Meyer v Queensland Police Service
[2015] QDC 70
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- Unreported Judgment
- Meyer v Queensland Police Service[2015] QDC 70
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Meyer v Queensland Police Service[2015] QDC 70
Meyer v Queensland Police Service[2015] QDC 70
DISTRICT COURT OF QUEENSLAND
CITATION: | Meyer v Queensland Police Service [2015] QDC 70 |
PARTIES: | ROBERT WILLIAM MEYER (appellant) v QUEENSLAND POLICE SERVICE (respondent) |
FILE NO/S: | D107/14; D235/14; MAG-00072866/13(4) |
DIVISION: | |
PROCEEDING: | Criminal appeal |
ORIGINATING COURT: | Magistrates Court at Southport |
DELIVERED ON: | 1 April 2015 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 25 February 2015 |
JUDGE: | McGill SC DCJ |
ORDER: | Appeal 107/14 dismissed; appeal 235/14 struck out. |
CATCHWORDS: | VEHICLES AND TRAFFIC – Driving offences – failure to provide specimen of breath for analysis – whether defence shown. Transport Operations (Road Use Management) Act 1995 s. 80(11A). Mbuzi v Torcetti [2005] QCA 231 – applied. Murphy v Porter ex parte Murphy [1985] 1 Qd R 59 – considered. Pavlovic v Commissioner of Police [2006] QCA 134 – cited. Queensland Police Service v Ntakarutimana [2012] QDC 139 – cited. Rowe v Kemper [2008] QCA 175 – applied. Shambayati v Commissioner of Police [2013] QCA 57 – applied. |
COUNSEL: | The appellant appeared on his own behalf M Franklin for the respondent |
SOLICITORS: | The appellant was not represented Director of Public Prosecutions for the respondent |
- [1]On 12 March 2014 the appellant was convicted after a summary trial of one count of failing to provide a specimen of breath for analysis. The appellant was sentenced to six weeks’ imprisonment suspended forthwith with an operational period of two years, and disqualified from holding or obtaining a driver licence for a period of 12 months. On 11 April 2014 the appellant filed a notice of appeal under the Justices Act 1886 s 222 against that conviction.
- [2]On 18 August 2014 the appeal was struck out under the Justices Act s 229 by another judge. However, on 3 October 2014 another judge vacated that order on condition that the appellant file certain material within six weeks of that date. On 5 November 2014 the appellant filed some material including a letter from a consultant respiratory and sleep physician in purported compliance with that condition. The appellant had in the meantime on 26 August 2014 filed another notice of appeal out of time against the conviction. The appellant also filed an application for extension of time within which to file that appeal. In circumstances where the appeal filed 11 April 2014 has proceeded to a hearing, and I will deal with it on its merits, the second appeal has become unnecessary. It was technically an abuse of process of the court, given that it was filed at a time when a previous appeal against the same conviction had been struck out for want of prosecution, or at least became so after the previous appeal was reinstated, and it should now be struck out on that basis.
Legislation
- [3]The Transport Operations (Road Use Management) Act 1995 (“the Act”) provides in s 80(8)(c) inter alia that:
“Any person who—
…
- (c)is, for the purposes of subsections (8) to (8L), detained at or taken to a police station, or detained at or taken to a vehicle or vessel where facilities are available for the analysis by a breath analysing instrument of a specimen of breath …
may, while at a police station … be required by any police officer to provide 1 or more of the following as any police officer requires—
- (d)a specimen of the person's breath for analysis by a breath analysing instrument;
- (e)a specimen of the person's saliva for saliva analysis;
- (f)a specimen of the person's blood for a laboratory test.”
- [4]The Act provides in s 80(11) as follows, so far as is relevant:
“If a police officer makes a requisition under subsection (8) … in relation to a person and the person fails to provide as prescribed in this section—
- (a)a specimen of the person's breath for analysis by a breath analysing instrument; …
…
each of the following applies—
- (d)the person is guilty of an offence that is taken to be an offence against the appropriate provision of section 79(1);
- (e)the person is liable to the same punishment in all respects, including disqualification from holding or obtaining a Queensland driver licence, as the person would be if the offence were actually an offence committed by the person against the appropriate provision of section 79(1).”
