) have been made out, the offences which could arise are: (1) a person refusing to provide a sample of breath for analysis; (2) a person failing to provide a sample of breath in accordance with the reasonable directions of the police officer who made the requirement; and (3) a person refusing to provide a sample of breath in accordance with the reasonable directions of the police officer who made the requirement.

112. The appellant, in this case, was charged with failing to provide a sample of breath in accordance with the reasonable directions of the police officer who made the requirement but in the words to which I have referred in [68].

113. Clearly, as a matter of statutory construction, there must be a difference between failing to provide a sample of breath and refusing to provide a sample of breath. If it were otherwise, there would be no need to use the different words.

114. There is no novelty about this legislation. It is quite unremarkable and applies in most of the States of Australia.

115. The purpose of the legislation is to provide a strict regime whereby the police may detect persons who drive motor vehicles with greater than the prescribed alcohol in their blood. The police may only detect that offence if they are armed with sufficient powers to require a person first, to submit to a screening test, and usually then to a breath analysis test, but sometimes also, or in addition to, a blood sample test.

116. The offence is impossible to detect unless the police have the power to require a person to submit to first, a screening test; secondly, a breath analysis test; and thirdly, if necessary, a blood sample test.

117. Both the screening test and the breath analysis test require the cooperation of a person who has often consumed alcohol. The testing can only be effective if the person cooperates to the extent that they provide the necessary volume of breath to allow the machine to read the concentration of alcohol within the sample. Therefore, the legislature has put in place a regime whereby a person is obliged to provide a sufficient sample to allow the test to be conducted.

118. Where a person refuses to supply a sample or a sufficient sample, that person will have committed an offence. Where that person refuses to supply a sample in accordance with the reasonable directions of a police officer who has required the person to provide a sample of breath for breath analysis, the person will have committed a separate offence. There are good reasons why s 22 provides for separate offences for refusing to provide a sample of breath for analysis and for refusing to provide a sample of breath in accordance with the reasonable directions of the police officer who made the requirement. There may be circumstances where a person simply refuses to provide any sample of breath either before or after any direction has been given. There may, however, be circumstances where a person does not refuse to provide a sample of breath but refuses to provide a sufficient sample in accordance with the reasonable directions of the police officer.

119. However, the legislature has gone further and has made it an offence for a person to fail to provide a sample of breath in accordance with the reasonable directions of the police officer who made the requirement. As I have said, a person who fails to provide a sample of breath in accordance with the Act is not a person who has refused to do so. That person must have done something other than have refused. This case is concerned only with a failure to provide a sample of breath.

120. In Hammond v Lavender (1976) 50 ALJR 728 the High Court was concerned with Queensland legislation, Traffic Acts 1949-1974 (Qld), relating to driving a motor vehicle whilst under the influence of alcohol. Section 16A(8)(e) required a person to provide a specimen of breath of analysis if directed relevantly by a police officer. Section 16A of that Act made it an offence to fail to provide a specimen of breath for analysis. Section 16A(11)(a) provided: A person who, upon a requisition duly made by a member of the Police Force under paragraph (a) or paragraph (c) of subsection (8), fails to provide as prescribed a specimen of his breath for analysis ... is guilty of an offence which shall be deemed to be an offence against subsection (1) of section 16 and the offender is liable to the same punishment in all respects (including disqualification from holding or obtaining a driver’s license) as he would be in the case of the offence being actually one committed by him against the said subsection (1).

121. Mason J said: In Victoria v. The Commonwealth (1975), 50 A.L.J.R. 7, at pp. 14, 22, 37, and 39-40, it was 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”. This is a familiar problem but nothing is to be gained by exploring authorities on different statutes for so much turns here on the presence of the words “as prescribed” with their importation of the elements of time and manner and their relationship with s. 16A(8)(e)(i). Sub-section (8)(e)(i) has in mind a direction which is capable of being acted upon then and there without substantial delay. If the provision is so understood the word “fails” in sub-s. (11)(a) fits more readily into the second of the two classifications to which I have referred. The judgment of the Full Court in Lambert v. McIntyre; Ex parte McIntyre, [1975] Q.L.R. 349, at p. 350 should be read with these observations in mind because the issue, as I see it, in cases of this kind, is not so much whether the defendant had an opportunity of doing something, but whether there was a direction given of the kind contemplated. The distinction between a refusal to provide and a failure to provide then ceases to have much practical importance because in general a refusal to provide will amount to a failure to provide.

122. In R v Walker (1994) 35 NSWLR 384 (‘Walker’), s 4E(7) of the Motor Traffic Act 1909 (NSW) provided that “any person who had been required ... by a member of the police force to submit to a breath analysis refuses or fails to submit to that analysis ... shall be guilty of an offence under the Act”. In the Court of Criminal Appeal McInerney J, with whose reasons Hunt CJ and Bruce J agreed, rejected the submission made by the appellant in that case that the section to which I have referred required criminal intent to be established before the offence could be proved. McInerney J said at 387: It would therefore defeat the object of the legislation intended for the protection of the public, for example, to hold that the fact that the person was too drunk to understand what was said to him could form the basis of a reasonable excuse for failing to undergo the test. In my view, the legislature has made it clear that it is sufficient to establish a breach of the section if the person was required to do so by an authorised police officer and failed to do so, the legislature having in mind a failure to undertake a breath test for whatever reason was absolute.

