R v CAMILLERI

Lill v Thompson Loveday J, unreported, NSWSC 30 January 1989; (1989) 8 MVR 300 CASES CITED: R v Dalley (2002) 132 A Crim R 169 R v EM (2003) NSWCCA 374

PARTIES: The Crown (Appl) Rodney James Camilleri (Resp)

COUNSEL: D C Frearson SC/N Noman (Crown/Appl) A Haesler SC ( Resp)

SOLICITORS: Director of Public Prosecutions (Crown/Appl) Clark Rideaux Solicitors (Resp)

IN THE COURT OF CRIMINAL APPEAL 2007/402

McCLELLAN CJ at CL BELL J HOWIE J

TUESDAY, 20 FEBRUARY 2007 R v CAMILLERI, Rodney James Judgment 1 McCLELLAN CJ at CL: Rodney Camilleri has been indicted at the Bega District Court on a charge of dangerous driving occasioning death contrary to s 52A Crimes Act 1900 NSW. He has pleaded not guilty. 2 The Crown seeks to tender evidence of the analysis of a sample of the respondent's blood taken from him following the motor car accident giving rise to the charge. On 17 October 2006 the trial judge ruled that an analysis certificate, purportedly prepared pursuant to s 20 of the Road Transport (Safety and Traffic Management) Act 1999, ("Road Transport Act") which the Crown sought to tender in evidence, would be rejected. The issue was raised again at a pre-trial hearing on 8 February 2007 when his Honour ruled that, for the reasons he had previously given in relation to the certificate, he would not allow any evidence relating to the blood sample to be admitted. 3 The Crown, exercising its right of appeal pursuant to s 5F(3A) of the Criminal Appeal Act 1912, appeals against his Honour's interlocutory rulings. Although the tender of the certificate is no longer pressed, it being accepted that the blood sample was not taken in accordance with s 20 of the Road and Transport Act, the Crown submits that the trial judge's ruling in relation to the admissibility of other evidence with respect to the sample was erroneous. There is no issue but that if his Honour's ruling is sustained the Crown case would be substantially weakened.

Background 4 On 31 October 2004 the respondent was drinking at a local country hotel. His wife and two children, aged 7 and 9 years were with him. The respondent and his family left the hotel at about 10.40 pm in their Landcruiser motor vehicle. The respondent was the driver. None of the passengers in the car was wearing a seatbelt. Soon after leaving the hotel the Landcruiser left the road, rolled and came to a stop. The respondent's wife sustained fatal injuries. The children walked to the closest residence to obtain assistance. The owner of that property conveyed one child, the respondent and his wife to the Bega Hospital. The respondent's wife was pronounced dead a short time after arrival at the hospital. 5 The respondent was suffering from an obvious and not insignificant laceration to his head. Although he was present at the hospital he declined any treatment. The nurse in charge of the Accident and Emergency section that night, Sister Finnerty, made observations of the respondent and spoke with him. She believed that it was her legal obligation to obtain a sample of the respondent's blood. She informed the respondent of this and he, accepting that she was under an obligation to do so, provided a blood sample which was taken before 12.40 am. A subsequent analysis of the blood showed an alcohol reading of 0.153g of alcohol/100ml of blood.

Voir Dire 6 On 16 October 2006 the respondent came before the Bega District Court for trial. The trial judge was informed that the respondent objected to the tender of the blood analysis evidence because the sample was not lawfully obtained from him. 7 The relevant provisions for the taking of a blood sample following an accident are contained in s 20 of the Road Transport (Safety and Traffic Management) Act 1999. That section provides that if a person attends at, or, is admitted into a hospital for examination or treatment in consequence of an accident on a road, the medical practitioner, by whom an accident patient is attended, is "under a duty to take a sample of the patient's blood for analysis as soon as practicable" (s 20(1) and (2)). Subsection (3) provides that the medical practitioner has a duty to take the sample whether or not the accident patient consents. Subsection (4) permits a registered nurse who is attending the patient and who is accredited by the hospital to take the blood sample. 8 The respondent was informed by Sister Finnerty that he was required to provide a blood sample. This was not correct. Because the respondent had attended the hospital for the purpose of supporting his critically injured wife and had, neither attended for the purpose of, nor, been admitted for examination or treatment, he could not be required to give a blood sample. However, it is not suggested that in requiring the sample she acted otherwise than in good faith and out of a genuine concern that she fulfill what she understood to be her statutory obligation. 9 The hospital report noted that the respondent refused examination and treatment. It also noted that he "discharged" himself against advice. He confirmed this position when he gave evidence on the voir dire stating that he had attended the hospital merely for the purpose of accompanying his critically ill wife. 10 Sister Finnerty also contacted the police to report the incident. They attended the hospital and observed the respondent, with his son, in the emergency section of the hospital. The police inquired of Sister Finnerty if a blood sample had been taken. They were advised that it had not. Although they were entitled to request the respondent to provide a breath test, this was not done. It would seem that the police expected that a blood sample would be taken by the hospital. 11 There was other evidence tendered on the voir dire which indicated that the respondent had been drinking earlier in the evening of the accident. However, that evidence may not provide a firm foundation for any finding as to the extent to which the respondent was affected by alcohol.

