Chew (Police Inspector) v Gray

• Jurisdiction: Bermuda
• Judgment Date: 25 October 1985
• Date: 25 October 1985
• Docket Number: Criminal Appeal 1985 No. 19
• Court: Court of Appeal (Bermuda)

In The Court of Appeal for Bermuda

Before: Blair-Kerr, P; daCosta, JA; Henry, JA

Criminal Appeal 1985 No. 19

BETWEEN:

DAVID CHEW (POLICE INSPECTOR)

Appellant

v

MARK VICTOR GRAY

Respondent

Mr B Calhoun for the Appellant

Mr J Riihiluoma for the Respondent

The following cases were referred to in the judgment:

R v DurrantUNK [1969] 3 All ER 1357

Rowlands v HamiltonUNK [1971] 1 All ER 1089

R v Newcastle Justices ex parte HindleUNK [1984] 1 All ER 770

Dawson v LunnTLR Times 13 December 1984

R v Moreau (1978) 89 DLR (3rd) 449

R v Davis (1973) 14 CCC (2nd) 513

R v Gallagher (1981) 64 CCC (2nd 533

R v Yonkheym (1982) 30 CR (3rd) 27

R v Crosthwait (1980) 111 DLR (3rd) 431

R v Schafer [1971] WWR 692

R v Young (1979) 30 NSR (2nd) 381

R v Kizan (1981) 9 MVR 173

R v Sambrooke (1981) 8 WEB 174

R v Parent (1982) 8 WEB 174

Abstract:

Drink driving - Consumption of alcohol after driving - Court cannot speculate as to rate at which alcohol is absorbed by body - What constitutes "evidence to the contrary" - Whether taking alcohol after offence is in itself sufficient to the contrary - Absence of medical evidence as to effect on alco-analyser - Persuasive effect of Canadian authorities

JUDGMENT of BLAIR-KERR, P

1. Between 7:15 PM and 7:30 PM on 14 October 1984, a minor traffic collision occurred on Duke of Kent Street, St George's. The handgrip of the Respondent's motorcycle struck the mirror of private car being driven in the opposite direction by a Mr. Hamilton. Both vehicles stopped and each driver accused the other of responsibility. To avoid holding of oncoming traffic they agreed to remove their vehicles down the road where it is wider in order to discuss the collision and exchange names and addresses.

2. Mr. Hamilton parked his car at the agreed spot, but failed to see the Respondent. Assuming that he had gone in the direction of the police station, Mr. Hamilton went to the police station and reported the accident. But there was still no sign of the Respondent.

3. The Respondent did not report the accident to the police. His story was that he was "shaken" as a result of the accident; that he went to the Fort William Bar and consumed a double vodka; and that he then went home and consumed two 12 ounce bottles of beer.

4. The police spoke to his father by telephone. His father informed the Respondent that the police were looking for him; and his father drove him to St George's Police Station.

5. PC Wolfe interviewed the respondent at 8:20 PM. Wolfe told him that he wished to talk to and concerning an accident which occurred "less than an hour ago". According to Wolfe, the Respondent's eyes were bloodshot, he appeared uncoordinated in movement, and smelled strongly of toxic aid in liquor.

6. The Respondent was arrested and taken to Hamilton Police Station. On the way, according to Wolfe, the Respondent said: "I can't help it, you know I am an alcoholic."

7. At 9:06PM, the Respondent provided a sample of breath into the approved Alco-Analyser machine. A reading was obtained from that machine which indicated that the Respondent's blood-alcohol level was then 213 mg of alcohol in 100 ml of blood.

8. He was charged with two offences:

i. That he drove a motor vehicle when the proportion of alcohol in his blood exceeded 100 mg in 100 ml of blood, contrary to section 35B of the Road Traffic Act 1947; and

ii. That, being involved in an accident causing damage to property, he failed to give his name and address when requested to do so by the owner of the property, contrary to section 42(1)(b) of the Road Traffic Act 1947.

9. The Magistrate convicted the Respondent of both charges. On the first charge he imposed a fine of $250 and disqualified him from driving all vehicles for 9 months. On the second charge, the Magistrate imposed a fine of $100 and ordered disqualification for a concurrent period of 6 months.

10. In reaching his decision on the first charge, the Magistrate, in a short written judgment, said that he was not prepared to accept that so high a level of blood alcohol could be produced by consumption of the three drinks which the Respondent had testified to having consumed after the collision, bearing in mind the time frame and the fact that he had just eaten his supper before the collision took place.

