Coram : CHIEF MAGISTRATE S A HEATH & MAGISTRATE M D WHEELER

Criminal law - Traffic offence - Driving whilst under the influence of alcohol - Application for adjournment to obtain expert evidence - 'mouthwash defence' - Whether refusal of adjournment resulted in a miscarriage of justice - Limited relevance of evidence as to effects of alcohol - Details of proposed evidence not provided

Road Traffic Act 1974 (WA), s 63, s 66, s 68, s 70

1 This appeal against conviction was heard by me on 13 February 2013. At that time I ordered that leave to appeal be refused and the appeal be dismissed. I stated that reasons for my decision would be published subsequently. These are my reasons.

2 On 27 June 2012 the appellant was convicted after trial of driving whilst under the influence of alcohol contrary to s 63(1) of the Road Traffic Act 1974 (WA) (RTA). She was fined $900, ordered to pay costs and disqualified from holding a drivers licence for 10 months.

3 The ground on which the appellant sought leave to appeal can be summarised as follows; there was a miscarriage of justice because the hearing should have been adjourned to enable the appellant to obtain expert evidence and legal representation.

4 An application for an adjournment had been made shortly before the trial in the Magistrates Court and had been refused. Whilst lack of legal representation is referred to in the ground, the unfairness is said to principally arise from the inability to call expert evidence. It was because of the unavailability of an expert witness that the adjournment was sought.

5 In order to have any realistic prospect of succeeding the appellant needed to place information before this court as to the nature of any expert evidence that she would have adduced if an adjournment had been granted. In the absence of such information it is not possible to determine whether the evidence would have been relevant, let alone significant. Without proof of the proposed expert evidence it would not be possible for the appellant to establish that there was a miscarriage of justice.

6 The appeal first came on for hearing on 6 December 2012. At that time the appellant did not provide anything other than a very general oral statement as to the proposed expert evidence. She was granted an adjournment to obtain a report from a prospective expert witness who she had mentioned. Pritchard J also made an order that the appellant was to file and serve a copy of any expert report on which she wished to rely by 31 January 2013.

7 The matter was relisted for hearing before me on 13 February 2013. The appellant did not attend. A letter advising her of the hearing date had been sent to the appellant by the court on 16 January 2013. There was no response to that letter or to an earlier email seeking unavailable dates after 4 February 2013. The appellant also did not comply with the order requiring that any expert report be filed by 31 January 2013, nor had she sought an extension of time in respect of that order. In these circumstances I considered it appropriate to proceed with the hearing.

8 On 25 November 2011 the appellant was charged that on 16 November 2011 she had driven a motor vehicle on a road whilst under the influence of alcohol to such an extent as to be incapable of having proper control of such vehicle contrary to s 63(1) of the RTA. That charge was first mentioned in the Magistrates Court on 20 December 2011.

9 According to the prosecution notice the appellant appeared unrepresented on 20 December 2011 and the matter was adjourned to 10 January 2012. The appellant was again unrepresented on 10 January 2012 and the matter was further adjourned to 5 April 2012 to enable her to negotiate with the prosecutor. The appellant was again unrepresented on 5 April 2012 and the matter was adjourned to a hearing on 27 June 2012.

10 On 25 June 2012, that is two days before the trial was due to commence, the appellant made an application to have the trial vacated and listed on another date. The application was heard by the Chief Magistrate. On this occasion the appellant was represented by a lawyer, though the name of that lawyer is not recorded in the transcript. The basis for the application was that the appellant had only instructed the lawyer 'a few days ago'. On receipt of those instructions the lawyer had spoken to an expert who was willing to give evidence in this matter but there was 'no time for the expert to give evidence' on 27 June 2012. Nor had there been sufficient time to inform the prosecution of the intention to call an expert witness. The reason for the delay in instructing a lawyer was said to be that the appellant had submitted documents to the police prosecutor and had believed that those documents would convince the prosecution not to proceed with the charge.

11 The Chief Magistrate refused the application. In doing so he commented that the appellant had had 12 months to instruct a lawyer. That appears to be an error as the charge had been laid on 17 November 2011, some seven months earlier. That error is not, however, likely to have been material to the outcome.

12 It was not suggested in the adjournment application that the lawyer would be unavailable on the hearing date, though this may have been implied. In any event, the appellant appeared unrepresented on 27 June 2012 before Magistrate Wheeler.

13 Prior to the commencement of the trial the appellant was asked whether she was ready to proceed and whether she had all the witnesses that she was proposing to call. She responded by saying that she did have a witness but that he was overseas and had tried to vacate the trial date. She gave the name of the proposed witness and said that he was an expert in 'the effects of alcohol on the body'. Whilst the appellant did not formally renew an application for an adjournment, it is apparent from the transcript that the magistrate was of the view that an adjournment was not appropriate and that 'experts have limited place by virtue of the wording of the legislation' (ts 47). The trial proceeded and the appellant represented herself.

