DRINK/DRIVING in VICTORIA

INDEX1. Crimes Act s408A. Act No 6806, s2, dated 5 December 1961. Provision for evidence of breath tests where question of intoxication relevant in certain cases. Refer to: http://www.austlii.edu.au/au/legis/vic/hist_act/ctea1961249/

2. Motor Car Act 1958.Section 81A was inserted into the Motor Car Act in 1965 by the Motor Car (Driving Offences) Act 1965, Act No 7327. Refer to: http://www.austlii.edu.au/au/legis/vic/hist_act/mcoa1965239/

3. Road Safety Act 1986 (Act No 127/1986)Refer to: http://www.austlii.edu.au/au/legis/vic/consol_act/rsa1986125/

ROAD SAFETY ACT 1986 – SECT 49Offences involving alcohol or other drugs(1) A person is guilty of an offence if he or she—(a) drives a motor vehicle or is in charge of a motor vehicle while under the infl uence of intoxicating liquor or of any drug to such an extent as to be incapable of having proper control of the motor vehicle; or(b) drives a motor vehicle or is in charge of a motor vehicle while the prescribed concentration of alcohol or more than the prescribed concentration of alcohol is present in his or her blood or breath; or(ba) drives a motor vehicle or is in charge of a motor vehicle while impaired by a drug; or(bb) drives a motor vehicle or is in charge of a motor vehicle while the prescribed concentration of drugs or more than the prescribed concentration of drugs is present in his or her blood or oral fl uid; or(bc) drives a motor vehicle or is in charge of a motor vehicle while both— (i) the prescribed concentration of alcohol or more than the prescribed concentration of alcohol is present in his or her blood or breath; and (ii) the prescribed concentration of drugs or more than the prescribed concentration of drugs is present in his or her blood or oral fl uid; or(c) refuses to undergo a preliminary breath test in accordance with section 53 when required under that section to do so; or(ca) refuses to undergo an assessment of drug impairment in accordance with section 55A when required under that section to do so or refuses to comply with any other requirement made under section 55A(1); or(d) refuses or fails to comply with a request or signal to stop a motor vehicle, and remain stopped, given under section 54(3); or(e) refuses to comply with a requirement made under section 55(1), (2), (2AA), (2A) or (9A); or(ea) refuses to comply with a requirement made under section 55B(1) or 55BA(2); or(eb) refuses to provide a sample of oral fl uid in accordance with section 55D or 55E when required under that section to do so or refuses to comply with any other requirement made under that section; or(f) within 3 hours after driving or being in charge of a motor vehicle furnishes a sample of breath for analysis by a breath analysing instrument under section 55 and— (i) the result of the analysis as recorded or shown by the breath analysing instrument indicates that the prescribed concentration of alcohol or more than the prescribed concentration of alcohol is present in his or her breath; and (ii) the concentration of alcohol indicated by the analysis to be present in his or her breath was not due solely to the consumption of alcohol after driving or being in charge of the motor vehicle; or(g) has had a sample of blood taken from him or her in accordance with section 55, 55B, 55BA, 55E or 56 within 3 hours after driving or being in charge of a motor vehicle and— (i) the sample has been analysed within 12 months after it was taken by a properly qualifi ed analyst within the meaning of section 57 and the analyst has found that at the time of analysis the prescribed concentration of alcohol or more than the prescribed concentration of alcohol was present in that sample; and (ii) the concentration of alcohol found by the analyst to be present in that sample was not due solely to the consumption of alcohol after driving or being in charge of the motor vehicle; or(h) within 3 hours after driving or being in charge of a motor vehicle provides a sample of oral fl uid in accordance with section 55E and— (i) the sample has been analysed by a properly qualifi ed analyst within the meaning of section 57B and the analyst has found that at the time of analysis a prescribed illicit drug was present in that sample in any concentration; and (ii) the presence of the drug in that sample was not due solely to the consumption or use of that drug after driving or being in charge of the motor vehicle; or(i) has had a sample of blood taken from him or her in accordance with section 55, 55B, 55BA, 55E or 56 within 3 hours after driving or being in charge of a motor vehicle and—

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DRINK/DRIVING in VICTORIA (i) the sample has been analysed by a properly qualifi ed analyst within the meaning of section 57 and the analyst has found that at the time of analysis a prescribed illicit drug was present in that sample in any concentration; and (ii) the presence of the drug in that sample was not due solely to the consumption or use of that drug after driving or being in charge of the motor vehicle; or(j) has had a sample of blood taken from him or her in accordance with section 55, 55B, 55BA, 55E or 56 within 3 hours after driving or being in charge of a motor vehicle and— (i) the sample has been analysed within 12 months after it was taken by a properly qualifi ed analyst within the meaning of section 57 and the analyst has found that at the time of analysis both— (A) the prescribed concentration of alcohol or more than the prescribed concentration of alcohol was present in that sample; and (B) a prescribed illicit drug was present in that sample in any concentration; and (ii) the concentration of alcohol found by the analyst to be present in that sample was not due solely to the consumption of alcohol after driving or being in charge of the motor vehicle; and (iii) the presence of the drug in that sample was not due solely to the consumption or use of that drug after driving or being in charge of the motor vehicle.

1. Index to Acts, Regulations and Subjects p2

2. Index to Cases Reported p13

3. Index to Cases Referred to, Applied, Considered, Followed etc. p19

4. Cases p23-316________________________________________________________________________________________________________

1. Statutes and Regulations

INDEX to Crimes Act 1958 Casess408A: 6s408A(3)(b)(i): 17, 81, 84s408A(4)(a): 119

INDEX to Motor Car Act 1958 CasesAccuracy of Breathalyzer: 40Admission of duplicate Certifi cate: 37Approved machine: 4"as soon as practicable": 10, 11, 12, 13, 14, 33, 34'authorised in that behalf by the Chief Commissioner of Police': 28 Authorized operator: 26, 27Automatism: 7, 106Belief of police offi cer: 84Best evidence rule not applicable: 81Blood sample certifi cates admissible in evidence: 47, 48, 49, 51, 53, 54, 55, 56, 58, 61Blood sample delay of 25 days before analysing: 58Blood sample given to Sister: 62Blood sample reading taken more than 2 hours after driving: 46, 56, 63, 65Blood sample taken: 8, 43, 44, 45, 46, 47, 48, 49, 50, 55, 56, 58, 61, 62, 63, 64Blood sample only divided twice not three times: 45Blood sample presumptions: 43, 44, 46, 51, 52, 53, 54, 56, 58, 62, 64, 65Blood test refusal: 57Breath analysing instrument, notice to produce: 81 Breathalyzer: 5, 39, 40Breathalyzer's accuracy: 40Breath test location: 42Carbon copy Certifi cate produced: 17Carbon monoxide poisoning: 7Certifi cate alleged to lack authorisation details: 32, 38Certifi cate had changes of dates and initialled: 61Certifi cate delivery: 10, 11, 12, 13, 14, 17, 21, 22, 23, 33Certifi cate disputed by evidence about drinking: 16, 29, 41, 120, 122, 123Certifi cate, doubt as to authenticity: 35, 55, 120

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PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIACertifi cate duplicate can be produced: 37, 72Certifi cate effect: 15, 16, 18, 19, 26, 39, 80, 120, 123Certifi cate effect where expert called: 39, 41Certifi cate effect where no expert called: 120, 122, 123Certifi cate error in surname: 22, 23, 24Certifi cate evidence of certain details: 32Certifi cate handed to Bench Clerk: 80Certifi cate mutilated: 49Certifi cate not a copy of the original: 35, 72Certifi cate not delivered personally: 21, 72“Certifi cate of prescribed person as to safekeeping of blood sample”: 49, 55Certifi cates can be used where viva voce evidence admissible: 47Chief Commissioner of Police (retired) authority: 28Circumstantial evidence: 117, 119Common knowledge about drinking: 70, 72, 120, 123Compliance with Regulations not necessary: 25, 48, 50, 59, 60, 62Consulting chemist's evidence: 74Consumption of alcohol after driving: 122, 123Consumption of alcohol evidence given and accepted: 66, 67, 68, 71, 79Conviction then adjournment of charge for two years: 109Copy certifi cates left with accused's housekeeper: 101Date changes in Certifi cate: 61Defi ciencies in proof: 95Delay of 25 days between sampling and analysing: 58Delivery of Certifi cate: 10, 11, 12, 13, 14, 21, 33Delivery of Certifi cate to Bench Clerk: 80"designated place": 96Difference in Certifi cate time of test and evidence: 29, 30, 31Difference in dates in evidence: 90Difference in dates in Certifi cate: 61Difference in name or address in Certifi cate: 51, 54Disqualify the defendant from obtaining a licence: 110Doctor's presumption of regularity/continuance: 43, 44, 51, 52, 53, 54, 56, 58, 64, 65Doctor unfamiliar with Regulations: 64"Drive; driving": 1, 2, MC 43A/1976; MC 14/1983; MC 05/1987; MC 22/2002, 118Driver a police offi cer: 82Driver licence order: 108, 109Drive whilst under the infl uence of alcohol: 106, 107Driver's father seated in passenger's seat: 118Driver taken to hospital and later had a breath test: 36Duplicate Certifi cate admissible: 37Effect of evidence given about consumption of alcohol: 120Error in time in Certifi cate: 30, 31, 33, 34Error in name in Certifi cate: 22, 23, 24, 51, 54Error in address in Certifi cate: 51Error in number of blood samples divided: 45Expert's evidence admissible: 39, 40, 41, 63, 67, 68, 75Expert evidence required to be given: 79, 113, 120Evidence given by witness as to defendant's consumption of alcohol accepted: 66, 67, 68, 72Evidence given by defendant not acceptable: 69, 71, 73, 120, 122Evidence which was not given at the hearing: 121"failed to furnish a sample of his breath for analysis": 97Formal demand did not use the words of the section: 98Government Gazette notice: 3, 39, 96Hindering by refusal to undergo blood test: 57High reading after more than two hours since driving: 116Hospital a "designated place": 96Hydra of technicality is a many-headed beast: 212Identity of driver: 107"in accordance with the provisions of subsection (2)": 20

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DRINK/DRIVING in VICTORIA"in charge of a motor car": 119"indicates": 91Inference defendant driving: 84, 117Instrument properly operated: 15"in and to the effect of 7th schedule": 19, 22, 23 Informant's beliefs: 89"in such case the licensed driver shall be deemed to be driving a motor car": 118Intern a legally qualifi ed medical practitioner: 94Judicial notice of alcohol effect not to be taken: 70, 72, 120, 122, 123Jurisdiction declined by Magistrate: 109Letters "No." missing: 38Licence disqualifi cation: 110Machine properly operated: 15Mandatory licence orders: 119Matter proven – no long adjournment to be given: 111More than two hours after driving: 115Must provide suffi cient air for the machine to perform the task of analysis: 97'No case' submission test: 50No evidence that the police informant entertained the belief required by the Act: 84No expert evidence given as to effect of alcohol: 120Notice to Produce breath analysing instrument: 81Omission of date in Certifi cate: 19"on the said day": 30Onus of proof on defendant (s80G): 73, 74, 77, 78Operator authorized by Chief Commissioner: 26, 27, 28Operator not at Court as requested: 76Operator to wait 15 minutes: 93"other than a desire to avoid providing information which might be used against him": 86Percentage of alcohol omitted from Certifi cate: 18"Personal service": 101Personal service on informant not required: 99Place of breath test: 42Police informant at the hearing did not state his reasonable belief: 119Police offi cer's belief: 84, 89Poor-Box donation: 111Post-driving consumption of alcohol: 65, 77, 78, 79Preliminary breath test: 6Presumption not rebutted: 74, 123Presumption of continuance: 43, 44, 46, 53, 58, 65Presumption of regularity: 43, 44, 46, 51, 52, 54, 56, 58, 62, 64, 95, 96Prima facie evidence: 77 Principle regarding self-incrimination did not apply to the taking of a breath sample pursuant to s80F of the Act: 83 Prior convictions for drink/driving: 111, 112Production of Government Gazette notice not necessary: 96Proof that instrument a prescribed device: 95Proof that hospital "designated place": 96Prosecution not to prove that the Regulations had been complied with: 25, 48, 50, 52, 59, 60, 62Prosecutor unaware of request to call Operator: 76Proudman v Dayman defence: 106Reading down the blood/alcohol reading: 70Reasonable grounds to believe ability to drive impaired: 85Reason of a substantial character for refusing the breath test: 82, 86, 87, 88, 92Rebuttal of Certifi cate: 67, 69, 120Reception of inadmissible evidence: 121Refusal to undergo blood test: 57Refusal to attend police station for breath test: 98Refusal to undergo breath test: 7, 82, 85, 86, 87, 88, 89, 90, 91, 92, 93Regulations complied with: 59, 60, 62Reopening Prosecution case: 76, 90, 94, 95

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PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIARequest to attend Police Station: 98Required beliefs not held by police offi cer: 89Requirement that authorised operator wait 15 minutes before requesting person to undergo test: 93s23: 118s50: 114s80B(1): 106s80D: 47, 50, 94s80D(3): 8, 9, 46, 61s80D(3a) 49s80D(4): 46s80D(5): 101s80(DA): 43, 44, 50, 51, 55, 56, 57s80E: 85s80F(1): 40, 69s80F(2): 13, 14, 19s80F(3): 9, 72, 77, 99, 123s80F(6)(a): 91s80F(6)(b): 89s80F(10): 42s80F(11)(a): 83s80F(12): 86s80F(14): 4, 5, 6s80G: 53, 71, 74, 75, 77, 78, 79, 113s81A(2): 115s81A(3): 108, 110Sample given by doctor to Sister at hospital: 62"sample for analysis": 97Sample taken more than 2 hours after driving: 46, 53Scientifi c matter: 120Schedule 6, 6A Certifi cates: 8, 9, 53, 55, 58, 61Schedule 7, 7A Certifi cates: 10, 15, 17, 18, 22, 23, 24, 30-33, 75, 76, 80, 120Schedule 8 Certifi cate: 55, 58, 61Self-incrimination principle: 83Sentencing: 41, 68, 108, 109, 110, 111, 112, 113, Service of copy certifi cates left with accused's housekeeper: 101Service of notice on informant: 99Slip in evidence: 90Statutory presumption: 123Surname omitted from Certifi cate: 24Suspension of driver licence: 108Test more than two hours after driving: 115Third decimal point on the prescribed device: 217Time in Certifi cate different from evidence: 29Time of handing Certifi cate to defendant omitted: 34Twenty-fi ve days between sampling and analysing: 58Two-hour reading: 116Voir dire not necessary re Certifi cate: 37Whether defendant driving: 84Whether refusal to undergo blood test is hindering: 57"within the grounds or precincts": 42Wrong year in Certifi cate: 19

INDEX to Road Safety Act 1986 CasesAbsence of the informant’s address: 185Abuse of process: 127, 128, 172, 177, 193, 269"Accident": 165Accident equals damage or "adverse physical result": 165Accident occurred within the 3-hour period speculation: 196Accident occurring not part of s49(1)(f) charge: 127, 128Accused consciously and voluntarily refused to allow the taking of the sample: 281

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DRINK/DRIVING in VICTORIAAdjournment application: 124, 148Adjournment without conviction: 114“a document”, which has the appearance of “a certifi cate in the prescribed form produced by a breath analysing instrument”: 190Adverse inference to be the more readily drawn: 180Advice from operator not to have a blood test: 224“after having undergone a preliminary breath test” omitted from Certifi cate: 224Alcohol interlock condition: 240"Alcotest" not mentioned: 289, 290All blood/alcohol readings by reference to two decimal places: 195"all the regulations relating to the collection of such sample were complied with": 215Ambiguity inherent in the Certifi cate: 175Amendment to charge/information: 182, 209, 210, 227, 230, 275, 276, 291Amendment to the date of offence: 230Amendment to name of defendant in charge: 160, 169, 173, 178Admissibility of Certifi cate: 158Admission of previous driving: 141"advise" in s55(4)(b) of the Act": 168Amendment to charge: 203, 211Analytical chemist's evidence: 161"any concentration of alcohol" (s52(2)): 258"any member of the police force": 235"any other person": 258Application for an adjournment: 124, 185Application for adjournment to serve notice on informant refused: 185Application to re-open the prosecution case: 260Appropriate amendment to summons: 151, 160, 182‘a precondition for conviction’ under s49(1)(f): 272"a s52 person": 258"as soon as": 184"as soon as practicable": 159, 184"attempted to start the motor vehicle": 126Authority of the operator: 277Averment: 145Averment provisions of s58(4) or (5): 129"being any concentration of alcohol whatsoever": 258Belched into the breath analysing instrument: 287Belief is something more than suspicion: 228Belief “on reasonable grounds”: 176"believes on reasonable grounds": 251Belief that within the last three preceding hours the defendant had driven a motor vehicle when it was involved in an accident: 251Bias: 185Birth date omitted: 222Blood/alcohol concentration could not have exceeded 0.03%: 187Blood/alcohol readings by reference to two decimal places: 195Blood sample consent to be taken: 230Blood sample to be provided to the defendant and placed with his personal property: 254Blood sample unable to be analysed through no fault of appellant or respondent: 292Blood test, effect of: 265Bogdanovski v Buckingham: 129, 136, 139, 142 (distinguished), 150, 174Booze bus: 206Breach of s49(1)(f) is established on proof of certain elements: 167Breach of the zero limit is an aggravating factor which may affect penalty: 258Breath Analysis Manual reference: 125, 153"Breathalyser": 142, 149Breathalyser operator omitted to state certain things in evidence: 164Breathalyser results accepted: 193"breath analysing instrument" in s3(1): 129, 142, 149, 150, 167, 220Breath test at police station: 160

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PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIABrief of evidence not tendered in evidence: 250Brief of evidence served on defendant: 216, 231, 250Bunning v Cross: 104, 152, 158, 168, 217, 224, 225, 232, 261, 265, 271, 272, 292Carbon copy of charge: 212Certifi cate admissibility: 158, 159, 175, 184, 190, 254Certifi cate altered: 222Certifi cate delivered 2.5 days after test: 159Certifi cate delivered 17 minutes after test: 184Certifi cate has nexus between s55(4) and s58(2): 192Certifi cate "in the prescribed form": 140, 190Certifi cate of analysis tendered in evidence, effect of: 192, 216, 254Certifi cate of authority pursuant to s58(3) of the Act not produced: 164Certifi cate which has been short-served inadmissible: 231Certifi cate showed different surname: 131Certifi cate showed inaccuracies re name and date: 133, 175Certifi cate to be delivered "as soon as practicable": 159, 184Certifi cate to have residual evidentiary value: 208Certifi cate was conclusive proof under s58(2): 247Charge failed to state that defendant was “the driver of a motor vehicle”: 209, 210Charge had been fi led in the appropriate Registry: 186Charges can be laid under s49(1)(b) and s49(1)(f): 269Charges considered on the ground that they were fi led outside the period allowed: 270Circumstances of impropriety: 265Circumstantial evidence: 157"collision": 165Collision between vehicles – driver intercepted nearby: 176Community Based Order: 130Compare a three decimal place reading of 0.101: 195Compliance with Regulations: 145, 213Compliance with s53(1) or (2) and under s55(1): 160“compliance with section 55(4)”: 208Compliance with s55(1) is not an element of the offence created by s49(1)(a) or s49(1)(b): 201Compliance with regulation 304: 164Compliance status of the instrument not specifi cally established: 239Concept of "breath" and the concept of "exhaled air": 247, 248"conclusive proof" of document: 103Consent to blood sample being taken: 230Consequences of refusal to undergo PBT: 241"contest mentions": 254Contravention of the manufacturer's instructions: 169Control knob in the "off" position: 153, 169“Conviction”: 218Court was not in error in admitting evidence of the PBT result: 259Court required to convict and make licence order: 130Criminal Procedure Act 2009, s9: 291Date and place of third offence omitted: 151Date of birth of defendant omitted from Certifi cate: 222Defence may or may not be made out under s49(4) of the Act: 129, 167, 169, 172, 202Defence not made out: 129, 167, 179, 188Defence of necessity: 181, 277Defence of honest and reasonable mistake is not available in a s49(1)(f) offence: 187Defence under section 49(4) of the Act is established: 202Defences to a charge under s49(1)(f): 193Defendant on the balance of probabilities to establish that the act or omission affecting the operation of the machine was such that the result was unreliable: 169Delivered "as soon as practicable": 159Delivery of Certifi cate 2.5 days after test: 159Denial of natural justice: 124, 125Device used for the purpose of the preliminary breath test carried out was a prescribed device: 161"did refuse to accompany …": 203

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DRINK/DRIVING in VICTORIADiscretion not to cancel the driving licence: 243Discretion where no notice under section 58(2) had been properly served on the informant: 224Dismissal of the charge as a nullity: 209, 210Disqualifi cation period of licence: 100Divisional van, in the rear of: 267, 272Doctor and analyst to attend for cross-examination: 171Doctor not present when request for blood sample made: 234Doctor required by regulations to provide sample to police informant: 255Documents subpoenaed from the police: 219Dog due for daily pill – not a reason of substantial character: 181Double jeopardy: 177, 269Double punishment: 269Draconian policy of Parliament: 102, 103Driver found in parked car with headlights on: 147Driver not given certifi cate of the reading of the breath analysing instrument: 268Driver not informed of the right to a blood test: 268Driver required to go to "the police station”: 183Driver told "come with me" – no reason given: 174"driving" and "being in charge" of a motor vehicle: 126, 147Driving a motor vehicle: 144, 147Driver's evidence not corroborated: 283Duplicity: 141Element of an offence against s49(1)(f): 155, 160, 179Entry by police to the house: 146, 271Error in the date of birth of the person tested: 222Essential element of the charge: 244, 245Evidence Act 1958, s36: 207Evidence Act 2008, s8: 283Evidence Act 2008 (Vic) (ss135-138): 272Evidence Act 2008, s164(1): 283Evidence that a breath analysing instrument can over-estimate the concentration of alcohol in a person's blood not admissible: 102, 103Evidentiary burden on defendant: 145, 179"evidence to the contrary": 254“excessive” action by informant: 261“exhaled air”: 247, 248Expert evidence from a mathematician: 195Expert witness' evidence: 161, 179Expert witness may be cross-examined: 153Expert witness unavailable on date of hearing: 148Express direction to the driver to accompany the police to the police station: 176“expressed consent” to blood test: 230Extent of the right to silence: 252Failing to comply with a requirement to remain at the booze bus: 237Failure to comply with the procedure in s55(9B): 255Failure to mention that the instrument was an "Alcotest": 289Failure to prove that driver was a person to whom s52 applied would necessitate the dismissal of the charge: 258Fairness on public policy grounds: 271 Fairness to the accused: 254, 260, 271Filing of process: 270Finding made that instrument not properly operated: 202First offender: No CBO to be made: 130"Fishing expedition": 268, 270"for that purpose": 207, 226Furze v Nixon 'clearly correct': 214Gastric refl ux disease: 252, 287Gastroesophageal refl ux, known colloquially as heartburn: 179, 187General limitations of accuracy of the type of machine in question not admissible: 161General does not detract from the specifi c: 283

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PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAGeneral unfairness discretion: 225, 292Grounds of public policy: 261Guilty plea, effect of: 197Heartburn: 179Identifi cation of driver – driver not identifi ed in court: 180Illegality of breath test: 158“in”: 247, 248“in accordance”: 232, 262“in accordance with s56”: 262Inaccuracies in Certifi cate: 133‘in charge of’: 288In charge of a motor car: 126, 147, 288"indicates" in s55(1)(a): 152Inferential use of breathalyser: 149Informant acted “excessively”: 261Informant failed to communicate to driver the essential fact that he was only required to allow a registered medical practitioner or approved health professional to take a sample of his blood: 285 Ingredients of s49(1)(e) charge: 209Ingredients of s49(1)(f) charge to be proved: 151, 154, 169, 179Inherent error or margin for error in instrument not admissible: 161Instruments used by police do not habitually over-estimate to a degree: 100"intends to start or drive vehicle": 147"in the prescribed form": 140Instruction Manual strictly not admissible: 125, 153Instrument was not immediately ready to be breathed into: 239Instrument to be compliant with s3: 221 “insuffi cient sample”: 246Intended to ‘drive the motor vehicle: 273Interpretation of Legislation Act 1984, s35: 215Interpretation of Legislation Act 1984, s51(1): 128Involuntary detention: 272“issue of unfairness”: 205, 223, 254, 260Judicial notice of initials 'MRCS': 262Justice is a two-way street: 222Lack of complaint at the time of testing: 287Lawful request pursuant to s53(1): 257"leave your car and come with me to the Ballarat Police Station" not suffi cient: 164Legitimate forensic purpose: 219, 268Limitation period: 276Machine not to be handed over to someone else, out of the control of the owner, and with no restrictions on what could be done with it: 199Magistrate dismissed charges on “issue of unfairness”: 223Magistrates' Court Act 1989, s26(4): 182Magistrates' Court Act 1989, s27(2): 182, 203, 204, 210Magistrates' Court Act 1989, s30(3): 270Magistrates’ Court Act 1989, s34(1): 231Magistrates’ Court Act 1989, s50: 178, 210, 230, 276Magistrate informed that the accused had prior convictions: 185Magistrate should have inspected the documents: 268Manifestly hopeless points should not be raised: 222Meaning of "or" in s49(3): 238Means of travel objectively reasonable: 267Medical evidence cannot demonstrate that the machine was not in proper working order: 179Medical practitioner gave evidence that he was not familiar with the Regulations: 134Medical practitioner and analyst to attend for cross-examination: 171 Member of the Royal College of Surgeons: 262Mere variance capable of amendment: 160Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214, approved: 194Mispronunciation of PBT: 154, 155

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DRINK/DRIVING in VICTORIAMotor vehicle collision: 144Mouthwash used: 167'MRCS': 262"Must": 255“must be served”: 231'No case' to answer submission: 173Natural justice: 124, 125Necessary ingredients of s49(1)(f) to be proved: 151, 154, 155, 179Necessity, defence of: 181, 277"No comment" taken into account: 252No direct evidence about the time of the actual accident: 196“nominated by” in s55(9A): 189Non-compliance does not render the certifi cate inadmissible: 268Non-compliance with the Regulations: 129, 139No need for the express naming of a specifi ed doctor: 189No order made against driver licence: 114No specifi c “requirement” made to provide a sample of breath: 232Not all the relevant requirements of s55(1) followed: 162Notice under s58(2): 221“on the cards”: 219“On the cards” means “within the range of probability”: 219Onus is upon the defendant to establish the defence under s49(4): 249Operation of instrument: 156, 179, 213, 214, 221Operator to describe apparatus used: 129Operator to have been authorised at the time of the alleged offence: 277 “other place” does not include a police car: 200, 206, 207Parliament's approach: 194, 257Parliament has enacted stringent provisions designed to prevent the public evil of drink-driving: 257PBT device not immediately available: 253PBT mispronounced: 154, 155PBT result: 198a, 217, 259PBT was not conducted under s53 as required by s55: 247Penalties and Sentences Act 1985, s81: 143Person charged not found driving by police offi cer: 132, 144Person is criminally responsible only for their conscious and voluntary acts: 281Person found by police offi cer next to his motor vehicle: 228, 229Person with relevant prior conviction: 243“place of residence”: 186Place where preliminary breath test under s53 should be taken: 160Police entry to the house: 146, 271Police informant’s address omitted from the charge: 185Police offi cer no longer in police force at time of hearing: 205Police offi cers not obliged to show the result of a preliminary breath test to drivers: 284Police offi cers whether trespassers: 146, 271“police station or other place” – meaning of: 200Policy of Parliament: 102, 103Post-driving consumption of alcohol: 191, 283"practicable": 184"preliminary breath test": 253Preliminary breath testing station: 256, 257"prescribed": 140Presumption of continuance: 177, 191Presumption of regularity: 184, 221, 262Presumption (statutory): 263Prior under s81A of Motor Car Act whereby the offender released on a bond without conviction cannot be regarded as a prior conviction for the purposes of s49(1) of the Road Safety Act 1986: 135Principle of voluntariness an element of the offence created by s56(2): 281Procedural fairness: 211Procedure laid down by clause 5 of Schedule 2 of Magistrates' Court Act: 250Proof not necessary that breathalyzer be available when request made: 137

