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[1990] HCA 6
High Court of Australia
1990-02-27
Toohey J
Original judgment source is linked above.
MILLS v. MEEKING [1990] HCA 6; (1990) 169 CLR 214
Mason C.J.(1), Brennan(2), Dawson(3), Toohey(1) and McHugh(4) JJ.
Criminal Law - Driving offence - Prescribed concentration of alcohol - Sample of breath - Analysis of sample furnished within three hours after driving vehicle indicating presence in blood of more than prescribed concentration of alcohol - Whether offence committed only when vehicle involved in accident - Road Safety Act 1986 (Vict.), s.49(1)(f).
MASON C.J. AND TOOHEY J. Part 5 of the Road Safety Act 1986 (Vic.) relates to offences involving alcohol or other drugs.
3. The provision under which the appellant was charged and convicted is s.49(1)(f) as it then stood. It is necessary, in order to understand the argument addressed to the Court, to set out s.49(1) in its entirety:
" A person is guilty of an offence if he or
she -
(a) drives a motor vehicle or is in
charge of a motor vehicle
while under the influence of
intoxicating liquor or of any
drug to such an extent as to be
incapable of having proper
control of the motor vehicle; or
(b) drives a motor vehicle or is in
charge of a motor vehicle while
more than the prescribed
concentration of alcohol is
present in his or her blood; or
(c) refuses or fails to undergo a
preliminary breath test in
accordance with section 53 when
required under that section to do
so; or
(d) refuses or fails to comply with a
request or signal to stop a motor
vehicle given under section
54(3); or
(e) refuses or fails to comply with a
requirement made under section
55(1) or (2); or
(f) within 3 hours after driving or
being in charge of a motor
vehicle furnishes a sample of
breath for analysis by a breath
analysing instrument under
section 55(1) and the result of
the analysis as recorded or
shown by the breath analysing
instrument indicates that more
than the prescribed concentration
of alcohol is present in his or
her blood; or
(g) has had a sample of blood taken
from him or her in accordance
with section 56 within 3 hours
after driving or being in charge
of a motor vehicle and the sample
has been analysed within
12 months after it was taken by a
properly qualified analyst within
the meaning of section 57 and the
analyst has found that at the
time of analysis more than the
prescribed concentration of
alcohol was present in that
sample."
Some paragraphs of s.49 apply both to the driver of and to the person in charge of a motor vehicle. Other paragraphs relate only to the driver of a motor vehicle. This appeal is concerned with the position of a driver.
4. Paragraph (a) of s.49(1) is the traditional "driving under the influence" charge. A conviction does not depend upon proof of alcohol in the defendant's blood nor does it require that the defendant has been involved in an accident. Paragraph (b) does of course require that a person drive with more than the prescribed concentration of alcohol in his or her blood. The prescribed concentration is .05 grams per 100 millilitres of blood except for probationary or learner drivers for whom the prescribed concentration is zero blood alcohol. There seems no reason why a conviction under this paragraph should not result from a breath analysis conducted under s.55(1) or (2), as well as from a blood test conducted under s.55(7) or s.56 of the Act.
5. Paragraphs (c), (d) and (e) of s.49(1) must be read with the section to which each refers. Paragraph (c) refers to s.53. Section 53(1) empowers a member of the police force to require (a) a person found driving a motor vehicle, (b) the driver of a motor vehicle that has been required to stop at a preliminary breath testing station, or (c) any person believed on reasonable grounds to have driven, within the last three preceding hours, a motor vehicle when it was involved in an accident, to undergo a preliminary breath test. Section 53(2) empowers an officer of the Road Traffic Authority to require any person found driving or in charge of a commercial vehicle to undergo a preliminary breath test. Paragraph (d) refers to s.54(3) which in turn relates to the testing of drivers at preliminary breath testing stations. Paragraph (e) refers to s.55(1) and (2). Section 55(1) is concerned with a preliminary breath test taken under s.53 where the test indicates that the person's blood contains alcohol in excess of the prescribed concentration, or a situation in which a person refuses or fails to carry out such a test. In those situations the person may be required to furnish a sample of breath for analysis by a breath analysing instrument. Section 55(2) empowers a member of the police force to require a person, whom he reasonably believes to have offended against s.49(1)(a), to furnish a sample of breath for analysis instead of undergoing a preliminary breath test in accordance with s.53.
6. Paragraph (g) of s.49(1) relates to the situation of a person who has had a blood sample taken in accordance with s.56. That section authorizes the taking of a blood sample from a person who has entered or has been brought to a "designated place" such as a hospital following an accident involving a motor vehicle. That paragraph need detain us no further. We return to par.(f).
7. In its terms par.(f) operates whenever a person, within three hours after driving, furnishes a sample of breath for analysis by a breath analysis instrument as a result of a demand made following a preliminary breath test, in exercise of the power in s.55(1) read with s.53. Involvement in an accident is not a prerequisite to a demand for a preliminary breath test made under s.53, though it may be relevant to such a demand: see s.53(1)(c).
8. On the view of s.49(1)(f) contended for by the respondent, it is possible for a person who has not been drinking alcohol prior to driving but who drinks thereafter and is shown by a breath analysing instrument to have more than the prescribed concentration of alcohol in his or her blood, to be liable to conviction under par.(f). By reason of s.49(6), in any proceedings under par.(f) or (g) of s.49(1), "evidence as to the effect of the consumption of alcohol on the defendant is inadmissible for the purpose of establishing a defence to the charge". In the case of a prosecution under par.(a) or (b) of s.49(1), s.48(1) provides that if it is established that at any time within three hours of an alleged offence against one of those paragraphs a certain concentration of alcohol was present in the blood, it must be presumed, "until the contrary is proved", that not less than that concentration of alcohol was present at the time when the offence is alleged to have been committed. It is possible, therefore, in the case of a prosecution under par.(a) or (b), to adduce evidence as to the amount of alcohol the defendant had consumed before and after driving. In the case of par.(f), the Full Court observed:
"Effectively, however, the only available
defence to a s.49(1)(f) prosecution is under
s.49(4) that the breath analysing instrument
used was not on the relevant occasion in
proper working order, a defence which for
practical purposes may be without real value
if examination of a particular machine by or
on behalf of a person whose breath has
been tested has no practical possibility":
Meeking v. Crisp [1989] VicRp 65; (1989) VR 740 at p 744.
9. As a matter of the literal reading of the legislation, the appellant does not quarrel with the view of s.49(1)(f) contended for by the respondent. But he contends that a literal reading has draconian consequences which demand that the paragraph be read down. That is a matter to which we shall turn after saying something of the circumstances giving rise to the charge against the appellant.
10. At about 2.50 a.m. on Saturday, 10 October 1987, the appellant's driving attracted the attention of two police officers, one of whom is the first respondent to this appeal ("the respondent"). The appellant overtook a vehicle without indicating his intention to do so. There was no accident. The police officers intercepted the appellant's vehicle. They could smell alcohol on the appellant's breath and his eyes appeared glazed, with some trouble in focusing. They questioned the appellant about his drinking, conducted a preliminary breath test, the result of which was positive, and took the appellant to a police station where he submitted to a breath analysis. The appellant was a probationary driver and the result of the breath analysis was well in excess of a zero blood alcohol content. The appellant was in "custody" from the time of interception of his vehicle until he submitted to a breath analysis. There was, therefore, no question that the result of the breath analysis was in any way influenced by alcohol consumed after the appellant had been driving. The appellant was charged under s.49(1)(f) of the Act.
