Morrison v Russell & Anor [2004] HCATrans 388 (8 October 2004)

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Morrison v Russell & Anor [2004] HCATrans 388 (8 October 2004)

Last Updated: 14 October 2004

[2004] HCATrans 388

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B18 of 2003

B e t w e e n -

FRANCIS JAMES MORRISON

Applicant

and

AMANDA RUSSELL AND GRANT ANDREW LUTZ

Respondents

Application for special leave to appeal

GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 8 OCTOBER 2004, AT 1.04 PM

Copyright in the High Court of Australia

MR J.K. KIRK: May it please the Court, I appear for the applicant. (instructed by Lovett & Green)

MR P.J. DAVIS: May it please the Court, I appear for the respondents. (instructed by Queensland Police Service)

GUMMOW J: Yes, Mr Kirk.

MR KIRK: Your Honours, the special leave question that arises on this application is whether, when legislation authorises an intrusion into the fundamental right to physical integrity, any legislative safeguards should be broadly construed and taken to require strict and meaningful compliance.

Applied specifically here, where there is a power granted to police officers to require the taking of a blood specimen, which power may only be exercised subject to the approval of a doctor familiar with the person’s injuries and their apparent state of health, the exercise of that power and the approval by the doctor requires more than the bare ipse dixit of the doctor, but a real and genuine consideration, a proper examination, in order to fulfil the legislative purpose of ensuring no undue disturbance of the treatment and of the health of the patient. Your Honours, I will deal first with the legislation, secondly, with the facts, thirdly - - -

GUMMOW J: We had better go to the text. Where do we see the legislative text?

MR KIRK: Your Honours, I have provided to the Court an extract from the Transport Operations (Road Use Management) Act 1995, Reprint No 4C. The offence is created by section 80(11), which is to be found at page 87 of the reprint provided.

CALLINAN J: Mr Kirk, I am sorry to interrupt you, but I wonder if you could help me about this. This argument was abandoned before the magistrate, was it not? Is that right?

MR KIRK: Your Honours, what occurred is that in closing submissions counsel for my client did say that he was not taking a point about this – they were not the exact words used, but that is the substance of it. Your Honour, three things may be said about that. First, it was said in closing submission, so it could have made no difference to the evidence that would be adduced by either side. Secondly, evidence on this topic had been adduced in cross-examination by counsel for my client from Dr Rebecca Gray, the doctor.

Thirdly, although the decision of the Court of Appeal was strictly a decision on an application for leave to appeal, the Court of Appeal appears to have heard full argument and have handed down a decision. That decision now establishes a precedent on the application of, relevantly, section 80(8C) and the requirement therein. So regardless of, in a sense, the merits of my client’s case, there is now this precedent that in circumstances such as the present case where, for reasons as I will seek to show to your Honours, there was no real consideration at all of the injuries of my client, it is still acceptable to require the taking of a blood specimen.

Your Honours, I was taking you to section 80(11) at page 87. That is the provision which creates the offence. In essence, the offence is created where there is a failure:

to provide as prescribed . . . a specimen of the person’s blood for a laboratory test –

following a requisition made under subsection (8) or subsection (8C). Subsection (8C), which is the focus of this application, is to be found at page 84 of the reprint. In essence, there are a series of conditions before it can apply. It relates to where:

the person is at a hospital for treatment –

and where one of the grounds made out in subsection (2) or (2A) for the requiring of a specimen of breath apply. Now, relevantly, your Honours, that is simply where in this case the police officer reasonably suspects the person has been driving in the last two hours. There is no issue about that here. But there is this condition, a condition precedent, on the exercise of the power of requisition, namely, that found starting from the third line in (8C):

subject to the approval of a doctor who is familiar with the person’s injuries and apparent state of health at the time –

Your Honours, section 80(8K) is also relevant, found on page 85 of the reprint. Your Honours will note that that subsection indicates that a doctor may take the sample without consent of the person concerned. Your Honours will also note in the third line that it says:

such specimen to be taken by a doctor indicated by the police officer –

Now, the use of the indefinite article “a doctor” is, I would submit, in contradistinction to the reference to the doctor in (8C). The reason that is significant, I would submit, your Honours, is that it does not matter whether the person who takes the specimen actually knows anything about the health of the person concerned once approval of a doctor has been given, but that is not so for the doctor who approves the taking of the specimen. The relevance of that is that I submit it emphasises - - -

GUMMOW J: Where was this point about the significance of (8C) and the approval of the doctor taken below?

