Last week the Supreme Court held that refusing a blood test must be done consciously and voluntarily in order to attract criminal liability.
On 5 December 2007 Deborah Dover hit her head on the road when she was driving. Quite how that happened isn’t explained in the judgment. (Perhaps she had an accident?) She was taken to hospital, and a doctor tried to take a sample of her blood for eventual alcohol analysis. She was aggressive and uncooperative, and refused to allow the doctor to take her blood.
She was charged with refusing to permit a blood sample, contrary to s 56(2) of the Road Safety Act.
At the County Court, the requesting doctor gave evidence and apparently said that Mrs Dover behaviour been from a severe head injury. Ms Dover’s treating neurologist supported that. (Again, it’s not clear if he gave evidence or provided an expert report admitted in evidence.)
The County Court held it was not an element of the offence for a refusal to be a conscious and voluntary act, and so convicted Ms Dover of the offence.
She sought review of that at the Supreme Court. (This is the only mechanism available to an accused person following a County Court appeal. A recent example of trying the other pathway — an appeal under the Criminal Procedure Act — and the lack of success that seems likely is Brown v Loveday  VSCA 57.)
At  –  the Court reviewed many of the leading authorities on voluntariness, both generally in the criminal law and in driving offences. I’m not going to cut-and-paste them all here, but they do bear reading: it’s a great summary of the cases and principles.
Bell J noted the presumption of voluntariness (citing R v Falconer (1990) 171 CLR 30) and that the accused must meet an evidentiary burden to raise voluntariness as a real issue before the prosecution must prove this as a separate element rather than rely on the presumption.
Bell J summed up his review of the authorities by saying:
 On these authorities, it is a basic and fundamental principle of the common law that a person is criminally responsible only for their conscious and voluntary acts. The prosecution must therefore establish beyond reasonable doubt that the act constituting the alleged crime was done in the exercise of the accused’s will to act. As there is an evidentiary presumption of voluntariness, it is not usually necessary for the prosecution to supply express proof of this element. But where the issue is legitimately raised, the prosecution must prove beyond reasonable doubt that the accused’s acts were conscious and voluntary. These general principles apply equally to statutory offences, including driving offences, subject to contrary provision.
Voluntariness an element of refusing?
His Honour then turned to the real issue in this case. I confess I didn’t know of any cases on all-fours with this scenario: I’d simply assumed that voluntariness was an element, and when raised had to be proved beyond reasonable doubt by the prosecution. (There’s one case of Russell (1993) 70 A Crim R 17 which suggests the possibility — and now that I look that up, Cooper v McKenna; Ex parte Cooper  Qd R 406 and Edwards v Macrae (1991) 14 MVR 193 — but it doesn’t really go any further than that.)
The Court then considered s 56, and held nothing there displaced the presumption of legality — the presumption that Parliament does not intend to interfere with common law rights and freedoms except by clear and unequivocal language: Momcilovic v The Queen (2011) 209 A Crim R 1 at .
 In my view, the provisions of s 56(2) do not expressly abrogate the principle of voluntariness. Nor do the provisions implicitly abrogate that principle. There is nothing in the language of s 56(2), the context of the section or the legislation as a whole or the legislative purpose to suggest unmistakably and unambiguously that the provisions should be interpreted so as to abrogate the principle. In s 56(2), the word ‘allow’ is a verb meaning ‘permit’. The person ‘must allow’ the sample to be taken, which compels them actively to permit the sample to be taken. The active step of allowing, in the sense of permitting, a sample to be taken can only be taken by someone acting consciously and voluntarily. Their intention is not relevant, but their acts must be conscious and voluntary.
The Court held that voluntariness was indeed an element of the offence, and remitted the case back to the County Court for ‘hearing and determination according to law’.