QPS v Bergstrom[2016] QMC 15

MAGISTRATES COURTS OF QUEENSLAND

1. [1]
   Bo Lennart Andres BERGSTROM is charged with the offence that on the 27 March 2015 at Rockhampton in the Magistrates Courts District of Rockhampton in the State of Queensland he was guilty of an offence against section 79(1) of the Transport Operations (Road Use Management) Act 1995 in that he upon a requisition duly made by Senior Constable Mervyn Hollier a police officer under sub-section (8) of the section 80 of the said Act failed to provide as prescribed a specimen of his breath for analysis.
2. [2]
   Mr Bergstrom says he has a number of medical conditions at that time that caused him not to supply a specimen of breath as directed.
3. [3]
   The Prosecution has called Senior Constable Mervyn Hollier and Sergeant McDonald Duus to give evidence on their behalf and the defence called the Defendant, Mr Bergstrom, and Doctor Winston Nicolaai.
4. [4]
   The burden of proof lies with the Prosecution to prove each and every element of the offence and the standard of proof is beyond reasonable doubt.
5. [5]
   The Defendant does not have to give evidence, or call other people to give evidence on his behalf, or otherwise produce evidence. That he has done so does not mean that he assumed a responsibility of proving his innocence. The burden of proof has not shifted to him. His evidence is added to the evidence called for the Prosecution. As I have said, the Prosecution has the burden of proving each of the elements of the offence beyond reasonable doubt, and it is upon the whole of the evidence that I must be satisfied beyond reasonable doubt that the Prosecution has proved the case before the Defendant may be convicted.
6. [6]
   In relation to this particular matter I have, during the course of the trial, had an opportunity of listening to and observing the demeanour of the witnesses that have given evidence.  This has assisted me in assessing credibility, although I accept that there is a need to keep the appearance and demeanour of a witness in perspective and the weight of that aspect in the light of the other more objective considerations.

The Law

7. [7]
   Section 80(8) of the Transport Operations (Road Use Management) Act 1995 (TORUMA) provides that any person who has been arrested for drink driving under section 79 of the Act for the purpose of providing a breath specimen, can be required to provide a specimen of their breath for analysis by a breath analysis instrument.
8. [8]
   Section 80(8F) of TORUMA sets out the manner in which a sample of breath is to be provided:

“Providing a specimen of breath

(8F) A person who is required under subsection (8) or (8C) to provide a specimen of the person’s breath for analysis must do so, when directed by the doctor or authorised police officer operating or who is to operate the breath analysing instrument, by placing the person’s mouth over the mouthpiece of the instrument and blowing directly and continuously (and without escape of breath otherwise) through that mouthpiece into the instrument until told to stop by the doctor or authorised police officer operating the instrument.”

9. [9]
   The Defendant is charged under section 80(11) of the Transport Operations (Road Use Management) Act 1995 in failing to provide a specimen of breath and the section relevantly provides:

“80 Breath and saliva tests, and analysis and laboratory tests

Guilt of offence and liability for failing to provide specimen

(11) 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 prescribed in this section— (a) a specimen of the person’s breath for analysis by a breath analysing instrument; or …; 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).”

10. [10]
    Section 80(11) of TORUMA does away with the need of the Prosecution to prove, and the Court to find, the existence of the facts of the Defendant having driven a motor vehicle on a road under the influence of liquor. The punishable act in respect of an offence under section 80(11) is the failure to meet a requisition made, under a relevant provision, for a sample of breath saliva or blood, for analysis and is therefore necessarily a different act to an act of driving, attempting to put in motion or being in charge of a motor vehicle, tram, train or vessel whilst under the influence of liquor, as is punishable by section 79(1), and therefore section 16 of the Code does not apply.^[1]

11. [11]
    The requisition and failure to provide is evidenced by a Failure to Provide Specimen of Breath Certificate issued under section 80(15B) of TORUMA by the authorised police officer operating the breath analysing instrument. The effect of the certificate is that on production in any proceeding it is accepted as evidence:

1. (a)
   that a requisition to provide a specimen of the person’s breath for analysis or saliva for saliva analysis was made to the person concerned by the police officer named in the certificate as the police officer making the requisition; and
2. (b)
   that the person concerned failed to provide as prescribed by subsections (8) to (8L) a specimen of breath or saliva when required; and
3. (c)
   that an approved breath analysing instrument or saliva analysing instrument was available at the place where and at the time when the requisition was made for the purpose of analysing a specimen provided in accordance with the requisition;

and until the contrary is proved is conclusive such evidence.^[2]

12. [12]
    Periods of disqualification of a person’s driver’s licence for offences committed against section 79(1) are provided for in section 86 of TORUMA.
13. [13]
    Section 80(11A) of the Act provides a defence to the offence where a person is able to satisfy the court that:

1. a)
   the requisition was not lawfully made;
2. b)
   by reason of the events that occurred, he was incapable of providing the specimen; or
3. c)
   there was some substantial reason for his failure other than a desire to avoid providing incriminating information.

