Last month the Supreme Court delivered its judgment in another drink-drive decision, DPP v Novakovic [2012] VSC 397. (The judgment only popped up on Austlii recently, which spurred me to get around to this post.)

This case dealt with a charge of refusing to permit a blood sample to be taken following two attempts to obtain a breath analysis, contrary to Road Safety Act 1986 s 49(1)(e).

Mr Novakovic was stopped by the police on 14 March 2011, somewhere in Geelong. He accompanied the police informant Leading Senior Constable Jeffrey Smith to the Geelong police station. He made two attempts at a breath test, but both resulted in ‘insufficient sample’ printouts.

The informant then said, “You have given two insufficient samples of breath into the breathalyser instrument and, as such, I now require you to undergo a blood test. Do you understand?”

Mr Novakovic replied, “No, I’m allergic to needles, I am not having a blood test.”

The informant said, “…are you aware if you refuse the blood test, having given two insufficient samples of breath into the breathalyser instrument, you will lose your licence for a minimum of two years and receive a substantial fine at court?”

Mr Novakovic didn’t say anything.

The informant said, “You have given, as I indicated, two insufficient samples of breath into the breathalyser instrument, and, as such, I now again require you to undergo a blood test. Do you understand?”

Mr Novakovic answered, “No, I’m not. I don’t have needles. I’m allergic to them.”

The informant told Novakovic the matter would be reported, and Novakovic left the police station.

He was later charged that:

The accused at geelong [sic] on 14th March 2011 after having been required by a member of the Police Force to allow a sample of blood to be taken from him pursuant to Section 55(9A) of the Road Safety Act 1986, did refuse to allow such blood sample to be taken within three hours of the driving of a motor vehicle.

It’s worth highlighting at this point that s 49(1A)(c) provides:

(1A) A person may be convicted or found guilty of an offence under paragraph (c), (ca), (e), (ea) or (eb) of subsection (1) even if—

…

(c) in the case of an offence under paragraph (e)—

…

(iii) the person requiring a sample of blood had not nominated a registered medical practitioner or approved health professional to take the sample; and

(iv) a registered medical practitioner or approved health professional was not present at the place where the requirement was made at the time it was made; and

The magistrate dismissed the charge. Reading that part of the magistrate’s reasons contained in the appeal, it seems that there was some argument about whether the informant had formed one of the two opinions required to found a requirement for blood under Road Safety Act s 55(9A), but the dispute was resolved in favour of the prosecution.

The magistrate dismissed the charge after concluding Novakovic should have been advised when the blood request was made that he might be taken to a hospital, and be required to stay there until 3 hours had lapsed since he drove or a blood sample was taken.

The appeal

Interestingly, Mr Novakovic’s aversion to needles didn’t feature in the appeal. Fear of needles is variously called aichmophobia, belonephobia, or enetophobia, depending on which dictionary you reach for. As far as I know, there are no Australian cases dealing with the point, but there are some UK ones, with the leading case that of DPP v Jackson; Stanley v DPP [1999] AC 406. In that case, Jackson had replied to the police request for blood with, “I don’t like needles but I’m not giving anything anyway.” That was held to be an express refusal, and he was convicted of that offence. Stanley had said, “No, I don’t want no needle.” His only defence was for medical reasons determined by a medical practitioner. Without such a determination, his conviction was upheld.

The case suggests though, that a genuine medical phobia might establish a defence. And in light of Dover v Doyle [2012] VSC 117 — discussed here — I reckon it might succeed. But that’s for another day…

This appeal dealt with two main issues, at [5] – [6]:

1. Did the offence require that the informant tell Mr Novakovic of the three-hour time limit for his obligations?
2. Did the offence require that the informant tell Mr Novakovic he was required to allow a registered medical practitioner or authorised health professional to take his blood sample?

The Court held the informant did not need to tell Mr Novakovic he had to remain for three hours, or that his obligation to remain or provide a sample of blood only applied for three hours since driving. That’s consistent with DPP v Piscopo (2011) 59 MVR 200 at [66] and DPP v Rukandin (2011) 59 MVR 222 at [17], and Uren v Neale (2009) 53 MVR 57 (discussed here), and DPP v Foster.

The new development in drink-driving law was for the second issue. At [47] – [51] the Court held that it was essential for the police to convey to Mr Novakovic that the requirement was to permit a medical practitioner or approved health professional to take his sample of blood. This was said to be found in the requirement contained in s 55(9A).

I have to say though, it seems peculiar we are now in a position where precedent dictates that some requirements listed in s 55(9A) are ‘additional subsidiary powers’ — at [46], point 2 — and need not be communicated to a motorist, while some are essential and must be communicated.

