Director of Public Prosecutions v Langford [2012] NSWSC 310

Supreme Court New South Wales

Medium Neutral Citation: Director of Public Prosecutions v Langford [2012] NSWSC 310 Hearing dates: 28/02/2012 Decision date: 04 April 2012 Before: Fullerton J Decision: 1. The appeal is upheld. 2. The order of Magistrate McIntyre made on 15 July 2011 is set aside. 3. The matter is to be remitted to the Local Court to be dealt with according to law. 4. The defendant is to pay the plaintiff's costs of and incidental to the summons. 5. An indemnity certificate under s 6 of the Suitors' Fund Act 1951 is granted to the defendant. Catchwords: APPEAL FROM LOCAL COURT - appeal against order by Magistrate to dismiss proceedings - drive motor vehicle with high range prescribed concentration of alcohol - exclusion of improperly or illegally obtained evidence - whether Magistrate erred in law in refusing to exercise discretion under s 138 of Evidence Act - whether Magistrate failed to give proper account to factors required under s 138(3) of Evidence Act - whether Magistrate erred in disregarding very high blood alcohol reading indicated by certificate of analysis Legislation Cited: Crimes (Appeal and Review) Act 2001 Evidence Act 1995 Road Transport (Safety and Traffic Management) Act 1999 Suitors' Fund Act Cases Cited: DPP v CAD [2003] NSWSC 196 DPP (NSW) v Illawarra Cashmart Pty Ltd [2006] NSWSC 343; 67 NSWLR 402 Fleming v R [2009] NSWCCA 233 House v R [1936] HCA 40; 55 CLR 499 Parker v Comptroller-General of Customs [2009] HCA 7 Police v Murray [2011] NSWLC 1 R v Camilleri [2007] NSWCCA 36 R v Em [2003] NSWCCA 374 Category: Principal judgment Parties: Director of Public Prosecutions (NSW) (Plaintiff) Emma Jane Langford (Defendant) Representation: Counsel: A Mitchelmore (Plaintiff) A Conwell (Defendant) Solicitors: Solicitor for Public Prosecutions (Plaintiff) Nyman Gibson Stewart Solicitors (Defendant) File Number(s): 2011/360811 Decision under appeal Jurisdiction: 9109 Date of Decision: 2011-07-15 00:00:00 Before: McIntyre LCM

Judgment 1HER HONOUR: By summons dated 11 November 2011 the Director of Public Prosecutions appeals from a decision of Magistrate McIntyre made at Fairfield Local Court on 15 July 2011 dismissing proceedings commenced against the defendant pursuant to s 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 for driving a motor vehicle on 16 July 2010 whilst having present in her blood a high range prescribed concentration of alcohol. 2The appeal is brought pursuant to s 56(1)(c) of the Crimes (Appeal and Review) Act 2001 which provides that the prosecutor may appeal to the Supreme Court as of right against an order in the Local Court dismissing a matter the subject of any summary proceedings, but only on a ground that involves a question of law. In accordance with the power provided for in s 59(2) of the Crimes (Appeal and Review) Act, orders are sought setting aside her Honour's orders and remitting the matter to the Local Court to be dealt with according to law. 3Her Honour dismissed the charge against the defendant after ruling that a blood sample, and evidence related to that sample, including the certificate of analysis that recorded the defendant's blood alcohol content, was unlawfully obtained and after she refused to exercise the discretion in s 138 of the Evidence Act 1995 to admit the evidence. 4In the proceedings before this Court it was conceded that the certificate of analysis was unlawfully obtained. Accordingly, the only issue on the appeal was whether the Director has made good his contention that in refusing to exercise the discretion in s 138 the Magistrate erred in law, an error which led her to dismiss the proceedings. 5In the filed grounds of appeal error is said to be manifest by her Honour disregarding the very high blood/alcohol reading indicated by the analyst certificate on the basis that she believed (wrongly) that she was prevented from doing so, and generally by her failure to give any consideration to other factors she was obliged to take into account under s 138(3) of the Evidence Act.