14 The prosecution evidence at trial was that on the evening of 16 November 2011 police officers in a marked police vehicle noticed the appellant's vehicle veering from the lane in which it was travelling into a car travelling in the next lane. This happened two or three times and the appellant's vehicle was then observed swerving erratically. The officers activated the siren and pulled the vehicle over. It was noted that when the officers tried to speak to the appellant her speech was slurred to such an extent that they could not understand what she was saying. She could not keep her balance when she got out of the vehicle. She appeared to the officers to be heavily affected by alcohol.

15 A preliminary breath test was administered and found to be positive. The admissibility of this evidence was questionable, but it appears only to have been led to explain the course of events and the magistrate indicated that he would ignore it (s 70(6) RTA, ts 26). The officers then required the appellant to return to a police station in order to undergo an evidentiary breath test: s 66 RTA. A test with a selftesting breath machine returned a reading of 0.238 grams of alcohol per 100 ml which was calculated to 0.225 grams of alcohol per 100 ml at the time of driving. A certificate in the prescribed form was tendered by the prosecution pursuant to s 70 of the RTA. This certificate was prima facie evidence that the officer who conducted the test was an authorised person, that the apparatus was selftesting breath analysing equipment within the meaning of s 65 of the RTA, that the equipment was operated in the prescribed manner and that the reading was as previously referred to.

16 By virtue of s 68(8) of the RTA the analysis result was deemed to be the appellant's blood alcohol content at the time the sample of breath was provided. As that blood alcohol content was above 0.15 grams of alcohol per 100 ml of blood the appellant was deemed to have been under the influence of alcohol to such an extent as to be incapable of having proper control of a motor vehicle at the time of the alleged offence: s 63(5) of the RTA.

17 There was some crossexamination of the police witnesses by the appellant, but the accuracy of the reading provided by the selftesting analysis machine was not challenged. The appellant's case was that at the time of the offence she had been suffering from a compacted wisdom tooth and had been using a pain relieving mouth wash prior to driving. She believed that the mouth wash had been the cause for the high breath analysis reading.

18 The implication of the appellant's evidence was that the breath analysis reading may be correct but that it did not truly reflect her blood alcohol level. There were difficulties with this argument in that the appellant admitted in her evidence that she had swallowed some of the mouth wash and also that prior to driving she had consumed three glasses of wine. In any event, the appellant needed to overcome the effect of the statutory deeming provisions I have referred to above.

19 The magistrate referred to the statutory provisions and then said:

So she did blow that reading and that's deemed to be the percentage of alcohol in her blood, so she is guilty of the offence unless the situation is that by consuming Savacol, which again is - the evidence that has been given is hearsay but even though, I accept it, that that was an alcoholic mouthwash because not all of them are but we will say it is; it had lignocaine in it which - there's no evidence whatsoever before this court, or pretty well any court - many doctors have tried and none have succeeded in convincing the court because parliament passed the law that antibiotics, headache tablets, anything really, affects the reading because it's the reading of alcohol in the lungs that's measured. So it's not going to work unless there's an issue where the prosecution won't have been able to prove beyond a reasonable doubt that she had an honest and reasonable but mistaken belief that there was no alcohol in the substance.

Either that - I can't be certain whether it did but I accept the evidence of the accused that it did. There's no independent evidence but I will accept that. Did she have an honest and reasonable but mistaken belief it had no alcohol in it? Well, no. If it was honest and I have no reason to dispute it, it certainly wasn't reasonable. To consume something that's a mouthwash which has the intention of actually deadening pain without reading what's in the label and what you are consuming is not reasonable. If that's a mistake, it's certainly not a reasonable one. I'm satisfied that if there is a defence open under that section, the prosecution has satisfied me beyond a reasonable doubt that such honest belief was not reasonably held (ts 51 52).

20 Whether an adjournment should be granted is a matter for the discretion of the court to which the application is made. Where it is suggested that there has been an error in the making of a discretionary decision it is not enough that an appeal court may have made a different decision; it must be shown that some error has occurred in the exercise of the discretion: House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 505 (Dixon CJ, Evatt and McTiernan JJ). This may include acting on a wrong principle, taking into account any irrelevant consideration or failing to take into account a relevant consideration. In some cases it may not be apparent how a decision has been reached but the result is so plainly unjust that it can be inferred that an error in the exercise of discretion must have occurred.

21 In this case there is nothing to indicate any express error in the exercise of discretion to refuse an adjournment, either by the Chief Magistrate or Magistrate Wheeler. In these circumstances what the appellant must show is that it can be inferred that there was an error. Such an inference could only be drawn if it was apparent that it was not open to exercise the discretion to refuse an adjournment.

22 Where the refusal of an adjournment would result in serious injustice to one party an adjournment should be granted unless in turn this would mean serious injustice to the other party. An appellate court will not interfere with a discretionary order of this type unless there is strong reason for believing that an injustice has resulted: Myers v Myers [1969] WAR 19, 21.