11. In the Supreme Court of Victoria Crockett J., after analysing the Act, saw par.(f) as intended to deal with those cases "in which the apparently culpable driver is not detected at the time of his driving and, although when so detected he is then found to have more than the prescribed concentration of alcohol in his blood he is able to claim - often without possibility of proof of the contrary - that that concentration was due to post-accident drinking". However, relevant legislative material, to which reference is made later in these reasons, suggests that the inference drawn by his Honour as to the intended operation of s.49(1)(f) may not accord with the ultimate intention of the Victorian Parliament.
12. Crockett J. went on to find a correspondence between the components of s.53(1) and the components of s.49(1), s.53(1)(a) leading to a charge under s.49(1)(b) and s.53(1)(c) leading to a charge under s.49(1)(f). He said:
" It appears to me tolerably plain that, if
a preliminary breath test undergone by a
person who has driven a vehicle within three
hours of that vehicle's involvement in
an accident leads to a breath analysis
... which discloses a blood alcohol
concentration in excess of the prescribed
limited (sic), then the offence created to
deal with that circumstance is that to be
found in s.49(1)(f). ...
But none of this has anything to do with
the defendant. He was not involved
in an accident. He could not have consumed
alcohol so as to confound the proper
assessment of his culpability. He was
caught up by a power to be breath tested
created by s.53(1)(a). Accordingly, he
should have been charged under s.49(1)(b).
Instead, he was charged under the wrong
provision."
His Honour concluded his analysis of the Act in this way:
"In my opinion s.49(1)(f) has to be construed
as if the words 'which has been involved in
an accident' were inserted after the words
'motor vehicle'."
13. The Full Court at p 743, disagreed with Crockett J.'s construction of s.49(1)(b) and (f), saying:
" Section 49(1)(b) and s.49(1)(f) create
different offences. The first relates, in
effect, to having more than .05 per cent
alcohol in the blood when driving or in
charge of a motor vehicle, while the second
relates solely to having that excess within
three hours after driving."
The Court then went on to emphasize that proof of the second of these offences depended on a preliminary breath test having been administered under s.53(1)(a), (b) or (c) of the Act and a sample taken pursuant to s.55(1). Thus, the Court said, if there were no accident and no reasonable belief that one had occurred, a preliminary test must have been administered under s.53(1)(a) or (b). That is, the person concerned must have been found driving - s.53(1)(a), or have been required to stop at a breath testing station - s.53(1)(b). "This provides some safeguard, for example, against a person being intercepted after drinking with dinner at home and being required to undergo a breath test within three hours of having driven home without incident from work": ibid. The Court then said that a test under s.55(2) cannot lead to a prosecution under s.49(1)(f) "because the latter depends for its proof on tests having been administered under s.55(1)": ibid. The latter assertion is no doubt correct, for par.(f) is expressly geared to s.55(1) which in turn depends upon a preliminary breath test under s.53. Section 55(2) authorizes a breath analysis without the need for a preliminary breath test. A breath analysis recorded in those circumstances is not an analysis of a sample furnished for analysis under s.55(1).
14. The Full Court recognized that the operation of s.49(1)(f) could be very harsh in "the case of the sober person who is involved in a collision on the way home and in which no-one is injured and then returns home and has his or her first drinks for the day and is then tested": ibid. The Court, like Crockett J., held that nevertheless the paragraph was applicable in the case of a person believed to have driven a motor vehicle involved in an accident. But, unlike Crockett J., the Full Court did not confine the operation of par.(f) to that circumstance. In the Court's view, the provision was clear and unambiguous and there was no justification for reading words into s.49(1)(f) in the manner suggested by Crockett J. The appeal was allowed.
15. Before us, the appellant challenged the Full Court's construction of s.49(1)(f) and argued for a restoration of the construction placed on the provision by Crockett J. He also contended, as he had in earlier proceedings, that it was, in the circumstances, an abuse of process for him to be charged under s.49(1)(f) when it was equally open for the respondent to charge him under s.49(1)(b). The argument was that a deliberate choice had been made by the respondent to charge the appellant under par.(f) so as to withhold from him any possible defence based on the effect of the consumption of alcohol on him.
16. This Court was furnished by counsel for the appellant and the respondent with material relating to the history of the relevant legislation and statements made at the time s.49(1)(f) was introduced. Section 35(a) of the Interpretation of Legislation Act 1984 (Vic.) requires a construction "that would promote the purpose or object underlying the Act". Section 35(b) permits consideration to be given "to any matter or document that is relevant", including, but not limited to, reports of Parliamentary proceedings and explanatory memoranda or other documents laid before or otherwise presented to Parliament.
17. The purpose of Pt 5 of the Road Safety Act is of course expressly identified in the statute. By way of background to Pt 5, the Full Court of the Supreme Court of Victoria had, on 20 February 1986, delivered judgment in Lamb v. Morrow [1986] VicRp 61; (1986) VR 623. The Court held, in relation to the Motor Car Act 1958 (Vic.), that there was no statutory presumption in favour of the accuracy of breathalysers. It was therefore open to a defendant to show, by evidence, that breathalysers in general do not always show accurately the percentage of alcohol in the blood. In his second reading speech after the Road Safety Bill 1986 had been introduced in the Legislative Assembly, the Minister referred to that decision and to the determination of the Government to "tidy up" the situation. The Minister stated: "The Bill ... contains provisions designed to prevent technical defences against drink-driving charges": Victorian Legislative Assembly, Parliamentary Debates, 11 September 1986, p 230.
18. Later, reference is made to the difficulties associated with an argument which relies upon discerning the intention of Parliament with respect to the operation of the provisions in issue, other than that which may be inferred from the statute itself. For the present, there is no need to have resort to extrinsic material; the provisions may be given their ordinary grammatical meaning. If the language of a statute is ambiguous or uncertain, a risk of injustice will bear upon the construction to be given to words used. But, if the language is not ambiguous or uncertain, a court will apply its ordinary and grammatical meaning unless to do so will give the statute an operation which obviously was not intended: see generally Cooper Brookes (Wollongong) Pty. Ltd. v. Federal Commissioner of Taxation (1981) [1981] HCA 26; 147 CLR 297 at pp 304-305, 320-321; also Catlow v. Accident Compensation Commission [1989] HCA 43; (1989) 63 ALJR 619 at p 622; [1989] HCA 43; 87 ALR 663 at p 668. This legislation is not relevantly ambiguous or uncertain.
19. As it stands, s.49(1)(f) relates to s.55(1) and s.55(1) relates, not to a portion of s.53, but to the section generally. Section 53, as already noted, identifies four situations in which a person may be required to undergo a preliminary breath test. Three of these situations relate to persons intercepted while driving (s.53(1)(a), (b), s.53(2)); the other relates to a person believed to have been the driver of a motor vehicle which was involved in an accident: s.53(1)(c). There is no particular reason for singling out par.(c) of s.53(1) and no particular reason for reading down s.49(1)(f) as if it contemplated only a preliminary breath test required under par.(c) of s.53(1). Equally, there is no particular reason for treating s.49(1)(b) as if it contemplated only a preliminary breath test required under par.(a) of s.53(1). As a matter of plain language, there is no justification for reading the various provisions that way.