The facts 6At approximately 6.30pm on 16 July 2010, the defendant was driving a motor vehicle when it left the road and entered the front lawn of a suburban home in South Wentworthville, colliding with a hot water system. The defendant's young daughter was also in the car. The defendant apparently drove back onto the road but was stopped a short distance away after being pursued by the homeowner. She removed the defendant's keys from the ignition and called police. She said the defendant smelt of alcohol. 7At approximately 6.40pm Sergeant Shepherd arrived at the scene. He gave evidence that he was overwhelmed by the smell of alcohol when he opened the driver's door. The defendant questioned Sergeant Shepherd's reasons for requesting her licence and asked if she could leave. She was told she could not. He instructed the defendant to get out of the vehicle. She was observed to have difficulty balancing and standing unassisted and was incoherent and at times argumentative. With the assistance of her daughter, the defendant produced her driver's licence. Whilst at the scene Sergeant Shepherd located in the defendant's vehicle a half empty four litre wine cask, a full four litre wine cask and a child's drink bottle half full of wine. 8Constable Romeike arrived at the scene shortly thereafter with a roadside Alcolizer breath testing device. The defendant was breath tested twice. On neither occasion did the device register the presence of alcohol. Sergeant Shepherd gave evidence that the Alcolizer was later submitted for examination and it was found to be working correctly. Despite the results of the Alcolizer the objective evidence well supported the conclusion reached by Sergeant Shepherd that the defendant was heavily intoxicated. In the Local Court proceedings and in the proceedings in this Court it was not suggested otherwise. 9Sergeant Shepherd directed Constable Romeike to convey the defendant to Westmead Hospital where, at approximately 7.50pm, a blood and urine sample was taken by a triage nurse at the direction of Constable Romeike. 10A certificate of analysis dated 3 August 2010 produced a reading of 0.258 grams of alcohol per 100mL of blood. The defendant was subsequently charged with driving whilst having in her blood a high range prescribed concentration of alcohol by service of a Court Attendance Notice.

The hearing before the Magistrate 11Despite the concession in this Court that the evidence related to the blood/alcohol reading was unlawfully obtained, it is necessary to review the evidence led before the Magistrate to the extent that it bears upon the operation of s 138 and the various matters the Magistrate was required to consider under s 138(3). 12Sergeant Shepherd gave evidence that given the results of the Alcolizer and his observations of the defendant's level of intoxication, he was concerned either that the device was malfunctioning or that the defendant was affected by drugs. In his witness statement, tendered on the voir dire, he gave the following explanation for directing Constable Romeike to convey the defendant to hospital: Concerned with the state of the accused and the welfare of her daughter, I directed Constable Romeike to drive [the defendant] to Westmead Hospital w[h]ere she could be assessed. I also directed Constable Romeike that given the negative test with the Alcolizer and my assessment of her sobriety, a blood and urine test for both drugs and alcohol would be required. 13Sergeant Shepherd denied that the only reason he directed that the defendant be conveyed to hospital was to obtain a blood and urine test because the Alcolizer was obviously defective. He said that he was concerned for the defendant's wellbeing and that he followed up with the hospital as to what treatment she had received. He said that he did not call an ambulance because there was a police car available and he thought it was more appropriate for police to drive her to the hospital given that the defendant's daughter was present and because the hospital was only a kilometre away. 14Constable Romeike gave evidence that he was directed by Sergeant Shepherd to take the defendant to hospital to ensure her welfare, and for her to undergo blood and urine testing, and that he followed that direction. He said that upon arrival at the hospital he informed a triage nurse that the defendant had been involved in an accident, that she was required to have a blood and urine test and to be medically assessed due to her intoxication. He said that he directed the defendant to comply with the nurse's instructions. He said he was present when the nurse took the defendant's blood and he was in close proximity when she was required to give a urine sample. He saw the nurse check the defendant's pulse and he believed her blood pressure was measured. He said he also observed the defendant to undergo what he described as "other medical sort of checks" but could not further explain what they comprised. He said that he remained with the defendant at the hospital for approximately 30-40 minutes before she was released into the custody of her husband. 