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PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAProof of an accident occurring not part of s49(1)(f) charge: 127, 128Proof of concentration as shown by the breath analysing instrument (s49(1)(f): 102.Proof of instrument: 150“properly qualifi ed analyst”: 191Prosecution allowed to reopen its case: 244, 245Prosecution may establish that the instrument is one authorised by the Act: 221Prosecution obliged to prove the elements of the offence: 221Public policy discretion – general unfairness discretion: 225, 261"purporting": 190"purposive approach" to the construction of legislation: 194Random breath tests: 256, 257Reading 0.101: 195Rear of the divisional van: 267, 272“reasonableness”: 266Reasonableness of a belief: 273Reasonable belief test: 273Reasons for decision: 143Reason of substantial character to be given: 166, 180, 181Reference to Breath Analysis Manual: 125Refusal may have been due to severe head injury: 281“refusal to comply”: 206, 207, 226, 284Refusal to comply with a requirement to accompany pursuant to s55(1) of the Act: 226, 228, 229, 266, 284Refusal to undergo preliminary breath test: 146, 160, 163, 166, 180, 251, 253, 273Refuse breath test: 239, 241, 253, 284"Refuse": 203“registered medical practitioner”: 191, 262Regulations, non-compliance with: 129, 134, 139Relevant requirements of s55(1) not followed: 162, 164“relevant time”: 197“remains”: 208“remain there”: 206, 207Reopening of Prosecution case: 129, 135, 139, 260Request for adjournment of charge refused: 148Request for a second breath sample: 246Request to furnish sample made informally: 173Request to furnish sample made by another police offi cer: 235Requirement for breath test not contemporaneous with driving: 163, 176Requirement made under s55(1) was reasonable: 266, 267Requirement of a notice under s58: 242 Requirement of Section 55(1) be complied with: 174, 181Requirement to accompany police offi cer was objectively unreasonable: 267, 272‘requirement to accompany’ said to be invalid: 272, 278Requirement to accompany pursuant to s55(1) of the Act: 226, 267, 272, 278, 280Requirement to remain at the police station: 270Requirement to undergo a test: 157, 160, 173, 176, 280Requirement under s53(1) made: 296Requirement under s53 should be a reasonable one: 160, 176Requirement under s55(9A) to be properly made: 285 "requirements" to which s55(1) of the Act refers: 201Result of a breath analysis means: 167Result of the preliminary breath test does not have to be notifi ed to the person tested: 198aRight to silence: 252, 287 Road Safety (Procedures) Regulations 1988 Reg 314, paras (a) to (h): 140Road Safety (General) Regulations 1999, r203: 216"RSA" not an error: 182“sample of breath” meaning in s49(1)(f): 179"second offence": 240Solicitor of age and experience using an alcohol-based mouth wash: 167s3(1): 129, 150, 221, 289, 290

12

DRINK/DRIVING in VICTORIAs3AA(a) to (d): 288s3AA(1)(b): 273s47: 214, 215, 222, 247s48(1)(a): 263s48(1)(b): 126, 127, 128, 147, 177, 191, 214, 217, 221, 224, 288s48(1A): 163, 193, 253, 283s48(2): 233s49(1)(a): 228, 229, 254s48(1)(b): 126, 127, 128, 147, 177, 191, 214, 217, 221, 224, 228, 229, 230, 255, 269s49(1)(c): 146, 160, 163, 241, 251, 253, 273, 286, 291s49(1)(e): 166, 181, 203, 209, 210, 226, 228, 229, 235, 237, 244, 267, 270, 275, 276, 279, 284s49(1)(f): 100, 102, 127, 128, 154, 160, 161, 167, 169, 174, 183, 187, 194, 197, 201, 208, 210, 211, 213, 214, 217, 221, 224, 256, 257, 265, 269, 272 s49(1)(g): 124, 133, 177, 191, 232, 254, 255, 262s49(3): 238s49(4): 129, 156, 167, 169, 172, 179, 186, 202, 208, 213, 214, 249, 252s49(6): 148s49(7)(b): 100s50(1A): 233s50(1AB): 197, 243s50AAB(3)(b): 240s52: 195, 258s53(1): 132, 160, 163, 165, 173, 176, 181, 201, 226, 235, 251, 256, 257, 261, 286, 291s54: 256, 257s55(1)(a): 152, 155, 157, 158, 162, 183, 227, 284s55(2A): 227s55(4)(a): 159, 192s55(4)(b): 168s55(9): 166s55(9A): 189; 278, 279, 285s55(9B): 255s55(10): 268s56: 230, 262s57(3): 133, 191, 215s57(5(: 231s57(7): 171, 254s57(9): 230s58(1): 167, 186, 208, 259, 290s58(2): 131, 190, 192, 205, 221, 222, 224, 225, 290s58(2A): 242s58(2D): 213s58(3): 260s58(4), (5): 129, 140, 221s78: 114s83(1): 232s89A, (2): 218Section 53 not complied with: 132Sentencing: 114, 143, 238 ("or"), 240, 243, 269, 293Service of the process short served: 231Sher v DPP: 212Short service of the process: 231Short-served Certifi cate inadmissible: 231Silence of an accused: 191, 196, 287"similar words": 204Speculation to infer that the accident occurred within the 3-hour period: 196Standard alcohol solution used had been destroyed: 172Standard alcohol solution did not comply with Regulation 105: 145"start", "attempting to start": 126Statement to be tendered: 207Statements from the Bar table not suffi cient for s57(7A) application: 171

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PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAStatutory presumption: 263Statutory requirements of the taking of the blood sample and its analysis: 254Stipulated means of travel were objectively reasonable: 267.Stomach vapours in the sample of breath: 179Strict liability of s49(1)(f): 187"subsequent offence": 138, 233Suffi cient basis for the making of the request for a second breath sample: 246Suffi cient if a demand or requirement is made in substance and in comprehensible terms: 244Suffi cient requirement made to undertake a PBT utilising a prescribed device: 253Temporal limitation: 278The necessary ingredients of s49(1)(f) to be proved: 151The 90-second waiting period: 156"to a police station": 183Traffi c infringement notice for drink/driving offence: 218Trespassing on premises by police offi cers: 146, 271Two decimal place measurement should be applied: 195Trifl ing offence: 143, 293Twelve month limitation period: 173, 209, 21012 noon on 27 March 1992 means 12 midnight on the night of the 26-27 March 1992: 175Uncontrolled delivery to defendant’s solicitors not available: 199Uncorroborated evidence of the driver: 283"under section 55(1)": 155, 201Undesirability of unmeritorious technical points being argued: 257Unfair to the accused: 205, 254, 260"upon a prescribed device.": 253Valid requirement to remain under s55(1): 235Variance: 230Voluntariness was element of the offence created by s56(2): 281, 282Voir dire: 124Waterbrash: 179"when it was involved in an accident": 165Where a proceeding is heard ex parte: 250Where requirement to accompany the police offi cer is objectively unreasonable: 267Whether blood sample was not provided to the defendant and nor placed with his personal property: 254Whether need to make a demand in specifi c terms: 154Whether instrument was not properly operated: 169Whether the police offi cer’s belief was reasonable: 273Whether production of Certifi cate unfair: 205Whether refusal to submit to a breath test was excusable: 166Whether second offence a “subsequent offence”: 233Witness on holidays: 124Witness statement to be tendered: 207Witness summons: 219Words “after having undergone a preliminary breath test” omitted from Certifi cate: 224Wrong name and date in certifi cate: 133"Z": 258Zero blood alcohol limit: 258 Other CasesBreathalyser evidence admissible: 104Bunning v Cross (HC): 104, 152, 158, 168, 217, 224, 225, 232, 261, 265, 271, 272, 292Driving under infl uence of alcohol: 104 (HC), 105 (Tas)Police offi cer forced entry to vehicle: 105

2. Cases ReportedAdair v Durbridge [1974] VicSC 246; MC 44/1975: 66Addicoat v Dillon [1989] VicSC 371; MC 49/1989: 131Altman v Foley [1975] VicSC 3; MC 20/1975: 121Andrews & Bolton v England [1977] VicSC 229; MC 50/1977: 107

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DRINK/DRIVING in VICTORIAAskew v Svoboda [1991] VicSC 1; MC 05/1991: 144Bakker & Ors v Boyle & Ors [1989] VicRp 39; [1989] VR 413; (1988) 9 MVR 149; MC 39/1988: 102Bakker v O'Connor [1990] VicSC 422; (1990) 12 MVR 468; MC 38/1990: 142Barbaro v Spyrou [1991] VicSC 4; (1991) 13 MVR 449; MC 09/1991: 146Bardelmeyer v Whiteley, Lee v Williams, Matosic v Hamilton [1991] VicSC 41; (1991) 13 MVR 171; MC 08/1991: 145Barker v Burke [1970] VicRp 111; [1970] VR 884; MC 50/1969: 106Barrett v Wearne [1994] VicSC 15; (1994) 18 MVR 331; MC 14/1994: 172Beardsley v Hower [1993] VicSC 90; (1993) 19 MVR 15; MC 21/1993: 166Bell v Dawson [2000] VSC 169; (2000) 31 MVR 111; (2000) 114 A Crim R 26; MC 01/2000: 203Benwell v Gottwald [1978] VicRp 26; [1978] VR 253; MC 04/1978: 28Betheras v New [1982] VicSC 236; MC 54/1984: 97Binting v Wilson; Clifford v Davis [1989] VicSC 636; MC 14/1990: 139Birthisel v Wheeler [1981] VicSC 469; MC 56/1981: 76Blain v Witton [1976] VicSC 83; MC 65/1976: 30Blair v County Court of Victoria and Anor (Mandie J) [2005] VSC 213; MC 18/2005: 244Blair v County Court of Victoria (CA) [2005] VSCA 237; MC 37/2005: 245Blanksby v Barnes [1998] 2 VR 164; 26 MVR 471; (1997) 96 A Crim R 92; MC 03/1998: 195Bogdanovski v Buckingham [1989] VicRp 80; [1989] VR 897; 9 MVR 257; MC 20/1989: 129Bolton v Glover [1986] VicSC 351; [1986] 4 MVR 463; MC 43/1986: 42Brady v Colley [1995] VicSC 327; MC 20/1995: 185Bregazzi v Kilby [1996] VicSC 487; (1996) 25 MVR 285; MC 04/1997: 125Brody v Brilliant [1982] VicSC 91; MC 32/1982: 55Buijs v Thorburn [1976] VicSC 629; MC 31/1977: 19Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54; 19 ALR 641; 52 ALJR 561; noted 52 ALJ 638; 54 ALJ 36; 6 Crim LJ 89; MC 55/1980: 104Burns v Storey [1971] VicRp 50; [1971] VR 388; MC 14/1969: 82Burridge v Tonkin [2007] VSC 230; MC 32/2007: 260Burrows v Mills MC 33/1982: 35Buzzard v Walsh [1996] VicSC 411; (1996) 24 MVR 568; MC 05/1997: 192Calabrese v Shirreff [1971] VicSC 58; MC 07/1971: 117Caughey v McClaer [1977] VicSC 80; MC 14/1977: 122Caughey v Peachey [1976] VicSC 648; MC 24/1977: 14Chapman v Kavanagh [1997] VicSC 608; (1997) 26 MVR 43; MC 06/1998: 196Charles v Koetsier [1994] VicSC 677; (1994) 20 MVR 381; MC 30/1994: 179Chief Commissioner of Police v Rigg [2004] VSC 448; (2004) 10 VR 134; (2004) 42 MVR 496; MC 27/2004: 240Chisholm v Mathews [1992] VicSC 432; (1992) 16 MVR 447; MC 42/1992: 161Clemens v Pretlove [1972] VicSC 46; MC 03/1972: 22Clifford v Davis [1989] VicSC 636; MC 14/1990: 139Collins v Mithen [1975] VicSC 229; MC 12/1975: 43Collins v Smith [1980] VicSC 582; MC 07/1981: 51Colwell v Mason [1992] VicSC 667; (1992) 17 MVR 328; MC 13/1993: 165Cook v Wallace [1978] VicSC 107; MC 22/1978: 88Coombe v Currucan [1981] VicSC 421; MC 13/1982: 2Cooper-Baker v His Honour Judge Ross and Anor [2000] VSC 221; (2000) 31 MVR 235; (2000) 114 A Crim R 40; MC 02/2000: 204Corner v Waterman (1984) 2 MVR 379; [1984] VicSC 456; MC 47/1985: 34 Cousens v Moran MC 07/1983: 92Cummins v Dalton [1982] VicSC 25; MC 49/1982: 4Dalzotto v Lowell [1992] VicSC 674; MC 06/1993: 164Davies v Waldron [1989] VicRp 43; [1989] VR 449; (1989) 8 MVR 363; MC 04/1989: 126Day v County Court of Victoria and Hanson [2002] VSC 426; (2002) 37 MVR 319; MC 29/2002: 230De Kruiff v Smith [1971] VicRp 94; [1971] VR 761; MC 11/1970: 115Dickson v Kimber [1992] VicSC 296; (1992) 16 MVR 164; MC 34/1992: 159Doidge v Craig [1994] VicSC 292; (1994) 19 MVR 508; MC 20/1994: 175Dover v Doyle (Bell J) [2012] VSC 117; (2012) 34 VR 295; MC 08/2012: 281Dowdell v Park'Nicoll [1975] VicSC 298; MC 40/1975: 77DPP Reference No 2 of 2001 [2001] VSCA 114; (2001) 4 VR 55; (2001) 122 A Crim R 251; (2001) 34 MVR 164; MC 13/2001: 210

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PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIADPP v Alliston [2006] VSC 330; (2006) 46 MVR 401; MC 31/2006: 253DPP v Bajram; DPP v Foster [1999] VSCA 73; [1999] 2 VR 643; (1999) 104 A Crim R; (1999) 29 MVR 365; MC 01/1999: 201DPP v Berman [2001] VSC 367; (2001) 34 MVR 403; MC 01/2002: 223DPP v Blango [2012] VSC 384; MC 33/2012: 284DPP v Bleakley [2006] VSC 66; (2006) 45 MVR 387; MC 04/2006: 248DPP v Blyth [1992] VicSC 180; (1992) 16 MVR 159; MC 22/1992: 157DPP v Boer [1992] VicSC 245; (1992) 15 MVR 11; MC 24/1992: 158DPP v Colbey [2006] VSC 357; 166 A Crim R 85; MC 37/2006: 255DPP v Collicoat [2000] VSC 368; (2000) 32 MVR 113; (2000) A Crim R 18; MC 14/2001: 209DPP v Connor [2000] VSC 407; (2000) 32 MVR 479; (2000) 117 A Crim R 319; MC 24/2001: 217DPP v Constantinou; DPP v Nicholson [1997] VicSC 645; (1997) 27 MVR 120; (1997) 98 A Crim R 558; MC 09/1998: 198DPP v Croaker [2001] VSC 342; (2001) 34 MVR 397; (2001) 120 A Crim R 588; MC 25/2001: 218DPP v Cummings [2006] VSC 327; (2006) 46 MVR 84; MC 35/2006: 254DPP v Doolan; DPP v Martell [1992] VicRp 64; [1992] 2 VR 249; (1992) 15 MVR 397; MC 14/1992: 153DPP v Dover & The County Court of Victoria [2013] VSCA 233; (2014) 231 A Crim R 461; MC 34/2013: 282DPP v Drage [1993] VicSC 4; (1993) 17 MVR 390; MC 25/1993: 168DPP v Drucker [1997] VicSC 609; (1997) 98 A Crim R 142; (1997) 27 MVR 248; MC 08/1998: 197DPP v Ellison [1995] VicSC 6; (1995) 21 MVR 444; MC 52/1994: 181DPP v Farmer [2010] VSC 343; (2010) 56 MVR 137; MC 43/2010: 273DPP v Fernandez [2004] VSC 401; (2004) 149 A Crim R 390; (2004) 42 MVR 59; MC 33/2004: 243DPP v Foot [2010] VSCA 112; (2010) 200 A Crim R 558; MC 27/2010: 272DPP v Foster; DPP v Bajram [1999] VSCA 73; [1999] 2 VR 643; (1999) 104 A Crim R; (1999) 29 MVR 365; MC 01/1999: 201DPP v Gibson [2012] VSC 297; (2012) 61 MVR 261; MC 24/2012: 283DPP v Greelish [2002] VSCA 49; (2002) 4 VR 220; (2002) 35 MVR 466; (2002) 128 A Crim R 144; MC 04/2002: 226DPP v Hart [1992] VicSC 115; (1992) 16 MVR 433; MC 21/1992: 156DPP v Jamieson (Balmford J) [2001] VSC 366; (2001) 34 MVR 464; MC 20/2001: 215DPP v Jamieson (Ashley J) [2001] VSC 482; (2001) 126 A Crim R 353; MC 21/2001: 216DPP v Kypri (Pagone J) [2010] VSC 400; (2010) 201 A Crim R 424; MC 46/2010: 274DPP v Kypri (CA – Harper and Hansen JJA)) [2010] VSCA 323; MC 53/2010: 275DPP v Kypri (CA – Nettle, Ashley and Tate JJA) [2011] VSCA 257; (2011) 207 A Crim R 566; MC 27/2011: 276DPP v Loftus [2004] VSC 39; (2004) 40 MVR 415; MC 03/2004: 235DPP v Luff Balmford J) [2001] VSC 260; (2001) 34 MVR 78; MC 19/2001: 213DPP v Luff (Osborn J) [2006] VSC 195; (2006) 45 MVR 248; MC 15/2006: 249DPP v Martell [1992] VicRp 64; [1992] 2 VR 249; (1992) 15 MVR 397; MC 14/1992: 153DPP v Mastwyk (Kyrou J) [2008] VSC 192; (2008) 185 A Crim R 285; MC 31/2008: 266DPP v Mastwyk (CA) [2010] VSCA 111; [2010] 27 VR 92; (2010) 200 A Crim R 563; MC 26/2010: 267DPP v McNamara [1993] VicSC 17; (1993) 17 MVR 286; MC 24/1993: 167DPP v Mitchell (Gillard J) [2002] VSC 326; (2002) 37 MVR 142; MC 22/2002: 228DPP v Mitchell (Curtain J) [2008] VSC 130; (2008) 50 MVR 83; MC 24/2008: 263DPP v Moore (Balmford J) [2002] VSC 29; (2002) 35 MVR 357; (2002) 129 A Crim R 95; MC 03/2002: 224DPP v Moore (CA) [2003] VSCA 90; [2003] 6 VR 430; (2003) 39 MVR 323; MC 20/2003: 225DPP v Murphy [2000] VSC 458; MC 39/2000: 205DPP v Nicholson [1997] VicSC 645; (1997) 27 MVR 120; (1997) 98 A Crim R 558; MC 09/1998: 198DPP v Norman [2003] VSC 369; (2003) 39 MVR 480; MC 28/2003: 233DPP v Novakovic [2012] VSC 397; MC 35/2012: 285DPP v O'Rourke [2006] VSCA 252; (2006) 14 VR 522; (2006) 165 A Crim R 445; (2006) 47 MVR 175; MC 01/2007: 258DPP v Paul (1992) 16 MVR 435; MC 02/1993: 162DPP v Phillips [1992] VicSC 687; MC 03/1993: 163DPP v Phung [1993] VicRp 75; [1993] 2 VR 337; (1993) 17 MVR 157; MC 27/1993: 170DPP v Piscopo [2011] VSCA 275; (2011) 210 A Crim R 126; (2011) 59 MVR 200; MC 31/2011: 278

16

DRINK/DRIVING in VICTORIADPP v Pita Velevski [1994] VicSC 564; (1994) 20 MVR 426; MC 26/1994: 178DPP v Riley [2007] VSC 270; (2007) 16 VR 519; (2007) 173 A Crim R 360; (2007) 48 MVR 261; MC 37/2007: 261DPP v Ryan [1994] VicSC 399; (1994) 19 MVR 574; MC 18/1994: 173DPP v Rukandin [2011] VSC 276; (2011) 210 A Crim R 547; (2011) 59 MVR 222; MC 32/2011: 279DPP v Sanders [1996] VicSC 221; (1996) 23 MVR 515; (1996) 86 A Crim R 378; MC 22/1996: 189DPP v Serbest [2012] VSC 35;(2012) 211 A Crim R 588; (2012) 60 MVR 150; MC 01/2012: 280DPP v Skafi diotis [2013] VSC 258; MC 19/2013: 286DPP v Skinner [2004] VSC 32; (2004) 40 MVR 427; MC 04/2004: 236DPP v Vaa [2004] VSC 444; (2004) 42 MVR 511; MC 28/2004: 241DPP v Velevski, Pita [1994] VicSC 564; (1994) 20 MVR 426; MC 26/1994: 178DPP v Walker [1992] VicSC 201; MC 20/1992: 154DPP v Webb [1993] VicRp 82; [1993] 2 VR 403; (1992) 16 MVR 367; MC 40/1992: 160DPP v Williams [1998] VSC 119; (1998) 104 A Crim R 65; (1998) 28 MVR 521; MC 30/1998: 200Dunlop v Anstee [2004] VSC 139; MC 12/2004: 238Durston v Mercuri [1969] VicRp 62; [1969] VR 507; MC 45/1969: 17Dwyer v Rickhuss [1983] VicSC 314; MC 42/1983: 61Earl v Butler [1974] VicRp 44; [1974] VR 359; MC 32/1973: 110Elliott v Wilson [1977] VicSC 101; MC 38/1977: 8 Everett v Westwood [1972] VicSC 447; MC 44/1972: 27Fairweather v Davis [1989] VicSC 137; MC 26/1989: 130Fagan v Fidler [1978] VicSC 292; MC 37/1978: 89Farnsworth v Reynolds [1976] VicSC 423; MC 81/1976: 67Finnis v Irvine; Fairweather v Davis [1989] VicSC 137; MC 26/1989: 130Fischer v Douglas; ex parte Fischer [1978] Qd R 27; MC 01/1978: 87Fitzgerald v Browning [1986] VicRp 50; [1986] VR 493; (1985) 3 MVR 222; [1985] VicSC 613; MC 03/1986: 41Fitzgerald v Howey [1995] VicSC 427; (1996) 24 MVR 369; MC 04/1996: 188Fitzgerald v Magistrates' Court & Ors 26/01; [2001] VSC 348; (2001) 34 MVR 448; MC 26/2001: 219Forbes v Graham [1975] VicSC 466; MC 36/1975: 111Francis v Stevens [1983] VicRp 21; [1983] 1 VR 260; MC 25/1982: 39Franks v Wells [1973] VicSC 120; MC 18/1973: 36Furze v Nixon [2000] VSCA 149; (2000] 2 VR 503; (2000) 113 A Crim R 556; (2000) 32 MVR 547; MC 04/2001: 208Giankos v Ellison [1988] VicSC 250; (1988) 7 MVR 104; MC 27/1988: 103Gigante v Hickson [2001] VSCA 4; [2001] 3 VR 296; (2001) 33 MVR 51; (2001) 120 A Crim R 483; MC 15/2001: 211Gipp v Richardson [1982] VicRp 103; [1982] VR 1031; MC 53/1982: 5Goodey v Clarke [2002] VSC 246; (2002) 37 MVR 121; MC 05/2002: 227Gourlay v Freeman [1983] VicSC 174; MC 24/1983: 59Greenwood v Jack [1983] VicSC 335; MC 39/1983: 33Griffi ths v Drew [1983] VicSC 75; MC 19/1983: 31Halepovic v Sangson [2003] VSC 464; (2003) 40 MVR 203; MC 29/2003: 234Halley v Kershaw [2013] VSC 439; MC 35/2013: 288Hannon v Norman [2006] VSC 228; (2006) 45 MVR 520; MC 16/2006: 250Harris v Korol [1976] VicSC 74; MC 59/1976: 24Hassell v Day [1971] VicSC 317; MC 26/1971: 21Hazeldine v Grinter [1989] VicSC 332; (1989) 9 MVR 419; MC 50/1989: 132Healy v Wright [1981] VicSC 111; MC 13/1981: 70Hearn v Poot (1984) 2 MVR 79; [1984] VicSC 135; MC 10/1984: 74Hess v Clarebrough [1982] VicSC 437; MC 01/1983: 56Hewett v Harms [1989] VicSC 540; (1989) 10 MVR 63; MC 57/1989: 135Hill & Ors v Dunn & Ors [1974] VicSC 128; MC 46/1974: 38Hindson v Monahan [1970] VicRp 12; [1970] VR 84; [1969] VicSC 180; MC 07/1969: 81Hinneberg v Brannaghan [2009] VSC 356; (2009) 53 MVR 354; MC 21/2009: 271Hocking v Roberts [1983] VicSC 228; MC 30/1983: 60Houston v Harwood [1975] VicRp 69; [1975] VR 698; [1975] VicSC 196; MC 24/1975: 23Humphrey v Auger [1983] VicSC 17; MC 12/1983: 94Humphrey v Edwards [1988] VicSC 558; MC 34/1990: 141

