Mills v Meeking

169 CLR 214
91 ALR 16

---

(Judgment by: Dawson J)

Between: Mills
And: Meeking

Court:

Judges: Mason CJ
Brennan J.

Dawson J.Toohey J.
McHugh J.

Subject References:
Criminal Law

Hearing date: 10 November 1989
Judgment date: 27 February 1990

---

Judgment by:
Dawson J

DAWSON J The appellant was driving a motor vehicle when he was intercepted by two members of the police force, one of whom was the first respondent, for a minor infringement of the road traffic rules. He was required to undergo a preliminary breath test which, it was alleged, indicated a positive result. Subsequently he was taken to a police station where he provided two samples of his breath for analysis by a breath analysing instrument. The readings of the quantity of alcohol present in the appellant's blood were 0.130 per centum and 0.125 per centum respectively. Upon the information of the first respondent, the appellant was charged with an offence under s 49(1)(f) of the Road Safety Act 1986 (Vict.).

Section 49 appears in Pt 5 of the Act which deals with offences involving alcohol or other drugs. Sub- section (1) of s 49, as it was at the time and so far as is relevant, provides:

"A person is guilty of an offence if he or she -

(a)

drives a motor vehicle or is in charge of a motor vehicle while under the influence of intoxicating liquor or of any drug to such an extent as to be incapable of having proper control of the motor vehicle; or

(b)

drives a motor vehicle or is in charge of a motor vehicle while more than the prescribed concentration of alcohol is present in his or her blood; or

(c)

...

(d)

...

(e)

...

(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 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; or

(g)

..."

Save for persons holding certain types of licence, including a probationary licence, the prescribed concentration of alcohol is 0.05 grams per 100 millilitres of blood. In the case of the holder of a probationary licence the prescribed concentration is 0.00 grams per 100 millilitres of blood. It appears that the appellant may have been the holder of a probationary licence but the evidence is unsatisfactory upon that point. Nothing turns on it.

There are several things to be noted about s 49(1)(f), the provision under which the appellant was charged. The offence which it creates consists of having a blood alcohol concentration above the prescribed limit at the time of analysis; a person may be guilty of the offence whether or not his blood alcohol concentration exceeded the prescribed limit at the time he was driving the motor vehicle. In this respect par.(f) may be contrasted with par.(b) which makes it an offence for a person to drive a motor vehicle with more than the prescribed concentration of alcohol in his blood. Under s 48(1)(a) there is a presumption that the blood alcohol concentration of a driver charged under s 49(1)(b) was at the time of driving no less than at the time of the analysis of his breath, but the presumption is rebuttable. Also in contrast to par.(b), the defences available to a person charged under par.(f) are limited. Section 49(4) provides that it is a defence to a charge under par.(f) of sub-s.(1) for the person charged to prove that the breath analysing instrument used was not on that occasion in proper working order or properly operated, but s 49(6) provides that in proceedings under par.(f) evidence as to the effect of the consumption of alcohol on the defendant is inadmissible for the purpose of establishing a defence to the charge. Whether this latter provision precludes a person charged under par.(f) from calling evidence of the consumption of alcohol by him as opposed to evidence of the effect of such consumption upon him is, perhaps, problematic. In any event, a defence that the reading upon analysis was faulty is virtually the only defence open when an offence is charged under par.(f) because the offence consists of having more than the prescribed blood alcohol level at the time of analysis, not at the time of driving, and it does not matter when the alcohol which gives rise to the reading was consumed. Whatever the meaning of s 49(6), it can only have the effect of limiting the already limited scope of that defence.

Section 49(1)(b), on the other hand, is aimed at persons having a blood alcohol level beyond the prescribed limit at the time of driving and a defendant charged under that paragraph is not restricted in raising a defence that the analysis of his breath was faulty or that the reading did not represent his blood alcohol level at the time of driving, provided a notice is given requiring the analyst to be called as a witness: see s 58(2).

