Mills v Meeking

169 CLR 214
91 ALR 16

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(Judgment by: Mason CJ, Toohey J)

Between: Mills
And: Meeking

Court:

Judges:
Mason CJBrennan 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:
Mason CJ
Toohey J

MASON CJ AND TOOHEY J Part 5 of the Road Safety Act 1986 (Vic.) relates to offences involving alcohol or other drugs.

The opening section of Pt 5, s 47, identifies the purposes of the Part as being 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."

The provision under which the appellant was charged and convicted is s 49(1)(f) as it then stood. It is necessary, in order to understand the argument addressed to the Court, to set out s 49(1) in its entirety:

"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)

refuses or fails to undergo a preliminary breath test in accordance with section 53 when required under that section to do so; or

(d)

refuses or fails to comply with a request or signal to stop a motor vehicle given under section 54(3); or

(e)

refuses or fails to comply with a requirement made under section 55(1) or (2); 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; or

(g)

has had a sample of blood taken from him or her in accordance with section 56 within 3 hours after driving or being in charge of a motor vehicle and the sample has been analysed within 12 months after it was taken by a properly qualified analyst within the meaning of section 57 and the analyst has found that at the time of analysis more than the prescribed concentration of alcohol was present in that sample."

Some paragraphs of s 49 apply both to the driver of and to the person in charge of a motor vehicle. Other paragraphs relate only to the driver of a motor vehicle. This appeal is concerned with the position of a driver.

Paragraph (a) of s 49(1) is the traditional "driving under the influence" charge. A conviction does not depend upon proof of alcohol in the defendant's blood nor does it require that the defendant has been involved in an accident. Paragraph (b) does of course require that a person drive with more than the prescribed concentration of alcohol in his or her blood. The prescribed concentration is .05 grams per 100 millilitres of blood except for probationary or learner drivers for whom the prescribed concentration is zero blood alcohol. There seems no reason why a conviction under this paragraph should not result from a breath analysis conducted under s 55(1) or (2), as well as from a blood test conducted under s 55(7) or s 56 of the Act.

Paragraphs (c), (d) and (e) of s 49(1) must be read with the section to which each refers. Paragraph (c) refers to s 53. Section 53(1) empowers a member of the police force to require (a) a person found driving a motor vehicle, (b) the driver of a motor vehicle that has been required to stop at a preliminary breath testing station, or (c) any person believed on reasonable grounds to have driven, within the last three preceding hours, a motor vehicle when it was involved in an accident, to undergo a preliminary breath test. Section 53(2) empowers an officer of the Road Traffic Authority to require any person found driving or in charge of a commercial vehicle to undergo a preliminary breath test. Paragraph (d) refers to s 54(3) which in turn relates to the testing of drivers at preliminary breath testing stations. Paragraph (e) refers to s 55(1) and (2). Section 55(1) is concerned with a preliminary breath test taken under s 53 where the test indicates that the person's blood contains alcohol in excess of the prescribed concentration, or a situation in which a person refuses or fails to carry out such a test. In those situations the person may be required to furnish a sample of breath for analysis by a breath analysing instrument. Section 55(2) empowers a member of the police force to require a person, whom he reasonably believes to have offended against s 49(1)(a), to furnish a sample of breath for analysis instead of undergoing a preliminary breath test in accordance with s 53.

Paragraph (g) of s 49(1) relates to the situation of a person who has had a blood sample taken in accordance with s 56. That section authorizes the taking of a blood sample from a person who has entered or has been brought to a "designated place" such as a hospital following an accident involving a motor vehicle. That paragraph need detain us no further. We return to par.(f).

In its terms par.(f) operates whenever a person, within three hours after driving, furnishes a sample of breath for analysis by a breath analysis instrument as a result of a demand made following a preliminary breath test, in exercise of the power in s 55(1) read with s 53. Involvement in an accident is not a prerequisite to a demand for a preliminary breath test made under s 53, though it may be relevant to such a demand: see s 53(1)(c).