17

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAHunter v Pearce [1982] VicSC 164; MC 43/1982: 91Huntington v Jupp [1978] VicSC 217; MC 24/1978: 44Hrysikos v Mansfi eld [2002] VSCA 175; (2002) 5 VR 485; (2002) 37 MVR 408; (2002) 135 A Crim R 17); MC 32/2002: 207Impagnatiello v Campbell (Balmford J) [2001] VSC 425; (2001) 35 MVR 181; MC 27/2001: 220Impagnatiello v Campbell (CA) [2003] VSCA 154; (2003) 6 VR 416; (2003) 39 MVR 486; MC 27/2003: 221Iskov v Matters [1977] VicRp 26; [1977] VR 220; MC 11/1977: 84James v Sanderson [1982] VicSC 89; MC 29/1982: 53Jia v Police [2015] SASC 140; MC 41/2015: 293Johnson v Poppeliers [2008] VSC 461; (2008) 20 VR 92; (2008) 190 A Crim R 23; (2008) 51 MVR 444; MC 50/2008: 268Johnstone v Matheson [2008] VSC 567; (2008) 21 VR 570; (2008) 52 MVR 1; MC 59/2008: 269Jones v Groves [1969] VicSC 156; MC 59/1969: 12Kaschke v Hornsby & Anor [1998] VicSC 290; (1998) 27 MVR 337; MC 21/1988: 199Kennan v Mears [1990] VicSC 18; MC 06/1990: 138Kerley v Farrell [1974] VicRp 92; [1974] VR 773, MC 45/1974: 83King v McLellan; Kerley v Farrell [1974] VicRp 92; [1974] VR 773, MC 45/1974: 83Kislinsky v Spence [1989] VicSC 516; (1989) 10 MVR 163; MC 55/1989: 133Knaggs v Cook [1979] VicSC 293; MC 49/1979: 37Kos v Johnston [1989] VicSC 563; (1990) 11 MVR 471; MC 56/1989: 134Lamb v Morrow [1986] VicRp 61; [1986] VR 623; [1986] 3 MVR 175; MC 01/1986: 40Larchin v Traynor [1980] VicSC 116; MC 28/1980: 123Laverty v Kubeil [1976] VicSC 647; MC 23/1977: 13Lee v Williams [1991] VicSC 41; (1991) 13 MVR 171; MC 08/1991: 145Leishman v O'Connor [1991] VicSC 3; (1991) 13 MVR 499; MC 13/1991: 148Lewis v Maiden [1983] VicSC 413; MC 48/1983: 64Lisiecki v Grigg [1990] VicSC 20; (1990) 10 MVR 336; MC 02/1990: 137Lord v Johnson [1982] VicSC 428; MC 03/1983: 57Loveday v Coibasic [1977] VicSC 53; MC 16/1977: 49Luff v DPP [2003] VSCA 81; (2003) 38 MVR 362; MC 16/2003: 214MacDonald v The County Court of Victoria & Anor [2004] VSC 202; (2004) 41 MVR 183; MC 23/2004: 239Maitland v Swinden (Hansen J) [2006] VSC 467; (2006) 46 MVR 507; MC 40/2006: 256Maitland v Swinden (CA) [2007] VSCA 44; (2007) 48 MVR 27; MC 09/2007: 257Mansfi eld v Hrysikos [2000] VSC 474; (2000) 32 MVR 491; MC 41/2000: 206Markovski v Chandler [1987] VicSC 554; (1987) 6 MVR 285; MC 51/1987: 65Marshall v Wilson (1982) 6 Crim LJ 160; MC 68/1982: 105Matosic v Hamilton [1991] VicSC 41; (1991) 13 MVR 171; MC 08/1991: 145Matthews v Van Der Maat [1983] VicSC 393; MC 52/1983: 88McArthur v McRae [1974] VicRp 43; [1974] VR 353; MC 33/1973: 113McCardy v McCormack [1994] VicRp 73; [1994] 2 VR 517; (1994) 20 MVR 275; MC 19/1994: 174 McDonald v Bell [1987] VicSC 558; (1987) 6 MVR 113; MC 62/1987: 100McKenzie v McFadzean [1996] VicSC 284; (1996) 23 MVR 327; MC 23/1996: 189McMahon v DPP [1995] VicSC 303; MC 01/1995: 182McPherson v County Court of Victoria & Anor [2003] VSC 105; (2003) 38 MVR 362; MC 01/2003: 232Meeking v Crisp and Mills [1989] VicRp 65; [1989] VR 740; (1989) 9 MVR 1; MC 06/1989: 127Mills v Feehan [1994] VicSC 421; (1994) 20 MVR 263; MC 21/1994: 176Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214; (1990) 91 ALR 16; (1990) 64 ALJR 190; (1990) 45 A Crim R 373; (1990) 10 MVR 257; noted 14 Crim LJ 375; MC 05/1990: 128Mitchell v DPP [2004] VSCA 36; (2004) 8 VR 192; (2004) 40 MVR 358; MC 16/2004: 229Mooney v Edwards [1990] VicSC 255; (1990) 11 MVR 333; MC 47/1990: 124More v McKnight [1978] VicSC 526; MC 02/1979: 71Moyle v Robinson [1970] VicSC 85; MC 08/1970: 108Myers v Hall [1977] VicSC 655; MC 06/1978: 9Naylor v Mitchell [1983] VicSC 83; MC 21/1983: 58Neill v County Court of Victoria & Anor [2005] VSC 341; MC 27/2005: 246Nicholl v Hunter [1994] VicSC 405; (1994) 20 MVR 384; MC 09/1995: 184Nichols v Funston [1976] VicSC 274; MC 40/1977: 86Nicoll v Miller [1978] VicSC 374; MC 48/1978: 90

18

DRINK/DRIVING in VICTORIANorris v Norburgh [1983] VicSC 338; MC 44/1983: 62Norris v Peat [1972] VicSC 263; MC 25/1972: 26Nutting v Ryder (1994) 20 MVR 294; MC 22/1994: 177Obeid v Burrows [1984] VicSC 189; MC 22/1984: 93O'Connor v County Court of Victoria and Bradshaw [2014] VSC 295; MC 15/2014: 289O'Connor v Bradshaw & The County Court of Victoria (CA) [2015] VSCA 39; MC 10/2015: 290Oliver v Pearce [1969] VicSC 138; MC 03/1969: 10Ozbinay v Crowley [1993] VicSC 183; (1993) 17 MVR 176; MC 26/1993: 169Palmer v Scollary [1972] VicSC 250; MC 22/1972: 119Parker v Kis [1980] VicSC 329; MC 10/1981: 52Patten v Van der Haar [1982] VicSC 415; MC 75/1982: 73Pavlovic v Krizman [1975] VicSC 259; MC 13/1975: 45Peeters v Helman [1975] VicSC 338; MC 19/1975: 120Penhallariack v Knight [1979] VicSC 289; MC 41/1979: 50Peters v Flude [1981] VicSC 330; MC 51/1983: 78Pittaway v Bassett [1973] VicSC 144; MC 22/1973: 109Platz v Barmby [2002] VSC 531; (2002) 135 A Crim R 571; MC 33/2002: 231Police v Dunstall [2015] HCA 26; (2015) 322 ALR 440; 89 ALJR 677; MC 31/2015: 292Quigley v Gould [1973] VicSC 95; MC 15/1973: 29R v Cheer [1979] VicRp 53; [1979] VR 541; MC 40/1979: 47R v Ciantar [2006] VSCA 263; (2006) 16 VR 26; (2006) 167 A Crim R 504; (2006) 46 MVR 461; MC 08/2007: 259R v O'Connor [1980] HCA 17; (1980) 146 CLR 64; (1980) 29 ALR 449; (1980) 4 A Crim R 348; (1980) 54 ALJR 349; MC 03/1980, applied: 281Rankin v O'Brien [1986] VicRp 7; [1986] VR 67; (1985) 2 MVR 503, MC 20/1985: 98Re Bolton MC 33/1990: 140Reeves v Beaman (O'Bryan J) MC 32/1991: 149Reeves v Beaman (CA) [1992] VicSC 387; MC 41/1992: 150Reeves v McWilliams [1985] VicSC 475, [1986] VicRp 31; [1986] VR 321; (1985) 3 MVR 81; MC 40/1985: 75Reynolds v Paisley [1973] VicSC 127; MC 19/1973: 32Robertson v Smith [1983] VicSC 283; MC 33/1983: 95Ross v Kenny [1976] VicSC 299; MC 61/1976: 1Rowe v Hughes [1974] VicRp 7; [1974] VR 60; MC 24/1973: 118Rugolino v Howard [2010] VSC 590; (2010) 57 MVR 178; MC 56/2010: 277Rust v Fleming [1977] VicSC 42; MC 15/1977: 85Sachse v Emms [1976] VicSC 604; MC 20/1977: 68Sanzaro v County Court of Victoria and Anor [2004] VSC 48; (2004) 42 MVR 279; MC 09/2004: 237Sawyer v Forai [2006] VSC 232; (2006) 13 VR 309; (2006) 163 A Crim R 313; MC 17/2006: 251Saxe v Kellett [1970] VicRp 79; [1970] VR 600; [1970] VicSC 78; MC 39/1969: 16Scollary v Regan [1983] VicSC 254; MC 47/1983: 63Scully v Semple [2004] VSC 393; (2004) 42 MVR 88; MC 30/2004: 242Sher v DPP [2001] VSCA 110; (2001) 34 MVR 153; (2001) 120 A Crim R 585; MC 18/2001: 212Sirajuddin v Ziino [2005] VSC 418; (2005) 14 VR 689; (2005) 45 MVR 21; MC 33/2005: 247Skase v Holmes and Anor [1995] VicSC 555; MC 03/1996: 187Smith & Anor v McGirr [1976] VicSC 605; MC 26/1977: 7Smith v Van Maanen [1991] VicSC 313; (1991) 14 MVR 365; MC 35/1991: 151Stafford v Redmond [1990] VicSC 623; (1990) 52 A Crim R 173; MC 54/1990: 143Stainsby v Madden [1994] VicSC 445; (1994) 20 MVR 315; MC 45/1994: 180Steele v Hosking [1970] VicSC 178; MC 18/1970: 20Stone v McIntyre [2007] VSC 406; (2007) 17 VR 280; (2007) 176 A Crim R 540; 48 MVR 549; MC 43/2007: 262Tampion v Chiller [1970] VicRp 46; [1970] VR 361; [1969] VicSC 265; MC 30/1969: 11Taylor v Lawrence [1981] VicSC 477; MC 01/1982: 54Terry v Johnson & Anor (Judd J) [2008] VSC 123; MC 25/2008: 264, over-ruled: 265Terry v Johnson & Anor (CA) [2009] VSCA 286; (2009) 198 A Crim R 128; MC 40/2009: 265Thompson v Judge Byrne and Ors [1998] 2 VR 274; (1997) 93 A Crim R 69; MC 33/1997: 193Thompson v Byrne [1999] HCA 16; 196 CLR 141; 161 ALR 632; 73 ALJR 642: 194Turner v Bunworth [1970] VicSC 147; MC 13/1970: 116Uren v Neale [2009] VSC 267; (2009) 53 MVR 57; (2010) 196 A Crim R 415; MC 17/2009: 270

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PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAVan Elst v Tanner [1978] VicSC 401; MC 56/1978: 69Vaughan v Bechmann [1979] VicSC 358; MC 42/1979: 72Vaughan v Lennie [1981] VicRp 25; [1981] VR 229; [1980] VicSC 596; MC 06/1981: 112Venezia v Marshall [2001] VSC 87; (2001) 33 MVR 269; MC 28/2001: 222Vowles v Byers [1983] VicSC 459; MC 57/1983: 80Walker v DPP [1993] VicSC 245; (1993) 17 MVR 194; MC 02/1994:155Walters v Magistrates' Court of Victoria, County Court of Victoria & Bourchier [2015] VSC 88; MC 13/2015: 291Waters v Good [1976] VicSC 427; MC 85/1976: 48Watson v Reiterer [1988] VicSC 592; MC 53/1988: 114Watt v Smyth MC 03/1995: 183Wesson v Jennings [1971] VicRp 9; [1971] VR 83; MC 46/1969: 18Williams v Jacobs [1999] VSC 88; (1999) 29 MVR 24; MC 02/1999: 202Wilson v County Court & Anor [2006] VSC 322; (2006) 14 VR 461; (2006) 164 A Crim R 525; (2006) 46 MVR 117; MC 30/2006: 252Wilson v County Court of Victoria and Anor (No 2) [2013] VSC 369; MC 33/2013: 287Woodgate v Russell [1976] VicSC 259; MC 62/1976: 6Woods v Gamble [1991] VicSC 18; (1991) 13 MVR 153; MC 11/1991: 147Woodward v McNab [1978] VicSC 384; MC 57/1978: 25Wright v Bastin (No 2) [1979] VicRp 35; [1979] VR 329; MC 14/1979: 46Wright v Morton [1996] VicSC 305; (1996) 87 A Crim R 468; (1996) 24 MVR 497; MC 26/1996: 191Wyllie & Ors v Sewell & Ors [1981] VicSC 600; MC 45/1982: 3Yates v Ebert [1995] VicSC 494; MC 02/1996: 186Youla v Green & Anor [1994] VicRp 28; [1994] 1 VR 408; (1993) 18 MVR 321; MC 53/1993: 171Zderski v Ellis [1988] VicSC 539; MC 63/1988: 96Zervaas v Ralph [1969] VicSC 196; MC 10/1969: 15Zylstra v Smith [1989] VicSC 520; MC 73/1989: 136

3. Cases Referred to, Applied, Followed, Considered etcAirs v Manville-Smythe (FC) [1973] VicRp 30; [1973] VR 304, followed: 6Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223; [1947] 2 All ER 680; (1947) 63 TLR 623; (1947) 177 LT 641; (1947) 112 JP 55; [1948] LJR 190; (1947) 45 LGR 635, considered: 267Attwood v Lacy [1979] VicSC 226, followed: 59Barritt v Baker [1948] Vic Law Rp 85; (1948) VLR 491, followed: 94Bell v Feehan [1985] VicSC 239; [1985] VicRp 82; [1985] VR 841; (1985) 2 MVR 341; MC 23/1985, applied: 138Binting v Wilson; Clifford v Davis [1989] VicSC 636; MC 14/1990, applied: 145Blain v Witton [1976] VicSC 83; MC 65/1976, followed: 31Blair v County Court of Victoria & Anor [2005] VSC 213; MC 18/2005, approved: 245Bloch v Bloch [1981] HCA 56; (1981) 180 CLR 390; (1981) 37 ALR 55; (1981) 55 ALJR 701, referred to: 124Bogdanovski v Buckingham [1989] VicRp 80; [1989] VR 897; (1988) 9 MVR 25; MC 20/1989, followed: 136, 139; distinguished: 142; referred to: 169; applied: 174Borowski v Quayle [1966] VicRp 54; [1966] VR 382, followed: 17Brereton v Sinclair [2000] VSCA 211; (2000) 2 VR 424; (2000) 118 A Crim R 366, followed: 231Bretag v Ames [1935] WALawRp 11; (1935) 37 WALR 84, not followed: 118Broome v Chenoweth [1946] HCA 53; (1946) 73 CLR 583; [1947] ALR 27, applied: 169, 274Browne v Dunn (1894) 6 Co Rep. 67, applied: 154Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54; 19 ALR 641; 52 ALJR 561, applied: 168, 217, 224, 225, 261, 265, 271, 272, 292Burns v Storey [1970] VicRp 50; (1970) VR 388; MC 14/1969, applied: 92, 166Campbell v Fuss (1991) 55 SASR 355, considered: 293Campbell v Renton [1988] VicSC 414; MC 39A/1988, followed: 170Campbell v Sanders (1996) 23 MVR 515; (1996) 86 A Crim R 378; MC 22/1996, referred to: 286Caughey v McClaer [1977] VicSC 80; MC 14/1977, followed: 70, 123Caughey v Spacek [1968] VicSC 73; [1968] VicRp 78; (1968) VR 600, followed: 1Chappell v Ross & Son Pty Ltd [1969] VicRp 48; [1969] VR 376, followed: 116Chisholm v Mathews [1992] VicSC 432; (1992) 16 MVR 447; MC 42/1992, not followed: 247Christie v Britnell [1895] VicLawRp 9; (1895) 21 VLR 71, applied: 240Clemens v Pretlove [1972] VicSC 46, (VSC, Pape J, followed: 24Clyne v Director of Public Prosecutions [1984] HCA 56; (1984) 154 CLR 640 at 648; 55 ALR 9; (1984) 58 ALJR 493, referred to: 127Collins v Mithen [1975] VicSC 229, referred to: 44, 46; followed: 51, 58Creely v Ingles [1969] VicSC 90; [1969] VicRp 94; [1969] VR 732, applied: 10, 33

20

DRINK/DRIVING in VICTORIACummins v Dalton [1982] VicSC 25; MC 49/1982, applied: 95Curmi v Matthews MC 04/1991, referred to: 153Dalzotto v Lowell [1992] VicSC 674; MC 06/1993, applied: 174, 198; referred to: 183; disapproved: 201Dillon v R [1982] AC 484; [1982] 1 All ER 1016, applied: 221DPP Reference No 2 of 2001 [2001] VSCA 114; (2001) 4 VR 55; (2001) 122 A Crim R 251; (2001) 3 4 MVR 164; MC 13/2001, followed: 224DPP v Blyth [1992] VicSC 180; MC 22/1992, applied: 173; referred to: 183DPP v Farmer [2010] VSC 343; (2010) 56 MVR 137; MC 43/2010, referred to: 288DPP v Foster & Bajram [1999] VSC 91, Hampel J, 29 March 1999, reversed: 201DPP v Foster; DPP v Bajram (CA) [1999] VSCA 73; [1999] 2 VR 643; (1999) 104 A Crim R 426; (1999) 29 MVR 365; MC 01/1999, applied: 203, 226, 232, 234, 255, 272DPP v Holden [1999] VSC 14; (1999) 28 MVR 315, followed; 236DPP v Greelish [2000] VSC 364; (2000) 115 A Crim R 178; (2000) 32 MVR 271; MC 22/2001, reversed: 226DPP v Kypri [2011] VSCA 257; (2 011) 33 VR 157, (2011) 207 A Crim R 566; MC 53/2010, applied: 291DPP v Martell [1992] VicRp 64; [1992] 2 VR 249; (1992) 15 MVR 397; MC 14/1992, referred to: 125, 169DPP v Mitchell [2002] VSC 326; (2002) 37 MVR 142; MC 22/2002, followed: 273DPP v Moore [2003] VSCA 90; (2003) 6 VR 430; (2003) 39 MVR 323; MC 20/2003, applied: 254, 261, 264, 265DPP v Nicholson [1997] VicSC 645; (1997) 98 A Crim R 558; (1997) 27 MVR 120; MC 09/1998, disapproved: 201DPP v O'Rourke [2006] VSC 150; (2006) 159 A Crim R 590; (2006) 45 MVR 223, overruled: 258DPP v Walker [1992] VicSC 201; MC 20/1992, affi rmed: 155; doubted: 164DPP v Webb [1993] VicRp 82; [1993] 2 VR 403; (1992) 16 MVR 367; MC 40/1992, followed: 162, 163, 176, 189, 206, 267; distinguished: 266Durston v Mercuri [1969] VicRp 62; [1969] VR 507, applied: 15Edwards v Macrae (1991) 14 MVR 193, followed: 282Ex Parte Lovell; Re Buckley & Anor [1938] NSWStRp 12; (1938) 38 SR (NSW) 153; 55 WN (NSW) 63, applied: 227Falkner v Barba [1970] VicSC 299; [1971] VicRp 39; [1971] VR 332; (1971) 24 LGRA 270, applied: 177Farrington v Thomson & Bridgland [1959] VicRp 49; [1959] VR 286; [1959] ALR 695, applied: 240Fitzgerald v Howey [1995] VicSC 427; (1995) 24 MVR 369; 04/1996, applied: 202Fitzgerald v Magistrates’ Court of Victoria [2001] VSC 348; (2001) 34 MVR 448; MC 26/2001, distinguished: 268Francis v Stevens [1983] VicRp 21; [1983] 1 VR 260; MC 25/1982, not followed, in relation to the admissibility of evidence concerning breathalyser error: 74; applied: 75Furze v Nixon [2000] VSCA 149; (2000) 2 VR 503; (2000) 113 A Crim R 556; (2000) 32 MVR 547; MC 04/2001, applied: 213, 214, 220, 250, 268, 290Gaffee v Johnson [1996] VicSC 604; (1996) 90 A Crim R 157; MC 16/1997, applied: 199; distinguished: 219Giankos v Ellison [1988] VicSC 250; (1988) 7 MVR 104; MC 27/1988, followed: 104Gillard v Wenborn [1988] VicSC 374; MC 42/1988, distinguished: 126Glare v Bolster [1993] VicSC 18; (1993) 18 MVR 53, distinguished: 268 Goodey v Clarke (2002) 37 MVR 121; MC 05/2002, followed: 274Goodman v Stafford [1992] VicSC 163; (1992) 15 MVR 145; MC 25/1992, disapproved: 211Gosden v Billerwell [1980] FCA 84; (1980) 31 ALR 103; (1980) 47 FLR 357; 2 A Crim R 1, judgment of Sheppard and Kelly JJ, not followed: 3Greenwood v Jack [1983] VicSC 335; MC 39/1983, followed: 34 Halliday v Nevill [1984] HCA 80; (1984) 155 CLR 1; (1984) 57 ALR 331; (1984) 13 A Crim R 250; (1984) 59 ALJR 124; (1984) 2 MVR 161; [1984] Aust Torts Reports 80-315; MC 59/1984, referred to: 146Hammond v Lavender (1976) 11 ALR 371; (1976) 50 ALJR 728, considered: 282Hanlon v Lynch [1968] VicRp 80; [1968] VR 613, referred to: 27, 222Hearn v Poot [1984] VicSC 135; MC 10/1984 distinguished: 75Hess v Clarebrough [1982] VicSC 437; MC 01/1983, followed: 60; discussed: 64Heywood v Robinson [1975] VicRp 55; (1975) VR 562, followed: 46, 56, 177Hindson v Monahan [1969] VicSC 180; [1970] VicRp 12; (1970) VR 84, followed: 48, 56, 64 Hocking v Roberts [1983] VicSC 228; MC 30/1983, discussed: 64Holdsworth v Fox [1974] VicRp 27; [1974] VR 225, applied: 67, 71, 74, 75, 77, 79, 123, 263Houston v Harwood [1975] VicSC 196; [1975] VicRp 69; (1975) VR 698, followed: 24, 61, 133Hrysikos v Mansfi eld [2002] VSCA 175; (2002) 5 VR 485; (2002) 135 A Crim R 179; (2002) 37 MVR 408; MC 32/2002, obiter comments of Eames J adopted: 266; followed: 267, 284Hughes v National Trustees Executors & Agency Company of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134; 23 ALR 321; 53 ALJR 249, applied: 37Humphrey v Wills [1989] VicRp 42; (1989) VR 439, referred to: 124; distinguished: 148Hunter v Pearce [1982] VicSC 164; MC 43/1982, followed: 152Huntington v Jupp [1978] VicSC 217; MC 24/1978, followed: 56, 58,59Impagnatiello v Campbell [2001] VSC 425; (2001) 35 MVR 181; MC 27/2001, reversed: 221Impagnatiello v Campbell (CA) [2003] VSCA 154; (2003) 6 VR 416; (2003) 39 MVR 486; MC 27/2003, followed: 242, 247, 290Jeffrey v Black (1978) QB 490; [1978] 1 All ER 555; [1977] 3 WLR 895; 66 Cr App R 81, considered: 104John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508; 73 ALR 545; 61 ALJR 508; 27 A Crim R 228, applied: 227

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PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAJohnson v Miller [1937] HCA 77; (1937) 59 CLR 467; [1938] ALR 104, applied: 203Kaschke v Hornsby (1998) 27 MVR 337; MC 21/1998, distinguished: 219Kelly v Russell [1970] ALR 644; (1969) 14 FLR 255, followed: 112Kennett v Holt [1974] VicRp 79; [1974] VR 644, at 647-648, referred to: 210Kerr v Hannon [1992] VicRp 3; [1992] 1 VR 43; MC 14/1991, distinguished: 183; disapproved: 211King v McLellan [1974] VicRp 92; [1974] VR 773, referred to: 98Kislinsky v Spence [1989] VicSC 516; (1989) 10 MVR 163; MC 55/1989, considered: 196Kos v Johnston [1989] VicSC 563; (1990) 11 MVR 471; MC 56/1989, applied: 254Kroon v R (1990) 55 SASR 476; (1990) 12 MVR 483; (1990) 52 A Crim R 15, followed: 282Kuruma v R (1955) AC 197; [1955] 1 All ER 236, considered 104Lambert v Appleby [1969] VicSC 91; [1969] VicRp 80; (1969) VR 641, applied: 145Larchin v Traynor [1980] VicSC 116; MC 28/1980, followed: 74; distinguished: 75Lisiecki v Grigg (1990) 10 MVR 336; MC 2/1990, followed: 239, 270Llewellyn v Reynolds [1952] VicLawRp 24; (1952) VLR 171; [1952] ALR 358, applied: 33Lloyd v Thorburn [1973] VicSC 104; [1974] VicRp 2; (1974) VR 12, followed: 48, 80 Lucas v Ross [1925] VicLawRp 21; [1925] VLR 184; 31 ALR 85; 46 ALT 156, overruled: 118MacDonald v The County Court of Victoria [2004] VSC 202; (2004) 41 MVR 183; MC 23/2004, followed: 270Maitland v Swinden [2006] VSC 467; (2006) 46 MVR 507; MC 40/2006, approved: 257Mallock v Tabak [1976] VicSC 503; [1977] VicRp 7; (1977) VR 78 at 83, referred to: 44, 46, 96; followed: 51, 64; distinguished: 95Matosic v Hamilton [1991] VicSC 41; (1991) 13 MVR 171; MC 08/1991, explained: 164Matthews v Van de Maat [1983] VicSC 393, MC 52/1983, applied: 263McArthur v McRae [1974] VicRp 43; (1974) VR 353, referred to: 3; followed: 70McCardy v McCormack [1994] VicRp 73; [1994] 2 VR 517; 20 MVR 275; MC 19/1994: referred to: 183, 198; disapproved: 201McColl v Lehmann [1987] VicRp 46; [1987] VR 503; (1986) 24 A Crim R 234; MC 41/1986, referred to: 124McDonald v Bell [1987] VicSC 558; MC 62/1987, followed: 103, 104McInnis v R [1979] HCA 65; (1979) 143 CLR 575; 27 ALR 449; 54 ALJR 122; MC 34/1980, applied: 124Meeking v Crisp & Mills [1988] VicSC 595, Vic Sup Ct, Crockett J, 14 November 1988, reversed: 127Meeking v Crisp [1989] VicRp 65; [1989] VR 740; (1989) 9 MVR 1; MC 06/1989, affi rmed: 128Meertens v Falkenberg (1981) 92 LSJS 202 (SASC), followed: 281Mehesz v Redman (No 2) (1980) 26 SASR 244, followed: 259Merchant v R [1971] HCA 22; (1971) 126 CLR 414; [1971] ALR 736; 45 ALJR 310, applied: 95Mills v Meeking and Anor [1990] HCA 6; (1990) 169 CLR 214; (1990) 91 ALR 16; (1990) 64 ALJR 190; (1990) 45 A Crim R 373; (1990) 10 MVR 257, referred to: 163, 174; followed: 193, 194Minister of Agriculture v Kelly [1953] NI 151, applied: 11 Nitz v Evans [1993] VicSC 177; (1993) 19 MVR 55; MC 19/1993, followed: 231Nolan v Rhodes [1982] 32 SASR 207, applied: 264, 265Ozbinay v Crowley [1993] VicSC 183; (1993) 17 MVR 176; MC 26/1993, considered: 188Pavlovic v Krizman [1975] VicSC 259, Gowans J, 29 May 1975, followed: 48, 64Pearcey v Chianta [1987] VicSC 420; (1987) 6 MVR 10; MC 30/1987, applied: 178Peebles v Hotchin [1988] VicSC 552; [1988] 8 MVR 147; MC 61/1988, noted: 132; explained: 144; referred to: 147, 163Petty v R [1991] HCA 34; (1991) 173 CLR 95; 102 ALR 129; 55 A Crim R 322; 65 ALJR 625, applied: 252Pino v Prosser [1967] VicSC 91; [1967] VicRp 107; (1967) VR 835, applied: 101Pointon v Cox (1927) 136 LT 506, applied: 203Police v Dunstall [2014] SASCFC 85; (2014) 120 SASR 88, approved: 292Police v Head [2013] SASC 185, considered: 293 Police v Ludlow [2008] SASC 43, considered: 293Porter v Kolodzeij [1962] VicRp 11; (1962) VR 75, doubted: 259Pring v Woolacott (1966) SASR 6, followed: 112Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; 153 ALR 490; (1998) 72 ALJR 841; (1998) 8 Leg Rep 41, applied: 255Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536; [1944] ALR 64, referred to: 106Question of Law Reserved (No 1 of 1998) (1998) 70 SASR 281; (1998) 100 A Crim R 281, distinguished: 225R v Adams [1935] HCA 62; (1935) 53 CLR 563; [1935] ALR 421; 8 ABC 97, applied; 118R v Carter [1959] VicRp 19; (1959) VR 105; [1959] ALR 335, referred to: 7; followed: 281 R v Chee [1980] VicRp 32; [1980] VR 303, applied: 50R v Cheer [1979] VicRp 53; (1979) VR 541; MC 40/1979, applied: 59R v Chin [1985] HCA 35; (1985) 157 CLR 671; 59 ALR 1; 16 A Crim R 147; 59 ALJR 495, applied: 260R v Cox [1960] VicRp 102; (1960) VR 665, referred to: 124R v Durrant (1969) 3 All ER 1357; (1970) 1 WLR 29, distinguished: 77, 103R v Heron; ex parte Mulder [1884] VicLawRp 108; 1884) 10 VLR (L) 314, applied: 101R v Ireland [1970] HCA 21; (1970) 126 CLR 321; [1970] ALR 727; (1970) 44 ALJR 263, applied: 104, 225, 264, 265R v Lee [1950] HCA 25; (1950) 82 CLR 133; [1950] ALR 517, applied: 292R v Lobban [2000] SASC 48; (2000) 77 SASR 24; (2000) 112 A Crim R 357, not followed: 225

