QPS v Grace[2016] QMC 18

MAGISTRATES COURTS OF QUEENSLAND

Charge.

1. [1]
   Damien John Grace is charged with the offence that on 17 April 2016 at Nambour in the Magistrates Court District of Maroochydore 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 S D Hughey, a police officer under sub-section (8) of the section 80 of the said Act, failed to provide as prescribed a specimen of his blood for a laboratory test.

Facts.

2. [2]
   This matter proceeded as a question of law to be determined by the Court.  The following written facts^[1] were agreed as follows:

At about 11pm on Saturday the 16^th of April 2016 police from Palmwoods were conducting RBT, licence checks and Drug Tests in Margaret Street, Palmwoods when they intercepted a silver Hyundai sedan with Qld registration 866-RRQ.

Police spoke to the deft in relation to a licence issue and conducted a breath test which returned a 0.00 result.

Police then conducted a roadside drug test which returned a positive result for a relevant drug.

The deft was subsequently advised that he was detained and would be conveyed to Nambour for further test.

Enroute to Nambour police made attempts to locate an officer authorised to operate a Saliva Analysing instrument however none was available.

Police subsequently advised the deft that he would be transported to the Nambour Hospital where a blood sample would be taken.

The deft immediately advised police that he would not be providing police with a blood sample as they could only take another saliva sample.

After arriving at the Hospital the deft was interviewed with his responses recorded in an official police notebook.

During that interview the deft stated that he believed that he had some ‘mull (cannabis) the previous night through a joint but had been drinking so he couldn’t remember.

At 12.05am on the 17^th of April 2016 the deft was given a requirement to supply a sample however the deft refused to follow those directions.

The deft stated that he did not want to supply a specimen of blood because police were supposed to take a specimen of saliva.  He further stated that he hated needles, had been drinking, and had a bad experience with a tetanus needle which left him with a bruise.

Police advised the deft that if he Failed to Supply a Sample of Blood he would be charged with that offence which has a higher penalty than the drug driving offence.

The Defendant still refused to supply a specimen of his blood.

The registered nurse then completed a Failure to Supply a Specimen of Blood Certificate and the deft was served with a copy.

The deft was conveyed to the Nambour Police Station where he was served with an Immediate Drivers Licence Suspension and a Notice to Appear in the Maroochydore Magistrates Court before being released from police custody.

The deft was transported back to Palmwoods at his request.

Evidence.

3. [3]
   The prosecution case consisted of the following exhibits:

• Exhibit 1 – QP9 the agreed facts.
• Exhibit 2 – Failure to Provide Specimen of Blood Certificate.
• Exhibit 3 – Audio disc recording of process (Section 95 Certificate).

4. [4]
   The Defendant did not give evidence, or call other people to give evidence on his behalf, or otherwise produce evidence.
5. [5]
   However, the Defendant bears the onus of raising his defence^[2] that there existed a reason of substantial character for his failure to supply a specimen of his blood – on the balance of probabilities.

Prosecution Submissions on the Evidence.

6. [6]
   It is the Prosecution’s submission there is nothing in the drafting of section 80(8) of the Act to narrow the application of the section having regard to the agreed facts.  Further, when the Defendant supplied a positive test^[3], any police officer may take him to a hospital.^[4]  Therefore, it is of no relevance to the issues at law that the officer could not on this occasion conduct a further saliva test at a police station. The law is drafted in consideration of the complexities of policing a large state with limited resources.
7. [7]
   The Prosecution further submits there is no evidence to support any application of the defence provisions under section 80(11A) – “reasons of substantial character.”

Defendant’s submissions and outline of defence.

8. [8]
   The Defendant raises a defence under subsection 80(11A) of the Transport Operations (Road Use Management) Act 1995 on two grounds:

1. The requisition by the police for the Defendant to provide a blood sample at the hospital was unlawful, and;
2. The failure of the police to properly provide an authorised officer for the purpose of a second saliva test, and his ongoing willingness to comply with such a requirement was of such a “substantial character for his failure to provide the specimen of blood, other than any desire to avoid providing information that might be used in evidence”.

9. [9]
   The Defendant submits the matter involves a consideration of:

1. the statutory interpretation of section 80 of the act and the relevant provisions relating to the taking of a blood specimen; and

2. the relevant provision of the Police Powers and Responsibilities Act 2000 (PPRA) that pertains to ensure fairness and to protect the rights of persons whom the police exercise power over.

