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[2003] QCA 86
respondent. Application for leave to appeal dismissed; applicant to pay the respondents’ costs of the appeal, assessed on the standard basis.
No linked legislation citations have been extracted yet.
The Court of Appeal considered whether a doctor had to have examined or treated Morrison before approving a police request for a blood specimen. It applied an earlier Queensland decision holding that “familiar with” means having knowledge of, with the required degree of knowledge depending on the circumstances. The evidence showed that Dr Gray had seen and spoken with Morrison and was familiar with his apparent condition. The Court also found that the evidence did not establish actual injuries or another relevant condition that Dr Gray had not adequately known about. The Court refused to admit further evidence and dismissed the application for leave to appeal.
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The case concerned an application for leave to appeal from a District Court decision upholding Francis James Morrison’s conviction for failing to provide a blood specimen. The alleged failure was under s 80(8C) of the (Qld) (the Act). That provision permitted a police officer to require a blood specimen from a person at a hospital for treatment, subject to the approval of a doctor “familiar with the person’s injuries and apparent state of health” ([2], [14]).
The events began on 15 August 2000. Constables Russell and Lutz saw Morrison riding a motorcycle and decided to stop him for a random breath test. Before they intercepted him, he reached his home in Yandina. A confrontation followed in the kitchen, during which Morrison fell backwards and struck the back of his head on a cupboard. An ambulance was called, and Morrison was taken to Nambour Hospital ([3]–[5]).
At the hospital, Morrison was moved through several areas, including an observation area and a corridor. Dr Rebecca Gray spoke with him in the observation area after police asked her to assist with taking a blood specimen. She understood the request to concern whether Morrison was physiologically stable enough to give blood. Her view was that taking up to 20 millilitres would not affect his physiological state, and she approved it. At that point, she had not conducted the later medical examination in the emergency department ([8], [16]).
Morrison refused the police requests. He later calmed down and was examined by Dr Gray, complaining of lower back pain, mild neck pain, a headache, and a bump on the back of his head. He also consented to a blood sample for medical purposes ([9]). He was convicted of obstructing a police officer and of failing to provide the specimen. His appeal to the District Court succeeded on the obstruction conviction but failed on the specimen offence. The Court of Appeal application concerned only the latter conviction ([2]).
The argument before the Court of Appeal focused on whether Dr Gray had been sufficiently familiar with Morrison’s injuries and apparent health when she approved the request. This point had not been taken before the Magistrate; counsel at trial had expressly said that no issue was being raised about the doctor’s position to give approval ([11]). Jerrard JA delivered the substantive reasons. Williams JA and Mullins J agreed with his reasons and the orders ([1], [25]).
The Court’s starting point was the meaning of “familiar with” in s 80(8C). Jerrard JA adopted the construction given to the identical wording in McMahon v Casey [1980] 1 Qd R 230. That case treated the phrase as meaning “acquainted with” or “having knowledge of” ([17]). The required degree of knowledge was not a fixed level of medical examination. It depended on the circumstances, including the nature and complexity of any injuries, and what the doctor knew from visual observation or clinical examination ([17]).
The Court then separated Morrison’s apparent state of health from the claimed injuries. Dr Gray had encountered him in the observation area, where he was visibly distressed and agitated. Morrison spoke to her and made clear that he understood what was being asked. His repeated complaints about being assaulted, his ability to speak and recall events, and his expression of emotion supported the view that Dr Gray could assess his apparent condition at the time ([18]–[19]). Jerrard JA characterised that apparent condition as one of distress, agitation and anger.
The more difficult question concerned injuries. Morrison’s argument was that Dr Gray approved the blood request before learning he had been struck on the head and briefly lost consciousness, and before she had taken his pre-admission history ([20]). Jerrard JA acknowledged that knowledge of a blow to the head followed by a period of unconsciousness could be relevant to familiarity with a person’s injuries ([21]). But the argument lacked evidence establishing that Morrison actually had injuries at the relevant time, as distinct from later complaints of discomfort. Nor was there evidence of treatment, admission, or a psychiatric or physiological condition that would make the blood sample unsafe, or of a relevant condition Dr Gray had not been told about ([21]–[22]).