20. Nor is there any justification for so doing because the provisions cannot otherwise be "intelligibly applied": see Cooper Brookes, at p 305. Section 49(1)(f) only applies to persons who, within three hours of driving, have furnished a sample of breath in accordance with s.55(1) resulting in a reading above the prescribed concentration. Therefore, apart from those believed to have been involved in a motor vehicle accident, the provision is confined to persons who, while driving, have been intercepted by a member of the police force or by an officer of the Road Traffic Authority. One would expect such a person to remain in the company of the member or officer until he or she has furnished a sample of breath for analysis, as indeed occurred in this case. In that circumstance, a defence based on post-driving consumption of alcohol could at best be regarded as fanciful and, at worst, evidence of a deliberate attempt to frustrate the breath analysis. The withholding of such a defence in that circumstance cannot be said to be unintelligible.
21. However, it is the very non-feasibility of a defence based on post-driving alcohol consumption in the present case that is the basis for the appellant's alternative submission based on abuse of process. He contends that, where such a defence is not reasonably open on the facts, there is no justification for having resort to s.49(1)(f), that paragraph having "as an aim, if not on this argument the sole aim, the stamping out of a social mischief, that is to say, the tricksters' defence (of) post accident drink, that confounds the purposes of the Act". To continue the submission, because a charge under s.49(1)(f) also deprives the defendant of any defence based on "the effect of the consumption of alcohol" on him or her (s.49(6)), a prosecutor should only rely on par.(f) when to do so would be to serve the "particular social purposes" of the Act.
22. On the appellant's own argument, he must first establish that in spite of the terminology adopted, s.49(1)(f) was intended to be confined to defences based on post-accident consumption of alcohol. The Minister's second reading speech contains this passage, on which the appellant relies:
" The only grounds on which a breath
analysis reading may be challenged will be
that the particular instrument was operated
improperly or was defective. Motorists will
need to be aware that the offence is being
over the legal limit at the time of being
tested. Consequently, a motorist who drinks
after being involved in an accident but
before being tested cannot use this to
subvert the possibility of a conviction as
at present and runs the risk that the
penalty may be substantially increased by a
higher reading when tested. The seriousness
of the offence of drink-driving is such that
measures such as these are warranted":
Legislative Assembly, Parliamentary Debates,
11 September 1986, p 230 (emphasis added).
A similar statement appears in the second reading speech of the Attorney-General in the Legislative Council (18 November 1986, p 1026).
23. However, these statements must be taken in context. In his speech, the Attorney also referred to amendments adopted by the Assembly, one of which "enables a person charged with drink-driving offences who has not been caught behind the wheel or involved in an accident to give evidence of alcohol consumption after the cessation of driving": ibid (again, emphasis added). The amendment referred to by the Attorney was to s.49(1)(f) which originally mentioned s.55(2) as well as s.55(1). The amendment was to deal with the situation of the "rogue policeman" who might demand a breath analysis of a person whom he has not found driving or who has not been required to stop at a breath testing station or whom he has no reason to believe was driving a vehicle and involved in an accident. In moving the omission of the reference to s.55(2), the Minister said:
" The amendment restores the current law,
allowing breath-tests to be administered
without a preliminary breath-test having
first been undergone, but restricting
prosecutions following on from such tests to
the existing drink-driving offence.
Evidence of alcohol drunk after driving
can be given in such a case. A preliminary
breath-test can be administered where a
person has been found driving or has been in
an accident. A breath analysis after this
can still lead to a 'fail the test' charge":
Legislative Assembly, Parliamentary Debates,
12 November 1986, p 1998 (emphasis again
added).
By omitting any reference to s.55(2), the scope of s.49(1)(f) was correspondingly reduced. However, it is apparent that, at that stage, s.49(1)(f) was not intended to be confined to the situation where there had been an accident.
24. But what has been omitted from the legislative material so far cited is that, by the time the Bill became law, the provisions in question were thought to have been substantially altered by further amendments that had been initiated in the Legislative Council: Legislative Council, Parliamentary Debates, 5 December 1986 pp 1672, 1677; Legislative Assembly, Parliamentary Debates, 5 December 1986 p 3033. Of particular significance is the amendment to s.49(6) which in its original form had expressly excluded defences to s.49(1)(f) based on evidence as to "the consumption or non-consumption of alcohol by the defendant at any time before furnishing the sample of breath for analysis" - cl.49(6)(a), and "the general inaccuracy of breath analysing instruments of the type used" - cl.49(6)(c), as well as a defence based on evidence of "the effect of the consumption of alcohol on the defendant" - cl.49(6)(b). It would seem that, by deleting pars (a) and (c) from cl.49(6), Parliament contemplated that defences based on post-driving alcohol consumption and the general unreliability of breath analysis instruments would be available to anyone charged under s.49(1)(f). What appears to have been overlooked is that, because of the terms of par.(f), evidence of such matters remained irrelevant to a charge under that paragraph except to the extent it might go to prove that the instrument used "was not on that occasion in proper working order or properly operated": s.49(4). The elements of an offence under par.(f) as it then stood concerned only the concentration of alcohol at the time a breath sample is furnished and the result recorded by the instrument in question. Therefore, evidence referred to in cl.49(6)(a), (b) and (c) could in any event be only of limited assistance to a person charged under s.49(1)(f). (As a matter of history, subsequent amendments to the Act make proof of post-driving consumption of alcohol a defence to a charge under s.49(1)(f): see Road Safety (Miscellaneous Amendments) Act 1989 (Vic.), s.7.)
25. If one could be confident of discerning "the intention of Parliament" in these circumstances, rather than assisting the appellant, it might be said that at the very least it was agreed that no defence based on the effect of the consumption of alcohol would be available to a defendant prosecuted under s.49(1)(f). However, any inferences to be drawn from the parliamentary debates must in all the circumstances be unreliable. We prefer to rest our decision on the inferences to be drawn from the Act itself. We therefore leave for another day any comments as to the relevance of "the intention of Parliament" to a charge of abuse of process, where that intention is not discernible in the legislation itself.
26. There is nothing express in the Act which would require that the appellant be prosecuted under par.(b) of s.49(1) rather than par.(f). In accordance with s.51(1) of the Interpretation of Legislation Act, therefore, the appellant was liable to be prosecuted under either of these provisions. In the present case there can be no basis for alleging abuse of process because a decision was made to prosecute the appellant under par.(f) of s.49(1) rather than par.(b).
BRENNAN J. I agree with the construction placed upon s.49(1)(f) of the Road Safety Act 1986 (Vict.) by Mason C.J. and Toohey J. As the facts alleged against the appellant would, if proved, establish a prima facie case of an offence under s.49(1)(f), and as there is nothing to suggest that the charge was preferred for any purpose other than the application of s.49(1)(f) to the facts of the case, there is no abuse of process in prosecuting the appellant on that charge. I refer without repeating to what I said on abuse of criminal process in Jago v. District Court of New South Wales [1989] HCA 46; (1989) 63 ALJR 640; 87 ALR 577.
2. For these reasons I agree with the joint judgment of Mason C.J. and Toohey J. that the appeal should be dismissed.
DAWSON J. The appellant was driving a motor vehicle when he was intercepted by two members of the police force, one of whom was the first respondent, for a minor infringement of the road traffic rules. He was required to undergo a preliminary breath test which, it was alleged, indicated a positive result. Subsequently he was taken to a police station where he provided two samples of his breath for analysis by a breath analysing instrument. The readings of the quantity of alcohol present in the appellant's blood were 0.130 per centum and 0.125 per centum respectively. Upon the information of the first respondent, the appellant was charged with an offence under s.49(1)(f) of the Road Safety Act 1986 (Vict.).