It is apparent that the offence created by s 49(1)(f) was intended to deal at least with the situation where a driver, who is involved in an accident, imbibes alcohol after the accident, thus making it difficult or even impossible to prove his blood alcohol concentration at the time of the accident. Whether s 49(1)(f) was intended to deal with more than that is the question which must be resolved in this appeal. The appellant contends that it was not, and points out that he was found driving a motor vehicle and was thereafter, until the breath analysis was carried out, under the observation of members of the police force with no opportunity to consume further alcohol. He submits that, not only was s 49(1)(b) the appropriate section, if any, under which to charge him, but that s 49(1)(f) was unavailable because it must be construed as being limited to circumstances in which a vehicle has been involved in an accident.

The matter came on for hearing before a magistrate and at the close of the prosecution case counsel for the appellant submitted that it was an abuse of the process of the court to charge the appellant under s 49(1)(f) rather than s 49(1)(b). A submission to the contrary was made by the prosecution. Of his own motion, and over the objection of both sides, the magistrate amended the information to charge the appellant with an offence under s 49(1)(b). Further proceedings were adjourned to enable the course taken by the magistrate to be tested. Ultimately the matter came before Crockett J. pursuant to O.56 of Ch.1 of the Rules of the Supreme Court (Vict.) which provides for judicial review in matters previously covered by the prerogative writs.

Crockett J. held that s 49(1)(f) applies only when a defendant furnishes a sample of breath within three hours after driving a motor vehicle which has been involved in an accident. He was prepared to read into s 49(1)(f) the words necessary to produce that result. Accordingly, he held that the prosecution had not made out any case against the appellant under s 49(1)(f) and that the information ought to have been dismissed rather than amended, because the power to amend an information under s 157 of the Magistrates (Summary Proceedings) Act 1975 (Vict.) is limited to the correction of technical defects. He quashed the decision of the magistrate to amend the information and directed him to dismiss it. Upon appeal to the Full Court of the Supreme Court (Fullagar, McGarvie and Marks JJ.), it was held that s 49(1)(f) was not restricted to cases in which a vehicle had been involved in an accident and had a valid application in the present case. The Full Court directed the magistrate to hear the charge under s 49(1)(f) according to law: Meeking v. Crisp (1989) VR 740. The appellant appeals against the order of the Full Court.

The appellant submits that the construction placed by Crockett J. upon s 49(1)(f) is correct. In order to follow that submission it is necessary to make further reference to Pt 5 of the Road Safety Act.

Section 49(1)(f) can only apply where a person has furnished a sample of breath for analysis by a breath analysing instrument under s 55(1). A person can only be required to furnish a sample of breath under s 55(1) when he has first been required to undergo a preliminary breath test under s 53 and he refuses or fails to undergo it or the breath test proves positive. Section 53(1) limits the occasions upon which a person may be required to undergo a preliminary breath test. It provides:

"A member of the police force may at any time require -

(a)

any person he or she finds driving a motor vehicle or in charge of a motor vehicle; or

(b)

the driver of a motor vehicle that has been required to stop at a preliminary breath testing station under section 54(3); or

(c)

any person who he or she believes on reasonable grounds has within the last 3 preceding hours driven or been in charge of a motor vehicle when it was involved in an accident - to undergo a preliminary breath test by a prescribed device."

Disregarding par.(b) of s 53(1), a person may be required to undergo a preliminary breath test if he has been found driving a motor vehicle or is believed by a member of the police force to have driven a motor vehicle within a preceding period of three hours when it was involved in an accident. As I have said, a person cannot be required to furnish a sample of his breath for analysis by a breath analysing instrument under s 55(1) unless he has first been required to undergo a preliminary breath test under s 53.

The wording of s 49(1)(f) - the provision which creates the offence with which the appellant was charged - extends to a person whose blood alcohol concentration exceeds the prescribed limit within three hours after driving. There are no express words requiring that the motor vehicle driven should have been involved in an accident. There is a certain lack of symmetry in this, because the power under s 53(1)(c) to require a person, not found driving a motor vehicle, to undergo a preliminary breath test is limited to circumstances where he is believed to have driven or been in charge of a motor vehicle when it was involved in an accident. Why the offence created by s 49(1)(f), which also does not require that a person be found driving a motor vehicle, should be expressed in terms which are apparently wider than those enabling members of the police force to subject a person who is not found driving a motor vehicle to a preliminary breath test is inexplicable unless the offence was also intended, by implication, to be limited to circumstances where a person has driven a motor vehicle which was involved in an accident.

