Thompson v His Honour Judge Byrne and ORS M26/1997 [1997] HCATrans 384 (14 November 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M26 of 1997

B e t w e e n -

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

Application for special leave to appeal

GAUDRON J

McHUGH J

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 14 NOVEMBER 1997, AT 10.55 AM

Copyright in the High Court of Australia

MR I.M. THOMPSON appeared in person.

MR W.H. MORGAN-PAYLER, QC: If the Court pleases, I appear with my learned friend, MS K.E. JUDD, on behalf of the second and third-named respondents. (instructed by the Director of Public Prosecutions (Victoria)).

GAUDRON J: I indicate that the Court has been provided with a certificate by the Deputy Registrar to the effect that she has been informed by the Victorian Government Solicitor, solicitor for the first respondent, that the first respondent does not wish to be represented at the hearing of this matter and will abide by the decision of the Court. Yes, Mr Thompson.

MR THOMPSON: Your Honours, section 57(2) of the Road Safety Act provides that if the question of the concentration of alcohol in the blood at any time is relevant, section 57(2)(c), "on a hearing for an offence against section 49(1)", then evidence may be given of the taking of a blood sample. Section 57(4) provides that in the absence of evidence to the contrary the certificate of blood analysis is proof of the facts.

Section 55(4) provides for the issuance of the certificate of the result of a breath analysing machine. Section 58(1) provides that if the question of the concentration of alcohol at any time is relevant, section 58(1)(c), on a hearing against section 49(1):

then, without affecting the admissibility of any evidence.....evidence may be given of the concentration of alcohol indicated -

by the breath analysing machine. Section 58(2) provides that a certificate is conclusive proof of the facts.

When, however, evidence is given by the operator, 58(4) provides that such evidence by the operator is, in the absence of evidence to the contrary, proof of those facts. In addition, when the informant introduces any evidence other than the certificate under 55(4), section 58(2)(e) provides that the certificate remains admissible in evidence but ceases to be conclusive proof of the fact or matter. Therefore, certificates of both kinds are permissible in this case under section 55(4) and 57(4).

Under a charge to 49(1)(b) there exists a presumption contained in section 48(1)(a) that the concentration of alcohol is to be presumed, until the contrary is proved, to be the same as at the time in which the offence is alleged to have occurred. However, under a charge to 49(1)(f) no such presumption exists save for the presumption, until proved to the contrary, that the indicated concentration was not due solely to the consumption of alcohol after driving. Refer to section 48(1)(a).

Without any presumption that the concentration is the same as at the time of driving, we have only the questions raised in 57(2) relevant to blood samples and the questions raised in 58(1) relevant to breath analysis. There is notably a striking similarity between both paragraphs, that is, if the question as to the presence or concentration of alcohol in the blood at any time or if the result of breath analysis, in the case of 58(1), or the finding on the analysis of a blood sample, in the case of 57(2), is relevant and then followed by the details of the respective paragraphs.

GAUDRON J: Is not your problem, however, Mr Thompson, the wording of paragraph (f)?

MR THOMPSON: In part, yes.

GAUDRON J: Which is that if:

within 3 hours after driving or being in charge....furnishes a sample of breath for analysis by a breath analysing instrument -

and you concede that happened -

the result of the analysis as recorded or shown.....indicates that more than the prescribed concentration of alcohol - - -

MR THOMPSON: That is so.

GAUDRON J: Yes, that is your problem. I mean, it may be a very Draconian measure but the sections to which you refer do not seem to come into play.

MR THOMPSON: I beg your Honour's difference. I believe that they do. I have complained to the Minister of Roads and Ports for some time over this very issue and I keep being told, in fact, that the legislation is pretty well okay and it is not subject to the defects that I claim that there is in there. Based on the presumption that he may have been right for one second, I have turned around and examined the Act with some caution and with a high degree of care and I believe I have found that the wording of 49(1)(f) cannot be literally read in the circumstances, given the other provisions that are present in the Act.

GAUDRON J: But the problem is that this Court has already held that it can be in Mills v Meeking.

MR THOMPSON: Yes, but Mills v Meeking was a case applied to circumstances dissimilar to these. In the case of Andrew James Mills, he was a "P" plate driver well over the limit and the fundamental case that was argued in Mills v Meeking was that, "Hey, there was no accident and therefore my client can't be charged under 49(1)(f)." I do not disagree with the High Court with respect to their interpretation - - -

GUMMOW J: Well, that is very reassuring, Mr Thompson.

MR THOMPSON: No. In fact, I - at first I did, your Honour, but after - - -

GUMMOW J: Well, that is for but that has no compulsive effect on us.

MR THOMPSON: No, certainly. Okay. But at a later stage I could see the wisdom of that decision but I could also see other provisions coming into play and if you will allow me to continue I think you will see where I am leading, surely.

GAUDRON J: Yes, but perhaps you could tells us how those provisions come into play.

MR THOMPSON: The Act provides for a very high level - and I have got that in the logic of this and if you would permit me to continue you will see the logic develop and specific reference to that part of the Act and the various parts of the Act and you will see the logic unfold as to how I believe that the Act does present fairness to the accused and offers that enshrined, not only in Parliament debate but also by the actual Act itself, and that is the bit that I was wanting to lead into.

GAUDRON J: Yes, thank you.

MR THOMPSON: His Honour Judge Byrne heard evidence from the Crown's expert witness that the concentration of alcohol at the time of driving would have been .0435 per cent. This result was in accord with all the evidence of my drinking on the evening and consistent with the principles laid down by Ogden as to the characteristics of assimilation and elimination of alcohol within the body. His Honour, as a consequence, stated:

Accordingly, although in my view the appellant has presented a plausible case that at the time of driving he may not have been above .05 per cent, he is nevertheless guilty of the offence provided by the Act.

Since the question as to the concentration of alcohol at the time of driving had been established to be below .05 and taken together with the purpose - - -

GAUDRON J: Does His Honour Judge Byrne go that far?

MR THOMPSON: Yes, I have - - -

GAUDRON J: Does he find that it was below .05 as distinct from a plausible case that it was?

MR THOMPSON: I would hark then on what is the definition of "plausible" and it says, "believable" and he has heard evidence from the Crown's expert witness that says his blood alcohol level at the time of driving was .0435 per cent. I do not think it gives him too much latitude at this point to accept any other finding. It is, after all, the Crown's expert witness.

GAUDRON J: I hear what you say, yes, thank you.

MR THOMPSON: Since the question as to the concentration of alcohol at the time of driving had been established to be below .05 and taken together with the purposes in section 47 and specifically with the thrust of paragraphs (b) and (c) of that section, mentioning the concentration of alcohol as at the time of driving, it does not follow that a holder of a full licence could be vulnerable to prosecution since a driver's judgment is not deemed by the Act or, for that matter, conveyed to the public through advertising to be impaired at concentrations below .05.

Only a purposeful construction as suggested by Justice Dawson and Justice McHugh in Mills v Meeking indicates the narrow scope 49(1)(f) was intended to play.