2. Section 49 appears in Pt 5 of the Act which deals with offences involving alcohol or other drugs. Sub- section (1) of s.49, as it was at the time and so far as is relevant, provides:
"A person is guilty of an offence if he
or she -
(a) drives a motor vehicle or is in charge
of a motor vehicle while under the
influence of intoxicating liquor or of
any drug to such an extent as to be
incapable of having proper control of
the motor vehicle; or
(b) drives a motor vehicle or is in charge
of a motor vehicle while more than the
prescribed concentration of alcohol is
present in his or her blood; or
(c) ...
(d) ...
(e) ...
(f) within 3 hours after driving or being in
charge of a motor vehicle furnishes a
sample of breath for analysis by a
breath analysing instrument under
section 55(1) and the result of the
analysis as recorded or shown by the
breath analysing instrument indicates
that more than the prescribed
concentration of alcohol is present in
his or her blood; or
(g) ..."
Save for persons holding certain types of licence, including a probationary licence, the prescribed concentration of alcohol is 0.05 grams per 100 millilitres of blood. In the case of the holder of a probationary licence the prescribed concentration is 0.00 grams per 100 millilitres of blood. It appears that the appellant may have been the holder of a probationary licence but the evidence is unsatisfactory upon that point. Nothing turns on it.
3. There are several things to be noted about s.49(1)(f), the provision under which the appellant was charged. The offence which it creates consists of having a blood alcohol concentration above the prescribed limit at the time of analysis; a person may be guilty of the offence whether or not his blood alcohol concentration exceeded the prescribed limit at the time he was driving the motor vehicle. In this respect par.(f) may be contrasted with par.(b) which makes it an offence for a person to drive a motor vehicle with more than the prescribed concentration of alcohol in his blood. Under s.48(1)(a) there is a presumption that the blood alcohol concentration of a driver charged under s.49(1)(b) was at the time of driving no less than at the time of the analysis of his breath, but the presumption is rebuttable. Also in contrast to par.(b), the defences available to a person charged under par.(f) are limited. Section 49(4) provides that it is a defence to a charge under par.(f) of sub-s.(1) for the person charged to prove that the breath analysing instrument used was not on that occasion in proper working order or properly operated, but s.49(6) provides that in proceedings under par.(f) evidence as to the effect of the consumption of alcohol on the defendant is inadmissible for the purpose of establishing a defence to the charge. Whether this latter provision precludes a person charged under par.(f) from calling evidence of the consumption of alcohol by him as opposed to evidence of the effect of such consumption upon him is, perhaps, problematic. In any event, a defence that the reading upon analysis was faulty is virtually the only defence open when an offence is charged under par.(f) because the offence consists of having more than the prescribed blood alcohol level at the time of analysis, not at the time of driving, and it does not matter when the alcohol which gives rise to the reading was consumed. Whatever the meaning of s.49(6), it can only have the effect of limiting the already limited scope of that defence.
4. Section 49(1)(b), on the other hand, is aimed at persons having a blood alcohol level beyond the prescribed limit at the time of driving and a defendant charged under that paragraph is not restricted in raising a defence that the analysis of his breath was faulty or that the reading did not represent his blood alcohol level at the time of driving, provided a notice is given requiring the analyst to be called as a witness: see s.58(2).
5. It is apparent that the offence created by s.49(1)(f) was intended to deal at least with the situation where a driver, who is involved in an accident, imbibes alcohol after the accident, thus making it difficult or even impossible to prove his blood alcohol concentration at the time of the accident. Whether s.49(1)(f) was intended to deal with more than that is the question which must be resolved in this appeal. The appellant contends that it was not, and points out that he was found driving a motor vehicle and was thereafter, until the breath analysis was carried out, under the observation of members of the police force with no opportunity to consume further alcohol. He submits that, not only was s.49(1)(b) the appropriate section, if any, under which to charge him, but that s.49(1)(f) was unavailable because it must be construed as being limited to circumstances in which a vehicle has been involved in an accident.
6. The matter came on for hearing before a magistrate and at the close of the prosecution case counsel for the appellant submitted that it was an abuse of the process of the court to charge the appellant under s.49(1)(f) rather than s.49(1)(b). A submission to the contrary was made by the prosecution. Of his own motion, and over the objection of both sides, the magistrate amended the information to charge the appellant with an offence under s.49(1)(b). Further proceedings were adjourned to enable the course taken by the magistrate to be tested. Ultimately the matter came before Crockett J. pursuant to O.56 of Ch.1 of the Rules of the Supreme Court (Vict.) which provides for judicial review in matters previously covered by the prerogative writs.
7. Crockett J. held that s.49(1)(f) applies only when a defendant furnishes a sample of breath within three hours after driving a motor vehicle which has been involved in an accident. He was prepared to read into s.49(1)(f) the words necessary to produce that result. Accordingly, he held that the prosecution had not made out any case against the appellant under s.49(1)(f) and that the information ought to have been dismissed rather than amended, because the power to amend an information under s.157 of the Magistrates (Summary Proceedings) Act 1975 (Vict.) is limited to the correction of technical defects. He quashed the decision of the magistrate to amend the information and directed him to dismiss it. Upon appeal to the Full Court of the Supreme Court (Fullagar, McGarvie and Marks JJ.), it was held that s.49(1)(f) was not restricted to cases in which a vehicle had been involved in an accident and had a valid application in the present case. The Full Court directed the magistrate to hear the charge under s.49(1)(f) according to law: Meeking v. Crisp [1989] VicRp 65; (1989) VR 740. The appellant appeals against the order of the Full Court.
8. The appellant submits that the construction placed by Crockett J. upon s.49(1)(f) is correct. In order to follow that submission it is necessary to make further reference to Pt 5 of the Road Safety Act.
9. Section 49(1)(f) can only apply where a person has furnished a sample of breath for analysis by a breath analysing instrument under s.55(1). A person can only be required to furnish a sample of breath under s.55(1) when he has first been required to undergo a preliminary breath test under s.53 and he refuses or fails to undergo it or the breath test proves positive. Section 53(1) limits the occasions upon which a person may be required to undergo a preliminary breath test. It provides:
"A member of the police force may at any
time require -
(a) any person he or she finds driving a
motor vehicle or in charge of a motor
vehicle; or
(b) the driver of a motor vehicle that has
been required to stop at a preliminary
breath testing station under section
54(3); or
(c) any person who he or she believes on
reasonable grounds has within the last 3
preceding hours driven or been in charge
of a motor vehicle when it was involved
in an accident -
to undergo a preliminary breath test by a
prescribed device."
10. Disregarding par.(b) of s.53(1), a person may be required to undergo a preliminary breath test if he has been found driving a motor vehicle or is believed by a member of the police force to have driven a motor vehicle within a preceding period of three hours when it was involved in an accident. As I have said, a person cannot be required to furnish a sample of his breath for analysis by a breath analysing instrument under s.55(1) unless he has first been required to undergo a preliminary breath test under s.53.
11. The wording of s.49(1)(f) - the provision which creates the offence with which the appellant was charged - extends to a person whose blood alcohol concentration exceeds the prescribed limit within three hours after driving. There are no express words requiring that the motor vehicle driven should have been involved in an accident. There is a certain lack of symmetry in this, because the power under s.53(1)(c) to require a person, not found driving a motor vehicle, to undergo a preliminary breath test is limited to circumstances where he is believed to have driven or been in charge of a motor vehicle when it was involved in an accident. Why the offence created by s.49(1)(f), which also does not require that a person be found driving a motor vehicle, should be expressed in terms which are apparently wider than those enabling members of the police force to subject a person who is not found driving a motor vehicle to a preliminary breath test is inexplicable unless the offence was also intended, by implication, to be limited to circumstances where a person has driven a motor vehicle which was involved in an accident.