In reaching a conclusion contrary to that reached by Crockett J., the Full Court drew some comfort from the fact that a person could only be required to undergo a preliminary breath test if he was found driving a motor vehicle or was involved in an accident. They thought this provided some protection to an innocent driver who imbibed alcohol only after he had ceased to drive a motor vehicle. They said (at p 743):

"It is important to emphasise ... that proof of the latter (the offence created by s 49(1)(f)) depends on a preliminary test having been administered under s 53(1)(a), (b) or (c) and a sample taken pursuant to s 55(1). Thus, if there were no accident and no reasonable belief that one had occurred the preliminary test must have been administered under s 53(1)(a) or (b). This provides some safeguard, for example, against a person being intercepted after drinking with dinner at home and being required to undergo a breath test within three hours of having driven home without incident from work."

But to say as much is to assume that the legislature intended a person in the situation envisaged to be excluded from the reach of s 49(1)(f). Such an intention was, presumably, not meant to be dependent upon whether the means adopted to restrict the ambit of the offence created, namely, s 53(1), achieved its purpose. For it is, I think, demonstrable that there are circumstances in which s 53(1) would not achieve the purpose which the Full Court saw it as having.

Section 53(1)(a) enables a member of the police force to require a person found driving a motor vehicle to undergo a preliminary breath test. The motor vehicle does not have to be involved in an accident. Nor does the test have to be administered at the time the person is found driving the motor vehicle. The test may be required "at any time", provided the person to be tested has been found driving a vehicle. No doubt there must be, as a matter of proper interpretation, a degree of contemporaneity between finding a person driving and administering a preliminary breath test to him, but it is clear that the two things need not be simultaneous. The degree of contemporaneity required is indicated by the Act itself. There is an overall time limit within which a person can be required to undergo a preliminary breath test under s 53(4). It is a period of three hours after the driving of a motor vehicle. But that means that a person found - that is, observed - driving a motor vehicle may be required to undergo a preliminary breath test some hours after having ceased to drive and, subsequently, be required to accompany a police officer to a police station to furnish a sample of breath for analysis within three hours of the driving: s 55(1). It is quite conceivable that such a person may have imbibed no alcohol at the time of driving but may have consumed sufficient alcohol after the driving to take his blood alcohol concentration above the prescribed limit. And he may have imbibed that alcohol without any thought of frustrating the proof of his blood alcohol level, there having been no accident or other incident to warn him that the police may wish to ascertain it. The question is whether in that situation, if the person's blood alcohol concentration is at the time of analysis above the prescribed limit, he has committed an offence under s 49(1)(f), or whether s 49(1)(f) should be read as subject to the limitation which, having regard to s 53(1), was evidently intended, namely, that the motor vehicle driven should have been involved in an accident.

Section 49(1)(f) is clearly a drastic measure, there being no defence to the offence created save for one of obviously limited practical application. Even if confined to circumstances in which there has been an accident, it nevertheless represents a considerable incursion upon the freedom of an individual to consume alcohol as he pleases when not driving or about to drive a motor vehicle. That is, however, understandable having regard to the ease with which a person involved in an accident may frustrate the proof of his blood alcohol level as at the time of the accident. And clearly the legislature thought it appropriate to place at their own risk drivers consuming alcohol within three hours after driving a vehicle involved in an accident. But, if s 49(1)(f) is to be given a construction which extends its ambit beyond circumstances where a person has driven a motor vehicle which has been involved in an accident, persons may be guilty of the offence created whose only fault is the consumption of alcohol entirely unconnected with their driving. Yet, having regard to its expressed purposes, Pt 5 of the Act is only directed against the consumption of alcohol in conjunction with the driving of a motor vehicle. Those purposes are contained in s 47 and are expressed to be to:

"(a) reduce the number of motor vehicle collisions of which alcohol or other drugs are a cause; and

(b) reduce the number of drivers whose driving is impaired by alcohol or other drugs; and

(c) provide a simple and effective means of establishing that there is present in the blood of a driver more than the legal limit of alcohol."