- [5]It is also relevant to refer to s 80(11A) of the Act which provides:
“A person referred to in subsection (11) is not guilty of an offence under that subsection if the person satisfies the justices that the requisition to provide the specimen was not lawfully made or that the person was, because of the events that occurred, incapable of providing the specimen or that there was some other reason of a substantial character for the person's failure to provide the specimen other than a desire to avoid providing information that might be used in evidence.”
Course of the trial
- [6]A plea of not guilty was entered on a mention in the Magistrates Court on 24 July 2013. At that stage there was a solicitor appearing for the appellant, possibly a duty solicitor, but it was foreshadowed that the appellant would be conducting the trial himself (as he did), and there was some discussion about the need for him to provide expert medical evidence in support of his contention that he was at the time not physically able to provide a specimen of breath for analysis. In fact the trial did not come on until 6 December 2013. Initially there were two charges proceeding, failure to provide a specimen of breath and driving whilst under the influence of alcohol.[1]
- [7]The prosecution case was that the appellant was intercepted at a random breath testing static interception site where a specimen of his breath was obtained using an alcometer.[2] As a result of that test he was transported to the police station at Coolangatta where he was directed to provide a specimen of breath for analysis using a breathalyser. The prosecution case was that, despite being given four opportunities, he failed to provide a specimen of breath for analysis, that is failed to provide enough breath to enable an analysis of his breath to be performed by the equipment, and a certificate to that effect was issued by the operator of the instrument at the time.
- [8]The appellant was then transported to the watch-house. During the trip, at his request, there was a further specimen of his breath tested using the alcometer, which produced a result. On the trial the prosecution did not rely on the results obtained from the alcometer tests, but relied on the fact that a result was able to be obtained from those tests, in circumstances where there was also expert evidence to the effect that the amount of breath required to obtain a result on an alcometer test was greater than the amount of breath required to obtain a result using a breathalyser. This was evidence that at the relevant time the appellant was not physically incapable of providing sufficient breath to enable a specimen of his breath to be tested using the breathalyser.
- [9]On 6 December the appellant said that he had wanted his general practitioner to be able to give evidence, by telephone, but that because of the time and because it was a Friday the general practitioner would not be available. The magistrate treated this as an application for an adjournment: p 1-12. In the event the magistrate decided to hear the witnesses that the prosecutor had available to give evidence that day, and to adjourn the matter then to another day when the prosecution’s medical evidence would be given, and then the defendant would have the opportunity to give and call medical evidence. At that stage the appellant did not object to the matter proceeding in that way: p 1-15.
- [10]The arresting officer gave evidence of the roadside breath test, and what happened subsequently, in accordance with the outline of the prosecution case. He said that when initially asked to blow into the alcometer the appellant had not blown into it properly, but he then explained what was required and on a second attempt he provided a sample on the roadside from which a reading was obtained: p 1-26. When in cross-examination the defendant put to him that he had been given the alcometer but then before he could blow into it the police officer had said he was obviously drunk, and he did not do the test before being taken to the police station at Coolangatta, this was denied. The defendant also put that at the Southport Police Station he was only given two opportunities to blow into the breathalyser, which was also denied: p 1-33. The police officer also rejected the suggestion from the appellant that he had that night asked for a blood sample to be taken: p 1-34.
- [11]The police officer verified a recording of the conversation that he had with the appellant, although not covering the entire period that he spent with the appellant: Exhibit 1.[3] The officer said the appellant did not give him any indication that he was suffering from any illness or injury, or any condition that would prevent him from blowing into the breathalyser, or on any medication: p 1-36. The contrary was not suggested in cross-examination.