The difference between a reported incident and proof of an injury was important to the Court’s reasoning. A blow and reported loss of consciousness could potentially matter to the statutory question, but the Court assessed the record before it. That record did not establish injuries with which Dr Gray could have become familiar, or establish that her limited opportunity to observe Morrison left her uninformed about a relevant condition ([21]–[22]).
Morrison sought to introduce further evidence during the appeal argument. The Court refused that application. One difficulty was that the respondent’s counsel had been advised beforehand that the evidence would not be relied on, and had therefore not considered it. Jerrard JA also described the proceeding as a “second tier” appeal and decided the issue on the evidence apparently before the Magistrate and the District Court ([21]). On that record, the statutory challenge did not provide a basis for granting leave.
The judgment did not announce a new definition of “familiar with”. It followed McMahon v Casey, which concerned identical wording in s 16A(8)(c) of the former Traffic Act 1949–1978 (Qld). Jerrard JA expressly accepted the construction in that decision: “acquainted with” or “having knowledge of” ([17]). The judgment therefore applies an existing construction to s 80(8C) of the 1995 Act.
The practical point in the judgment is that the provision did not, on the Court’s stated construction, require a particular form of examination or treatment in every case. The level of familiarity depends on the circumstances. The doctor’s observation of the person and the information available about the person’s condition may be relevant, with the nature and complexity of the injuries affecting how much knowledge is required ([17]).
The judgment’s application is closely tied to the evidentiary record. It does not establish that a doctor’s brief observation will always suffice, or that knowledge of an alleged blow or loss of consciousness is never required. Rather, it notes that such information could be relevant, then concludes that the record did not prove injuries or another relevant condition that Dr Gray had failed to understand ([20]–[22]). The decision leaves the McMahon construction in place and illustrates its fact-sensitive application.
No subsequent decisions are included in the supplied judgment. Accordingly, this material does not establish how later courts have treated Morrison v Russell, whether they have followed or limited it, or whether its reasoning has been affected by later legislative amendments.
At [17], Jerrard JA said that “familiar with” means “acquainted with” or “having knowledge of”. In plain English, the doctor needs to know about the person’s condition to the degree required in the particular circumstances. The judgment does not prescribe a uniform checklist or say that a full clinical examination is invariably necessary.
Also at [17], the Court said that the required familiarity depends on the nature and complexity of the injuries and on the doctor’s knowledge gained by observation or examination. This makes the inquiry contextual: the more complex or significant the relevant condition, the more information may be needed to assess it. That is an explanation of the approach, not a separate fixed threshold.
At [19], Jerrard JA concluded that Dr Gray was familiar with Morrison’s apparent state of health. The basis was not that she had completed her later examination before approving the sample. It was that she had seen and spoken with him, and his visible distress and vocal complaints gave her information about his apparent condition at that point.
At [21], the Court recognised “force” in the submission that a blow to the head and a period of unconsciousness could be relevant to knowledge of injuries. The qualification matters: the Court did not say that such information was irrelevant. It said that the evidentiary record did not establish the necessary factual premise for Morrison’s argument.
At [22], Jerrard JA stated that the evidence did not show Morrison had injuries with which Dr Gray could have become familiar. In context, this was a conclusion about the evidence before the Court, not a general finding that Morrison had suffered no injury. It also reflected the absence of evidence of relevant treatment or a relevant psychiatric or physiological condition.
The judgment is relevant to statutory schemes that make a medical approval a condition of a police request for a bodily sample and use a similar “familiar with” requirement. Its direct subject is s 80(8C) of the Queensland Act and its construction of wording identical to that considered in McMahon v Casey ([14], [17]).
