Thompson v His Honour Judge Byrne and ORS M26/1997 [1997] HCATrans 146 (16 May 1997)

IN THE HIGH COURT OF AUSTRALIA

MELBOURNE OFFICE OF THE REGISTRY

No. M26 of 1997

BETWEEN IAN MACLEOD THOMPSON

Applicant

- and -

HIS HONOUR JUDGE BYRNE OF THE COUNTY COURT MELBOURNE

- and -

THE DIRECTOR OF PUBLIC PROSECUTIONS

- and -

SIMON DAVID COVERLEY

Respondents

DAWSON ACJ (in Chambers)

AT MELBOURNE, FRIDAY THE 16TH DAY OF MAY 1997

HIS HONOUR: Mr Thompson, you appear in person, do you?

MR I. THOMPSON: Yes, I do, your Honour.

HIS HONOUR: Yes.

MR D. JUST: May it please the court, I appear for the second and third- named respondents. The applicant's papers to this court have in fact fallen into error in naming the second-named respondent. It should be the Director of Public Prosecutions not the Department of Public Prosecution. I appear for the Director.

HIS HONOUR: Yes. Well, we will make that correction. I have a certificate from the Deputy Registrar saying that she has been informed by the Victorian Government Solicitor, the solicitor for the first respondent in this matter, that the first respondent does not wish to be represented at the hearing and will abide by the decision of the court.

MR JUST: Yes, your Honour.

HIS HONOUR: Very well. Thank you, Mr Just. Gentlemen, something has arisen which means that I will have to adjourn at five to 10 probably for about an hour and then we will resume after that, if necessary. I am sorry about that but it is something which I could not avoid and could not foresee.

MR THOMPSON: Yes, your Honour.

HIS HONOUR: Very well. Well, Mr Thompson.

MR THOMPSON: Your Honour, I make application today to stay the order of the Court of Appeal - Supreme Court - pending the application for special leave to appeal to be approved.

HIS HONOUR: Yes. And do you want to say anything in support of the application?

MR THOMPSON: Your Honour, there is good reason why this application should be approved. You have got in front of you, I understand, the affidavit in support of a summons which briefly covered some of those aspects.

HIS HONOUR: Yes.

MR THOMPSON: In addition to that, I have the draft notice of appeal which I would like to hand up to you which will cover some aspects of the points of law that would be covered in the appeal.

HIS HONOUR: Well, I have read the papers that there are and I think I understand the nature of what you wish to say but if you will just give me a moment, I will have a look at the draft notice.

MR THOMPSON: Certainly.

HIS HONOUR: Yes. The difficulty which you face, Mr Thompson is this, that whilst this court has an inherent jurisdiction to preserve the subject matter of an application for special leave and if leave is granted, the appeal, it is a jurisdiction which is only exercised in exceptional circumstances and I take it that what you say is, well, by the time the application is heard, that the period of disqualification from obtaining a driving licence will have expired or largely expired?

MR THOMPSON: Your Honour that is in line with what yourself reported in Olex Focas v Skodaexport Company where the effect of - which, if the stay was not granted, would become nugatory. Quite so.

HIS HONOUR: Yes. And you say, really, the subject matter of your appeal is as much the disqualification as anything?

MR THOMPSON: It is. Your Honour, relevantly, I am arguing as your Honour put forward in Mills v Meeking - - -

HIS HONOUR: Now, can I just adumbrate that the other difficulties here are, not only do you have to show exceptional circumstances but you also have to show a prospect - a good prospect - of success in gaining special leave to appeal. Now, that is what you have got to convince me of and, at the moment, whilst I have some sympathy, obviously, for your view of Mills v Meeking, there is a decision of this court to the contrary of the submission you wish to make and that is a decision which is binding on me and one which is not likely to be overturned. What you are seeking to do is to overturn Mills v Meeking, really, is it not?

MR THOMPSON: No, your Honour, I am not.

HIS HONOUR: All right.

MR THOMPSON: In fact, I am not and perhaps if your Honour would accept some of the following points?

HIS HONOUR: Right.

MR THOMPSON: All that was decided in Mills v Meeking was that 49(1)(f) was broader than that of the requirement for an accident stemming from the requirement under section 53 of the Act. In fact, all I am suggesting and arguing, of course, is that while the High Court in their wisdom decided that it should be broader than the requirement for an accident, it should not be so broad as to include all circumstances under which a test under 55(1) had failed. There can be no interpretation in Mills v Meeking to suggest that it was to include all circumstances, all that was simply decided was that it did not require an accident before 49(1)(f) should apply. There is a certain degree of symmetry actually provided for in the Act to support that and simply that the provisions and interpretation under 57(2) and 58(1) which cover the certificates themselves raises the question of the concentration at any time.

