Birt v Cain [2004] QDC 423

DISTRICT COURT OF QUEENSLAND CITATION: Birt v Cain [2004] QDC 423 PARTIES: JONATHON EDWARD BIRT Appellant V STUART JOHN CAIN Respondent FILE NO/S: D 3530/2003 DIVISION: Civil PROCEEDING: Appeal ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 18/10/2004 DELIVERED AT: Ipswich HEARING DATE: 21/6/04 JUDGE: Judge Richards ORDER: Appeal dismissed. The appellant is ordered to pay the respondent’s costs of and incidental to the appeal to be assessed unless otherwise agreed. CATCHWORDS: S80 (16G) of the Transport Operations (Road Use Management) Act 1995 – conclusive nature of the certificate. COUNSEL: M. McCormack (sol) for the appellant P. Davis for the respondent SOLICITORS: DPP for the appellant Ellison Moschella for the respondent [1] On 22 April 2002 at 8.30am Stuart Cain was involved in a single vehicle accident on Klumpp Rd, Mt Gravatt. He was a registered nurse at the Princess Alexandra Hospital and was travelling home after completing night shift. He was injured in the collision and was taken to the Princess Alexandra Hospital for treatment. At the hospital a sample of his blood was taken and the blood alcohol reading was .163%. -- 1 of 8 -- 2 Mr Cain was charged with driving under the influence of liquor pursuant to s79(1) (a) of the Transport Operations (Road Use Management) act 1995 (TORUM). [2] On 11 September 2003 the matter proceeded to trial in the Holland Park magistrates court. The learned magistrate dismissed the charge delivering her reasons on 2 December 2003. The Prosecution case [3] The prosecution relied heavily on an analysis certificate issued under the evidentiary provisions of s80(16B) of the Act which certified that Cain’s blood alcohol concentration at 10.l7 am on 22 April 2002 was .163%. Nigel Whittle gave evidence that the sample contained alcohol in the amount specified in the certificate, if disulfiram was present it would not have interfered with the results of the tests and that the equipment involved in the testing was working accurately at the time. [4] In support of it’s case, the prosecution also called witnesses as to the indicia of intoxication. Leah Haig, an ambulance officer, said she smelt liquor on Mr Cain’s breath, he was flushed and agitated and his eyes were red. He did not slur his words when he spoke. Under cross examination she denied that she made any presumption as to the smell being alcohol based on the respondent’s involvement in an accident, however, she agreed that the only indicia that she noticed was the smell of alcohol. [5] Peter Thompson, also an ambulance officer, gave evidence that he noticed a very strong smell of alcohol, that his pupils were sluggish, he appeared disorientated and -- 2 of 8 -- 3 his face was flushed. He was emotional throughout the trip to the hospital. He said that Cain was not incoherent nor slurring his words. [6] Constable Cotroneo gave evidence that he could smell alcohol on Mr Cain’s breath. He noted that Mr Cain was suffering trauma from the accident. He thought he noted bloodshot eyes and his speech was slightly slurred. [7] There was also evidence from the police which proved the continuity of the blood sample and from Dr Staib, that the correct procedures had been followed in taking blood from the respondent. [8] The final witness called for the Crown was Leonora Newby who was witness to the accident. She said that the respondent’s vehicle appeared to be adhering to the speed limit and that there was nothing unusual in his driving. She did not smell alcohol on him (she was not particularly close) and he was not slurring his words. The Respondent’s case [9] The respondent’s case was that the analysis certificate could not have been accurate because he had not been drinking. He gave evidence that he was a recovering alcoholic, had been prescribed disulfiram (Antabuse) and that he was medication compliant at the time of the accident. He said that he had not been drinking on the day of the accident and was unable to explain the results of the certificate. [10] Karrin Cain, the wife of the respondent, gave evidence that she had moved in with Mr Cain from February 2000. She said that Mr Cain had been medication compliant since that time and that he did not drink alcohol. The night before the accident she -- 3 of 8 -- 4 gave evidence that she saw him take his disulfiram with a Berocca before leaving for work. She spoke to him at about 8.10am after the shift and he indicated that he had seen her friend in the ward of the hospital and was leaving. He sounded tired but otherwise alright. [11] Kathleen Taylor gave evidence that she had been Mr Cain’s nurse supervisor for approximately 3 months prior to April 2002. She said the night shift normally finished at 7am and then handover of patients finished between 7.20 and 7.30 am. On the day of the accident she remembers that Mr Cain had been called to casualty to assist with an intellectually impaired patient that he knew and that patient was then admitted to the ward. Handover finished on that day at about 7.25 or 7.30 am and then she had a discussion with Mr Cain about the patient which meant he left the ward at about 7.40 am. Mr Cain gave evidence that he went from the ward to visit a friend of his wife’s in another ward (at his wife’s request) before he left the hospital. She said at the handover there were no signs that he had been drinking and she was satisfied that he hadn’t been drinking. [12] At 10am she attended at casualty and spoke to Mr Cain after his admission. She did notice a smell on Mr Cain but whilst alcohol came to mind she did not think in the end that it was alcohol. She described it as a bitter smell that seems to come from his pores and is sometimes on his breath. She has noticed this on other occasions. She said when she saw him he was coherent but teary and upset at what had happened. [13] Medical evidence was called by the respondent. Dr Prowacki, a psychiatrist, gave evidence that he has been seeing the respondent since 1995 for depression and -- 4 of 8 -- 5 alcohol related problems. He was treated with Disulfiram as a type of aversion therapy for the alcohol abuse. People who take this drug and then drink alcohol experience flushing, nausea, vomiting, tachycardia, and hypotension. The effect of the drug stays in a persons system for 7-10 days. He had his liver function tested on 26 August 2002 and he had a gamma glutamyltransferase level of 16 which