22

DRINK/DRIVING in VICTORIAR v McGill [1967] VicRp 79; (1967) VR 683, referred to: 124R v McGowan [1984] VicRp 78; [1984] VR 1000; MC 42/1984, applied: 225R v Neilan [1991] VicSC 138; [1992] VicRp 5; [1992] 1 VR 57; (1991) 52 A Crim R 303, applied: 180, 196R v O'Connor [1980] HCA 17; (1980) 146 CLR 64; (1980) 29 ALR 449; (1980) 4 A Crim R 348; (1980) 54 ALJR 349; MC 56/1980, applied: 281R v Saleam (1989) 16 NSWLR 14; (1989) 39 A Crim R 406, applied: 219R v Swaffi eld and Pavic [1998] HCA 1; (1998) 192 CLR 159; (1998) 151 ALR 98; (1998) 72 ALJR 339; (1998) 96 A Crim R 96; [1998] 1 Leg Rep C5, referred to: 272R v The Deputies of the Freemen of Leicester [1850] EngR 644; (1850) 15 QB 671; 117 ER 613, applied: 99Rankin v O'Brien [1986] VicRp 7; [1986] VR 67; (1985) 2 MVR 503; MC 20/1985, applied: 270Re The Licensing Ordinance (1968) 13 FLR 143, referred to: 238Reddy v Ross [1973] VicRp 46; (1973) VR 462, applied: 85, 166; distinguished: 95Reeves v Beaman MC 32/1991, affi rmed: 150; explained: 174Reeves v McWilliams [1985] VicSC 475; [1986] VicRp 31; [1986] VR 321; (1985) 3 MVR 81; MC 40/1985, applied: 41Richards v Jager [1909] VicLawRp 26; [1909] VLR 140; 15 ALR 119; 30 ALT 163, referred to: 107Roads and Traffi c Authority of NSW v Michell [2006] NSWSC 194; (2006) 45 MVR 162, distinguished: 254Roberts v Beet [1988] VicRp 15; [1988] VR 118; (1987) 6 MVR 51; MC 53/1987, distinguished: 242Robertson v Smith [1996] VicSC 286; MC 33/1983, not followed: 154; explained: 164Rose v Livingstone [1982] 1 NSWLR 299, O'Brien CJ, followed: 3Ross v Smith [1969] VicSC 23; [1969] VicRp 51; (1969) VR 411, discussed: 33Rozenes v Beljajev [1995] VicRp 34; [1995] 1 VR 533; (1994) 126 ALR 481; 8 VAR 1, applied: 205Ryan v R [1967] HCA 2; (1967) 121 CLR 205; [1967] ALR 577; 40 ALJR 488, applied: 281, 282Sanders v Hill (1964) SASR 327, applied: 133Sanzaro v County Court of Victoria [2004] VSC 48; (2004) 42 MVR 279; MC 09/2004, applied: 280, 286Saxe v Kellett [1970] VicSC 78; [1970] VicRp 79; (1970) VR 600, referred to: 3; considered: 37Schuett v McKenzie [1968] VicRp 24; [1968] VR 225, followed: 95Scilley v Potter [1991] VicSC 15; (1991) 13 MVR 23; MC 12/1991, referred to: 196Scott v Baker [1969] 1 QB 659; [1968] 2 All ER 993; [1968] 3 WLR 796, applied: 95Scott v Dunstone [1963] VicRp 77; [1963] VR 579, distinguished: 98, 155; not followed: 137, 154; applied: 234; discussed: 239; referred to: 253Sirajuddin v Ziino [2005] VSC 418; (2005) 14 VR 689; (2005) 45 MVR 21; MC 33/2005, followed: 248, 250Siviour-Ashman v Police [2003] SASC 29; (2003) 85 SASR 23 at 27, applied: 293Smith v Ferguson [1967] VicRp 93; [1967] VR 757, applied: 18Smith v Maddison [1967] VicRp 34; (1967) VR 307, followed: 46, 177; referred to: 115Smith v Van Maanen [1991] VicSC 313; (1991) 14 MVR 365; MC 35/1991, referred to: 150, 162, 179; applied: 160Slater v Williamson [1969] VicRp 91; [1969] VR 705, applied: 10Spicer v Holt (1977) AC 987; [1976] 3 All ER 71; (1976) 3 WLR 398, considered: 104Staples v McGill [1969] VicSC 176, VSC, Gowans J, 22 September 1969, not followed: 84Stiles v Lamont [1991] VicSC 495; (1992) 15 MVR 557; MC 13/1992, applied: 158Sun Alliance Insurance v Massoud [1989] VicRp 2; (1989) VR 8; MC 58/1988, applied: 143Sweet v Parsley [1969] UKHL 1; (1970) AC 132 at 149; [1969] 1 All ER 347; 53 Cr App R 221; [1969] 2 WLR 470; referred to: 37Tampion v Chiller [1969] VicSC 265; [1970] VicRp 46; (1970) VR 361, considered: 37Thiessen v Fielding [1890] VicLawRp 138; (1890) 16 VLR 666, applied: 225Thompson v Judge Byrne [1999] HCA 16; (1999) 196 CLR 141; (1999) 161 ALR 632; (1999) 73 ALJR 642; (1999) 29 MVR 1; (1999) 7 Leg Rep 27, referred to: 220, 242Thomson v Cotton [1973] VicSC 247, VSC, 8 October 1973, Murphy J, overruled: 83Thomson v Lee [1935] VicLawRp 65; [1935] VLR 360; [1935] ALR 458: 178Uren v Neale [2009] VSC 267; (2009) 53 MVR 57; (2009) 196 A Crim R 415; MC 17/2009, applied: 285Vaughan v Bechmann [1979] VicSC 358; MC 42/1979, Beach J, 31 July 1979, not followed: 70Waldie v Cook (1988) 91 FLR 413; (1988) 8 MVR 191; MC 47/1989, applied: 133Walker v DPP [1993] VicSC 245; (1993) 17 MVR 194; MC 02/1994: referred to: 173, 181; followed: 201, 232 Wallace v Major [1946] KB 473; (1946) 2 All ER 87, followed: 1Wallin v Curtain (1998) 27 MVR 356; (1998) 100 A Crim R 506, considered: 282Warner v Sunnybrook Ice Cream Pty Ltd [1968] VicRp 11; [1968] VR 102; (1967) 15 LGRA 135, referred to: 160Weissensteiner v R [1993] HCA 65; (1993) 178 CLR 217; (1993) 117 ALR 545; 68 A Crim R 251; 68 ALJR 23, applied: 196, 228, referred to: 252Welsh v Donnelly [1983] VicRp 79; [1983] 2 VR 173; MC 11/1983, applied: 187Wendo v R [1963] HCA 19; (109) CLR 559; [1964] ALR 292; 37 ALJR 77, followed: 33Wesson v Jennings [1971] VicRp 9; (1971) VR 83, followed: 24, 34, 49White v Moloney [1969] VicSC 71; [1969] VicRp 91; [1969] VR 705, applied: 29; followed: 20, 27Wood v Pfeiffer [1925] VicLawRp 18; (1925) VLR 167; 31 ALR 79; 46 ALT 153, distinguished: 28Woods v Gamble [1991] VicSC 18; (1991) 13 MVR 153; MC 11/1991, applied: 273Woodward v McNab [1978] VicSC 384; MC 57/1978, VSC Murray J, 31 August 1978, followed: 50Wright v Bastin [1978] VicRp 57; [1978] VR 609; MC 14/1979, approved: 47, 51, 56, 59, 78; referred to: 96

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PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAWylie v Nicholson [1973] VicRp 58; (1973) VR 596, considered: 37; followed: 48, 56, 59, 64Wyllie v Sewell [1981] VicSC 600; MC 45/1982, applied: 145______________________________________________________________________________________________

4. CASES1. "driving" – meaning of – defendant got into car but could not move car due to its position on railway lines – whether defendant driving – charge found proved by Magistrate – Magistrate in error.

The motor car in question was positioned straddling two railway lines, at right angles. The defendant got into the car, started the engine, put the car in gear, attempted to move it from its position; however although the wheels revolved, the car remained positioned straddling the lines moving neither forwards, backwards or sideways. The magistrate found the charge of drink/driving proved. Upon Order Nisi to Review—

HELD: Order absolute. Conviction quashed.The intention of the defendant was not relevant. The question was one of objective fact. Did he actually drive the car? No. The defendant had no control over the means of propulsion and the car did not move. Both movement and control appear on the authorities, to be necessary ingredients of driving. Caughey v Spacek [1968] VicSC 73; [1968] VicRp 78; (1968) VR 600; and Wallace v Major [1946] KB 473; (1946) 2 All ER 87, followed.

Murphy J:" ... In my opinion, the intention of the respondent is not relevant. The question is one of objective fact. Did he actually drive the car? I think not. The respondent had no control over the means of propulsion and the car did not move. Both movement and control appear to me, on the authorities, to be necessary ingredients of driving.

The example given by Macfarlan J of stopping at a traffi c light appears to me to involve moving the car up to the light and controlling it by stopping it there. If the defendant in such a case as Macfarlan J contemplates could have proven that he got into the car after it had been stopped (even with the engine running) by someone else at the lights, and he was then apprehended before the car moved in any way again, I myself doubt very much whether it could be held that he drove the motor car within the meaning of s81A.

Accordingly, in the present case, on the facts found by the magistrate, and on which this case was argued before me, I am of the opinion that it was not open to the magistrate to fi nd that the car was driven by the respondent. It could be said that he attempted to drive it, but it could not be driven."

Per Murphy J in Ross v Kenny [1976] VicSC 299; MC 61/1976, 28 June 1976.

2. Driver charged with .05 offence – evidence given by police informant that defendant observed pushing motor cycle on roadway – whether "driving a motor cycle" – charge found proved – Magistrate in error.

HELD: Conviction quashed.In pushing the motor cycle from the hotel to the point at which the defendant was apprehended he could not properly be said to be driving the motor cycle within the meaning of the section. There must be a distinction between driving on the one hand and pushing a motor cycle on the other. To drive is not simply to control, and not simply to be in charge of a motor cycle, and that there must be something further that the person to be charged does, which would bring him within the ordinary understanding of the meaning of the word "drive" a motor cycle. Accordingly, the magistrate was in error in fi nding the charge proved.

Murphy J:" ... The situation appears to have been, as it was accepted by the Magistrate at all events, that the applicant, having been to a hotel and imbibed a quantity of alcohol, decided that he was not in any condition to drive his motor cycle and on leaving the hotel began to push it along the roadway to his friend's home. He had pushed it some 400 feet or so and he had done this without starting the motor cycle and he did so by walking alongside the motor cycle and pushing it along and guide it with its handlebars in order to ease the propulsion of it to the point to which he wished to take it. He was apprehended whilst in the gutter, not riding the motor cycle, although it might appear, on one view, that at that stage he was contemplating doing so. At all events, he was not seen to move on the motor cycle and there was no evidence from any eye witnesses at any stage on that evening, at any relevant time, he was in fact driving the motor cycle.

... Every case, of course, must be determined upon its own facts, and in this case it is my view that in pushing the motor cycle from the hotel to the point at which he was apprehended, the applicant could not properly be said to be driving the motor cycle within the meaning of the section.

... to drive is not simply to control, and not simply to be in charge of a motor cycle, and that there

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DRINK/DRIVING in VICTORIAmust be something further that the person to be charged does, which would bring him within the ordinary understanding of the meaning of the word "drive a motor cycle". In my view, in this case, there was nothing else to which the Magistrate could have directed his attention to enable him to decide that the applicant had in fact driven the motor car whilst his blood alcohol content exceeded the permitted limit. Accordingly, in my view, it was the duty of the Magistrate in the circumstances of this case to dismiss the information. He did not do so and in my view for this reason he was wrong. ..."

Per Murphy J in Coombe v Currucan [1981] VicSC 421; MC 13/1982, 21 September 1981.

3. Whether notice in the Government Gazette purporting to identify certain apparatus as an approved breath analysing instrument does not comply with provisions of the Motor Car Act 1958 – compliance with regulations – whether prosecution required to prove compliance with regulations.

S, H. and D. were each convicted of exceeding .05. The grounds for review were common in each order nisi namely, that the notice in the Government Gazette purporting to identify certain apparatus as an approved breath analysis instrument did not comply with the requirements of the Motor Car Act 1958.

HELD: Orders nisi discharged.1. There was a suffi cient notifi cation of a type of approved instrument where the type was described by reference to the trade name and patent number which was impressed upon the instrument. Rose v Livingstone [1982] 1 NSWLR 299, O'Brien CJ, 13 February 1981, followed Gosden v Billerwell [1980] FCA 84; (1980) 31 ALR 103; (1980) 47 FLR 357; 2 A Crim R 1, judgment of Sheppard and Kelly JJ, not followed.

2. It was not necessary for the Magistrate to be satisfi ed that the breathalyser had been tested in accordance with the Regulations in order to convict the defendant. The essential elements of the offence are (i) that an approved instrument was used and (ii) that it gave a certain reading. It has been repeatedly held in cases of this kind, that the prosecution do not have to prove that all relevant regulations have been complied with.

Gray J:" ... The applicant's argument is that the Governor-in-Council has failed to approve apparatus of a "type" in that he has merely signifi ed apparatus bearing certain words and fi gures. It was submitted that, by adopting that method, the Governor-in-Council had been guilty of an unauthorised delegation of his duty to approve apparatus of a stipulated type. It was said that it was the person who affi xed the words and numbers who approves the apparatus and not the Governor-in-Council. It was contended that what was required by s80F(14) was the approval of, say, "Smith & Wesson Breathalyzer Model No. 1100". The applicant's argument relied upon dictionary meanings of "type" which suggest that the word means something more than an article bearing a certain imprint.

... In my opinion, the notifi cation is valid and extends to all instruments which lawfully bear the letters and numbers stipulated in the notifi cation. It would not, as Brennan J points out, extend to an instrument which has had the stipulated markings impressed upon it by an unauthorised person. Each of the three learned Magistrates rejected the defendant's submission on this point and, in my opinion, each was correct in doing so.

... In this case the critical factual issue was whether the breathalyzer used was an approved breathalyzer. Sergeant Dawson swore that it was and said that he had used it for some time. He did not depart from that evidence. The best that can be said is that he was unable to be certain in his recitation of the markings on the instrument.

... It can be accepted that a point may be reached where a witness in cross-examination displays such uncertainty that a fi nding can no longer be reasonably based upon his evidence-in-chief. See McArthur v McRae [1974] VicRp 43; (1974) VR 353 at 358; Saxe v Kellett [1970] VicSC 78; [1970] VicRp 79; (1970) VR 600. But Sergeant Dawson's evidence was never shaken to the point where a fi nding could not reasonably be based upon his evidence. His evidence was uncontradicted and was supported by the probabilities. In my opinion, the learned Magistrate's fi nding was one which was sensible and eminently open to him on the evidence.

... It was submitted that it was not open to the learned Magistrate to be satisfi ed, as he was, that the breathalyzer had been tested in accordance with the Regulations. It should be noted that it was not necessary for the learned Magistrate to be satisfi ed on this matter in order to convict the defendant. The essential elements of the offence are (i) that an approved instrument was used and (ii) that it gave a certain reading. It has been repeatedly held by judges of this court, that, in cases of this kind, the prosecution do not have to prove that all relevant regulations have been complied with.

... In the present case, it was conceded by Sergeant Dawson that the machine may have been tested with a solution which differed minimally from the prescribed formula. The relevant dictionary meaning

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PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAof minimal is "very minute", "the least possible". In my opinion, it would have been quite capricious for the learned Magistrate to have disregarded the analysis because of what was conceded by Sergeant Dawson. The learned Magistrate was correct in rejecting the defendant's submission because the point had no substance. In the result, each order nisi will be discharged with costs fi xed at $200."

Per Gray J in Wyllie & Ors v Sewell & Ors [1981] VicSC 600; MC 45/1982, 23 December 1981.

4. Notice served requiring attendance of breathalyser operator – proof necessary that breath analysing instrument was of an approved type – evidence given by operator unsatisfactory in identifying the instrument used – charge found proved – Magistrate in error.

HELD: Order absolute. Conviction set aside. Charge dismissed.1. One of the matters required to be established as formal proof as part of the prosecution case was that the breath analysing instrument used was of an approved type. Sub-s14 of s80F of the Motor Car Act states that in that section "Breath analysing instrument" means "Apparatus of a type approved for the purpose of this section by the Governor-in-Council by notice published in the Government Gazette."

2. The operator said in evidence that the instrument used on the relevant occasion was of an approved type. However, once the matter was put in issue, the bald statement that the instrument used was of an approved type was insuffi cient probative effect as to enable a fi nding that the machine used was in fact a breath-analysing instrument as defi ned by the Act. The witness was unable to give any satisfactory evidence that the instrument he used was of an approved type. He gave a number which was different from the one referred to in the Order-in-Council. On the evidence, it was insuffi cient to allow the magistrate to fi nd the charge proved. It is not up to the defence to call evidence to show it was not an approved machine; it can be shown through cross-examination of the witness by the defence.

Crockett J:" ... The question to which some attention was given in the course of the presentation of the prosecution evidence, and which has ultimately led to this appeal, was whether the breath analysing instrument used to analyse the breath of the applicant was an instrument which was of a type approved for the purposes of the section by the Governor-in-Council. At the conclusion of the case for the prosecution a submission was made that there was a defect in the prosecution case inasmuch as there had not been suffi cient proof that the Instrument used was of a type approved by the Governor-in-Council.

... The point taken is a narrow and, indeed, technical one. Nevertheless, the point relates to an alleged defi ciency of proof of an offence which is a serious one and which can attract, and in this case has attracted, a substantial penalty. The applicant is, accordingly, quite entitled to rely upon the point taken no matter how devoid of merit it might be. So, correspondingly, is the prosecution under an obligation to ensure that all proper proofs, no matter how technical, are made in a prosecution of this nature.

... The point taken is a narrow and, indeed, technical one. Nevertheless, the point relates to an alleged defi ciency of proof of an offence which is a serious one and which can attract, and in this case has attracted, a substantial penalty. The applicant is, accordingly, quite entitled to rely upon the point taken no matter how devoid of merit it might be. So, correspondingly, is the prosecution under an obligation to ensure that all proper proofs, no matter how technical, are made in a prosecution of this nature.

... During the cross-examination of the witness, according to the applicant's affi davit, the witness was shown as being not able to give any satisfactory evidence establishing that the machine he used was of an approved type. It is unnecessary to refer in full to the fairly lengthy cross-examination, but it is clear that when endeavouring to show what steps he had taken to establish that the machine was of an approved type the witness changed his ground on a number of occasions. For present purposes it is suffi cient, I think, to say that it would be adequate proof, when the matter was put to the test, of the machine used having been one of an approved type that the machine which was used was checked as to the description to be found on it so that it might be seen what its patent number was and that that patent number was checked with the patent number referred to on the Order-in-Council and found to correspond. It is not, I think, necessary for the evidence to go so far as to say what the patent number was. In fact, it apparently runs to six or eight digits, and it would be understandable that a witness would not be able to recollect what the actual numbers were, while at the same time he could recollect on the check's having been made that the numbers on the instrument did in fact correspond with those to be found in the Order-in-Council.

... I think it is perfectly clear that if that material alone were to be looked at that it has been shown that there was a defi ciency in the evidence as it stood following the conclusion of the cross-examination and that the prosecutor was attempting to mend the defect by having the witness direct his attention to the patent number for the purpose of determining whether it was that number which had been

26

DRINK/DRIVING in VICTORIAmade the object of a cross-check. Accordingly, I think that on the material to which I have made reference there was insuffi cient evidence for the Magistrate to have reached the conclusion that he did.

... The Magistrate, I think, appears to have fallen into error by misdirecting himself as to what it was that he had to examine in order to determine whether this question had been established beyond reasonable doubt. It was not, contrary to what he said, necessary to call evidence on the part of the defendant to establish the machine was not an approved machine. The defendant by his counsel could attempt to do that by cross-examination of witnesses called on the part of the prosecution and that, indeed, is the course that was adopted. ..."

Per Crockett J in Cummins v Dalton [1982] VicSC 25; MC 49/1982, 10 February 1982.

5. Evidence of the operator of the instrument as to the markings on the instrument – did not conform with the markings which, for the purposes of s80F(14) of the act identifi ed an approved instrument and which had been published in the Victorian Government Gazette – charge dismissed by Magistrate – Magistrate not in error.

During the hearing of a charge of driving whilst the percentage of alcohol in the blood exceeded .05% the informant tendered a notice in the Government Gazette of 21st May 1979 of the approval for the purposes of s80F(14) of the Motor Car Act 1958 of two types of apparatus. The operator was called and said the instrument bore the imprint "U.S. Pat. No. 2824789". The abbreviation "U.S." was used instead of "U.S.A.", "Pat" instead of Patent, and the abbreviation "Nov" preceded the fi gures, and that there were no commas or stops between the digits. The operator maintained that he had made a note recording the imprint "exactly and literally". The magistrate dismissed the charge. Upon appeal—

HELD: Order nisi discharged.Young CJ and Lush J (O'Bryan J dissenting): The evidence showed the instrument used was not one of either of the types referred to in the notice in the Government Gazette.

[In the course of the proceedings in the Supreme Court the defendant sought to show the Magistrate's decision was correct because the notice in the Gazette did not describe a type of apparatus. This argument was rejected by all members of the Court. An application by the informant to tender on the hearing of the review a notice of approval in the Government Gazette on 20th July 1972 was not allowed by Young CJ and Lush J.]

Young CJ and Lush J:" ... [Note: The Motor Car (Breath Analysing Instruments) Act 1982 No. 9740, Proclaimed: 5.7.82 amends Section 80F of the Motor Car Act. Sub-section (14) now includes a description of "Breathalyzer" which is more general in application than previously. Sub-section (15A) has been added and provides for the evidence given by Breathalyzer Operators to include the expression "Breathalyzer and numerals 2824789" to be suffi cient evidence when describing the apparatus used by him. Schedule 7 of the Act has been similarly amended. Acquittals of persons previously charged under 80F are not affected by this amendment.]Per the Court of Appeal in Gipp v Richardson [1982] VicRp 103; [1982] VR 1031; MC 53/1982, 30 April 1982.

6. Power of police to require driver to undergo preliminary breath test – charge dismissed on the ground that the informant's personal observations of the defendant must relate to the defendant's driving – Magistrate in error.

The Magistrate having dismissed an information for refusing a preliminary breath test, an order nisi was granted on the grounds that the magistrate was in error in holding that:—(i) the personal observations made by the informant must relate to the defendant's driving, and

(ii) the personal observations made by the informant if the defendant after he had ceased to drive were of less importance than the observations of the defendant's driving. Upon Order Nisi to Review—

HELD: Order absolute. Remitted to the Magistrates' Court to be dealt with in accordance with the law.It is made perfectly clear by the decision in Airs v Manville-Smythe (FC) [1973] VicRp 30; [1973] VR 304 that it is not necessary that the observations which the member of the police force makes and which form the basis of the reasonable grounds that he had for believing that the driver of a motor car has consumed intoxicating liquor and that the ability of such driver to drive a motor car may be impaired thereby be of behaviour which occurs in connection with the actual driving of the motor vehicle or motor car. The behaviour may be behaviour which occurs whilst he is driving the motor car or it may be behaviour which occurs after he ceases to drive the motor car. Airs v Manville-Smythe (FC) [1973] VicRp 30; [1973] VR 304, followed.

Per Murphy J: " ... It is made perfectly clear by the decision that it is not necessary that the observations which the

27

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAmember of the police force makes and which form the basis of the reasonable grounds that he had for believing that the driver of a motor car has consumed intoxicating liquor and that the ability of such driver to drive a motor car may be impaired thereby be of behaviour which occurs in connection with the actual driving of the motor vehicle or motor car. The behaviour may be behaviour which occurs whilst he is driving the motor car or it may be behaviour which occurs after he ceases to drive the motor car.

The Full Court in the decision of Airs v Manville-Smythe (supra) went to some trouble to outline the history of s80F of the Motor Car Act which, as Mr Gaffy points out, was introduced in the same Act as that in which s80E was introduced; and those two sections replace s408A of the Crimes Act.

The differences are set out in the decision given in Airs v Manville-Smythe (supra). They are most material and ought, of course, to be read and appreciated by magistrates who are frequently dealing with cases involving the point in question.

... It was perfectly clear that the Full Court hoped that, by setting out in some detail their reasons for making the order nisi absolute, they might assist magistrates who, in the future, would have to deal with similar arguments thus enabling them to avoid falling into what was, perhaps, a pitfall resulting from some familiarity they may have had with the earlier section, 408A of the Crimes Act, and with its particular requirements, which did require that the behaviour upon which the constable relied occurred whilst the person in question was driving or in charge of a motor car.