Now, at any time there should be read to be at the time of driving and I suggest that this is the only way that it can be interpreted because the removal of sections 49, Part A and C from the Act in its original - 49, Part VIA and C which were originally removed - gave 49(4) a very wide scope of operation and the reading under 57(2) and 58(1) raises the question of the concentration at any time. Now, since there is a symmetry in 47(b) and 47(c) and a concentration as at the time of driving, I am suggesting that if one can prove to the courts that one was under the legal limit at the time of driving then one should not be vulnerable to a charge under 49(1)(f).

HIS HONOUR: But is it not implicit in the judgments - I have just been glancing at them, because the question was raised - implicit in the judgments in Mills v Meeking, that a charge could be laid under (f) notwithstanding that a charge was available also under (b)?

MR THOMPSON: Yes, the interpretation, however - it was held in Mills v Meeking that an accident need not require - and I would not dare to challenge the wisdom of that - - -

HIS HONOUR: But that was the argument that was put to restrict the application of (f) because on its face, it appeared to be a provision which was available as an alternative to (b) and what was suggested was that it should be restricted to circumstances where there had been an accident. That contention was accepted by the two dissenting judges or at least one but was rejected by the majority.

MR THOMPSON: Yes, I accept that.

HIS HONOUR: And what you are left with is the proposition which was accepted by the court that a charge could be laid under either (b) or (f) and therefore the charge under (f) was a valid one.

MR THOMPSON: Your Honour, it is to do with the defence regime that is available under a charge to 49(1)(f), and that was an aspect that had some concentration in Mills v Meeking. But the actual wording of the Act does not rest on any presumption as it does under 49(1)(b). 49(1)(b) is covered by a presumption that the testing was the same - the result of the test was the same as at the point of driving.

HIS HONOUR: Yes.

MR THOMPSON: However, under a charge to 49(1)(f) no such presumption exists.

HIS HONOUR: That is right.

MR THOMPSON: And the question therefore rests on the description that is provided for in 57(2) or 58(1) relevantly to either of the two certificates, and the wording of either of those sections provides for the question of concentration at any time. Now, the any time reference there is a reference to another time, that is to the point of driving: that is what will be argued in the case before the High Court.

The symmetry that is displayed there is by virtue of the line that your Honour argued. Your Honour made reference to section 53 where a driver was found at the point of driving: that is under section 53(a), your Honour.

HIS HONOUR: Yes, just a moment. I need a copy of the Act. Yes, go on. Section 53(a).

MR THOMPSON: Section 53(a) provides that a member of the Police Force may at any time require, and then the various provisions. It was decided in Mills v Meeking that 'any time' would allow a driver who was observed but could be detained at a later stage to exercise a preliminary breath test. Now, the reference 'at any time' in this section is a reference to the observance, or that is being found at the time of driving.

Now, the symmetry, or the use of the phrase 'at any time' is synonymous or is consistent with the line or argument used in 57(2) or 58(1), where they use precisely the same phraseology, that is, if the question of the concentration of alcohol at any time becomes relevant. I am arguing, your Honour, that the consistency in the Act provides for a defence regime that would allow you to prove that at the time - if you were proven not to be over the limit at the time of driving, then one could not be guilty of the offence under 49(1)(f). Does your Honour see that symmetry?

HIS HONOUR: I can see the argument, but it depends on a line of reasoning which I think was rejected by the majority.

MR THOMPSON: No, I do not think it was, your Honour. If it was concluded that - just one moment, your Honour. There is very good reason to work the legislation down that way, and you do not have to read that much into it, because the provision or the purposes of the Act as provided for by 47(b) and 47(c) are a reference to the concentration of alcohol of the driver at the time of driving.

Now, specifically the other references, specifically 57(2) and 58(1) provide in the absence of any presumption similar to that which exists under 48(1)(a) is a reference to the concentration at the time of driving, and that is what would be argued.

HIS HONOUR: But you see the decision of the majority in Mills v Meeking was it did not matter if you were charged under (f) what the concentration was at the time of driving: (f) formed a separate and distinct offence of having a blood alcohol content above the prescribed limit at a time within three hours of the driving of a motor vehicle. Now, that was the decision.

MR THOMPSON: Your Honour, but that is not consistent with the purpose of the Act when viewed - - -

HIS HONOUR: One can argue that, and as I say I have some sympathy with what you say, but there is a decision of the court and it is binding on every court in this land.

MR THOMPSON: Yes, but Mills v Meeking simply held that there was not a requirement for accident.

HIS HONOUR: No, it did not. It held also, and it is implicit in what was said, that the offence created by section (f) was not related to the blood alcohol content at the time of driving.

MR THOMPSON: Yes, but, your Honour, I would have to ask the next question: is 47(1)(f) then contended to apply to all circumstances, to every situation where a tester - - -

HIS HONOUR: 47?

MR THOMPSON: No, is 49(1)(f) - - -

HIS HONOUR: 49(1)(f).