The reasoning may be relevant where the issue is what a doctor knew at the precise time of approval, rather than what the doctor learned through a later examination. The judgment directs attention to the information available then: what the doctor could see, what the person said or did, what the doctor had been told, and whether the evidence establishes injuries or conditions that were relevant to the approval ([16]–[22]).
It may also be relevant where a party relies on a reported injury or incident to argue that the doctor lacked familiarity. The Court treated a blow to the head and brief unconsciousness as potentially relevant, but distinguished that submission from proof of injuries or a condition that affected the assessment. The evidentiary gap was decisive on the record in this case ([20]–[22]).
The case does not, on its own, resolve situations involving documented serious injuries, treatment, a complex medical condition, or evidence that the doctor was unaware of information bearing directly on the safety or appropriateness of taking a sample. Jerrard JA’s approach makes the circumstances and evidence important; it does not provide a categorical answer for those other factual situations.
The supplied material contains the judgment itself and does not include later authorities discussing it. The judgment’s own identified precedent is McMahon v Casey [1980] 1 Qd R 230, which Jerrard JA followed when construing “familiar with” ([17]). It also records that Campbell J gave the construction with Wanstall CJ agreeing.
It would therefore be unsupported, on this source alone, to say that Morrison was later followed, distinguished, limited or overruled. The reliable account from the judgment is narrower: in 2003, the Queensland Court of Appeal adopted the McMahon construction for the materially identical statutory phrase and applied it to the evidence concerning Dr Gray’s approval. A later-treatment history would require later judgments or other legal sources, which are not provided here.
The judgment does not specify a minimum amount of observation or examination that will satisfy the statutory requirement. It states that the degree of familiarity depends on the circumstances and the nature and complexity of the injuries ([17]). The result therefore does not define a universal procedural step for doctors or police.
It also does not determine how the test applies where evidence establishes a serious injury, a documented loss of consciousness, a pre-existing condition, or a restriction on the person’s ability to communicate. The Court acknowledged that knowledge of a head blow and loss of consciousness could be relevant, but the evidence before it did not establish the necessary injury or condition ([20]–[22]).
The judgment does not resolve the extent to which information supplied by police, ambulance officers or hospital staff can establish a doctor’s familiarity, nor does it set out a required record-keeping process. Its stated inquiry concerns the doctor’s knowledge through observation or clinical examination and the circumstances of the particular case ([17]).
Finally, the judgment does not provide the later history of the statutory provision or subsequent judicial treatment. Its conclusions should be read as an application of the cited statutory text and McMahon to the record before the Court in this appeal.
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: Morrison v Russell & Anor [2003] QCA 86
PARTIES: FRANCIS JAMES MORRISON (appellant/applicant) v AMANDA RUSSELL (first respondent) G A LUTZ (second respondent)
FILE NO/S: Appeal No 209 of 2002 DC No 1457 of 2001
DIVISION: Court of Appeal
PROCEEDING: Application for leave s 118 DCA (Criminal)
ORIGINATING COURT: District Court at Brisbane
DELIVERED ON: 7 March 2003
DELIVERED AT: Brisbane
HEARING DATE: 14 February 2002
JUDGES: Williams and Jerrard JJA and Mullins J Separate reasons for judgment of each member of the Court; each concurring as to the orders made
ORDER: 1. Application for leave to appeal dismissed / 2. Applicant to pay the respondents’ costs of the appeal, assessed on the standard basis
CATCHWORDS: JURISDICTION, PRACTICE AND PROCEDURE – WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS – IDENTIFICATION AND EXAMINATION OF THE PERSON – where police officer requested the applicant to provide blood specimen – where applicant submits this was not done in accordance with s 80(8C) Transport Operations (Road Use Management) Act 1995 (Qld) – where provision allows blood samples to be taken only with the approval of a doctor who is familiar with the person’s injuries and apparent state of health at the time – where taking of blood approved by a doctor who had not actually treated the applicant – whether doctor was “familiar with” the applicant’s injuries for the purposes of s 80(8C) / Traffic Act 1949-1978 (Qld), s 16A(8)(c) Transport Operations (Road Use Management) Act 1995 (Qld), s 79(1), s 80(8C) / McMahon v Casey [1980] 1 Qd R 230, followed
COUNSEL: M J Byrne QC for the appellant/applicant M J Copley for the respondents
SOLICITORS: Legal Aid Queensland for the appellant/applicant Director of Public Prosecutions (Queensland) for the respondents
WILLIAMS JA: I have had the advantage of reading the reasons for judgment of Jerrard JA and I agree with what he has said and the order proposed.
