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Supreme Court 8 November 2007

DPP v Bolton

[2007] NSWSC 1030

Also reported as 178 A Crim R 460
Traffic & driving
CRIMINAL LAW REFUSE TO UNDERTAKE BREATH TEST FORM OF WORDS USED WHETHER SUFFICIENT REQUIREMENT

Citation: DPP v Bolton [2007] NSWSC 1030
Court: Supreme Court of New South Wales
Date: 8 November 2007
Judge(s): Rothman J

Background

The defendant, a serving police sergeant, was driving home in the early hours of the morning after attending a colleague's retirement function, during which he had consumed alcohol. His vehicle was stopped by two constables conducting a random breath test. After the vehicle was stopped, the defendant and his two off-duty police passengers immediately got out of the car, and a general discussion ensued lasting approximately ten minutes about what should happen with the breath test.

A supervising officer was called to the scene given the seniority of those involved. The constable administering the test gave directions on how to blow into the alcometer device, but the defendant turned his head away and refused to provide a sample. He then left the scene by climbing a fence and walking to a nearby highway.

The defendant was charged with failing or refusing to undergo a breath test under section 13(2) of the Road Transport (Safety and Traffic Management) Act 1999 (NSW). The Local Court magistrate acquitted him, finding that the constable's words constituted directions on the manner of compliance but did not amount to a formal requirement to undergo the test. The DPP appealed that acquittal to the Supreme Court on a question of law.

  • Whether the magistrate correctly construed section 13(2) of the Road Transport (Safety and Traffic Management) Act 1999 (NSW) in holding that a formal verbal "requirement" to undergo a breath test was a necessary precondition to the offence being established.
  • Whether directions given by a police officer that, if followed, would result in a breath test being taken are sufficient to constitute a "requirement" to undergo that test, without the use of explicit words such as "you are required to undergo a breath test."
  • Whether the absence of the words "for this random breath test" in the constable's instructions was fatal to the prosecution case.

Decision

The magistrate had acquitted the defendant on the basis that the constable's instructions told him how to blow into the device but did not expressly require him to undergo the test. The magistrate treated the absence of the phrase "for this random breath test" as critical, drawing on the High Court's analysis in Hammond v Lavender to hold that both a requirement and directions for compliance were necessary, and that only the latter had been given.

Rothman J rejected that construction. His Honour held that section 13(1) of the Act entitles a police officer to "require a person to undergo a breath test in accordance with the officer's directions," and that on the preferable reading of the provision, the giving of directions is itself sufficient to constitute the requirement. Provided that the directions, if followed, would result in a breath test being taken, the requirement is established, and a refusal or failure to comply is capable of founding the offence.

The Supreme Court found the magistrate erred in law by requiring that a specific form of words be used amounting to an express demand separate from the directions themselves. No such additional verbal formula is prescribed by the legislation, and the magistrate's approach imposed a condition on the offence that the statute does not contain.

Orders Made

  • Time to file the appeal summons extended to 22 May 2007, the date it was filed.
  • The magistrate's orders dismissing the charge of failing to undergo a breath test were set aside.
  • A declaration issued that the magistrate erred in law in construing and applying section 13(2) of the Road Transport (Safety and Traffic Management) Act 1999.
  • The proceedings were remitted to Hornsby Local Court to be heard and determined according to law.
  • The defendant was ordered to pay the plaintiff's costs of the appeal, as agreed or assessed.
  • An indemnity certificate was granted to the defendant under the Suitors' Fund Act 1951 (NSW).

Key Takeaways

  • Under section 13 of the Road Transport (Safety and Traffic Management) Act 1999 (NSW), a police officer need not use a prescribed form of words expressly demanding a breath test; directions given that would, if followed, result in the test being taken are sufficient to constitute a "requirement" within the meaning of the provision.
  • The Supreme Court confirmed that the magistrate's construction imposed an additional element onto the offence that the statutory text does not support.
  • Explicit words such as "you are required to undergo a breath test" or "for this random breath test" are not a legal precondition to the offence under section 13(2) being made out, according to this decision.
  • In setting aside the acquittal, the court remitted the matter for rehearing, meaning the question of guilt or innocence on the correct legal approach remained for the Local Court to determine.
  • An indemnity certificate under the Suitors' Fund Act 1951 was available to the defendant even where the acquittal was overturned on a DPP appeal, providing some protection against costs exposure arising from the legal complexity of the point.

Legislation and Cases Referenced

Legislation:
- Road Transport (Safety and Traffic Management) Act 1999 (NSW), s 13
- Crimes (Appeal and Review) Act 2001 (NSW)
- Suitors' Fund Act 1951 (NSW)
- Supreme Court Rules, Part 51B r 6(2)(a)

Cases:
- Hammond v Lavender (1976) 11 ALR 371
- Attorney General for the State of New South Wales v X (2000) 49 NSWLR 653
- Australian Gaslight Co v Valuer-General (1940) 40 SR (NSW) 126
- Hutchinson v RTA [2000] NSWCA 332
- Police v Spitzer (2003) 85 SASR 431
- R v Clarke [1969] 2 All ER 1008
- R v Nicholls [1972] 2 All ER 186
- Williams v R (1986) 161 CLR 278