Admissibility of results of blood analysis
124 Sagacious argued that s 37(2) of the Road Transport (Safety and Management) Act 1999 (NSW) prohibited the admissibility in this matter of the certificate or results of any analysis of Mrs O'Shanassy's blood taken at Bowral Hospital on 16 January 2008. Relevantly, ss 23(1) (which is in Pt 2 Div 4 of the Act), 33(6) and 37(2) of that Act (which is in Pt 2 Div 7) provide:
"23 Analysis of samples of blood taken under this Division
(cf Traffic Act, s 4G (1)-(6))
(1) The medical practitioner or nurse by whom a sample of a person's blood is taken in accordance with this Division must:
(a) place the sample into a container, and
(b) fasten and seal the container, and
(c) mark or label the container for future identification, and
(d) give to the person from whom the sample is taken a certificate relating to the sample that contains sufficient information to enable the sample to be identified as a sample of that person's blood.
Maximum penalty: 20 penalty units.
…
33 Certificate evidence about breath or blood analysis in proceedings for offences under section 9
(cf Traffic Act, ss 4E (12) and 4G (9)-(11A))
(6) In proceedings for an offence under section 9, a certificate purporting to be signed by an analyst certifying any one or more of the following matters:
(a) that the analyst received, on a specified day, a sample of a specified person's blood in a container submitted for analysis under this Part,
(b) that the container, as received by the analyst, was sealed, and marked or labelled, in a specified manner,
(c) that on receipt by the analyst of the container, the seal was unbroken,
(d) that the analyst carried out an analysis of the sample to determine the concentration of alcohol in the sample,
(e) that the concentration of alcohol determined pursuant to the analysis and expressed in grammes of alcohol in 100 millilitres of blood was present in that sample,
(f) that the analyst was, at the time of the analysis, an analyst within the meaning of this Act,
is admissible and is prima facie evidence:
(g) of the particulars certified in and by the certificate, and
(h) that the sample was a sample of the blood of that specified person, and
(i) that the sample had not been tampered with before it was received by the analyst.
…
37 Evidence of breath test, breath analysis, oral fluid test, oral fluid analysis or blood or urine analysis and related facts not admissible in insurance cases to prove intoxication or drug use
(cf Traffic Act, ss 4E (13), 4G (12) and (13) and 5AB (5) and (6))
…
(2) For the purposes of any contract of insurance, the results of any analysis of blood or urine under Division 3A, 4, 4A or 5 are not admissible as evidence of the fact that a person was at any time under the influence of or in any way affected by intoxicating liquor or other drug or incapable of driving or of exercising effective control over a vehicle or horse.
(3) Nothing in subsection (1) or (2) precludes the admission of any other evidence to show a fact referred in the subsection.
(4) The provisions of this section have effect despite anything contained in any contract of insurance.
(5) Any covenant, term, condition or provision in any contract of insurance is void:
(a) to the extent that the operation of this section is excluded, limited, modified or restricted, or
(b) to the extent that it purports to exclude or limit the liability of the insurer in the event of any person being convicted of an offence under section 9, 11B (1) or (3) or Division 3 or 3A.
(6) However, nothing in subsection (5) precludes the inclusion in a contract of insurance of any other covenant, term, condition or provision under which the liability of the insurer is excluded or limited."
125 Importantly, s 37(2) does not refer to a certificate; rather it provides that the results of any analysis of blood under, relevantly, Div 4 are not admissible as evidence of particular facts; namely that the person whose blood it was, was at any time under the influence of or in any way affected by intoxicating liquor. However, s 33(6) provides for an analyst to give a certificate as to a number of matters, including the concentration of alcohol in a blood sample.
126 The vial containing Mrs O'Shanassy's blood sample was in a container the seal of which was broken at the time that it was received by the analyst. This may have contravened the requirement for admissibility of an analysis in proceedings for an offence under s 9 of that Act by force of ss 33(6)(b) and (c). Sagacious did not object to the analysis certificate on the ground of hearsay. But it contended that s 37(2) made the result of analysis inadmissible. It argued that this result flowed from the ratio of the majority decision of the Court of Appeal of the Supreme Court of New South Wales in NRMA v McCarney (1992) 16 MVR 34.
127 The analysis could be relevant on two levels. First, it may be evidence of the likely affect of alcohol on Mrs O'Shanassy at the time of the accident. Secondly, it simply may address whether or not the exclusion in the policy of insurance dealing with blood analysis was engaged; i.e. objectively did Mrs O'Shanassy's blood sample, if taken within two hours of the accident, have more than the prescribed concentration of alcohol? That second question has nothing to do with whether the other exclusion was engaged, namely whether she was driving under the influence of intoxicating liquor.
