Cases

Compliance with s 80 of the Transport Operations (Road Use Management) Act 1995: illegally obtained evidence

Criminal Law – appeal and new trial – appeal against conviction – Whether magistrate should have excluded certificate of analysis 

Harvey v Queensland Police Service [2017] QDC 310 – 22 December 2017 District Court of Queensland Smith DCJ

Comment: In this case, the appellant was charged, among other things, with driving while under the influence of liquor contrary to s 79(1)(e) of the Transport Operations (Road Use Management) Act 1995. A Magistrate convicted him and imposed a fine of $1,500. He was disqualified from holding or obtaining a drivers’ licence for 9 months. He appealed against his conviction and sentence on five grounds, the only one of which that had any merit was that the certificate of analysis of his blood should have been excluded. The certificate proved a blood alcohol concentration of 0.15%. 

Under s 80(8) of the Transport Operations (Road Use Management) Act 1995, any person who is arrested for an offence against s 79 may be required by a police officer to provide a blood specimen for analysis. A similar power in relation to people at a hospital is contained in s 80(8C). Section 80(9B) requires the person to allow a doctor or a nurse to take the specimen. Under s 80(10C), whoever takes the specimen must immediately take a second specimen and hand it to the person from whom it was taken. This is to enable that person to have their own independent analysis of the sample undertaken if they wish. The Police Traffic Manual required that the primary specimen be sent for analysis by Registered Post. In fact, it was sent by Express Post. This was because Australia Post had ceased using the Registered Post facility for anything exceeding envelope size. Express Post was of the same quality as Registered Post. The appellant argued that the failure to comply with s 80(10C) and the Manual meant that the certificate of analysis was illegally obtained and should be excluded. 

Smith DCJ referred (at [53]) to the following considerations identified in relation to illegally obtained evidence in Bunning v Cross (1978) 141 CLR 54; 52 ALJR 561; [1978] HCA 22 at [53]: 

1. Was the unlawfulness as a result of a mistake or conscious trickery with deliberate disregard of the law. 

2. The nature of the illegality and whether it affects the cogency of the evidence. 

3. The ease with which the law might have been complied with. 

4. The nature of the crime charged. 

5. The intention of the legislature. 

Unsurprisingly, Smith DCJ held as follows: 

[54] In this case I am not satisfied that the magistrate erred in the exercise of his discretion and indeed I would exercise the discretion the same way. Firstly, it seems to me that it was not seriously challenged that the reading on the certificate was actually correct. The appellant made admissions to drinking including on his version after the accident. Secondly, it is not suggested there was any tampering with the blood sample in this case. Indeed the same bar code appears on the relevant exhibits. Thirdly, it seems to me that the failure to provide him a second sample was a mere oversight. The posting by express post achieved the same purpose as registered post. Fourthly on my view of the entire evidence the police and administration officer were acting conscientiously in this matter. In all of the circumstances despite the submissions made by the appellant I am of the view that the evidence ought not to have been excluded. Also for substantially the same reasons I do not consider the evidence was unfairly obtained. 

The case also reflects the potency of body camera and CCTV camera footage when matters of indicia (ie of being under the influence of liquor) are in issue.

Appeal against sentence: error in understanding the facts of the offence

Criminal Law – appeal and new trial – appeal against sentence – grounds for interference – where the applicant pleaded guilty to dangerous driving of a vehicle causing grievous bodily harm with a circumstance of aggravation – where the sentencing judge misstated the circumstances of the offence and classified the applicant's conduct as ‘repeated recklessness’ – whether the sentencing judge erred in his understanding of the facts of the offence

R v Burnett-Greenland [2017] QCA 159 – 28 July 2017 Queensland Court of Appeal Sofronoff P, Gotterson JA, Applegarth J

Issue: The appellant was charged with one count of dangerous operation of a motor vehicle causing grievous bodily harm with a circumstance of aggravation that he left the scene before the arrival of the police: Criminal Code s 328A. He was originally sentenced to 2½ years jail with release on parole after 9 months. The appellant argued that the sentence was manifestly excessive because it was based on a misunderstanding of the prosecution and defence submissions by the sentencing judge. The Court of Appeal agreed. 

Held: The sentence substituted on appeal was one of 2 years jail suspended after 5 months for an operational period of 2 years. The appellant was also disqualified from holding or obtaining a driver’s licence for a period of 12 months. 

Comment: The objective facts were that late one night at a family gathering the 19-year-old appellant was asked to go to a shop and buy cigarettes. Two cousins went with him in his aunt’s car. He did not have a driver’s licence. He approached a corner at excessive speed and failed to slow down as he turned into the next street. The rear of the car spun out causing the rear tyres to mount the gutter. The appellant then oversteered in correcting the turn and applied the brakes. This caused the car to fishtail, skid and collide on its left side with a power pole. The two cousins were rendered unconscious. One had minor injuries and the other sustained fractures. The appellant decamped, initially denied knowing anything about the matter but then gave himself up. Earlier in the evening, he had been doing burnouts causing smoke and a loud noise. 

Contrary to this, the sentencing judge proceeded on the basis that the appellant had been fishtailing before taking the turn and that his driving was not momentary inattention, but repeated recklessness. 

The Court of Appeal accepted that the driving was reckless, but not repeatedly so. It was described as a serious error of judgment by an inexperienced young driver. He demonstrated a poor and immature attitude. On the other hand, he was otherwise remorseful, law abiding and of good character. The sentence of 2 years jail was regarded as appropriate by way of denunciation, deterrence and punishment for the actual consequences suffered by the passengers and the potential consequences of the dangerous driving to the appellant, his passengers and other citizens.