14. [14]
    The onus of proof for this defence is on the Defendant and the standard of proof is the balance of probabilities: Clifford v Torpie; Ex parte Clifford (1987) 6 MVR 408; Willcox v Doolan (1990) 13 Qld Lawyer Reps 50; Zwann-Ward v Barran [2005] QDC 376; Meyer v QPS [2015] QDC 70.
15. [15]
    For the purpose of section 80(11A) a reason of substantial character means more than “reasonable excuse”, the reason may be personal to the person refusing to give a specimen as the substantiality but its substantiality is a matter for judgment by the court: Murphy v Porter, ex parte Murphy (1985) 1 Qd R 59. However a defendant may not be allowed to act upon a reason which has for its basis a judgment, or opinion, as to his guilt or innocence of an offence where the foundation has been laid for them being properly required to supply a specimen of their breath: Fischer v. Douglas, ex parte Fischer [1978] Qd R 27.
16. [16]
    For example in Willcox v Doolan (1990) 13 Qld Lawyer Reps 50, the Appellant was convicted of failing to supply a specimen of his breath for analysis when a police officer directed him to do so. Evidence of physical deformity prevented the Defendant from blowing directly and continuously into mouthpiece of the machine as stipulated by the legislation. Morley DCJ found that the Defendant’s physical inability to blow sufficiently to provide an unaltered specimen of breath is a reason of substantial character for failing to provide a specimen of breath within the meaning of the Act.
17. [17]
    In that case the appellant gave evidence and his evidence showed that he had a speech defect. There was also evidence that the Appellant had problems blowing up balloons because he had to stop often, because of his affliction, to regain air. The Appellant swore positively that on each occasion that he was required to blow into the instrument he endeavoured to follow the directions, that he did so, and he could not have done what was required of him any better than that which he, in fact, did.
18. [18]
    Expert evidence was also obtained from an experienced medical practitioner who was asked to remain in court to observe and hear the Appellant while the Appellant gave evidence and was then called and examined on whether he could furnish an opinion on the issue whether there was any reason why the Appellant would have been unable to blow in a way required to give the sample required of him. The essence of the medical practitioners evidence is set out on page 58 of the report:

“Well, I honestly wouldn’t know and because … I mean its quite obvious he has a speech defect. There must be some mechanical explanation to his defect. As to whether the particular defect would in any way obstruct the outflow of air really would require the opinion of a specialist in that field … Well, all speech impediments will fluctuate because practically all speech impediments will be affected by the nervous system … so that will fluctuate from time to time … [T]he machine doesn’t really accept the specimen until its getting a constant supply of unaltered air …”

19. [19]
    That evidence was held to support the factual existence the Appellant’s deformity prevented him from blowing directly and continuously into the mouth piece of the machine.
20. [20]
    In a case that has some similarities, Edwards v Billy (1992) 16 MVR 149, a motorist was charged with failing to comply with a requirement to provide a sample of breath for analysis against the Road Traffic Act 1974 (WA) section 67(2)(a). He refused to provide the sample for the reason that he had asthma and might bite his tongue if he blew into the instrument. The magistrate dismissed the complaint on the ground that for the purpose of section 67(5) the motorist had a “substantial reason” for failing to comply with the requirement. The prosecution appealed.
21. [21]
    It was held allowing the appeal that in the circumstances of the case there was insufficient evidence to show that the motorist had asthma or that he might have bitten his tongue. The motorist did not have a “substantial reason” for failing to comply.
22. [22]
    I specifically note from that case Commissioner Ng said: “The authorities are clear that the fact that a person claims to be suffering from asthma (or for that matter any other condition) is not evidence that he has asthma (or any other condition): Clifford v Torpie  (1987) 6 MVR 408 at 411 (Qld).”
23. [23]
    In Torpie a motorcyclist failed to provide a specimen of his breath for a roadside breath test. He was arrested and told the arresting officer that he was suffering slightly from asthma but was not injured or ill. At the police station he was required to provide a specimen of his breath for analysis but failed to supply a specimen. He was charged with failing to provide a specimen of his breath for analysis against the Traffic Act 1949 (Qld) section 16 a (8)(a). At the close of the prosecution case the motorcyclist contended that there was no case to answer and the magistrate upheld this submission.
24. [24]
    Thomas J at 411 indicated:

“The behaviour of the defendant was not such as to display any symptoms that would necessarily lead the police officers to any feeling of concern in relation to his medical condition, and it would not, in my view, have been a reasonable exercise of discretion to have excluded the evidence on that basis. … All that was shown in the prosecution case in this respect was that a claim had been made which, if true, could support such a defence. The making of such a claim may be substantially strengthened by showing that it was true in fact, and that the difficulty was substantial and not trivial.”

25. [25]
    I also note the following cases.
26. [26]
    In Zwann-Ward v Barran [2005] QDC 376 a magistrate acquitted the Defendant of failing to supply a specimen of breath as one within the exculpatory provisions of section 80(11A) where the Defendant in his evidence, and confirmed “to an extent by a Doctor Duncan”, 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.
27. [27]
    The Magistrate 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.

28. [28]
    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”.
29. [29]
    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.
30. [30]
    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.
31. [31]
    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.
32. [32]
    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.
33. [33]
    Dodds DCJ held at [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.”

His Honour 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. His Honour dismissed the appeal.

34. [34]
    Recently in Meyer v QPS [2015] QDC 70, Mr Meyer was convicted after a summary trial of one count of failing to provide a specimen of breath for analysis and 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.

35. [35]
    The facts indicate Mr Meyer was intercepted at a random breath testing static interception site where a specimen of breath was obtained by alcometer. 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 by a breathalyser. The prosecution case was that despite being given four opportunities, he failed to provide a specimen of breath to enable analysis to be performed by the machine and a certificate was issued to that effect by the operator of the instrument at the time. A further alcometer test was performed and at trial the prosecution did not rely on that test but relied on the fact the tests were able to obtain results from those alcometer tests and where expert evidence was given that the effect that the amount of breath required to obtain a result on an alcometer test was greater than the amount required to obtain a result using a breathalyser. This was used as evidence at the relevant time the appellant was not physically incapable of providing sufficient breath to enable a specimen of breath to be tested using the breathalyser.

36. [36]
    Specifically the Prosecutor called 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, and noted that that covered three types of disease, emphysema, chronic bronchitis and chronic obstructive asthma. It was not possible to tell from the letter what the cause was in this case. 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. 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.

37. [37]
    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. 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. 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.

38. [38]
    This was after the first date of trial the Appellant’s doctor was not available to give evidence and the court heard evidence from the arresting officer and the breathalyser operator.

39. [39]
    The trial was adjourned with directions given that Appellant provide a detailed written report dealing with his condition which may impact upon his capacity to provide a specimen of breath for analysis. That was not complied with and nor was any medical evidence arranged, but he did provide an x-ray report he had obtained.

40. [40]
    McGill DCJ indicated 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.

41. [41]
    On appeal fresh evidence was allowed from the Appellant’s 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.

42. [42]
    McGill DCJ held 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.

43. [43]
    The appeal was dismissed.

Evidence

44. [44]
    Senior Constable Mervyn Hollier testifies he is officer in charge of Marmor Police Station.

45. [45]
    On Friday, 27 March 2015 he was conducting patrols on the Bruce Highway between 5am and 1pm.