10. [10]
    The Defendant concedes that police acted lawfully up to the point where the Defendant was detained under section 80 of the Act for the purpose of a further saliva test at the police station.  That is, the Defendant contends he was at this point detained in the police vehicle under subsection (8A) only for the purposes of subsection (8)(e):

….. a specimen of saliva for saliva analysis.

11. [11]
    The Defendant submits^[5] Constable Hughey’s action was authorised as provided for in section 80(6)(c) of the Act which provides that where a person has present, a relevant drug in the saliva after a saliva test then a police officer can use necessary force to take that person to a police station for the purposes of subsections (8) to (8L).

12. [12]
    The Defendant submits, that at that point when he was informed he was to be taken to the hospital to provide a specimen of blood and not – as previously indicated, to the police station for the purpose of a saliva analysis, the lawful purpose for detaining the Defendant had then been breached, and that from that moment on, the Defendant  was detained unlawfully. 

13. [13]
    The Defendant submits that he was willing to undertake a further saliva test and therefore, that it was within his rights to refuse to submit to an unlawful assault upon his person through the drawing of blood without his consent.  This submission ignores the fact that the blood specimen could only have been taken, with the consent of the Defendant which he refused to provide.

14. [14]
    The Defendant submits the references to taking or having taken a person to hospital under subsubsections (6)(c) and (8)(c) respectively are not general provisions and are subject to the proviso: ‘authorised under this section’ – that is section 80. Therefore, such conveyances to hospital need to be authorised by one of the subsections within section 80 of the Act.       

15. [15]
    Further, the Defendant submits that subsections (8) to (8L) must be read with a view to their respective purposes and that the exercise of the police powers in taking a person to a police station or a hospital under subsection 80(6) are subject to a particular purpose drawn from subsections (8) to (8L).

16. [16]
    The Defendant submits that police erred in deciding to take him to the hospital for the purposes of a blood specimen – upon the unavailability of an authorised operator.  Further, that the error conflated the purposes of subsection (8), and in doing so change it to another purpose that did not follow on from the original purpose.  Therefore, subsection (8) would not apply to the extent of any requisition to take a specimen of blood that was not for the original purpose of his detention under subsection 8(e).

17. [17]
    The Defendant submits that subsection (8) merely reflects the three types of specimen police may require – not the circumstances of such requisitions.

18. [18]
    Further, that the express circumstances for the taking of a blood specimen are contained in a limited number of circumstances in section 80:

1. a)
   subsection (1A) insufficient specimen provided;

2. b)
   subsection (5A) a failure to submit to an initial test;

3. c)
   subsection (5B) the production of a doctor’s certificate;

2. d)
   subsections (8C) at the hospital for treatment;

3. e)
   subsection (8E) produces doctor’s certificate mentioned in 5B;

2. f)
   subsection (8L) after already requiring a person to provide a specimen, the circumstances provided therein, then (8M) applies; or

3. g)
   subsection (9) the external signs exhibited or observed are inconsistent with a negative reading.

19. [19]
    The Defendant submits none of these circumstances applied to him.

20. [20]
    The Defendant submits there are no express provisions in section 80 of the Act that allow for the taking of a blood specimen where an authorised officer under subsection (8G) is unavailable.

Law.

21. [21]
    Section 60 PPRA – Stopping vehicles for prescribed purposes.

3. (1)
   A police officer may require the person in control of a vehicle, other than a train or a vehicle being pulled by an animal, to stop the vehicle for a prescribed purpose.

3. (2)
   The person must comply with the requirement, unless the person has a reasonable excuse.

22. [22]
    Section 80 of the Transport Operations (Road Use Management) Act 1995 (the Act) provides for – Breath and saliva tests, and analysis and laboratory tests.
23. [23]
    Section 80(2) of the Act states the circumstances in which police can request a specimen of breath or saliva.

A police officer may require any person found by the officer who the officer reasonably suspects was during the last preceding 3 hours:

1. (a)
   Driving a motor vehicle, tram or train on a road or elsewhere;

To provide a specimen of breath for a breath test by the person, a specimen of saliva for a saliva test by the person, or both.

24. [24]
    Section 80(6) of the Act provide (relevantly) for the powers of police for subsections (8) to (8L).