GUMMOW J: Now, has the Act been changed since that decision?

MR THOMPSON: Yes, it has. In fact, the copy of the legislation that you have got there was downloaded from the Internet and represents all the current amendments. There is in this speech reference to one section - - -

GUMMOW J: But do the amendments that have been made have any impact on your argument?

MR THOMPSON: Only marginally.

GUMMOW J: For or against you?

MR THOMPSON: For, and marginally. Only a purposeful construction as suggested Justice Dawson and Justice McHugh in Mills v Meeking indicates the narrow scope 49(1)(f) was intended to play. In addition, the presence in the Act of section 53(1)(c) and 53(1)(d) indicate Parliament's concerns now at times other than when driving a motor vehicle but both of these provisions are limited to the requirement for an accident to have occurred within the last preceding three hours. The provision of 53(1)(a) and 53(1)(b) are constrained in time to that of a person found driving a motor vehicle and specifically not to some other abstract time.

At page 1656 of the second reading speech by the Minister on 29 October 1986, where in that discussion about 49(1)(f) and the three hour time limit, much concern was levied about the abuse by rogue policemen and the possibilities of abuse. The Minister then quite categorically stated the purpose of this provision by saying:

I am well aware of the reason behind this provision of the Bill. There have been instances where people have been involved in drink-driving accidents and have used the defence, that their first reaction was to duck off from the scene of the accident, to go to a hotel and have a drink or two to calm themselves, which would explain their blood alcohol level.

This statement, together with the inclusion of 53(1)(c) and 53(1)(d) quite clearly show when it is an offence to be over the limit at some time other than when driving. Neither of these provisions have applicability in the present case.

On a broader viewpoint, however, Justice McHugh describes a situation at page 25 of Mills v Meeking where a driver, eluding immediate apprehension by the use of high speed, may well be vulnerable to a requirement to a preliminary breath test under section 53. I submit that that requirement stems from 53(1)(a) by virtue of being - - -

GAUDRON J: Can I stop you there for a moment, before you go on. Does your argument not mean that to succeed you really would have to depart from the majority decision in Mills v Meeking?

MR THOMPSON: Mills v Meeking only decided that there need not be an accident before 49(1)(f) could be applicable, and I agree with that. I do not have a problem with that whatsoever. What I do have a problem with is that - - -

GAUDRON J: The literal meaning?

MR THOMPSON: Yes.

GAUDRON J: What meaning do you say it should be given?

MR THOMPSON: The other provisions in the Act give 49(1)(f) something other than a straight literal meaning. In fact, it is a purposive construction.

GUMMOW J: But what is it?

MR THOMPSON: Okay, I am leading into that and that is precisely where I am leading. It is worthwhile mentioning - - -

GUMMOW J: It is important.

MR THOMPSON: Yes, I know, I understand that. This is why I would like just to cover what Justice McHugh said about being "found or observed" - I will just cover this again because I think it is important to understand both sides of the argument. I submit that the requirement stems from 53(1)(a) by virtue of being "found or observed" - in the present tense - driving and, at best, the police have only three hours to detain and test a driver in such a circumstance by virtue of the expiration of this obligation after the passage of three hours from driving. Your Honours should refer to section 53(4).

My argument, I guess, is now simplified in this way: it cannot be read down, however, that 53(1)(a) is an instruction to lay charges via 55(1) other than those detained or found at the point of driving. There is no support for the notion of an offence other than at the time of driving. Clearly, 53(1)(a) can lead ultimately to a charge under 49(1)(b) by the context of both paragraphs referring to a present tense situation and the presumption erected under 48(1)(a).

By comparison, 53(1)(c) and 53(1)(d) are an instruction to ultimately lay charges via 55(1), if positive, for instances of offences within three hours of driving. They are further constrained by the requirement for an accident to have occurred. Section 49(1)(f) is, not surprisingly, a charge specifying an instruction to lay this charge within this same time frame, that is within three hours of driving.

GUMMOW J: Section 49(1) says, "A person is guilty of an offence", all right, and then (f) says, if, "within 3 hours" that person "furnishes a sample" which has these characteristics.

MR THOMPSON: Sure.

GUMMOW J: Why is not the offence the furnishing within three hours?

MR THOMPSON: Because the Act does provide and parliamentary debate - and I am just about to lead into - the parliamentary debate and also the presence in the Act of section 55(10) offer the safeguard in the event of a failed test arrangement. The decision in Mills v Meeking probably has a two-fold effect in terms of which way it could be interpreted. Andrew James Mills was probably guilty as sin but, in this instance, you cannot take a situation and say, "We have an accuracy of four decimal places, proven, with the support of the Crown Prosecutor, under the limit at the time of driving. Was it really intended by Parliament to prosecute people under the limit at the time of driving?" I think that it is fanciful to think otherwise.

GAUDRON J: It may be. It may be an unfortunate consequence but how do you get away from the actual words of (1)? It does not say that you have more than the prescribed concentration of alcohol. If it did, you would be in the clear.

MR THOMPSON: Absolutely.

GAUDRON J: There is no doubt about that.

MR THOMPSON: No doubt about it.

GAUDRON J: What it says is, "the result of the analysis" indicate - - -

MR THOMPSON: Of the breathalyser.

GAUDRON J: Prima facie, it makes the results of the breathalyser conclusive.

MR THOMPSON: Yes, it does, but there are a couple of problems with that. Basically, there is a presumption of guilt - there is a basic presumption of - you used the words earlier of "first-year law" but I think the accused person is innocent until proven guilty and Frank Galbaly and others, and Michael O'Brien, have criticised the wording of 49(1)(f) for that very reason. What I am saying now is that you cannot just pick out 49(1)(f) and say, "There it is. Put it up on a pedestal and polish it up and look at it at weekends". What you can say is you look at the Act in the whole; the provisions of section 47 and the purposes of the Act, then the other provisions within the Act, specifically 55(10) and the various subsections of section 53, which go off and branch off in different areas.

Certainly my situation was not one of an accident and it is not contended that it disputes with Mills v Meeking. If you will let me continue for one further second you will see how the logic unfolds in terms of where 49(1)(f) does not stand alone but it has to be read in toto with the rest of the Act.

GAUDRON J: Yes, please proceed.

MR THOMPSON: Given the wording of 47(a) and its reference to motor collisions in which alcohol or other drugs are a cause, it is implicit that it is a reference again to the driver's state at the time of driving since it is hard to imagine how one can be involved in an accident while not actually driving. The wording displays the symmetry between 53(1)(c) and 53(1)(d), leading to 55(1) and then to a charge under 49(1)(f).

GUMMOW J: Just a minute. Just slow down a minute. What were those sections again?

MR THOMPSON: The wording displays the symmetry between 53(1)(c) - - -

GAUDRON J: Mr Thompson, just let me interrupt you there. Do not worry about the light. We will, because of the questioning, extend your time. So, do not rush, just take your time.

MR THOMPSON: Yes, I understand. I have timed this to 161/2 minutes. I know it can be done.