12. In reaching a conclusion contrary to that reached by Crockett J., the Full Court drew some comfort from the fact that a person could only be required to undergo a preliminary breath test if he was found driving a motor vehicle or was involved in an accident. They thought this provided some protection to an innocent driver who imbibed alcohol only after he had ceased to drive a motor vehicle. They said (at p 743):
"It is important to emphasise ... that proof
of the latter (the offence created by
s.49(1)(f)) depends on a preliminary test
having been administered under s.53(1)(a),
(b) or (c) and a sample taken pursuant to
s.55(1). Thus, if there were no accident and
no reasonable belief that one had occurred
the preliminary test must have been
administered under s.53(1)(a) or (b). This
provides some safeguard, for example, against
a person being intercepted after drinking
with dinner at home and being required to
undergo a breath test within three hours of
having driven home without incident from
work."
13. But to say as much is to assume that the legislature intended a person in the situation envisaged to be excluded from the reach of s.49(1)(f). Such an intention was, presumably, not meant to be dependent upon whether the means adopted to restrict the ambit of the offence created, namely, s.53(1), achieved its purpose. For it is, I think, demonstrable that there are circumstances in which s.53(1) would not achieve the purpose which the Full Court saw it as having.
14. Section 53(1)(a) enables a member of the police force to require a person found driving a motor vehicle to undergo a preliminary breath test. The motor vehicle does not have to be involved in an accident. Nor does the test have to be administered at the time the person is found driving the motor vehicle. The test may be required "at any time", provided the person to be tested has been found driving a vehicle. No doubt there must be, as a matter of proper interpretation, a degree of contemporaneity between finding a person driving and administering a preliminary breath test to him, but it is clear that the two things need not be simultaneous. The degree of contemporaneity required is indicated by the Act itself. There is an overall time limit within which a person can be required to undergo a preliminary breath test under s.53(4). It is a period of three hours after the driving of a motor vehicle. But that means that a person found - that is, observed - driving a motor vehicle may be required to undergo a preliminary breath test some hours after having ceased to drive and, subsequently, be required to accompany a police officer to a police station to furnish a sample of breath for analysis within three hours of the driving: s.55(1). It is quite conceivable that such a person may have imbibed no alcohol at the time of driving but may have consumed sufficient alcohol after the driving to take his blood alcohol concentration above the prescribed limit. And he may have imbibed that alcohol without any thought of frustrating the proof of his blood alcohol level, there having been no accident or other incident to warn him that the police may wish to ascertain it. The question is whether in that situation, if the person's blood alcohol concentration is at the time of analysis above the prescribed limit, he has committed an offence under s.49(1)(f), or whether s.49(1)(f) should be read as subject to the limitation which, having regard to s.53(1), was evidently intended, namely, that the motor vehicle driven should have been involved in an accident.
15. Section 49(1)(f) is clearly a drastic measure, there being no defence to the offence created save for one of obviously limited practical application. Even if confined to circumstances in which there has been an accident, it nevertheless represents a considerable incursion upon the freedom of an individual to consume alcohol as he pleases when not driving or about to drive a motor vehicle. That is, however, understandable having regard to the ease with which a person involved in an accident may frustrate the proof of his blood alcohol level as at the time of the accident. And clearly the legislature thought it appropriate to place at their own risk drivers consuming alcohol within three hours after driving a vehicle involved in an accident. But, if s.49(1)(f) is to be given a construction which extends its ambit beyond circumstances where a person has driven a motor vehicle which has been involved in an accident, persons may be guilty of the offence created whose only fault is the consumption of alcohol entirely unconnected with their driving. Yet, having regard to its expressed purposes, Pt 5 of the Act is only directed against the consumption of alcohol in conjunction with the driving of a motor vehicle. Those purposes are contained in s.47 and are expressed to be to:
"(a) reduce the number of motor vehicle
collisions of which alcohol or other
drugs are a cause; and
(b) reduce the number of drivers whose
driving is impaired by alcohol or
other drugs; and
(c) provide a simple and effective means
of establishing that there is present
in the blood of a driver more than the
legal limit of alcohol."
16. Not only would the wider construction of s.49(1)(f) evidently exceed the expressed purposes of the Act, but, as this case demonstrates, the offence under s.49(1)(b) of driving a motor vehicle with a blood alcohol concentration above the prescribed limit would be likely to become largely redundant. If those concerned to prosecute offences under s.49(1) had a choice between par.(b) and par.(f), they would, because of the relative ease of establishing an offence under par.(f) in the absence of all but a limited defence, choose to prosecute under that paragraph rather than par.(b). And s.49(1)(f), rather than s.49(1)(b), could, upon the wider construction, be employed whenever a person who has a blood alcohol concentration above the prescribed limit is found driving a motor vehicle, accident or no accident. The result would be that by charging a person under s.49(1)(f) he could be deprived of defences available to him if he were charged under s.49(1)(b), most importantly a defence that, upon the basis of the amount of alcohol consumed by him, his blood alcohol level at the time of driving was not as shown by the subsequent analysis of his breath. It is difficult to imagine that this was the intention of the legislature.
17. Section 35 of the Interpretation of Legislation Act 1984 (Vict.) provides:
"In the interpretation of a provision of
an Act or subordinate instrument -
(a) a construction that would promote
the purpose or object underlying
the Act or subordinate instrument
(whether or not that purpose or
object is expressly stated in the
Act or subordinate instrument)
shall be preferred to a
construction that would not promote
that purpose or object; and
(b) consideration may be given to any
matter or document that is relevant
including but not limited to -
(i) all indications provided by
the Act or subordinate
instrument as printed by
authority, including
punctuation;
(ii) reports of proceedings in
any House of the Parliament;
(iii) explanatory memoranda or
other documents laid before
or otherwise presented to
any House of the Parliament;
and
(iv) reports of Royal
Commissions, Parliamentary
Committees, Law Reform
Commissioners and
Commissions, Boards of
Inquiry or other similar
bodies."
The requirement that a court should have regard to the purpose or object of an Act is hardly novel. It has always been the cardinal rule of statutory interpretation that a court should strive to give effect to the intention of Parliament. In doing so the purpose of the legislation may be all-important. As Viscount Dilhorne observed in Stock v. Frank Jones (Tipton) Ltd. (1978) 1 WLR 231 at p 234; (1978) 1 All ER 948 at p 951:
"It is now fashionable to talk of a
purposive construction of a statute, but it
has been recognised since the 17th century
that it is the task of the judiciary in
interpreting an Act to seek to interpret it
'according to the intent of them that made
it' (Coke 4 Inst. 330)."
The difficulty has been in ascertaining the intention of Parliament rather than in giving effect to it when it is known. Indeed, as everyone knows, the intention of Parliament is somewhat of a fiction. Individual members of Parliament, or even the government, do not necessarily mean the same thing by voting on a Bill or, in some cases, anything at all. The collective will of the legislature must therefore be taken to have been expressed in the language of the enactment itself, even though that language has been selected by the draftsman, who is not a member of Parliament.
