Bathurst CJ, Ward JA and Emmett AJA. Today the Court of Appeal dismissed an appeal brought by Mr Thomas Bignill against
Judgment Summary Supreme Court New South Wales Court of Appeal Bignill v DPP [2016] NSWCA 13 Bathurst CJ, Ward JA and Emmett AJA
Today the Court of Appeal dismissed an appeal brought by Mr Thomas Bignill against a decision of the Supreme Court that he could not rely on a blood analysis to prevent a conviction for a low range drink driving offence arising from a breath analysis. The Supreme Court had set aside a decision of the Local Court dismissing the charge. Mr Bignill was stopped by a police officer while driving on Clark Road, Neutral Bay at 9am. He was required to submit to a random breath test, which detected alcohol on his breath above the legal limit. At 9.36am, after being arrested and taken to the police station, a breath analysis was performed, revealing an alcohol concentration of .054 grams of alcohol in 210 litres of breath. Mr Bignill requested that a blood sample be taken, which was performed at 10.36am, revealing an alcohol concentration of .049 grams of alcohol in 100 millilitres of blood, below the legal limit of .05 grams. At the Local Court hearing, the prosecution tendered the breath analysis, relying on clause 31(2)(a) of Schedule 3 of the Road Transport Act 1909 (NSW) (the Act), while Mr Bignill tendered evidence of the blood sample, relying on clause 31(2)(b) of Schedule 3 of the Act. The issue on appeal was whether Mr Bignill could use the results of the blood analysis to prevent a conviction based on the results of the breath analysis. The Court of Appeal held that under the Act, the results of the blood analysis were not to be preferred to those of the breath analysis. The results of the breath analysis were sufficient to make out the offence and the deeming provision in clause 31(3) of the Act did not assist Mr Bignill. To avoid conviction, Mr Bignill had to prove that the concentration of alcohol in his breath or blood was below the legal limit at the time he was required to submit to a breath test. The results of the blood analysis did not positively prove an alcohol concentration below the legal limit at the time of driving.
This summary has been prepared for general information only. It is not intended to be a substitute for the judgment of the Court or to be used in any later consideration of the Court’s judgment.