Judgment of 17 October 2006 12 As I have indicated there are two relevant decisions of the trial judge. The first was delivered on 17 October 2006. 13 On that occasion the trial judge found that the respondent's purpose in being at the hospital was to accompany his dying wife. Although he had suffered injury he did not attend the hospital for treatment. His Honour found that the blood was taken "through the mistaken belief by Sister Finnerty that she was required, in those circumstances, to do so. In my view, the taking of that blood, in those circumstances, was improper in that the accused had not attended the hospital for examination or treatment, but had attended to be with his, as it turned out, dying wife." His Honour found that because it was not authorised by the Road Transport Act the taking of a blood test was a "serious invasion" of the respondent's rights. 14 His Honour determined that because, in these circumstances the taking of blood was not authorised by the Road Transport Act, the certificate was not admissible pursuant to that Act. His Honour then turned to consider the provisions of s 138 of the Evidence Act. 15 That section provides: "(1) Evidence that was obtained: (a) improperly or in contravention of an Australian law, or (b) in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning: (a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or (b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.

(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:

(a) the probative value of the evidence, and (b) the importance of the evidence in the proceeding, and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and (d) the gravity of the impropriety or contravention, and (e) whether the impropriety or contravention was deliberate or reckless, and (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights , and (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law. Note. The International Covenant on Civil and Political Rights is set out in Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986 of the Commonwealth." 16 The trial judge concluded that the analysis of the respondent's blood was of the highest probative value. It had been taken within 2 hours of the accident and was analysed appropriately by the relevant personnel. Having regard to the provisions of s 52AA of the Crimes Act his Honour concluded that, should the analysis certificate be admitted into evidence, the respondent would be conclusively presumed to be under the influence of alcohol at the time of driving. 17 His Honour recognised that when the police attended at the hospital, being within 2 hours of the accident, they were entitled to administer a breath test. His Honour concluded that this is what should have been done. However, he was also satisfied that the failure to take a breath test was explained by the fact that the police believed a blood test was to be taken by the hospital. 18 The trial judge turned to consideration of the particular provisions of s 138(1) and (3). His Honour recognised that a balance must be struck and gave consideration to the matters he understood to be relevant to his decision. His Honour said: "Subsection (3)(c) is the nature of the relevant offence, cause of action or defence and the nature to the seriousness of the offence. I have regard to the changes in public perception and changes in legislation dealing with breathalysers, the taking of breath and blood of drivers over many years. I also take into account matters under s 150AA and note that the learned author makes reference when he says: 'ALRC stated that 'there is, for example, a greater public interest that a murderer be convicted and dealt with under the law than someone guilty of a victimless crime.' A majority of the New South Wales Court of Criminal Appeal has held, see the Queen v Dalley (2002) 132 A Crim R 169 that 'the public interest in the conviction and punishment of those guilty of crime is entitled to greater weight in the case of crimes of greater gravity.' (Spigelman CJ and Blanch AJ agreeing, Simpson J dissenting). This approach was followed in R v MM [2004] NSWCCA 364. Similarly, it will be relevant that a civil, rather than a criminal, proceeding was involved and that the proceeding was brought by a party in the exercise of a statutory function." I have regard again to the nature of the offence and the subject matter of the proceedings and the public interest in such proceedings. Subs (d) deals with the gravity or of the impropriety or contravention." 19 His Honour concluded that Sister Finnerty was not aware that she could not carry out the blood test. His Honour said: "She was under the misapprehension that the accused's attendance at the casualty section required her to carry out the taking of the blood. If impropriety and contravention is dependant upon the understandings of Sister, it is of small value." 20 In my opinion this conclusion was correct. However, his Honour went on to qualify the conclusion. His Honour said: "The difficulty, however, is that the results, because of the Sister's misunderstanding, is of significant consequence and, in my view, blood has been taken which should not have been taken and the result being that the analysis of that blood would be available to the Crown, should the analysis be admitted into evidence." 21 His Honour concluded that, although the Sister had acted honestly, because of her misconception her actions involved impropriety. His Honour described that impropriety as "very grave." 22 His Honour then turned to consider paras (f), (g) and (h) of s 138(3). He accepted that the Sister's actions were inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights. Although he did not identify the particular clause which was breached this Court has been informed that it related to the right to privacy. His Honour concluded that this breach would not assume much weight in the determination of the issue. With respect to para (g) his Honour concluded that there was no other proceeding which was likely to be taken and accordingly that consideration was irrelevant. In relation to para (h) his Honour concluded that, as was clearly the case, the police would have been able to obtain a breath analysis which would have been admissible. His Honour also had evidence before him from which he concluded that it was probable that, if a breath analysis had been taken, it would have returned a reading lower than 0.15. However, to my mind that consideration was irrelevant. 23 His Honour expressed his ultimate conclusion in the following terms: "Because of the affect of s 52AA of the Crimes Act, for the admission in to evidence of an analysis certificate showing a reading above .15 carries with it the onerous evidentiary consequences referred to in that section. There is significant prejudice that flows to the accused should the certificate be admitted into evidence. I find the matter difficult in the exercise of discretion in respect of the high degree of probative value, and the ultimate prejudice that flows to the accused should the certificate be admitted in the form it was. Having regard to the manner in which the blood was taken and the view to which I have come as to the impropriety involved in the taking of such blood, and in the balancing and weighing up procedures which the court must undergo in the exercise of discretion, I am of the view that the certificate should be rejected under s 138 of the Evidence Act and accordingly would propose to do so should the certificate be tendered at trial."