MR KIRK: It was taken in the Court of Appeal. It was the main subject of argument in the Court of Appeal.

GUMMOW J: Where do we see the Court of Appeal’s treatment of it that you dispute? Is it at page 77 of the application book?

MR KIRK: That sounds about right, your Honour.

GUMMOW J: Paragraph [14]?

MR KIRK: It was, as I understand it, the sole issue that was argued in the Court of Appeal. In fact, that is referred to at paragraph [16] on page 82 of the application book, the first sentence:

The argument on the application to this court was confined to the narrow point abandoned before the Magistrate.

Then goes on to deal with the issue. Your Honours, one other relevant subsection - - -

GUMMOW J: Where do you say the Court of Appeal is in error in the judgment? You cannot come here and start again. Where did they go wrong?

MR KIRK: They went wrong in considering that in circumstances such as that in the present - - -

GUMMOW J: Where do we see it?

MR KIRK: There is a particular error, your Honour, in paragraph [21]. In essence, much the same argument was put below, as I understand it, by the then counsel for the applicant. It was substantially accepted up to what was a final hurdle. Your Honours will see that fourth line of paragraph [21]:

The problem with the appellant’s submission is that the final step is missing. There was no evidence in the Appeal Record suggesting that Mr Morrison actually had any injuries at all at that time, as distinct from his complaints of specific discomfort made shortly after to Dr Gray.

They go on, and then in paragraph [22] - - -

GUMMOW J: That reflects the circumstance that this matter was not pursued at first instance as thoroughly as it might have been, does it not?

MR KIRK: That might be so, your Honour, yes.

CALLINAN J: Also, Mr Kirk, Mr Byrne, who is a very experienced counsel, seemed to accept that there was an evidentiary gap, because he wanted to fill it by adducing evidence in the Court of Appeal.

MR KIRK: Your Honour, that one seeks to have belts as well as braces does not mean one cannot rely on the braces.

CALLINAN J: We do not have before us, I do not think, the transcript of the evidence about his condition, do we?

MR KIRK: There is some evidence about injuries, and I propose to take your Honours briefly to that.

CALLINAN J: In the transcript, is there? Before the magistrate?

MR KIRK: There is some.

CALLINAN J: Does it cover the injuries?

MR KIRK: Yes, your Honour. In fact, if I might deal right now with the issue of the injuries. In terms of injuries, your Honour, the Court of Appeal itself accepted in paragraph [20] that the applicant had been knocked unconscious. I do not think that was in dispute in the case. The Court of Appeal also accepts in paragraph [5] at page 80 of the application book that the ambulance officers had:

observed a slightly reddened area on Mr Morrison’s right cheek, and Mr Morrison indicated that he had a pain on the back of his head, in his neck, and in his lower back.

GUMMOW J: It says, “had been rendered unconscious for a brief period by that blow”.

MR KIRK: Yes, your Honour. In the cross-examination of Dr Gray, it became apparent that he was on a spinal board when the relevant examination took place, insofar as there was an examination. It also emerged from the evidence, including the transcript of what occurred in the hospital – because there was apparently actually a recording of what occurred in the hospital – that my client was wearing a neck brace. Further, your Honours, in cross-examination, Dr Gray accepted that my client was apparently dehydrated. She inserted a cannula – this is after the police had left – and he was treated with one litre of saline solution. Now, in those circumstances, to say that there are no injuries or no issues about his apparent state of health is not supported by the evidence, and that is all evidence before the first instance court.

CALLINAN J: What about the fact that obviously he suffered no adverse consequences at all as a result of the taking of the sample? From that it can be inferred that his condition was such that that was not likely to be a problem or to injure him, and therefore it was a condition that it was easy for somebody, particularly a doctor, to familiarise herself with very quickly, simply by an observation. Why are not all of those inferences not only available, but also likely?

MR KIRK: Your Honours, that was much the approach taken by the Court of Appeal, and the error of the Court of Appeal in that respect was that it is ex post facto reasoning. The purpose of a safeguard such as this is to require a doctor to give real consideration - - -

CALLINAN J: The issue, the factual issue, is whether the doctor was familiar with the condition. Is that right?

MR KIRK: Yes, your Honour, sufficiently familiar.

CALLINAN J: Well, that is a factual question in respect of which inferences are available, and the inferences as to what happened at midday can be drawn from what is observed three hours later or what happened three hours later.