46. [46]
    At 6.48am he intercepted a Mazda utility registration number 082RFM driven by the Defendant, Bo Bergstrom, travelling south on the Bruce Highway at a speed of 116 kph at Bajool.
47. [47]
    He went up and spoke to the driver and observed a lone occupant; smelt liquor and the driver had slow movement with bloodshot eyes.
48. [48]
    Hollier performed a roadside breath test which indicated a blood alcohol concentration of .155% and arrested the Defendant for driving under the influence of liquor and transported him to the Rockhampton Police Station for the purposes of a breath analysis on a breath analysing instrument.
49. [49]
    Hollier testifies it took two attempts before he provided at the roadside.
50. [50]
    At 7.20am at the Rockhampton Police Station he asked Mr Bergstrom a number of questions which Bergstrom answered and entered into his police notebook. These questions included whether Bergstrom had any medical conditions and whether on any medication and Bergstrom indicated he had a medical condition and was on medication.
51. [51]
    Hollier indicated at the Police Station Bergstrom was intolerant and a little belligerent and at times couldn’t understand what he was saying. He also noticed he had a strong accent.
52. [52]
    He introduced Sergeant McDonald Lawrence DUUS the operator of the breath analysing instrument and heard Duus ask Bergstrom a number of questions.
53. [53]
    Hollier gave a requirement and Duus gave the required direction and Bergstrom failed on three occasions to provide a specimen of breath that could be analysed by the breath analysing instrument.
54. [54]
    He told Bergstrom during one attempt to seal his lips around and blow as he was not complying with the direction and Duus had a conversation with him after each attempt. He says Bergstrom was instructed by Duus to seal his lips around the mouthpiece to stop air escaping. This happened 3 times.
55. [55]
    Hollier says it was obvious to him that Bergstrom was not sealing his lips around the mouthpiece and blowing continuously.
56. [56]
    At 7:51am Duus wrote out a fail to provide certificate.
57. [57]
    Duus gave Hollier and Bergstrom copies of the certificate.
58. [58]
    Hollier took Bergstrom to another part of the Police Station and issued him with a Notice to Appear and an Immediate Suspension of his Driver’s licence then took Bergstrom back to the BP Marmor as Bergstrom requested.
59. [59]
    I note in re-examination Hollier testifies that Bergstrom, at the roadside, made no mention of any reason why he could not supply a specimen of breath.
60. [60]
    Sergeant McDonald Duus testifies on 27 March 2015 he was shift supervisor at Rockhampton Police Station on a 6am and 2pm shift.
61. [61]
    He is an approved operator of a Lion Intoxilyzer 8000 breath analysing instrument under section 80(8G) of TORUMA. A delegation of authority was tendered and is Exhibit 2.
62. [62]
    At about 7:30am he spoke with Hollier.
63. [63]
    He then went through a series of questions as to his suitability to provide a specimen of breath for analysis with Mr Bergstrom and tested the instrument.
64. [64]
    Sergeant Duus recorded the conversation, which he subsequently had burnt to a cd which is in evidence as Exhibit 3.
65. [65]
    The recording indicates Hollier introduced Duus who went through a series of questions with Bergstrom including:

Are you suffering and illness or injury? Had a stroke last year. 2 strokes last year and had a seizure.

Are you asthmatic, diabetic or epileptic? No

Taking any drugs in last 24 hours? I don’t know – for my heart my stroke. Take 4 tablets daily

He does not know what they are.

Any reason why can’t supply specimen of breath on machine? I got emphysema so I don’t know.

