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Legal Writing & Research: Assessment 2: Court Report

Introduction The Magistrates Court is the first tier in the Queensland Court system, responsible for adjudicating the initial appearance in 95% of all criminal matters. 1 The Magistrate must act dichotomously; upholding the common law right to a fair trial2 whilst managing the increased pressure to execute the daily mention list as efficiently as possible. 3 For the purposes of this report, a summary hearing held on 2 August 2018 in Richlands Magistrates Court was observed, with the basis of the action being an offence again s 80 of the Transport Operations (Road Use Management) Act 1995 (Qld)4 (“TORUM Act”). The matter was heard before Magistrate Aaron Simpson (“Magistrate) and the involved parties were the State’s prosecution, represented by solicitor Mr Berger, and the defendant, Mr Broderick, who appeared for himself. This essay will provide a detailed account of the judicial process of a summary hearing; outlining the main arguments presented by both parties, key legal issues for determination, final judgement delivered and a critical analysis of the Magistrates ability for to sustain a balanced trial within the busiest system of all the Queensland Courts. Material Facts On or about 9:30pm on 5 July 2018 the police were conducting a roadside breath test (“RBT”) and drug saliva tests in Sherwood when they intercepted a car driven by the defendant. The police administered the RBT and drug saliva test on the defendant, with the RBT producing a Nil reading and the saliva drug test returning a positive result, indicating the defendant was under the influence of an illicit substance. Subsequently, the defendant was detained by police for the purposes of undertaking a second saliva drug test pursuant to s80(8)(a) TORUM Act. The police were unable to locate an officer authorised to administer the saliva analysis instrument, and with regulations set out in the Police Service 1 The State of Queensland (Queensland Courts), About the Magistrates Court (8 February 2018), Queensland Courts < https://www.courts.qld.gov.au/courts/magistrates-court>. 2 Dietrich v The Queen (1992) 177 CLR 292, 298 (Mason CJ and McHugh J). 3 Chambers of the Chief Magistrate, Magistrates Court Annual Report 2016-2017 (20 October 2017)

4 Transport Operations (Road Use Management) Act 1995 (Qld) s 80.

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Legal Writing & Research: Assessment 2: Court Report

Administration Regulation 2016 (Qld) prohibiting arresting officers administering secondary tests,5the defendant was transported to Canossa Hospital for the purposes of providing a blood sample. Upon arrival at the hospital, the defendant refused to provide a blood specimen due to a fear of needles. The police informed the defendant if he failed to provide a blood sample he would be charged with that offence, carrying a higher penalty in comparison to a drug driving offence, however, the defendant did not comply. As such, the hospitals registered nurse completed a Failure to Supply a Specimen of Blood Certificate and the defendant was served a copy. The defendant was conveyed to Sherwood Police Station where he was served with an Immediate Drivers License Suspension and a Notice to Appear in Richlands Magistrates Court before being released from police custody. Legal Issues As the material facts were not in dispute, there were two legal issues for the Magistrates determination; (1) whether the police breached their powers set out under the relevant provisions of the Police Powers and Responsibilities Act 2000 (Qld),6 with considerations of whether the requisition of the defendant to supply a blood specimen was lawfully made to pursuant to s80 TORUM Act;7 and (2) whether provisions for when a person is to be found not guilty of failing to provide a blood under s80(11) TORUM Act can be satisfied.8 Defence Arguments The defendant conceded that the he was lawfully detained pursuant to s80(8A) TORUM Act,9 however, only for the purposes of collecting a specimen of saliva pursuant to s80(8)(e) TORUM Act.10 The defendant alleged he was not being held in police custody for the purpose of supplying a specimen of blood, therefore making this period of detainment unlawful and in 5 Police Service Administration Regulation 2016 (Qld). 6 Police Powers and Responsibilities Act 2000 (Qld). 7 Transport Operations (Road Use Management) Act 1995 (Qld) s 80. 8 Ibid s 80(11A). 9 Ibid s 80(8A). 10 Ibid s 80(8)(e).