…

If -

1. (ab)
   it appears to a police officer in consequence of a saliva test carried out by the officer on a specimen of saliva of any person that a relevant drug is present in the person’s saliva;

any police officer, using such force as is necessary, may-

1. (c)
   take the person to a police station, hospital or other place authorised under this section; or

1. (ca)
   take the person to a vehicle or vessel where facilities are available for the analysis by a breath analysing instrument of a specimen of breath or by a saliva analysing instrument of a specimen of saliva; or

1. (d)
   if the person is already at a police station, detain the person there or take the person-

1. (i)
   to such other police station as is convenient and reasonable in the circumstances; or

1. (ii)
   to a vehicle or vessel, such as is convenient and reasonable in the circumstances, where facilities are available for the analysis by a breath analysing instrument of a specimen of breath or by a saliva analysing instrument of a specimen of saliva; or

1. (e)
   if the person is already at a vehicle or vessel where facilities are available for the analysis by  a breath analysing instrument of a specimen of breath or by a saliva analysing instrument of a specimen of saliva – detain the person there or take the person-

1. (i)
   to another such vehicle or vessel as is convenient and reasonable in the circumstances; or

1. (ii)
   to a police station such as is convenient and reasonable in the circumstances for the purposes of subsections (8) to (8L).

25. [25]
    Section 80(8) of the Act provides that any person who has been arrested for an offence against section 79 of the Act:

…

may, while at a police station, vehicle, vessel, hospital or other place authorised under this section as aforesaid, be required by any police officer to provide 1 or more of the following as any police officer requires –

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

1. (e)
   a specimen of the person’s saliva for saliva analysis;

1. (f)
   a specimen of the person’s blood for a laboratory test.

26. [26]
    Section 80(8A) Detaining person mentioned in subsection (8).

A person to whom subsection (8) applies may be detained at a police station, vehicle, vessel, hospital or other place as aforesaid for the purposes of subsections (8) to (8L) by a police officer.

27. [27]
    Section 80(8B) Person may be taken to particular places for subsection (8)-(8L).

Any person referred to in subsection (8) may, for the purposes of subsections (8) to (8L), be taken:

1. (a)
   to a police station; or

2. (b)
   to a police station, vehicle or vessel where facilities are available for either or both of the following;

1. (i)
   analysing a specimen of breath by a breath analysing instrument;

2. (ii)
   analysing a specimen of saliva by a saliva analysing instrument; or

3. (c)
   to a hospital; or

4. (d)
   if there are reasonable grounds for believing that a doctor or nurse is available at any other place, to that place;

and such person may be taken to more than one of such places if the purposes of those subsections cannot be carried out or effected at a place to which the person has been first taken.

28. [28]
    The Defendant is charged under section 80(11) of the Act in failing to provide a specimen.  Relevant to this matter:

“Guilt of offence and liability for failing to provide specimen.

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—

…

3. (c)
   a specimen of the person’s blood for a laboratory test;

each of the following applies—

4. (d)
   the person is guilty of an offence that is taken to be an offence against the appropriate provision of section 79(1);

5. (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).”

29. [29]
    In my view, at that point when section 80(11) of the Act is charged it erases the onus 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, in this case – whilst a relevant drug is present.

30. [30]
    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 laboratory testing 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 a relevant drug is present, as is punishable by section 79(1), and therefore section 16 of the Code does not apply.^[6]

31. [31]
    The requisition and failure to provide is evidenced by a Failure to Provide Specimen of Blood Certificate^[7] issued under section 80(16C) of the Act. 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 blood for laboratory test 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 the subsections under which the requisition was made a specimen of the person’s blood when required;

and until the contrary is proved is conclusive of such evidence.^[8]

32. [32]
    Section 80(11A) of the Act provides a defence to the offence where a person is able to satisfy the court that:

    • the requisition was not lawfully made;
    • by reason of the events that occurred, he was incapable of providing the specimen; or
    • there was some substantial reason for his failure other than a desire to avoid providing incriminating information.
33. [33]
    The onus of proof for this defence is on the Defendant and the standard of proof is the balance of probabilities.^[9]
34. [34]
    It has been held for the purpose of section 80(11A):

“… a reason of substantial character means something more than “reasonable excuse.” The reason may be personal to the person refusing to give a specimen as to the substantiality, but its substantiality is a matter for judgment by the court.^[10]

“However a Defendant my not be allowed to act upon a reason which has for its basis, or opinion, as to his guilt or innocence of an offence under section 16 of the Traffic Act, where the foundation has been laid for his being properly required to supply a specimen of his breath.”^[11]

“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.”^[12]

Stubberfield v Wright (1998) 19 Qld Lawyer Reps 19.