- [12]The breathalyser operator also gave evidence of giving the standard direction to the appellant, after which the appellant blew into the instrument but did not provide a sufficient sample of breath. He said that this was repeated three times, after which he completed a certificate of failing to provide a specimen of breath for analysis: p 1-41. The certificate became Exhibit 3 which states that it was issued at 6.53 pm. Under cross-examination the officer agreed that there were kits for obtaining a sample of blood at the police station, but said that they would not in fact take a blood sample there, as it would have to be taken at the Southport Hospital: p 1-44. He said that the appellant did not while he was at the station produce a Ventolin inhaler, or demonstrate any need for it: p 1-45. The officer said that he was not aware of any health concerns that would prevent the appellant from providing a specimen of breath, and that nothing of that kind was indicated to him at the time.
- [13]The trial was adjourned part heard to 12 March 2014, a date that was fixed in the presence of the appellant. Before adjourning the matter, the magistrate made a direction that the appellant provide a detailed written report dealing with any condition which may have impacted on his capacity to provide a specimen of breath for analysis to the prosecution by 24 January 2014: p 1-54. This direction was not complied with. The appellant produced on the second day an x-ray report which he had obtained. On that day however he had not arranged for any medical evidence. He said at one point that he could not afford to pay for a report from his doctor: p 1-3.[4] It was at this point that he requested a further adjournment (p 1-6), which unsurprisingly was refused; a defendant is not entitled to an adjournment simply because he has not bothered to get ready to run his case.
- [14]The prosecutor called its last witness, a forensic medical officer. She referred to the term “obstructive airways disease” which appeared in a letter from the appellant’s GP which had been produced earlier,[5] and noted that that covered three types of disease, emphysema, chronic bronchitis and chronic obstructive asthma: p 1-12. It was not possible to tell from the letter what the cause was in this case: p 1-12. She also said that the volume of breath and rate of flow of breath required to obtain a reading from an alcometer was greater than that required to obtain a reading from the breathalyser instrument used at the police station, so that if someone could provide a specimen that was adequate for the alcometer test he should be able to provide a specimen adequate for the breathalyser: p 1-12. She said that the rate of flow required by the machine was only 12 litres per minute, whereas in a normal adult breath can be expelled at up to a rate between 400 and 700 litres per minute. She had listened to the tape recording of the conversation with the arresting officer, and had not detected any sign of compromised breathing. She also said that if the appellant had in fact not been able to supply a specimen of breath for the breath analysing instrument at the police station because of a breathing difficulty, it would be reasonable to expect symptoms which would be apparent to an observer at the time: p 1-17. The doctor had prepared a detailed written report which became Exhibit 5.
- [15]During cross-examination the defendant in effect suggested that if he had had the blood alcohol content suggested by one of the alcometer tests he would have been too drunk to stand up and would have been crawling on the floor, a proposition the doctor appeared to reject: p 1-15. The doctor was asked some questions about the x-ray report which had been obtained by the appellant as a result of which she made some comments interpreting its contents. She noticed a passage which suggested that the x-ray had been ordered because of dyspnea, which is shortness of breath. The x-ray report indicated that there was some thickening around the smaller airtubes of the lungs, the significance of which was uncertain: p 1-16. She noted that the usual way for assessing and monitoring respiratory conditions is with pulmonary function tests, where a patient tries to blow into instruments which measure the volumes and expiratory flow rates. She said a chest x-ray was not very helpful in assessing lung function. There was a comment by the doctor, which led to a statement by the police prosecutor that when there is an unsuccessful attempt to obtain a sample for analysis the breathalyser will produce a receipt indicating that, but the prosecution was not able to produce the receipts in this case, relying simply on the certificate: p 1-18.
- [16]The appellant gave evidence on the second day. In his evidence he said that when stopped at the roadside he was not given an alcometer test, the police officer had just smelt his breath and said he was drunk and he was taken to the police station for testing: p 1-22. He insisted that it was the prosecutor’s copy of the recording which was played in court, not the copy that had been given to him: p 1-23.[6] He said that after the incident at the Coolangatta Police Station he was taken to the watch-house in Southport where he was released after half an hour: p 1-25. This was to suggest that if he had been as intoxicated as was suggested by the alcometer readings he would not have been let out of the watch-house. In relation to the attempt to blow into the breathalyser, he said he blew in it twice but that he was unable to keep blowing and claimed he gets giddy if he keeps blowing: p 1-25. He also said that he gets phlegm, which presumably causes him difficulties.
