Thompson v Byrne

1. Section 49 of the Act relevantly provides: "(1) A person is guilty of an offence if he or she - (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 - (i) 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; and (ii) the concentration of alcohol indicated by the analysis to be present in his or her blood was not due solely to the consumption of alcohol after driving or being in charge of the motor vehicle."

45. It is a fundamental rule of construction that, where the words of a statute are clear, they should be given their natural and ordinary meaning unless that would result in absurdity, conflict with some other provision of the statute or lead to a "result which cannot reasonably be supposed to have been the intention of the legislature" [80] . Were it otherwise, those who are subject to the law would find it impossible to know on what basis they should conduct their affairs.

1. Pinner v Everett [1969] 1 WLR 1266 at 1273; [1969] 3 All ER 257 at 258, per Lord Reid. See also Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 310-311, per Stephen J; at 320-321, per Mason and Wilson JJ; at 334, per Aickin J (dissenting); Bropho v Western Australia (1990) 171 CLR 1 at 20, per Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ, citing with approval the statement of the purposive approach by McHugh JA (as he then was) in Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 423.

46. The words of s 49(1)(f) are not lacking in clarity. If given their ordinary meaning, they may produce results that some would consider draconian, but that is very different from saying that the results are absurd. Indeed, it was not so argued. Rather, the argument for Mr Thompson was directed to the other two matters which may sometimes necessitate departure from the clear words of a statute.

47. The first argument concerned the relationship between ss 49(1)(f) and 55(10) of the Act. By s 55(10), a person who has been required to submit to breath analysis may request that a blood sample be taken for analysis by a medical practitioner. There is no conflict between ss 49(1)(f) and 55(10). Nor is it accurate to say that, if s 49(1)(f) is construed according to its terms, s 55(10) is mere surplusage. By s 49(4), it is a defence to a charge under sub-s (1)(f) that "the breath analysing instrument used was not in proper working order or properly operated". Blood analysis may ground a defence in accordance with that sub-section.

48. The second argument for Mr Thompson was directed to what was said to be the purpose of the Act. As Dawson J pointed out in Mills v Meeking [81] , the Act is to be construed observing the command in s 35 of the Interpretation of Legislation Act 1984 Vict. That section requires that "a construction that would promote the purpose or object underlying the Act be preferred to [one] that would not" (s 35(a)). That requirement is independent of any other rule of construction and gives greater emphasis to legislative purpose than do the general rules of statutory interpretation. As with the general rules, however, the problem is to identify the legislative purpose.

49. The legislative purpose of an enactment cannot be determined simply by having regard to its stated purpose or, where that is permitted, the relevant legislative debates. Neither is likely to be an exhaustive exposition of the legislation in question or of its purpose. Rather, where "the words of the statute are in themselves precise and unambiguous [they] best declare [its] intention" [2] . Given the clear language of s 49(1)(f) and its context, there is, in my view, no basis for concluding that it was intended to apply only to those driving or in charge of a motor vehicle that was involved in an accident.

1. Sussex Peerage Case (1844) 11 Cl & F 85 [8 ER 1034 at 1057]. See also Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518, per Mason CJ, Wilson and Dawson JJ; at 532, per Deane J.

Special leave to appeal was granted in this matter on the condition that, unless the appellant could persuade the Court to reopen its decision in Mills v Meeking [3] , the grant of special leave would be revoked.

In Mills, the majority judges gave s 49(1)(f) of theRoad Safety Act 1986 Vict (the Act) a literal interpretation. Dawson J and I dissented. We thought that the paragraph should be given a purposive construction. Consequently, we read down the literal meaning so as to avoid the injustice that would arise if a motorist could be charged under that paragraph instead of s 49(1)(b) in circumstances where the motorist had not been involved in an accident.

In my opinion, Dawson J and I were correct in reading down s 49(1)(f), and Mills was wrongly decided. But that is not a sufficient reason to re-examine its correctness. The decision has stood for nine years. Notwithstanding that Dawson J and I thought that the legislature had only intended that s 49(1)(f) should apply where the motorist had been involved in an accident, the legislature has made no attempt to amend the Act to give effect to that supposed intention. Furthermore, s 49 was amended after the decision of the Supreme Court of Victoria in Mills and before the appeal in this Court. The amendment dealt with at least one of the draconian consequences of the effect of laying a charge under s 49(1)(f), instead of s 49(1)(b), of the Act.

In support of his case for re-examining the correctness of Mills, the appellant relied on the fact that the majority judgment in Mills made no reference to s 55(10) of the Act. He contended that the majority judges must have overlooked that provision and that, if they had considered it, the case would have been decided differently. However, I do not think that the terms of s 55(10) throw any light on the proper construction of s 49. At all events, the effect of s 55(10) on the interpretation of s 49 is too slight to think that the majority judges in Mills would have reached a different conclusion. It affords no reason to reopen the correctness of Mills.

It follows, therefore, that I would not reopen the correctness of the decision in Mills v Meeking and that the grant of special leave to appeal must be revoked.