The present provisions of s80E of the Motor Car Act, are in contra-distinction to the provisions of s408A; and, for the reasons set out in the decision of Nelson J — which were agreed with by the other members of the Full Court and with which reasons I respectfully agree — the order nisi in this case shall be made absolute on grounds 1 and 2. I prefer not to interfere with what will be the decision of the magistrate who, in the future, comes to deal with this matter.Per Murphy J in Woodgate v Russell [1976] VicSC 259; MC 62/1976, 10 June 1976. 7. Refusing preliminary breath test and refusing to produce licence – mens rea and automatism considered – 'refused' – driver claimed to be under the infl uence of carbon monoxide poisoning – charges dismissed – Magistrate in error.

Charges of refusing a preliminary breath test and refusing to produce a licence were heard together and dismissed. The prosecution's evidence was not disputed, nor the fact that the defendant had consumed alcohol. The defence was that the defendant had been so affected by carbon monoxide poisonings innocently inhaled by him whilst driving his VW motor car, that he was not answerable for his actions. In defence, Mr Harmon, a qualifi ed chemist and a faculty head of the Chemistry Department at Monash University gave evidence that subsequent to the date of the offence he tested the defendant's car, with the heater operating, for carbon monoxides. The test revealed that, with the car in the moving position, windows closed for half an hour and the heater operating, he found .19 percentage of carbon monoxide present; with the windows opened the same conditions .01 percentage. These fi ndings resulted from a defective heating system working off the exhaust.

Dr Westerman, a Fellow of the Royal Australian College of General Practitioners, a faculty member of the School of Medicine at Monash University, and a designated medical examiner for airline pilots, gave evidence to the effect that, having heard the evidence of the informant, Constable Smith, as to the defendant's driving and behaviour, and having examined Mr Harmon's fi ndings as to the presence of carbon monoxide, it was his opinion that the defendant's condition was more consistent with carbon monoxide than with being affected by alcohol. He based his opinion that the defendant had been suffering from carbon monoxide poisoning of .01 percentage for periods of exposure to a total of one hour. There was no evidence before the Magistrate to justify those assumptions.

The Magistrate accepted the evidence of Mr Harmon and Dr Westerman. He found the defendant was suffering from carbon monoxide poisoning and in consequence the defendant "was not in a proper state of mind to do the test" and dismissed the charges. The principle relied upon in Barker v Burke [1970] VicRp 111; [1970] VR 884 (i.e. it is not a defence to a charge of drunken driving or .05 that the defendant became drunk involuntary and without negligence) was said on behalf of the defendant to be inapplicable on the ground of the differences in facts and the absence of any expert evidence in that case of the kind given in the present one. The present case was argued before His Honour on the basis of the offence is an absolute one (mens rea was not a specifi c requirement) and automatism being a defence. Upon Order Nisi to review—

HELD: Order absolute. Dismissals set aside. Remitted to the Magistrates' Court for determination in accordance with law.1. In each of the informations the charge against the defendant was that he 'refused' to do what was required. The word 'refused' involves a mental element to this extent, that the mind of a person must be directed to what is required. A specifi c intent to commit either offence is not required. It would be no defence for a person to assert that he did not know or realise that the request was made by a member of the Police Force. In each case there was an absolute obligation to comply, if the mind was capable of doing so.

2. If the defendant was in such a condition from causes for which he was not responsible, that at the

28

DRINK/DRIVING in VICTORIArelevant time he had no appreciation or understanding of what was being requested of him, that would be a defence to each of these charges.

3. The word 'automatism' is applicable to acts done when in a state in which the mind does not control the body. Because the word 'refused' connotes a mental decision, a mental condition which results in the complete destruction of the power of decision would provide a defence.

4. In reviewing the evidence that was before the Magistrate there was not suffi cient evidence on which he could fi nd, if he did, that there was the necessary destruction of the defendant's power of decision which could excuse the refusals. The defendant did specifi cally refuse by answer to undergo the breath test and to give his name and address. Dr Westerman's evidence, once it was accepted, established no more than the carbon monoxide poisoning and not alcohol was probably the cause of his condition. The defendant should have been convicted on each of these charges.

Dunn J:" ... In my opinion, if a defendant was in such a condition from causes for which he is not responsible, that at the relevant time he had no appreciation or understanding of what was being requested of him, that would be a defence to each of these charges. I think this follows inevitably from the principle enunciated in R v Carter [1959] VicRp 19; (1959) VR 105; [1959] ALR 335. The word 'automatism' is applicable to acts done when in a state in which the mind does not control the body.

... The word 'automatism' is not appropriate to the facts applicable to either of the offences with which these orders nisi are concerned, but because the word 'refused' connotes a mental decision, in my opinion a mental condition which results in the complete destruction of the power of decision — to adopt the words of Lawton J — would provide a defence.

... The defendant was also charged with driving under the infl uence of intoxicating liquor. Because the learned Stipendiary Magistrate's reasons also dealt with the charges which he dismissed, it is not easy to determine what all his precise fi ndings were. He accepted the evidence of Mr Harmon and Dr Westerman, and was not satisfi ed that the charge of driving under the infl uence of intoxicating liquor had been proved. He gave no specifi c reasons that have been recorded for dismissing the charges of the defendant refusing to give his name and address. In respect to the charge of refusing to undergo a preliminary breath test, the learned Stipendiary Magistrate said, 'He', that is the defendant, 'was not in a proper state of mind to do the test'. That is not a fi nding that the defendant was in such a state of mind that he did not know he was requested to do the test.

In any event, in reviewing the evidence that was before the learned Stipendiary Magistrate there is not suffi cient evidence on which he could fi nd, if he did, that there was the necessary destruction of the defendant's power of decision which could excuse the refusals. The defendant did specifi cally refuse by answer to undergo the breath test and to give his name and address. Dr Westerman's evidence, once it was accepted, established no more than the carbon monoxide poisoning and not alcohol was probably the cause of his condition. In my opinion, the defendant should have been convicted on each of these charges. ...

Per Dunn J in Smith & Anor v McGirr [1976] VicSC 605; MC 26/1977, 8 November 1976.

8. Evidence to support Schedule 6 certifi cate – evidence that one sample taken and dealt with under the regulations – charge dismissed by Magistrate – Magistrate in error.

The defendant was involved in an accident when a motor cycle he was riding collided with a car. At the hearing of a .05 charge the informant tendered in evidence, without objection, to prove the defendant's blood alcohol content, schedule 6 and schedule 6A under section 80D(3) of the Motor Car Act 1958. Defendant's counsel argued that there was doubt cast on the Schedule 6A Certifi cate relied upon by the informant in the chain of events commencing with the taking of a blood sample and terminating with an analysis of part of that blood sample. Consequently, he contended the Magistrate was entitled to have had a reasonable doubt whether the analyst did receive portion of a sample of the defendant's blood taken by Dr V Cherny on the 31st day of January 1976. The Magistrate dismissed the information. Upon Order Nisi to Review—

HELD: Order absolute. Dismissal set aside.1. The informant had to prove beyond reasonable doubt the container which contained part of the sample of the defendant's blood, and which was labelled by the medical practitioner who took the sample, was the same sample of blood analysed by the analyst. The defendant's evidence did not cast any doubt upon any of those matters and there was nothing for the Magistrate to become confused about.

2. The correct decision in this case depended upon a proper appreciation being made of the evidence before the Magistrate and it was unnecessary to go to authority. On the admissible evidence before him, the Magistrate ought to have found the information proved. On no view of the evidence most favourable to the defendant could a Magistrate have entertained a reasonable doubt about any of the elements that had to be

29

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAproved in the informant's case.

3. The submissions made by Counsel that there was prima facie evidence of more samples taken from the defendant than were accounted for in the certifi cate and that there was an irregularity because there was an error in the number of samples was untenable. There was but one sample of blood proved to have been taken from the defendant by Dr V Cherny on the 31st day of January 1976 at 7 pm, and that sample was then divided into three parts and dealt with in accordance with the regulations.

O'Bryan J:" ... The Magistrate now had evidence before him which proved the collection of a sample of blood from the defendant by Dr V Cherny and the labelling of two containers with the marking, 'Ray Wilson, 31.1.76, 7 pm. V Cherny'. He also had evidence that portion of the sample was placed into two containers labelled in the manner I have indicated.

... On no view of the evidence most favourable to the defendant could a Magistrate have entertained a reasonable doubt about any of the elements that had to be proved in the informant's case.

The informant had to prove beyond reasonable doubt the container which contained part of the sample of the defendant's blood, and which was labelled by the medical practitioner who took the sample, was the same sample of blood analysed by the analyst. The defendant's evidence did not cast any doubt upon any of those matters, in my opinion, and there was nothing for the Magistrate to become confused about. The submissions made by Mr J Riordan to myself that there was prima facie evidence of more samples taken from the defendant than were accounted for in the certifi cate and that there was an irregularity because there was an error in the number of samples is untenable. There was but one sample of blood proved to have been taken from the defendant by Dr V Cherny on the 31st day of January 1976 at 7 pm, and that sample was then divided into three parts and dealt with in accordance with the regulations.

For these reasons I consider that the defendant should have been convicted of the offence charged in the information. ...

Per O'Bryan J in Elliott v Wilson [1977] VicSC 101; MC 38/1977, 18 March 1977.

9. Admissibility of schedule 6 certifi cate of collection of blood sample when non-attendance of witness after notice given – application for adjournment because doctor unable to attend court – doctor overseas for two years – application refused – certifi cate of doctor admitted into evidence and matter found proved – discretion of Magistrate – Magistrate not in error.

On an information for exceeding .05, the defendant gave notice requiring the doctor who collected the blood sample to attend. The doctor was, however, overseas for 2 years. An application for an adjournment for that period was refused. The prosecution proved that a copy of the schedule 6 was served on the defendant – but the defence objected to its admissibility on the grounds of unfairness as the defendant would be denied the right to cross-examine the witness. There was some evidence that the doctor concerned had indicated that not enough blood had been taken, although there was further evidence that the sample had in fact been divided into 3 parts etc.

On review it was argued that the Court had a discretion as to whether the certifi cate should be admitted, and the Court should have exercised that discretion to reject it as the witness could not be cross-examined. The magistrate received the certifi cate in evidence and acted upon it. Upon appeal—

HELD: Appeal dismissed.1. Sub-s(7) of the Motor Car Act 1958 creates a form of procedure by which the defendant can compel the person giving a certifi cate under s80D to attend at the court for the purposes of cross-examination. It does not state that where such a notice has been given and the person giving the certifi cate does not attend, the certifi cate shall not be tendered in evidence or shall not be evidence of the matters stated in it. With that sub-section is to be contrasted the very different wording which is found in s80F(3).

2. It follows from the language used by the legislature in sub-s(7) that, in a case where the requisite notice has been given and the person giving the certifi cate does not attend for cross-examination, the Magistrates' Court, or other court, has a discretion as to how that situation should be dealt with. But what is very striking is that there is nothing in sub-s(7) which says that where that procedure has been carried out, the certifi cate shall not be tendered in evidence nor does it say that the certifi cate shall not be prima facie proof of the facts and matters therein contained. It leaves the mandatory requirements of sub-s(3) unqualifi ed.

3. What was directly raised by this order nisi was the point whether or not the Magistrate should have received the certifi cate in evidence. The Magistrate did not have any discretion about receiving the certifi cate in evidence and that was suffi cient to dispose of the ground of the order nisi.

30

DRINK/DRIVING in VICTORIAHarris J:

" ... Having now referred to all the relevant sub-sections of s80D it can be seen that what the section sets out to do is to provide for ways in which the matters relevant to the various offences referred to in sub-s(1) may be proved. It adopts the technique of making certain matters prima facie evidence or prima facie proof of the particular facts or matters adverted to in the various sub-sections.

... In my opinion, it does follow from the language used by the legislature in sub-s(7) that, in a case where the requisite notice has been given and the person giving the certifi cate does not attend for cross-examination, the Magistrates' Court, or other court, has a discretion as to how that situation should be dealt with. But what is very striking is that there is nothing in sub-s(7) which says that where that procedure has been carried out, the certifi cate shall not be tendered in evidence nor does it say that the certifi cate shall not be prima facie proof of the facts and matters therein contained. It leaves the mandatory requirements of sub-s(3) unqualifi ed.

... I am satisfi ed the Magistrate did not have any discretion as to whether or not he would admit in evidence the certifi cate. What he had was a discretion as to whether or not he would take some step, such as an adjournment of the proceedings, in view of the non-attendance of the person giving the certifi cate. He had in fact dealt with that sort of matter at the outset of the hearing when the prosecution had made an application for an adjournment so as to enable the prosecution to produce the doctor for cross-examination. He refused to do that and the refusal to grant the adjournment is not the subject of this order nisi.

... What is directly raised by this order nisi is the point whether or not the Magistrate should have received the certifi cate in evidence. The view that I have taken is that the Magistrate did not have any discretion about receiving the certifi cate in evidence and that is suffi cient to dispose of the ground of the order nisi. ...

Per Harris J in Myers v Hall [1977] VicSC 655; MC 06/1978, 14 December 1977.

10. Certifi cate handed to driver 15 minutes after conclusion of test – whether delivered "as soon as practicable" – Magistrate in error in dismissing charge.

The Magistrate found that the certifi cate was not delivered as soon as practicable because he felt that the lapse of time of 15 minutes which the certifi cate indicates had occurred from the time that the sample of breath was analysed until the certifi cate was delivered to the defendant was in itself indicative of the fact that the form had not been delivered as soon as practicable after the analysis of the sample of the defendant's breath. Upon appeal—

HELD: Order nisi absolute. Dismissal set aside. Remitted for hearing and determination according to law.1. In relation to the expression "as soon as practicable" in sub-section (2) of s408(a) of the Crimes Act 1958, the words were ordinary English words and the question whether the certifi cate was delivered as soon as practicable, after a sample of breath was analysed was necessarily one which was to be determined in the light of all the circumstances. It was not one to be determined on some mathematical basis, by adding together periods of time taken in relation to the various steps in the process of the breath analysis and the checking of the operation of the instrument. Any such approach was unreal and unwarranted by the language. Creely v Ingles [1969] VicSC 90; [1969] VicRp 94; [1969] VR 732; and Slater v Williamson [1969] VicRp 91; [1969] VR 705, applied.

2. Although the question as to whether the certifi cate was delivered as soon as practicable after the sample was taken, was a question of fact in each case, to rely merely on a lapse of time of 15 minutes, having regard to the obvious object of the provision in the Act, as indicative that the certifi cate was not given as soon as practicable after the test, was clearly unreasonable.

Nelson J:"... The Magistrate did not have the advantage of a decision of this Court which was given by Little J on 16 May of this year, in the case of Creely v Ingles [1969] VicSC 90; [1969] VicRp 94; [1969] VR 732 where the interpretation of the expression "as soon as practicable" in this Act was involved. His Honour, in giving his reasons for decision in that case, said:

"The words are ordinary English words and the question whether the certifi cate was delivered as soon as practicable, after a sample of breath was analysed is necessarily one which is to be determined in the light of all the circumstances. It is not one to be determined on some mathematical basis, by adding together periods of time taken in relation to the various steps in the process of the breath analysis and the checking of the operation of the instrument. Any such approach is unreal and unwarranted by the language."

... Turning now to the expression "as soon as practicable" in sub-section (2) of s408(a), it would appear clear that the requirement that the person operating the breath analysing instrument should sign

31

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAand deliver to the person whose breath has been analysed a certifi cate of the percentage of alcohol indicated by the analysis to be present in his blood as soon as practicable after the sample of the person's breath is analysed is directed to ensure that there will be no undue delay between the time that the defendant's breath has been analysed and a reading which presumably may be used against him in Court has been obtained, and the time when he is informed of that reading so that he can expeditiously take whatever steps are available to him, to contest any such reading obtained, or the inferences which may be drawn from it.

Although the question as to whether the certifi cate was delivered as soon as practicable after the sample was taken, is of course a question of fact in each case, to rely merely on a lapse of time of 15 minutes, having regard to the obvious object of the provision in the Act, as indicative that the certifi cate was not given as soon as practicable after the test, appears to me to be clearly unreasonable. ..."

Per Nelson J in Oliver v Pearce [1969] VicSC 138; MC 03/1969, 30 July 1969.

11. Certifi cate handed to driver 15 minutes after conclusion of test – whether delivered "as soon as practicable" – Court in error in dismissing charge.

HELD: Order nisi absolute. Dismissal set aside. Remitted for rehearing.1. The use of the expression "as soon as practicable" indicated that Parliament recognized that there would or could be some interval between the making of the analysis and the delivery of the certifi cate. It was open to the legislature, had it thought otherwise, to stipulate that the certifi cate was to be delivered within a specifi c time, as had been done in the proviso to s281(1)(a) of the Health Act 1958, where service upon the vendor of notice that the purchaser had purchased the food for analysis was deemed to have been given forthwith if written notice was sent by registered post to the vendor not later than the next day after purchase, and in s11 of the Fertilizers Act 1958, where the purchaser who intended to have fertilizer purchased by him analysed was required to give to the vendor notice in writing of his intention within 14 days of the purchase.

2. The question whether a certifi cate has been given as soon as practicable is in each case a matter of fact and depends on the circumstances.

3. In the circumstances of the present case the delivery of a certifi cate in 15 minutes could not be said, in the absence of evidence of culpable delay, to have been delivered otherwise than as soon as practicable. It did not appear from any of the cross-examination that the constable was occupied in any other pursuit than matters associated with the testing, the checking, the making out of, and the delivery of the certifi cate. Though the onus was on the prosecution to satisfy the court that the certifi cate was delivered as soon as practicable, the circumstances were that the proper inference to be drawn from the evidence was that the period of 15 minutes was such that it should be assumed that, unless there was some circumstances which suggested something to the contrary, the certifi cate was delivered as soon as practicable, and that a prima facie case had been made out.

4. Accordingly, the justices were mistaken in their adoption of the arguments put to them by the defendant's solicitor.

Anderson J: "... The use of the expression "as soon as practicable" indicates, I think, that Parliament recognized that there would or could be some interval between the making of the analysis and the delivery of the certifi cate.

... There is no standard time within which the procedure must be carried out and I do not think that each operator sets a standard time for himself when on some occasion he happens to perform the procedure more quickly than on another occasion. In Minister of Agriculture v Kelly [1953] NI 151, at p153, Lord MacDermitt LCJ, said that the expression "as soon as practicable" did not mean "as soon as possible" but referred to what was "reasonable in the circumstances and appropriate to the requirements of the situation".

This is not a case in which the question has to be determined as to whether Constable Tompsett handed to the defendant a certifi cate at any particular time or within any particular period. It is a case in which, to my mind, the question is whether what was done was reasonable and appropriate in the circumstances.

... It does not appear from any of the cross-examination that the constable was occupied in any other pursuit than matters associated with the testing, the checking, the making out of, and the delivery of the certifi cate. Though the onus is on the prosecution to satisfy the court that the certifi cate was delivered as soon as practicable, the circumstances may be such—and I think they are so in this case—that the proper inference to be drawn from the evidence is that the period of 15 minutes

32

DRINK/DRIVING in VICTORIAwas such that it should be assumed that, unless there was some circumstances which suggested something to the contrary, the certifi cate was delivered as soon as practicable, and that a prima facie case had been made out. ..."

Per Anderson J in Tampion v Chiller [1970] VicRp 46; [1970] VR 361; [1969] VicSC 265; MC 30/1969, 26 November 1969.

12. Breath test conducted on the driver at the hospital – reading of .160BAC – certifi cate delivered to defendant ten minutes after the test – whether delivered "as soon as practicable" – defendant not notifi ed by the police offi cer that he did not have to undergo the test – whether evidence was not admissible – Magistrate in error in dismissing charge.

HELD: Orders nisi absolute. Dismissal set aside. Remitted to the Magistrates' Court for hearing and determination in accordance with the law.1. Whatever was the precise meaning to be given to the expression 'as soon as practicable', in this context it was palpably unreasonable to treat a lapse of a mere ten minutes between the conclusion of the breath test by the instrument and the delivery of the requisite certifi cate as offending the statutory direction that the certifi cate should be signed and delivered to the person tested "as soon as practicable." As the operator of the machine had, after obtaining the breath analysis from the instrument, to complete a Schedule 7A Certifi cate with all necessary particulars, presumably to make a copy to be retained for evidentiary purposes, to satisfy himself that the instrument at the time was in proper working order, and sign the certifi cate, all before delivering it, the lapse of a mere ten minutes needed no justifi cation from evidence, and a certifi cate delivered within such a short period could not reasonably be held to have been delivered otherwise than "as soon as practicable" within the meaning of the statutory provision.

2. There was nothing illegal in the Informant requesting a breath test from the defendant, merely because he could have refused it, although the police offi cer concerned was aware that the defendant was not compellable by law to submit to it. Furthermore there was nothing illegal in his proceeding with the test after the defendant had agreed to it, although from the answers given by the defendant, the Informant had been made aware that the defendant had a mistaken belief as to his compellability to submit to the test. There was no legal duty on the informant to advise the defendant as to the meaning of the Act, and as to his rights or privileges or duties under the general law as expressed in s408A of the Crimes Act 1958.

3. Accordingly, the Magistrate had no suffi cient grounds for exercising the discretion in favour of excluding the evidence of the breath test.

Adam J:" ... Whatever the precise meaning to be given to the expression, 'as soon as practicable' in this context I consider it palpably unreasonable to treat a lapse of a mere ten minutes between the conclusion of the breath test by the instrument and the delivery of the requisite certifi cate as offending the statutory direction that the certifi cate should be signed and delivered to the person tested "as soon as practicable." As the operator of the machine has, after obtaining the breath analysis from the instrument, to complete a Schedule 7A Certifi cate with all necessary particulars, presumably to make a copy to be retained for evidentiary purposes, to satisfy himself that the instrument at the time is in proper working order, and sign the certifi cate, all before delivering it, the lapse of a mere ten minutes appears to me to need no justifi cation from evidence, and a certifi cate delivered within such a short period could not reasonably be held to have been delivered otherwise than "as soon as practicable" within the meaning of the statutory provision.

... All that can be said is that the constable might have offered something by way of advice to the defendant when he did not, but the defendant quite voluntarily submitted to the test without any pressure or force or inducement, or threats or promises. The mere fact that he was under a mistaken belief as to his obligation to submit to the breath test does not, it seems to me, give rise to a case for the exercise of a discretion to exclude the evidence. ..."

Per Adam J in Jones v Groves [1969] VicSC 156; MC 59/1969, 29 August 1969.

13. Delivery of schedule 7 certifi cate to person breathalysed "as soon as practicable" – delay of fi ve minutes – certifi cate delivered as soon as practicable.

There was a difference of fi ve minutes between the time of the test indicated on the certifi cate and the time of handing the defendant his copy. It was submitted that the certifi cate was not delivered to the defendant "as soon as practicable" after the test as required by s80F(2).

HELD: 1. The mere fact that something is done which prudence may dictate, which is not directed to be done by the statute, does not at all mean that the document has not been handed over as soon as practicable. The expression 'as soon as practicable' does not mean 'as soon as possible'.

33

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIA2. Looking at the two times mentioned in the Certifi cate, namely 1.25 and 1.30 and on the facts of this case to hold that a delay of fi ve minutes in handing over the certifi cate resulting in it not being handed over as soon as practicable within the meaning of the statute would bring the judicial process into contempt. There is no doubt in this case that the statute was complied with and a conviction should have been recorded.

Starke J:" ... The certifi cate in this case shows that the test was conducted at 1.25 and that the certifi cate in form of Schedule 7 was handed to the defendant at 1.30. In other words, fi ve minutes elapsed between the testing of the applicant and the handing over of the certifi cate. It is impossible to tell from the certifi cate itself whether the time 1.25 is the beginning of the test or the end of the test. But at all events a considerable number of matters have to be fi lled in on the certifi cate before it is handed over, and it would seem to me that any person without ordinary competence with a pen and pencil might take the better part of fi ve minutes in fi lling out this form alone.

... But it is said that the only things I can look at in that certifi cate are the facts stated so in it and amongst those facts is not the expression in paragraph 5 that 'as soon as practicable after the completion of the breath analysis', and so on. For the purposes only of this judgment I will assume that I cannot look at that expression for the purpose of determining the fact, but I can and do look at the two times mentioned, namely 1.25 and 1.30 and on the facts of this case to hold that a delay of fi ve minutes in handing over the certifi cate resulting in it not being handed over as soon as practicable within the meaning of the statute would, I think, bring the judicial process into contempt. I have no doubt in my mind that the statute was complied with in this case and a conviction should have been recorded.

Per Starke J in Laverty v Kubeil [1976] VicSC 647; MC 23/1977, 23 November 1976.

14. Delivery of schedule 7 certifi cate to person breathalysed "as soon as practicable" – delay of 13 minutes between test and delivery of certifi cate – whether as soon as practicable – charge dismissed by Magistrate – Magistrate in error.

On an information for a .05% charge, evidence revealed a discrepancy of thirteen minutes between the time of the breathalyzer test, as indicated on the certifi cate, (10.27pm.) and the time the certifi cate was handed to the defendant (10.40pm.). A submission that the certifi cate was not delivered to the defendant "as soon as practicable" after the test as required by s80F(2), was upheld by the Magistrate, who dismissed the case. Upon Order Nisi to Review—

HELD: Order absolute.One should not be astute to fi nd a means whereby the reasonable operation and application of the section are to be circumvented by too narrow an interpretation. In this case, it was proved beyond the shadow of a doubt that the certifi cate was given as soon as practicable after the test was taken, and in those circumstances there should have been a conviction.

Starke J:" ... The question is, and remains throughout, whether there is evidence which establishes beyond reasonable doubt that the certifi cate was given as soon as practicable. I might say that in a case such as this I am in as good a position as the Magistrate was to determine this issue, because it in no way depends upon the demeanour or credibility in this case of any witness.

... It is to be borne in mind that the defendant's point is entirely unmeritorious. However, on the other hand, it is to be borne in mind that the statute is a penal statute, the provisions of which are intended to protect the defendant, it must be strictly interpreted, but I agree with the observations of Anderson J that one should not be astute to fi nd a means whereby the reasonable operation and application of the section are to be circumvented by too narrow an interpretation. In this case, in my view, it was proved beyond the shadow of a doubt that the certifi cate was given as soon as practicable after the test was taken, and in those circumstances there should have been a conviction."

Per Starke J in Caughey v Peachey [1976] VicSC 648; MC 24/1977, 24 November 1976.

15. Certifi cate produced – Operator failed to mention in evidence that he correctly operated the breath analysing instrument – charge dismissed by court – Magistrate in error.

HELD: Order nisi absolute. Dismissal set aside. Remitted to the Court to be heard by another Bench.1. The police offi cer who tested the defendant was called as a witness and gave evidence in the witness box of various matters, but did not give evidence either to the effect that the instrument was in proper working order or that it was properly operated by him. However, a certifi cate purporting to be a certifi cate in the form of schedule 7A referred to in ss2(a) was tendered in evidence. That certifi cate insofar as it was relevant, set out the blood/alcohol content of the defendant's breath at .185.

2. The words 'with respect to the breath analysis concerned' were words of wide and general application,

34

DRINK/DRIVING in VICTORIAand the proper operation of the machine by the informant and the fact that it was in proper working order were both matters which were with respect to the breath analysis and in those circumstances the certifi cate in the form of schedule 7A having regard to the provision of subsection 2(a) covered the operation of the machine within the meaning of the sub-section and the certifi cate was prima facie evidence of those facts. Durston v Mercuri [1969] VicRp 62; [1969] VR 507, applied.