11. On the Respondent's appeal to the Supreme Court, the learned judge affirmed the conviction on the second charge but the period of disqualification was reduced from 6 months to 30 days. As regards the first charge, the learned judge allowed the Respondent's appeal, quashed the conviction, remitted the fine of $250 and set aside the 9 months disqualification.

12. This is an appeal by the Informant against the learned judge's decision quashing the conviction on the first charge. The Appellant seeks an order restoring hte Magistrate's conviction on that charge.

13. For many years it has been an offence in the United Kingdom and elsewhere to drive a motor vehicle when under the influence of drink to such an extent as to be incapable of having proper control of it. But frequently difficulties were experienced by the prosecution in proving their case and securing convictions of persons who had in truth committed the offence; and in 1967 Parliament decided to create a new offence of driving with an undue proportion of alcohol in the blood, which could be proved by an analyst's certificate of the result of a laboratory test. Section 1(1) of the United Kingdom Road Safety Act 1967 provided as follows:

"If a person drives or attempts to drive a motor vehicle on a road or other public place, having consumed alcohol in such a quantity that the proportion thereof in his blood, as ascertained from a laboratory test for which he subsequently provides a specimen under section 3 of this Act, exceeds the prescribed limit at the time he provides the specimen, he shall be liable…"

14. On a plain reading of this section, it would appear that the intention of Parliament was that the proportion of alcohol, as subsequently ascertained from the laboratory test, should be taken as the amount of alcohol in the blood at the time of driving; and in R v DurrantWLR[1970] 1 WLR 29 that was the submission of counsel for the prosecution. But that is not how the provision was interpreted. Giving the judgment of the English Court of Appeal, Lord Parker CJ said (p 32):

"As it seems to this Court, this subsection is saying that if a person driving a motor-vehicle having consumed alcohol in such quantity that the proportion thereof in his blood, and I add the words 'at the time of driving', as ascertained from a laboratory test and so on, exceeds the prescribed limit, he is guilty of an offence. Therefore, prima facie, it follows that any test made when a man has consumed alcohol after he has ceased to drive, in this case after the accident, is not a test at all of the amount of alcohol in his blood at the time of driving."

The learned Lord Chief Justice went on to say this (p 32):

"… the result of this case may be that the defendants in other cases will be tempted to raise a defence on these lines. That is a danger which cannot possibly be averted, but no doubt Magistrates or juries at quarter sessions will in these circumstances look with very great care at the evidence produced, and will in many cases be able to say that really this defence has been fabricated. It is, of course, something which the prosecution do not have to negative at the outset; it is one of those cases where the defence must raise the point, but at the end of the day it will be for the prosecution to show that the story could not be true."

15. Following the decision in Durrant, defendants were indeed tempted to defeat the manifest intention of Parliament by consuming alcohol after they had ceased to drive but before being breathalysed. Indeed, some defendants, when stopped by the police, immediately drank from a bottle of liquor conveniently at hand in the motor vehicle before the officers were able to prevent them doing so. Hence, what came to be known as the "hip-flask" defence.

16. Another English case which finished up before the House of Lords was Rowlands v HamiltonUNK[1971] 1 All ER 1089. After the accident, the accused drank three single measures of whiskey. At his trial the prosecution introduced expert evidence to the effect that, even if the accused had not consumed the whiskey after he had ceased driving, the result of the test would have shown that the proportion of alcohol in his blood would have been in excess of the limit. It was held by a majority (Lord Pearson dissenting) that it was not permissible to adjust the result of the laboratory test in this way.

17. In his dissenting judgment, Lord Pearson said that in his view the expert evidence was rightly admitted and that the conviction should not have been set aside by the Court of Appeal. Lord Pearson concluded his judgment thus:

"I have explained … how I think this rather intricate enactment should be construed. I need only mention … the advantage of a construction which gives effect to the manifest intention of Parliament and avoids the absurdity … that a driver who has committed the offence can always defeat the enactment and escape just conviction by consuming some alcohol in the period which I have called stage 2, even if the quantity consumed could not possibly have had any real effect on the position."

18. It is not necessary to the subsequent history of the English legislation in detail. Section 1(1) of the 1967 Act was replaced by section 6 of the Road Traffic Act 1972. In R v Newcastle-upon-Tyne Justices ex parte HindleUNK[1984] 1 All ER 770, the defendant was said to have consumed alcohol after ceasing to drive but before a breath test. The incident which gave rise to the proceedings took place on 17 March 1982. Giving the judgment of the Divisional Court of the Queen's Bench Division, Robert Goff LJ, having considered a passage from the judgment of Lord...