15It was the prosecution case in the hearing below that Sergeant Shepherd's actions in directing the detention of the defendant at roadside, and her further detention for the purposes of transporting her to hospital were authorised by ss 20, 25 and 26 of the Road Transport (Safety and Traffic Management) Act. Those sections relevantly provide as follows: 20 Blood samples to be taken in hospitals from accident patients (1) In this section, accident patient means a person at least 15 years of age who attends at or is admitted into a hospital for examination or treatment in consequence of an accident on a road or road related area (whether in New South Wales or elsewhere) involving a motor vehicle or other vehicle or a horse. (2) Any medical practitioner by whom an accident patient is attended at a hospital is under a duty to take a sample of the patient's blood for analysis as soon as practicable. (3) The medical practitioner is under a duty to take the sample whether or not the accident patient consents to the taking of the sample. (4) If there is no medical practitioner present to attend the accident patient at the hospital, the blood sample is to be taken by a registered nurse who is attending the patient and who is accredited by a hospital as competent to perform the sampling procedures. (5) This section does not require the taking of a sample of blood from an accident patient unless, at the time of the accident concerned, the accident patient was: (a) driving a motor vehicle involved in the accident, or (b) occupying the driving seat of a motor vehicle involved in the accident and attempting to put the motor vehicle in motion, or ... 25 Police officer may require sobriety assessment (1) A police officer may require a person to submit to an assessment of his or her sobriety in accordance with the directions of the officer if: (a) the person has undergone a breath test in accordance with Division 3, and (b) the result of the test does not permit the person to be required to submit to a breath analysis. (2) A person cannot be required to submit to a sobriety assessment unless: (a) a police officer has a reasonable belief that, by the way in which the person: (i) is or was driving a motor vehicle on a road or road related area, or (ii) is or was occupying the driving seat of a motor vehicle on a road or road related area and attempting to put the vehicle in motion, the person may be under the influence of a drug, and (b) the assessment is carried out by a police officer at or near the place where the person underwent the breath test. [I note that under s 4 of the Act the definition of drug includes alcohol.] 26 Arrest following failure to submit to (or pass) sobriety assessment If the person refuses to submit to a sobriety assessment under this Division or, after the assessment has been made, a police officer has a reasonable belief that the person is under the influence of a drug, the police officer may: (a) arrest that person without warrant, and (b) take the person (or cause the person to be taken) with such force as may be necessary to a hospital or a place prescribed by the regulations and there detain the person (or cause the person to be detained) for the purposes of this Division. (emphasis added) 16Sergeant Shepherd gave evidence that he believed his actions were supported by either or both ss 20 and 26. In reliance on s 20 because she had been involved in an accident when she drive off the road and into a person's front yard, there colliding with the house (or part thereof), and on that basis she could be conveyed to hospital for treatment or examination and in the process have her blood and urine sampled for analysis, and on s 26 because the results of the Alcolizer breath test did not permit him to require her to submit to a breath analysis but that she failed to pass a sobriety assessment pursuant to s 25 of the Road Transport (Safety and Traffic Management) Act. 17Sergeant Shepherd gave evidence that he conducted a sobriety assessment by assessing the defendant's ability to "stand out of the vehicle, stand unaided, provide her driver's licence, follow simple instruction [and] maintain a conversation". He conceded that he did not direct the defendant to perform any specific function to assess her sobriety but his overwhelming belief from speaking to her, was that she was heavily intoxicated with alcohol and that she was subjected to the unstructured testing he administered at road side for that reason.