66. [66]
    Sergeant Duus indicated there should be an endorsement on Bergstrom’s driver’s licence indicating he could not supply a specimen of breath for analysis by a breath analysing machine but there was not.
67. [67]
    Bergstrom when asked indicated he did not have a current medical certificate with him that indicated he could not provide a breath test although he might have one in Sweden.
68. [68]
    The recording also indicates the requirement given by Hollier to Bergstrom to give a specimen of his breath for analysis and Sgt Duus would operate the machine.
69. [69]
    Then it can be heard Sgt Duus giving the direction to Bergstrom who replies “Yeah, but have a cold and emphysema. I don’t know if I can do this …”
70. [70]
    He again said he wanted to do a blood test and at one stage offers to pay for it.
71. [71]
    On the first attempt he failed. Duus can be heard saying Bergstorm did not blow through the tube. Bergstrom said he had a cold and a doctor’s certificate and willing to do a blood test.
72. [72]
    Sgt Duus tells Bergstrom he is blowing around the tube as he could feel air of his breath on his hand as he was blowing and therefore not blowing through the tube as directed. He also says he had asked Bergstrom if he had a current medical certificate and he said no. Bergstrom says he had one in Sweden and asked about a blood test as it would be more accurate.
73. [73]
    A second direction is given by Duus to Bergstrom and during the attempt Duus says Bergstrom is not blowing hard enough and fails.
74. [74]
    Duus asks Bergstrom if he intends to supply a specimen of breath as directed and Bergstrom again says he will do a blood test as more accurate and also says he has a cold and emphysema. Hollier can be heard to say “seal your lips and blow”. Bergstrom says he has a cold and emphysema.
75. [75]
    On the third attempt Duus gives the direction and can be heard to say blow harder. Duus can be heard then to say the machine indicates insufficient blowing pressure and Bergstrom again fails to provide.
76. [76]
    In his testimony, Duus indicates Bergstrom’s speech was slightly slurred despite his accent and could smell alcohol on Bergstrom. He noted his stance was unremarkable although Bergstrom was seated most of the time when he saw him. He believes Bergstrom was moderately intoxicated. He noticed nothing unremarkable and nothing out of the ordinary with his breathing.
77. [77]
    Bergstrom did not appear to Duus to be short of breath and Duus did not observe anything to indicate a genuine reason why Bergstrom was unable to provide a specimen of breath to satisfy the breath analysis.
78. [78]
    After failure, Duus issued a certificate and gave the original to Hollier and a copy to Bergstrom.
79. [79]
    In cross examination it was put there is a difference in providing a specimen of breath at roadside than at the police station and a different approach required. Duus indicates only takes matter of seconds, 3 .5 to 7 seconds as depends how hard blowing but Duus says he does not know what pressure is actually required.
80. [80]
    He says he believes the reason why Bergstrom failed was because of insufficient blowing pressure.
81. [81]
    Dr. Winston Ferdinand Nicolaai testifies Mr Bergstrom has been a patient at his surgery (Port Curtis Medical Centre) since June 2010.
82. [82]
    He is being treated for chronic obstructive airways disease (COAD) and emphysema and then for atrial fibrillation and a cerebral vascular accident.
83. [83]
    He testifies there is no difference between COAD and COAP (chronic obstructive pulmonary disease).
84. [84]
    He indicates the atrial fibrillation is in relation to an irregular heart beat and the cerebral vascular accident is in relation to a stroke that occurred sometime in 2014.
85. [85]
    He is also being treated for heart disease and been exposed to Ross River fever.
86. [86]
    He has been diagnosed and treated for COPD since before 16 June 2010.
87. [87]
    Dr Nicolaai evidence is that a chest x-ray was performed in November 2010 and showed a markedly expanded lung volume which fits in with COPD and emphysema plus a large aller cavity on left side of the lung which you see with emphysema.
88. [88]
    He explains that emphysema is a progression of COPD – a worsening of condition of COPD over time based on x-ray and clinical diagnosis and indicates there is no difference in treatment but is based on severity of the condition.
89. [89]
    The medication Bergstrom is on for COPD and emphysema is Spiriva and Sdreti and uses Ventolin caps as necessary if he gets flare ups.
90. [90]
    He takes Bisoprolol for his atrial fibrillation; Diovan for diabetes and Prodaxa, a blood thinning agent for the stroke.
91. [91]
    Dr Nicolaai testifies COPD causes shortness of breath and its severity depends on the degree of exertion and his condition at the time and fluctuates with times more shortness of breath and other times less so than others.
92. [92]
    Any colds or infections worsen the conditions as well as being stressed out.
93. [93]
    The doctor indicates Mr Bergstrom’s atrial fibrillation is reasonable controlled but can cause shortness of breath and heart palpitations and condition limits amount of physical exertion.
94. [94]
    As to the fluctuations the doctor states again can cause more trouble breathing than others as different triggers including physical exertion. This means breathing deeper and condition impedes ability to breathe out under force as exhaling is more of a problem.
95. [95]
    As to his heart disease and stroke, Mr Bergstrom had a stroke while he was away and saw him just for a repeat prescription. He had a heart disease and atrial fibrillation in 2012.
96. [96]
    As to the stroke, the doctor testifies its effect depends on the type of stroke and where you get it as effects various parts of the body and gave examples– some effects facial expression some effects limb strength, memory. This depends on what part of the brain the stroke was as to what parts of the body are effected.
97. [97]
    A stroke may effect facial expression but depends as not all people that have stroke affected. Stroke can affect open closing eyes, drooping of mouth, tongue affected but here he cannot say. He gives evidence of muscle weakness side of the face difficulties blowing, swallowing or can’t close mouth enough.
98. [98]
    The court asked if he saw any of this in Mr Bergstrom and the Doctor indicated the only note was in relation to a cerebral vascular accident whilst he was away. He saw Bergstrom in 2011, 2012 and then earlier this year. He had no specific notes on symptoms around the cerebral vascular accident.
99. [99]
    As to his breathlessness as a result of COPD and emphysema  it restricts the ability to provide a long continuous breathe of air but depends on severity and if had any flare ups which restricts his peak respiratory flow. Also how long he can sustain a long forceful exhalation can make him cough a lot lots of times because of the force needed to blow. See that when people do lung function test becomes problem for them.
100. [100]
     The doctor indicated any cold or chest infection could aggravate Mr Bergstrom’s condition as well more you try to exhale. Mr Bergstrom has not undergone a lung function test. The court asked ability Mr Bergstrom’s ability to provide said I can’t see this or that as not there when he had supply but understand it can be a problem for him in his current condition but can be a problem to provide repetitive breath analysis.
101. [101]
     The court did asked if he could comment on his ability to provide first sample at Police Station and the Doctor couldn’t specifically comment but could be anxious and he believes one at station different at roadside different with one at police station more technical not only in result but in way done and roadside easier to do.
102. [102]
     In cross-examination he indicates he saw Bergstrom first in June 2010 and did not see him between June 2012 and January 2015. He confirms he never performed a lung function test and could not comment on Bergstrom’s lung capacity or examined his breathing. He indicated the severity of COPD could be assessed by lung function test.
103. [103]
     He explains in cross-examination about expanded lung volume as a breath is breathed all out.
104. [104]
     He also indicates Bergstrom has been on medication since 2010 to aid breathing. He would cough and wheeze if not well and a large amount of medication would affect his condition.
105. [105]
     He again confirms he would need more information before he could comment on his ability to provide. When asked if could provide for 3-7 seconds he could not comment but thought 3 seconds not a problem but needed more information as to many variables.
106. [106]
     Bo Bergstrom’s evidence is that on 27 March he was pulled up for speeding, the second time he managed to blow it in, got arrested and was taken back to the police station.
107. [107]
     He testifies he didn’t refuse to blow and tried his hardest.
108. [108]
     He also indicates he is deaf and that’s why he speaks loudly.
109. [109]
     He indicates he has Bell’s palsy.
110. [110]
     At the police station he did not feel well.
111. [111]
     He indicates the previous day someone arrived his place, he took them up to Rockhampton and booked in and stayed the night (at Southside Caravan Park); bought rum, had 3 rums is all he can remember; woke up about 1pm and found $350 missing; rang police; he was intoxicated but thinks someone put something in his drink.
112. [112]
     He says at the police station he did his best to supply but failed 3 times.
113. [113]
     In cross-examination he said he tried to seal his mouth around mouthpiece but has problems because of his droops.
114. [114]
     He saw Dr Nicolaai in January 2015 only to get tablets.
115. [115]
     He came back to Australia from Sweden on 28 November 2014 and was in Sweden for 6 months.
116. [116]
     He says he has Bell’s palsy but has no problems with a straw. He says he is not able to blow long enough and hard enough but accepts police told him how to provide.
117. [117]
     He knew he would be over the limit.
118. [118]
     When asked why he does not have a certificate he answered he did not think he needed one. He said the roadside breath test was not easy when he was able to provide.