GAUDRON J: Do not rush. Just take us slowly to these sections, and it is important.

MR THOMPSON: Thank you.

GAUDRON J: So, it is 49 - - -?

MR THOMPSON: The point I was making there is that the symmetry between section 47(a), the reference to "motor collisions", and the symmetry - - -

GUMMOW J: Just a minute. Section 47 - - -

MR THOMPSON: Section 47(a) is the purposes or provisions of the Act.

GUMMOW J: Yes, thank you. Yes.

MR THOMPSON: Okay, and section 53(1)(c) and 53(1)(d) are the provisions with reference to "accidents". What I am suggesting is that wording displays the symmetry between those three - both, the purposes and section 53(c) and (d), leading to section 55(1) and then to a charge - - -

McHUGH J: To (10). They lead to subsection (10), do they? Section 55(1) and then to 55(10)?

MR THOMPSON: No, 55(10) is the safeguard and I am leading into that now. Section 55(10) is not covered as part of that but 55(10) - this is the point that I am making about reading the Act in its totality; what explains the presence of that part in the Act otherwise you would have to make this part of the Act redundant.

The thrust behind 47(c) and the inclusion of 49(1)(c), (d) and (e) indicates Parliament's intolerance of people trying to avoid the requirement to provide information of the concentration of alcohol at the time of driving a motor vehicle. The penalties against these provisions are to be found in 50(1)(b) and requires mandatory licence cancellation. When, however, no avoidance is present and, in fact, quite to the contrary in this case, by the request for a second test, under 55(4), and further testing by way of a blood sample, under 55(10), there can be no allegation of any attempt to not disclose my blood alcohol level at the time of driving. There simply is no symmetry between 53(1)(a) leading to an offence within three hours of driving unless some mischief is employed to conceal one's concentration at the point of driving.

Since sections 47(b) and 47(c) are specifically considered with the position of a driver's concentration at the time of driving, together with the recognition by his Honour Judge Byrne that I may be below .05 at the time of driving, it does not follow that one should be vulnerable to prosecution under 49(1)(f) at a time other than when driving. Only those who can provide the argument necessary to reach this conclusion stand any chance of defeating a charge under 49(1)(f) or, for that matter, a charge under 49(1)(b).

GAUDRON J: Well, you say anybody would be vulnerable, really.

MR THOMPSON: Yes.

GAUDRON J: They could come into your home and say, "Have you been driving in the last three hours?---Yes."

MR THOMPSON: Yes, but, you see, in the development of the Act, that was a criticism of the Act and they actually now have a provision built in there. You could not get convicted under 49(1)(f) by subsequent changes to the Act. So, they cannot walk in without a warrant, effectively.

GAUDRON J: But it is, again, not due - - -

MR THOMPSON: - - - solely to the consumption of alcohol after driving.

GAUDRON J: But if you had had one glass of wine, no accident, no speeding, no traffic offence, and they come to you somewhere in a public place later and say, "Were you driving two hours ago?" - - -

MR THOMPSON: Yes, and your Honour answers, "Yes" and you could well be vulnerable - - -

GAUDRON J: And you are not driving now but you have - yes.

MR THOMPSON: There is a safeguard for all of us in this. This is the point I am making. In fact, Tom Roper alluded to that very fact, that there is a safeguard for any of us if - - -

GUMMOW J: What is it?

MR THOMPSON: As Tom Roper said in part, at page 2000, on 12 November 1986:

This amendment will.....restrict defences.....to those which are scientifically relevant.

It is doubtful that even a driver involved in an accident, and in the absence of any failure to - - -

McHUGH J: What he said was:

This amendment will prevent evidence being led about theoretical inaccuracies of breathalysers and restrict defences to drink-driving charges to those which are scientifically relevant.

MR THOMPSON: Correct. The scientifically relevant aspect and how that applies to me - we have got graphs and a data set here to an accuracy of four decimal places. Tom Roper is not concerned - and I do not think any of the politicians were - about having esoteric points of law - and the Premier even said that. They were not interested in smart lawyers getting up dragging up esoteric points of law to get their clients off drink-driving charges. They were only concerned with allowing the safeguards to the citizen to say, "You have to prove to this court that you weren't over the limit at the time of driving." In fact, that is covered again by - I have another quote by Tom Roper with respect to that thrust and if you will allow me to continue I will bring that point up and make reference to it.

GAUDRON J: Yes, please continue.

MR THOMPSON: If there was a problem with Mills v Meeking - judges love to use the words, "It has the effect". In my opinion, this has been the effect of it. It is my submission that police, on a superficial reading of the Act and with the judgment in Mills v Meeking not requiring an accident before the application of 49(1)(f), believe that a failed test arrangement under section 53 can be outfitted via 55(1), if positive, in a charge under 49(1)(f). This appears to be a common practice amongst police. If something is not done to correct this tendency, then other cases will continue to tie up the court system unnecessarily.

One further point worthy of mention is the comment by Justice Brennan in Mills v Meeking at page 11 where he suggests that in the absence of evidence of any other purpose other than the facts of the case being applied to 49(1)(f), an abuse of process may not occur. Before his Honour Judge Byrne was evidence of an argument I had with the police and specifically Sergeant Mick Jones over their failure to provide a writing implement for me to take notes of the proceedings. I was forced to produce my laptop computer to take notes but it shut down because I was denied access to a power point and the battery condition was insufficient. Further, Mick Jones denied me at first my request to see the Road Safety Act and after a short argument, he then produced it.

McHUGH J: These matters do not really affect the - - -

MR THOMPSON: Well, Mills v Meeking - part of my application, your Honour, with respect, is it is an abuse of process by the police.

GAUDRON J: If it is an offence though, it is an offence.

MR THOMPSON: No, it may not be. I am saying that they acted - this is a hamburger with the lot by the police. They were, all in all, far too aggressive with me and I was getting a little bit short tempered with them as well, I have to say.

GUMMOW J: I appreciate you feel strongly about it all but if you were given special leave, it would have to be on the nitty-gritty issue of construction.

MR THOMPSON: Yes. I say that only in passing because I have been bashed around the head with Mills v Meeking for some time and I have to look at Mills v Meeking and understand your Honours' wisdom with respect to the whole case. I see Justice Brennan's point with respect to the abuse of process as being a strong part of the actual claim because the police - it has been evidence all the way along and they have specifically, I think, thrown, all in all, far too many charges at the whole thing. "A hamburger with the lot", if you like, if you will excuse the expression.

GAUDRON J: Is your submission, at the end of the day, come to this: that by reason of section 55(10) and perhaps some other subsection, it is a defence to a charge under 49(1)(f) that you did not have more than the prescribed concentration of blood - - -

MR THOMPSON: Absolutely.

GAUDRON J: - - - at the time of driving?

MR THOMPSON: Of driving. Nor, should I say, for that matter, at the time of the blood test but the blood test only - - -

GAUDRON J: You might be on better ground at the time of blood test.