On the view of s 49(1)(f) contended for by the respondent, it is possible for a person who has not been drinking alcohol prior to driving but who drinks thereafter and is shown by a breath analysing instrument to have more than the prescribed concentration of alcohol in his or her blood, to be liable to conviction under par.(f). By reason of s 49(6), in any proceedings under par.(f) or (g) of s 49(1), "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". In the case of a prosecution under par.(a) or (b) of s 49(1), s 48(1) provides that if it is established that at any time within three hours of an alleged offence against one of those paragraphs a certain concentration of alcohol was present in the blood, it must be presumed, "until the contrary is proved", that not less than that concentration of alcohol was present at the time when the offence is alleged to have been committed. It is possible, therefore, in the case of a prosecution under par.(a) or (b), to adduce evidence as to the amount of alcohol the defendant had consumed before and after driving. In the case of par.(f), the Full Court observed:

"Effectively, however, the only available defence to a s 49(1)(f) prosecution is under s 49(4) that the breath analysing instrument used was not on the relevant occasion in proper working order, a defence which for practical purposes may be without real value if examination of a particular machine by or on behalf of a person whose breath has been tested has no practical possibility":

Meeking v. Crisp (1989) VR 740 at p 744.

As a matter of the literal reading of the legislation, the appellant does not quarrel with the view of s 49(1)(f) contended for by the respondent. But he contends that a literal reading has draconian consequences which demand that the paragraph be read down. That is a matter to which we shall turn after saying something of the circumstances giving rise to the charge against the appellant.

At about 2.50 a.m. on Saturday, 10 October 1987, the appellant's driving attracted the attention of two police officers, one of whom is the first respondent to this appeal ("the respondent"). The appellant overtook a vehicle without indicating his intention to do so. There was no accident. The police officers intercepted the appellant's vehicle. They could smell alcohol on the appellant's breath and his eyes appeared glazed, with some trouble in focusing. They questioned the appellant about his drinking, conducted a preliminary breath test, the result of which was positive, and took the appellant to a police station where he submitted to a breath analysis. The appellant was a probationary driver and the result of the breath analysis was well in excess of a zero blood alcohol content. The appellant was in "custody" from the time of interception of his vehicle until he submitted to a breath analysis. There was, therefore, no question that the result of the breath analysis was in any way influenced by alcohol consumed after the appellant had been driving. The appellant was charged under s 49(1)(f) of the Act.

In the Supreme Court of Victoria Crockett J., after analysing the Act, saw par.(f) as intended to deal with those cases "in which the apparently culpable driver is not detected at the time of his driving and, although when so detected he is then found to have more than the prescribed concentration of alcohol in his blood he is able to claim - often without possibility of proof of the contrary - that that concentration was due to post-accident drinking". However, relevant legislative material, to which reference is made later in these reasons, suggests that the inference drawn by his Honour as to the intended operation of s 49(1)(f) may not accord with the ultimate intention of the Victorian Parliament.

Crockett J. went on to find a correspondence between the components of s 53(1) and the components of s 49(1), s 53(1)(a) leading to a charge under s 49(1)(b) and s 53(1)(c) leading to a charge under s 49(1)(f). He said:

"It appears to me tolerably plain that, if a preliminary breath test undergone by a person who has driven a vehicle within three hours of that vehicle's involvement in an accident leads to a breath analysis ... which discloses a blood alcohol concentration in excess of the prescribed limited (sic), then the offence created to deal with that circumstance is that to be found in s 49(1)(f). ...

But none of this has anything to do with the defendant. He was not involved in an accident. He could not have consumed alcohol so as to confound the proper assessment of his culpability. He was caught up by a power to be breath tested created by s 53(1)(a). Accordingly, he should have been charged under s 49(1)(b). Instead, he was charged under the wrong provision."

His Honour concluded his analysis of the Act in this way:

"In my opinion s 49(1)(f) has to be construed as if the words 'which has been involved in an accident' were inserted after the words 'motor vehicle'."

