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Lea v Snajdara[2016] QDC 353

DISTRICT COURT OF QUEENSLAND

CITATION:

Lea v Snajdara [2016] QDC 353

PARTIES:

CONSTABLE HAYDEN LEA

(appellant)

v

ANDRE JOHN SNAJDARA

(respondent)

FILE NO/S:

4740 of 2014

DIVISION:

Criminal

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Holland Park

DELIVERED ON:

Ex tempore reasons 15 December 2016

DELIVERED AT:

Brisbane

HEARING DATE:

15 December 2016

JUDGE:

Smith DCJA

ORDER:

  1. The appeal is allowed.
  2. The order for dismissal of the charge is set aside.
  3. The matter is remitted to the Brisbane Magistrates Court for rehearing before a different magistrate.
  4. No order as to costs.

CATCHWORDS:

TRAFFIC LAW – OFFENCES- APPEAL – whether respondent should have been acquitted of failing to supply a specimen of breath for analysis

Justices Act 1886 (Q) ss 222, 225

Transport Operations (Road Use Management) Act 1995 (Q) s 80

Fischer v Douglas ex-parte Fischer [1978] Qd R 27

Murphy v Porter ex-parte Murphy [1985] 1 Qd R 59

Parsons v Raby [2007] QCA 98

Teelow v Commissioner of Police [2009] 2 Qd R 489

Wilcox v Doolan (1990) 13 QLR 50

COUNSEL:

Mr J. Hanna for the appellant

Self- represented respondent

SOLICITORS:

Office of the Director of Public Prosecutions for the appellant

  1. [1]
    This is an appeal pursuant to s 222 of the Justices Act 1886 (Qld) by the appellant against an order made in the Magistrates Court at Holland Park on 31 October 2014 to dismiss two charges brought against the respondent.  An appeal under this section is by way of rehearing.  The court is to conduct a real review of the evidence, giving due weight to the Magistrate’s findings (see Parsons v Raby [2007] QCA 98).  In Teelow v Commissioner of Police [2009] 2 Qd R 489 at paragraph 4, Muir JA held that usually for an appellant to succeed, it is necessary for the appellant to demonstrate the decision is the result of some legal, factual or discretionary error. 
  1. [2]
    In this case, the respondent was charged with the following charges:
  1. [3]
    Charge 1 – Transport Operations Road Use Management Act 1995 s 80(11), failure to provide specimen of breath for analysis or blood test on requirements.  That on 29 June 2014 at Mt Gravatt East in the Holland Park division of the Brisbane Magistrates Court district in the state of Queensland, the respondent was guilty of an offence against s 79(1) of the Transport Operations Road Use Management Act 1995, in that he, upon requisition duly made by Sergeant Allanson, a police under s 80(8) of the set Act, failed to provide as prescribed a specimen of his breath for analysis.
  1. [4]
    Charge 2 – Transport Operations Road Use Management Act 1995 s 79(1)(a), driving a motor vehicle under the influence of liquor.  That on the 29th day of June 2014 at Mt Gravatt East in the Holland Park division of the Brisbane Magistrates Court district in the state of Queensland, the respondent, whilst he was under the influence of liquor or a drug did drive a motor vehicle – namely, a motor car – on a road namely the Newman Road Mount Gravatt East. 
  1. [5]
    There is no appeal against the dismissal of the second charge, only the first.
  1. [6]
    In amended grounds of appeal, the appellant alleges the learned magistrate erred in admitting and relying on evidence the respondent had been diagnosed with Asperger’s syndrome in 1999. It is alleged the learned Magistrate made erroneous and inadequate findings of fact, which errors included firstly a diagnosis that he had been diagnosed with autism, secondly a finding the police did not clearly or properly direct the respondent in providing a specimen of breath, thirdly a finding that the evidence of Sergeant Allanson was contradicted by other evidence, fourthly a finding he did not adequately understand the requirement to provide a specimen of breath and fifthly a failure to make findings of fact on issues of dispute between the parties. It is in those circumstances that it is alleged errors have occurred.
  1. [7]
    Constable Hayden Lea gave evidence that on 29 June 2014, he was working a 6.00 am to 2.00 pm shift with Senior Constable Geary conducting patrols. A red Holden commodore, driven by the respondent, was intercepted. A breath test was conducted at the side of the road, and as a result the respondent was detained for the purpose of a further test and transported to the Upper Mount Gravatt Police Station. A DVD of interactions was taken and marked below as exhibit 1. It was as a result of the Alcolmeter reading at the side of the road that the respondent was required to go to the police station. Once they arrived at the Mount Gravatt Police Station, the respondent was questioned. I’ve listened to that recording today. He was questioned regarding his alcohol consumption in the past 24 hours. In the interview, he was cooperative, it seems to me. He told the police he’d been at the Alexandra Hills Hotel. He told them that he’d had something to eat at 5.00 pm. He told the police he’d had eight standard drinks of scotch and Coke. The first drink was at midnight; the last drink at 4.00 am. Also, having heard the recording, it is clear that he was given a number of opportunities to provide a specimen of breath for analysis.
  1. [8]
    Officer Lea gave evidence he noticed the respondent had glassy red eyes and smelt of alcohol, especially when yawning. In cross-examination, he accepted the respondent advised him he’d slept prior to the driving, and he accepted the respondent had complied with providing the sample of specimen on the roadside and did not object to going back to the police station. He felt the instructions to provide the specimen of the breath at the police station were clear, and the respondent was not compliant. He believed the respondent placed his lips on the mouthpiece, but sucked back without blowing out – day 1, page 28, line 35.
  1. [9]
    Constable Sandra Geary gave evidence that she was working with Constable Lea. When the respondent pulled over, she smelt liquor on his breath. He had bloodshot eyes, and appeared to be tired. In cross-examination, she said the purpose of the intercept was for a random breath check and license check. She accepted the respondent was not hooning or speeding; it was a random intercept. She confirmed he provided the specimen of breath at the roadside, and he was detained for the purpose of a further test. She said the respondent told Officer Lea that he’d been at the Alexandra Hills Hotel, where he’d consumed a number of alcoholic drinks but had little sleep, but he thought he’d had enough sleep to sleep off the alcohol and was okay to drive. She conceded up until the point of going to the station he was compliant.
  1. [10]