MR THOMPSON: Absolutely, but that serves only to put a profile into place and if your Honours will refer - if there is some trouble in understanding the actual data, I would refer your Honours to - - -

GAUDRON J: The problem is though, do you have a finding - is there anything on which you can rely, in the nature of plausibility or otherwise, as to your blood level at the time of testing? Well, it was within minutes of driving.

MR THOMPSON: Yes, there is, yes. That aspect - and I should refer to these graphs because this - - -

GUMMOW J: Just tell us.

GAUDRON J: Yes.

MR THOMPSON: The correlation between the breath tests and the blood test puts in train a set of profiles, that is, "This guy is getting rid of alcohol at a certain rate." Now, originally the Crown came forward and was bold enough to say that the elimination rate was in the order of either .03 or .036 per cent, depending on which of the two tests you took into play. The only catch with that is that we had two tests, 21 minutes apart, indicating exactly the same result. Now, any one of us in here may - we may have a variety of metabolic rates but it is certain that only one person, at a given point in their life, has one metabolic rate, and there was only one circumstance which allowed the breathalyser, if you accepted it to be correct, to be accurate on both occasions and that situation was - and it was agreed by the Crown's expert witness - that the alcohol was still rising as at the first test, turned and peaked in the 21 minute interval, and was then descending.

You see what happens now: it creates a trend through to the blood test in one direction and it creates a trend back to when I admitted consuming the Benedictine. The catch with all of that is that - there is a number of aspects to that. There is not one interstate case - and I went through the whole of the motor vehicle records - which agrees with Dr Ogden. In fact, if you will excuse my phrasing, I think Dr Ogden went out on too bigger limb.

GAUDRON J: But that does not answer my question.

MR THOMPSON: The elimination rate - I think it does.

GAUDRON J: Is there anything to suggest that the actual level of concentration in the blood at the time of either breathalyser test was less than .05? Is it .05?

MR THOMPSON: It is .105. Well, .105 was the actual result of the breathalyser test.

GAUDRON J: No, but you have to bring yourself down to point - - -

MR THOMPSON: I only have to provide - no, the Act actually provides it is only - it is a defence to provide that the breathalyser on that occasion was incorrectly operated or mucked up on that occasion. We effectively do that by saying that the elimination rate that is thrown into the set of calculations says it is impossible - either I have the world's most fantastic liver or the breathalyser was inaccurate on this occasion or was incorrectly operated. Simply, on all of the tests in the last graph in that thing gives a consideration of all of the results when it is all said and done on all the evidence and it basically suggests that at about 1.40 in the morning my blood alcohol level, while I am enjoying the company of police at Lilydale Police Station, was in the order of about .077 per cent. So what? I was not driving a motor vehicle. However, if we extend the data both ways - - -

GAUDRON J: Yes, but, you see, there are two aspects to - even if you were to succeed in having some defence acknowledged, there is a question whether it is when driving or when breathalysed.

MR THOMPSON: Sure, and with respect to that - it has been suggested to me a few times, "Ian, you've got to find something in the Act that says - the Judges are going to be looking at the Act" and there was a very big concentration in Mills v Meeking at looking at the Act.

GUMMOW J: Not surprising.

MR THOMPSON: Not surprising one. However, basically, the canons of construction were not put into play as much as they have been in other cases. What I am saying is that if you look at the case overall, the whole of the Act, what explains 55(10) and how does that work in the scheme of things? You look at the actually parliamentary debates and Tom Roper - and this is in Parliament. They turn around and - - -

GUMMOW J: I understand that but at the end of the day I think what you have to say is that you have submissions on the construction of these sections which were not put in Mills v Meeking or may not have been necessary or appropriate to put in Mills v Meeking.

MR THOMPSON: I was not running the defence in that case.

GUMMOW J: But if they had been, they would have produced a different construction in Mills v Meeking.

MR THOMPSON: Result, I think so.

GUMMOW J: Does that not mean in a way you challenge Mills v Meeking?

MR THOMPSON: Mills v Meeking is right and it is wrong in two breaths. I accept that it does not require - this is my acceptance.

GUMMOW J: In so far as you say it is wrong in any breath, you must be challenging it.

MR THOMPSON: What I am saying is that - - -

GUMMOW J: And the question then is should we allow it to be reopened?

MR THOMPSON: I think you have to revisit it, myself.

GAUDRON J: Should we grant special leave to enable a Full Bench to determine whether it would be reopened.

GUMMOW J: Yes.

MR THOMPSON: I think it has to be revisited because the circumstances were dissimilar - - -

GAUDRON J: You may think so but you have to persuade us that we should. Mr Thompson, we think at this stage we might hear from Mr Morgan-Payler.

MR THOMPSON: Your Honours, just one last point: if it pleases, the transcript I have been reading off which I am concerned that you get the entire brief, I would like to hand up. I have taken the liberty of preparing a complete transcript because it covers - - -

GAUDRON J: Of what?

MR THOMPSON: Of what I have been reading, so that the reference to the various sections is available to you to cross - - -

GAUDRON J: We have the sections.

GUMMOW J: We have got it all here.

GAUDRON J: We have got it all here.

MR THOMPSON: Yes, you do not have my argument which is the oral argument and that is what I would like to hand up now.

GAUDRON J: Well, we do not usually do that.

MR THOMPSON: I would ask you to make an exception.

GAUDRON J: Just wait until we hear from Mr Morgan-Payler.

MR THOMPSON: Certainly.

MR MORGAN-PAYLER: If it please the Court, it would be our submission that the applicant basically argues two complaints. The first is certainly not a matter that ought concern this Court, namely that the defence mounted in front of the judge and no doubt, before that, in front of the magistrate relying on section 49(4) did not succeed. The judge made findings of fact which are referred to, of course, in the materials and those are not, in our submission, appropriate matters to relitergate in this Court.

The second major complaint that the applicant makes, in our submission, or the second major contention, if we might put it that way, is that the applicant contends that the Road Safety Act sets up a statutory scheme but the applicant's contention is inconsistent with the manner in which this Court has interpreted that part of the Act in Mills v Meeking.

GAUDRON J: Yes. We know that but what he says is we should at least grant special leave to enable a Full Court to determine whether Mills v Meeking should be reconsidered in the light of the particular factual circumstances that have arisen. Now that may or may not advantage him in the long run because a Full Court may say, "No, we will not consider it" or it may say, for example, "We really don't think it should be revisited and although you were granted special leave, it is now revoked" but, in essence, that is what the applicant says.

MR MORGAN-PAYLER: Yes, your Honour, but - - -

GAUDRON J: Is it not the case that if it received a construction other than that which it was given in Mills v Meeking it might be necessary for there to be a further hearing of the charges against him.

MR MORGAN-PAYLER: Not unless this Court considers the questions raised in Mills v Meeking ought be the subject of further argument. In our submission, the very matters raised by this application were conclusively dealt with by the majority in Mills v Meeking, [1990] HCA 6; 169 CLR 214, particularly at page 223, the last paragraph on that page.

MR THOMPSON: Your Honour, if it pleases, that is a download from the Internet and you will have to run with my page numbering, not the learned counsel's.