18. In the past this has meant that preference has been given to the literal meaning of a statute, this being the only safe guide to the intention of the legislature. Such was the approach of Gibbs C.J. in Cooper Brookes (Wollongong) Pty. Ltd. v. Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 at p 305, where he said:
"... if the language of a statutory provision
is clear and unambiguous, and is consistent
and harmonious with the other provisions of
the enactment, and can be intelligibly
applied to the subject matter with which it
deals, it must be given its ordinary and
grammatical meaning, even it it leads to a
result that may seem inconvenient or unjust.
... On the other hand, if two constructions
are open, the court will obviously prefer
that which will avoid what it considers to be
inconvenience or injustice."
Perhaps that approach gives insufficient emphasis to the purpose of the legislation, for as Mason and Wilson JJ. in the same case observed (at p 321):
"Quite obviously questions of degree
arise. If the choice is between two strongly
competing interpretations, as we have said,
the advantage may lie with that which
produces the fairer and more convenient
operation so long as it conforms to the
legislative intention. If, however, one
interpretation has a powerful advantage in
ordinary meaning and grammatical sense, it
will only be displaced if its operation is
perceived to be unintended."
19. However, the literal rule of construction, whatever the qualifications with which it is expressed, must give way to a statutory injunction to prefer a construction which would promote the purpose of an Act to one which would not, especially where that purpose is set out in the Act. Section 35 of the Interpretation of Legislation Act must, I think, mean that the purposes stated in Pt 5 of the Road Safety Act are to be taken into account in construing the provisions of that Part, not only where those provisions on their face offer more than one construction, but also in determining whether more than one construction is open. The requirement that a court look to the purpose or object of the Act is thus more than an instruction to adopt the traditional mischief or purpose rule in preference to the literal rule of construction. The mischief or purpose rule required an ambiguity or inconsistency before a court could have regard to purpose: Miller v. The Commonwealth [1904] HCA 34; (1904) 1 CLR 668 at p 674; Wacal Developments Pty. Ltd. v. Realty Developments Pty. Ltd. [1978] HCA 30; (1978) 140 CLR 503 at p 513. The approach required by s.35 needs no ambiguity or inconsistency; it allows a court to consider the purposes of an Act in determining whether there is more than one possible construction. Reference to the purposes may reveal that the draftsman has inadvertently overlooked something which he would have dealt with had his attention been drawn to it and if it is possible as a matter of construction to repair the defect, then this must be done. However, if the literal meaning of a provision is to be modified by reference to the purposes of the Act, the modification must be precisely identifiable as that which is necessary to effectuate those purposes and it must be consistent with the wording otherwise adopted by the draftsman. Section 35 requires a court to construe an Act, not to rewrite it, in the light of its purposes.
20. The stated purposes of Pt 5 of the Road Safety Act extend to the reduction of motor vehicle collisions caused by alcohol or other drugs by reducing the number of drivers whose driving is impaired by alcohol or other drugs. To this end it is also a purpose of the legislation to provide a simple and effective means of establishing that there is present in the blood of a driver more than the legal limit of alcohol. It is no part of these purposes that a person should be penalized for having a blood alcohol concentration beyond the prescribed limit if it is unrelated to the driving of a motor vehicle.
21. No doubt it is within the purpose of providing a simple and effective means of proof of the blood alcohol level of a driver to provide that, within specified time limits, his blood alcohol level at the time of driving should be presumed to be not less than it is at the time of the subsequent analysis of his breath. No doubt, having regard to the ease with which a driver involved in an accident can frustrate the proof of his blood alcohol level as at the time of the accident, it is within that purpose to make it an offence, within specified time limits, for him to have more than the prescribed concentration of alcohol in his blood at the time of analysis and to restrict the defences available to him. But it must surely be beyond the stated purposes of the legislation to make it an offence for a person who has driven a motor vehicle to have a blood alcohol level above the prescribed limit, even though his blood alcohol level was at all times while driving within that limit and nothing has occurred which might prompt him to frustrate the proof of his blood alcohol content as at the time of driving. That this was not the intention of Parliament is, I think, the proper conclusion even without regard to the stated purposes of Pt 5 of the Act. When the Act is construed in the light of those purposes, that conclusion is in my view inevitable.
22. Nor is there any difficulty in stating with precision how s.49(1)(f) is to be limited as a matter of construction in order to make it accord with parliamentary intent. The reference in s.53(1)(c) to a person who has driven or been in charge of a motor vehicle "when it was involved in an accident" not only indicates the intent but provides the words with which to bring s.49(1)(f) into accord with that intent. Section 49(1)(f) should be construed as applying to the driver of a motor vehicle only when the vehicle has been involved in an accident. That is to say, it should be read as if the words "when it was involved in an accident" appear immediately after the words "motor vehicle".
23. It was pressed upon us that a consideration of the speeches made in both Houses of Parliament during the passage of the Road Safety Act would lead to the conclusion that it was intended that s.49(1)(f) should be so limited. Whilst s.35(b)(ii) of the Interpretation of Legislation Act allows consideration to be given to any matter or document that is relevant, including reports of proceedings in any House of Parliament, the relevance of those proceedings must more often than not be questionable. The report of a speech of a member of Parliament other than that of the Minister moving the second reading of a Bill may often be unhelpful and even a second reading speech may be of little relevance. If greater significance is to be attributed to a second reading speech it seems that it must be based upon the assumption that it is less likely to express a mere individual view. Be that as it may, the words of a Minister cannot be substituted for the text of the law: Re Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514 at p 518. Having regard to the basis upon which I have reached my conclusion it is sufficient to say that there is nothing in the reports of the proceedings to which we have been referred which is inconsistent with that conclusion.
24. I would allow the appeal and restore the order made by Crockett J.
McHUGH J. The appellant, while driving a motor vehicle in October 1987, was apprehended by two police officers. No accident had occurred. He was questioned by one of the police officers who concluded that the appellant had been drinking. The police officer subjected him to a preliminary breath test which proved positive. The appellant was then taken to a nearby police station where a breath analysis operator conducted a breath test. The test was conducted in accordance with the procedures prescribed under the Road Safety Act 1986 (Vict.) ("the Act"). The certificate of analysis disclosed a reading of .130 per centum alcohol present in the appellant's blood. A second test produced a reading of .125 per centum. Both readings were in excess of the prescribed concentration. The appellant was charged with an offence against s.49(1)(f) of the Act. He contends that, upon the foregoing facts, he could be only charged under s.49(1)(b) of the Act and that a person can only be charged under s.49(1)(f) when the motor vehicle which he has driven or been in charge of has been involved in an accident.
2. Section 49 of the Act, so far as is relevant, provides:
"(1) A person is guilty of an offence if
he or she -
...
(b) drives a motor vehicle or is in
charge of a motor vehicle while more
than the prescribed concentration of
alcohol is present in his or her
blood; or
...
(f) within 3 hours after driving or
being in charge of a motor vehicle
furnishes a sample of breath for
analysis by a breath analysing
instrument under section 55(1) and
the result of the analysis as
recorded or shown by the breath
analysing instrument indicates
that more than the prescribed
concentration of alcohol is present
in his or her blood; ..."