3. In those circumstances, there was evidence that the machine was in proper working order and there was evidence that it was properly operated by the police informant.

Starke J: "... In my view, the words 'with respect to the breath analysis concerned' are words of wide and general application, and the proper operation of the machine by the informant and the fact that it was in proper working order are both matters which are with respect to the breath analysis and in those circumstances, in my judgment, the certifi cate in the form of schedule '7A' having regard to the provision of subsection 2(a) covers the operation of the machine within the meaning of the sub-section and the certifi cate is prima facie evidence of those facts. In those circumstances I am of opinion that there was evidence that the machine was in proper working order and there was evidence that it was properly operated by the defendant."

Per Starke J in Zervaas v Ralph [1969] VicSC 196; MC 10/1969, 6 October 1969.

16. Certifi cate showed a reading of 0.245%BAC – police offi cer quite surprised by the reading – driver showed no signs of being affected by alcohol – charge dismissed – no error.

HELD: Order nisi discharged.1. The certifi cate was made prima facie evidence but only prima facie evidence, of the statements contained therein, so that at the close of the case for the prosecution the certifi cate, containing as it did the alcohol reading and the certifi cation that the machine was in working order and had been properly operated, would be evidence on which the prosecution could found its case.

2. What the justices were concerned with here was the uncertainty that they had as to the effi cient and correct operation of the instrument, having regard to the evidence of the constable, who was surprised at the high reading, the reason why he was surprised, and the evidence of the defendant and his witness. So that there was evidence before the justices which would have been suffi cient, had they so determined to displace the prima facie evidence which the certifi cate otherwise provided.

3. The justices did not wrongly take into account any evidence. The justices had before them evidence by way of certifi cate which they were not prepared to act upon because they were not satisfi ed beyond reasonable doubt that the certifi cate gave a true indication of the alcohol which was in the defendant at the time in question, and, therefore, there was no evidence before the court at the conclusion of the case satisfying them that the defendant had driven the motor car while there was an excess percentage of alcohol in his blood.

4. Accordingly, the order of the justices was to remain as it was and the order nisi discharged.

Anderson J:"... The certifi cate was produced in evidence before the justices and the constable who had detained the defendant gave evidence as well, and the only relevant part of his evidence that I need refer to is that he was asked by defence counsel whether he was surprised with the reading being 0.245 per cent, and he replied that he was quite surprised at the reading, as the defendant did not show any other signs of having been affected by liquor.

The defendant was represented by counsel, and he called evidence and himself gave evidence. The evidence which was given on his behalf was by a companion who said that during the course of the day he had been for some unspecifi ed period with the defendant, though it was apparently a substantial period, and that to his knowledge the defendant had consumed only four to fi ve glasses of beer that day. The defendant himself likewise gave evidence, and he said that had consumed only four to fi ve glasses of beer and that the accident had not been caused by his having been affected by the liquor. Nothing turns on the circumstances of the accident, it was merely the incident which drew the police attention to the defendant.

... The certifi cate, therefore, has lost all its effi cacy in their minds, because of the evidence which has cast such grave doubt upon it, and that is, I think, what the justices meant when the chairman said that they were giving the defendant the benefi t of the doubt.

I do not think this is a case in which the justices have taken into account matters which they should not have taken into account. They have, in an elliptical way, indicated that they have rejected the

35

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAcertifi cate because the reading was so much out of degree compared with what they were satisfi ed the defendant had had by way of glasses of beer.

That then being the case, my view being that they have not wrongly taken into account any evidence, we are left with the position that they had before them evidence by way of certifi cate which they were not prepared to act upon because they were not satisfi ed beyond reasonable doubt that the certifi cate gave a true indication of the alcohol which was in the defendant at the time in question, and, therefore, there was no evidence before the court at the conclusion of the case satisfying them that the defendant had driven the motor car while there was an excess percentage of alcohol in his blood.

For those reasons, therefore, I am of the opinion that the order of the Court of Petty Sessions should remain as it is, and that the order nisi should be discharged."

Per Anderson J in Saxe v Kellett [1970] VicRp 79; [1970] VR 600; [1970] VicSC 78; MC 39/1969, 8 April 1970.

17. Certifi cate of operator produced in evidence – carbon copy of the original which was handed to the defendant – objection that original not produced – objection that the breath analysing instrument not properly operated and/or not in proper working order – submission rejected by Magistrate – charge found proved – Magistrate not in error.

HELD: Order nisi discharged.1. Subject to the issue as to proof of the contents of the original certifi cate, all relevant matters were proved by the evidence of the police offi cer. That the police offi cer was an authorized operator was proved by the Chief Commissioner's certifi cate and, in accordance with s408A(3)(b)(i) of the Crimes Act 1958, the police offi cer's evidence that the sample of breath was furnished into the approved breath analysing instrument was prima facie evidence that it was an approved breath analysing instrument.

2. The document produced was a carbon copy of the original and contained everything that was in the original including the signature. Thus it was in one sense an original. The same hand using the same pen produced at the same time the writing on both the original and the carbon copy. In the case of the original the writing was left by the ink from the pen; in the case of the carbon copy it was left by the carbon from the carbon paper. But the words written were both produced by the same writing. In these circumstances, a carbon copy of a document which is a complete copy in every respect including the signature is for all purposes equivalent to the original and is admissible in evidence as prime evidence of the contents of the original.

3. Accordingly, the magistrate correctly admitted the carbon copy in evidence. 4. There was admissible evidence upon which it was reasonably open to the magistrate to conclude that the breath analysing instrument had been tested with a standard alcohol solution and had properly set and checked before being so used. Accordingly, the third ground of the order nisi was not made out.

Menhennitt J:"... In the present case I am concerned with a document which is a carbon copy of the original and contains everything that was in the original including the signature. Thus it is in one sense an original. The same hand using the same pen produced at the same time the writing on both the original and the carbon copy. In the case of the original the writing was left by the ink from the pen; in the case of the carbon copy it was left by the carbon from the carbon paper. But the words written were both produced by the same writing. In these circumstances, I am disposed to think that a carbon copy of a document which is a complete copy in every respect including the signature is for all purposes equivalent to the original and is admissible in evidence as prime evidence of the contents of the original.

... The special signifi cance given by Parliament to a copy certifi cate, coupled with the fact that in the present case the copy certifi cate was proved to be a carbon copy of the original including the signature, leads I think to the conclusion that the copy certifi cate was admissible in evidence as prime evidence of the contents of the original certifi cate. Accordingly, I conclude that the magistrate correctly admitted the carbon copy in evidence and that the fi rst ground of the order nisi to review fails.

... Part of the certifi cate, which follows the language of Schedule Seven A, is in the following terms: "I further certify that the said instrument was in proper working order and properly operated by me in accordance with the regulations." Accordingly, there was before the magistrate prima facie evidence that the breath analysing instrument was on the occasion in question in proper working order and was properly operated. It was, therefore, open to the magistrate to hold to that effect. Accordingly, the second ground of the order nisi fails.

36

DRINK/DRIVING in VICTORIA... In my opinion, there was admissible evidence upon which it was reasonably open to the magistrate to conclude that the breath analysing instrument had been tested with a standard alcohol solution and had properly set and checked before being so used. This conclusion accords with the decision of Gowans J in Borowski v Quayle [1966] VicRp 54; [1966] VR 382. Accordingly, in my opinion, the third ground of the order nisi was not made out. ..."

Per Menhennitt J in Durston v Mercuri [1969] VicRp 62; [1969] VR 507; MC 45/1969, 11 April 1969.

18. Certifi cate specifi ed that the defendant had a certain number of grams of alcohol per 100 millilitres of blood but omitted to state was the percentage was – whether certifi cate was a certifi cate to the effect of the Act – charge found proved – Magistrate not in error.

HELD: Orders nisi discharged.1. The certifi cate left blank the concluding words of CL4 as found in Schedule Seven A, namely, "expressed as a percentage is...per centum". However, it was plain from the other facts stated in CL4 that the fi gure to be inserted in the blank space was clearly and could be only .110.

2. The certifi cate was to the effect of Schedule Seven A in that it otherwise complied with the Schedule and supplied all the information which enabled the Schedule to be completed. Another way of stating the matter was that what was left blank was so obvious and inevitable that the certifi cate was just as effective without the percentage stated as if it were stated. The certifi cate was given in accordance with the provisions of s408A(2) of the Crimes Act, and that, accordingly, it became prima facie evidence and admissible in evidence pursuant to s408A(2A).

3. Accordingly, the ground of the order nisi was not made out and all the necessary proof to justify a conviction were given by the certifi cate which was tendered in evidence and the other evidence.

Menhennitt J:"... It was decided by the Full Court in Smith v Ferguson [1967] VicRp 93; [1967] VR 757 at p763, as follows:

"As it is the percentage of alcohol in the blood expressed in grams per 100 millilitres of blood and a percentage expressed in no other formula which is relevant to the offence created by s81A(1), it is an inevitable conclusion that the legislature itself treated 'the percentage of alcohol in the blood', with which s408A was concerned, as meaning the same as the percentage of alcohol in the blood described in s81A(1) of the Motor Car Act 1958...".

The certifi cate tendered in evidence stated that the breath analysing instrument indicated that the quantity of alcohol present in the blood of the defendant was .110 grams of alcohol per 100 millilitres of blood. The consequence of the statement of the Full Court in Smith v Ferguson, to which I have referred, is that that statement is a statement of the percentage of alcohol indicated by the analysis to be present in the blood within the meaning of s408A(2) of the Crimes Act. The question remains whether the certifi cate is in or to the effect of Schedule Seven A, which is another requirement of subs(2).

... In reality the concluding words of CL4 "expressed as a percentage is...per centum" are a repetition of something that has already been stated. Section 81A(1) of the Motor Car Act does not itself require the stating of the percentage but provides for an offence if the percentage of alcohol in the blood expressed in grams per 100 millilitres of blood is in fact more than .05 per cent and this the certifi cate establishes in the present case. Accordingly, as the certifi cate tendered in evidence does state all the essential facts to establish both what s408A(2) of the Crimes Act requires and also what, by s81A(1) of the Motor Car Act, needs to be proved to establish an offence, it appears to me that the certifi cate is to the effect of Schedule Seven A in that it otherwise complies with the Schedule and supplies all the information which enables the Schedule to be completed. Another way of stating the matter is that what is left blank is so obvious and inevitable that the certifi cate is just as effective without the percentage stated as if it were stated. ...

Per Menhennitt J in Wesson v Jennings [1971] VicRp 9; [1971] VR 83; MC 46/1969, 17 June 1970.

19. Confl ict of dates mentioned in schedule 7 certifi cate – wrong year inserted in para 2 – correct year inserted in para 5 – words of s80F(2) of Motor Car Act 1958 "in and to the effect of 7th schedule" not appropriate to cover a mistake in date – contra if year left blank.

In compliance with s80F(2) of the Motor Car Act 1958 the 7th Schedule certifi cate was handed to the defendant completed and accurately fi lled in except that in paragraph 2 relating to the date and time of the analysis, the date was wrongly stated, viz. by inserting the wrong year, 1975 instead of 1976. Paragraph 5 of the certifi cate (which refers to the delivery of the copy certifi cate to the defendant) had the correct date/year inserted. A submission, that the requirements of s80F(2) had not been complied with because the year had not been accurately stated and in consequence of which evidence of the reading of the breath analysis instrument was not admissible, was upheld

37

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAby the Magistrate and the charge dismissed. Upon Order Nisi to review—

HELD: Order nisi discharged.1. The words 'to the effect of' are not appropriate to cover a mistake in the date. If the year had been left blank in the second paragraph of the certifi cate it could be said the certifi cate was to the effect of Schedule Seven because the fi nal date would be suffi ciently effective. A confl ict in dates is a different matter when the date which is wrongly stated is the date on which the analysis was done.

2. In the result, the Magistrate was correct in holding that this certifi cate did not comply with the requirements of ss(2) of s80F and that evidence of the reading of the breath analysing instrument was not admissible.

3. Because of the language used in ss(1) of s80F the result of the analysis was not made evidence unless the conditions presented in ss(2) were complied with. If they were not complied with, then there was no evidence of the result of the analysis. Unless there was a plea of guilty or an express admission of the result of the analysis pursuant to the provisions of s149A of the Evidence Act 1958, that lack of evidence was fatal. There was no such admission and no such plea of 'guilty' in this case and the plea of 'not guilty' put all the elements of the offence in issue.

Dunn J:" ... It is clear from that part of the certifi cate in Schedule Seven previously set out and from the terms of ss(2) that the operator is required to date and sign the certifi cate before he delivers it to the person concerned, so that the date of the analysis and the date at the end of the certifi cate should be identical unless perchance the events overlapped from New Year's Eve to New Year's Day, or over some other midnight. Where there has been a mistake in the insertion of the date on which the analysis was made can it be said there has not been compliance with the requirements of ss(2)?

... I have considered the present certifi cate to determine whether it could be properly held that the mistake in the fi rst date is immaterial for the reason that it must be the date at the end of the certifi cate that is the vital one because of the obligation to give the signed certifi cate to the person whose breath has been analysed as soon as practicable after the analysis.

In my opinion, it could not be so held. The words 'to the effect of' are not appropriate to cover a mistake in the date. If the year had been left blank in the second paragraph of the certifi cate it could be said the certifi cate was to the effect of Schedule Seven because the fi nal date would be suffi ciently effective. A confl ict in dates is a different matter when the date which is wrongly stated is the date on which the analysis was done.

In the result, I think the learned Stipendiary Magistrate was correct in holding that this certifi cate did not comply with the requirements of ss(2) of s80F and that evidence of the reading of the breath analysing instrument was not admissible. ...

Because of the language used in ss(1) of s80F the result of the analysis is not made evidence unless the conditions presented in ss(2) are complied with. If they are not complied with, then there is no evidence of the result of the analysis. Unless there was a plea of guilty or an express admission of the result of the analysis pursuant to the provisions of s149A of the Evidence Act 1958, that lack of evidence is fatal. There was no such admission and no such plea of 'guilty' in this case and the plea of 'not guilty' puts all the elements of the offence in issue. The second ground of the order nisi was therefore not made out. ...

Per Dunn J in Buijs v Thorburn [1976] VicSC 629; MC 31/1977, 17 November 1976.

20. No evidence that the informant witnessed the breathalyser operator actually compiling the schedule 7A certifi cate and that he witnessed his signature to the certifi cate – charge dismissed – Magistrate in error.

HELD: Order nisi absolute. Remitted to the Magistrates' Court for hearing and determination according to law.Having regard to the decision in White v Moloney [1969] VicSC 71; [1969] VicRp 91; [1969] VR 705, the Magistrate was in error in dismissing the charge. He was required to give effect to the words "in accordance with the provisions of subsection (2)".

McInerney J:"... I apply the decision in White v Moloney, although I think that even apart from White v Moloney, I would be disposed myself if I was sitting as a tribunal of fact to say that the evidence would support an inference that First Constable Thompson had in fact signed the certifi cate, the duplicate of which was put in evidence.

38

DRINK/DRIVING in VICTORIAThere are some diffi culties about the relationship of the form used in the present case, which follows the form prescribed in Schedule 7A, and the language of subsections (2) and (2)(a). I am not sure myself that I would be disposed offhand to accept the submission made by Mr Tadgell that the effect of the words "in accordance with the provisions of subsection (2) of s408A" as they occur in para. 5 of the certifi cate is to be given the effect of proving signature and delivery of the certifi cate in accordance with subsection (2) of the s408A. That seems to pin a great deal onto the phrase "in accordance with the provisions of subsection (2)". I am not sure that those words are intended to attach to anything other than the words "I delivered". But it is not necessary for me to express any conclusion on that, because when one looks at the totality of the evidence, having regard to the decision in White v Moloney, the decision of the Magistrate in this case was clearly wrong. ..."

Per McInerney J in Steele v Hosking [1970] VicSC 178; MC 18/1970, 23 July 1970.

21. Defendant underwent breath test – offi cer required to sign the certifi cate and deliver it to the person whose breath had been analysed – certifi cate handed to the driver's husband – not handed to defendant personally – charge dismissed by Magistrate – Magistrate not in error.

HELD: Order nisi dismissed with costs.1. There was, on the evidence, no attempt to put the certifi cate into the defendant's personal possession and there was no evidence that she, by passivity with knowledge of what was going on, or in any other way, authorised her husband to receive the certifi cate on her behalf.

2. No doubt the document was likely to be brought to her notice at some later stage and no doubt the police offi cers assumed that that would happen, but it was clear that there was no evidence that the document was either delivered to her personally, or delivered to anyone who had authority to receive it on her behalf.

3. Accordingly, the order nisi was dismissed with costs.

Smith J:"... There was, on the evidence, no attempt to put the certifi cate into the defendant's personal possession and there was no evidence that she, by passivity with knowledge of what was going on, or in any other way, authorised her husband to receive the certifi cate on her behalf. No doubt, as the Magistrate said, the document was likely to be brought to her notice at some later stage and no doubt the Police Offi cers assumed that that would happen, but in my view it is clear that there was no evidence that the document was either delivered to her personally, or delivered to anyone who had authority to receive it on her behalf. The point may not be a very meritorious one, but it seems to me to be clearly well founded in law. ..."

Per Smith J in Hassell v Day [1971] VicSC 317; MC 26/1971, 15 November 1971.

22. Surname of defendant different from that in the certifi cate – 'Bretlove' instead of 'Pretlove' – defendant pleaded not guilty to the drink/driving charge – charge dismissed – Magistrate in error.

HELD: Order nisi absolute. Dismissal set aside. Remitted to the Magistrates' Court for hearing and determination according to law.1. If the magistrate purported to have doubts that the certifi cate referred to the defendant, and to have considered that it was equally possible that there had been another man whose name was Bretlove and who had been subjected to a breath test at or about the same time and that the defendant had been given a certifi cate which related to this mythical Bretlove, such doubts would have been unreasonable, and that in accordance with well known decisions of the Supreme Court such a decision based upon such doubts was erroneous.

2. The difference in the names Pretlove and Bretlove was minimal and having regard to the evidence that the original certifi cate was handed to the defendant at the police station at the conclusion of the test, the theory that there might have been another man named Bretlove whose breath was tested at the time stated in the certifi cate and whose certifi cate was handed to the defendant bordered on the fantastic. In reality the only reason that the stipendiary magistrate was asked to dismiss the information was that the defendant's name was misspelt in the certifi cate and in view of the evidence that he was the driver, that he was subjected to a breath analysis, and that he received the certifi cate after the test had been completed, the stipendiary magistrate was wrong in dismissing the information at the close of the complainant's case.

Pape J:" ... The defendant was in court and had pleaded not guilty — the evidence of the informant related to that defendant and established that the defendant was apprehended in Banyan Street by the informant, taken by him to the police station, where his breath was analysed, and that there and then he was given the original certifi cate. Further, the fact that the stipendiary magistrate convicted the defendant on the second information on the evidence of the informant showed that the stipendiary

39

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAmagistrate was satisfi ed beyond reasonable doubt that the defendant was the person so apprehended and dealt with.

Section 408A(2) requires the certifi cate to be delivered to "the person whose breath had been analysed" and this had been established notwithstanding that the defendant's name was incorrectly spelled in the certifi cate. If the magistrate's decision meant that he held that by reason of the wrong name appearing in the certifi cate it was inadmissible, he argued that such a fi nding could not be upheld because the certifi cate was by sub-section (2)(A) only prima facie evidence of the facts stated therein and that the other evidence to which reference has been made clearly connected the defendant with the person whose breath had been analysed.

... The difference in the names Pretlove and Bretlove is minimal and having regard to the evidence that the original certifi cate was handed to the defendant at the police station at the conclusion of the test, the theory that there might have been another man named Bretlove whose breath was tested at the time stated in the certifi cate and whose certifi cate was handed to the defendant borders on the fantastic. In reality the only reason that the stipendiary magistrate was asked to dismiss the information was that the defendant's name was misspelt in the certifi cate and in view of the evidence that he was the driver, that he was subjected to a breath analysis, and that he received the certifi cate after the test had been completed, I think the stipendiary magistrate was wrong in dismissing the information at the close of the complainant's case. As the defendant has not gone into his case, the matter must go back to the Magistrates' Court. ..."

Per Pape J in Clemens v Pretlove [1972] VicSC 46; MC 03/1972, 22 February 1972.

23. Copy certifi cate of analyst tendered in evidence – certifi cate showed that name of defendant misspelt – 'Howard' instead of 'Harwood' – whether certifi cate was "in or to the effect of" the form prescribed – submission of 'no case' upheld in relation to drink/driving matter – defendant convicted in relation to red light matter – Magistrate in error in dismissing information.

HELD: Order absolute. Dismissal set aside. Remitted to the Magistrates' Court for hearing and determination in accordance with the law.1. There was not to be found in s80F(2) of the Motor Car Act 1958 or elsewhere a requirement that the name attributed to the person referred to in the certifi cate as the subject of the analysis must have coincided with some particular established name, or any implication that a certifi cate which stated a name which did not so coincide was not "in or to the effect of" the schedule. In regard to this matter, it was with the nature of the matter set out and its form, and not the truth or accuracy of what is set out, that the requirement is concerned.

2. The certifi cate in the present case was admissible and prima facie evidence of what it stated. But what it stated was that a person, bearing the name Georgina Maria Howard, of Flat 6, 31 Black Street, Brighton, had had a sample of her breath analysed at the specifi ed time and place with the specifi ed results. But the evidence of the informant was that it was the defendant, about whose driving he had given evidence, who, at that time and place stated in the copy certifi cate, had had a sample of her breath taken by the operator, who had fi lled out and signed the Schedule Seven certifi cate of which he himself had produced a copy, and that it was she to whom the original certifi cate had been handed by the operator.

3. The magistrate found, on the other information, that the person about whose driving the informant had given evidence was, in fact, the defendant who was charged in the information as Georgina Maria Harwood of Flat 6, 31 Black Street, Brighton.

4. In view of that material, the evidence was all one way to the effect that the person referred to in the certifi cate as "Georgina Maria Howard" was the defendant, Georgina Maria Harwood, and that the matters set out in the certifi cate referred to her and to a test taken on her breath. Accordingly, the magistrate could not refuse to act on that view for the purpose of determining the submission that there was no case to answer.

Gowans J:"... The basis for the contention that the difference in the names led to there being no case to answer does not appear from the material. The stipendiary magistrate dismissed the information relating to driving with an excess percentage of alcohol but convicted the defendant of disregarding the red light. It therefore appears that he was satisfi ed that the defendant was the driver concerned. But his reasons for the dismissal of the other information are obscure. He is said to have stated that the difference in the names could not have been the result of a mis-spelling and he presumably regarded the name in the certifi cate as a different name from that of the defendant. He said that he considered that the police might have the wrong person or the wrong certifi cate.

... The question here is whether a certifi cate which states that a sample has been taken by means of a breath analysis instrument of the breath of a person bearing a particular name, and that it

40

DRINK/DRIVING in VICTORIAindicated a specifi ed quantity of alcohol in the blood of that person, is a certifi cate which is "in or to the effect of" a form of certifi cate as to the percentage of alcohol indicated to be present in the blood of a person whose breath has been analysed, if the particular name set out in the certifi cate is different from the established name of the person whose breath has been analysed.

... I have come to the conclusion that there is not to be found in s80F(2) or elsewhere a requirement that the name attributed to the person referred to in the certifi cate as the subject of the analysis must coincide with some particular established name, or any implication that a certifi cate which states a name which does not so coincide is not "in or to the effect of" the schedule.

... I therefore conclude that the certifi cate in the present case was admissible and prima facie evidence of what it stated. But what it stated was that a person, bearing the name Georgina Maria Howard, of Flat 6, 31 Black Street, Brighton, had had a sample of her breath analysed at the specifi ed time and place with the specifi ed results. But the evidence of the informant was that it was the defendant, about whose driving he had given evidence, who, at that time and place stated in the copy certifi cate, had had a sample of her breath taken by the operator, who had fi lled out and signed the Schedule Seven certifi cate of which he himself had produced a copy, and that it was she to whom the original certifi cate had been handed by the operator.

The magistrate found, on the other information, that the person about whose driving the informant had given evidence was, in fact, the defendant who was charged in the information as Georgina Maria Harwood of Flat 6, 31 Black Street, Brighton.

In view of that material, in my opinion, the evidence was all one way to the effect that the person referred to in the certifi cate as "Georgina Maria Howard" was the defendant, Georgina Maria Harwood, and that the matters set out in the certifi cate referred to her and to a test taken on her breath. I share the view expressed by Pape J in the case cited, with respect to a similar situation, as to the possibility of the fact being otherwise. In my opinion, the magistrate could not refuse to act on that view for the purpose of determining the submission that there was no case to answer. ..."

Per Gowans J in Houston v Harwood [1975] VicRp 69; [1975] VR 698; [1975] VicSC 196; MC 24/1975, 8 May 1975.

24. Breath analysis certifi cate incomplete by absence of surname of defendant from para 5 – charge dismissed by Magistrates' Court – Court in error.

In a drink/driving case, the defendant's surname on the breath analysis certifi cate was omitted. The defendant's name and address was set out in the body of the Certifi cate but the defendant's surname was not mentioned in para 5 of the Certifi cate. The Magistrate dismissed the information. Upon Order Nisi to Review—

HELD: Order absolute. Remitted for determination in accordance with the law.This certifi cate was admissible in evidence since it was to the effect of the form specifi ed in Schedule 7 to the Motor Car Act 1958. Wesson v Jennings [1971] VicRp 9; (1971) VR 83; Clemens v Pretlove [1972] VicSC 46, (VSC, Pape J, 22nd February 1972; and Houston v Harwood [1975] VicSC 196; [1975] VicRp 69; (1975) VR 698 at pp701-702, followed.

Gillard J:"... It did appear that the defendant did receive a copy of the certifi cate but the Magistrate dismissed the Information because the certifi cate did not contain the surname of the defendant in that last paragraph. I am satisfi ed, having seen the document, that on its face it is to the effect of Schedule 7 to the Motor Car Act 1958, even though in the fi fth paragraph the surname was omitted.

The decision of Menhennitt J in Wesson v Jennings [1971] VicRp 9; (1971) VR 83, I believe, is in itself authority for the view that I am taking. However, his reasoning in that case is supported by the reasoning of Pape J in the unreported case of Clemens v Pretlove [1972] VicSC 46 (22nd February 1972) and by the decision of Gowans J in Houston v Harwood [1975] VicSC 196; [1975] VicRp 69; (1975) VR 698 at pp701-702.

In my view it is quite unnecessary to dilate upon the reasoning expressed by those learned Judges and I respectfully adopt the opinions expressed by them and so hold that this certifi cate was admissible in evidence since it was to the effect of the form specifi ed in Schedule 7 to the Motor Car Act 1958. Accordingly, the order nisi will be made absolute.'

Per Gillard J in Harris v Korol [1976] VicSC 74; MC 59/1976, 16 March 1976.

25. Certifi cate tendered showing a BAC of 0.22% – charge dismissed – magistrate accepted submission that a certifi cate should have been tendered which showed that the relevant regulations had been complied with – Magistrate in error.