Findings

119. [119]
     I make the following findings.
120. [120]
     Bo Bergstrom lives at 178 Wallaby Road, Mount Larcom. On 26 March 2015 someone came to his property and he drove them back to Rockhampton and he stayed the night at the Southside Caravan Park at Rockhampton. He has bought a bottle of rum and had at least 3 drinks. He woke up at 1pm and found $350 was missing and called the police.
121. [121]
     He was returning to Mount Larcom south on the Bruce Highway the morning of 27 March 2015 and at 6:48 he was stopped by Senior Constable Hollier on the Bruce Highway at Bajool for speeding in his Mazda utility. He was required to undergo a roadside breath test and on the second occasion blew .155%.
122. [122]
     Hollier then arrested Bergstrom and transported him to Rockhampton Police Station for a breath test on a breath analysing instrument.
123. [123]
     At the Rockhampton Police Station, Sergeant Duus was introduced to conduct the breath test on a breath analysing instrument. Sergeant Duus went through a series of questions with Mr Bergstrom who at times indicated he had a medical condition and suffered COPD and had a cold, and also had had a stroke.  He was on medication for these ailments.
124. [124]
     Mr Bergstrom requested at various times for a blood test instead of a breath test and even offered to pay at one stage.
125. [125]
     After Sgt Duus completed the questions and preparing the breath analysing instrument, Hollier gave a requirement and Duus gave directions as required by the TORUMA.
126. [126]
     Mr Bergstrom failed the test and two others. He was not sealing his lips around the mouthpiece and blowing hard enough for the breath analysis instrument to analyse his breath.
127. [127]
     Sergeant Duus, who is an authorised officer to operate the machine, issued a Fail to Provide Specimen of Breath Certificate and gave copies to Hollier and Bergstrom.
128. [128]
     Bergstrom was then charged with failing to supply specimen of breath for analysis.
129. [129]
     Given the section 80(15B) certificate has been tendered in evidence, I am satisfied the prosecution have proven each element of the offence beyond reasonable doubt.