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Legal Writing & Research: Assessment 2: Court Report

breach of s365 PPR Act.11 Furthermore, the defendant argued the requisition to supply a blood specimen was not lawfully made as the legislative provisions providing police the power to detain a person for this purpose do not include circumstances of the police having an inability to administer a saliva analysing instrument .12 The defendant also claimed his ongoing willingness to comply with undertaking the second saliva test demonstrated a “…substantial character for his failure to provide a specimen of blood, other than the desire to avoid providing information that might be used in evidence…”, therefore satisfying provisions of under s80(11A) TORUM Act of when a person is to be found not guilty to the offence of failing to provide a blood sample.13 Prosecution Arguments The prosecution argued that the request for the defendant to supply a blood specimen was lawfully made by the police, with the defendant’s positive saliva test providing the police the authoritative power to detain the defendant pursuant to s80(6)(c) TORUM Act.14 Furthermore, the prosecution submits that the defendant has not produced any evidence to substantiate the claim of failing to provide a blood specimen for “reasons of substantial character” and therefore the provision under s80(11A) TORUM Act cannot be applied.15 Magistrates Judgement With consideration taken to the agreed facts, the Magistrate determined the police requisition of the defendant for the purposes of providing a blood sample was lawfully made pursuant to s80(8A) TORUM Act.16 Furthermore, the Magistrate found that the agreed facts contradicted the defendants claim of established that the defendants refusal to supply a specimen of blood was demonstrated the defendant’s non-compliance with providing a blood sample was not as the defendant stated but rather due to the defendant being informed of the inability of the

11 Police Powers and Responsibilities Act 2000 (Qld) s 365. 12 Transport Operations (Road Use Management) Act 1995 (Qld) s 80. 13 Ibid s 80(11A). 14 Ibid s 80(6)(c). 15 Ibid s 80(11A). 16 Ibid s 80(8A).

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Legal Writing & Research: Assessment 2: Court Report

police to administer the secondary saliva test, thus, determining the defendant’s actions were unreasonable. The Magistrate disagreed with the defence submissions to apply provisions set out under s80(5A) TORUM Act, referring to the case of Murphy v Porter (1985) where it was held that “…a reason of substantial character means more than a reasonable excuse…”.17 Therefore, the Magistrate was satisfied beyond a reasonable doubt that the defendant had failed to provide a specimen as required by the police pursuant to s80(5A) TORUM Act. As such, the Magistrate found the defendant guilty. Case Precedents While neither the prosecution or defendant upon case law to support their arguments, if the defendant had submitted evidence to support his alleged fear of needles then perhaps he may have sought a statutory interpretation of the provisions requiring the police to “…ensure fairness and to protect the rights of persons whom the police exercise power over…” under s12 PPR Act.18 The defendant was expected to comply with the police request of undertaking an alternate testing method when the police were unable to administer the second saliva testing, however, when the defendant informed the police his inability to produce a blood sample due to his fear of needles, no alternate testing was offered to the defendant when there are additional drug testing methods, such as urine testing. Therefore, it may have been deemed that the police were in breach of the relevant provisions pursuant to the PPR Act. Furthermore, perhaps the defendant could have relied upon the agreed material facts and raised the case of Lee v NSW Crime Commission whereby it was held by Kiefel J that the legislative provisions providing the police the power to request a blood specimen “…must be expressed – it cannot be assumed…”. 19 The material facts confirm that the police did not inform the defendant they had alternated this drug test method until the arrival at the hospital, therefore the precedent set by Kiefel may have been applied.

17 Murphy v Porter, ex-parte Murphy (1985) 1 Qd R 59. 18 Police Powers and Responsibilities Act 2000 (Qld) s 12. 19 Lee v NSW Crime Commission (2013) 251 CLR 196.

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Legal Writing & Research: Assessment 2: Court Report

Critical Analysis As the material facts were agreed to by both parties, the prosecution only needed to rely upon these as evidence to prove beyond a reasonable doubt the defendant had committed the offence of failing to provide a blood sample as the defendant has agreed the police officers statement of events are true and correct. While the defendant did not use extrinsic material to support his arguments, he did raise aspects of the relevant legislation which have varying ways of being interrelated. The Magistrate was fair with the time given to each party to present their case and did not express a sense of having an underlying need to work through his mention list quickly, regardless of the fact the hearing was for a minor criminal offence, however, the power imbalance between a qualified and experienced State prosecutor compared to a selfrepresented defendant was significantly evident. Perhaps if the defendant was able to have legal counsel, his defence may have submitted relevant case precedents and evidence to support the defendant’s arguments, requiring statutory interpretation of the relevant legislation thereby potentially receiving a different outcome.

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