Judgment of 8 February 2007 24 The trial judge was again invited to consider the matter at a pre-trial hearing on 8 February 2007. In his reasons for judgment on this occasion his Honour records the fact that a further application under s 138 was before the court. His Honour understood this to be an invitation to revisit his reasons for having rejected the blood analysis certificate and "inferentially the other evidence that may deal with the blood sample." I understand this to be a reference to the fact that the Crown, as was submitted to this Court, accepted that for other reasons the certificate would not be admissible in evidence. However, relying on the discretion provided by s 138 to admit improperly obtained evidence the Crown wished to tender the evidence of the blood sample, its analysis, and further evidence in relation to the inference which would be available as to the blood alcohol level of the respondent at the time of the accident. 25 His Honour rejected the Crown's submission. His Honour said: "The reasons I gave for the rejection of the evidence was in reliance upon s 138 and the exercise of my discretion on the basis of the findings that I made. It was well open to the Crown to canvass the correctness of those decisions in an appeal to the Court of Criminal Appeal. It chose not to do so. There is no new factual matter raised in the submissions and as I have indicated, merely the failure to have regard to the decisions, (a reference to authority) those decisions may or may not affect the appropriateness of the order I made, but they are matters to be taken into account in the Court of Criminal Appeal in my view, not in a further application before this Court." 26 His Honour accordingly refused the application.

