Drink driving, breath sampling, and the alleged incompetence of defence Counsel (again)

By his appellate judgment dated 4 April 2017, in the case of Sherman Taylor v Fiona Miller (Police Sergeant) [2017] SC (Bda) 27 App, Chief Justice Kawaley has dismissed an appeal against a first conviction of the offence of drink driving, while allowing an appeal against a second conviction of the offence of failing or refusing to provide a breath sample.

The Appellant had been convicted by a Magistrate of both offences, and appealed on two main grounds: firstly, he complained that his convictions were unsafe because of the alleged incompetence of Defence counsel at trial. Secondly, he complained that the convictions were unsafe because of misdirections by the Learned Magistrate.

The appeal against the offence of drink driving does not appear to have been very promising, when one reads the evidence summarized by the Chief Justice (which involved an extensive car chase by the police and other circumstantial evidence, including the driver’s glazed eyes, the smell of alcohol on the driver’s breath, the driver’s own alleged admission that he had been drinking beer, and the driver’s unsteadiness on his feet).

The Chief Justice rejected the complaint of incompetence on the part of Defence counsel at trial. Even though the Defence counsel accepted that he did not put an important part of the Defendant’s case to the prosecution witnesses (namely the Defendant’s denial that he had admitted drinking beer), the alleged incompetence fell far short of the seriousness necessary to render a conviction unsafe.

However, the Chief Justice appears to have reached the view that the Learned Magistrate’s conclusion that the Defendant had deliberately refused to give a sample was unsafe, as a result of a combination of the burden of proof, and the Magistrate’s apparent failure to take into account (or give reasons for rejecting) the Defendant’s reliance on a doctor’s letter of support (absent the doctor being called or cross-examined), in which the doctor suggested that the Defendant suffered shortness of breath when extremely stressed (such that his failure to breath into the testing machine might not have been deliberate, but stress-related).

With the Government’s proposal to introduce a greater use of roadside breath-testing (as well as increased tolerance of cannabis use, through the introduction of a caution policy), there is likely to be increasing legal attention given to the offences, and defences, associated with the giving of samples. This case is not likely to be the last of its type.




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