Bignill v DPP [2016] NSWCA 13

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Bignill v DPP [2016] NSWCA 13 Hearing dates: 16 December 2015 Date of orders: 16 February 2016 Decision date: 16 February 2016 Before: Bathurst CJ at [1]; Ward JA at [38]; Emmett AJA at [39] Decision: 1. Grant the applicant leave to appeal. 2. Order the applicant file a notice of appeal in the form of the draft notice of appeal dated 28 August 2015 within 14 days. 3. Order the appeal be dismissed. 4. Order the appellant pay the respondent's costs of the appeal. Catchwords: ADMINISTRATIVE LAW – criminal proceedings – Road Transport Act 2013 (NSW) s110(3)(a) – effect of deeming provision as to alcohol concentration in blood sample – where result of sample was less than .05 and result of breath analysis was more than .05 – whether primary judge erred in denying that the deeming provision applied to the sample to discharge the applicant's onus of proof Legislation Cited: Motor Traffic Act 1909 (NSW), ss 4E, 4G Road Transport Act 2013 (NSW), ss 108, 109, 110, Sch 3 cll 3, 4, 5, 5A, 16, 17, 21, 31, 35 Cases Cited: Alcan (NT) Alumina Pty Ltd v The Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; 239 CLR 27 Certain Lloyds Underwriters v Cross [2012] HCA 56; 248 CLR 378 Federal Commissioner of Taxation v Consolidated Media Holdings [2012] HCA 55; 250 CLR 503 Macquarie Bank Ltd v Fociri Pty Ltd (1992) 27 NSWLR 203 R v Relton (Court of Criminal Appeal (NSW), 28 July 1994, unrep) R v West (1974) 3 PSR 1273 Thiess v Collector of Customs [2014] HCA 12; 250 CLR 664 Category: Principal judgment Parties: Thomas Mason Bignill (Appellant) Director of Public Prosecutions (NSW) (Respondent) Representation: Counsel: P Doherty SC/D Morgan (Appellant) A M Mitchelmore (Respondent)