- [17]His evidence wandered from the point, and he did not really articulate clearly the basis upon which he said he had not been able to comply with the direction to provide a specimen of breath for analysis. In particular it is not clear whether he was saying that he was unable to blow harder than he did, or that he was reluctant to blow harder than he did because of concern that if he did so he would become giddy, and why that would be a concern to him.[7] He denied that he had provided a sample of breath for an alcometer test before he was taken to the police station, but when asked whether he had performed an alcometer test while being taken to the watch-house he replied “I tried yes I did”: p 1-29. Accordingly he appears to have accepted that he did provide what the police officer said was the second test, so he admitted he was able to provide one successful alcometer test that night.
- [18]Under cross-examination he agreed that at the police station he was given the requirement to provide a specimen of breath, though he claimed he only blew into the breathalyser twice: p 1-29. He agreed that when asked by police if he was on any medication he answered no and when asked if he was suffering from any illness he answered no: p 1-30. He said he tried to blow into the breathalyser. The appellant sought to allege that there had been previous occasions when he had been unable to provide a specimen of breath for a breathalyser at the Coolangatta Police Station: p 1-30. The magistrate seems to have been very concerned that this would amount to leading evidence of previous offending which ordinarily could not be led, at least by the prosecution, but there is no reason in principle why a defendant cannot lead evidence of previous offending if the defendant asserts that it is relevant to his case. The appellant’s argument seemed to be that the same thing had happened to him on previous occasions and on those occasions he had simply paid the fine, presumably after pleading guilty. It is difficult to see how relying on that history was of any assistance to his case.
- [19]The report from the doctor who performed the chest x-ray became Exhibit 7, though it had not been properly proved. Neither that doctor nor the GP was available or had been arranged to give evidence by telephone. The defendant spoke about subpoenaing the publican of the hotel who had seen him on the night after he was released from the watch-house, apparently with a view to his being able to testify as to the absence of the sort of intoxication suggested by the alcometer test. Plainly such evidence would have been inadmissible, even accepting that no doubt the publican would have a good deal of experience with persons who were affected by alcohol.
The reasons of the magistrate
- [20]In her reasons for convicting the appellant, the magistrate analysed the evidence in considerable detail, and accepted the evidence of the police witnesses in preference to that of the appellant where they differed. In particular she accepted that the two alcometer tests had been undertaken and that they produced the readings recorded in a printout from that device which became Exhibit 2, and that this demonstrated that both before and after the breathalyser testing occurred the appellant was able to provide a specimen of breath sufficient for analysis by an alcometer device. She accepted that there had been four attempts to obtain a specimen of breath from the appellant at the Coolangatta Police Station and then the certificate had been issued that he had failed to provide a specimen. The proposition that he had failed to provide a specimen was not really contentious, and the certificate was conclusive evidence of that proposition.[8]
- [21]There was no reason to doubt that the lawful direction had been provided. The remaining issues arising under subsection (11A) were whether he was incapable of providing a specimen of breath or whether he had some other reason of a substantial character for failing to provide the specimen. The magistrate noted that this expression had been considered by the Full Court in Murphy v Porter ex parte Murphy [1985] 1 Qd R 59. In that case Andrews SPJ, with whom McPherson J agreed, said at p 68 that “as a matter of ordinary usage ‘reason of a substantial character’ means something more than ‘reasonable excuse’.” At p 74 his Honour said that the reason may be personal to the man refusing to give the specimen, but its substantiality was a matter for judgment by the court. Nevertheless it was held in that case that the defendant is not allowed to rely upon a reason which has for its basis a judgment or opinion as to his guilt or innocence of the offence then being investigated: p 73.
