Maher v Richardson [2012] ACTSC 21

1"> 3. After an amendment of Mr Maher's appeal ground, I upheld his appeal and remitted the matter to the Magistrates Court, saying that I would provide reasons later. These are my reasons.

4. The following description of the circumstances of Mr Maher's offence is taken from the statement of facts read out in the Magistrates Court.

5. On the morning of 15 December 2007, police were conducting random breath testing in Holt. Mr Maher was stopped and subjected to an alcohol screening test. The test returned a positive result, and police told Mr Maher that he would be taken to the Belconnen Police Station for breath analysis. He said that he had "just put mouth ulcer gel in [his] mouth" and asked whether that could "be giving a positive reading". Police told Mr Maher that he would be screened again after ten minutes.

6. After the ten minutes had elapsed, Mr Maher was again tested and again returned a positive result. He was taken to the Belconnen Police Station for breath analysis. The breath analysis showed a blood alcohol content of 0.064 grams of alcohol per 100 millilitres of blood, and Mr Maher was charged with the offence that was the subject of this appeal.

7. On 19 March 2008 Mr Maher represented himself in the Magistrates Court and pleaded guilty to the charge. The Magistrate found the offence proved, convicted Mr Maher, fined him $250 and disqualified him from driving for two months.

8. Mr Maher filed a Notice of Appeal on 1 April 2008 appealing against the whole of the Magistrate's order. The ground of appeal specified was "Penalty too severe with my good driving record", and the order sought was "that the conviction, suspension and fine be cancelled".

9. When the matter came on for hearing on 19 August 2008, Mr Maher, who was again representing himself, sought to argue the possibility that his positive breath analysis reading had been caused by the use of mouth ulcer ointment; among other things he sought to tender a variety of material such as newspaper articles. The prosecutor foreshadowed the tendering of "a significant amount of evidence in relation to the defence of mouth ulcer ointments in PCA matters". Mr Maher indicated an intention to seek legal advice, and the appeal hearing was adjourned. There were several further adjournments, and in the meantime, with leave, Mr Maher had filed submissions that suggested to the prosecutor that the real basis of his appeal was not the severity of the sentence but the acceptance by the Magistrate of a guilty plea which was not unequivocal.

10. When the hearing resumed on 9 February 2009, the prosecutor indicated that she would not oppose a grant of leave to Mr Maher to add a new appeal ground along the lines that "a guilty plea was not unequivocal and as such the learned Magistrate erred in accepting the plea". That leave was given, and the appeal ground was added.

11. In the Magistrates Court, Mr Maher had been charged and asked whether he pleaded guilty. He responded as follows:

MR MAHER: I think I understand from the reading I was guilty, but exceptional circumstances are involved.

HER HONOUR: All right. So, you're pleading guilty and you just want to tell me about it?

MR MAHER: Yes. Yes.

12. The statement of facts was then read onto the record, and the Magistrate immediately found the offence proved. Mr Maher then made submissions, first about his good driving record over many years of working as a driver, and then about the offence:

The only thing I can think about this particular case was I - either I go to the club of an evening or I never have more than one drink, one standard drink if I'm driving, even if I'm not driving I only have two. I've never been drunk in my life, even as a teenager and I'm always very careful. This statement here shows, as I said, I haven't even got a parking ticket in 25 years of driving and I'm on the road about 1,000 kilometres a week ...

I've got RTA public service authority to drive public vehicles in New South Wales. My own licence is endorsed to drive hire chauffeured vehicles, omnibuses from the largest coaches in Australia to the smaller mini buses. And as I've said, I've driven - this covers 25 years past and I've never even had a parking ticket so I'm always very careful, so, I've never ever drive [sic] a vehicle and have more than one standard drink. The only thing I can think of, I did, about four minutes before I was pulled - I went close by, I did use this mouth medication for ulcers and I'm led to believe from the pharmacist it does contain alcohol. So, of course, I'll never use that again. If I have to use it, I'll use it at night before going to bed.

13. In Maxwell v The Queen (1996) 184 CLR 501, Dawson and McHugh JJ said:

20. The plea of guilty must however be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt. Those circumstances include ignorance, fear, duress, mistake or even the desire to gain a technical advantage. The plea may be accompanied by a qualification indicating that the accused is unaware of its significance. If it appears to the trial judge, for whatever reason, that a plea of guilty is not genuine, he or she must (and it is not a matter of discretion) obtain an unequivocal plea of guilty or direct that a plea of not guilty be entered. (citations omitted)

14. Mr Maher's comment when he pleaded guilty (at [11] above) hinted at something of a qualification on his plea. It is implicit in his later comments quoted at [12] above that, while Mr Maher conceded that he might have had alcohol on his breath as a result of his use of the mouth ulcer medication, he was not conceding the element of the offence constituted by the presence of alcohol in his blood.

15. In those circumstances, I was satisfied that as indicated by Dawson and McHugh JJ, her Honour should have either obtained an unequivocal plea of guilty or directed that a plea of not guilty be entered, and that in failing to do so, and proceeding on the basis of Mr Maher's equivocal plea, she was in error.

16. Accordingly, I upheld Mr Maher's appeal and, under s 218(1)(c) of the Magistrates Court Act 1930 (ACT), I set aside the finding of guilt and the conviction recorded by the Magistrate on 19 March 2008, directed that a plea of not guilty be entered, and remitted the matter to the Magistrates Court for hearing.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.

Solicitor for the respondent: ACT Director of Public Prosecutions

Dates of hearing: 19 August, 12 September, 10, 24 October, 14, 21 November 2008, 9 February 2009