3. If a person is charged under s.49(1)(b) and it is established that, at any time within three hours after the alleged offence, a certain concentration of alcohol was present in his blood, there is a presumption, until the contrary is proved, that not less than that concentration was present at the time of the offence: s.48(1)(a). Hence it is open to a person charged under s.49(1)(b) to prove that he did not have more than the prescribed concentration of alcohol in his blood at the time when he drove. He might prove this fact by evidence that he had consumed alcohol in the period which elapsed between his driving and testing, or by evidence that, by reason of the delay between the ingestion of alcohol and its presence in the bloodstream, the concentration of alcohol in his blood at the time of driving was less than that found on testing. No such evidence is admissible when a person is charged under s.49(1)(f), since the basic issue under that paragraph is whether the result of the breath analysis indicated that, at the time of testing, the person charged had "more than the prescribed concentration of alcohol ... present in his or her blood". Indeed, s.49(6) provides that, in any proceedings for an offence under s.49(1)(f), "evidence as to the effect of the consumption of alcohol on the defendant is inadmissible for the purpose of establishing a defence to the charge".
4. The magistrate who heard the matter held that, on the facts of the case, s.49(1)(f) was not applicable. In proceedings in the Supreme Court of Victoria seeking judicial review of the order of the magistrate, Crockett J. also held that s.49(1)(f) was not applicable to the facts of the case. However, the Full Court of the Supreme Court reversed the order made by Crockett J. and held that, although the charge could have been brought under s.49(1)(b), it was correctly brought under s.49(1)(f). The members of the Full Court also rejected the submission of the appellant that it was an abuse of process to charge him under s.49(1)(f) when the facts fitted a charge under s.49(1)(b).
5. The appellant does not dispute that the facts of his case fall squarely within the literal or grammatical meaning of s.49(1)(f). But he contends that, to give effect to the purposes of the Act, s.49(1)(f) must be read as dealing only with the case of a motorist whose vehicle has been involved in an accident.
6. Section 49 is found in Pt 5 of the Act which consists of ss.47-58. Section 47 enacts:
"The purposes of this Part are to -
(a) reduce the number of motor vehicle
collisions of which alcohol or other
drugs are a cause; and
(b) reduce the number of drivers whose
driving is impaired by alcohol or
other drugs; and
(c) provide a simple and effective means
of establishing that there is
present in the blood of a driver
more than the legal limit of
alcohol."
7. Section 53 specifies the circumstances in which a person may be required to undergo a preliminary breath test by a prescribed device. It provides:
"(1) A member of the police force may at
any time require -
(a) any person he or she finds driving a
motor vehicle or in charge of a
motor vehicle; or
(b) the driver of a motor vehicle that
has been required to stop at a
preliminary breath testing station
under section 54(3); or
(c) any person who he or she believes on
reasonable grounds has within the
last 3 preceding hours driven or
been in charge of a motor vehicle
when it was involved in an
accident -
to undergo a preliminary breath test by a
prescribed device.
...
(4) A person is not obliged to undergo a
preliminary breath test if more than 3 hours
have passed since the person last drove or
was in charge of a motor vehicle."
8. If the preliminary breath test indicates that the person's blood contains alcohol in excess of the prescribed concentration of alcohol, he may be required to furnish a sample of breath for analysis by a breath analysing instrument. Section 55 provides:
"(1) If a person undergoes a preliminary
breath test when required by a member of the
police force or an officer of the Authority
under section 53 to do so and -
(a) the test in the opinion of the
member or officer in whose presence
it is made indicates that the
person's blood contains alcohol
in excess of the prescribed
concentration of alcohol; ...
the member of the police force or officer of
the Authority may require the person to
furnish a sample of breath for analysis by a
breath analysing instrument and for that
purpose may further require the person to
accompany a member of the police force or an
officer of the Authority authorised in
writing by the Authority for the purposes of
section 53 to a police station or the grounds
or precincts of a police station and to
remain there until the person has furnished
the sample of breath or until 3 hours after
the driving or being in charge of the motor
vehicle, whichever is sooner.
...
(6) A person is not obliged to furnish a
sample of breath under this section if more
than 3 hours have passed since the person
last drove or was in charge of a motor
vehicle."
9. Section 55(4) directs the person operating the breath analysing instrument to sign, and deliver to the person tested, a certificate showing the date and time of the analysis and the concentration of alcohol indicated by the analysis. On the hearing of an offence under s.49(1) of the Act, evidence may be given of the concentration of alcohol indicated to be present in the blood of a person by a breath analysing instrument which has been operated by an authorised person. The concentration so indicated is, subject to certain conditions, evidence of the concentration of alcohol present in the blood of that person: s.58(1). A document purporting to be a copy of a certificate given under s.55(4) is admissible in evidence and is conclusive proof of the facts and matters contained in it unless the defendant gives notice in writing within seven days of the hearing that he requires the person giving the certificate to be called as a witness: s.58(2).
10. The appellant contends that, when a person is found driving or in charge of a motor vehicle, the source of the power to require him to undergo a preliminary breath test is s.53(1)(a). If a positive result to a test administered under s.53(1)(a) is obtained, the person may then be required to undergo a breath analysis pursuant to the provisions of s.55(1). If the result of the breath analysis indicates more than the prescribed concentration of alcohol is present in the person's blood, the scheme of the Act, according to the appellant, requires the person to be charged under s.49(1)(b). The appellant then submits that, in the case of a person who is not "found" driving or in charge of a motor vehicle or is not stopped at a preliminary breath testing station, the source of the power to require him to undergo a preliminary breath test is found in s.53(1)(c). If the preliminary test administered under that paragraph proves positive and the breath analysis test administered under s.55 shows more than the prescribed concentration of alcohol present in the person's blood, the scheme of the Act, according to the appellant, requires him to be charged under s.49(1)(f). The appellant argued that these regimes were mutually exclusive.
11. It does not follow from the structure of the Act, however, that, in a case where s.53(1)(c) is the source of power to require a person to undergo a preliminary breath test, he can only be charged under s.49(1)(f). It is an essential element in the proof of a charge under s.49(1)(b) or s.49(1)(f) that the defendant has driven or been in charge of a motor vehicle. So there is no reason why a defendant, first tested under s.53(1)(c), could not be charged under s.49(1)(b). Nor does it necessarily follow from the structure of the Act that a person, who is required to undergo a preliminary breath test under s.53(1)(a) or (b), can only be charged under s.49(1)(b) and not s.49(1)(f). The appellant does not dispute that, on its face, the terms of s.49(1)(f) cover the case of a person who was first required to undergo a preliminary breath test pursuant to s.53(1)(a) or (b). Unlike s.53(1)(c), s.49(1)(f) does not refer to driving or being in charge of a motor vehicle "when it was involved in an accident". Indeed, at first sight it would be surprising if some cases, in which persons were required to undergo a preliminary test under s.53(1)(a), did not fall within s.49(1)(f). Take the case of a person who is "found" driving a motor vehicle at high speed or in a dangerous manner but who eludes immediate apprehension. By reason of s.53(4), it is clear that such a driver can be required to undergo a preliminary breath test at any time within three hours since he last drove the motor vehicle. At first sight it seems unlikely, having regard to s.47(a) and the policy behind the enactment of ss.49(1)(f) and 49(6), that Parliament intended that such a driver should be able to lead evidence that he had consumed alcohol during the period since he last drove. Yet, if the absconding driver is charged under s.49(1)(b), as he could be, s.48(1)(a) would permit him to lead evidence to rebut the presumption arising from the admission of evidence concerning the breath analysis result. This example suggests that it is unlikely that Parliament intended that a person, required to undergo a preliminary breath test under s.53(1)(a), could only be charged under s.49(1)(b). On the other hand, since the Act permits such a person to be charged under s.49(1)(b), it is evident that, even in the case of the absconding driver, Parliament had no general policy of excluding evidence of post-driving alcohol consumption or evidence as to the effect of the consumption of alcohol on the defendant.