JERRARD JA: On 23 February 2001 the applicant was convicted by a Magistrate at Maroochydore of two offences, and fined a total $800.00. One offence was that of obstructing a police officer named Grant Andrew Lutz in the performance of that officer’s duties on 15 August 2000 at Yandina1, and the other was an offence against s 79(1) of the Transport Operations (Road Use Management) Act 1995 (“the Act”) on 15 August 2000 at Nambour. The particulars of that offence were that Mr Morrison failed to provide as prescribed a specimen of his blood for a laboratory test upon a requisition duly made under s 80(8C) of that Act by Amanda Russell, a police officer2. On 4 June 2002 Mr Morrison succeeded upon an appeal to the District Court at Brisbane against his conviction for the first offence. He now applies pursuant to s 118(3) of the District Court Act 1967 for leave to appeal against the decision of the District Court dismissing his appeal against the second conviction. That application relies upon the argument that when police officer Russell requested Mr Morrison to provide a specimen of his blood at the Nambour Hospital on 15 August 2000, she did not do so, as s 80(8C) requires:
“subject to the approval of a doctor who is familiar with the person’s injuries and apparent state of health at the time”.
The Background Events
Mr Morrison had been seen riding a motor cycle in Yandina by Constables Russell and Lutz at about 5.15 p.m. on 15 August 2000. They decided to stop him and request a random breath test. Mr Morrison arrived at his residence at 12 Old Gympie Road Yandina before the police officers could intercept him, and they then gained entry to that residence for the purpose of making that request. Mr Morrison, who may have been unaware of the police presence, and when in his kitchen, went to drink from a can containing what police officer Lutz (who was entering the kitchen) believed to be an alcoholic drink; and Mr Morrison was requested by Lutz not to drink from the can. Some force was used by Lutz, perhaps only upon the can, to obtain possession of it, and Mr Morrison fell backwards. The back of his head struck a cupboard underneath the sink. Thereupon, Mr Morrison, Ms Catherine Rowlands, who was also present in the residence, (and perhaps also a young boy then present), yelled words at the police officers; and Ms Rowlands physically urged police officer Lutz from the premises through the door. The police officers deemed the situation too volatile to remain, and they returned to the Nambour Police Station.
Meanwhile Catherine Rowlands had telephoned for an ambulance, and she also rang the police station and advised that Mr Morrison had been taken to the Nambour Hospital. The two police had actually seen the ambulance go past them and towards Yandina. A decision was made at the Police Station that Mr Morrison should be required to supply a specimen of blood for analysis at the hospital, and acting Inspector Sang, Constable Broeren, and Constables Russell and Lutz went there for that purpose, arriving shortly after 6.00 p.m.
Constable Lutz had been aware when he left Mr Morrison’s home that Mr Morrison was loudly requesting that an ambulance be called, and loudly asserting that he had been assaulted by Constable Lutz. The ambulance officer who attended at the home noted that Mr Morrison was fully conscious, sitting up and alert, and “talking to us comprehensively”. That officer observed a slightly reddened area on Mr Morrison’s right check, and Mr Morrison indicated that he had a pain on the back of his head, in his neck, and in his lower back. The ambulance officer did not record any observable signs of Mr Morrison having consumed alcohol to excess. As a precaution, a cervical collar was placed around his neck, and Mr Morrison was offered and declined what analgesia the ambulance officer had for pain relief. The officer’s evidence was that Mr Morrison “said he was ok”.