The Magistrate's rulings 18The Magistrate ruled that neither ss 20, 25 or 26 of the Road Transport (Safety and Traffic Management) Act supported the actions taken by the police and concluded that the blood sample was unlawfully obtained. There is no challenge to that finding. 19Her Honour held that the defendant was not in fact taken to the hospital for treatment and, accordingly, the police did not have power to direct that a blood and urine sample be taken pursuant to s 20 of the Road Transport (Safety and Traffic Management) Act. Her Honour did not accept Constable Romeike's evidence in relation to the treatment he understood the defendant received at the hospital. Her Honour stated that: Well of course there is absolutely no evidence of any treatment in the hospital following the accident. She was not seen at any time on the evidence before me by a medical practitioner which is of course a prerequisite under s 20. [It appears that her Honour was in error in this respect given the express provision in s 20(4) for a registered nurse to treat the accident victim and take appropriate samples.] There were some claims of the junior officer who gave evidence today that she had received some treatment in relation to blood pressure and so on. I had difficulty accepting that and clearly it is unsubstantiated by anybody from the hospital in relation to what was undertaken. [While this was so, it is not clear why her Honour regarded this as undermining the veracity of the police officer, if she did. It may simply mean that despite the officer's view her Honour concluded that the way the defendant was triaged on reception did not amount to treatment as the following remarks make clear.] At its highest the prosecution evidence is that a triage nurse took a blood and urine sample. There is nothing before the Court to indicate that she was subjected to treatment as a consequence of an accident which is of course what s 20 requires. [Again, this does not appear to me to be correct. Section 20 requires that an accident patient attend for examination or treatment, not that treatment be afforded that person since on examination no treatment may be considered necessary.] I find therefore in relation to that section that it did not, or the circumstances in this case did not, empower the police to direct the sample to be taken. I do not accept that the defendant was hospitalised for treatment and as a consequence of that treatment her blood and urine was able to be taken. Simply there is no evidence to support any of the reality of that contention. 20In regards to ss 25 and 26, her Honour was satisfied that the defendant had been placed under arrest for "driving under the influence [of alcohol]" and not for failing to submit to a sobriety test for drugs. It was only after she was reminded by the prosecutor that "drug" is defined in the Act to include alcohol that she made the further finding that she was not satisfied that any formal assessment of the defendant's sobriety had been undertaken, whether it be for drugs or alcohol, or that the defendant was arrested for failure to comply with the directions of the police. I am not invited by the Director to review whether or not such sobriety assessment as was undertaken, if it were in fact undertaken, was properly made, it being conceded by the Director that the power to compel the taking of blood samples under s 26 was not lawfully exercised. I note that in Police v Murray [2011] NSWLC 1 Tsavdaridis LCM helpfully examined the reach of s 26 and the necessary preconditions to the exercise of the arrest power under the section. 21In the result, the Magistrate was satisfied that the police did not comply with the requirements of Divisions 4 and 5 of the Road Transport (Safety Traffic Management) Act and that the blood sample taken under compulsion at the hospital was unlawfully obtained. 22Her Honour then moved to consider whether to admit the evidence in exercise of the discretion in s 138(1) of the Evidence Act notwithstanding the unlawful manner in which it was obtained. 23The relevant portions of the Evidence Act are set out below: 138 Exclusion of improperly or illegally obtained evidence (1) Evidence that was obtained: (a) improperly or in contravention of an Australian law, or (b) in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. ... (3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account: (a) the probative value of the evidence, and (b) the importance of the evidence in the proceeding, and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and (d) the gravity of the impropriety or contravention, and (e) whether the impropriety or contravention was deliberate or reckless, and ... (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law. 24The onus of establishing illegality rested on the defendant. Once that onus was discharged the onus shifted to the prosecution to satisfy her Honour of the proof of facts relevant to matters weighing in favour of admission of the evidence together with the burden of persuading her Honour that the desirability of admitting the evidence outweighed the undesirability of admitting it having regard to the way that it was obtained (see Parker v Comptroller-General of Customs [2009] HCA 7 at [28] and see also Fleming v R [2009] NSWCCA 233). 25On the appeal the Director submitted that her Honour's approach to this question was fundamentally flawed, and her discretion miscarried as a result (see House v R [1936] HCA 40; 55 CLR 499). 26In considering whether to admit the evidence her Honour said: This of course is a difficult question because as Mr Prosecutor quite rightly puts there is a real public interest in bringing people that apparently consume large amounts of alcohol and attempt to drive a car, particularly when they have a young passenger, to justice. It is also something to bear in mind in the opinion of this Court that had this matter been a jury trial of course a jury would never have been informed of the reading and so therefore it is necessary for this Court as the trier of fact and law to try and isolate the issue. Although of course that is difficult I have had to have access to the blood alcohol reading in order to decipher my reasons in the voir dire and I want to make it clear that it is difficult but not impossible to separate those things and so whilst I am aware of the reading and the public policy interest in bringing such a reading to the attention of the Courts it is also incumbent upon the Court to assess the very real need for arresting police and particularly senior arresting police to make sure that the steps in relation to apprehension, arrest and the invasion of the very integrity of a defendant by way of blood and urine sample is followed to the letter. The Court must make sure that a balance is struck because it is also very necessary to protect the integrity of defence in relation to forensic testing like this. Strict compliance in relation to the rules must be adhered to. What has happened here is unfortunate. In my opinion there has been an almost startling negative result from the initial breath test. There was the suggestion that maybe it had been faulty, apparently that was not the case. Clearly the officer, and justifiably so, felt that I suppose that something was necessary in pursuit of what appeared to be an obvious wrong doing but really the pursuit of wrong doing must be done within the confines of the law and there must be adherence to the proper steps in relation to arrest and apprehension and the taking of blood and urine samples. I cannot make a case for the prosecution in relation to this matter that is not my job and I must make a finding in relation to whether or not the methods used justify the ends and my finding in relation to that is that they do not and it is very necessary for this Court to make sure that police at all times strictly adhere to the rules and regulations that govern the powers that they have over their fellow citizens.