    Sergeant Christopher Allanson gave evidence that he was authorised to operate the Lion Intoxilyzer 8000. He was rostered to perform duties from 6.00 am to 2.00 pm Sunday, 29 June 2014. At about 7.05 am, constables Lee and Geary attended the police station in company of the respondent for the purpose of his undergoing a breath test. He went into the analysis room and waited for the respondent. The respondent was brought in. He made notes of his conversation, and observed him to have slightly bloodshot eyes and the smell of liquor on his breath. He entered particulars into the breath-analysing instrument and the attached a new clear sterile mouthpiece to the tube of the instrument, and it went through its self-testing diagnostic sequence, which one can hear on the tape. He said the instrument was in proper working order. Exhibit 3 below is the mouthpiece. Exhibit 4 was the instrument. And certificate of four attempts was tendered – Exhibit 6 below, Exhibit 8 here.
  1. [11]
    He said that the requirement to give a specimen of breath was given in clear terms, and the respondent appeared to understand this. He said on the first occasion the respondent sealed his lips around the end of the mouthpiece and started exhaling breath and almost immediately he observed the cheeks suck back inwards. The device indicated he’d stopped blowing. On the second occasion, he immediately sucked back and the same process occurred. Ultimately, he alleged there were four attempts to supply. On the first, he supplied 0.6 of a litre of breath, on the second, nothing, on the third, nothing. On the fourth, he began to supply as if only to exhale the smallest amount of breath possible. He didn’t attempt to seal his lips very well. He provided 0.79 of a litre of breath. To get a reading out of the instrument, it was necessary to have a minimum of one litre of breath.
  1. [12]
    The respondent was advised after the fourth attempt he’d failed to supply. He swore at Sergeant Allanson, and the sergeant asked for him to be removed from the room. He filled out the failure to supply specimen of breath certificate, and provided the respondent a copy of that. That’s been marked as well, in these proceedings, as Exhibit 10. In cross-examination, he confirmed he was qualified to operate the breath analysing instrument and gave evidence of the direction he had given – page 45, line 5. I might say I found that his evidence was corroborated by the tape recording. He denied the suggestion that the mouthpiece on the device was faulty – page 49, line 40. And he said it was his job to warn that it was an offence that if there was a failure to supply, and he gave the respondent every opportunity to supply. He believed the respondent was sucking as soon as the device entered the mouth – page 53, line 15.
  1. [13]
    Dr Adam Griffin gave evidence that one’s normal breathing capacity is such that when the lungs are full of air there is four litres of air. An additionally 1.5 litres of air remains in the lungs as residual volume. One tends to move roughly 500 ml at one time with no effort involved – i.e. normal inhalation/exhalation. If one filled one’s cheeks and blows the cheeks out, about 200 ml of air is moved. A normal adult produces 400 to 700 litres of air per minutes. The roadside instrument requires a flow of 14 litres per minute. If a volume of 1.2 litres is produced, a reading occurs. Less is required for the Lion Intoxilyzer. And he’s used the instrument himself and only moved about 900 ml of air – it gave him a zero reading. He said the readings in the respondent’s case were not particularly compatible with someone who is alive, because it indicates they are not really breathing or moving sufficient air if they are only getting 60 ml of air. He stated in his opinion if one produces a result on a roadside instrument, which requires a larger volume and higher flow, then there was nothing stopping that person from producing a specimen or result on the Lionizer – page 13 line 3.
  1. [14]
    The respondent gave evidence he was 29 years of age and resided in Sydney. He said he’d been drinking at the Alexandra Hills Hotel and was aware of the guidelines for drinking and was trying to follow them. He had eight standard drinks at the hotel. He then had some food, went to sleep in his car, because he realised he would not be able to operate it at that stage. After he woke up, he headed home and was picked up by the police. He provided a roadside breath test and told the police what he’d been doing the previous evening. He admitted undergoing the breath test with sergeant Allanson, but alleged on the first occasion he tried to blow into the device as best he could but an error occurred. He alleged he was never intentionally sucking on the machine. He said it was unclear and not understood by him the first time, the second time and the third time, but the specimen improved on the fourth occasion. He said he’d provided samples and was compliant with the police.
  1. [15]
    In cross-examination, he said he’d started drinking at midnight and stopped at about 4.00 am, had a sleep, and got picked up at 6.57 am. He was aware of drinking guidelines. He agreed the police had given him four opportunities to provide the specimen of breath at the station. He accepted the officer asked him if he understood the requirement and that he had said yes. He accepted he was able to provide a specimen at the roadside. He refuted he’d been sucking back. He suggested the police should have continued giving him opportunities to be compliant. The police officer completed the cross-examination at page 59 line 17. Despite this, the magistrate commenced herself to cross-examine the respondent at length, accusing him, for example, of not telling the court the truth – page 57 line 27. She also asked him to explain why he had not been forthcoming, and said his explanation did not sound sensible. She then cross-examined him about having been picked up on a warrant – page 61 line 45. She then commenced to cross-examine him about the circumstances in which the specimen were provided. At that stage, she asked him: Page 66, line 5.