Events at the Hospital
● firstly on a trolley opposite the accident emergency desk;
● then moved into an observation area which contained other patients;
● then moved into a small corridor away from other patients;
● then moved into a small room, apparently within the Department of Emergency Medicine in that hospital (“DEM”).
Mr Morrison was described as “ranting and raving” by Constable Russell when first seen at the hospital on that trolley opposite the accident emergency desk. Acting Inspector Sang spoke with Mr Morrison at that time. When Mr Morrison was moved to the observation area, Constable Russell observed that he appeared agitated and his face was flushed. At this time Constable Lutz spoke with a Dr Rebecca Gray, and with Mr Morrison; and Dr Gray spoke with Mr Morrison.
Dr Gray’s evidence was that she then told Mr Morrison that she had been asked by the police to assist them in taking blood from him. Mr Morrison responded by stating that no blood would be taken from him. Dr Gray’s evidence was that “He then continued to shout and swear and in a very aggressive manner at the three police officers who were present”, and Mr Morrison was then moved out of the observation area and into the corridor. While he was in that corridor, Constable Russell made her first request for the supply of the specimen of blood, the refusal of which was the basis of the conviction now challenged. Mr Morrison “again became loud and abusive”, and he was then moved to that small emergency room. There he was again asked by officer Russell for a specimen of his blood, and again spoken to by Dr Gray. Mr Morrison got off the trolley and to his feet, threw a chair across the room, and fell to the ground. He was returned by hospital staff to the bed, and issued with a notice by the police asserting a failure to supply a specimen; and the police withdrew.
Mr Morrison appears to have then calmed himself again. He was examined by Dr Gray in the DEM, and complained to her of lower back pain, mild neck pain, a headache, and a bump on the back of his head. That examination was at about 6.30 p.m., and the doctor’s notes were that “He became calm and coherent, and behaved in an entirely appropriate manner. He gave a full account of himself.” He also consented to a specimen of blood being taken by Dr Gray for medical purposes, and that sample was taken at about 7.43 p.m. Mr Morrison led evidence that upon analysis, that sample showed that his blood alcohol concentration at 7.43 p.m. was .015. His evidence to the Magistrate was that he had two or three stubbies of “gold” between 1.00 p.m. and 2.30 p.m. that afternoon.
His evidence was that he could recall hearing Catherine Rowlands say “come in” at his home that afternoon, and then a police officer grabbing his left hand. Something was said, and Mr Morrison could not recall what happened after that. He had either slipped, fallen, or been knocked down. He vaguely recalled an ambulance being present, and had no recall of being asked by police to provide a sample of blood to the doctor.
Issues Raised at the Trial
A number of issues were raised on that evidence in the submissions made on Mr Morrison’s behalf to the Magistrate. Challenge was made to the lawfulness of the police entry to Mr Morrison’s residence; to whether the request for a specimen of blood was made “as soon as practicable” after the police had seen Mr Morrison riding his motor cycle3; and it was argued there “was some other reason of a substantial character for (Mr Morrison’s) failure to provide the specimen, other than a desire to avoid providing information that might be used in evidence.”4 However, contrary to the position advanced in written submissions before the District Court, and written and oral submissions to this court, counsel then appearing for Mr Morrison specifically advised the Magistrate that no point was being taken that “the doctor wasn’t in a proper position in this particular instance” to give the necessary approval under s 80(8C) (AR 200).
The Magistrate had listened to tapes produced by the police officers of the events at Mr Morrison’s home and at the hospital. The Magistrate considered that Constables Russell and Lutz were credible and honest witnesses, but that Mr Morrison had a “very selective memory in the witness box”. The Magistrate declared he was not at all impressed by Mr Morrison’s honesty, that he was confident “in relation to the hospital” that Mr Morrison was aware of what was happening, and of what he was being requested to do by Constable Russell. The Magistrate found further that Mr Morrison’s motivation for taking the stance that he did was a desire to avoid providing information that might be used in evidence.