12. The presence of s.48(1)(a) in the Act, therefore, indicates that Parliament was not prepared in all cases to prevent a person proving that there was no temporal relationship between his driving and the presence in his blood of more than the prescribed concentration of alcohol. By reason of the delay which takes place between the ingestion of alcohol and its presence in the blood, cases can occur where a breath analysis test shows more than the prescribed concentration of alcohol present in a driver's blood, yet at the time of driving the person concerned would have had less than the prescribed concentration. No doubt these cases occur infrequently. But that they can occur without the driver ingesting any alcohol between the time of apprehension and the undergoing of a breath analysis test is sufficient to explain the presence of s.48(1)(a) in the Act. Moreover, cases may well occur where, during the period between being "found" driving or in charge of a motor vehicle and the administering of a preliminary breath test under s.53(1)(a), the driver has innocently consumed alcohol.
13. If the argument for the respondent is correct, Parliament intended the availability of these "defences" to a breath analysis test under s.55 to be a matter within the discretion of the apprehending police officer. Given the constitutional tradition of the State of Victoria, it is inherently unlikely that Parliament intended that whether or not the result of a breath test under s.55 constituted an offence against the Act should depend on the discretion of the apprehending officer. On the other hand, by enacting ss.49(1)(f) and 49(6), Parliament has shown that, in some cases at least, it is not prepared to tolerate a driver tendering evidence to rebut the presumption arising from the presence of more than the prescribed concentration of alcohol in his blood.
14. How then are these conflicting objectives of the Act to be reconciled? Because of the presence of s.48(1)(a) in the Act, I find it impossible to accept that Parliament intended s.49(1)(f) to apply to all cases where a test under s.55 has indicated that more than the prescribed concentration of alcohol was present in a person's blood. Nor can I accept that Parliament left to the apprehending officer the choice as to whether or not the result of the test under s.55 constituted an offence against s.49(1) of the Act. Yet the very terms of s.49(1)(f) indicate that Parliament intended it to apply to cases where a test under s.55(1) had indicated the presence of more than the prescribed concentration of alcohol in a person's blood. In my opinion, only a purposive construction of s.49(1)(f) can reconcile Parliament's intention to allow the result of a breath analysis test under s.55 to be rebutted in some cases and not in others.
15. A court cannot depart from the literal meaning of a statutory provision because that meaning produces anomalies or injustices if no real doubt as to the intention of Parliament arises: Cooper Brookes (Wollongong) Pty. Ltd. v. Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 at pp 305, 320; Stock v. Frank Jones (Tipton) Ltd. (1978) 1 WLR 231 at pp 234-235, 237-238; (1978) 1 All ER 948 at pp 951- 952, 954. But, when the literal meaning of a provision gives rise to an absurdity, injustice or anomaly, a real doubt will frequently arise as to whether Parliament intended the literal meaning to prevail. In such a case, a court may be entitled to disregard the literal meaning. In Cooper Brookes (Wollongong) Pty. Ltd. Gibbs C.J. pointed out (at p 304):
"There are cases where the result of giving
words their ordinary meaning may be so
irrational that the court is forced to the
conclusion that the draftsman has made a
mistake, and the canons of construction are
not so rigid as to prevent a realistic
solution in such a case ..."
16. But this does not mean that a court is bound by the literal or grammatical meaning of a statutory provision unless that meaning produces an irrational result. This was made plain by Mason and Wilson JJ. in Cooper Brookes (Wollongong) Pty. Ltd. where their Honours said (at p 321):
"On the other hand, when the judge
labels the operation of the statute as
'absurd', 'extraordinary', 'capricious',
'irrational' or 'obscure' he assigns a ground
for concluding that the legislature could not
have intended such an operation and that an
alternative interpretation must be preferred.
But the propriety of departing from the
literal interpretation is not confined to
situations described by these labels. It
extends to any situation in which for good
reason the operation of the statute on a
literal reading does not conform to the
legislative intent as ascertained from the
provisions of the statute, including the
policy which may be discerned from those
provisions."
17. Moreover, once it is apparent that the literal or grammatical meaning of a provision does not conform to the legislative purpose as ascertained from the statute as a whole, the court is entitled to give effect to that purpose by addition to, omission from, or clarification of the particular provision: Kammins Co. v. Zenith Investments (1971) AC 850 at pp 880-882; Jones v. Wrotham Park Estates (1980) AC 74 at p 105; Cooper Brookes (Wollongong) Pty. Ltd., at pp 321-323.
18. The general purposes of Pt 5 are set out in s.47. But the Part also has more specific purposes. One of them is the granting of the right in some cases to tender evidence concerning alcoholic consumption or evidence concerning the effect of alcohol where a breath analysis test under s.55 has indicated that more than the prescribed concentration of alcohol was present in the blood. In terms that right is restricted to charges laid under s.49(1)(a) or (b). But it would not be in accordance with the modern, purposive approach to statutory construction to interpret the general words of s.49(1)(f) without regard to the legislative purpose found in s.48(1)(a). The Act must be considered as a whole.
19. If s.49(1)(f) is given its literal or grammatical meaning, it would make the purpose enshrined in s.48(1)(a) depend entirely on the unfettered discretion of the apprehending police officer. There is nothing in the Act, apart from the literal effect of s.49(1)(f), which suggests that that was Parliament's intention. To give effect to the legislative purpose which can be discerned in s.48(1)(a), therefore, one must read down the words of s.49(1)(f).
20. However, as Lord Diplock pointed out in Jones v. Wrotham Park Estates (at p 105) "the task on which a court of justice is engaged remains one of construction; even where this involves reading into the Act words which are not expressly included in it". His Lordship said that words could only be read into a statute if three conditions were fulfilled. First, the court must know, from a consideration of the legislation read as a whole, precisely what the mischief was that it was the purpose of the legislation to remedy. Secondly, the court must be satisfied that by inadvertence Parliament has overlooked an eventuality which must be dealt with if the purpose of the legislation is to be achieved. Thirdly, the court must be able to state with certainty what words Parliament would have used to overcome the omission if its attention had been drawn to the defect.
21. I have no trouble in coming to the conclusion that the first two conditions are fulfilled in this case. The third condition creates more difficulty. But, having regard to the verbal similarity of s.49(1)(f) and s.53(1)(c), I think that, if the "defect" had been pointed out to Parliament, it would have added after the words "motor vehicle" in s.49(1)(f) the words "when it was involved in an accident". Adding these words would ensure that s.49(1)(f) was used only in the case of a driver or person in charge of a motor vehicle when it was involved in an accident. It would also ensure that, in the case of a driver who had been first tested pursuant to the provisions of s.53(1)(a) or (b), a breath analysis indication that more than the prescribed concentration of alcohol was present in his blood would lead to a charge under s.49(1)(b) and not s.49(1)(f). The driver would then have the benefit of the "defence" given by s.48(1)(a).
22. The appeal should be allowed with costs. The order of the Full Court should be set aside. In lieu thereof, it should be ordered that the appeal to that court should be dismissed and that the respondent should pay the appellant's costs of that appeal.
# Mills
Meeking \[1990\] HCA 6;
(1990) 169 CLR 214
(1989) 63 ALJR 619
(1989) 63 ALJR 640
(1981) 147 CLR 297
(1904) 1 CLR 668
(1978) 140 CLR 503
(1987) 162 CLR 514