Discussion

130. [130]
     There is no dispute about date, time and place. Nor is there a dispute whether a requisition was made or a direction given by an authorised officer to Mr Bergstrom to provide a specimen of breath for analysis by a breath analysing instrument its operation or that the instrument was faulty or malfunctioned.
131. [131]
     I am of the view that Senior Constable Mervyn Hollier and Sergeant McDonald Duus gave forthright and frank evidence. Whilst there were some minor inconsistencies in their evidence which one expects, I found them to be both credible and reliable in their evidence.
132. [132]
     The evidence of Bo Bergstrom was at times hard to understand nor coherent. He comes across as a bit intolerant although I accept he may come from a non-English speaking background and has difficulty hearing.
133. [133]
     The evidence of Dr. Nicolaai did not assist the Defendant. Dr. Nicolaai was unable to attest as to whether or not on the day in question the Defendant was able to provide a specimen of breath. He also indicated he had no notes of any facial palsy that would support any reason that prevented him from blowing directly and continuously into the mouth piece of the instrument.
134. [134]
     The issue is whether the Defendant has a defence under section 80(11A) of TORUMA that there was some substantial reason for his failure other than a desire to avoid providing incriminating information – the reasons being:

1. a)
   whether because of his stroke he cannot properly seal his lips around the mouthpiece and therefore could not provide a sample of breath; or
2. b)
   because of his chronic obstructive pulmonary disease (COPD)^[3] which describes, as I understand, a number of lung conditions that are long term including emphysema which causes shortness of breath and reduce the normal flow of air through the airways and aggravated by a cold, he could not provide.

135. [135]
     The Defendant’s evidence was that he was physically unable to give a specimen of breath as he did not have the lung capacity.
136. [136]
     The difficulty I have with ground b) to establish a defence is that after hearing the recording between Bergstrom, Hollier and Duus of the breath analyst instrument test at the Police Station, I found it difficult to detect any compromised breathing e.g. coughing, gurgling or wheeze. If he had a breathing difficulty, it would be reasonable to expect symptoms which would be apparent to an observer at the relevant time.
137. [137]
     Whilst Mr Bergstrom may have been anxious, as anyone would be, it does not come across on the recording and the Police officers made no observation of this or any other problems for that matter about Mr Bergstrom’s inability to provide.
138. [138]
     There is no evidence as to how incapacitated he was. No physical incapacity was particularly noticeable when he gave evidence.
139. [139]
     Further, Bergstrom apparently was able to provide at the roadside test performed by Hollier. Whilst there is no evidence of which test, roadside or police station, is the easier or more difficult unlike in Meyer’s case, the fact Bergstrom was able to provide a specimen of his breath the second time at the roadside shows some support for the view that he could provide at the police station. There is no real explanation as to why he could perform one and not provide the other, especially after listening to the recorded conversation at the police station.
140. [140]
     It would appear if Mr Bergstrom, when required to provide a specimen of breath for analysis, produced a medical certificate pursuant to section 80(8E) of the TORUMA excusing him from providing a specimen of breath, then Hollier could not continue to require a specimen of breath from Mr Bergstrom. He did not have one.
141. [141]
     As to ground a), it is not disputed the Defendant has had a stroke in 2014 when in Sweden. Dr Nicolaai indicates, if a stroke occurs and blood flow can’t reach the region that controls a particular body function that part of the body won’t work as it should. Dr Nicolaai indicates the effects of a stroke depend primarily on the location of the obstruction and extent of brain tissue effected. Every stroke is different and each person affected by stroke will have different problems.
142. [142]
     The Defendant indicates he has Bell’s palsy. Dr Nicolaai provides no diagnosis of this nor any evidence relating to Bergstrom having Bell’s palsy or any other type of palsy.
143. [143]
     I am not sure who diagnosed Bergstrom with Bell’s palsy or whether it is a self-diagnosis. Other potential cause of facial paralysis can be a stroke as attested to by Dr Nicolaai.
144. [144]
     No palsy was evident from my observations when he gave evidence and gave a demonstration at one stage of taking a deep breath and exhaling and appeared to me to be no discernible facial palsy. If he has or had Bell’s palsy, to what extent is not particularly apparent.