The Magistrate also found that Mr Morrison was aggressive to the police, and accepted that Mr Morrison was of the opinion that the police had no right to enter his home, or to make a request for a specimen of blood at the hospital. He accepted that Mr Morrison held that opinion because the police had not found him driving, and he had not been involved in any accident.
Mr Morrison’s views on the law are incorrect. Section 80(2) entitles a police officer who suspects on reasonable grounds that a person had driven a motor vehicle during the last preceding two hours to provide a specimen of breath for a breath test; and s 80(8C) provides that where any person whom a police officer may require under subsection (2) to provide a specimen of breath for a breath test by the person is at a hospital for treatment, that person may be required by any police officer to provide at the hospital a specimen of the person’s blood for a laboratory test (“subject to the approval of a doctor familiar with the person’s injuries and apparent state of health”).
The Magistrate also correctly held that Mr Morrison’s mistaken views of the law did not establish the necessary “other reason of a substantial character”. I note that in any event what those views led to a desire to avoid providing information, whether helpful to the police or not, that might be used in evidence. He convicted the appellant. However, he dismissed a charge of driving under the influence of liquor or a drug.
On Appeal
The argument on the application to this court was confined to the narrow point abandoned before the Magistrate. The evidence before the Magistrate had included Dr Gray’s evidence that at the time she had been introduced to Mr Morrison by the police, which had occurred when Mr Morrison was in the observation area, she had understood she was being asked if Mr Morrison was physiologically stable enough to have specimen of blood taken. Her medical opinion was that giving up to 20 millilitres of blood would have made no difference to Mr Morrison’s then physiological state, and she had so advised. At that time she had not conducted the medical examination performed in the DEM. She agreed in cross examination that accordingly she had not actually treated Mr Morrison herself at the time she approved taking a specimen of blood from him, (when in the observation area) and “to that extent” was not familiar with his injuries at all.
Mr Byrne QC, Senior Counsel for Mr Morrison submitted that Dr Gray’s evidence established the absence of the necessary familiarity with Mr Morrison’s injuries and apparent state of health at the time she approved taking a specimen. Mr Byrne’s submissions accepted as accurate the construction placed on the identical wording of s 16A(8)(c) of the Traffic Act 1949-1978, (the legislation preceding the Act) in McMahon v Casey [1980] Qd R 230. In that decision W.B. Campbell J, with whom Wanstall CJ agreed, held that the term “familiar with” should be construed as meaning “acquainted with” or “having knowledge of”. He held further that the degree of familiarity with the person’s injuries and apparent state of health, required for a medical practitioner to form an opinion or to make a diagnosis, was one that would depend on the circumstances, and vary with the nature and complexity of the injuries and the doctor’s knowledge obtained by visual observation or clinical examination of those injuries, and the patient’s general condition. I respectfully agree with that construction.
At the time Mr Morrison was spoken to by Dr Gray in the observation area he was on a trolley and at least the anterior part of his body would have been visible, but not necessarily any part of the back of the body. It was not suggested he had any bleeding at all, or any actual or apparent restriction of movement. His response to her statement to him showed that he understood what was being asked of him. Mr Morrison accepted, when being cross examined, that the tape recording of his statements at the hospital recorded his complaining on ten separate occasions that he had been assaulted by the police, and three of those statements made clear that he said this had happened at his house; and in one of those he declared, inter alia, “I’m in a bloody hospital…..how the heck can I calm down when one of your officers punched me in the face in my own house….” (this last statement seems most likely to have been made to Acting Inspector Sang, and therefore before Mr Morrison was in the observation area and before the time of the doctor’s conversation with Mr Morrison). Those recorded statements indicate that Mr Morrison had a good grasp of the then circumstances and the capacity to speak, recall, and express appropriate emotions.