The court looked at the operation of subsection (8B) under the Traffic Act 1949 as it was then.

The Defendant submitted to a roadside breath test that indicated an alcohol concentration over the legal limit.  Police then informed him that he would need to accompany them back to Charters Towers Police Station “for further testing”.  No further test was requested at the police station however, it was determined that he would be taken to the hospital for medical treatment. Once at the hospital, he was requested to provide a blood specimen to which he refused.

Held; If a requirement to provide a breath specimen pursuant to section 16A(8)(c) cannot be carried out or effected at a police station, then section 16(8)(b) authorises a police officer to take the person to hospital “for the purposes of subsection (8).”

The person must be taken to the hospital “for the purpose” of providing a specimen of breath or blood in order to found a requirement to provide a specimen of breath or blood pursuant to section 16A(8)(c).

In this case, the appellant was taken to hospital for medical treatment and therefore Wright was not authorised under section 16A(8)(c) to require a blood specimen at the hospital.

In so far as the outcome on appeal – the Defendant urges me to consider this case as analogous to his situation. 

I decline to agree as in Stubberfield, the person was at the hospital for treatment.  In this matter the Defendant was taken to the hospital pursuant to section 80(8B) for the purposes of section 80(8) of the Act.  The request was not made pursuant to or in any way relevant to the facts in Stubberfield.

I disagree with the submission of the Defendant that – in order for subsection (8B) to operate there must first be a requirement to provide a specimen of breath for analysis.  Subsection (8B) operates – in these circumstances where the Defendant was a person mentioned in section 80(8)(a) of the Act.

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.

Mr Meyer was intercepted at a random breath testing static interception site where a specimen of breath was obtained by Alcolmeter. 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 (BAS).

Mr Meyer was 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.  A further Alcolmeter test was performed - at trial the prosecution did not rely on that test but relied on the fact, the tests were able to obtain results.  The prosecution lead expert evidence to the effect that the amount of breath required to obtain a result on an Alcolmeter test – was greater than the amount required to obtain a result using a breathalyser or at the BAS. 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.

His Honour McGill DCJ indicated (referring to section 80(11A) of the Act);

“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.”

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.

His Honour further 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.

35. [35]
    Likewise in the matter before me – if I am satisfied that police acted lawfully – I do not believe the Defendant had a right or had any say as to what ‘second test’ was to be conducted.

36. [36]
    In any event Meyer can be otherwise distinguished – in that he attempted to supply 4 times without completing the supply test.  The Defendant in the matter complained of a medical condition that prevented him from supplying a breath sample and that he had a history of failing to be able to provide a specimen for analysis.  It seems his Honour was somewhat sceptical as to the veracity of the medical evidence produced stating;

“ … 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”

Further;

“ … 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.^[13]

37. [37]
    The Defendant in this matter simply refused, was warned of the consequences and chose not to consent.

38. [38]
    The police officer was made aware enroute to the Police Station at Nambour that the purpose of the subsection could not be carried out there.  This was communicated to the Defendant as the reason he was to be taken to the hospital. 

39. [39]
    I do not think it a matter that is fatal to the prosecution case that he was not taken to the police station as a matter of effort, in circumstances where it was clear to the police officer that the purpose of the subsection could not be carried out as there was no authorized officer to operate a saliva analysing instrument.

Statutory Interpretation and the use of extrinsic material.

40. [40]
    The Defendant suggests that police erred in construing their power under section 80 of the Act. 
41. [41]
    Section 14B of the Acts Interpretation Act^[14] permits the use of extrinsic material to assist in its interpretation including explanatory notes to the Bill and Hansard of proceedings in the Legislative Assembly.
42. [42]
    The submission is – the ordinary meaning of the provision^[15] leads to a result that is manifestly absurd or unreasonable so of the section should be ‘read down’^[16] to avoid such a result where police can require a person to be lawfully assaulted in circumstances where the police themselves failed to properly provide authorised personnel for the statutory purposes of a saliva analysis after setting up a roadside test for that purpose.  
43. [43]
    Clause 57(24) of the explanatory notes to the Transport Legislation and Another Act Amendment Bill 2006, which introduced the new laws as they were then, amended section 80 to reflect the three types of specimens a police officer may now require namely a;

• specimen of the person's breath or
• specimen of the person's saliva or
• a specimen of the person's blood.