The Full Court at p 743, disagreed with Crockett J.'s construction of s 49(1)(b) and (f), saying:

"Section 49(1)(b) and s 49(1)(f) create different offences. The first relates, in effect, to having more than .05 per cent alcohol in the blood when driving or in charge of a motor vehicle, while the second relates solely to having that excess within three hours after driving."

The Court then went on to emphasize that proof of the second of these offences depended on a preliminary breath test having been administered under s 53(1)(a), (b) or (c) of the Act and a sample taken pursuant to s 55(1). Thus, the Court said, if there were no accident and no reasonable belief that one had occurred, a preliminary test must have been administered under s 53(1)(a) or (b). That is, the person concerned must have been found driving - s 53(1)(a), or have been required to stop at a breath testing station - s 53(1)(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": ibid. The Court then said that a test under s 55(2) cannot lead to a prosecution under s 49(1)(f) "because the latter depends for its proof on tests having been administered under s 55(1)": ibid. The latter assertion is no doubt correct, for par.(f) is expressly geared to s 55(1) which in turn depends upon a preliminary breath test under s 53. Section 55(2) authorizes a breath analysis without the need for a preliminary breath test. A breath analysis recorded in those circumstances is not an analysis of a sample furnished for analysis under s 55(1).

The Full Court recognized that the operation of s 49(1)(f) could be very harsh in "the case of the sober person who is involved in a collision on the way home and in which no-one is injured and then returns home and has his or her first drinks for the day and is then tested": ibid. The Court, like Crockett J., held that nevertheless the paragraph was applicable in the case of a person believed to have driven a motor vehicle involved in an accident. But, unlike Crockett J., the Full Court did not confine the operation of par.(f) to that circumstance. In the Court's view, the provision was clear and unambiguous and there was no justification for reading words into s 49(1)(f) in the manner suggested by Crockett J. The appeal was allowed.

Before us, the appellant challenged the Full Court's construction of s 49(1)(f) and argued for a restoration of the construction placed on the provision by Crockett J. He also contended, as he had in earlier proceedings, that it was, in the circumstances, an abuse of process for him to be charged under s 49(1)(f) when it was equally open for the respondent to charge him under s 49(1)(b). The argument was that a deliberate choice had been made by the respondent to charge the appellant under par.(f) so as to withhold from him any possible defence based on the effect of the consumption of alcohol on him.

This Court was furnished by counsel for the appellant and the respondent with material relating to the history of the relevant legislation and statements made at the time s 49(1)(f) was introduced. Section 35(a) of the Interpretation of Legislation Act 1984 (Vic.) requires a construction "that would promote the purpose or object underlying the Act". Section 35(b) permits consideration to be given "to any matter or document that is relevant", including, but not limited to, reports of Parliamentary proceedings and explanatory memoranda or other documents laid before or otherwise presented to Parliament.

The purpose of Pt 5 of the Road Safety Act is of course expressly identified in the statute. By way of background to Pt 5, the Full Court of the Supreme Court of Victoria had, on 20 February 1986, delivered judgment in Lamb v. Morrow (1986) VR 623. The Court held, in relation to the Motor Car Act 1958 (Vic.), that there was no statutory presumption in favour of the accuracy of breathalysers. It was therefore open to a defendant to show, by evidence, that breathalysers in general do not always show accurately the percentage of alcohol in the blood. In his second reading speech after the Road Safety Bill 1986 had been introduced in the Legislative Assembly, the Minister referred to that decision and to the determination of the Government to "tidy up" the situation. The Minister stated: "The Bill ... contains provisions designed to prevent technical defences against drink-driving charges": Victorian Legislative Assembly, Parliamentary Debates, 11 September 1986, p 230.

