Mills v Meeking

169 CLR 214
91 ALR 16

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(Judgment by: McHugh 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

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Judgment by:
McHugh J

McHUGH J The appellant, while driving a motor vehicle in October 1987, was apprehended by two police officers. No accident had occurred. He was questioned by one of the police officers who concluded that the appellant had been drinking. The police officer subjected him to a preliminary breath test which proved positive. The appellant was then taken to a nearby police station where a breath analysis operator conducted a breath test. The test was conducted in accordance with the procedures prescribed under the Road Safety Act 1986 (Vict.) ("the Act"). The certificate of analysis disclosed a reading of .130 per centum alcohol present in the appellant's blood. A second test produced a reading of .125 per centum. Both readings were in excess of the prescribed concentration. The appellant was charged with an offence against s 49(1)(f) of the Act. He contends that, upon the foregoing facts, he could be only charged under s 49(1)(b) of the Act and that a person can only be charged under s 49(1)(f) when the motor vehicle which he has driven or been in charge of has been involved in an accident.

Section 49 of the Act, so far as is relevant, provides:

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

...

(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

...

(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; ..."

If a person is charged under s 49(1)(b) and it is established that, at any time within three hours after the alleged offence, a certain concentration of alcohol was present in his blood, there is a presumption, until the contrary is proved, that not less than that concentration was present at the time of the offence: s 48(1)(a). Hence it is open to a person charged under s 49(1)(b) to prove that he did not have more than the prescribed concentration of alcohol in his blood at the time when he drove. He might prove this fact by evidence that he had consumed alcohol in the period which elapsed between his driving and testing, or by evidence that, by reason of the delay between the ingestion of alcohol and its presence in the bloodstream, the concentration of alcohol in his blood at the time of driving was less than that found on testing. No such evidence is admissible when a person is charged under s 49(1)(f), since the basic issue under that paragraph is whether the result of the breath analysis indicated that, at the time of testing, the person charged had "more than the prescribed concentration of alcohol ... present in his or her blood". Indeed, s 49(6) provides that, in any proceedings for an offence under s 49(1)(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".

The magistrate who heard the matter held that, on the facts of the case, s 49(1)(f) was not applicable. In proceedings in the Supreme Court of Victoria seeking judicial review of the order of the magistrate, Crockett J. also held that s 49(1)(f) was not applicable to the facts of the case. However, the Full Court of the Supreme Court reversed the order made by Crockett J. and held that, although the charge could have been brought under s 49(1)(b), it was correctly brought under s 49(1)(f). The members of the Full Court also rejected the submission of the appellant that it was an abuse of process to charge him under s 49(1)(f) when the facts fitted a charge under s 49(1)(b).

The appellant does not dispute that the facts of his case fall squarely within the literal or grammatical meaning of s 49(1)(f). But he contends that, to give effect to the purposes of the Act, s 49(1)(f) must be read as dealing only with the case of a motorist whose vehicle has been involved in an accident.

Section 49 is found in Pt 5 of the Act which consists of ss 47-58. Section 47 enacts:

"The purposes of this Part are 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."

Section 53 specifies the circumstances in which a person may be required to undergo a preliminary breath test by a prescribed device. It provides:

"(1) 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.

...

(4) A person is not obliged to undergo a preliminary breath test if more than 3 hours have passed since the person last drove or was in charge of a motor vehicle."

If the preliminary breath test indicates that the person's blood contains alcohol in excess of the prescribed concentration of alcohol, he may be required to furnish a sample of breath for analysis by a breath analysing instrument. Section 55 provides:

"(1) If a person undergoes a preliminary breath test when required by a member of the police force or an officer of the Authority under section 53 to do so and -

(a)

the test in the opinion of the member or officer in whose presence it is made indicates that the person's blood contains alcohol in excess of the prescribed concentration of alcohol; ...

the member of the police force or officer of the Authority may require the person to furnish a sample of breath for analysis by a breath analysing instrument and for that purpose may further require the person to accompany a member of the police force or an officer of the Authority authorised in writing by the Authority for the purposes of section 53 to a police station or the grounds or precincts of a police station and to remain there until the person has furnished the sample of breath or until 3 hours after the driving or being in charge of the motor vehicle, whichever is sooner.

...

(6) A person is not obliged to furnish a sample of breath under this section if more than 3 hours have passed since the person last drove or was in charge of a motor vehicle."

Section 55(4) directs the person operating the breath analysing instrument to sign, and deliver to the person tested, a certificate showing the date and time of the analysis and the concentration of alcohol indicated by the analysis. On the hearing of an offence under s 49(1) of the Act, evidence may be given of the concentration of alcohol indicated to be present in the blood of a person by a breath analysing instrument which has been operated by an authorised person. The concentration so indicated is, subject to certain conditions, evidence of the concentration of alcohol present in the blood of that person: s 58(1). A document purporting to be a copy of a certificate given under s 55(4) is admissible in evidence and is conclusive proof of the facts and matters contained in it unless the defendant gives notice in writing within seven days of the hearing that he requires the person giving the certificate to be called as a witness: s 58(2).