44. [44]
    The second reading^[17] by the then Minister of Transport the Honourable P. Lucas states;

“Drivers will be screened at the roadside. In the event that a positive test result is returned, indicating the presence of the active ingredient of a drug, the driver will undergo a second screening test . . . The time periods needed to undertake the two saliva tests may vary depending on how long it takes the person to provide a sufficient amount of saliva for the test.  If they are unable to supply a saliva sample for the second test a specimen of blood may be required.”

Further;

“if they are unable to supply a saliva sample for the second test a specimen of blood may be required.”

45. [45]
    Clause 57(24) Transport legislation and Another Act Amendment Bill (2006).

Clause 57 (24) to the Explanatory note^[18] removes any ambiguity pertaining to the relationship between s 80(6) and s 80(8) and the flexibility the legislators intended it to have. The clause reads as follows:

Clause 57(24) amends section 80(8) of TORUM to reflect that a police officer may require a person to provide a specimen of the person's saliva for analysis by a saliva analysing instrument

The clause creates subsection 8(d) to 8(f) to reflect the three types of specimens a police officer may now require, namely a specimen of the person's breath, specimen of the person's saliva, and a specimen of the person's blood.

For example, where an initial saliva test indicates the presence of a relevant drug in the person's saliva (see new section 80(6)(ab)), a police officer will have the power under amended section 80(8) to require a second specimen of saliva for analysis by a saliva analysing instrument or a specimen of a person's blood for a laboratory test.

For example, the power to require a specimen of the person's blood could be exercised where, for example, the person is unable to provide sufficient saliva for the second specimen.

46. [46]
    The provided examples in the Explanatory Notes are not exclusive, and clearly relates to matters that arises beyond the police officer’s control and in my view provide options to police.
47. [47]
    Clause 57(34) to (39) of the Explanatory Notes^[19] elaborate and in my view crystalise the application of powers contained in section 80(8L) of the Act to be applied or used equally for specimens of breath, blood or saliva.

The clause reads as follows:

Clauses 57(34) to (39) amend section 80(8L) of TORUM which specifies when the power to require additional specimens under section 80(8M) applies. The amendments ensure section 80(8L) uniformly applies in relation to a specimen of the person's breath for analysis by a breath analysing instrument, specimen of a person's blood for a laboratory test, or specimen of the person's saliva for saliva analysis. The effect is that a police officer will be entitled to require additional specimens of saliva be provided where, for example, a person is taken under subsection (1A) to not have provided a specimen.

48. [48]
    The second reading of the Bill by the Honourable JP Langbrook reads as follows (emphasis added):

“These roadside tests are akin to random breath tests for alcohol. Testing drivers for drugs involves police officers taking a saliva sample for analysis for traces of illegal relevant drugs such as cannabis, methyl amphetamine and MDMA, or ecstasy. Where a test returns positive police are able to carry out further blood or urine tests to confirm the result. I note that provision has been made in the regulations to allow for the testing to include other drugs once they are able to be detected.”

49. [49]
    The Honourable Mr. Langbrook identified that police would conduct blood tests after saliva tests when required.
50. [50]
    Any provision of an Act must be read to best achieve the Act’s purpose. Section 14A Acts Interpretation Act (Qld) reads as follows:

14A Interpretation best achieving Act’s purpose

3. (1)
   In the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation.

3. (2)
   Subsection (1) does not create or extend criminal liability, but applies whether or not the Act’s purpose is expressly stated in the Act.

3. (3)
   To remove any doubt, it is declared that this section applies to an Act passed after 30 June 1991 despite any presumption or rule of interpretation.

Example—

There is judicial authority for a rule of interpretation that taxing legislation is to be interpreted strictly and in a taxpayer’s favour (for example, see Partington v AG (1869) LR 4 HL 100 at 122). Despite such a possible rule, this section requires a provision imposing taxation to be interpreted in the way that best achieves the Act’s purpose, whether or not to do so would be in a taxpayer’s favour.