Later, reference is made to the difficulties associated with an argument which relies upon discerning the intention of Parliament with respect to the operation of the provisions in issue, other than that which may be inferred from the statute itself. For the present, there is no need to have resort to extrinsic material; the provisions may be given their ordinary grammatical meaning. If the language of a statute is ambiguous or uncertain, a risk of injustice will bear upon the construction to be given to words used. But, if the language is not ambiguous or uncertain, a court will apply its ordinary and grammatical meaning unless to do so will give the statute an operation which obviously was not intended: see generally Cooper Brookes (Wollongong) Pty. Ltd. v. Federal Commissioner of Taxation (1981) 147 CLR 297 at pp 304-305, 320-321; also Catlow v. Accident Compensation Commission (1989) 63 ALJR 619 at p 622; 87 ALR 663 at p 668. This legislation is not relevantly ambiguous or uncertain.

As it stands, s 49(1)(f) relates to s 55(1) and s 55(1) relates, not to a portion of s 53, but to the section generally. Section 53, as already noted, identifies four situations in which a person may be required to undergo a preliminary breath test. Three of these situations relate to persons intercepted while driving (s 53(1)(a), (b), s 53(2)); the other relates to a person believed to have been the driver of a motor vehicle which was involved in an accident: s 53(1)(c). There is no particular reason for singling out par.(c) of s 53(1) and no particular reason for reading down s 49(1)(f) as if it contemplated only a preliminary breath test required under par.(c) of s 53(1). Equally, there is no particular reason for treating s 49(1)(b) as if it contemplated only a preliminary breath test required under par.(a) of s 53(1). As a matter of plain language, there is no justification for reading the various provisions that way.

Nor is there any justification for so doing because the provisions cannot otherwise be "intelligibly applied": see Cooper Brookes, at p 305. Section 49(1)(f) only applies to persons who, within three hours of driving, have furnished a sample of breath in accordance with s 55(1) resulting in a reading above the prescribed concentration. Therefore, apart from those believed to have been involved in a motor vehicle accident, the provision is confined to persons who, while driving, have been intercepted by a member of the police force or by an officer of the Road Traffic Authority. One would expect such a person to remain in the company of the member or officer until he or she has furnished a sample of breath for analysis, as indeed occurred in this case. In that circumstance, a defence based on post-driving consumption of alcohol could at best be regarded as fanciful and, at worst, evidence of a deliberate attempt to frustrate the breath analysis. The withholding of such a defence in that circumstance cannot be said to be unintelligible.

However, it is the very non-feasibility of a defence based on post-driving alcohol consumption in the present case that is the basis for the appellant's alternative submission based on abuse of process. He contends that, where such a defence is not reasonably open on the facts, there is no justification for having resort to s 49(1)(f), that paragraph having "as an aim, if not on this argument the sole aim, the stamping out of a social mischief, that is to say, the tricksters' defence (of) post accident drink, that confounds the purposes of the Act". To continue the submission, because a charge under s 49(1)(f) also deprives the defendant of any defence based on "the effect of the consumption of alcohol" on him or her (s 49(6)), a prosecutor should only rely on par.(f) when to do so would be to serve the "particular social purposes" of the Act.

On the appellant's own argument, he must first establish that in spite of the terminology adopted, s 49(1)(f) was intended to be confined to defences based on post-accident consumption of alcohol. The Minister's second reading speech contains this passage, on which the appellant relies:

"The only grounds on which a breath analysis reading may be challenged will be that the particular instrument was operated improperly or was defective. Motorists will need to be aware that the offence is being over the legal limit at the time of being tested. Consequently, a motorist who drinks after being involved in an accident but before being tested cannot use this to subvert the possibility of a conviction as at present and runs the risk that the penalty may be substantially increased by a higher reading when tested. The seriousness of the offence of drink-driving is such that measures such as these are warranted": Legislative Assembly, Parliamentary Debates, 11 September 1986, p 230 (emphasis added).

A similar statement appears in the second reading speech of the Attorney-General in the Legislative Council (18 November 1986, p 1026).