23 In addition to the question of injustice to the parties it is also necessary for a judicial officer to take into account the public interest in the orderly and expeditious disposition of cases in busy courts. There is a strong public interest in the timely disposition of all criminal cases. The effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing need to be taken into account. However, those considerations will necessarily be subordinated to the interests of justice in a case in which it is established that the refusal of an adjournment would deprive an accused person of the opportunity to present a case which has a reasonable prospect of success: The State of Western Australia v Sillich [2011] WASCA 135 [37] (Martin CJ).

24 It is fundamental to the administration of justice that an accused person must be given full opportunity to present his or her defence and an adjournment should be granted if it is necessary to enable the accused person to properly present that defence. However, in considering an application for an adjournment to allow a defence witness to be brought from elsewhere it is proper to reject such an application if the court reaches the conclusion upon reasonable grounds that such a witness would be unlikely to give evidence tending to exculpate the accused: Leary v The Queen [1975] WAR 133, 138.

25 Adjournments are not available for the asking. It undermines the orderly disposal of the work of the courts when trials, particularly criminal trials, are adjourned unnecessarily: Greer (1992) 62 A Crim R 442, 448 (Kirby J).

26 Appeals brought against a refusal of an adjournment by a magistrate have failed in circumstances where the appellant was unable to establish that the refusal gave rise to an injustice: Pallett v Paul [2007] WASC 290 and Lyster v Kemp [2010] WASC 47.

27 The fact that a defendant is unrepresented by a lawyer cannot of itself amount to a miscarriage of justice. The question must be whether it was fair to proceed in the circumstances: Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292.

28 A trial should be adjourned, postponed or stayed if an accused is unrepresented and the offence is a serious one, the accused is indigent and is unable to obtain legal representation through no fault of his or her own: Dietrich (399).

29 The charge faced by the appellant was simple in nature. The evidence was brief and the issues were straightforward. The appellant crossexamined the prosecution witnesses and gave evidence in her defence. It is not apparent that she suffered any disadvantage from the fact that she was unrepresented.

30 Furthermore, this was not a case in which it could be said that the appellant was unrepresented through no fault of her own. On the available information it would appear that she only approached a lawyer to act for her very shortly before the trial was due to commence. Even if she delayed seeking a lawyer because she had some hope that the charges would be discontinued, it was extremely imprudent to rely upon that hope. The Chief Magistrate was wrong as to the length of time that the charge had been pending, but it is clear that the appellant nonetheless had ample opportunity to retain a lawyer to represent her at the trial.

31 As regards expert evidence, the appellant has not at any stage provided a report as to the nature of the evidence which she wished to adduce from the unavailable expert witness. The extent of the information provided to the Magistrates Court was that the proposed expert was an academic from Curtin University and could give evidence as to the effect of alcohol on the body. Given the deeming provision in s 65(5) it is difficult to see how any expert evidence as to the effect of alcohol could have any relevance.

32 The relevant legislation is directed at the danger of persons driving motor vehicles having consumed alcohol to the extent that it affects their ability to drive. The aim of ensuring that this does not occur has been given effect to by making proof easier: Casson v Johnston (1995) 12 WAR 1. See also Rozario v Rowllinson [2006] WASC 181; ;(2006) 46 MVR 198.

33 In this case the s 70 certificate was prima facie evidence of the breath analysis reading. On proof of that breath analysis the appellant's blood alcohol content was deemed to be that derived from the analysis result at the time the sample was provided: s 68(8) of the Road Traffic Act. Because that reading was significantly in excess of 0.15 the appellant was deemed to have been under the influence of alcohol to such an extent as to be incapable of driving her vehicle: s 63(5). It is evident from this that there was little if any room for expert evidence as to 'the effect of alcohol on the body'.

34 The only point at which there is the possibility for contrary evidence is as to whether the prima facie evidence of the certificate can be rebutted. An accused person can attempt to displace the prima facie evidence status of the matters that must be established by the prosecution in order to produce the analysis result. In Rozario Jenkins J noted that this could be done by various means including by adducing evidence that the accused had a different blood alcohol content to the BAC result indicated in the police breath test. Her Honour said that such evidence was admissible not in order to directly rebut the analysis result but in an attempt to rebut the evidence of the matters the prosecution must prove to establish the analysis result: See also Addiscott v Reeman [2002] WASCA 116; (2002) 36 MVR 538 [7] and Daurat v Chammasian [2000] WASCA 32; (2000) 30 MVR 197 [37] [41].

35 In this case, as I have noted, no details of any expert evidence that the appellant proposed to give have been provided. It is inappropriate to speculate as to what evidence she may have hoped to obtain. In these circumstances, there is no support for the appellant's contention that she was disadvantaged by the refusal to vacate the trial. No miscarriage of justice has been established.

36 Leave is required in respect of each ground of appeal. The court must not grant leave to appeal unless a ground has a reasonable prospect of succeeding. This means that a ground must have a real, rational and logical prospect of succeeding and is more than arguable: s 9(2) Criminal Appeals Act 2004 (WA) and Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].

37 The ground of appeal has no prospect of success. For these reasons leave to appeal was refused and the appeal was dismissed.