The Magistrate erroneously held she was unable to take into account, in coming to her determination, the very high blood/alcohol reading indicated by the analyst certificate 27The Director submitted that in order to undertake the enquiry posed by s 138, and to exercise her discretion in accordance with the law, it was essential that her Honour take into account the certified blood alcohol reading, and that her efforts to isolate the reading for the purpose of disregarding it rendered the exercise of discretion nugatory. 28In DPP v CAD [2003] NSWSC 196 at [42] - [43] Barr J made the following observations as to the process that is engaged when a judicial officer is called upon to decide whether evidence should be admitted in the exercise of the discretion in s 138: [42]...When a court is required to decide on an objection to the admissibility of evidence it is necessary for the court to inform itself what the evidence is. The magistrate was bound to acquaint himself with the substance of the evidence before he could decide whether or not to admit it. In fact he initially told Mr Franklin that that was what he would do, but later changed his mind. [43] It is often convenient for a court to acquaint itself in an informal way, as by the tender of a statement, with the nature of evidence objected to. That is what should have happened in the present case, but by eschewing any reference to the complainant's account of the assaults the magistrate put it out of his power to know things he had to know in order to perform his proper function. 29In CAD, the Magistrate did not receive the accounts given by the victims of the assaults that the defendants were alleged to have committed apparently because they were not tendered by the prosecution. Barr J observed that the difficulty with that approach was that the Magistrate could not assess the seriousness of the offences charged, the nature of the relevant offence or the nature of the subject matter of the proceedings. In those circumstances, his Honour held at [40] that it was "impossible" for the Magistrate to exercise the discretion embodied in s 138 of the Evidence Act. 30The Director submitted that in the present case, although the Magistrate was obviously aware of the nature of the offence and its relative seriousness as a breach of s 9(4) of the Road Transport (Safety and Traffic Management) Act, given the high range reading and the surrounding circumstances, her stated efforts to "isolate" her knowledge of the reading in conducting the balancing exercise was an approach so fundamentally flawed that she was unable to undertake the balancing exercise the section requires. 31I am not persuaded that on a fair reading of her Honour's remarks (which I have emphasised at [26] above and which her Honour delivered ex tempore), she was doing more than emphasising the need to ensure that her discretion was not overwhelmed by the very considerable weight of the evidence under challenge. I am also not persuaded that when her reasons are considered as a whole, she in fact disregarded the unassailable probative value of the certificate of analysis (s 38(3)(a)) or ignored that it was essential to proof of the prosecution case (s138(3)(b)). 32Where I am persuaded that error is made out is her Honour's undue focus on what the Director described as "broad matters of policy" at the expense of factors which s 138(3) requires be taken into account as part of the balancing of the competing features of the public interest (see R v Em [2003] NSWCCA 374 at [74]). By that I do not mean to suggest that her Honour was not entitled to emphasise the need to ensure that the police adhere strictly to the rules governing the exercise of their statutory powers. I accept (as did her Honour) that the power of arrest, even in its most basic expression is a coercive power exercised over the liberty of the subject, and where it is exercised to compel a person to submit to the sampling of blood or other body fluids for forensic purposes it involves a gross invasion of privacy. 33However the assessment of gravity of the contravention of the Road Transport (Safety and Traffic Management) Act in this case, as required by s 138(3)(d), necessitated that her Honour evaluate the seriousness of the breach in the given circumstances, albeit in the context of her legitimate expectation that a police officer's judgment in deciding whether to arrest should be by reference to an unwavering standard. Her conclusion that she would not sanction an outcome (in this case the admission of the evidence) by allowing "the ends to justify the means" was not supported by any assessment of the gravity of the breach. Even after due allowance for her Honour's ex tempore decision, it falls short of the articulated reasoning process that is a necessary incident of judicial decision making (see DPP (NSW) v Illawarra Cashmart Pty Ltd [2006] NSWSC 343; 67 NSWLR 402). 