MR MORGAN-PAYLER: I refer to the report, your Honour.

GAUDRON J: Yes, we have it.

MR MORGAN-PAYLER: I am reading from the judgment of the then Chief Justice and Justice Toohey:

As it stands, s. 49(1)(f) relates to s. 55(1) and s. 55(1) relates, not to a portion of s. 53, but to the section generally. Section 53, as already noted, identifies four situations in which a person may be required to undergo a preliminary breath test. Three of these situations relate to persons intercepted while driving (s. 53(1)(a), (b), s. 53(2)); the other relates to a person believed to have been the driver of a motor vehicle which was involved in an accident: s. 53(1)(c). There is no particular reason for singling out par. (c) of s. 53(1) and no particular reason for reading down s. 49(1)(f) as if it contemplated only a preliminary breath test required under par. (c) of s. 53(1).

GAUDRON J: Yes, but that does not go to the point that 55(10) enables a defence - that there is to be implied from 55(10) the availability of a defence either that the person did not have more than the prescribed concentration of alcohol when driving or when tested, the two possibilities.

GUMMOW J: Now, a question is, is there any consideration of 55(10)?

MR MORGAN-PAYLER: Yes. Again, we would submit not, your Honour, and particularly - - -

GUMMOW J: But in these judgments is there any consideration of 55(10)?

MR MORGAN-PAYLER: I believe not, your Honour, no.

GUMMOW J: That is what the presiding Judge was just putting to you.

MR MORGAN-PAYLER: What we would submit is that, as an interesting aside, since Mills v Meeking was before the Supreme Court , Parliament saw fit to amend various areas of this part of the Act including the insertion of section 48(1)(a) which provided the defence to what was seen by Parliament as the iniquitous situation of somebody who had driven whilst having consumed no alcohol at all and was then tested within three hours of that driving and found to - - -

GUMMOW J: This is 49 - - -?

MR MORGAN-PAYLER: Section 48(1A), your Honour, which provides a defence to the person who establishes that the alcohol was related solely to consumption after the driving. That was not, of course, in the original scheme. That being the case, it is submitted that it becomes clear that Parliament has been aware of not only of the provisions but of the interpretation by courts of these provisions and, indeed, has seen fit to amend in some areas but not in this area.

GAUDRON J: But that is not necessarily inconsistent with a defence arising under 55(10), is it? As one defence, "I drank it all after I got home." The other is, possibly, "Well, I didn't drink it all after I got home but I didn't have more than the prescribed concentration of alcohol when I was driving." Query: third, "I didn't have more than the prescribed concentration of alcohol when the breath test was given because the breath testing machine wasn't working properly."

MR MORGAN-PAYLER: That, in our submission, is the way 55(10) was relied upon by the applicant in the original hearing. The applicant, the Court will have noted, did insist on a blood test being taken. That blood test was taken and no doubt that material was relied on when the applicant relied on the provisions of 49(4), namely that the machine either was not working properly or it was not operated properly. That was a factual issue that was litigated and was not decided in favour of the applicant.

GAUDRON J: Was there a decision on it, as such?

MR MORGAN-PAYLER: Yes, your Honour, in that the judge found the information under 49(1)(f) to be proved.

GAUDRON J: Yes, but on one view of that, he found it to be proved, notwithstanding that there was a reasonable doubt as to whether he did have the prescribed concentration of alcohol when driving, he did not take the extra step of saying, query, whether that means that the equipment was not functioning because, on a strict construction, he did not have to decide either.

MR MORGAN-PAYLER: The problem was, your Honour, that the judge found against the applicant in so far as that was concerned. The applicant called an expert to say that there could not be such a - - -

GAUDRON J: Where are the findings?

MR MORGAN-PAYLER: The findings are referred to in the judgment of the Court of Appeal, namely where - - -

GUMMOW J: Whereabouts? Which page?

MR MORGAN-PAYLER: Indeed, in the judgment of the judge at first instance, page 16 of his judgment, the last paragraph. The application book does not appear to have individual page numbers or, certainly, my copy. At about line 22, in the reasons for the judgment of the judge at first instance in the Supreme Court. The matter got to him by way of certiorari.

GAUDRON J: Can you help us find it in the book at such now?

MR MORGAN-PAYLER: Yes, your Honour. It appears - - -

GAUDRON J: - - - in the judgment of Mr Justice Ashley?

MR MORGAN-PAYLER: At page 16 of the application book. This book is numbered at the bottom of the page. I was assuming that was the numbering of the judge's reasons for judgment. That last paragraph is, I think, the most concise recital of the reasons, one of the problems being - - -

GAUDRON J: Is that a correct assessment of what happened?

MR MORGAN-PAYLER: Yes, your Honour, in that his Honour would have relied on the materials that were placed before him. Unfortunately, in Victoria where one appeals from a magistrate to a County Court judge, that appellate hearing is not regarded as being a court of record. No record is kept of the proceedings.

GAUDRON J: So, this matter went to a County Court judge?

MR MORGAN-PAYLER: Initially. It started at the magistrate; it went to his Honour Judge Byrne in the County Court by way of rehearing de novo.

GAUDRON J: Okay. Well now, we are only concerned with what Judge Byrne found. What did he find?

MR MORGAN-PAYLER: His Honour found, in our submission - - -

GAUDRON J: No, I want to know what he found, not what in your submission he found. I want to know exactly what he found.

MR MORGAN-PAYLER: His Honour found the information under section 49(1)(f) to be proved.

GAUDRON J: Yes, and what did he find with respect to 49(4)?

MR MORGAN-PAYLER: That the machine was operating correctly and was operated correctly.

GAUDRON J: Is there a precise finding to that effect?

MR MORGAN-PAYLER: Must be by inference, your Honour, given that that was the defence that was mounted to the - - -

GAUDRON J: I am not worried about inference. I want to know if there was a precise finding and I will tell you why: because, if it is a plausible case, if there is a plausible - if it is plausible that the applicant had less than the prescribed concentration of alcohol when driving, and there is a moments only delay, is there not, from the first test?

MR MORGAN-PAYLER: Yes, a matter of minutes, your Honour; some minutes.

GAUDRON J: A matter of minutes; some minutes. Then there has to be an inference, at least, that the machine was not working. There has to be some reason for rejecting that inference unless you take the view that that really does not matter because of the words of 49(1)(f).

MR MORGAN-PAYLER: That is certainly the view that the judge took, your Honour, and his reference to - - -

GAUDRON J: Which view? That it did not matter because of the words of 49(1)(f)?

MR MORGAN-PAYLER: Yes, in our submission, that be the case, your Honour. There was initially an information under - - -

GAUDRON J: Let me get this straight. You are now telling me - and this is of some importance - that the view taken by the County Court judge - and that is really what we are concerned with - is that it was of no relevance whether the machine was working or not properly because of the interpretation he placed on 49(1)(f)?

MR MORGAN-PAYLER: No, your Honour, we might be at cross-purposes. Perhaps if I can go back into history. Initially, the applicant - - -

GAUDRON J: Would it not have been better for you to have come along armed with the trial judge's decision?

