Thompson v Byrne [1999] HCA 16

High Court of Australia Gleeson CJ Gaudron, McHugh, Gummow, Kirby and Callinan JJ Thompson v Byrne (M106/1997) [1999] HCA 16

ORDER Grant of special leave to appeal revoked

Cur adv vult

The following written judgments were delivered: —

14 April 1999 Gleeson CJ, Gummow, Kirby and Callinan JJ.

1. This appeal from the Court of Appeal of Victoria [1] secured special leave provisionally to permit an application for reconsideration of the decision of this Court in Mills v Meeking [2] . If the authority established by that decision stands, the appeal must fail.

1. Thompson v Judge Byrne [1998] 2 VR 274. 2. (1990) 169 CLR 214.

2. The parties presented arguments on the preliminary question of whether, in accordance with established principles, the Court should reconsider its authority in such a recent decision. For convenience, the matter having gone so far and the merits of the argument being relevant to the question of reconsideration, the Court permitted the criticism of Mills (and its defence) to be fully debated. In our opinion, the decision in Mills was correct. It should be affirmed. No question therefore arises as to overruling it.

The facts

3. Mr Ian Thompson (the appellant) was stopped by police at Kalorama in the State of Victoria early in the morning of 18 July 1994. He was not stopped for a suspected traffic offence. There had been no accident involving his motor vehicle. In accordance with the Road Safety Act 1986 Vict [3] (the Act) a preliminary breath test was undertaken. That test led the police officer to form the opinion that the appellant's blood contained alcohol. The results of this test were not recorded, although the appellant led expert evidence at trial in an effort to prove that his likely blood alcohol reading at that time would probably have been 0.043 grams per 100 millilitres of blood. Proof of this fact would have been a defence to a charge under s 49(1)(b) of the Act, a matter to which we will return later. In accordance with s 55(1), the appellant was required to take a breathalyser test, administered about one hour after the preliminary test. This showed a blood alcohol concentration of 0.105 grams per 100 millilitres of blood. A second test was performed about twenty minutes later in accordance with the then provisions of the Act [4] . The result was unchanged. Exercising his rights under the Act [5] , the appellant requested that arrangements be made for the taking of a sample of his blood for analysis by a designated medical practitioner. This was done. The test was taken exactly three hours after the appellant last drove his motor vehicle. According to the analysis of the blood sample, a blood alcohol concentration of 0.043 was found.