Question:  Have you ever been diagnosed with Autism Spectrum Disorder?

Answer:  Yeah, I have been autistic since I was, like, six.

Question:  And you’ve got Asperger’s as well?

Answer:  Yes. It’s the Asperger’s part of it, ADHD, then reclassified.

She then expressed her concerns about convicting the respondent, and noted:

“It does seem to me that you have a legitimate mental health problem, and that explains some of your peculiar behaviour.  It doesn’t explain everything.” Page 67, line 32.

  1. [16]
    In response, the prosecutor stated she sympathised with the respondent, but he had no medical evidence to back up what he was saying. The prosecutor stood the matter down to get instructions and indicated to the court the matter was proceeding. The magistrate offered the respondent the opportunity to obtain a medical report explaining any failure to provide a specimen of breath for analysis (page 69, line 40).
  1. [17]
    The matter was adjourned until Friday, 31 October 2014. At no stage did the magistrate advise the respondent that he should produce medical witnesses to give evidence to support his contentions. When the matter resumed, the respondent had brought medical records concerning his Asperger’s syndrome, Exhibit 12, which I have read. Despite valid objection, the magistrate admitted into evidence the medical records.
  1. [18]
    The police officer than cross-examined the respondent on the records, alleging they tended to show he became aggressive and had difficulty following instructions and directions, although the respondent disputed this. He accepted he had been living in one place for four years, but denied he was unassisted. He accepted the police had given him a direction and the requirement to provide the specimen of breath at the roadside, and said that he understood this. He accepted the records produced to the court referred to Asperger’s at the age of 15. He accepted he was now 29. He accepted he had a full-time job and had seen a doctor 18 months prior, and accepted he had been driving since he was 18 and was capable of driving by himself.
  1. [19]
    He accepted he had been given a requirement at the police station to provide a specimen of breath, but alleged he did provide it as directed, but it happened to not be enough for the machine to obtain. He denied he had been sucking on the end of it and alleged he was compliant at all times. He understood the directions of the police and accepted he had been given four opportunities, but said he should have been given more. He accepted he had blown up a balloon before.
  1. [20]
    In final submissions, the prosecution submitted the elements of the offence had been proved and the respondent should be convicted. It was submitted there was no substantial reason for the respondent’s failure to provide the specimen. The respondent, in submissions, submitted he did not clearly comprehend the details of the direction and denied he sucked back on the mouthpiece. Clearly enough, credibility issues were involved here.
  1. [21]
    The magistrate dismissed the charge against the respondent as she found that the respondent was lawfully requisitioned to provide the specimen, but she found there was a reason of a substantial character for the respondent’s failure to provide the specimen, namely, miscommunication with the police attributed to the police officer for failing to properly indicate when he should commence blowing, and his suffering from Asperger’s syndrome and autism.
  1. [22]
    The appellant submits there was no evidence that the respondent was suffering from autism and, over valid objection, the respondent tendered documents demonstrating he had been diagnosed with Asperger’s syndrome in 1999, which it submits was hearsay.
  1. [23]
    It also submits there was insufficient evidence to establish any connection between the medical condition and the requirement to follow police directions. It submits the magistrate erred in admitting the medical documents and erred in finding the respondent did not properly understand what was required of him. It submits that the magistrate’s findings of fact contained errors such that the dismissal should be set aside and, on a proper view of all of the evidence, the respondent should be convicted.
  1. [24]
    In oral submissions today, Mr Hanna repeated and relied on his submissions. He particularly relied on an error he alleges the magistrate engaged in; that is, a finding that the printout, exhibit 8, contradicted the evidence given by Sergeant Allanson. He submits that the magistrate misunderstood that evidence. He further, with respect to ground 2, submits that the magistrate failed to decide the real issue; that is, whether there was compliance with the direction, and it was submitted that one would find there was not, particularly relying upon his acceptance of his understanding of the requirements.
  1. [25]
    The respondent, on the other hand, in his submissions, submits he understood the requirement, tried to comply with it, but submits ultimately it is the detail of the requirement he had difficulties with. He submits that it was the nature of the direction concerning the blowing which is what he did not fully understand, and he said that the medical condition is a relevant consideration here. He also, contrary to the Crown submissions, submitted that Sergeant Allanson did contradict himself, and the magistrate was not in error in her findings. He submits that he was aware of the drink driving guidelines and submits that he was never given a proper opportunity to provide a sample. Ultimately, he submits that the appeal should be dismissed here.
  1. [26]
    It is my view that the appellant’s central contentions here should be accepted. Firstly, I agree that the magistrate should not have admitted the documents concerning the diagnosis of Asperger’s syndrome. It was necessary for the respondent to have called witnesses as to this matter. Secondly, on the state of the evidence, there was insufficient evidence to establish a connection between the Asperger’s syndrome in 1999 and the mental state in June 2014. However, of course, if medical evidence had been called, the position in that regard might be different.
  1. [27]
    I also find the magistrate erred in finding the evidence of Sergeant Allanson was contradicted by the certificate printed out by the breath analysis machine. The audio recording shows the machine gave auditory feedback in relation to the printout and it is also apparent from the conversation between Sergeant Allanson and the respondent as to what occurred. I consider that as a crucial material error here.
  1. [28]
    The question is, here, having regard to the errors that I have found, what should happen. Should the court deal with this charge itself or should the matter be remitted for trial to the Magistrate’s Court?
  1. [29]
    Section 80(11) of the TORUM Act provides:

If a police officer makes a requisition under subsection (8), (8C) or (9), in relation to a person and the person fails to provide as specified in this section –

  1. (a)
    a specimen of the person’s breath for analysis by a breath analysing instrument;

each of the following applies:

  1. (d)
    the person is guilty of an offence that is taken to be an offence against the appropriate provision of section 79(1);
  1. (e)
    the person is liable to the same punishment in all respects.

(11A)  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.

  1. [30]
    In my view, in this case, the elements set out in section 80(11) of the TORUM Act were established beyond reasonable doubt. The question remains whether the respondent, on the balance of probabilities, satisfied the court of the matters mentioned in section 80(11A) of the TORUM Act.
  1. [31]
    In Murphy v Porter; ex parte Murphy [1985] 1 Qd R 59, it was held that a reason of a substantial character means something more than reasonable excuse.  Andrews SPJ, at page 68, with reference to Fischer v Douglas; ex parte Fischer [1978] 2 Qd R 27 said:

It must be a reason so weighty that effect ought to be given to it notwithstanding the inroads upon individual rights resulting from the enactment of section 16A and notwithstanding that the legislation may compel self-incrimination. The phrase used in s 16A(11)(b) is not ‘reasonable excuse’ but ‘reason of a substantial character’.  The use of the phrase does not make non-compliance with a requisition which is duly made any easier to justify or excuse.  The broad intention is to make the taking of a breathalyser test compulsory in given circumstances.  I would think that, as a matter of ordinary usage, ‘reason of substantial character’ means something more than ‘reasonable excuse’.”

  1. [32]
    In Wilcox v Doolan (1990) 13 QLR 50, it was held that a defendant’s physical inability to blow sufficiently to provide unaltered specimen of breath may be a reason of a substantial character for failing to provide within the meaning of section 16A(11)(b) of the Traffic Act 1962.  Ordinarily though, as in that case, to prove such a defence, medical evidence would need to be called that there was a physical reason for the inability to provide such a sample. 
  1. [33]
    In this case the respondent was self-represented. He was not advised to bring medical witnesses to the court. In my view, there are credibility issues involved here, as identified in argument with Mr Hanna and the respondent. In my opinion, it would not be in the interests of justice for this court to convict the respondent on the state of this material without providing him the opportunity to prove any defence he may choose to run. In those circumstances, it is appropriate to order a new trial.
  1. [34]
    For the reasons I have given, my orders are:
  1. The appeal is allowed;
  1. The order for dismissal of the charge is set aside;
  1. The matter is remitted to the Brisbane Magistrate’s Court for a rehearing before a different magistrate;
  1. No order as to costs.
Close

Editorial Notes

  • Published Case Name:

    Lea v Snajdara

  • Shortened Case Name:

    Lea v Snajdara

  • MNC:

    [2016] QDC 353

  • Court:

    QDC

  • Judge(s):

    Smith DCJA

  • Date:

    15 Dec 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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