128 In Territory Insurance Office v Lemmens (1995) 118 FLR 103 at 105 Mildren J held that the express words of a similar section to s 37(2), deal with the latter situation, not the former. He said that the section did not prohibit the results of the analysis being admissible to prove that the blood had a particular concentration of alcohol. The insured argued that this decision was wrong and that the majority in Carney 16 MVR 34 had held to the contrary. The insured contended that a driver with any blood alcohol reading in an analysis would be shown to be within the words "in any way affected by intoxicating liquor" in s 37(2) because the relevant affect would be that he or she had alcohol in his or her blood i.e. the purity of a person's blood was affected by the concentration of alcohol.
129 In McCarney 16 MVR at 41-42 Cripps JA, with whom Meagher JA agreed, held the predecessor of s 37(2), s 4E(13) of the Traffic Act 1909 (NSW) had:
"[t]he plain meaning … that where an issue is litigated under a contract of insurance as to whether a person is driving under the influence of intoxicating liquor, the court cannot receive evidence that the person has undergone a breath test or submitted to a breath analysis or receive evidence of the results of any such test or analysis." (emphasis added)
130 Importantly, s 4E(13) was differently worded to s 37(2). The repealed provision was relevantly:
"(a) The fact that a person has undergone a breath test or submitted to a breath test analysis, and the result of a breath test or breath analysis or the fact that a person has been convicted of an offence under subsection (1D), (1E), (1F), (1G)(6) or (7) shall not, for the purposes of any contract of insurance, be admissible as evidence of the fact that that person was at any time under the influence of or in any way affected by intoxicating liquor or incapable of driving or of exercising effective control over a motor vehicle, but nothing in this subsection precludes the admission of any other evidence to show any such fact." (emphasis added)
131 Handley JA dissented. He held that s 4E(13) did not provide that the result of the breath analysis inadmissible to prove the facts of the time of the analysis and the result. Rather, he found that the results did not prove, without other evidence, that the person was under the influence of intoxicating liquor: McCarney 16 MVR at 36-37.
132 Both Handley JA and Cripps JA made their observations after stating that they were not necessary to decide the appeal because it had already failed on an independent ground: McCarney 16 MVR at 35, 40. The insured argued that nonetheless the observations by the majority, through the reasoning of Cripps JA, were, part of the ratio decidendi and thus binding on me, as a single judge in construing s 37 of the Road Transport Act.
133 I reject that submission. The reasoning process of a court in construing a particular form of words in one enactment is not a binding precedent in the construction of another or a subsequent enactment even where exactly the same words have been used in the two relevant sections or provisions: McNamara v Consumer Trader and Tenancy Tribunal (2005) 221 CLR 446 at 661 [40] per McHugh, Gummow and Heydon JJ, per Gleeson CJ and Hayne J agreeing at 650 [1], 668 [61]. As the plurality said there:
"It would be an error to treat what was said in construing one statute as necessarily controlling the construction of another: the judicial task in statutory construction differs from that in distilling the common law from past decisions." (footnote omitted)
134 It follows that McCarney 16 MVR 34 is not a binding authority on the construction of the different wording of s 37. However, the observations of the judges who decided it may be of assistance in construing the later statutory provision. I am of opinion that the observations in McCarney 16 MVR 34 on which the parties relied were obiter dicta. Cripps JA introduced his consideration of the other grounds of appeal, including that in relation to s 4E(13) saying:
"Notwithstanding that the above finding concludes the matter in favour of NRMA, I wish to deal with the other grounds of appeal." (emphasis added)
135 No doubt, his Honour considered that his succeeding remarks would assist in providing guidance as to the matters he discussed. But, as he made clear, his remarks were not necessary to the determination of the appeal: Bank of New South Wales v Commonwealth (1948) 76 CLR 1 at 330 per Dixon J; Rejfek v McElroy (1964) 112 CLR 517 at 520 per Barwick CJ, Kitto, Taylor, Menzies and Windeyer JJ; Attorney-General (Queensland) v Australian Industrial Relations Commission (2002) 213 CLR 485 at 528 [127] per Kirby J; see too Campomar Sociedad Limitada v Nike International Limited (2000) 202 CLR 45 at 59 [23] per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ and The Queen v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 at 243 per Aickin J; Bitumen and Oil Refineries (Australia) Ltd v Commissioner for Government Transport (1955) 92 CLR 200 at 212 per Dixon CJ, McTiernan, Webb, Fullagar and Taylor JJ referring to Viscount Simonds' views set out at 209: see too G W Paton and G Sawer: Ratio Decidendi and Obiter Dictum in Appellate Courts (1947) 63 LQR 461 at 472, 474.