MR KIRK: Not, with respect, your Honour, as to the sufficiency of familiarity at the time.

CALLINAN J: Why not?

GUMMOW J: Courts do this every day of the week, Mr Kirk.

MR KIRK: Your Honour, this is a condition precedent on the exercise of a power by a police officer.

GUMMOW J: I realise that. We are talking about the law of evidence at the moment and facts, bearing upon facts.

MR KIRK: Yes, your Honour.

CALLINAN J: What the Court has to decide ultimately is, was the doctor familiar or sufficiently familiar – whatever the formula is – I am paraphrasing – and we know that certain things happened. The doctor did, effectively, authorise the taking of the sample, and from what happened following the taking of the sample and the fact of her qualifications, we can draw inferences. Any court can draw inferences.

MR KIRK: Your Honour, can I take you to the key passage of the transcript at the hospital, because that is the key part I need to show to make my case. It is actually in volume 1 of the supplementary application book. I regret, there is rather voluminous material before your Honours, but I will take you very briefly to some. At page 9 of volume 1 of the supplementary application book – this is, it appears, a tape recording, presumably made by the police, of what occurred at the hospital. At the top of page 9, which is the beginning of the transcripts, Constable Lutz, the second respondent, says:

The time is now 17 past 6 on Tuesday 15 August 2000. Going in to speak with a Francis Morrison in relation to a driving under the influence of alcohol. I am wishing to get a specimen of breath---special of blood from him.

Dr Gray: Hello Mr Morrison.

Morrison: How are you going?

Dr Gray, I think that should be –

Dr Gray: I’m Rebecca Gray and I’m a doctor here.

Morrison: Yes.

Dr Gray: I’ve got to take some blood from you for the Police.

my client protests –

Constable Lutz: Doctor are you aware of this person’s current state of health? Is he fit to give a specimen of blood?

Dr Gray: Yep.

Constable Lutz: OK.

CALLINAN J: He is speaking very coherently. He says himself he is not bleeding. He is speaking coherently. I do not see why an experienced doctor might not simply on the basis of that form the opinion that blood could be taken without any possibility of adverse effect at all. He says he knew “the law and the act”.

MR KIRK: Your Honour, one has to turn then, I would submit, to the purpose of this provision, or the purpose as it should be understood. The purpose of the provision is to build in a safeguard to ensure that the taking of the blood does not interfere with the treatment at the hospital, nor interfere with the general health. Now, to fulfil that purpose, one must take account both of physical and mental health, for disturbance of either could lead to disturbance of treatment or disturbance of the general health of the patient, and here that was not done. There was the bare ipse dixit. The doctor plainly had made up her mind that she was asked to take a specimen, she comes up with the police officer and she says, “I am here to take a sample”.

CALLINAN J: Well, no, because there is further dialogue. It goes on for a couple of pages after that - - -

MR KIRK: Yes, page 13 is the other key page, I think, your Honour.

CALLINAN J: Yes, and page 13, so the doctor has had further ample opportunity to familiarise herself with this person, and she is asked:

are you aware of this person’s current state of health? Are you a person able to give consent to the taking of a specimen of blood?

Dr Gray: Yes

Russell: OK you’re Doctor

Dr Gray: Rebecca Gray.

MR KIRK: Well, one will note it is not quite clear which question she is answering when she says, “Yes”, but furthermore, even given the interim pages, your Honour, there had been no discussion of any significance whatsoever as to the medical history of my client, why he was in there, what his complaints were, what his general state of health was. It may also be noted, your Honour, that there was evidence before the Tribunal – from the doctor in fact – that my client had or had had Hepatitis C.

Now, your Honours, he could well have had problems with his immune system and so forth. In order to ensure that the taking of blood samples does not interfere with a person’s health unduly, some sort of real consideration should have been given to the patient’s history and medical conditions and possibly mental health conditions before the forceful taking of the sample. Your Honours, I have handed to the Court an extract from Marion’s Case [1992] HCA 15; (1992) 175 CLR 218. Might I briefly note what his Honour Justice Brennan said in Marion’s Case at page 265. His Honour, of course, was in dissent, but not relevantly on this point. His Honour quoted Lord Justice Goff in Collins v Wilcock [1984] 1 WLR 1172 saying as follows:

“The fundamental principle, plain and incontestable, is that every person’s body is inviolate, it has long been established that any touching of another person, however slight, may amount to a battery . . . The breadth of the principle reflects the fundamental nature of the interest so protected. As Blackstone wrote in his Commentaries: ‘the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it – ’”

His Honour Justice Brennan in Marion’s Case went on to talk about:

Differing measures of protection are required according to the physical and mental capacities of individuals at particular times –

and at the top of page 267, his Honour said:

a donation of blood by a person of full age and understanding may enhance dignity, while the extraction of blood from a person who is incapable of consenting is an invasion of that person’s physical integrity.