41

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAAt a hearing before a Magistrates' Court evidence was given that the respondent was the driver of a motor car which was involved in a collision. The prosecution led evidence of a conversation had with the respondent, tendered a certifi cate as to the taking of a blood sample (within 2 hours of the accident) and a further certifi cate showing that the blood, when analysed, had a blood/alcohol concentration of .22 per cent. The information was dismissed after the prosecution closed its case, it having been submitted that a certifi cate pursuant to section 80D(3A) should have been tendered. Upon an Order nisi to review—

HELD: Order absolute. Remitted to the Magistrate to be dealt with according to law.A careful perusal of section 80D of the Motor Car Act shows that there is nothing in that section nor in any other section of the Act which provides that proof that the regulations relating to the safe keeping of the samples of blood taken under section 80DA shall be a condition precedent to conviction of an offence against section 81A. Having regard to the considerable amount of discussion on this point in the decisions of the Supreme Court, it is not necessary to enter into further discussion about it. Hindson v Monahan [1969] VicSC 180; [1970] VicRp 12; (1970) VR 84; Wylie v Nicholson [1973] VicRp 58; (1973) VR 596; Lloyd v Thorburn [1973] VicSC 104; [1974] VicRp 2; (1974) VR 12; Mallock v Tabak [1976] VicSC 503; [1977] VicRp 7; (1977) VR 78; and the following unreported decisions: Pavlovic v Krizman [1975] VicSC 259 (Gowans J, 29 May 1975); Waters v Good [1976] VicSC 427 (Nelson J, 30 August 1976); and Collins v Mithen [1975] VicSC 229 (Gowans J 21 May 1975), referred to.

Murray J:" ... [I]t is clear that the Stipendiary Magistrate took the view that it was a condition precedent for the prosecution to prove that the regulations had been complied with and that a conviction could not be recorded. In my opinion this view is plainly erroneous and is certainly not consistent with a number of decisions both reported and unreported of this court.

... However a careful perusal of section 80D of the Motor Car Act shows that there is nothing in that section nor in any other section of the Act which provides that proof that the regulations relating to the safe keeping of the samples of blood taken under section 80DA shall be a condition precedent to conviction of an offence against section 81A. Having regard to the considerable amount of discussion on this point in the decisions of this Court, it is not necessary for me to enter into further discussion about it.

... It follows that the Stipendiary Magistrate was in error in holding that it was necessary for the prosecution to prove compliance with the regulations either by tendering a certifi cate under sub-section (3A) or otherwise. There was therefore a prima facie case made out before the Stipendiary Magistrate and accordingly the order nisi will be made absolute and the matter will be remitted to the Stipendiary Magistrate to deal with according to law."

Per Murray J in Woodward v McNab [1978] VicSC 384; MC 57/1978, 31 August 1978.

26. Reading of .140BAC – copy certifi cate tendered during the hearing – evidence before the magistrate that the constable was a person authorised by the Chief Commissioner of Police to operate a breath analysing instrument – information dismissed by magistrate on ground that there was no evidence that the operator was duly authorised – Magistrate in error.

HELD: Order nisi absolute. Dismissal set aside. Remitted to the Magistrates' Court for hearing in accordance with the law.For the purposes of the present case it was suffi cient to say that by reason of s80F(3) of the Motor Car Act 1958 a copy certifi cate such as Exhibit B in the present case was prima facie evidence that the person who signed the certifi cate, was authorised by the Chief Commissioner of Police to operate a breath analysing instrument; that fact is stated in para 1 of the Certifi cate and is implied in the description "authorised operator" at the foot thereof, and s80F(3) made the copy certifi cate prima facie evidence of the facts and matters stated therein.

Newton J:" ... a copy certifi cate such as Exhibit B in the present case is prima facie evidence that the person who signed the certifi cate, was authorised by the Chief Commissioner of Police to operate a breath analysing instrument; that fact is stated in para 1 of the certifi cate and is implied in the description "authorised operator" at the foot thereof, and s80F(3) makes the copy certifi cate prima facie evidence of the facts and matters stated therein, subject only to a presently immaterial proviso. ...:

Per Newton J in Norris v Peat [1972] VicSC 263; MC 25/1972, 29 August 1972.

27. Certifi cate of the test result produced in court – submission that there was no proof that the operator was a person authorised by the Chief Commissioner of Police to operate breath analysing instruments – charge dismissed by Magistrate – Magistrate in error.

42

DRINK/DRIVING in VICTORIAHELD: Order nisi absolute. Dismissal set aside. Remitted to the Magistrates' Court for hearing and determination according to law.1. As a matter of construction of the Legislation, the production of the copy of a certifi cate in the form or to the effect of Schedule 7, given in accordance with s80F(2) of the Motor Car Act 1958, constituted prima facie evidence that the operator was authorised by the Chief Commissioner of Police to operate the instrument.

2. Accordingly, the Magistrates' Court should have admitted in evidence the copy certifi cate which was tendered on behalf of the informant.

McInerney J:" ... In White v Moloney [1969] VicSC 71; [1969] VicRp 91; [1969] VR 705, the Full Court considered the effect of the amendments made by Act 7782 of the Crimes Evidence Act 1968 to the legislation. As appears from p708 of the report, the magistrate had ruled that the amendments effected by Act 7782 had not affected, in any relevant sense, the decision in Hanlon v Lynch [1968] VicRp 80; [1968] VR 613. The magistrate had, accordingly, held that before the copy certifi cate could be relied on, evidence was necessary to prove (a) that the operator was an authorised operator, (b) that the machine was an approved machine. As there was no such evidence, the magistrate had dismissed the information.

The Full Court, in making the Order Nisi absolute, must obviously have had its attention directed to this point. In the course of its judgment observations which appear at p710 of the report were made, which, in my opinion, constituted a rejection of the views expressed by the magistrate in that case. ..."

Per McInerney J in Everett v Westwood [1972] VicSC 447; MC 44/1972, 13 December 1972.

28. Person authorized on behalf of Chief Commissioner of Police to operate breathalyser – signatory on authorisation a different person from the current Chief Commissioner – meaning of the words "authorised in that behalf by the Chief Commissioner of Police" – "authorise" – "appoint" – charge dismissed by Magistrate – Magistrate in error.

On the hearing of an information for exceeding .05% it was argued that at the time of the test the operator was not authorised by the Chief Commissioner of Police. The signatory on his authorisation was Reginald Jackson but, at the relevant time, Sinclair Miller was Chief Commissioner of Police. It was argued that the only feasibly possible construction that can be placed upon the words 'authorised in that behalf by the Chief Commissioner of Police' were, either that the words meant the Chief Commissioner at the time of the test having been taken by the person purportedly authorised or that 'Chief Commissioner' means the Chief Commissioner at the time that the authority was given. The magistrate upheld the submission of the defendant and dismissed the charge. Upon appeal—

HELD: Order of dismissal set aside.It was clear that on the correct interpretation of the section the power authorised to be conferred was a general power. The contention which succeeded in the court below was more attractive if the authority which the legislation allowed to be committed was an authority to permit the performance of a single act. But with a power which was general, as this authorisation clearly was, support was to be found for the argument that it was the Chief Commissioner at the time of the conferring of the authorisation to which the section referred. In other words, there was no need for a temporal co-existence between the occupancy of the offi ce of Chief Commissioner of Police by the grantor of the relevant authority and the period of due authorisation to the grantee of that authority. The relevant question was whether the grantor of the authority was at the time of its grant empowered so to act and not whether at the time of the exercise of the authority by the grantee the grantor was still in offi ce. Wood v Pfeiffer [1925] VicLawRp 18; (1925) VLR 167; 31 ALR 79; 46 ALT 153, distinguished.

Crockett J (for the Full Court):" ... Before us it has correctly been pointed out that the only feasibly possible construction that can be placed upon the words 'authorised in that behalf by the Chief Commissioner of Police' are, either that the words mean the Chief Commissioner at the time of the test having been taken by the person purportedly authorised (a construction for which the defendant contended in the Court below), or that 'Chief Commissioner' means the Chief Commissioner at the time that the authority was given. In my view, the latter construction is the only reasonable and sensible one which the words used can permissibly bear. There are a number of indications as to why this is so.

... But with a power which is general, as this authorisation clearly is, in my view, support is to be found for the argument that it is the Chief Commissioner at the time of the conferring of the authorisation to which the section refers. In other words, in my opinion, there is no need for a temporal co-existence between the occupancy of the offi ce of Chief Commissioner of Police by the grantor of the relevant authority and the period of due authorisation to the grantee of that authority. The relevant question is whether the grantor of the authority was at the time of its grant empowered so to act and not whether at the time of the exercise of the authority by the grantee the grantor is still in offi ce. ..."

43

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAPer Crockett J in Benwell v Gottwald [1978] VicRp 26; [1978] VR 253; MC 04/1978, 12 December 1977.

29. Certifi cate of analysis tendered in evidence showing breath test taken at 12.50am – police informant gave evidence that test was conducted at 1.35am – when challenged informant stated that his notes set out the time as 1.35am – further that he must have confused the time with the reading of .135 – Magistrate acted on the certifi cate and imposed a conviction – Magistrate not in error.

HELD: Order nisi discharged.The Magistrate was entitled to accept the statement of time set out in the certifi cate as evidence upon which he could act and impose a conviction. White v Moloney [1969] VicSC 71; [1969] VicRp 91; [1969] VR 705, applied.

Anderson J:" ... While there are certain logical diffi culties, it seems to me in accepting as evidence on an issue of admissibility statements in the document itself, the admissibility of which is in question, it seems to have been accepted by the decision in White v Moloney [1969] VicSC 71; [1969] VicRp 91; [1969] VR 705 that a document purporting to set out these matters is itself prima facie evidence in the proceeding which would refer not merely to the question of guilt or otherwise of the offence, but also to the preliminary question as to admissibility of evidence directed to that issue, and once one gets to the position the magistrate was entitled to accept the statement of time set out in the certifi cate as evidence upon which he could act even in relation to the issue of admissibility, then it seems to me that Mr Briglia's only hope of succeeding in this application would be if he were to satisfy me that the evidence of the informant viva voce evidence of the informant having been given as to time, that the magistrate, as a matter of law could not accept the time given in the certifi cate as the time at which the test was in fact taken.

I am unable to see any sound basis upon which I could be so satisfi ed. There was an explanation and as given is not fundamentally unlikely to explain the time which was given by the informant in evidence, and if the magistrate, in consequence of that explanation was not prepared to accept the informant's evidence as to the time when the test was taken, then the statement in the certifi cate assumed a much greater signifi cance – and, in my view, there is no reason why the magistrate should not accept the statement in the certifi cate as the time on which it was given in the absence of any evidence at all other than evidence of the informant, to suggest that that was not the correct time.

In those circumstances, it seems to me that the magistrate was entitled to fi nd that the time set out in the certifi cate was, in fact, the time at which the test was taken and that, consequently, the certifi cate did comply with sub-section (ii) and that it was not inadmissible but, on evidence contained in the certifi cate, the magistrate was entitled to record a conviction. The order nisi consequently will be discharged. I will make the order that costs be taxed within the statutory limit."

Per Anderson J in Quigley v Gould [1973] VicSC 95; MC 15/1973, 21 May 1973.

30. Delivery of schedule 7 certifi cate – certifi cate tendered in evidence – effect of certifi cate – certifi cate stated that it was delivered to the defendant 'on the said day' – test held at 11:56pm – certifi cate delivered at 12:04am – certifi cate could not be delivered on the said day because that would have been before the offence had been committed – charge dismissed by Magistrates' Court – Court in error.

On a charge of exceeding .05% blood alcohol, evidence was given of the breath test taken at 11.56 pm. on 29th January, that on completion of the test both copies of the schedule 7 were handed to informant who compared them and found them identical. No oral evidence was given of delivery. The certifi cate produced in Court indicated that delivery occurred at 12.04 am. 'on the same date'. The Justices upheld a submission that there was no proof that the copy produced in court was, in fact, a copy of the original certifi cate. Upon Order Nisi to review—

HELD: Order absolute. Dismissal set aside. Remitted to the Magistrates' Court for re-hearing.1. Having regard to the provisions of s80F of the Motor Car Act 1958 the statement as to the delivery of the certifi cate to the defendant became prima facie evidence. Accordingly, there were two statements in that piece of evidence. First of all, it stated that as soon as practicable after the completion of the breath analysis, the authorized operator delivered a certifi cate to the defendant and, secondly, that at 12.04 a.m., on the said day, she delivered the certifi cate to the defendant.

2. When one looks at the expression "on the said day" it must refer back to the 29th January 1975, being the date of the examination. It appeared that the examination was at 11.56 p.m. on the 29th January 1975. It was, therefore, reasonably apparent that the certifi cate was given at 12.04 a.m. not on the 29th January 1975, but on the 30th day of January 1975, the day of the certifi cate. In consequence, the ground advanced by the Justices for the dismissal of the information was rejected. They should have acted upon the statutory conditions to give evidentiary effect to the document. On its face it was clearly stated that the

44

DRINK/DRIVING in VICTORIAcertifi cate was delivered to the defendant.

3. The Certifi cate stated that the delivery was made at 12.04 a.m. "on the said day". This was clearly erroneous and anybody reading the certifi cate would not give credence to that statement. The certifi cate was prima facie evidence and the court should look at the whole of that evidence, giving weight only to that portion of the evidence which it found acceptable. Accordingly, it could not be accepted that the certifi cate was delivered to the defendant at 12.04 a.m. on the 29th January 1975, at a time when the offence had not been committed.

4. Once the document purported to be a copy of the certifi cate, then it had an evidentiary value and it could not be rejected as a document merely because it contained some patent error.

Gillard J:" ... Finally, the document is dated 30th day of January 1975 and purports to be over the signature of an authorized operator. Having regard to the provisions of s80F the statement which I have read out in full as to the delivery of the certifi cate to the defendant becomes prima facie evidence. Accordingly, I have really two statements in that piece of evidence. First of all, it is stated that as soon as practicable after the completion of the breath analysis, the authorized operator delivered a certifi cate to the defendant and, secondly, that at 12.04 a.m., on the said day, she delivered the certifi cate to the defendant.

When one looks at the expression "on the said day" it must refer back to the 29th January 1975, being the date of the examination. It appears that the examination was at 11.56 p.m. on the 29th January 1975. It is, therefore, reasonably apparent that the certifi cate was given at 12.04 a.m. not on the 29th January 1975, but on the 30th day of January 1975, the day of the certifi cate. In consequence, I reject the ground advanced by the Magistrates for the dismissal of the information. They should have acted upon the statutory conditions to give evidentiary effect to the document. On its face it is clearly stated that the certifi cate was delivered to the defendant....

... The only refl ection upon the evidence is that it stated the delivery was made at 12.04 a.m. "on the said day". In my view, this is clearly erroneous and anybody reading the certifi cate would not give credence to that statement. The certifi cate is prima facie evidence and the court looks at the whole of that evidence, giving weight only to that portion of the evidence which it fi nds acceptable. In my opinion, it could not accordingly be accepted that the certifi cate was delivered to the defendant at 12.04 a.m. on the 29th January 1975, at a time when the offence had not been committed. ..."

Per Gillard J in Blain v Witton [1976] VicSC 83; MC 65/1976, 19 March 1976.

31. Apparent discrepancy of time in Schedule 7 certifi cate – effect.

D. was intercepted driving a motor car whilst his blood/alcohol level exceeded .05%. He was charged, and when the matter came on for hearing, a copy of the Schedule 7 certifi cate was tendered in evidence. It appeared on the certifi cate that the time between the analysis of breath and the time of delivery of the certifi cate to D. spanned a midnight; that is, the analysis took place at "11.58p.m." and the delivery took place at "12.08 a.m. on the said day." The magistrate agreed with the submission that the prima facie provisions of the certifi cate were "invalid", and he dismissed the charge. Upon order nisi to review—

HELD: Order nisi absolute. What a document says by necessary implication it says expressly. In the circumstances, the necessary implication from the certifi cate was that the delivery took place at the time stated which next occurred after the time of the analysis, and not before it and not 24 hours later than it. Blain v Witton [1976] VicSC 83; MC 65/1976, 19 March 1976, Gillard J, followed.

Fullagar J:" ... If one accepts that all else in the certifi cate is correct, except the presence of printed words which must be inaccurate in every case which, like the present one, involves a spanning of midnight, as necessarily appears from Clause 2, then all diffi culty, ambiguity and incongruity disappears. The inference is, in my opinion, irresistible, and is, indeed, the only inference available, that the constable's watch or other the material timepiece showed 11.58 p.m. at the time of the analysis and showed 12.08 a.m. at the time of delivery of the certifi cate. In other words, I consider that anyone who thoughtfully viewed the certifi cate when seeking information, rather than seeking faults or errors, would conclude at once that there was one, and only one, error in it, namely the printed expression "on the said day", because this is a midnight-spanning case, which is the only class of case where those words are inapposite to sit with the earlier words "as soon as practicable after".

In my opinion the certifi cate says, by necessary implication, that the delivery took place at 12.08 a.m. on the next day, that is to say at that 12.08 p.m. which next occurred after the time of the analysis, and not before it and not 24 hours later than it. There is much authority to show that what

45

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAa document says by necessary implication it says expressly. The certifi cate was therefore prima facie evidence of all the matters required to prove the offence charged. ...

Per Fullagar J in Griffi ths v Drew [1983] VicSC 75; MC 19/1983, 17 March 1983.

32. Certifi cate of analysis produced to the court – objection by defence that it was inadmissible due to the fact that the authorised operator had not been called to prove the authenticity of the signature on the certifi cate – objection upheld by court – charge dismissed – court in error.

HELD: Order nisi absolute. Dismissal set aside. Remitted to the Magistrates' Court to be heard and determined according to law.1. The copy certifi cate tendered to the Court was prima facie evidence of the two matters as to which it was submitted on behalf of the defendant that oral evidence should be called, namely proof of the signature on the certifi cate by the oral evidence of the operator, and proof that the test was carried out by the authorised operator.

2. The Motor Car Act makes it quite clear that the copy certifi cate is prima facie evidence of those matters, and there is no necessity to call the authorised operator to prove either his signature or that he in fact was an authorised operator, or that he in fact carried out the test.

3. Accordingly, the Magistrates' Court was in error in dismissing the charge.

Menhennitt J:" ... That passage in the judgment, in my view, establishes quite clearly and authoritatively that where there is produced a copy Certifi cate which purports to be signed over the words "Signature of Authorised Operator" and where it contains, as Schedule 7 requires, the statement "1. That I am a person authorised by the Chief Commissioner of Police under section 80F of the of the Motor Car Act 1958 to operate a breath analysing instrument, then that certifi cate is in accordance with the provisions of sub-section (3) of s80F of the Motor Car Act 1953, prima facie evidence in proceedings including the proceedings that were in fact before the Magistrates' Court on the day in question of the facts and matters stated therein, unless the accused person gives notice in writing to the informant a reasonable time in the circumstances before the hearing that he requires the person giving the certifi cate to be called as a witness.

There is no suggestion that any such notice was given in the present case, and accordingly that copy certifi cate was prima facie evidence of the two matters as to which it was submitted on behalf of the defendant that oral evidence should be called, namely proof of the signature on the certifi cate by the oral evidence of the operator, and proof that the test was carried out by the authorised operator.

Per Menhennitt J in Reynolds v Paisley [1973] VicSC 127; MC 19/1973, 25 June 1973.

33. Schedule 7 certifi cate – error in certifi cate as to time of delivery to defendant – effect of – standard of proof.

J. had been found at 8:30 pm. in the driver's seat of his car parked in the emergency lane of a freeway. He was taken to a police station and at 9:18 pm. tested by a member of the Breath Analysis Section who, at the completion of the test, fi lled in and signed a Schedule 7 certifi cate in triplicate. Shortly after, a copy was handed to J.; however the certifi cate showed the time of delivery as 8:25 pm. instead of 9:25 pm. At the end of the prosecution case, it was sub mitted that as the magistrate could not be satisfi ed that the certifi cate had been served as soon as practicable after completion of the test, the charge should be dismissed. The magistrate agreed that J. could not properly be convicted and dismissed the information. On order nisi to review—

HELD: Order nisi absolute.1. The question of what is meant by "as soon as practicable" in s80F(2) is one to be determined in the light of all the prevailing circumstances. Creely v Ingles [1969] VicSC 90; [1969] VicRp 94; (1969) VR 732, applied.

2. In deciding that preliminary factual matter, the magistrate did not need to be satisfi ed beyond a balance of probabilities. Wendo v R [1963] HCA 19; (109) CLR 559; [1964] ALR 292; 37 ALJR 77, followed. Ross v Smith [1969] VicSC 23; [1969] VicRp 51; (1969) VR 411, discussed.

3. If evidence is given which is of an uncontroversial character and is inherently probable, it should not be rejected unless satisfactory reasons are expressed for the rejection. Llewellyn v Reynolds [1952] VicLawRp 24; (1952) VLR 171; [1952] ALR 358, applied.

4. The evidence disclosed that the transaction between the informant, defen dant and the breath analysis operator was a routine one, likely to be com pleted within a very short period. In the circumstances there was no satisfactory reason to justify the magistrate in not being satisfi ed that the certifi cate was handed to the defendant as soon as practicable after the test was completed.

46

DRINK/DRIVING in VICTORIAGray J:

" ... The question of what is meant by "as soon as practicable" in the sub-section has been considered by this Court in Creely v Ingles [1969] VicSC 90; [1969] VicRp 94; (1969) VR 732. Mr Justice Little decided that the question whether a certifi cate is delivered as soon as practicable is one to be determined in light of all the circumstances. It is not one to be determined on some mathematical basis of adding together periods of time taken in relation to the various steps in the analysis. It follows that the learned magistrate was required to make a fi nding of fact in the light of all the prevailing circumstances.

... It is clear that the essential elements of this offence are, or require proof by the prosecution, that the defendant drove his motor car and at that time had the prohibited concentration of alcohol in his blood. It is certainly not an element of this offence that the Schedule 7 certifi cate was served as soon as practicable after the test was completed.

... In this case it is clear, in my opinion, that the informant, in the passages to which I have referred, was giving evidence of a routine transaction concerning himself, the breath analysis operator and the defendant. By the very nature of the trans action it is likely to be completed within a very short period. The account given by the informant appears to be speaking of events which followed immediately upon each other. I can detect no satisfactory reason to justify the magistrate in not being satisfi ed that the certifi cate was handed to the defendant as soon as practicable after the test was completed.

... However, my impression is that the magistrate's lack of satisfaction was linked in some way to the obvious mistake about the time in the certifi cate. That circumstance, to my mind, provides no reason at all for the rejection of the informant's evidence as to the sequence of events. ... the real question the learned magistrate had to determine was whether the preliminary matter provided for in sub-section (2) had been satisfi ed. In my opinion, for the reasons I have sought to express, the learned magistrate, acting reasonably, had no alternative but to admit the Schedule 7 certifi cate into evidence. ..."

Per Gray J in Greenwood v Jack [1983] VicSC 335; MC 39/1983, 25 August 1983.

34. Schedule 7 certifi cate – time of delivery to defendant omitted – whether delivered 'as soon as practicable' – whether 'in or to the effect of' – Magistrate in error in dismissing charge.

At the hearing of a charge against W. of driving a motor car whilst exceeding .05% blood/alcohol, the Schedule 7 copy certifi cate was admitted into evidence. At the conclusion of the Prosecution case, a 'no case' submission was made upon the basis that the certifi cate did not comply with the provisions of s80F(2) of the Motor Car Act 1958 in that the time of handing the certifi cate to the defendant was omitted. The Magistrate agreed with the submission and dismissed the charge. Upon order nisi to review—

HELD: Order absolute.(1) The Magistrate was required to be satisfi ed that the certifi cate had been handed to the defendant as soon as practicable after the breath analysis. The Magistrate should have been so satisfi ed in view of the informant's evidence (including the use of the word 'then' in consecutive sentences) which indicated he was referring to a series of steps occurring one after the other in the transaction with the defendant. Greenwood v Jack [1983] VicSC 335; MC 39/1983, followed.

(2) The words 'in or to the effect of' mean that the Schedule 7 certifi cate need not slavishly follow the form set out in the Schedule. Accordingly, omission of the time of delivery of the certifi cate to the defendant did not make the copy certifi cate inadmissible. Wesson v Jennings [1971] VicRp 9; [1971] VR 83, applied.

Southwell J:" ... After argument and reference to legal authority, the Magistrate said that the omission of the time of the Schedule 7 Certifi cate being handed to the defendant was fatal to the prosecution case and that he must therefore uphold the defence submission. The Stipendiary Magistrate apparently further stated that, if the operator had been called to give evidence of the time, this would have been suffi cient.

... Here, as it seems to me, there was evidence of the informant (in the portion of the affi davit to which I have referred) upon which the Magistrate could and, I believe, should have been satisfi ed of the point in question. Mr Larkin then referred to the fact that Mr Downing who appears to move the order absolute, had provided him with a copy of the judgment of Gray J, delivered on the 25th of August 1983, but unreported, of the case of Greenwood v Jack [1983] VicSC 335 where a not identical but very similar point came before His Honour. In that case the certifi cate had what was clearly a mistake in it, that it had been handed to the defendant at 8.25 pm. when, in fact, the analysis was taken at 9.05 pm. The informant deposed that, in fact, the certifi cate was handed over at 9.25 pm.

47

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAHis Honour there also distinguished the case of Ross v Smith [1969] VicSC 23; [1969] VicRp 51; (1969) VR 411 and at p11 of the judgment says that:

"In this case it is clear, in my opinion, that the informant in the passages to which I have referred, was giving evidence of a routine transaction concerning himself, the breath analysis operator and the defendant. By the very nature of the trans action, it is likely to be completed within a very short period. The account given by the informant, appears to be speaking of events which followed immediately upon each other. I can detect no satisfactory reason to justify the Magistrate in not being satisfi ed that the certifi cate was handed to the defendant as soon as practicable after the test was completed. It can certainly be said that the Magistrate did not put forward any reasons for his rejection and no adequate reasons appear to arise from the circumstances."

I respectfully agree with those observations and would add that in the present case, the use of the word 'then' appearing in consecutive sentences, in my view, compels the fi nding that in the absence of any other evidence, there was indeed a series of steps in the transaction occurring one after the other. The reason advanced by the Magistrate, in my view, underlines the error made because it is said that it could have been corrected by the operator being called to give evidence at the time. It would appear that the learned Stipendiary Magistrate had thought there was no evidence upon which he could be satisfi ed that the certifi cate had been handed to the respondent as soon as practicable after the analysis. Not only was there suffi cient evidence to enable the Magistrate so to hold, in my view, it would not in the circum stances have been open to him without good and stated reasons to have held otherwise.

The second point argued by Mr Larkin was that the certifi cate in itself was not "in or to the effect of schedule 7", in that the time was missing from it. In my view, that submission may be summarily rejected. The fact that the time is not in it, does not in my view, leave it open to a fi nding that it is not "to the effect of the form in Schedule. The addition of the words 'to the effect of' produces the result that the certifi cate need not slavishly follow the form set out in Schedule 7A in order to be an admissible certifi cate": Wesson v Jennings (supra) at p85. Accordingly, the order nisi must be made absolute with costs."