34In addition, and despite her Honour's criticism of the failure of the police officers to ensure they understood, with precision, the limits on their statutory powers to detain a person and take blood and urine samples under compulsion, she made no finding that they acted in knowing breach of the law, or that they were reckless as to whether or not the blood sample was lawfully obtained, or that they did not genuinely believe that she needed to be taken to the hospital for treatment after veering off the road, much less that they used these circumstances opportunistically to ground the power to detain her for the sampling to be undertaken. 35In R v Camilleri [2007] NSWCCA 36; 169 A Crim R 197 at [28], McClellan CJ at CL (with whom Bell J (at [38]) and Howie J (at [39]) agreed) described s 138 of the Evidence Act as requiring consideration "not only of the effect of the action but also the motivation of the person who carries out the action". 36In that case, which also involved the taking of a blood sample (albeit by a nurse pursuant to an erroneous belief that she was obliged to do so, in circumstances where the defendant had attended the hospital but not for the purpose of treatment after an accident) the trial judge had described the impropriety as "very grave". By comparison, McClellan CJ at CL did not consider that description was open (at [29]): [29] The respondent was present in the Emergency Department of the hospital following a motor vehicle accident with obvious signs of head injury. The sister acted in the belief that he was a patient and that she was obliged to take the blood sample. Her actions would have been lawful if, as she believed, he had attended at the hospital for treatment or examination. Notwithstanding that the taking of blood is a significant invasion of a person's privacy, the legislature has provided that an individual's right to privacy cannot prevail over the taking of a blood samples from accident patients. The public interest in ensuring that persons do not drive when affected by alcohol has been judged by the legislature to be greater than an individual's right to privacy. Where, as in this case the blood sample was obtained by the sister, in the innocent, but mistaken belief, that she was obliged to obtain it, only a minimal level of impropriety was involved. 37His Honour went onto say at [31]: ...However, the fundamental concern of the section is to ensure that, if the law has been breached, or some other impropriety has been involved in obtaining the evidence, this is balanced against the public interest in successfully prosecuting alleged offenders. The competing interests are obedience to the law in the gathering of evidence and enforcement of the law in respect of offenders... 38In my view that same analysis obtains in this case to the question whether the evidence obtained in contravention of the law was grave. The junior officer who directed the triage nurse to take the samples was acting under the direction of a senior officer who had formed the genuine but mistaken belief that the circumstances he was confronted with when he attended the scene of the accident, and the assessment he made at that time of her sobriety, authorised the actions he took to detain the defendant and have her taken to the hospital and there for the sampling to be undertaken. The outcome of the appeal might have been different were her Honour to have formed the view that the senior police officer was motivated solely by a desire to ensure that his well founded suspicions that the defendant was heavily intoxicated were confirmed, and that she should be charged with driving under the influence of alcohol and evidence obtained to support that charge, and that he later sought to justify those actions by reference to express powers he did not actually avert to on the day. Again, as the Court observed in Camilleri, where the breach of the law is innocent and the alleged offence serious, there must be powerful countervailing considerations before the evidence is rejected.

Orders 39Accordingly, I make the following orders: 1. The appeal is upheld. 2. The order of Magistrate McIntyre made on 15 July 2011 is set aside. 3. The matter is to be remitted to the Local Court to be dealt with according to law. 4. The defendant is to pay the plaintiff's costs of and incidental to the summons. 5. An indemnity certificate under s 6 of the Suitors' Fund Act 1951 is granted to the defendant.

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