was fairly low and a sensitive indicator of alcohol consumption. This tends to show that he is not drinking regularly or excessively. [14] Dr Starmer, a pharmacologist, gave evidence that if the respondent was taking disulfiram and the amount of alcohol indicated by the certificate, he would be extremely ill. He said that a person with his reading would have been slurring his words, unsteady on his feet, flushed, bloodshot eyes and sleepy. He said that to reach the level of intoxication in the certificate, he would have had to have had 13 standard drinks between 7.40am and 8.35am. The blood analysis of 22 April 2002 showed a gamma GT reading of 19 which is inconsistent with hazardous drinking. Finally he said that the effect of taking Disulfiram was that the respondent would have a smell about him something like rotten egg gas. He said it was quite different from alcohol. The Law [15] S 80 (16B) of TORUM provides that a certificate signed by an analyst pursuant to that section is conclusive evidence of the matters contained in it unless the contrary is proved. Ss(16F) provides that the certificate is conclusive evidence of the concentration of alcohol in the person’s blood provided the sample is taken within 2 hours of the relevant time. This was done in this case. -- 5 of 8 -- 6 [16] However, there is provision for a person charged under the Act to rebut that presumption under 80(16G) of the Act which states: “The defendant may negative such evidence as aforesaid if the defendant proves that the result of the laboratory test of that specimen of blood was not a correct result.” [17] This appeal turns on an interpretation of these sections of TORUM. The Crown contends that unless there is evidence before the magistrate to show that there was something incorrect in the laboratory testing itself then the onus has not been discharged by the respondent and he must be convicted. The crown submits that it can never be sufficient to call evidence which conclusively shows that the person charged could not and was not drinking without being able to point to a flaw in the taking of the blood specimen, the continuity of the blood sample or the testing itself. [18] In my view this is plainly an incorrect interpretation of the Act. The flaw in the proposition can be seen by an examination of the provisions of the Act relating to breath analysis. [19] The provisions relating to breath analysis certificates are found in s80(15G) and s80(15H)of TORUM: “15G Evidence by a doctor or an authorised police officer or by a copy of certificate referred to in sub-s (15) purporting to be signed by a doctor or an authorised police officer of the concentration of alcohol indicated to be present in the blood of a person by a breath analysing instrument operated by such doctor or authorised police officer shall, subject to sub- section (15H), be conclusive evidence of the concentration of alcohol present in the blood of the person in question at the time (being in the case of such certificate the date and time stated therein) the breath of that person was analysed and at a material time in any proceedings if the analysis was made not more than 2 hours after such material time, and at all material times between those times. -- 6 of 8 -- 7 15H The defendant may negative such evidence as aforesaid if the defendant proves that at the time of the operation of the breath analysing instrument it was defective or was not properly operated.” [20] There is a clear difference between the two evidentiary provisions relating to certificates. As the sections relate to penal provisions they must be strictly interpreted and it must be, in my view, assumed that the differences are intentional. The only logical inference that can be drawn from s80(16G) and s80(15H) is that whilst the only way to challenge a certificate under ss15G is by attacking the instrument that analysed the breath, the provisions of ss16G allow for a wider general challenge. [21] The Act clearly intends that the certificate should be persuasive evidence and in the absence of compelling evidence to the contrary it would normally be expected that the certificate would provide sufficient evidence for the prosecution to prove its case. It is not the case, however, that the certificate cannot be found to be inaccurate other than by direct challenge. During the course of argument I was referred to a number of cases dealing with challenges to certificates issued under the Traffic Act.1 Both of those cases dealt with breath analysis cases where the evidentiary provisions were similar to the provisions in s 80 (15H) of TORUM. The court there held that the conclusive nature of the certificate was not displaced and that s24 of the Criminal Code had no application. Those cases relate to different questions than the issue here and are therefore of limited assistance. Conclusion 1 See Smith v Le Mura exparte Smith (1983) Qd R 535 ; Steenstrup v Bell exparte Steenstrup OSC 5 of 1982 -- 7 of 8 -- 8 [22] The learned Magistrate did not lightly dismiss the certificate tendered or the evidentiary provisions relating to it. In a detailed judgement she carefully analysed the various witnesses evidence. She found the defence witnesses to be credible and reliable. She was in the best position to assess the credibility of the witnesses and her findings in that regard should not, in the normal course, be ignored2. [23] In my view, the magistrate correctly addressed the standard of proof that needed to be applied. She relied heavily, as she was entitled, on the expert evidence which corroborated the evidence of the respondent, his wife and his supervisor and she considered the fact that on all the evidence the respondent did not present as a person who was heavily intoxicated. [24] Having made reasoned and supportable findings of credit in relation witnesses in favour of the respondent, there was ample evidence from which the magistrate could conclude on the balance of probabilities that “the result of the laboratory test of that specimen of blood was not a correct result.”3 Having reached that conclusion, the respondent was entitled to be acquitted. ORDER The appeal dismissed. The appellant is ordered to pay the respondent’s costs of and incidental to this appeal to be assessed unless otherwise agreed. 2 See Devries and anor v Australian National Railways Commission and anor (1992-3) 177 CLR 472 at 479 3 S80 (16G) TORUM -- 8 of 8 --