Not only would the wider construction of s 49(1)(f) evidently exceed the expressed purposes of the Act, but, as this case demonstrates, the offence under s 49(1)(b) of driving a motor vehicle with a blood alcohol concentration above the prescribed limit would be likely to become largely redundant. If those concerned to prosecute offences under s 49(1) had a choice between par.(b) and par.(f), they would, because of the relative ease of establishing an offence under par.(f) in the absence of all but a limited defence, choose to prosecute under that paragraph rather than par.(b). And s 49(1)(f), rather than s 49(1)(b), could, upon the wider construction, be employed whenever a person who has a blood alcohol concentration above the prescribed limit is found driving a motor vehicle, accident or no accident. The result would be that by charging a person under s 49(1)(f) he could be deprived of defences available to him if he were charged under s 49(1)(b), most importantly a defence that, upon the basis of the amount of alcohol consumed by him, his blood alcohol level at the time of driving was not as shown by the subsequent analysis of his breath. It is difficult to imagine that this was the intention of the legislature.

Section 35 of the Interpretation of Legislation Act 1984 (Vict.) provides:

"In the interpretation of a provision of an Act or subordinate instrument -

(a)

a construction that would promote the purpose or object underlying the Act or subordinate instrument (whether or not that purpose or object is expressly stated in the Act or subordinate instrument) shall be preferred to a construction that would not promote that purpose or object; and

(b)

consideration may be given to any matter or document that is relevant including but not limited to -

(i)

all indications provided by the Act or subordinate instrument as printed by authority, including punctuation;

(ii)

reports of proceedings in any House of the Parliament;

(iii)

explanatory memoranda or other documents laid before or otherwise presented to any House of the Parliament; and

(iv)

reports of Royal Commissions, Parliamentary Committees, Law Reform Commissioners and Commissions, Boards of Inquiry or other similar bodies."

The requirement that a court should have regard to the purpose or object of an Act is hardly novel. It has always been the cardinal rule of statutory interpretation that a court should strive to give effect to the intention of Parliament. In doing so the purpose of the legislation may be all-important. As Viscount Dilhorne observed in Stock v. Frank Jones (Tipton) Ltd. [1978] 1 WLR 231 at p 234; [1978] 1 All ER 948 at p 951:

"It is now fashionable to talk of a purposive construction of a statute, but it has been recognised since the 17th century that it is the task of the judiciary in interpreting an Act to seek to interpret it 'according to the intent of them that made it' (Coke 4 Inst. 330)."

The difficulty has been in ascertaining the intention of Parliament rather than in giving effect to it when it is known. Indeed, as everyone knows, the intention of Parliament is somewhat of a fiction. Individual members of Parliament, or even the government, do not necessarily mean the same thing by voting on a Bill or, in some cases, anything at all. The collective will of the legislature must therefore be taken to have been expressed in the language of the enactment itself, even though that language has been selected by the draftsman, who is not a member of Parliament.

In the past this has meant that preference has been given to the literal meaning of a statute, this being the only safe guide to the intention of the legislature. Such was the approach of Gibbs CJ in Cooper Brookes (Wollongong) Pty. Ltd. v. Federal Commissioner of Taxation (1981) 147 CLR 297 at p 305, where he said:

"... if the language of a statutory provision is clear and unambiguous, and is consistent and harmonious with the other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning, even it it leads to a result that may seem inconvenient or unjust. ... On the other hand, if two constructions are open, the court will obviously prefer that which will avoid what it considers to be inconvenience or injustice."

Perhaps that approach gives insufficient emphasis to the purpose of the legislation, for as Mason and Wilson JJ. in the same case observed (at p 321):

"Quite obviously questions of degree arise. If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical, it will only be displaced if its operation is perceived to be unintended."