51. [51]
    The Defendant asks that I accept that the explanatory notes set out particular circumstances where a blood specimen may be required.  I am of the view that an interpretation of the applicable legislative provision override the submission.
52. [52]
    The submission is that I accept that parliament intended there be two screening tests of saliva – one being a saliva test and the second test be by way of a saliva analysis or blood specimen – reliance was placed on the following example:

“The power to require a specimen of the person's blood could be exercised where, for example, the person is unable to provide sufficient saliva for the second specimen.”

53. [53]
    The Defendant asks me to accept that the example given – where police require a person to supply a specimen of blood that there must first have been a requirement to provide saliva for the second specimen.
54. [54]
    I decline to agree.  The example given is just that, an example of a circumstance and in my view is non-exhaustive.   The Acts Interpretation Act deals with examples within sections of an act.  I believe the same would apply to the same extent, if not more rigidly to explanatory notes.  Section 14D provides:

If an Act includes an example of the operation of a provision:

1. (a)
   the example is not exhaustive; and
2. (b)
   the example does not limit, but may extend, the meaning of the provision; and
3. (c)
   the example and the provision are to be read in the context of each other and the other provisions of the Act, but, if the example and the provision so read are inconsistent, the provision prevails.

55. [55]
    The Defendant further submits the circumstances referred to in both the explanatory notes and the second reading speech involving a blood specimen are reflected in the provisions of subsection (8L) where a person has been required to provide a specimen of saliva for analysis under subsection (8) and cannot provide a sufficient specimen for analysis under subsection (1A), then under subsection (8M) the police can require further specimens, including blood specimens, to carry out the analysis.
56. [56]
    I do not accept section 80(8L) and 80(8M) apply in circumstances where, as in this case, the Defendant was simply required to provide a specimen of his blood for a laboratory test^[20] at the hospital to which he was taken because – of the unavailability of a lawfully operated saliva analysis machine.
57. [57]
    For the same reasons I also do not accept, as the Defendant contends, that section 80(8B) of the Act specifically provide for ‘additional circumstances’ specifically for section 80(8M) or an analysing instrument or in circumstances where an analysis process has already been commenced.
58. [58]
    In my view section 80(8B) provides that a person may be taken to particular places and more that one of them, for subsection 8 to 8L analysis processes.  Further, I am of the view that section 80(8L) simply provides for certain circumstances that might arise (such as reluctance) that will then require police to require a person to provide as many specimens of breath saliva or blood as the officer considers reasonably necessary to carry out the analysis or test.
59. [59]
    What the officer reasonable considered as necessary to lawfully carry out the analysis or test in this matter was – to take the Defendant to a hospital^[21] for the Defendant to provide a specimen of his blood for a laboratory test.^[22]
60. [60]
    In my view and in the circumstances of the agreed facts I am not satisfied there is any specific requirement for police to first require the Defendant to provide a specimen of his salvia for a saliva analysis under subsection (8)(e) before taking him to a hospital for him to supply a specimen of his blood for a laboratory test.

61. [61]
    The debate over the 2007 Bill continued on the 20 February 2007 where a number of government members rose to support the Bill. One was the Hon. P Reeves, the member of Mansfield who stated at page 361 of Hansard:

“Most importantly, the random drug testing scheme is modelled on a system that Queensland drivers are already familiar with, making it easier for them to understand and accept.”

62. [62]
    The Defendant contends – the familiar system the member was referring to was the existing breath testing regime. Further, that the understanding and acceptance of the law are important tenets of our system of democracy. Further, it had been understood for years by the drivers of Queensland, as the member rightly pointed out, that in the normal course of events after a positive roadside breath test that they would be taken back to a police station for the purpose of a breath analysis.
63. [63]
    What this submission ignores is the understanding – by drivers of Queensland – and the existing law – that drivers, who have supplied a specimen of breath and/or saliva,^[23] can then be taken to a hospital and lawfully requirement to supply a specimen of blood for a laboratory test.  It is not right to say – as the Defendant does – that where the road side breath test is over the relevant reading – that the second test must be a breath test at a police station Breath Analysing Station (BAS) operated by an authorised operator. 
64. [64]
    Such a submission ignores the situation that exists in the multitude of small regional centres in Queensland and in circumstances where the arresting officer is not lawfully able to operate any device for the purposes of the second test.

The principle of legality.

