Zwann-Ward v Barran[2005] QDC 376

DISTRICT COURT OF QUEENSLAND

1. [1]
   This matter comprises both an appeal by a complainant against a Magistrate’s verdict of acquittal and an application by the complainant for leave to bring the appeal.

2. [2]
   On the 10 August 2005 the Respondent was tried before a Magistrate on a charge that on the 5 April 2005, he committed an offence against section 79 (1) of the Transport Operations (Road use Management) Act 1995 (the Act).  The allegation was that he had failed to provide as prescribed, a specimen of his breath for analysis.  See section 80 (11) of the Act. 

3. [3]
   The application for leave to appeal was necessary because the notice of appeal was lodged out of time. The Magistrate’s verdict of acquittal was delivered on the 10 August 2005. The notice of appeal was filed on the 19 October 2005, well outside the one month period prescribed under section 222 of the Justices Act 1886 (Qld).  Section 224 (1) of that Act empowers a Judge to extend the time for filing provided the notice of appeal.

4. [4]
   An explanation for the delay is provided in an affidavit of a legal officer from the office of the Director of Public Prosecutions. According to Mr Pollock’s affidavit, the file was received in the director’s office from police prosecutions on the 23 August 2005. Advice was sought about appealing the magistrate’s decision. Records indicate the file was automatically allocated to a particular legal officer. However, it was apparently intercepted by an office manager who was to reallocate it. That appears not to have occurred. The file appears to have become lost. It cannot be located. Eventually on the 18 October 2005, I infer after a query from police prosecutions, a new file was created.

5. [5]
   Whether or not time should be enlarged, involves a balance of relevant matters. They include; the reasons for the delay, the period of the delay, the interest of the potential respondent in finality after the expiration of the appeal period, the seriousness of the alleged offending of the respondent and the public interest in conviction of offenders.

6. [6]
   In considering these matters, it is helpful to gain an appreciation of the evidence before the Magistrate and the Magistrate’s reasons for the verdict. See the discussion of the Court of Appeal in R v William Peter Tait/C/A210/1998.

7. [7]
   On 5 April 2005, the Respondent was intercepted for speeding. A road side breath test was successfully completed after three attempts and indicated a blood alcohol concentration of .063%. The respondent was then taken to Maroochydore police station for a breath test on a breath analysising instrument. At the police station on four occasions, the respondent was required as prescribed to provide a specimen of breath. Section 80 (8) and (8 F) of the Act. On each occasion he failed to provide a specimen of breath as prescribed. Section 80 (11) of the Act. On each occasion he failed to provide sufficient breath for testing purposes. Section 80 (8 F) of the Act. The result, on each occasion was that he failed to provide sufficient breath for the machine to operate as required.

8. [8]
   In his reasons for acquitting the respondent, the magistrate made it clear that the prosecution had proved the elements of the offence. He then turned his attention to section 80 (11A) of the Act, which provides in part, that a person is not guilty of an offence pursuant to subsection 80 (11) if the person satisfies the court that the person was, “by reason of events that occurred, incapable of providing the specimen or that there was some other reason of a substantial character for the persons failure to provide a specimen other than a desire to avoid providing information that might be used in evidence.” He correctly directed himself that section 80 (11A) required the respondent to prove on the balance of probabilities that the explanation for his failure was within one or other of the exculpatory situations provided.

9. [9]
   The magistrate reviewed the evidence. Essentially, what the respondent had said in his evidence, confirmed to an extent by a Doctor Duncan, was that he had for many years, practiced yoga and a breathing technique of yoga involving inhaling and exhaling the breath entirely through the nose. After his interception he became increasingly anxious. He had difficulty completing the road side test, but after three attempts managed to do so. At the police station he was very anxious and despite his willingness to do what was required after four attempts, was unable to provide sufficient breath through his mouth. He believed that in his state of anxiety, he was subconsciously resorting to yogic breathing.

10. [10]
    The magistrate made it clear he approached this evidence with a degree of scepticism. He noted that yogic breathing increased the lung capacity and that the amount of breath required for the road side test exceeded the amount of breath required for the breathalyser at the police station. However he ultimately concluded that the defendant was an honest witness and his evidence was “substantially reliable.” He found he was suffering considerable anxiety at the police station and that affected his mind and in turn affected him physiologically. He was assisted to this view by the evidence of the intercepting police officer and the police officer operating the breathalyser. He set out some of their evidence in his reasons. The intercepting police officer said that at the road side test, the appellant appeared cooperative. He appeared to be trying to comply with what she required. That was why she allowed him three attempts.

11. [11]
    As to what occurred at the police station, both police officers said the appellant gave the appearance of trying very hard to provide the required amount of breath. The magistrate noted the intercepting police officer in answer to a question said “it was as if he like, wanted to do it but wasn’t doing it”.

12. [12]
    The magistrate concluded, after considering the evidence of the appellant and that of the police officers, that on the balance of probabilities, the reason the appellant did not provide the specimen of breath as required at the police station was “a reason other than an act willed by” the respondent. He was satisfied that the failure to provide breath as required was not due to a desire to avoid providing information that might be used in evidence. He concluded that there was a reason of a substantial character for the appellant’s failure to provide the specimen of breath being “the absence of linkage between the defendant’s mind and body” in his failure to supply sufficient breath.

13. [13]
    It may be thought that the facts disclosed in the evidence, make the case an unusual one and call up some scepticism. The magistrate had the advantage, however of seeing and hearing the witnesses. As mentioned above, he recorded in his reasons that he approached the evidence with some scepticism.

14. [14]
    The appellant submitted that the magistrate, in acquitting the respondent had “excluded a material fact”, namely that the respondent had provided sufficient breath for a road side breath test. However, the magistrate’s recorded reasons for the verdict make it clear he had in mind throughout, that the roadside breath test which required a greater volume of breath than the breath analysing instrument at the police station was, after three attempts, successfully completed.

15. [15]
    The appellant submitted there was no medical evidence supporting the respondent’s evidence about the reasons he was unable to supply sufficient breath for the test at the police station. The submission contended that in its absence, it was erroneous for the magistrate to rely on the respondent’s anxiety level and his resulting “reversion” to yogic breathing techniques as a reasons of a substantial character sufficient to constitute a defence under section 80 (11A) of the Act.

16. [16]
    The appellant submitted that the case was important from a public interest view point. The creation of novel defences under section 80 (11) of the Act unsubstantiated by medical evidence was “to be discouraged” less the effect of that section be diminished.

17. [17]
    It is not necessarily the case that evidence which may call up section 80 (11A) must be substantiated by medical or other evidence. It will always depend on the circumstances. Ultimately, it is a matter for the fact finding tribunal which I have no doubt will always apply a self serving filter to a consideration of this sort of evidence.

18. [18]
    Whether ultimately, on the evidence, the fact finding tribunal is entitled to find facts proven and whether those facts are capable of establishing “some other reason of a substantial character” may be debated on appeal. In this case, having read the magistrate’s reasons, I am inclined to the view that the magistrate was entitled to find himself satisfied on the balance of probabilities that the reason for the respondents providing insufficient breath for the breath analysing instrument to operate as prescribed was not due to a desire to avoid providing information that might be used in evidence but was sourced in an anxiety state.

19. [19]
    When all relevant matters are put in balance, I am not persuaded I should grant leave to appeal.