- [22]The magistrate said that she was not persuaded that the appellant had really put forward a substantial matter to demonstrate that his failure to supply a specimen was because he was genuinely unable to do so: p 9. It may be that, for the purpose of this third limb of the subsection, it is not necessary to show that the defendant was genuinely unable to provide a specimen of breath, because that is covered by the second limb; the third limb is concerned not so much with an inability but with the existence of a substantial reason for failing to provide the specimen. In truth, the evidence of the defendant was not to the effect that he was unable to provide the specimen. He did not say he was doing his best to blow at the time when his attempts failed. To the extent that he explained his failure to provide a specimen, it was because of concern that he would become giddy if he blew too hard or too long. The magistrate was certainly entitled to regard that as not a substantial reason for failing to provide a specimen of breath. The appellant did not give evidence of any particular adverse consequences if he did become giddy as a result of blowing adequately.
- [23]On the defendant’s own evidence at the trial he had not established a defence under subsection (11B). The magistrate correctly concluded that the effect of subsection (11B) was that the onus was on the appellant to satisfy the court, on the civil standard, of one of the matters in that subsection, otherwise the onus remained on the prosecution to prove all of the matters the prosecution had to prove beyond reasonable doubt. They were, in the light of the magistrate’s finding, proved conclusively by the certificate.
- [24]The magistrate noted that the medical evidence put forward by the appellant, which had not been properly proved, did not in any event demonstrate an incapacity properly to perform such a test. She referred to and evidently accepted the opinion of the forensic medical officer that in the absence of visible signs it was quite unlikely that there existed anything physically preventing the appellant from performing the test at the time, and that the ability to perform the alcometer tests was inconsistent with an inability to perform the breathalyser tests. That analysis was if anything generous to the appellant, in circumstances where his medical evidence had not been properly proved. There is nothing in that medical evidence to demonstrate an inability to provide a specimen of breath for analysis at the time, and the evidence of the alcometer testing was clearly to the contrary.
The appeal
- [25]The appeal is by way of rehearing on the evidence sourced in the proceeding before the Magistrates Court, subject to a power to accept fresh evidence: s 223(1). The appeal involves a rehearing in the sense of a review of the record of proceedings rather than a completely fresh hearing, but the court is required to conduct a review of the evidence and the reasons and make its own determination of the relevant facts in issue from the evidence having due regard to the advantage possessed by the magistrate in being able to see and hear the witnesses.[9] In order to succeed on such an appeal the appellant must establish some legal, factual or discretionary error.[10] I have reviewed the evidence, and in my opinion on the evidence at the trial the appellant failed to establish any of the matters by which under subsection (11B) he could successfully resist the charge. There was really no dispute as to the elements the prosecution had to prove. In those circumstances he was rightly convicted by the magistrate.
- [26]The appellant obtained some additional evidence prior to the appeal in the form of a report from a respiratory and sleep physician which was dated 22 October 2014 and filed in the court pursuant to the direction of the other judge. He also provided a more detailed letter from his general practitioner. The former referred to the appellant suffering intermediate acute bronchitis which may have produced difficulty in performing respiratory function tests at the time of exacerbation of symptoms, though on both 15 January 2014 and 17 September 2014 on testing he demonstrated normal airway function with some coaxing. The doctor indicated that there was some erratic effort but with appropriate coaxing the appellant was able to achieve normal airway function. He did not refer to any resulting giddiness. That was certainly not evidence of an incapacity to provide a specimen of breath for analysis as at the date relevant to the charge, nor did it overcome the evidence of the prosecution witness to the effect that any difficulty in performing the test would be associated with exacerbation of symptoms which will be visible.
