C 10441054 IN THE MAGISTRATES COURT OF VICTORIA
DENIS CONNELL Defendant
MAGISTRATE: Magistrate Maxted
WHERE HELD: Melbourne
DATE OF HEARING: 13 May 2013 DATE OF DECISION: 7 June 2013 CASE MAY BE CITED AS: Police v. Connell
REASONS FOR DECISION ---
Charges(1) Drive whilst prescribed percentage of alcohol in his breath exceeded .05 or above s.49(1)(b) and (2) exceed prescribed concentration of alcohol within three hours s.49(1)(f) Road Safety Act Vic. Meaning of “in the presence of police ” for the purposes of fulfilling Section 55 (10) Road Safety Act
APPEARANCES: Counsel Solicitors
For the Prosecution Sen Const J Shaw For the Accused Mr S Hardy
1 The offences occurred almost two years ago on or about 13 June 2011.
2 At the hearing of this matter evidence was called by the prosecution in the following order. The informant Constable Brady, the corroborator and licensed breath testing operator, Senior Constable Glover and forensic nurse/examiner Miss O'Heir (the approved health professional in this case). A certificate of the accused breaths pursuant to a breath test completed on a prescribed device was tendered to the Court, indicating the accused’s blood alcohol content was allegedly .115%. There was no dispute arising as to the issue of Ms O'Heir being an approved health professional, although the accused person made some suggestion on the night of the offences, that he was so concerned. However, this was not pursued further in the hearing.
3 The defendant is and was a practising barrister and gave sworn evidence and was cross-examined. He also called in support of his contentions a witness Ms Sun, who was also a practising barrister in the State of Victoria. The facts that the prosecution led, namely the request for preliminary breath tests and the obtaining of the certificate of analysis and the conversations at the preliminary breath testing station were all largely uncontentious.
4 Where the prosecution and the defence case differed for all material purposes, were the events post the breath testing station at Wurrengeri Way, and what actually occurred in the City West Police Station in Melbourne CBD on the evening (after the preliminary and actual breath test was performed). In particular, these matters involved factual occurrences surrounding the taking of any blood sample, as was the defendant's clear statutory right to have performed by Victoria Police. This right is enshrined in s.55(10) of the Road Safety Act 1996.
5 There was disagreement and conflict in the evidence on the following material points.
Whether the blood sample that was attempted to be taken was taken from the left arm or the right arm of the accused.
Whether only one attempt or multiple attempts were taken from one of the defendant's arms.
Whether the defendant acted in a way (on any of his arms) which prevented the forensic nurse examiner from taking the blood under the Road Safety Act provisions.
Whether the defendant actually orally withdrew his consent and his request under the Road Safety Act for blood to be taken after one alleged failed attempt to take blood.
Whether the informant or the forensic nurse examiner, had taken all reasonable steps to comply with the defendant's statutory request (which I find was indeed made to more than one police officer repeatedly on the evening) for blood to be collected.
6 The Road Safety Act S 55(1) makes it clear that any blood sample must be taken, "In the presence of" of a police officer. The requirement, as is clearly expressed in the Act and parliamentary intention, is in my view there to precisely avoid the very situation in which this court is faced and left now to determine, namely a dispute over the version of differing events surrounding the actual blood request, and the eventual collection of blood. In particular, the various assertions and counter assertions respectively by a forensic nurse examiner, forensic medical officer or other approved health professional and a defendant. Police officers owe a very high duty to the courts of giving accurate and precise evidence at all times. Barristers (legal practitioners) share this high duty as well, who are officers of the court, and are under a very serious obligation to give evidence in a similar vein when providing sworn evidence to a court. These present proceedings are criminal prosecutions, and nowadays exceeding .05 percentage of alcohol as an offence, to wit in this case the allegation of exceeding the prescribed blood alcohol content of .115% carries a significant social stigma. The standard of proof on material matters in these cases is, "Beyond reasonable doubt". Where parliament provides a statutory right to a defendant amounting to the provision of a possible opportunity of exculpation, by better testing, or inaccuracy of testing in a serious road safety matter, it is to be considered appropriate, that the courts give effect to such
rights. The courts do not abrogate those rights and opportunities provided to accused persons lightly. This is particularly so, where sworn evidence is in conflict and where individual credibility of witnesses are not in issue between the parties.
7 Alternatively even if the prosecution had fulfilled part of the statutory obligations by, "Organising" and, "Arranging" the blood test, it has in my view in this case, not fulfilled the reasonable duties required and incidentally associated with the task of confirming from the approved health professional that in fact in respect of the, "Taking of the blood" that in fact blood could not in fact, "Be taken", or had indeed been taken, in the actual presence of the police. There was indeed no direct evidence led from the informant or any other police officer on this point.