Conclusion

145. [145]
     Mr Bergstrom claims he has a reason of substantial character for failing to provide at the Rockhampton Police Station.
146. [146]
     Persons may have a “reasonable excuse of a substantial character” for failing to provide a breath test sample, which would mean they should not be prosecuted. To prove the excuse is reasonable, however, the police — and ultimately the court — will often ask a person to produce medical evidence of physical or mental infirmity. This usually includes cases with drivers with respiratory problems like emphysema and severe asthma.
147. [147]
     I accept that it is not necessary in all cases for a defence under section 80(11A) to be substantiated by medical or other evidence being adduced.^[4]
148. [148]
     In truth for an excuse to be capable of being of substantial character, it must be an excuse which is related to the capacity of the person concerned to supply a sample of breath. It is not related to a belief whether or not they ought because of their personal faith or belief, to be required to supply a sample of breath. There is, in the view of this court, this very marked difference between the two positions. One depends on whether or not, for example, there is a mental or physical condition which enables them physically to give the sample. It may be in some cases that there will not be that condition. Such facts, if proved, may at least be capable of affording a reasonable excuse of substantial character for not giving the sample.
149. [149]
     It is true, as the prosecutor indicates, that if Mr Bergstrom knew he tried his hardest yet was unable to provide a specimen, he could seek to obtain a report from an expert explaining why his physical condition prevented him from providing a specimen to identify any problems Mr Bergstrom has.
150. [150]
     It is obvious the breath testing instrument has a minimal exhalation requirement before obtaining a breath sample. It would seem to follow that a person must exhale for a minimum period of time at a minimum flow rate. It is accepted that subjects with Chronic Obstructive Pulmonary Disease (COPD) may have difficulty in undertaking the tests but medical evidence is nearly always required of the impact of co-morbid respiratory illnesses and the minimum lung function of a subject to see if that meets the requirements to activate various breath test instruments.
151. [151]
     But to consider that Mr Bergstrom, because of his COPD condition, could not supply a sufficient sample of breath means I have to be satisfied that he first sealed his lips around the mouthpiece of the instrument so the instrument could attempt to measure a specimen of his breath. Section 80(8F) of TORUMA relevantly provides “ … by placing the person’s mouth over the mouthpiece of the instrument and blowing directly and continuously (and without escape of breath otherwise) …” (my emphasis).
152. [152]
     This did not occur as Sgt Duus could feel his breath on his hand when he held the mouthpiece and both officers observed Bergstrom was not sealing his lips around the mouthpiece which then allowed breath to escape from the mouthpiece.
153. [153]
     I infer, because he was able to provide at the roadside, that Mr Bergstrom was able to seal his lips around the roadside testing instrument to provide a breath sample capable of being measured by the instrument as it recorded, on the second attempt, a reading of .155%.
154. [154]
     The evidence is that Mr Bergstrom made no statement about this medical condition may affect his ability to provide a sample of breath as required until at the Police Station.
155. [155]
     Whilst the defence is that he has COPD and therefore cannot provide, I also have to consider that he had a medical condition that did not allow him to seal his lips around the mouthpiece of the breath analysing instrument.^[5]
156. [156]
     I am not satisfied on the balance of probabilities that, even if Mr Bergstrom had some type of palsy, that he was unable to provide a specimen as directed. This is because he was able to do so at the roadside, the doctor he called provides no evidence of any facial palsy, the two officers did not see anything to alert them that Bergstrom may not be able to provide as directed and Mr Bergstrom did not raise this with the officers when he was told he was not sealing his lips around the mouthpiece. The making of such a claim may be substantially strengthened by showing that it was true in fact (medical evidence), and that the difficulty was substantial and not trivial.
157. [157]
     If he did seal his lips around the device and provided a continuous breath as directed then COPD as a defence could be considered.
158. [158]
     However, the defence that Bergstrom could not provide because of COPD is not supported by any medical evidence, or by the two officers or the recorded conversations.
159. [159]
     Mr Bergstrom was difficult to deal with and desired to do a blood test. Whether that was the reason for his failing to follow the direction is more probable than not.
160. [160]
     It follows from the above reasons, he has not proven on the balance of probabilities that he has a defence of “substantial character”.
161. [161]
     I find beyond reasonable doubt that the Defendant has failed to supply a specimen of breath for analysis and the Defendant guilty.