MR THOMPSON: Yes, 49(1)(f), the actual charge, contended to apply to every circumstance under which a test stemming from 55(1) and then section 53 prior to it, is that applicable to all situations, accident or no.

McHugh argued the point that - - -

HIS HONOUR: Yes, but he was in dissent, you see, as I was.

MR THOMPSON: Yes, I understand that, but his argument is consistent with the majority in the High Court insofar as he argued that the situation of the driver observed at high speed who eludes immediate apprehension could be detained at a later stage, no accident, and be forced under section 53 to subject himself to a preliminary breath test, which would then lead to section 55(1), and then ultimately lead to 49(1)(f).

So I am not arguing that 49(1)(f) is relevantly tied down to the need for an accident at all. I accept the wisdom that it could be broader than that. But there is an aspect of mischief, and it is the purpose behind the Act that 49(1)(f) was designed by intent. I think most of the judges have agreed that if not its primary aim, was designed to limit or was intended to deal with the circumstance of an accident.

It could be,however, construed, and it has been decided by the Full Court in Victoria under Meeking v Crisp, and also the High Court, that it could be broader than the requirement for an accident, and I do not challenge that result. However, that being said, it cannot be construed that 49(1)(f) could be applicable to all circumstances. If in the absence of any mischief or any confusion to disclose my blood alcohol concentration at the time of driving.

In this circumstance, your Honour, I not only thought that the breathalyser was wrong, I then requested a second one, and then went further again to ask for a blood examination. There can be no question here that I tried to confuse my blood alcohol concentration at the time of driving. I did not depart a scene of an accident, I did not elude police at high speed: I did everything that I was required to do that I was asked of.

[9.51am]

And the result of the examinations prove that the breathalyser was probably wrong, by virtue of the overly high implied rates of elimination. So I am now arguing is it right under law that 49(1)(f) should apply to all circumstances. There seems to be, your Honour, a predisposition amongst Police - and this was said to me the other day by a Constable at Glen Waverley Police Station - - -

HIS HONOUR: I do not think we can take that into account.

MR THOMPSON: There seems to be, nevertheless, a predisposition by Police at this stage, if a test under 53(1) leads to a positive result, they lay charges under both (b) and (f). It seems to be a standard norm for procedures, and then they dismiss one at Court. That, however, does not seem to me to gel with any sort of sense of fair play, if there was no mischief, that is the purpose of the Act, to confuse the breath test or any other thing that I did that was outside the law, that 49(1)(f) was inappropriate in these circumstances, and by virtue of the fact that Mills v Meeking was argued. It could be broader than the requirement for an accident. I am arguing that it could not apply to all circumstances under which a test under 55(1) failed.

HIS HONOUR: Yes.

MR THOMPSON: That is essentially the argument that I am arguing. And it is supported by sections 57(2) and 58(1) by the actual wording contained in there, that if the question comes up at any time - and at any time there refers to the point of driving - and consistent with what I have said also that that same interpretation allows somebody under 53(1) who was observed but caught up at a later time to be tested under section 53. At any time there means I was observed at the time of driving. Also, the other two sections relate to at the time of driving.

HIS HONOUR: Yes, I appreciate the point.

MR THOMPSON: Yes, that is the argument that I would be arguing. So that is not inconsistent with the Mills v Meeking case. It goes beyond Mills v Meeking just to say: is it applicable to all circumstances under which a test under 55(10 has failed? That is my argument.

HIS HONOUR: Thank you. I need not trouble you, Mr Just.

This is an application for a stay of an order cancelling the applicant's driving licence and disqualifying him from obtaining a licence for 10 months. The order was made upon the applicant's conviction in the County Court of an offence under section 49(1)(f) of the Road Safety Act 1986 (Victoria). The applicant seeks a stay pending the hearing and determination of his application for special leave to appeal to this Court from a judgment of the Victorian Court of Appeal to which he unsuccessfully appealed from a judgment of Ashley J refusing him relief in the nature of certiorari.

If special leave to appeal is granted, the applicant seeks to contest his conviction in this Court. The stay is sought on the basis that the period of disqualification from obtaining a licence will have expired, or substantially expired, before his application for special leave can be heard and determined. It is said that, to that extent, the subject matter of the application will, if it is not preserved by a stay order, have ceased to exist.

Well, be that as it may, a stay of the kind sought by the applicant will only be granted in special circumstances, and the applicant is required to demonstrate a substantial prospect that special leave to appeal will be granted.

I am unable to conclude in this case which, despite the nature of the relief sought, turns largely on its own facts, that special leave is likely to be granted. The application for special leave raises only one point of principle, which is whether section 49(1)(f) was available in the circumstances, and in my view that is concluded against the applicant by the decision of this Court in Mills v Meeking. In the circumstances, I must refuse the application for a stay.

Is there anything else, gentlemen? Very well, I will leave the bench.

AT 9.56 AM THE MATTER WAS ADJOURNED

INDEFINITELY