GUMMOW J: We all understand that. That is why we have this Act.

MR KIRK: Yes, your Honour, and that is why a safeguard such as that built into subsection (8C) should be construed generously and broadly, as, one might say, the inverse of the principle in Potter v Minahan, and effect should be given to the apparent purpose of ensuring that there is no interference with the physical or mental health or treatment of the person by the taking of a blood sample.

GUMMOW J: Well, there are two competing policy objectives. That is one. Another one is the road toll through drunken driving.

MR KIRK: Yes, your Honours, but the right to physical - - -

GUMMOW J: You just want to talk about one. The legislature has had to think about another, and they struck a balance.

CALLINAN J: Mr Kirk, before the sample was taken, at page – I think it is 18 - - -

MR KIRK: Of the transcript, your Honour?

CALLINAN J: Yes, in volume 1 of your supplementary material, the doctor asks – the same doctor:

Nurse: Do you mind if I move your glasses?

Doctor: Frank it’s Rebecca again I’d like to know how you’re feeling at the moment? Have you got any pain anywhere?

So it is a further opportunity to make an observation.

MR KIRK: Yes, your Honour, but, as I understand the way the case was run, that is after the approval relied on by the police. The Court of Appeal noted in their judgment that it was the first request made by the police, which is back on page 13, I think, your Honour, or commencing thereabouts, that was relied on as the particular of the charge.

CALLINAN J: It confirms her earlier diagnosis, though, does it not?

MR KIRK: Your Honour, again, I would submit that is ex post facto reasoning which undermines the significance of the guarantee. Your Honours, as to why special leave should be granted in this case, first, the right to physical integrity, whilst no doubt it must be balanced with other community rights and interests, is nevertheless a right of great importance. Secondly, that blood testing occurs to a substantial degree throughout all jurisdictions would be well-known to this Court. The New South Wales Court of Appeal noted in a recent guideline judgment that nearly 20 per cent of criminal matters dealt with in the Local Court in 2002 in that State involved drink driving offences. Thirdly, all States and Territories have similar legislation authorising the requirement to the taking of blood specimens in certain circumstances - - -

GUMMOW J: Yes, but do they replicate (8C)?

MR KIRK: Your Honour, no. All of them except Western Australia have something similar to (8C). The language is not identical, but there are similar provisions about not being - - -

GUMMOW J: I am sure there are, yes.

MR KIRK: - - - authorised or required to take the blood if it might unduly prejudice the health of the person. Your Honour, for those reasons, I submit that special leave should be granted.

GUMMOW J: Yes, thank you, Mr Kirk.

We are not satisfied that any point of general principle concerning the construction of section 80(8C) of the Transport Operations (Road Use Management) Act 1995 (Qld) arises in this case. The matter would turn very much on the particular facts, and did turn on those facts, in the Queensland Court of Appeal. We are not satisfied that there are any reasonable prospects of success of displacing the conclusions traced out at paragraphs [19] to [21] of the reasons for judgment of the Court of Appeal. Accordingly, the application is dismissed.

Yes, Mr Davis.

MR DAVIS: Yes, I apply for the costs, your Honour. It is in a summary matter. In summary matters costs usually follow the event and, in my submission, the respondent should have the costs of the application for special leave.

GUMMOW J: What do you say about that, Mr Kirk?

MR KIRK: Your Honour, I note what my client said in his own written submissions on that point. “I am disabled, and unprofessional in this case of law” is what he said. Your Honour, it is a criminal matter. It could have raised matters of general importance. I would submit that costs should not be ordered.

GUMMOW J: What happened in the Court of Appeal, Mr Davis?

MR DAVIS: The Court of Appeal ordered that the applicant pay the respondents’ costs of the appeal. Your Honours will find that at paragraph [24] of the judgment.

GUMMOW J: Yes. Yes, I think it must be dismissed with costs, Mr Kirk. We will take a short adjournment.

AT 1.28 PM THE MATTER WAS CONCLUDED