Made an offence by s 444(1) of the Police Powers and Responsibilities Act 2000 (Qld). ↩
Section 80(11) of the Act makes that failure a deemed offence against s 79(1). ↩
Section 80(8D) provides that a requisition shall not be made under subsection (8C) unless it is made as soon as it is practicable, and within two hours (relevantly, of observing the person requested operating a motor vehicle). ↩
Section 80(11A) provides that a person failing to supply a specimen is not guilty of an offence, if the person satisfies the Magistrate that there was some such “other reason”. ↩
Morrison
Russell & Anor [2003] QCA 86
Application for leave to appeal dismissed; applicant to pay the respondents’ costs of the appeal, assessed on the standard basis.
In those circumstances Dr Gray was entitled to regard herself as, and was shown to be, familiar with Mr Morrison’s apparent state of health. In essence, that was a state of distress, agitation, and anger at an assault he alleged upon him, and about which he made very vocal complaint. The only issue requiring any real consideration is whether she was also familiar with his injuries.
Mr Byrne’s carefully developed submission emphasised that Dr Gray approved the taking of blood before she had learnt any of Mr Morrison’s pre admission history, and when she did not know that he had received a blow to the head. It appeared common ground before the Magistrate, and on the appeal, that Mr Morrison had been rendered unconscious for a brief period by that blow; and the fact that that had occurred was not known to Dr Gray when she approved the request. It was submitted that the answers herein quoted from her evidence, and the fact of her subsequent examination of Mr Morrison, establishes that she was not familiar with his injuries when the request was approved.
There is force in the submission that knowledge of a blow to the head followed, by some period of lack of consciousness, was relevant to, if not necessary for, “having knowledge of” or familiarity with the injuries to a person seen by doctor in the outpatient or emergency ward of a hospital. The problem with the appellant’s submission is that the final step is missing. There was no evidence in the Appeal Record suggesting that Mr Morrison actually had any injuries at all at that time, as distinct from his complaints of specific discomfort made shortly after to Dr Gray. There was no description of Mr Morrison receiving any medication or other treatment for any condition as a result of that hospital visit, let alone even being admitted as a patient for observation, even for a brief period; or being admitted for any treatment. Recognising this difficulty, Mr Byrne QC sought leave during the argument on appeal to adduce evidence on the application, apparently to indicate or suggest the presence of “injuries”; but that application faced a number of difficulties. A critical one was that counsel for the respondent had been advised before the hearing that that evidence, whatever it was, would not be relied upon by the applicant. Counsel had therefore not considered it. In those circumstances, this being a “second tier” appeal, that application was refused, and the matter was considered on the same evidence as that apparently before the Magistrate and the District Court.
That evidence did not show that the applicant had any injuries with which Dr Gray could ever have become familiar. It was not suggested to Dr Gray in cross examination that there were in fact any physical injuries which should or may have caused her to consider that Mr Morrison was not physiologically stable enough to have 20 millilitres of blood taken from him, (probably because she requested a sample herself). Likewise, there was no argument, evidence or finding of the existence of any psychiatric or physiological harm that might have resulted to Mr Morrison from taking a sample of blood, or of any psychiatric or psychological condition, the existence of which Dr Gray had not been appraised, or with which she was not sufficiently familiar, by reason of the limited opportunity she had had to assess Mr Morrison.
The learned District Court judge before whom Mr Morrison appeared in person on his appeal recorded in his judgment that Mr Morrison had a burning sense of injustice arising from these particular proceedings. His resentment at what happened in his home may be understandable, but that does not mean that his appeal can succeed on the merits of the argument raised under s 80(8C).
I would order that the application for leave to appeal be dismissed, and order that the applicant pay the respondent’s costs of the appeal, assessed on the standard basis.
MULLINS J: I agree with the reasons for judgment of Jerrard JA and the proposed orders.