However, the literal rule of construction, whatever the qualifications with which it is expressed, must give way to a statutory injunction to prefer a construction which would promote the purpose of an Act to one which would not, especially where that purpose is set out in the Act. Section 35 of the Interpretation of Legislation Act must, I think, mean that the purposes stated in Pt 5 of the Road Safety Act are to be taken into account in construing the provisions of that Part, not only where those provisions on their face offer more than one construction, but also in determining whether more than one construction is open. The requirement that a court look to the purpose or object of the Act is thus more than an instruction to adopt the traditional mischief or purpose rule in preference to the literal rule of construction. The mischief or purpose rule required an ambiguity or inconsistency before a court could have regard to purpose: Miller v. The Commonwealth (1904) 1 CLR 668 at p 674; Wacal Developments Pty. Ltd. v. Realty Developments Pty. Ltd. (1978) 140 CLR 503 at p 513. The approach required by s 35 needs no ambiguity or inconsistency; it allows a court to consider the purposes of an Act in determining whether there is more than one possible construction. Reference to the purposes may reveal that the draftsman has inadvertently overlooked something which he would have dealt with had his attention been drawn to it and if it is possible as a matter of construction to repair the defect, then this must be done. However, if the literal meaning of a provision is to be modified by reference to the purposes of the Act, the modification must be precisely identifiable as that which is necessary to effectuate those purposes and it must be consistent with the wording otherwise adopted by the draftsman. Section 35 requires a court to construe an Act, not to rewrite it, in the light of its purposes.

The stated purposes of Pt 5 of the Road Safety Act extend to the reduction of motor vehicle collisions caused by alcohol or other drugs by reducing the number of drivers whose driving is impaired by alcohol or other drugs. To this end it is also a purpose of the legislation to provide a simple and effective means of establishing that there is present in the blood of a driver more than the legal limit of alcohol. It is no part of these purposes that a person should be penalized for having a blood alcohol concentration beyond the prescribed limit if it is unrelated to the driving of a motor vehicle.

No doubt it is within the purpose of providing a simple and effective means of proof of the blood alcohol level of a driver to provide that, within specified time limits, his blood alcohol level at the time of driving should be presumed to be not less than it is at the time of the subsequent analysis of his breath. No doubt, having regard to the ease with which a driver involved in an accident can frustrate the proof of his blood alcohol level as at the time of the accident, it is within that purpose to make it an offence, within specified time limits, for him to have more than the prescribed concentration of alcohol in his blood at the time of analysis and to restrict the defences available to him. But it must surely be beyond the stated purposes of the legislation to make it an offence for a person who has driven a motor vehicle to have a blood alcohol level above the prescribed limit, even though his blood alcohol level was at all times while driving within that limit and nothing has occurred which might prompt him to frustrate the proof of his blood alcohol content as at the time of driving. That this was not the intention of Parliament is, I think, the proper conclusion even without regard to the stated purposes of Pt 5 of the Act. When the Act is construed in the light of those purposes, that conclusion is in my view inevitable.

Nor is there any difficulty in stating with precision how s 49(1)(f) is to be limited as a matter of construction in order to make it accord with parliamentary intent. The reference in s 53(1)(c) to a person who has driven or been in charge of a motor vehicle "when it was involved in an accident" not only indicates the intent but provides the words with which to bring s 49(1)(f) into accord with that intent. Section 49(1)(f) should be construed as applying to the driver of a motor vehicle only when the vehicle has been involved in an accident. That is to say, it should be read as if the words "when it was involved in an accident" appear immediately after the words "motor vehicle".

It was pressed upon us that a consideration of the speeches made in both Houses of Parliament during the passage of the Road Safety Act would lead to the conclusion that it was intended that s 49(1)(f) should be so limited. Whilst s 35(b)(ii) of the Interpretation of Legislation Act allows consideration to be given to any matter or document that is relevant, including reports of proceedings in any House of Parliament, the relevance of those proceedings must more often than not be questionable. The report of a speech of a member of Parliament other than that of the Minister moving the second reading of a Bill may often be unhelpful and even a second reading speech may be of little relevance. If greater significance is to be attributed to a second reading speech it seems that it must be based upon the assumption that it is less likely to express a mere individual view. Be that as it may, the words of a Minister cannot be substituted for the text of the law: Re Bolton; Ex parte Beane (1987) 162 CLR 514 at p 518. Having regard to the basis upon which I have reached my conclusion it is sufficient to say that there is nothing in the reports of the proceedings to which we have been referred which is inconsistent with that conclusion.

I would allow the appeal and restore the order made by Crockett J.