- [27]The evidence of the treating doctor, who had been treating the appellant for more than 20 years, was that he had during the time had many chest infections with shortness of breath and difficulty breathing and that he had sought a letter to the effect that he would be unable to provide a sample of breath for a breathalyser. However the doctor said that he could not attest as to whether or not on the day in question he was indeed unable to provide a specimen of breath. In those circumstances that evidence if available would not have assisted the appellant at the trial. There is no need to consider it further, as therefore it cannot be accepted as fresh evidence on the appeal.[11]
- [28]The first ground of appeal was that the appellant had a medical condition that prevented him from supplying a breath sample, but, even disregarding the fact the various medical reports which the appellant had obtained had not been properly proved, they did not provide medical evidence of the existence of a condition that on this day prevented him from supplying a breath sample for analysis. He had no right to require a blood test to be done in lieu of providing a sample of breath for analysis, although the police officer might have been entitled to require that a specimen of blood be provided. The proposition that he disputed that he was over the limit is irrelevant given the nature of the charge. He said that he asked for an adjournment on 12 March in order to obtain medical evidence, but as I have already indicated the matter had been adjourned to that date to enable him to call the medical evidence on that date, and there was nothing to indicate that his failure to do so was not due to his having simply not bothered to arrange for that evidence then to be available. He was not entitled to any further adjournment.
- [29]He sought to complain about the absence of the printout from the machine apparently produced when there was a failure to provide a specimen of breath, a point mentioned in evidence at the trial but on which he took no point at the trial and which therefore could not be raised on appeal. In any event, the absence of such a printout did not provide a basis casting doubt on the certificate of the operator, which in the circumstances was conclusive. The seventh ground appears to be based on the proposition that somehow there was an evidentiary certificate obtained from the breathalyser, which was not the case. He also referred in ground 8 to the fact that he was released from the watch-house 20 minutes after he was taken there, and in ground 9 said that the watch-house keeper had not appeared in court in response to a subpoena, though he would have not been able to give any evidence which was relevant. There was also a one-page outline of argument filed, which again referred to the absence of a printout from the breathalyser, but is otherwise unclear.
- [30]The appellant’s oral submissions were at times difficult to follow, and lacked focus. He referred again to the fact that there had been a long history of failing to be able to provide a specimen for analysis, and he said he used to carry a letter from the doctor but now has to use a different form. He repeated that he asked for a blood sample to be taken. In other respects his submissions appear to be directed to the various issues which I have canvassed earlier, and a generalised complaint that he was being badly done by in relation to the matter.
- [31]There was no argument advanced against the sentence. All that was said in relation to sentence was that he would as a result of this conviction be subject to an interlock restriction on his licence when he was otherwise entitled to have the licence returned, something which he could not afford, so that the practical effect was that he would be disqualified from holding or obtaining a driver licence for a much longer period than the period imposed expressly by the magistrate. This is a consequence of the operation of particular legislative provisions about which the magistrate had no discretion, and cannot give rise to any issue in relation to an appeal against sentence. In those circumstances, the appeal is dismissed.
Footnotes
[1] This charge was abandoned during the trial.
[2] Evidence was given of the reading obtained, although that was not relied on by the prosecution except to correlate with the printout from the machine, Exhibit 2, which confirmed the officer’s account of events, relevant as a result of the suggestion in crossexamination that there was no test.
[3] The magistrate accepted his explanation for the failure of the balance of the recording. During the recording the appellant did not claim any incapacity to perform the requirements of either test.
[4] The transcript of the second day of the trial is wrongly identified as also being “day 1”.
[5] The letter apparently provided by the appellant’s general practitioner dated 24 May 2013 became Exhibit 6.
[6] The transcript confirms that the version produced by the prosecutor was played at P 1-19 and the appellant’s copy was played at p 1-28, 29, to prove they were the same.
[7] See also p 1-26: “You try to blow in the machine. The next thing I start getting giddy in the head.”
[8] See also Queensland Police Service v Ntakarutimana [2012] QDC 139 at [8].
[9]Rowe v Kemper [2008] QCA 175 at [5]; Mbuzi v Torcetti [2005] QCA 231 at [17].
[10]Shambayati v Commissioner of Police [2013] QCA 57 at [23].
[11]Pavlovic v Commissioner of Police [2006] QCA 134 at [36].