Discussion 27 In my opinion the conclusion that the actions of Sister Finnerty involved "grave impropriety" was not open to his Honour. It could not be doubted that the taking of blood was not authorised by law and was a serious invasion of the respondent's personal rights: see Lill v Thompson Loveday J, unreported, NSWSC 30 January 1989; (1989) 8 MVR 300 at 306 per Loveday J. 28 However, s 138 requires consideration not only of the effect of the action but also the motivation of the person who carries out that action. Section 138 operates in relation to evidence that was obtained improperly or in contravention of a relevant law or in consequence of an impropriety (subs (1)). Subs (3) directs the court to consider the gravity of the impropriety or contravention s 138(3)(d) and whether the impropriety or contravention was deliberate or reckless s 138(3)(e). 29 The respondent was present in the Emergency Department of the hospital following a motor vehicle accident with obvious signs of head injury. The Sister acted in the belief that he was a patient and that she was obliged to take the blood sample. Her actions would have been lawful if, as she believed, he had attended at the hospital for treatment or examination. Notwithstanding that the taking of blood is a significant invasion of a person's privacy, the legislature has provided that an individual's right to privacy cannot prevail over the taking of a blood samples from accident patients. The public interest in ensuring that persons do not drive when affected by alcohol has been judged by the legislature to be greater than an individual's right to privacy. Where, as in this case the blood sample was obtained by the sister, in the innocent, but mistaken belief, that she was obliged to obtain it, only a minimal level of impropriety was involved. 30 Apart from this difficulty, in my view, the trial judge's consideration of the elements which s 138 requires to be balanced was not correct. His Honour was concerned that the admission of the evidence of the blood sample would bring considerable prejudice to the respondent. His Honour had in mind that the evidence would be likely to lead to the conclusion, as was discussed during the course of the pre-trial hearing, that the respondent would have no alternative but to plead guilty to the relevant offence. Admission of the evidence may be conclusive proof of the fact that the respondent was under the influence of intoxicating liquor at the time of the accident (s 52AA(1)). His Honour concluded that this prejudice, which was personal to the respondent, together with the level of impropriety which he identified meant that the evidence should be excluded. 31 In my view the approach which his Honour took was not appropriate. As Howie J made plain in R v EM (2003) NSWCCA 374 at [74]-[78] s 138 is concerned with balancing public interests. The prejudice to the individual accused, which to varying degrees must be present in every case, will rarely be material. It may be of concern if the means by which the evidence was obtained has the consequence that an accused cannot effectively respond to it. There may be other personal considerations in a particular case. However, the fundamental concern of the section is to ensure that, if the law has been breached, or some other impropriety has been involved in obtaining the evidence, this is balanced against the public interest in successfully prosecuting alleged offenders. The competing interests are obedience to the law in the gathering of evidence and enforcement of the law in respect of offenders. In R v EM Howie J said at [74]: "The discretion under s 138 is similar to that which was described in Swaffield as the public policy discretion at common law. Of course, there is a significant difference between the discretion under s 138 and that at common law: the section requires that the Crown persuade the court to admit evidence that was improperly or unlawfully obtained. But just as at common law, the public policy discretion was distinct and separate from the unfairness discretion, so the discretion to admit evidence under s 138 is a distinct and separate discretion from that arising under s 90. The two discretions may overlap but they are not synonymous. Section 138 is not, in its terms at least, concerned with the court ensuring a fair trial for the accused. Certainly that is not a paramount consideration when exercising the discretion. The discretion exercised under s 138(1) seeks to balance two competing public interests, neither of which directly involves securing a fair trial for the accused." 32 There can be no doubt that, if the Crown can prove the taking of the blood sample, analysis of that sample showing a reading in excess of 0.15 and evidence that this reading may prove the blood alcohol level of the respondent at the time of the accident, the evidence will have significant probative value in this trial. The evidence may be the foundation of the Crown case. 33 However, the offence with which the respondent is charged is serious (see s 138(3)(c)), involving as it does the loss of life of another. It carries a maximum prison term of ten years. The measure of the public interest in the conviction of an offender is greater in relation to serious crimes: R v Dalley (2002) 132 A Crim R 169 at [3], [7]. 34 In these circumstances, in my view, the balance which s 138 requires to be struck inevitably leads to the conclusion that, if otherwise admissible, evidence of the blood alcohol level of the respondent at the time of the accident obtained from the blood sample taken by Sister Finnerty should be admitted into evidence. 35 This case is to be distinguished from a situation where evidence is obtained by police in knowing breach of the law or, where they may be reckless as to whether or not it has been lawfully obtained. Where the breach of the law is innocent, and the alleged offence serious there must be powerful countervailing considerations before the evidence should be rejected. The fact that the evidence is of high probative value will weigh in favour of its admission. 36 For these reasons, in my opinion, insofar as the Crown appeals an interlocutory ruling of his Honour rejecting evidence of the blood sample and its alcohol content pursuant to s 138 of the Evidence Act, the Crown appeal should be upheld. In coming to my conclusion I have assumed that the evidence, if admitted would be probative of the blood alcohol level of the respondent at the relevant time. It will be a matter for the trial judge to consider whether, for reasons other than the improper taking of the blood sample, the evidence should be admitted. 37 For these reasons, in my opinion, the appropriate orders are:

1. Crown appeal allowed. 2. The order of McLoughlin DCJ rejecting evidence relating to the blood sample is quashed. 38 BELL J: I agree with McClellan CJ at CL. 39 HOWIE J: I agree with McClellan CJ at CL. **********

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