Last week the Court of Appeal delivered an easy-to-digest and concise appeal in DPP v Dover [2013] VSCA 233 confirming that a driver must act voluntarily before they can be guilty of refusing a blood test following an accident.

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In April last year I posted about Dover v Doyle [2012] VSC 117, the case where a driver was found not guilty of refusing to allow a blood test following an accident because her actions were not voluntary.

The DPP appealed that decision on two grounds:

1. The learned judge erred in holding that in order to prove the commission of an offence against s 56(2) of the Act, the prosecution must establish that the person’s omission to allow a doctor or approved health professional to take from that person a sample of that person’s blood for analysis is conscious and voluntary.
2. The learned judge erred in holding that s 56(2) of the Act creates a strict liability offence.

Maxwell P, Tate JA and Garde AJA unanimously dismissed the Director’s appeal. The judgment helpfully details a bit more of the facts surrounding the alleged offending, as well as the evidence led in the County Court appeal, which helps make it easier to understand why voluntariness was properly raised and was in issue.

On ground 1, Tate JA (delivering the leading judgement) said:

38 In my view, the DPP’s submissions failed to appreciate the force of the presumption that the criminal law only punishes conduct which is voluntary. It is not a presumption which can be easily displaced by examples from non-criminal contexts where ‘allowing’ a situation to occur may occur while one is unconscious. The presumption is a strong one, as made clear by statements made by Gleeson CJ in Edwards v Macrae (1991) 14 MVR 193 at 198 – 9:

[A]lthough parliament may by clear words provide to the contrary, the criminal law only punishes conduct which is voluntary. The strength of that presumption was emphasised by Jordan CJ in R v Turnbull … In O’Connor Barwick CJ went so far as to say:

‘In Ryan’s Case I attempted a summary statement of the principle that in all crime, including statutory offences, the act charged must have been done voluntarily, i.e. accompanied by the will to do it. I find no need to qualify what I then wrote. I stated the principle without qualification.’

I do not take his Honour to mean that parliament could not, by appropriate language, make it clear that a contrary position was to apply in relation to some offences. However, the passage quoted demonstrates the strength of the presumption.

39 In Edwards v Macrae Gleeson CJ held that the defence of automatism may sometimes be a defence to a charge of driving a motor vehicle while there is present in the person’s blood the concentration of alcohol prescribed by statute.

40 As Bell J recognised, the presumption is fortified by the principle of legality, that being the principle (stated in cases such as Coco v The Queen and Lacey v Attorney-General (Qld) that in the absence of ‘unmistakeable and unambiguous language’, a statutory provision should not be read as expressing a parliamentary intention to abrogate basic rights, freedoms or immunities.

41 In my view, the DPP has been unable to demonstrate that the presumption that the criminal law only punishes conduct which is voluntary has been displaced in the context of s 56(2) of the Act. I agree with Bell J’s observation below that to ‘allow’, in the context of the section, means to ‘permit’, the same meaning attached to ‘allow’ by Phillips JA in Wallin v Curtain (1998) 100 A Crim R 506 and I consider that in the context of s 56(2) it necessarily involves a person acting consciously and voluntarily. The Parliament has not made manifestly clear an intention to override the strong and long-established presumption of voluntariness in relation to criminal offences.

42 The presence of the exception in sub-s (5), which, as mentioned above, provides that a person is deemed to allow the taking of blood if unconscious or unable to communicate, reinforces this point: it is because the person is incapable of conscious or voluntary action that he or she must be deemed to allow the taking of blood in order to avoid any legal consequences which might accrue to the doctor for taking a person’s blood in those circumstances. This subsection provides an exception to the general rule that, as Phillips JA said in Wallin v Curtain, in this context ‘a choice is presented’: the person may, consciously and voluntarily, elect to allow the taking of a blood sample or refuse to allow the doctor to take a sample.

43 I reject the submission that the interpretation proposed by the DPP is necessary in order to fulfil the purposes of the Act. The purposes of the Act, and of Part 5 in particular, can be advanced consistently with an interpretation which is faithful to those presumptions at law that are based on matters of principle. It would be wrong to assume that, when faced with constructional choice, the interpretation to be adopted is one that has as a single objective the furtherance of the purposes of an Act as though the legislation existed in a vacuum, unaffected by the presumptions at common law developed over time.

44 With respect to the legislative history, in my view it cannot be concluded that the legislative amendments, introduced to shift the obligation from doctors to take a blood sample whether or not the person allowed it onto the person to allow the sample to be taken, did not have as a consequence that there may be some circumstances in which no blood sample is taken and yet no offence is committed. This may simply be a consequence of relieving doctors of what must have been perceived to be a disproportionately onerous obligation.

45 In my opinion, Bell J was correct to conclude that voluntariness is an element of the offence created by s 56(2) which, if raised as a fact in issue by the defence, must be established beyond reasonable doubt by the prosecution.

Of course, the caveat that appears in that last paragraph is important: the accused must meet their evidentiary burden to rebut (or at least displace) the presumption of voluntariness, otherwise all of this is irrelevant.

The second ground came about because Bell J said in Dover v Doyle [2012] VSC 117 at [20]:

The question whether Ms Dover’s refusal was intentional does not arise because s 56(2) creates a strict liability offence in the sense that a person who, in the circumstances specified, refuses to allow a sample of blood to be taken commits the offence whether or not they intend to do so. The separate question which is at issue in this case is whether the prosecution must prove the refusal was conscious and voluntary. [Emphasis added.]

In this appeal, Tate JA said the difference between strict and absolute liability offences didn’t matter in this appeal, because it wasn’t part of the argument or reasons for the outcome.

48 …The DPP urged that an offence of strict liability is one which does not depend on proof of any mens rea or fault element, although the defence of ‘mistake of fact’ is available. By contrast, offences of ‘absolute liability’ are those where the defence of mistake of fact is not available.

49 The complaint of the DPP was, first, that the question of whether the defence of mistake of fact was available to Dover was not in issue before his Honour and it was therefore unnecessary for him to express a conclusion on the matter. Secondly, it was submitted that s 56 is an offence of absolute liability which does not permit a person to escape liability on the basis of a mistaken belief that, for example, he or she had been asked for a sample of bone marrow rather than a sample of blood.

50 I make no finding in respect of the nature of the offence created by s 56(2) as the issue was not properly raised by the circumstances of the case. No attempt was made to rely on a defence of honest and reasonable mistake and nothing turns on Bell J’s observations on this point. [Citations omitted.]