MR MORGAN-PAYLER: No, there is no decision in the County Court on appeal in Victoria, your Honour, it is not a court of record. It is simply a rehearing de novo.

GAUDRON J: Well then, it seems to me that nobody can rely on the findings at that point.

MR MORGAN-PAYLER: One can only rely on the affidavit material that was in front of the Supreme Court judge at first instance and - - -

GAUDRON J: It seems to me that nobody can rely on what the trial judge said. You have to rely then on the statement that - where does this statement that it was a plausible case come from?

MR THOMPSON: Your Honour, if you please, I can assist with that one.

GAUDRON J: Mr Morgan-Payler can tell me. Who said that?

MR MORGAN-PAYLER: That is attributed to Judge Byrne on the hearing. It no doubt comes from matters raised before the Supreme Court justice, Justice Ashley, at first instance, where this matter went by way of certiorari, and from there to the Court of Appeal.

GUMMOW J: Now, what was the record on the certiorari application? What did that comprise?

MR MORGAN-PAYLER: The Court of Appeal and, indeed, Justice Ashley, your Honour, held that - - -

GUMMOW J: No, before Mr Justice Ashley.

MR MORGAN-PAYLER: That the error on the record in Victoria may be argued as simply the primary judge applying an erroneous principle of law and that argument comes by way of the Interpretation of Legislation Act in Victoria and a decision of - - -

GUMMOW J: One of the troubles in this case is that if we get into it we will not really have a factual record.

MR MORGAN-PAYLER: That is a difficulty on all matters that go from appeal, from a magistrate by way of appeal, which is a rehearing de novo, rather than a point of law going straight to the Supreme Court from a magistrate where, of course, the Supreme Court, for these purposes, is a court of record. There is no record - - -

GAUDRON J: Do we have the application for certiorari?

MR MORGAN-PAYLER: We do not in the application book, your Honour. We simply have the judgment of Justice Ashley at first instance.

McHUGH J: The effect of section 10 of the Victorian Administrative Law Act is that any statement made by the inferior court orally or in writing for the reasons for decision is deemed to be the record of the court.

MR MORGAN-PAYLER: Deemed to be the record, yes, your Honour, and thereby certiorari which, in other circumstances, might appear to be slightly unusual.

McHUGH J: So, you can prove the record of the court by affidavit, apparently.

MR MORGAN-PAYLER: And that is the usual manner in which it is done. Each side submits an affidavit as to the proceedings.

McHUGH J: As to what was said as to the reasons and then - - -

MR MORGAN-PAYLER: And the reason and, indeed, as to any evidence that might have been given.

GUMMOW J: What happens if there is a dispute though?

MR MORGAN-PAYLER: There is some interesting law on that, your Honour. If there is a dispute it is for the tribunal that is then hearing the matter to determine. Usually - - -

GAUDRON J: Where are the affidavits in this case?

MR MORGAN-PAYLER: They are not in Court.

MR THOMPSON: Your Honour, if it pleases, I had requested both the presence of Mark Regan, the barrister, and also of Amy Lim who was the Acting Solicitor on the occasion in front of Judge Byrne by virtue of the fact that there seems to be some contention about what is the court of record and it was on that very point that I asked their presence here today. That letter, dated 30 August 1995 is a transcript by the Acting Solicitor for the DPP, Amy Lim, and that was at my request that I get that because there was a dispute whether Judge Byrne said that. So, ultimately, we had this record supplied to us by the DPP and I read from the Acting Solicitor's own notes so that there is no mistaking about what the actual record was. This was both my opinion and also Amy Lim's transcript:

Accordingly, although in my view the appellant has presented a plausible case that at the time of driving he may not have been above .05, he is nevertheless guilty of the offence provided by the Act.

GAUDRON J: And it does not deal with whether the machine was or was not properly - - -?

MR THOMPSON: The aspect that was put forward by the prosecution at that stage was more pushing that aspect of Mills v Meeking about a literal reading of just 49(1)(f) and lock it up as it is.

GAUDRON J: Thank you. Mr Morgan-Payler, is it conceded that that is the basis of the decision?

MR MORGAN-PAYLER: Your Honour, I am a little bit better informed now and I apologise for not being so previously. We do have in Court copies - the appeal book that was prepared for the Court of Appeal contained copies of the affidavits that went before the Supreme Court justice at first instance and if I might read to the Court, and I will then have made available to the Court the concluding paragraphs of an affidavit which was sworn by one, Mark Edward Regan who was an employee of the Office of Public Prosecutions which recited the history of the matter, having referred to the brief history in the Magistrates' Court including the fact that there was an information under 49(1)(a), I think, which - - -

GAUDRON J: It was not proceeded with.

MR MORGAN-PAYLER: The materials, again, regrettably, simply, indicate that the defendant was either discharged or it was dismissed either - - -

MR THOMPSON: That is inaccurate, your Honour. It is 49(1)(d).

GAUDRON J: It does not matter.

McHUGH J: Get to the point.

GAUDRON J: Section 49(1)(f) we are concerned with.

MR MORGAN-PAYLER: Yes, and 49(1)(f) was the only matter to go before the judge in the County Court. At paragraph 27 the deponent deposes in this manner:

The plaintiff elected to give evidence. Most significantly, he volunteered that although he had disclosed to the interviewing police details of some earlier alcohol consumption on the night of 17/18 July 1994 he had failed to disclose that he had also consumed a quantity of a liqueur known as `Dom Benedictine' which filled a standard beer glass to about 2/3 capacity shortly before he had commenced to drive about 11 kilometres, ultimately being intercepted by Coverley. The plaintiff also told His Honour that he had consumed that liqueur at 11.55pm and had even produced (and tendered) a graph which, in part, plotted the time of consumption of the liqueur against the times of being breathalysed. The plaintiff implored His Honour to accept his hypothesis which relied upon the assumption that his blood alcohol level shortly before 11.55pm was virtually nil and also on an assumption that the rate of alcohol consumption into the bloodstream from contents in the stomach was constant, then his likely actual blood alcohol reading at the time he was intercepted would probably have been about .043% - below the prescribed concentration of .05%.

28. His Honour at this point carefully reminded the plaintiff about the operation of section 49(1)(f) of the Road Safety Act to the plaintiff, who asserted in response that he had read this section and had understood its operation.

29. His Honour ultimately found the section 49(1)(f) charge proven and convicted the plaintiff. His Honour sentenced the plaintiff to pay a find of $100 and cancelled his driver's licence. His Honour then noted section 50 of the Road Safety Act which referred him to schedule 1 of the same Act. After considering the schedule, His Honour disqualified the plaintiff from driving in Victoria for a period of 10 months. His Honour also found the plaintiff guilty of the charge of using indecent language -

and that is not relevant, and then it simply - - -

GAUDRON J: The inference of that is that his Honour proceeded on the strict and literal reading of 49(1)(f) without considering whether there was any defence of a kind that has been contemplated.