The appellant contends that, when a person is found driving or in charge of a motor vehicle, the source of the power to require him to undergo a preliminary breath test is s 53(1)(a). If a positive result to a test administered under s 53(1)(a) is obtained, the person may then be required to undergo a breath analysis pursuant to the provisions of s 55(1). If the result of the breath analysis indicates more than the prescribed concentration of alcohol is present in the person's blood, the scheme of the Act, according to the appellant, requires the person to be charged under s 49(1)(b). The appellant then submits that, in the case of a person who is not "found" driving or in charge of a motor vehicle or is not stopped at a preliminary breath testing station, the source of the power to require him to undergo a preliminary breath test is found in s 53(1)(c). If the preliminary test administered under that paragraph proves positive and the breath analysis test administered under s 55 shows more than the prescribed concentration of alcohol present in the person's blood, the scheme of the Act, according to the appellant, requires him to be charged under s 49(1)(f). The appellant argued that these regimes were mutually exclusive.

It does not follow from the structure of the Act, however, that, in a case where s 53(1)(c) is the source of power to require a person to undergo a preliminary breath test, he can only be charged under s 49(1)(f). It is an essential element in the proof of a charge under s 49(1)(b) or s 49(1)(f) that the defendant has driven or been in charge of a motor vehicle. So there is no reason why a defendant, first tested under s 53(1)(c), could not be charged under s 49(1)(b). Nor does it necessarily follow from the structure of the Act that a person, who is required to undergo a preliminary breath test under s 53(1)(a) or (b), can only be charged under s 49(1)(b) and not s 49(1)(f). The appellant does not dispute that, on its face, the terms of s 49(1)(f) cover the case of a person who was first required to undergo a preliminary breath test pursuant to s 53(1)(a) or (b). Unlike s 53(1)(c), s 49(1)(f) does not refer to driving or being in charge of a motor vehicle "when it was involved in an accident". Indeed, at first sight it would be surprising if some cases, in which persons were required to undergo a preliminary test under s 53(1)(a), did not fall within s 49(1)(f). Take the case of a person who is "found" driving a motor vehicle at high speed or in a dangerous manner but who eludes immediate apprehension. By reason of s 53(4), it is clear that such a driver can be required to undergo a preliminary breath test at any time within three hours since he last drove the motor vehicle. At first sight it seems unlikely, having regard to s 47(a) and the policy behind the enactment of ss 49(1)(f) and 49(6), that Parliament intended that such a driver should be able to lead evidence that he had consumed alcohol during the period since he last drove. Yet, if the absconding driver is charged under s 49(1)(b), as he could be, s 48(1)(a) would permit him to lead evidence to rebut the presumption arising from the admission of evidence concerning the breath analysis result. This example suggests that it is unlikely that Parliament intended that a person, required to undergo a preliminary breath test under s 53(1)(a), could only be charged under s 49(1)(b). On the other hand, since the Act permits such a person to be charged under s 49(1)(b), it is evident that, even in the case of the absconding driver, Parliament had no general policy of excluding evidence of post-driving alcohol consumption or evidence as to the effect of the consumption of alcohol on the defendant.

The presence of s 48(1)(a) in the Act, therefore, indicates that Parliament was not prepared in all cases to prevent a person proving that there was no temporal relationship between his driving and the presence in his blood of more than the prescribed concentration of alcohol. By reason of the delay which takes place between the ingestion of alcohol and its presence in the blood, cases can occur where a breath analysis test shows more than the prescribed concentration of alcohol present in a driver's blood, yet at the time of driving the person concerned would have had less than the prescribed concentration. No doubt these cases occur infrequently. But that they can occur without the driver ingesting any alcohol between the time of apprehension and the undergoing of a breath analysis test is sufficient to explain the presence of s 48(1)(a) in the Act. Moreover, cases may well occur where, during the period between being "found" driving or in charge of a motor vehicle and the administering of a preliminary breath test under s 53(1)(a), the driver has innocently consumed alcohol.

If the argument for the respondent is correct, Parliament intended the availability of these "defences" to a breath analysis test under s 55 to be a matter within the discretion of the apprehending police officer. Given the constitutional tradition of the State of Victoria, it is inherently unlikely that Parliament intended that whether or not the result of a breath test under s 55 constituted an offence against the Act should depend on the discretion of the apprehending officer. On the other hand, by enacting ss 49(1)(f) and 49(6), Parliament has shown that, in some cases at least, it is not prepared to tolerate a driver tendering evidence to rebut the presumption arising from the presence of more than the prescribed concentration of alcohol in his blood.

How then are these conflicting objectives of the Act to be reconciled? Because of the presence of s 48(1)(a) in the Act, I find it impossible to accept that Parliament intended s 49(1)(f) to apply to all cases where a test under s 55 has indicated that more than the prescribed concentration of alcohol was present in a person's blood. Nor can I accept that Parliament left to the apprehending officer the choice as to whether or not the result of the test under s 55 constituted an offence against s 49(1) of the Act. Yet the very terms of s 49(1)(f) indicate that Parliament intended it to apply to cases where a test under s 55(1) had indicated the presence of more than the prescribed concentration of alcohol in a person's blood. In my opinion, only a purposive construction of s 49(1)(f) can reconcile Parliament's intention to allow the result of a breath analysis test under s 55 to be rebutted in some cases and not in others.