123. In Adair v Gough (1990) 10 MVR 558, Nicholson J (when a judge of the Supreme Court of Western Australia) considered s 66 and s 67A of the Road Traffic Act 1974 (WA) which provided in similar terms to the section under consideration (“refuses or fails”) on this appeal and the section in Walker. After referring to Mason J’s dictum Nicholson J said: In my opinion, the same reasoning is applicable to the use of the word “fails” in s 67A(1) and s 67(2). The word “fails” is to be interpreted in those sub-sections as meaning “does not”. As a consequence, if no sample of breath for preliminary testing or analysis results there is a requisite failure.

124. In the Supreme Court of South Australia, in Jasinski v Police (SA) (2004) 41 MVR 117 (‘Jasinski’), s 47E(3) of the Road Traffic Act 1961 (SA) was under consideration, which provides that a person “must not refuse or fail to comply with all reasonable directions of a member of the police force in relation to the requirement” of submitting to an alcohol test or breath analysis. Subsection (4) allowed a defence to subsection (3), one of which was whether “good cause for the refusal or failure to comply with the requirement or direction” existed. After referring to Hammond v Lavender and Adair v Gough and Walker, Gray J held at p 124 that the offence created by s 47E(3) was one of strict liability and that the word “failure” in s 47E(3) simply connoted an omission.

125. Section 22 is in like terms to the section considered by the High Court, the Court of Criminal Appeal in New South Wales, and in the Supreme Courts of Western Australia and South Australia. It is true that the ACT legislation does not provide for a defence like the legislation in some of the States (e.g. South Australia). However, in my opinion, that is not a reason to distinguish this legislation and to give the word “fail” a meaning different to that which has been given by the High Court and the State Courts. The defence was not part of the reasoning in Jasinski for concluding that a failure was an omission. In my opinion, to fail to do something does not require wilfulness on the part of the party who has failed. A refusal, on the other hand, does imply wilfulness. A failure simply means an omission. The appellant would be guilty of this offence if he has omitted to supply a sample of breath in accordance with the reasonable directions of Detective Sergeant Shute.

126. It follows that I agree with the construction of the section given by Gray J in the Court below. Section 22, insofar as it creates an offence of failing to provide a sample of breath, does not import a fault element.

127. I do not think, for the reasons given by the majority, that the Criminal Code 2002 (ACT) (the Criminal Code) is relevant because the provisions containing fault elements had not come into effect. Indeed, both counsel agreed as much. The Human Rights Act 2004 (ACT) is also not relevant.

128. The majority have said at [42] of their reasons that justice demands some limit to the apparently unlimited liability suggested by McInerney J in Walker. They are of the opinion that in certain circumstances a legal onus will be imposed upon the prosecution to exclude a defence of reasonable and acceptable excuse for non-compliance.

129. I would reserve the question of what defence might arise, if any, to a charge of failing to provide a sample of breath in accordance with the reasonable directions of a police officer who made the requirement to provide the sample of breath for analysis until such time as the issue is raised which would then require a consideration of the legislation as it then stands. It did not arise on this appeal and was not argued. In those circumstances, the matter does not need to be considered on this appeal. The Second Ground

130. The appellant’s second argument was one of fact.

131. Unfortunately, from the appellant’s point of view, the findings which were made by the Magistrate were open to her. In my opinion, there was no evidence to contradict Detective Sergeant Shute’s evidence of the circumstances which prevailed when he asked the appellant to undergo a screening test. Detective Sergeant Shute, apparently, took the appellant into custody in accordance with the provisions of s 11 and removed the appellant as soon as practicable to the Woden police station. There is no evidence to contradict Detective Sergeant Shute’s evidence, which was accepted in any event by the appellant, that at the police station he gave reasonable directions to the appellant in relation to the appellant’s obligations to submit a sample of breath for breath analysis under s 22 of the Act.

132. Detective Sergeant Shute observed that the appellant did not form a proper seal with his lips upon the tube or the mouthpiece. That evidence was not contradicted nor, indeed, sought to be contradicted. It was clearly open to the Magistrate to find, as she did, that in those circumstances where a proper seal had not been formed by the appellant that he had failed to provide a sample of breath for breath analysis.

133. There was no suggestion at the time that either the machine or the mouthpiece malfunctioned. The first suggestion that the mouthpiece malfunctioned was made in re-examination after a question from the Magistrate. Senior Constable Guy answered that by saying that if that had occurred the instrument would have shown a reading of “check airway”.

134. It was Detective Sergeant Shute’s evidence that the instrument did not display any such reading. It was his evidence that the machine showed “insufficient sample”.

135. The appellant did not put to Detective Sergeant Shute that the reading was “check airway” rather than “insufficient sample”. It was not put to Detective Sergeant Shute that the mouthpiece or the machine malfunctioned.

136. In my opinion, the Magistrate was entitled to make all of the findings which she did, all of which inexorably led to a conviction. The ground of appeal that there was insufficient evidence to support a conviction must be rejected.

137. In my opinion, all of the elements of the offence were made out.

Conclusion

138. For all those reasons, in my opinion, the appeal should be dismissed. I certify that the preceding paragraphs numbered sixty-eight (68) to one hundred and thirty-eight (138) are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Associate:

Date: 5 April 2007

Counsel for the Appellant: Mr S Gill

Solicitor for the Appellant: Rachel Bird & Co

Counsel for the Respondent: Mr R Refshauge SC

Solicitor for the Respondent: ACT Director Public Prosecutions

Date of hearing: 2 November 2006

Date of judgment: 5 April 2007

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