However, these statements must be taken in context. In his speech, the Attorney also referred to amendments adopted by the Assembly, one of which "enables a person charged with drink-driving offences who has not been caught behind the wheel or involved in an accident to give evidence of alcohol consumption after the cessation of driving": ibid (again, emphasis added). The amendment referred to by the Attorney was to s 49(1)(f) which originally mentioned s 55(2) as well as s 55(1). The amendment was to deal with the situation of the "rogue policeman" who might demand a breath analysis of a person whom he has not found driving or who has not been required to stop at a breath testing station or whom he has no reason to believe was driving a vehicle and involved in an accident. In moving the omission of the reference to s 55(2), the Minister said:

"The amendment restores the current law, allowing breath-tests to be administered without a preliminary breath-test having first been undergone, but restricting prosecutions following on from such tests to the existing drink-driving offence. Evidence of alcohol drunk after driving can be given in such a case. A preliminary breath-test can be administered where a person has been found driving or has been in an accident. A breath analysis after this can still lead to a 'fail the test' charge": Legislative Assembly, Parliamentary Debates, 12 November 1986, p 1998 (emphasis again added).

By omitting any reference to s 55(2), the scope of s 49(1)(f) was correspondingly reduced. However, it is apparent that, at that stage, s 49(1)(f) was not intended to be confined to the situation where there had been an accident.

But what has been omitted from the legislative material so far cited is that, by the time the Bill became law, the provisions in question were thought to have been substantially altered by further amendments that had been initiated in the Legislative Council: Legislative Council, Parliamentary Debates, 5 December 1986 pp 1672, 1677; Legislative Assembly, Parliamentary Debates, 5 December 1986 p 3033. Of particular significance is the amendment to s 49(6) which in its original form had expressly excluded defences to s 49(1)(f) based on evidence as to "the consumption or non-consumption of alcohol by the defendant at any time before furnishing the sample of breath for analysis" - cl.49(6)(a), and "the general inaccuracy of breath analysing instruments of the type used" - cl.49(6)(c), as well as a defence based on evidence of "the effect of the consumption of alcohol on the defendant" - cl.49(6)(b). It would seem that, by deleting pars (a) and (c) from cl.49(6), Parliament contemplated that defences based on post-driving alcohol consumption and the general unreliability of breath analysis instruments would be available to anyone charged under s 49(1)(f). What appears to have been overlooked is that, because of the terms of par.(f), evidence of such matters remained irrelevant to a charge under that paragraph except to the extent it might go to prove that the instrument used "was not on that occasion in proper working order or properly operated": s 49(4). The elements of an offence under par.(f) as it then stood concerned only the concentration of alcohol at the time a breath sample is furnished and the result recorded by the instrument in question. Therefore, evidence referred to in cl.49(6)(a), (b) and (c) could in any event be only of limited assistance to a person charged under s 49(1)(f). (As a matter of history, subsequent amendments to the Act make proof of post-driving consumption of alcohol a defence to a charge under s 49(1)(f): see Road Safety (Miscellaneous Amendments) Act 1989 (Vic.), s 7.)

If one could be confident of discerning "the intention of Parliament" in these circumstances, rather than assisting the appellant, it might be said that at the very least it was agreed that no defence based on the effect of the consumption of alcohol would be available to a defendant prosecuted under s 49(1)(f). However, any inferences to be drawn from the parliamentary debates must in all the circumstances be unreliable. We prefer to rest our decision on the inferences to be drawn from the Act itself. We therefore leave for another day any comments as to the relevance of "the intention of Parliament" to a charge of abuse of process, where that intention is not discernible in the legislation itself.

There is nothing express in the Act which would require that the appellant be prosecuted under par.(b) of s 49(1) rather than par.(f). In accordance with s 51(1) of the Interpretation of Legislation Act, therefore, the appellant was liable to be prosecuted under either of these provisions. In the present case there can be no basis for alleging abuse of process because a decision was made to prosecute the appellant under par.(f) of s 49(1) rather than par.(b).

The appeal should be dismissed with costs.