MR MORGAN-PAYLER: Yes, your Honour. I do not think, your Honour, we could contend to the contrary.

GUMMOW J: Under 55(10).

GAUDRON J: Under 55(10), yes.

GUMMOW J: The question is whether that meant there was an error of law.

MR MORGAN-PAYLER: Yes, and our submission is that that has been fairly and squarely dealt with by this Court in that in the past this Court has implied, in respect of paragraph (f), the strict and literal meaning of those words.

GAUDRON J: Yes, without considering though whether there is a defence under 55(10).

MR MORGAN-PAYLER: The applicant has already had the benefit of that, your Honour. The applicant did have a blood test taken in accordance with that and relied on evidence of that blood test and, on the materials, called his own expert evidence in respect of it.

GAUDRON J: But his trial judge did not take it into account. If his trial judge took the view that there was a strict and literal application of 49(1)(f), which seems to be the case from those notes, advising the defendant of the terms of 49(1)(f), then the question is alive, is it not?

MR MORGAN-PAYLER: With respect, no, your Honour, because the only way that his Honour was able to deal with this contest was to determine the question as to whether the machine operated properly and was operated properly. That issue was - - -

GAUDRON J: He does not seem to. The notes do not indicate that he has.

MR THOMPSON: Your Honour, if it please, on page 17 - what you say is a correct summation of the events to date. However, it is interesting to draw your attention to page 17 of the application book and specifically to line 9 where Justice Ashley, in some question about all of this, says that, "is not to say that I would have reached" the conclusion that Judge Byrne did. The fact is that this was being tossed about and there had to be a reason for the results to be that they were but certainly Justice Ashley did not want to interfere with Judge Byrne's decision by virtue of the fact that he heard evidence that it was so. However, as Justice Ashley said, "It is not to say that I would have reached such a conclusion."

GAUDRON J: That does not help you. We are trying to find out what steps were taken by Judge Byrne in reaching his conclusion, and he does not seem to have taken any other than a strict and literal reading of 49(1)(f), does he?

MR MORGAN-PAYLER: Justice Ashley in the Supreme Court has set out what his Honour did at page 16, line 25:

The question which the judge had to decide in those circumstances, was whether, upon the above assumption, the implied elimination rate was, simply put, incredible. If so - - -

GAUDRON J: But it does not emerge that that is, in fact, what he did, does it? What you have read does not suggest that that is what he did.

MR MORGAN-PAYLER: Well, if your Honour would permit me to read on:

If so, a question would have risen whether some part of the assumption should be discarded. In that event the judge might well have concluded that the blood test result was more probably reliable; this leading, by inference, to proof of the defence available by s.49(4).

There was evidence which enabled the judge to conclude that the implied elimination rate was "not uncommon". The plaintiff complained that such evidence was contrary to much data, and to evidence given in other cases.

There is then reference to some other reported cases.

Some but not all of the material to which he referred was apparently put to Dr Ogden in cross-examination. The judge was not persuaded, on a consideration of the relevant evidence, that, by the process of reasoning I have described, the plaintiff had proved the s.49(4) defence. That was a conclusion which the judge was entitled to reach.

It is not to say that I would have reached such a conclusion. Particularly that is so when the breathalyser test results, the test being performed about 20 minutes apart, were identical. If blood alcohol was being eliminated in that period at the rate implied by comparison of either test result with the blood test result, the breathalyser test results should have been disparate. On the other hand, it was open to the judge, on the evidence, to find an explanation for this apparent oddity - that is, that having regard to the plaintiff's admitted consumption of alcohol, his blood alcohol had peaked in the interim between the two breathalyser results; the identical test results then being curious but explicable. The evidence entitling the conclusion that his Honour reached, there is no occasion for me to interfere, even assuming the availability of a remedy in the nature of certiorari if the evidence did not stand in such a way.

It was the only issue, your Honours, in front of his Honour Judge Byrne on appeal from the Magistrates' Court whether the competing experts called on either side and whether, on that evidence, a defence under section 49(4) was made out either that the machine had not operated properly or was not operated properly by the operator. That was the issue in the appeal, your Honours. That was a matter that was found by Justice Ashley, initially, to have been determined on a finding that was open to him on the evidence and, further, that was then a finding that the Court of Appeal chose not to interfere with.

Now, in our submission, the applicant has argued for a contention, a contention that may have been opened, of this particular legislation, namely that an offence under section 49(1)(f) must have something to do with a reading at the time of the driving. However, this Court has, in interpreting this statutory scheme, found to the contrary. In our submission, there is nothing knew about these circumstances to warrant that question being revisited by this Court. We think we would probably be repeating ourselves if we were to put that further.

It is regrettable, I might say, your Honours - "regrettable" is the wrong word. It is a curious feature of the system in Victoria that nothing that occurs in Magistrates' Courts by way of a summary hearing is recorded in any manner, the register of the court being the only record, and if there be an appeal to a County Court judge by way of a rehearing de novo, then the same applies there. When questions of law arise from such proceedings, for the determination of superior courts, then, always in Victoria, the history has been the parties submit affidavits. The tradition is, certainly in so far as Magistrates' Courts are concerned, on occasions, an affidavit will be submitted on behalf of a magistrate. That did not happen on this occasion. Each party put in material. I do not think that there was any great contention as to precisely what occurred - - -

MR THOMPSON: I do not think it was contested but I made the point.

MR MORGAN-PAYLER: - - - in the court below. In those circumstances, it is submitted that this question in respect of this particular applicant has been properly determined in accordance with law and nothing is raised in this application to warrant or to suggest that it would be appropriate for this Court to reassess such question. If the Court pleases.

GAUDRON J: We will give you five minutes in reply, Mr Thompson.

MR THOMPSON: Thank you, your Honour. It might be noted that to date that my approach to looking at the Act has not been one to detract from your Honour's wisdom in the judgment in Mills v Meeking but merely add a refinement in the preservation of fairness to the accused. Parliament's intent is forcibly demonstrated by the deletion of the original wording of paragraph (a) and paragraph (c) from 49(6). Fairness to the accused is implicit in the Act itself. As a consequence, it cannot be said that Parliament intended to deprive the accused the right to present the true situation of his blood alcohol. The presence of section 55(4)(c) as it was and section 55(10) further highlight the preservation of the right to present the true situation of one's concentration of blood alcohol. Simply put, section 55(10) would be made redundant if it could not be used to challenge the report of the breathalyser in a charge under 49(1)(f).

As Tom Roper said at page 1608 of the of the Assembly record on 28 October 1986, in response to Mr Brown's concerns over the capacity to challenge the breathalyser reading, when he stated, "You can get a blood test." Mr Brown voiced a similar sentiment when he stated:

Only people who can corroborate their evidence have any chance of defending themselves against the breathalyser reading. The magistrate must accept the evidence of the defendant, of the witness or witnesses and, of the chemists who may be brought in to challenge the reading placed before the court and upon which the prosecution was launched.