136 The principle, if discernable, which informs or grounds the actual order of the court is its ratio decidendi: O'Toole v Charles David Pty Ltd (1990) 171 CLR 232 at 267 per Brennan J; cf Gala v Preston (1991) 172 CLR 243 at 284 per Toohey J citing from Julius Stone: Precedent and the Law (1985) at 123; see Re Tyler; Ex parte Foley (1994) 181 CLR 18 at 37-38 per McHugh J (approved by Brennan CJ, Gaudron, McHugh and Gummow JJ in Victoria v The Commonwealth (1996) 187 CLR 416 at 484) as to the distinction between the doctrines of stare decisis and ratio decidendi. As McHugh J explained in Woolcock St Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515 at 542 [59]:
"The common law distinguishes between the holding of a case, the rule of the case and its ratio decidendi. The holding of a case is the decision of the court on the precise point in issue -- for the plaintiff or the defendant. The rule of the case is the principle for which the case stands -- although sometimes judges describe the rule of the case as its holding. The ratio decidendi of the case is the general rule of law that the court propounded as its reason for the decision."
137 The insured argued that the views of the majority in McCarney 16 MVR 34 on s 4E(13) were part of the ratio decidendi based on what Finkelstein J said in McBride v Monzil (2007) 164 FCR 559 at 562-563 [6]-[7]. I do not understand his Honour to have said that where a court or a majority of judges expresses a ground for the orders made but goes on to express a view on other matters argued that were not stated to be essential to the orders, that those view form part of the ratio. Such a conclusion is contrary to the authorities in the High Court to which I have referred. Part of the common law process of decision-making involves the acceptance of the need for the binding effect of a court's decision to be confined to what is necessary, not merely interesting or desirable to dispose of the controversy between the parties. Judicial decisions are not legislative but specific. They can, and should, be understood as decisive only on the necessary groundwork to justify the orders made. That does not constrain a court from expressing views about other points, as the judges in McCarney 16 MVR 34 did. But those views are obiter dicta; that is, statements not necessary to resolve the controversy. If, however, a judge or court decides two or more points are necessary in order to arrive at a decision and it is not possible to segregate one as determinative, it is likely that all those points form the ratio decidendi. This is because all were reasons why the decision was made: McBride 164 FCR at 562-563 [6]-[7]; London Jewellers Ltd v Attenborough [1934] 2 KB 206 at 222 per Grier LJ; Ex parte King; re Blackley (1938) 38 SR (NSW) 483 at 490 per Jordan CJ with whom Davidson and Owen JJ agreed; Paton and Sawer op. cit 67 LQR at 470.
138 More fundamentally, s 4E(13)(a) is in substantially different terms to s 37(2). First, s 37(2) refers to the results of any analysis of blood "under Div … 4", whereas s 4E(13) referred to the results of breath analysis. Secondly, s 37(2) refers only to the results of an analysis, and does not extend, as s 4E(13) did, to the fact that the person had undergone a breath test or been convicted of an offence under s 4E. The second reading speech of the Minister for Transport shows (Hansard, Legislative Assembly NSW, 4 December 1968 p 421) that s 4E(13) was included in the Traffic Act at the request of the NRMA to protect comprehensive insurance cover held by the driver. The Minister said:
"Simply stated in terms of this clause, the fact that a person is involved in any proceedings associated with this bill will not be admissible as evidence, so far as an insurance policy is concerned, to prove that he was under the influence of intoxicating liquor."
139 The explanatory note to the Road Transport (Safety and Traffic Management) Bill stated:
"Clause 37 limits the extent to which evidence of a breath test, breath analysis or blood or urine analysis under the Part and related facts is admissible in insurance cases to prove intoxication or drug use.
The proposed section substantially re-enacts the provisions of sections 4E(13), 4G(12) and (13) and 5AB(5) and (6) of the Traffic Act 1909."
140 The parties were not able to identify any explanatory material for either the differences in wording in s 37(2) when it was enacted or any particular purpose in the enactment of s 37. The parties did not refer to any case that has considered s 37 in the present context. It is difficult to see any public policy rationale to justify why s 37(2) was enacted when it allows a contract of insurance to exclude liability of the insurer if it otherwise proves that the driver was under the influence or otherwise affected by intoxicating liquor. I must have regard to the public policy - whatever it is - that only the results of an analysis under Div 4 of the Road Transport Act sufficient to warrant a criminal conviction and the potential incarceration of a driver, should not be admissible to prove that a driver was under the influence of intoxicating liquor for the purpose of an insurer (other than a compulsory third party liability insurer) establishing an exclusion from its liability.
141 Mildren J in Lemmens 118 FLR at 105 held, like Handley JA, that an analogue of s 4E(13) did not preclude the admissibility of the result of a breath analysis for the purpose of showing the fact of the driver's blood alcohol level exceeding a level sufficient to constitute an offence, thus enlivening the applicability of an exclusion in a policy of insurance.