8 In particular neither Senior Constable Glover nor Constable Brady gave any evidence on this direct point; stating that they, "Were not in the room" where the defendant was when the approved health provider was attempting the various procedures associated with the taking of the blood.
9 In my view it was incumbent on the police officers (in particular the informant) to satisfy himself that, "All reasonable" attempts were made to satisfy the statutory request to completeness. The Informant had later knowledge that a urine sample was later organised in default of the blood sample, but he had no proper knowledge of what effect this would have upon the charges, and the defendant, and/or how this urine sample complied with the full effect of the request under s.55 (10) of the Road Safety Act.
10 In fact both police officers seemed, on the night of the offences and frankly admitted candidly in the witness box, to being a little, "Overwhelmed" with the procedure when a blood request had been made. There was clearly significant confusion in relation to s.51 suspension notice, whether it was served, or whether it was not, and what effect it had at law as well. However in
any event a withdrawal of an initial s.51 notice prepared on the evening of the night was apparently withdrawn on or about 30 June 2011 at the request or direction of senior officers.
11 In fact Senior Constable Glover admitted that he had only been a breath testing operator for seven weeks and at that time of the offences he had been a member of the Victorian Police for only 17 months prior to that. Senior Constable Glover candidly admitted she was not at all familiar with Road Safety Act blood test procedures. The statutory procedure under the Road Safety Act requires the operator or the informant to do at least three things. (1) arrange, (2) take and (3) collect blood and this is to be done in the presence of a member of Police Force. I am not satisfied that the procedures associated with steps (2) and (3) in this case were indeed followed.
12 Senior Constable Glover also stated in her evidence under cross-examination that she admitted that she herself was not, "Not present" when blood samples were taken or attempted to be taken and had simply, "Assumed" that in her words the, "FMO" had followed procedures. She also said in evidence that she believed it was simply "A protocol that she was following" that bound her to follow certain procedures regarding blood requests, and did not at any time of her evidence refer to the statutory procedures under s.55(10) of the Road Safety Act and its very clear expressed terms.
13 This case has been her only time, up until her giving evidence, that she has ever been required to satisfy a s.55(10) request. She admitted further that she was now aware that the sample of blood needed to be taken, "In the presence of a member of the Police Force" and could not say if any member had been present in the room when it was so attempted. She was, it appears from my assessment of the evidence, clearly distracted by in her words, "Consolidating other paperwork that evening" relating to this and other events. She herself was never personally and directly aware that indeed the blood was, "Not taken from the defendant". She said she was only informed by, "A third party"
unknown to her on the evening in her evidence that blood was not in fact taken. This was clearly her obligation or at least the informant's obligation.
14 Senior Constable Glover stated in cross-examination that by not being in the room (or shall I interpose and say, "Present" in the room) she was not able to be satisfied that blood was indeed taken or not taken on that evening.
15 Miss O'Heir, the approved health professional nominated by the member of the Police gave evidence that she could, "Not point to any particular police officer being present in the room" during the attempt or attempts to take blood. None it would appear were directly observing her, and the procedure being performed by her. She stated that the police officers were in, "Verbal hearing" but she could not say that no one individual officer was responsible for oversighting the procedure for the, "The taking of the sample of the blood in the presence of a member of Police Force as is required by s.55(10)."
16 Neither did any of the police officers say they were able to witness or observe the taking of the blood as was required by s.55(10), some saying they were outside the room or at the doorway, but no one officer, placed themselves in the presence of the approved health professional nor the accused person.
17 Upon consideration of the meaning of the words, "In the presence of" in respect of this reference in the section of the Act, there is very little direct authority. The new shorter Oxford English Dictionary Volume II defines, "In the presence of", meaning, "In the company of, observed by." The Macquarie Dictionary defines presence as, "The state or fact of being present, as with others or in a place". The Fourth Edition of Words and Phrases Legally Defined mentions the words, "In the presence of” in respect of testator's signatures. Of course in testators and estate cases and matters pertaining to the act of being present when a will is executed, there each witness must then either attest and sign the will or acknowledge the signature in the testator's presence. This is when the testator's complete signature must be made or
acknowledged, when both the attesting witnesses are present at the same time and each witness must attest and sign or acknowledge his signature after the testator's signature has been made or acknowledged. This requires the persons to be present to observe the signature. I also refer to the case of Brown v. Skirrow 1902 Probate Division, where it was there held that being in the same shop where the will was signed but not actually observing the execution due to other distractions was not good execution in the presence of the parties.
18 Further, in matrimonial proceedings I refer to the case of W v. T 1998 Full Court of the Family Court, where it was decided there, that having regard to the terms and history of the Marriage Act and its common law background, that the trial judge was correct concluding that on physical level the marriage was solemnised, "In the presence of a pastor", the court declaring, that the concept of sufficient physical presence will ultimately be a matter of degree. Whether the pastor was present in the congregation in a position where he could and did see and hear the ceremony was a question of fact but in that case of civil cannon law, the passive presence of a minister as an authorised celebrant was sufficient.