65. [65]
    The Defendant contends the principle of legality settles the law that there is a presumption that parliament does not interfere with fundamental rights. Reference was made to a passage from Maxwell on Statutes quoted by O'Connor J in Potter v Minehan^[24] which states:

“It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness.”

66. [66]
    Further reference was made to the High Court approval in X7 v Australian Crime Commission.^[25] Specifically, whether a statutory provision altered the privilege against self-incrimination (the right to silence). It was held by the majority such alteration must be made clearly by express words or necessary intendment.^[26] Hayne and Bell JJ (with whom Kiefel J agreed with their reasons) explained:

“The applicable rule of construction recognises, however, that legislation may necessarily imply that its provisions work some fundamental alteration to the general system of law, or the qualification of some fundamental right, even though the Act does not expressly provide for that effect. But the implication must be necessary, not just available or somehow thought to be desirable. (Footnote omitted; my emphasis)^[27]

67. [67]
    The Defendant’s position is that the detention of Mr Grace for the purposes of taking him to a hospital for a specimen of his blood was unlawful and an infringement of Mr Grace’s fundamental rights to not be so detained and to have his person trespassed upon.^[28] 
68. [68]
    Further, applying the above reasoning in X7 to the present facts, (even though it may be argued it was available under subsection (8) to require a specimen of blood), it needs to be clearly expressed by words or necessary intendment.
69. [69]
    It is submitted that it was not necessary in circumstances where the explanation was simply that there was no authorised officer available – to infringe upon the Defendant’s rights and no explanation given by the police as to why there was no authorised officer available. 
70. [70]
    The Defendant presses the contention that the lawfulness of the power to require a specimen of blood must be expressed – it cannot be assumed.^[29]
71. [71]
    I am asked to accept that there are no express words contained in section 80 of the Act that allow or provide for the taking of a blood specimen where there is no authorised police officer available.  Therefore, reference ought to be made to the maxim;

“The express mention of one thing is the exclusion of another.”   

72. [72]
    The Defendant’s contention is that there exists in section 80 of the Act – express and narrow provisions requiring persons to supply a blood specimen:

subsection (1A) insufficient specimen provided;

subsection (5A) a failure to submit to an initial test;

subsection (5B) the production of a doctor’s certificate;

subsection (8C) at the hospital for treatment;

subsection (8E) produces doctor’s certificate mentioned in 5B;

subsection (8L) after already requiring a person to provide a specimen, the circumstances provided therein, then (8M) applies; or

subsection (9) the external signs exhibited or observed are inconsistent with a negative reading.

73. [73]
    The Defendant submits none of these circumstances applied to him.
74. [74]
    What this submission fails to identify is that the ‘express’ provisions a) to f) also relate to breath and saliva tests or to difference circumstances.
75. [75]
    Whilst no express provisions in section 80 of the Act that provides for the taking of a blood specimen where an authorised officer under subsection (8G) is unavailable there does exist and clearly exist in my view within subsection (8) – provisions for police to take a person to a hospital for the purpose of supplying blood.
76. [76]
    It follow then that I find it difficult to infer there exists in section 80 of the Act any express provisions that exclude general provisions in respect of the taking of blood specimens.

Decision.

77. [77]
    It must be remembered – there is no dispute on the facts.
78. [78]
    The Defendant’s position is ensconced in section 80(11A) of the Act – which  provides a defence to the offence in section 80(11) of the Act where a person is able to satisfy the court that:

    • the requisition was not lawfully made; or
    • by reason of the events that occurred, he was incapable of providing the specimen; or
    • there was some substantial reason for his failure other than a desire to avoid providing incriminating information.
79. [79]
    I accept that it is not necessary in all cases that a defence under section 80(11A) be substantiated by medical or other evidence being adduced.^[30]
80. [80]
    For the reasons given above I am satisfied the requisition to supply a specimen of the Defendants blood for a laboratory test was lawfully made.  Therefore, once the requirement was made under s 80(8)(f), the defendant was required to comply with the requirement or be captured by the breach provisions of section 80(11) of the Act which is the charge before the court.
81. [81]
    I have disagreed with the Defendant’s suggestion that an interpretation of section 80 of the Act limits the options open to a police officer upon and subsequent to securing a positive roadside saliva test.  That submission is not in my view consistent with the objectives of the Act^[31] or an accurate interpretation of the section.