142 The insurer argued that the words "at any time" in s 37(2) negated this construction. It contended that those words would be otiose if the prohibition in the section were construed to refer to any physiological effect at all. I reject that argument. The analysis of blood taken at a particular time indicates that at the moment when the sample of blood was taken, the person had a particular blood alcohol level. That level can be used, as the pharmacological expert witnesses did in their evidence tendered at the trial, to demonstrate the blood alcohol level that the person would be likely to have had at an earlier time. Hence, the words "at any time" in s 37(2) have the purpose of prohibiting such evidence.
143 The word "affected" is defined in the Macquarie Dictionary, as the insured argued, as including the meanings, "influenced injuriously, impaired". The Oxford English Dictionary defines one sense of "affected" as meaning "acted on, influenced, or moved either physically or materially". That source also suggested that an earlier usage of the words as meaning "affected or tainted by disease" had merged in the meaning I have just set out.
144 Relevantly, the prohibition against admissibility in s 37(2) is in respect of the results of an analysis of blood being evidence that the person was affected by intoxicating liquor. The collocation of other prohibitions in s 37(2) suggests that the sense in which "affected" is used in the section is "influenced injuriously" or "impaired", as in the Macquarie Dictionary definition.
145 However, s 37 does not make the results of an analysis of blood inadmissible for all purposes. In particular, the ordinary and natural meaning of the section does not exclude the admission of the results as evidence of the concentration of alcohol in the person's blood at the time that the analysed sample was taken. Those results are not evidence that the person was under the influence of alcohol, or affected in any particular or general way by it or that he or she was incapable of driving or exercising effective control over the vehicle. Rather, the results are evidence that the person's blood contained a particular level of alcohol. But, the effect on the person of that level of alcohol in the person's blood as shown in the analysis result is not something that is self-evident, however high or low the reading is. Also, that result does not indicate anything, in itself, about the effect, or even presence, of any alcohol in the person's blood at an earlier time.
146 Importantly, s 37 does not contain the broader prohibition in its statutory precedessor, s 4E(13), against the admissibility of the fact that a person had undergone an analysis of his or her breath or blood. That additional prohibition, coupled with the prohibitions against use of the results of the analysis (now in s 37(2)) and the fact of a conviction based on the analysis (now in s 37(5)(b)) may have given some support to the view of Cripps JA in McCarney 16 MVR 34. However, as s 37(3) shows, the use of the analysis that is excluded from evidence, is to establish any effect on the driving ability of the person. The section does not preclude establishing the effect of alcohol on the person by evidence other than the results of the analysis.
147 Here, the insured's policy excludes liability if the result of the analysis shows a blood alcohol concentration of a particular character provided that the blood sample was taken within two hours of the accident. The exclusion operates because of the objective fact that the result of such an analysis shows the person's blood sample has that character. The exclusion operates irrespective of whether the person was in any way affected by alcohol at the time of the accident; indeed, it can operate where the person had not had any alcohol in his or her blood at the time of the accident, but had consumed it afterwards and, as a result, either not been prosecuted or convicted for driving in excess of the prescribed concentration of alcohol in his or her blood. Thus, the wording of the exclusion does not attract the avoiding operation of s 37(5).
148 This construction of s 37 is reinforced by s 37(6) which entitles an insurer to exclude liability for other reasons. The ordinary and natural meaning of s 37, read as a whole, does not render void the exclusion in the insured's policy that operates in respect of the results of the driver's blood analysis.
149 Here, the seal on the vial was not intact when Mrs O'Shanassy's blood sample was received by the analyst. That did not necessarily have the consequence that the analyst's certificate did not provide results of an analysis under Div 4. This is because the chapeau to s 33(6) is phrased distributively. It allows the analyst to certify as to one or more of the matters in pars (a)-(f) in s 33(6), including the concentration of alcohol in the sample (s 33(6)(e)) even if the analyst did not certify as to the seal being unbroken when he or she received the vial (s 33(6)(c)). Indeed, on a literal reading of s 33(6) in such a case, the analyst's certificate would be prima facie evidence of the matters in pars (g)-(i) of s 33(6). Thus, an analyst's certificate that did not certify that the seal was unbroken would still be prima facie evidence that the sample had not been tampered with before it was received by the analyst: see s 33(6)(i).
150 I am of opinion that s 37 does not make the results of the analysis of Mrs O'Shanassy's blood inadmissible as evidence of her blood alcohol level at the time that the sample was taken.
151 It is unnecessary to express a final view on the insurer's additional argument that s 37 is not picked up as a surrogate federal law by s 79 of the Judiciary Act 1903. It contended that this was because von Doussa J had held in Chapman v Luminis Pty Ltd [No 2] (2000) 100 FCR 229 at 252 [70] and see too at 252 [81], 253 [84], that s 56(1) of the Evidence Act 1995 is comprehensive as they key provision controlling admissibility of evidence and delimits the sources of exceptions to that provision, being the other provisions of the Evidence Act. As a matter of comity, I would be inclined to follow what von Doussa J held there.