19 A more recent and valuable probative decision can be found of the Supreme Court of Victoria on 12 April 2013 in Azadzoi v. The County Court of Victoria 2013 VSC 161. This case involved an accused who was charged under s.47 of the Crimes Act with an indecent act with a child under the age of 16. The court held in that case that properly interpreted the word, "Presence" element in s.47 requires, "Physical proximity between the accused and the complainant". In that case the facts were undisputed that at all material times the accused was in a sauna, and that one of the complainants was in another room, the steam room, there being space between the two. It was not possible for one of the complainants to see directly in to the steam room or for the accused to see in to the sauna. Those facts it was held could not fall within
the statutory concept of, "Presence", and the judge therefore was in error in convicting the accused on the charge in respect to that complaint.
20 Likewise the evidence of the prosecution witnesses in the present case is entirely unsatisfactory as to what particular room, exact location and precise observations they had of the accused and the nurse and in which to make a proper observation and therefore to be in a position to provide accurate, reliable evidence under oath which would satisfy the legal definition of presence of the person arranging and taking the blood sample in accordance with s.55(10).
21 As to the ground for exclusion where there has in my opinion been a failure to use, "Reasonable efforts" to comply with a request under s.55(10). I am not satisfied to the requisite standard on the material before me that the authorised medical officer made reasonable efforts to comply with the taking of the sample. The quality of the police evidence is in parts unsatisfactory and I am of the view that the prosecution have not proved that reasonable efforts were made to take a blood sample from the accused on that night from the accused, particularly bearing in mind the evidence of Miss O'Heir that the Forensic Medical officer for the State of Victoria had made a direction to all staff, that when taking blood, at a minimum two attempts should be made. The police or at least the nurse ought to have stated to the accused, that one further attempt was going to be made (similar to breath testing) or if there was any prevarication by the accused would be regarded as a withdrawal of the earlier request, or deemed a withdrawal of the earlier request. No evidence in these terms or of this style was led or received in evidence. However if I am wrong on this point - I find there are two other bases for not allowing a certificate Ex P1 to be admitted as evidence.
22 The effect of failure to comply with s.55(10) is that it also provides the court with discretion to exclude the evidence of the breath analysis. Exhibit P1 - the certificate and the evidence that purports to prove the
accused exceeded the prescribed blood alcohol concentration. The discretion to exclude this evidence occurs on a number of legal bases. One ground is for a breach of s.55(13) where there has been no reasonable efforts made by the prosecution to comply with the request ( I have dealt with this above), or secondly, as a judicial discretion, either as offending public policy or thirdly, a general unfairness discretion at large.
23 The later mentioned discretion (general unfairness) would be activated in this case on the basis that the prospect of the loss of the potentially exculpatory evidence of a timely blood test, revealing a direct blood alcohol content of either a nil reading amount leading to an acquittal, (or one which was well below .05 also leading to acquittal) or one which is below .1 for relevant sentencing considerations, has thereby not been made available to the accused by virtue of the method adopted by the police and their agent the nurse . See the cases of Jago v. District Court New South Wales  CLR. Holmden v. Bitar  47 SASR at 509 and Heinze v. Burnley  57 SASR at 452, Moore v. DPP  VSCA at p.90 and particularly at p.441. Insofar as the unfairness discretion occurs and arises it appears to me to be incumbent upon both police officers to fully and adequately appreciate the rights given to defendants in the position that the police officers held, and in which the accused sought to exercise his statutory right. Whilst police officers are busy, they are not entitled to leave matters of administration and the operation of Road Safety Legislation entirely to non sworn officers. If there was according to Miss O'Heir evidence of a change of mind or a withdrawn consent similar to s.55(10), it was incumbent clearly upon either of those officers in the presence of each other, or at least in the presence of the authorised medical officer, to confirm this request or its withdrawal and to have taken whatever evidentiary steps they should take to note a subsequent withdrawal of consent. This was not done.
exclude, I find that the conduct, of the informant and other officers failure to ensure the defendant's wishes for a blood analysis was indeed carried out or to the best of their abilities carried out , could not be divested to an approved medical officer. The approved medical officer may have found the defendant difficult or as she said was, "Agitated" and, "A bit argumentative". However it is not for that person to finally determine the issue. Whilst the attitude of the defendant may impact on the approved medical officer's ability to perform her task, ultimately the informant or police have the burden of ensuring that these steps are performed. They did not do so. The authorised medical officer gave evidence that it was standard procedure and part of her instructions by the head forensic medical examiner to always make two attempts to take any blood sample. There was no proper or appropriate explanation why this was not followed, other than her own individual evidence that the defendant allegedly withheld his consent after a failure to obtain blood on the first attempt. No police witness gave evidence as to this aspect, nor did they after the alleged withdrawal of consent to take blood did any of them verify the position with the accused. It was clear that the accused person at all times purportedly wanted to have his blood sample proceeded with - he had requested it at the preliminary breath station/van, whereupon he was directed to go to the City West Police Station with the Informant and other police. This continuing request, was corroborated evidence by Miss Sun and whilst she was challenged in cross-examination on the matters, she was not directly challenged on this alleged withdrawal point when the nurse was present nor was there any concession by her under cross-examination.