In conclusion, for all of the above considerations, there should be no doubt that a 49(4) defence was made out and has stood a high degree of scrutiny in the results and even supported by the Crown's own expert witness. This Court should therefore see no impediment in dismissing this case by virtue that it has been forcibly demonstrated that, firstly, the breathalyser overread the true blood alcohol reading by a factor in the order of .028 per cent because the tests were conducted during the assimilation phase. Secondly, the excessively high implied rates of elimination of .036 per cent per hour were not supported by my expert witnesses and none of the tendered interstate cases, including the most foremost authority of Forensic Science International. Thirdly, at the point of driving, that is .0435 per cent is below that which the statute mandates it is safe to be in control of a motor vehicle.

My employment prospects and the access to my son, on access weekends, motivate me - - -

GAUDRON J: We need not go into that. Can we ask: you did run the 49(4) defence before Judge Byrne, did you?

MR THOMPSON: Yes, I did.

GAUDRON J: And that is a defence that relates to the time at which the readings were taken?

MR THOMPSON: No, 49(4) is only an aspect of showing failure in the machine.

GAUDRON J: Yes. The machine was not working at the times when they were taken.

MR THOMPSON: Implied by comparison to the blood test, that is so.

GAUDRON J: The possible 55(10) defence is one that relates to the time of driving?

MR THOMPSON: Section 55(10) is the provision where I say that the -Parliament has provided a provision in the Act to allow one to have a blood test to validate whether the breathalyser - it is a safeguard that any of us should have if we have suffered a failed test result.

GAUDRON J: But one theory of this case is - and it is the basis on which Justice Ashley proceeded - that the blood test readings were right but the blood alcohol level was below the prescribed concentration while driving. Is that not right?

MR THOMPSON: On the presumption that the breathalyser results were accurate, the extrapolation of the data either way, both to the breath test and to the point of driving, showed that at the point of driving a motor vehicle I was under the limit provided by the statute, and to an accuracy of four decimal places too.

GAUDRON J: Yes. At this stage the Court wishes to consider its position in relation to the matter and we will adjourn briefly.

MR MORGAN-PAYLER: Would the Court be assisted by the affidavit material that was before the Court of Appeal. I have one copy and I - - -

GAUDRON J: I do not think so.

MR MORGAN-PAYLER: As the Court pleases.

AT 12.04 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.15 PM:

GAUDRON J: Mr Thompson, we propose to grant you special leave in this case with the intent, however, that special leave should be revoked if you do not succeed in obtaining leave of the Full Court to reopen Mills v Meeking. Do you understand that?

MR THOMPSON: Not entirely, your Honour.

McHUGH J: To our mind, at the moment, it seems to me that having regard to the technicalities concerning certiorari, records and so on, you will have a great deal of difficulty in succeeding in an appeal, having regard to the limitations imposed on us as the final Court, unless you can show that Mills v Meeking should be reconsidered. Now, the arguments that you have put were not arguments that were addressed to the Court in Mills v Meeking. If they had have been, that provided a further reason for not taking a literal approach to 49(1)(f), and if you are right on that point then arguably these whole proceedings are misconceived and the matter would have to be really dealt with on the basis that 49(1)(f) is not to be read literally.

If the Court is not prepared to reopen Mills v Meeking, then the Court always exercises a discretion to revoke a grant of special leave which we are now about to give you and so, your application would be refused. But everything turns on whether you can persuade the Court to reopen Mills v Meeking and, if you can, to show that you should not read 49(1)(f) literally. If you do, and you succeed on both those issues, then at least at the moment it would appear you would be likely to succeed in your appeal.

MR THOMPSON: Your Honour, is that a separate - just so I understand. Is that a separate appeal to the Full Bench before it then goes on to - - -

GAUDRON J: No.

McHUGH J: No.

MR THOMPSON: It is one in the same.

McHUGH J: It will all be heard at the same time in Canberra.

GAUDRON J: Now, Mr Thompson, you have done a very creditable job of advocacy on your own behalf today.

MR THOMPSON: I have not won yet.

GAUDRON J: Exactly. We were going to suggest that given the need to reopen Mills v Meeking, before you succeed, and given that there might be some disadvantage to you in being so close to the proceedings, it would be worth your while considering whether or not you should be legally represented.

McHUGH J: There may be civil liberties groups, for example, that - - -

MR THOMPSON: Regrettably, with funding from - - -

GUMMOW J: You are in the High Court now, their view may change.

MR THOMPSON: Well, everyone has said no to me so far. They have got no money; neither have I.

GAUDRON J: Yes, they may have a different attitude in view of the grant of special leave.

MR THOMPSON: I will revisit them, thank you.

GAUDRON J: Thank you. Well, you understand that. So there can be no doubt: there will be a grant of special leave. However, the leave is made with the intent that it should be revoked if the Full Court refuses leave to reconsider Mills v Meeking. The Court will now adjourn.

MR THOMPSON: Can I ask one further question. Given that situation, I am actually suffering the burden of the penalty at this stage because Justice Dawson did not seek - the decision of Judge Byrne was put into effect by the Court of Appeal and was not varied in front of Justice Dawson. As a consequence, I am not suffering the burden of that. The better part of it has been the experience but it seems only a logical step that that should be reversed at this stage pending the outcome of - - -

McHUGH J: Do you want a stay, do you?

MR THOMPSON: Yes, I do.

GAUDRON J: For how much longer are you under suspension?

MR THOMPSON: Two months, I think. The entire period was 10 months and Rosemary could tell you when we were in front of Daryl Dawson because that is when that came into effect. So six months have been done; four to go.

GAUDRON J: Is it opposed?

MR MORGAN-PAYLER: No, your Honour.

GAUDRON J: There being no opposition from the Crown - what precisely is the order that you want?

MR THOMPSON: An operation on the stay of Judge Byrne's decision, I would think would be the correct wording, pending the outcome of application to the High Court.

GAUDRON J: I do not think that is quite good enough. Perhaps Mr Morgan-Payler can help us. What is the order?

MR MORGAN-PAYLER: That the order of his Honour Judge Byrne delivered in the County Court on 29 May 1995 be stayed until further order.

GAUDRON J: Which order was that?

McHUGH J: Stayed until the determination of the appeal or further order.

MR MORGAN-PAYLER: Yes, your Honour. That was the order, finding the information proved and cancelling the applicant's licence.

GAUDRON J: It is only the cancellation that we need to stay, is it not?

MR MORGAN-PAYLER: Yes. Perhaps, the fine and the cancellation, it might be neater administratively, your Honour.

GAUDRON J: Well, there will be a stay of the order of Judge Byrne to the extent that it imposed a fine and cancelled or suspended the applicant's licence pending the further determination of this matter.

MR MORGAN-PAYLER: And we will have a talk with Mr Thompson afterwards about the question of representation, your Honour. I am sure we can assist him.

GAUDRON J: Yes. Well, it will be pending the determination or further order of this Court.

MR MORGAN-PAYLER: Thank you, your Honour.

GAUDRON J: Yes. The Court will now adjourn.

AT 12.22 PM THE MATTER WAS CONCLUDED