A court cannot depart from the literal meaning of a statutory provision because that meaning produces anomalies or injustices if no real doubt as to the intention of Parliament arises: Cooper Brookes (Wollongong) Pty. Ltd. v. Federal Commissioner of Taxation (1981) 147 CLR 297 at pp 305, 320; Stock v. Frank Jones (Tipton) Ltd. [1978] 1 WLR 231 at pp 234-235, 237-238; [1978] 1 All ER 948 at pp 951- 952, 954. But, when the literal meaning of a provision gives rise to an absurdity, injustice or anomaly, a real doubt will frequently arise as to whether Parliament intended the literal meaning to prevail. In such a case, a court may be entitled to disregard the literal meaning. In Cooper Brookes (Wollongong) Pty. Ltd. Gibbs CJ pointed out (at p 304):

"There are cases where the result of giving words their ordinary meaning may be so irrational that the court is forced to the conclusion that the draftsman has made a mistake, and the canons of construction are not so rigid as to prevent a realistic solution in such a case ..."

But this does not mean that a court is bound by the literal or grammatical meaning of a statutory provision unless that meaning produces an irrational result. This was made plain by Mason and Wilson JJ. in Cooper Brookes (Wollongong) Pty. Ltd. where their Honours said (at p 321):

"On the other hand, when the judge labels the operation of the statute as 'absurd', 'extraordinary', 'capricious', 'irrational' or 'obscure' he assigns a ground for concluding that the legislature could not have intended such an operation and that an alternative interpretation must be preferred. But the propriety of departing from the literal interpretation is not confined to situations described by these labels. It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions."

Moreover, once it is apparent that the literal or grammatical meaning of a provision does not conform to the legislative purpose as ascertained from the statute as a whole, the court is entitled to give effect to that purpose by addition to, omission from, or clarification of the particular provision: Kammins Co. v. Zenith Investments [1971] AC 850 at pp 880-882; Jones v. Wrotham Park Estates [1980] AC 74 at p 105; Cooper Brookes (Wollongong) Pty. Ltd., at pp 321-323.

The general purposes of Pt 5 are set out in s 47. But the Part also has more specific purposes. One of them is the granting of the right in some cases to tender evidence concerning alcoholic consumption or evidence concerning the effect of alcohol where a breath analysis test under s 55 has indicated that more than the prescribed concentration of alcohol was present in the blood. In terms that right is restricted to charges laid under s 49(1)(a) or (b). But it would not be in accordance with the modern, purposive approach to statutory construction to interpret the general words of s 49(1)(f) without regard to the legislative purpose found in s 48(1)(a). The Act must be considered as a whole.

If s 49(1)(f) is given its literal or grammatical meaning, it would make the purpose enshrined in s 48(1)(a) depend entirely on the unfettered discretion of the apprehending police officer. There is nothing in the Act, apart from the literal effect of s 49(1)(f), which suggests that that was Parliament's intention. To give effect to the legislative purpose which can be discerned in s 48(1)(a), therefore, one must read down the words of s 49(1)(f).

However, as Lord Diplock pointed out in Jones v. Wrotham Park Estates (at p 105) "the task on which a court of justice is engaged remains one of construction; even where this involves reading into the Act words which are not expressly included in it". His Lordship said that words could only be read into a statute if three conditions were fulfilled. First, the court must know, from a consideration of the legislation read as a whole, precisely what the mischief was that it was the purpose of the legislation to remedy. Secondly, the court must be satisfied that by inadvertence Parliament has overlooked an eventuality which must be dealt with if the purpose of the legislation is to be achieved. Thirdly, the court must be able to state with certainty what words Parliament would have used to overcome the omission if its attention had been drawn to the defect.

I have no trouble in coming to the conclusion that the first two conditions are fulfilled in this case. The third condition creates more difficulty. But, having regard to the verbal similarity of s 49(1)(f) and s 53(1)(c), I think that, if the "defect" had been pointed out to Parliament, it would have added after the words "motor vehicle" in s 49(1)(f) the words "when it was involved in an accident". Adding these words would ensure that s 49(1)(f) was used only in the case of a driver or person in charge of a motor vehicle when it was involved in an accident. It would also ensure that, in the case of a driver who had been first tested pursuant to the provisions of s 53(1)(a) or (b), a breath analysis indication that more than the prescribed concentration of alcohol was present in his blood would lead to a charge under s 49(1)(b) and not s 49(1)(f). The driver would then have the benefit of the "defence" given by s 48(1)(a).

The appeal should be allowed with costs. The order of the Full Court should be set aside. In lieu thereof, it should be ordered that the appeal to that court should be dismissed and that the respondent should pay the appellant's costs of that appeal.