25 The approved medical officer gave evidence that it is quite common for the first attempt to sometimes be unproductive in obtaining blood. Importantly the evidence of the approved medical officer was not directly corroborated by any of the two police officers, who gave evidence and who were present, nor did she give evidence that she had reported the withdrawal of consent by the accused to either the informant Constable Brady or Senior Constable Glover.
After all, it was clearly a matter for the police to, "Arrange" (which they clearly did) and to also ensure the blood was, "Taken" under the Act and it was not her responsibility to be satisfied. If blood could not be taken, then the police needed to be clear as to precise circumstances surrounding how the request was not being capable of being fulfilled, and evidence provided to that effect.
26 The court is therefore left in a dilemma as to who is giving the most accurate and reliable evidence, and what was the precise actual position was, given that all these witnesses were credible, and where there were some aspects of the police evidence where there was a lack of experience on their part and a sense of confusion. In respect of the evidentiary satisfaction that I must come to, and in order to find these offences proven, in forming my view I refer to the case of Briginshaw v. Briginshaw  CLR as to the relevant degree of satisfaction required. I am not satisfied to the requisite degree.
27 Parliament clearly intended all these medical procedures to take place clearly, "In the presence of a member of police". I find this means in the direct visual presence of Police, the defendant and the authorised officer. I was informed during the evidence that these S55 (10) requests occur only infrequently and evidence was given to this effect. But nevertheless when these functions are being performed, parliament clearly required that these medical procedures be performed as stated by it, namely in the presence of the police member. No doubt in order to ensure that clear, unambiguous and unequivocal evidence could be supplied to a court by a sworn member of the Police Force as to the status and outcome of the request and to assist a court in its evidentiary satisfactions, and further finally in order to prevent any unfairness to an accused person where his or her version is being challenged by simply another civilian witness.
28 These offences as I said are in my view serious road traffic offences, and the court will apply care and caution before being satisfied in a particular fact and before any facts are found. I therefore am of the view that I cannot find with
any degree of certainty or any real comfort given particularly the conflicting evidence on the events at City West Police Station, that one version is right over the other. The standard on this point is a high one, and where the police evidence is not directly corroborated, on the point in issue I am unable to find with any real certainty that the defendant withdrew his consent as asserted by one witness for the prosecution. When I am left in this quite uncomfortable position, I am required pursuant to law and the authority of Briginshaw not to speculate or to infer facts in order to support a conviction.
29 I therefore exclude the certificate under both the general fairness discretion and pursuant to the public policy discretion of the evidence of the certificate of breath analysis namely Exhibit P1. This means the case for the prosecution must fail.
30 I note in passing that the decision of Justice Williams on 17 May 2013 in DPP v. Skafidiotis  Victorian Supreme Court Reports at 258 took a similar view of the technical aspects of the Road Safety Act in respect of matters pertaining to, "Drink driving matters". The appellant in that case (the prosecution in that case) cited the statutory purposes in s.1(a) of the Act in support of its contentions on appeal and said they were, "To provide for safe, efficient and equitable road use", and therefore argued that it should be furthered by a conclusion that there was evidence upon which the magistrate could have found that there had been, "An anticipatory refusal" of a s.53(1) requirement (in that case). Her Honour disagreed. At Paragraph 33 Her Honour said, "Section 49(1)(c) is a penal provision and courts should not take a, 'near enough is good enough' approach to the application of such legislation, notwithstanding the community's interest in the promotion of the Act's stated objectives. The obligation remains upon the prosecution to prove the elements of the alleged office. I agree with the respondent that it is a refusal of a requirement under s.53(1) for a preliminary breath test which is fundamental element of the s.49(1)(c) offence." Her Honour found that the
magistrate did not err and the prosecution appeal was dismissed.
31 My view in this case is confirmed by Her Honour's recent decision in that Her Honour clearly has recently taken such a view, namely that the Road Safety Act should therefore be interpreted as a penal provision, and courts should not in the interpretation and implementation of the Act, take a near enough is good enough approach to the application of such legislation. This is notwithstanding the community's interest in the promotion of the Act's objectives.
32 I therefore, in accordance with the law, dismiss both offences against the accused person.
33 I will hear any application for costs.