82. [82]
    The defendant stresses the term ‘respective purposes’ creates one track process from a positive roadside saliva test.  That is, a positive saliva test may only be followed by a second saliva test, or roadside breath test may only be followed by a breath analysis.

83. [83]
    In my view, that proposition is also not supported by a reading of section 80(6) and section 80(8) of the Act.  In other words and in response to the paradigm^[32] (railway station) drawn by Counsel for the Defendant – I do not accept there is a railway track directly and specifically to the police station from a positive roadside test.

84. [84]
    The following extracts from section 80 of the Act in my view – make the actions of police in dealing with the defendant in the way that they did – lawful.

s 60(1) PPRA he was stopped for a prescribed purpose.

s 80(2)(a) TORUMA  he was stopped and required to provide a breath and saliva test.

s 80(6)(ab)  relevant drug present in his saliva.

s 80(6)(c) may take him to a hospital.

s 80(8)(a) he is arrested for a section 79 offence.

s 80(8)(f)  he was required to supply a specimen of blood for a laboratory test.

85. [85]
    Section 80(8A) then makes it clear that as a person detained pursuant to subsection (8) therefore the Defendant may be detained at a police station, vehicle, vessel, hospital or other place as aforesaid for the purposes of subsections (8) to (8L) by a police officer.

86. [86]
    Section 80(8B) makes it clear that as a person referred to in subsection (8) the Defendant may be taken to particular places for subsections (8) to (8L) including at subsection (8)(c) to a hospital. 80(8B)(c) provides that he may be taken to a hospital and is not confined to being taken to  police station as the Defendant contends.

87. [87]
    Section 80(8B) concludes …. That such a person may be taken to more than 1 of the places mentioned in (a) to (d) if the purposes of those subsections can-not be carried out or effected at a place to which the person has been first taken.

88. [88]
    Police became aware before reaching the Police Station at Nambour that the purpose of the subsection could not be carried out there.  As such he was taken to the hospital.  I do not think it a matter that is fatal to the prosecution case that he was not taken to the police station as a matter of effort in circumstances where it was clear to the police officer that the purpose of the subsection could not be carried out as there was no authorized officer to operate a saliva analysing instrument.

89. [89]
    The Defendant suggests that the failure of police to have a qualified operator available for a second saliva test and his willingness to provide a saliva test was of such a ‘substantial character’ to excuse the Defendants conduct in refusing to consent to the taking of a blood specimen.

90. [90]
    As I have already found – I am of the view the defendant was lawfully detained then taken to the hospital where he was required to supply a specimen of blood.

91. [91]
    At that point in time when the Defendant tested positive to a relevant drug at the road side, was detained and arrested for an offence against section 79,^[33] he had no right to demand or choose what subsequent test was to be conducted.^[34]

92. [92]
    The agreed facts reveal the Defendants reason for refusing to supply a specimen of blood was;

The deft stated that he did not want to supply a specimen of blood because police were supposed to take a specimen of saliva.  He further stated that he hated needles, had been drinking, and had a bad experience with a tetanus needle which left him with a bruise.^[35]

93. [93]
    I am of the view that the Defendants reasons were unreasonable and misinformed.  He knew a second saliva test was not possible.  It has be held;

“… a reason of substantial character means something more than reasonable excuse. The reason may be personal to the person refusing to give a specimen as to the substantiality, but its substantiality is a matter for judgment by the court.^”[36]

94. [94]
    In the circumstances I am of the view the Defendants reasons were not reasons of substantial character in that his excuse was unreasonable where, the request was lawfully made.

95. [95]
    It would then follow that I find the Defendant was not unlawfully detained and the request to supply a specimen of blood was not an infringement on the Defendants fundamental rights.

96. [96]
    The defendants decision to refuse to supply a specimen of his blood for a laboratory test created the offence provision under section 80(11A).  The defendants mistaken belief as to what was lawfully available to police is a mistake of law and one cannot be mistaken as to the law in these circumstances.
97. [97]
    Given the section 80(15C) certificate has been tendered in evidence, I am satisfied the Prosecution have proven each element of the offence beyond reasonable doubt.
98. [98]
    In my view – having considered all of the evidence and for the above reasons, the Defendants defence of “substantial character” has been negatived beyond reasonable doubt.
99. [99]
    I find beyond reasonable doubt that the Defendant has failed to supply a specimen of blood for laboratory testing and the Defendant guilty of that offence.