So the police must tell a motorist of the requirement for a medical practitioner or approved health professional to take blood, but not of the requirement to remain only for up to three hours, even though both requirements are stated in s 55(9A).

I don’t know if the DPP has sought leave to appeal the decision, but the 14-day time limit passed on 21 September 2012.

Some other observations

I wondered initially if the charge of refusing to allow blood was the right one, or if the proper charge was refusing to remain.

In this case, the informant required Mr Novakovic to provide a blood sample, and Novakovic said he would not. And in light of s 49(1A)(c) that I mentioned above, an ‘anticipatory’ breach is a good enough to constitute a breach. That analysis was accepted by the Court at [42].

One aspect of the judgment I’m not sure about though is at [30], where the Court said:

The Director correctly characterised the charge…as one of ‘refusal to furnish’, rather than a ‘refusal to accompany’. He cites DPP v Foster as authority for the proposition that a refusal to furnish a sample of breath is the primary requirement under s 55(1) and that the requirements to accompany and remain are subsidiary and submits that the reasoning behind the decision in Foster is equally applicable in the case of sub-s(9A).

Certainly the charge could be alleged as a refusal to furnish, but I wonder if the alternative ought to have been a refusal to remain? I say this because in DPP v Piscopo (2011) 59 MVR 200 at [23] – [25], [46] and [66] the Court of Appeal held that the requirements to accompany and remain are separate and distinct, and at [66] that a requirement to remain must specify the purpose and time-limit of that requirement.

But, in the lead judgment, Ashley JA also said at [66], “I consider, in the event, that s 55(1) should be interpreted as meaning that, in every case where a requirement to remain must be stated — and in practical terms that will mean every case, because there will always be some time elapse between arrival at the specified place or vehicle and the furnishing of the (initial) sample — the requirement must specify its purpose and the temporal limit.” (Emphasis added.)

What Ashley JA recognised that although the legislation orders the requirements as ‘furnish-accompany-remain’, in practice they can only occur in the order of ‘accompany-remain-furnish’. (Though the present legislation provides that an ‘anticipatory’ breach can now occur at any stage.) Only in that sense can requirements to accompany and remain be considered ‘subsidiary’. Winneke P in DPP v Foster said at [48]:

It is, to my mind, abundantly plain from a reading of s 55(1) that the requirement to furnish a sample of breath for analysis by a breath analysing instrument can only sensibly be made at the time when the device is presented to the motorist at the police station (or other place). That, as I see it, was the view taken by Southwell J. in Rankin v. O’Brien (above, at 73) when considering different, but for present purposes, similar legislation which existed in s. 80F of the Motor Car Act 1958. Indeed, in my view, the words of s. 55(1) themselves imply that the requirement to “furnish a sample of breath” is to be made when the instrument is presented to the motorist because it is stated that the relevant member of the police force “may require the person to furnish a sample of breath for analysis…and for that purpose may further require the person to accompany a member of the police force…to a police station ” (emphasis added). In other words, the section itself makes it plain, as I see it, that the power to make the latter requirement is to facilitate the purpose for which the power to make the primary requirement is given, which can only sensibly be exercised when the motorist is confronted with the machine.”

So, given that Mr Novakovic had accompanied the informant to the Geelong police station, he could never have been liable to a charge of failing to accompany, surely?

Part of the bind the courts now find themselves in is that the neat logic of Winneke P’s reasoning in DPP v Foster is gradually eroded by piecemeal legislative amendment. The notion of ‘anticipatory’ refusal has come about because of amendments to overcome Halepovic v Sangston (2003) 40 MVR 203. It might have made sense for that particular offence, but has really undermined the scope of refuse-to-remain offences. The whole point originally of the three-hour rule was to provide sufficient time for the police to get breath-test operators from the old Traffic and Alcohol Section in Brunswick to any police station, or forensic nurses to take blood tests.

The amendments to overcome Halepovic v Sangston were designed purely for the convenience of the police: see the explanatory memorandum, and also some of the Parliamentary debates. Those amendments meant the police didn’t have to call out a doctor to attend when someone made it clear they weren’t going to provide a sample. Fair enough.

But, the current legislation results in no need for the police to tell a motorist all of the motorist’s obligations, or the consequences for non-compliance, and liability for non-compliance based on what the police anticipate the motorist will do. If anticipatory refusals could only result in a fail to remain charge — which does require the police to tell the motorist the extent of the motorist’s obligations — the scheme would probably be unobjectionable.