Per Southwell J in Corner v Waterman (1984) 2 MVR 379; [1984] VicSC 456; MC 47/1985, 4 October 1984.

35. Copy certifi cate admitted into evidence – court not satisfi ed that the certifi cate was a copy of the original certifi cate handed to the defendant – charge dismissed – Magistrate not in error.

HELD: Order nisi discharged.The copy of a Schedule 7 certifi cate is prima facie evidence, if accepted. But its acceptance as a true copy of the original is a matter of fact, to be accepted or rejected by the Court, even though no notice has been given under section 80F(3) of the Motor Car Act 1958. In the present case it was open on the evidence for the court to have a doubt as to the authenticity of the certifi cate and dismiss the charge.

Starke J:" ... Now the certifi cate itself was not the only evidence in respect of the service of the Schedule Seven certifi cates. In the evidence I have already referred to Constable Cameron said that Fallon compared the two documents. Of course, that is an irrelevant piece of evidence because Fallon was not there to say what he found, but he said he also inspected the two documents and found that they were identical. As I have already said, it seems rather strange that he should do so, and I only fasten on this piece of evidence because it may have been the basis for the Court not accepting the evidence of the comparison of the certifi cates, and if they did not so accept that evidence it may have raised a doubt in their mind as to whether in fact, despite the prima facie presumption under sub-section (3), the defendant was served with a copy of the certifi cate. There may have been other reasons for the Court not accepting Cameron's evidence, but if whatever it was led them to have a doubt as to his evidence and if that doubt also raised a doubt as to the authenticity of the certifi cate, then it would have been their duty to dismiss the information, which they did.

... Here it was open, in my opinion, to the Court because of Cameron's evidence to have a doubt in respect of the certifi cate and if they had that doubt then, in my opinion, the inevitable result was that the information had to be dismissed, and that is after all what they said, and I repeat it:

"We are not satisfi ed that the copy in the book is identical with the other two."

For those reasons, in my opinion, the order nisi should be discharged."Per Starke J in Burrows v Mills MC 33/1982, 27 May 1982.

36. Driver taken to hospital – driver later submitted to a breath test at the police station – driver later convicted and fi ned – Magistrate not in error.

48

DRINK/DRIVING in VICTORIAHELD: Order nisi discharged.1. The mere fact that a person does something that he is not legally bound to do or, indeed, does something under the impression that he is legally bound to do it when in fact he is not, does not render what he does inadmissible in evidence against him subsequently.

2. The evidence as to the breath test was relevant and its admission in the circumstances afforded no valid ground for reviewing the conviction of the defendant driver.

Murphy J:" ... No objection, as I have said, was taken to the leading of the evidence of the result of the breathalyser test when that evidence was tendered in the court below. It was, in my opinion most relevant evidence, irrespective of how it was obtained, and in my opinion it was admissible unless for suffi cient reason it was rejected by the magistrate exercising his discretion on the request of the defendant so to do. I am not called upon in this case to consider the grounds upon which, if there be any, a magistrate might judicially exclude such evidence and I expressly refrain from doing so. I am of the opinion that the mere fact that a person does something that he is not legally bound to do or, indeed, does something under the impression that he is legally bound to do it when in fact he is not, does not render what he does inadmissible in evidence against him subsequently. As I say, the mere fact that he does do these things does not make what he does inadmissible.

I am of the opinion that the evidence was relevant in this case and that its admission in the circumstances of this case affords no valid ground for reviewing the conviction of the defendant. I do not intend to review the several decisions which were referred to me very helpfully on both sides of the Bar table, but I have followed them as they have been referred to and am assisted in arriving at my decision by a consideration of them. ..."

Per Murphy J in Franks v Wells [1973] VicSC 120; MC 18/1973, 18 June 1973.

37. At court hearing application by prosecutor to tender duplicate certifi cate – objection by defence counsel – voir dire held to decide admissibility of document – whether magistrate should have held a voir dire – "admissible" – fi nding by magistrate that certifi cate was not delivered to the defendant – no further evidence led by prosecutor – submission of 'no case' upheld – information dismissed – Magistrate in error.

HELD: Order nisi absolute. Dismissal set aside. Remitted to the Magistrates' Court for determination in accordance with the law.1. The word “admissible” may be used in two ways. It may be used to state whether evidence tendered in a court hearing is to be admitted into evidence. It may also be used to state whether evidence which has been admitted is admissible upon a particular issue in the case, or in other words, is competent to have probative value upon, the issue. Hughes v National Trustees Executors & Agency Company of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134; 23 ALR 321; 53 ALJR 249, applied.

2. Section 80F(1) of the Motor Car Act 1958 provides that before the evidence of the percentage indicated by the instrument can have probative operation as evidence which tends to establish that the defendant had more alcohol in his blood than .05 per cent another piece of evidence is required. The required other piece of evidence is evidence that the certifi cate was properly delivered.

3. Upon its natural interpretation the sub-section has two distinct effects. On the hearing of a charge it enables evidence to be given and admitted of the percentage of alcohol indicated by the instrument. That evidence may be given by tendering a certifi cate to the effect of Schedule seven or by the oral evidence of the operator or any other person who saw what the instrument indicated. It may be given in one or more of those ways. Once evidence has been given of the percentage of alcohol indicated by the instrument, that evidence is probative of the percentage of alcohol present in the blood of the defendant if, and only if, there is also evidence which establishes the proper delivery of the certifi cate. Ross v Smith [1969] VicSC 23; [1969] VicRp 51; (1969) VR 411; Tampion v Chiller [1969] VicSC 265; [1970] VicRp 46; (1970) VR 361; and Wylie v Nicholson [1973] VicRp 58; (1973) VR 596, considered.

4. From an interpretation of the words and the structure of the provisions themselves, the admission into evidence of the duplicate certifi cate proposed to be tendered by the prosecutor did not depend upon its being established that the original certifi cate was properly served on the defendant. It follows that the objection which was taken to the admission of the duplicate certifi cate should have been over-ruled without the holding of a voir dire.

McGarvie J:" ... The two issues that were argued before me were, fi rst, whether in the circumstances and on the proper interpretation of the legislation an occasion arose for the holding of a voir dire; and second,

49

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAif so, whether the voir dire was conducted in an appropriate and fair way.

... If a penal provision is reasonably capable of two interpretations the interpretation which is most favourable to the defendant must be adopted: Sweet v Parsley [1969] UKHL 1; (1970) AC 132 at 149; [1969] 1 All ER 347; 53 Cr App R 221; [1969] 2 WLR 470. With the present sub-section no occasion arises for the application of that principle because, in my opinion, its words and structure make its intention clear and unambiguous. There is no natural reading of the section which would treat the condition of delivery of the certifi cate as applying to the earlier part of the sub-section.

... Upon its natural interpretation the sub-section has two distinct effects. On the hearing of a charge it enables evidence to be given and admitted of the percentage of alcohol indicated by the instrument. That evidence may be given by tendering a certifi cate to the effect of Schedule seven or by the oral evidence of the operator or any other person who saw what the instrument indicated. It may be given in one or more of those ways. Once evidence has been given of the percentage of alcohol indicated by the instrument, that evidence is probative of the percentage of alcohol present in the blood of the defendant if, and only if, there is also evidence which establishes the proper delivery of the certifi cate.

... I therefore conclude from my interpretation of the words and the structure of the provisions themselves, that the admission into evidence of the duplicate certifi cate proposed to be tendered by the prosecutor did not depend upon its being established that the original certifi cate was properly served on the defendant. It follows that the objection which was taken to the admission of the duplicate certifi cate should have been over-ruled without the holding of a voir dire.

... the prosecutor indicated to the Magistrate that the additional evidence he desired to call on the voir dire was that of the operator of the breath analysing instrument, Senior Constable Fuller. If he were to give evidence the Magistrate would have further evidence before him when, at the close of all the evidence he considered whether, amongst other things, he was satisfi ed beyond reasonable doubt that the certifi cate had been properly delivered as required by s80F(2). The Magistrate ought not to have upheld the objection that was taken. If the document tendered had been admitted in evidence there is nothing in the material before me which indicates that a prima facie case for the informant would not have been made out. ..."

Per McGarvie J in Knaggs v Cook [1979] VicSC 293; MC 49/1979, 29 June 1979.

38. Breathalyzer used – submitted that the evidence of the patent number on the breathalyzer used was different from apparatus approved by notice published in the Government Gazette – the letters "no." not given in evidence – submission upheld by Magistrates – charges dismissed – Magistrates in error.

HELD: Orders nisi in each case made absolute. Dismissals set aside.1. The submission made in the Magistrates' Court was without substance and ought not to have been upheld. The expression "U.S. Patent No. 2,824,789" which was set out and described as an expression in the notice published in the Government Gazette would, when read over to oneself or aloud, be read as though the letters "No." in fact read "number". It was clear that the only reasonable meaning of these letters appearing in the Gazette was that they were an abbreviation of the ablative of the Latin "numerus", namely "numero", and meaning "by number", or "with the number", or "in number". It would not be necessary for the tribunal to know the derivation, but the tribunal ought to have found that the letters "No." appearing in the notice were an abbreviation, and as such merely denoted a change from words to fi gures. Their presence or absence added nothing to the meaning or intent of the expression.

2. In relation to the submission that the Regulations were ultra vires, no contrary intention appeared in the Motor Car Act and the regulations in question were passed after the passing of Act 8143, although before it came into operation. The power to make the regulations was exercised because it was "necessary or expedient for the purpose of bringing the Act into operation at the date of the commencement thereof". The regulations came into operation when the Act came into operation and not before it did so.

Murphy J:" ... The submission in each case was that as the evidence established that the breath analyzing instrument used to analyse the defendant's breath had the word "Breathalyzer", and the further words and fi gures, "U.S. Patent 2,824,789", appearing on it, it was not shown to be a type of apparatus approved as a breath analyzing instrument by notice published in the Government Gazette No. 60 of July 20th, 1972.

... The difference between the words and the numbers appearing in type 1 of the types of apparatus specifi ed in the notice, and the words and numbers (according to the evidence) appearing on the instrument in fact used to analyse the defendant's breath in each case was that the letters "No." appeared in the notice before the fi gures 2,824,789 but they did not appear on the instrument in fact used by the deponent.

50

DRINK/DRIVING in VICTORIA... The expression "U.S. Patent No. 2,824,789" which is set out and described as an expression in the notice published in the Government Gazette would, when read over to oneself or aloud, be read as though the letters "No." in fact read "number". It is clear to me that the only reasonable meaning of these letters appearing in the Gazette is that they are an abbreviation of the ablative of the Latin "numerus", namely "numero", and meaning "by number", or "with the number", or "in number". It would not be necessary for the tribunal to know the derivation, but it seems to me that the tribunal ought to have found that the letters "No." appearing in the notice were an abbreviation, and as such merely denoted a change from words to fi gures. Their presence or absence add nothing to the meaning or intent of the expression. In the same way, the presence or absence of a comma, though of similar import, would appear to me to be irrelevant. Similarly the use of capitals instead of small letters, or vice versa, would appear to me to be irrelevant.

... I agree with Mr Tadgell's submission that the Magistrate should have looked at the totality of the evidence as given by the deponent and as contained in the Gazette, and then asked himself whether that evidence satisfi ed him that the instrument used was of the type approved in the notice. Had he done so he could not have come to any conclusion other than that he was satisfi ed, and s80F(5) would then have given the deponent's hearsay evidence, the statutory imprimatur of prima facie evidence of the facts referred to therein. I agree also that the evidence given in cross-examination confi rmed rather than weakened the evidence given in examination-in-chief. ..."

Per Murphy J in Hill & Ors v Dunn & Ors [1974] VicSC 128; MC 46/1974, 29 April 1974.

39. BAC 0.07% – Schedule 7 certifi cate admitted into evidence – certifi cate provided prima facie proof of driver's BAC – evidence given by analytical scientist to effect that breathalyser can over- or under-estimate BAC – Magistrate in doubt whether BAC was more than 0.05% – Charge dismissed – Magistrate not in error.

HELD: Order Nisi dismissed.1. The statutory provision enabling the 7th Schedule form when completed by the operator to be tendered, and when tendered to be used as prima facie proof of the contents to be found therein, does no more than cast an evidentiary burden on the defendant without affecting the ultimate legal burden on the prosecution. This means that if the matter is raised as a disputed issue, as it was in this case, then it is for the prosecution to prove – and prove beyond reasonable doubt – that the concentration at the time of the breathalyser exceeded .05 per cent. In that connection the 7th Schedule form can afford some evidence, although it is open to the Court to take the view that the evidence is of little cogency if the court is of the view that the contrary evidence led is disposed to raise doubt as to the effi cacy of the reading as recorded in that form.

2. Notwithstanding the criticisms made of the expert's evidence, essentially it was to the effect that a breathalyser machine of the same type used to test the breath of the defendant is one which is capable of making errors in the sense of providing an under- or over-reading and that an over-reading could possibly occur at a recorded level of .07 per cent to the extent that the actual blood alcohol content was no more than .05 per cent. Whilst the hypothesis created might be thought to rest upon relatively tenuous grounds, it is not possible to say that the hypothesis was not a reasonable one for the Magistrate to conclude had been established and that, accordingly, it was open to him to reach the conclusion that he was not satisfi ed beyond reasonable doubt that the information had been established and that, accordingly, it should be dismissed.

Crockett J:" ... The effect, by reason of the operation of the relevant provisions of the Act, of this introduction into evidence of the 7th Schedule form is that the matters contained therein are to be treated as prima facie proved. This evidentiary operation of the form can be defeated in the event that appropriate notice is given for the attendance at the hearing of the operator who completed the document. No such notice was given in this case and, in consequence at the conclusion of the case for the prosecution the Magistrate had before him a document which by force of law operated so as, among other things, to afford prima facie proof that the defendant's blood alcohol concentration at the time of the test on him was .07 per cent.

... In my view, the grounds raise the single question as to whether it was possible on the evidence to treat the witness Young's evidence as being of such suffi ciency as to enable it to be used to displace the prima facie presumption that the blood alcohol reading was .07 per cent; that is to say, capable of so displacing the presumption in the sense that it was capable of raising a reasonable doubt as to whether or not the Crown had established an essential element in the case.

... Notwithstanding the criticisms made of the witness Young's evidence, essentially it is to the effect that a breathalyser machine of the same type used to test the breath of the defendant is one which is capable of making errors in the sense of providing an under- or over-reading and that an over -reading could possibly occur at a recorded level of .07 per cent to the extent that the actual blood alcohol content was no more than .05 per cent.

51

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAWhilst the hypothesis created might be thought to rest upon relatively tenuous grounds, it is, I think, not possible to say that the hypothesis was not a reasonable one for the Magistrate to conclude had been established and that, accordingly, it was open to him to reach the conclusion that he was not satisfi ed beyond reasonable doubt that the information had been established and that, accordingly, it should be dismissed. ..."

Per Crockett J in Francis v Stevens [1983] VicRp 21; [1983] 1 VR 260; MC 25/1982, 17 February 1982.

40. Evidence adduced to question accuracy of breathalyzers generally – whether such evidence admissible – whether statutory presumption of accuracy of breathalyzers created.

HELD by the Court: The effect of s80F(1) of the Motor Car Act 1958 is that evidence of a breathalyzer reading is admissible and is evidence of the percentage of alcohol present in the blood of the person concerned at the time of the analysis. Section 80F(1) does not say in general terms that breathalyzers must be taken to provide accurate readings of the percentage of blood alcohol. Accordingly, it is open to a defendant to elicit evidence that breathalyzers in general do not always show accurately the percentage of alcohol in the blood.

Brooking J (with whom Murphy and Nicholson JJ agreed):" ... [F]or present purposes, all that s80F(1) says in terms is that evidence of the breathalyzer reading shall be admissible and shall be evidence of the percentage of alcohol present in the blood of the person concerned at the time of the analysis. It does not say in terms that breathalyzers must in general be taken to provide accurate readings of the percentage of blood alcohol and that the accuracy of the reading as a measure of that percentage may not be challenged by evidence which does not accept this general rule. Nor is this to be derived from the sub-section as a matter of necessary implication.

... For the reasons given, I am of opinion that the evidence of Mr Fabb was admissible, in that it was relevant as bearing on the question whether the breathalyzer reading relied on by the informant accurately stated the percentage of alcohol present in the respondent's blood at the time of the analysis.

There is much to be said for the robust view that the evidence of Mr Fabb that there was a slight possibility of the breathalyzer's giving a reading up to .021 too high during the elimination phase was not evidence on which the Stipendiary Magistrate could act, having regard to the evidence of the witness as a whole, including his failure to give the explanation sought in cross-examination as to how this possibility could arise. But the Solicitor-General declined to argue this question, although it was covered by the grounds of the order nisi, and since the only point taken in argument fails the order nisi must be discharged. ..."

Per Brooking J (with whom Murphy and Nicholson JJ agreed) in Lamb v Morrow [1986] VicRp 61; [1986] VR 623; [1986] 3 MVR 175; MC 01/1986, 20 February 1986.

41. Breath test – schedule 7 certifi cate admitted into evidence – evidence of quantity of alcohol consumed and expert evidence led in reply – accepted by Magistrate – whether prima facie evidence countered.

F. was intercepted whilst driving his motor car, breathalysed within 2 hours thereof, and his blood/alcohol reading was .110%. At the subsequent hearing the copy Schedule 7 Certifi cate was tendered in evidence and F. then led evidence as to the precise amount of alcohol he had consumed prior to driving. Expert evidence was called by F. to the effect that F.'s blood/ alcohol concentration at the time of the test would not have exceeded .06% and that the breathalyser instrument may be inaccurate. Before convicting F., the Magistrate stated that he accepted the evidence as to the quantity of alcohol consumed by F. and also the opinion expressed by the expert. Nevertheless, the Magistrate sentenced F. on the basis that his blood/alcohol percentage was .110. On order nisi to review—

HELD: Order absolute. Remitted for sentence on the basis of the fi nding that the blood/alcohol percentage at the time of the commission of the offence was between .05 and .10.(1) Section 80G of the Motor Car Act 1958 does not establish a person's blood/alcohol concentration at the time of the test; this must be established by evidence such as a copy Schedule 7 Certifi cate. As such copy certifi cate is only prima facie evidence of the facts and matters stated therein, it may be countered by any evidence which throws doubt on its accuracy or reliability. Reeves v McWilliams [1985] VicSC 475; [1986] VicRp 31; [1986] VR 321; (1985) 3 MVR 81; MC 40/1985, applied.

(2) Bearing in mind that the Magistrate accepted that the amount of alcohol consumed by the defendant could give a maximum reading of .06%, and that Breathalyser instruments can be inaccurate in their readings, he ought to have entertained a reasonable doubt whether the prima facie evidence established beyond reasonable doubt that the defendant's blood/alcohol percentage was in fact .110 at the time of the test.

52

DRINK/DRIVING in VICTORIAMurphy J:

" ... the learned Magistrate stated (more than once) that he accepted the evidence led from the defendant and his witnesses as to the amount of alcohol which the defendant had had to drink that night and also the evidence of the expert witness Mr Russell that, "consumption of that nature would give rise to a blood/alcohol content not in excess of .06".

... the leading of the relevant evidence satisfi ed the evidentiary onus that rested upon the defendant to displace the prima facie evidence of the certifi cate. In these circumstances, it would have not been established that at the time of the test the defendant's blood/alcohol was as the reading stated in the Seventh Schedule Certifi cate.

... If there is oral evidence led on this issue by the defendant then its weight of course must be assessed bearing in mind that the Seventh Schedule Certifi cate tendered by the informant is prima facie evidence only of the facts and matters stated therein, and also that in the absence of evidence to the contrary the statutory presumption of s80G would operate, if once it is seen that the certifi cate alone established that a certain percentage of alcohol was present in the blood of the defendant at the time that the test was performed.

... The essence then of the issue raised in the present case is whether the prima facie evidentiary effect of the certifi cate could suffi ce to enable the Magistrate to fi nd that it was "established" beyond reasonable doubt that the defendant had in fact a blood/alcohol percentage of .110 at the time of the Breathalyser test, bearing in mind that the Magistrate "accepted" the evidence of the defendant and his witnesses as to the amount of alcohol he had consumed, and also that he "accepted" the evidence of the expert as to the maximum blood alcohol percentage that could result from the consumption, and also his evidence as to inaccuracies inherent in Breathalyser readings.

... Reading what appears in the affi davit material fi led before me, it appears to me that once the Magistrate accepted as a fact that Breathalyser machines can be, and often are, inaccurate in their readings, and that the amount of alcohol in fact consumed by the defendant could give only a maximum reading of .06, and that that amount was an amount of alcohol that he accepted, then he must have entertained a reasonable doubt whether the reading provided by the Breathalyser test as evidenced by the Seventh Schedule Certifi cate "established" beyond reasonable doubt that the defendant's blood/alcohol percentage was in fact .110 at the time of the test.

At the same time all of the evidence was consistent with the view that the defendant's blood/alcohol percentage exceeded .05 at the time of the test, and the statutory presumption (s80G) would apply. The defendant ought to have been given the benefi t of the doubt as to the actual percentage by which his blood/alcohol exceeded .05. ..."

Per Murphy J in Fitzgerald v Browning [1986] VicRp 50; [1986] VR 493; (1985) 3 MVR 222; [1985] VicSC 613; MC 03/1986, 29 November 1985.

42. Refusal to take breath test – request to furnish sample made in police station – muster room – whether "grounds or precincts of a police station" – whether particular privacy to be afforded.

Section 80F(10) of the Motor Car Act ('Act') 1958 provides:"Where a sample of breath is required to be furnished within the grounds or precincts of a police station the person operating the breath analysing instrument shall do so in circumstances affording the greatest practicable privacy."

HELD: Having regard to the context of s80F(10) and its legislative history, a distinction is to be drawn concerning requests made to furnish a sample of breath of analysis between those made at or in police station premises and those made in the grounds or precincts of a police station. Accordingly, the provisions of s80F(10) of the Act concerning privacy do not apply where a request is made in a muster room at a police station.

Tadgell J:" ... Reduced, then, to its simplest form, the question appears to be whether the muster room of the Russell Street Police Station is "within the grounds or precincts" of that police station within the meaning of the sub-section.

... As I say, the legislation itself would lead me to the conclusion that what is now sub-section (10) was intended to apply in cases where a breath sample was required to be furnished otherwise than at a place at which it might have been required to be furnished before the amendment effected by Act 7782. Privacy, by way of what is described in the speech of the minister as a further safeguard, was intended to be provided in cases where the sample was not required to be furnished at or in a police station, but within the grounds or precincts of a police station. No privacy of a particular kind is guaranteed where the sample is required to be furnished at or in the vicinity of the place where the

53

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAdriving or being in charge of a motor car occurred, and no particular privacy, other than that which might be afforded within the building itself, is afforded when the sample is required to be furnished at a police station, as was the case here. For the reasons given I am of the opinion that the Stipendiary Magistrate was in error to have concluded that sub-section (10) of section 80F was applicable. ..."

Per Tadgell J in Bolton v Glover [1986] VicSC 351; [1986] 4 MVR 463; MC 43/1986, 27 August 1986.

43. Blood sample taken by medical practitioner – sample given to police offi cer – sample conveyed for analysis – at hearing certifi cates tendered to prove compliance with regulations – submission that no evidence to show that sample was not tampered with – presumptions of regularity and continuance – charge dismissed – Magistrate in error.

HELD: Order absolute. Dismissal set aside. Remitted to the Magistrates' Court for hearing and determination in accordance with the law.1. The presumption of regularity should apply to justify the inference that the doctor who took the sample and gave that certifi cate was a doctor answering the description in sub-section (i) of s80DA which authorised the taking of a blood sample, as otherwise an unlawful assault would have been committed by the doctor on the defendant and it is to be presumed that that was not the case.

2. There were two presumptions of fact which ought to come into operation in relation to this matter. One was a presumption of continuance, that is to say, that it ought to be presumed as a matter of fact that during this short time between the Friday evening and the Monday, the blood in the container preserved its identity, that is to say that it continued to be the same blood as was in the container on the Friday night. The same presumption operated to justify an inference that the condition of that blood did not change of itself during that time. In addition, there was a presumption of regularity in relation to the custody of the sample; or to put it perhaps in a way which was more pertinent for present purposes, there was a presumption against irregularity with respect to the custody of the sample – a presumption against the occurrence of any fraud against the law.

3. When these two presumptions were put together, the effect was that there was evidence that the blood in the container on Friday was the same blood and in the same condition as the blood in the container on the Monday, and that no person had wrongly interfered with the blood itself or with its condition. These presumptions were such as ought to be used for the purpose of proceedings of this kind where they were properly applicable.

4. Accordingly, the Magistrate was in error in dismissing the information.

Gowans J:"... The point that arose in this case was as to whether there was evidence that a certain sample of blood which was analysed was a sample of blood taken from the defendant.

... In my view the presumption of regularity should apply to justify the inference that the doctor who took the sample and gave that certifi cate was a doctor answering the description in sub-section (i) of s80DA which authorised the taking of a blood sample, as otherwise an unlawful assault would have been committed by the doctor on the defendant and it is to be presumed that that was not the case.

... The next evidence as to what occurred in relation to the sample analysed comes from the analyst's certifi cate. In that certifi cate he said that he had received a sample bearing the same identifying markings, on 13th May, 1974 and he described himself as being of the Forensic Science Laboratory, 193 Spring Street, Melbourne, and an approved analyst.

It was that sample of blood which he analysed on 30th May and which produced the results which are set out in his certifi cate. That certifi cate was prima facie evidence of what it contained and was, therefore, prima facie evidence of the fact that on 13th May – that is the Monday after the accident, the accident having occurred on Friday – a container bearing the identifying marks described had been received by the analyst. On the presumption of regularity it may be assumed that as between 13th May and 30th May the sample in the custody of the analyst was preserved with due regularity.

... The matter that raises the diffi culty is as to the absence of any direct evidence as to what happened to the container between Friday, May 10th and Monday, May 13th. The suggestion which appealed to the Magistrate was as to the possibility of the contents of the container being tampered with in some way.

But in my opinion there are two presumptions which ought to come into operation in relation to this matter. They are both presumptions of fact. One is a presumption of continuance, that is to say, that it ought to be presumed as a matter of fact that during this short time between the Friday evening and the Monday, the blood in the container preserved its identity, that is to say that it continued to

54

DRINK/DRIVING in VICTORIAbe the same blood as was in the container on the Friday night. The same presumption operates to justify an inference that the condition of that blood did not change of itself during that time.

In addition, there is a presumption of regularity in relation to the custody of the sample; or to put it perhaps in a way which is more pertinent for present purposes, there is a presumption against irregularity with respect to the custody of the sample – a presumption against the occurrence of any fraud against the law.

When these two presumptions are put together, I think the effect is that there was evidence that the blood in the container on Friday was the same blood and in the same condition as the blood in the container on the Monday, and that no person had wrongly interfered with the blood itself or with its condition. These presumptions are such as ought to be used for the purpose of proceedings of this kind where they are properly applicable. ..."

Per Gowans J in Collins v Mithen [1975] VicSC 229; MC 12/1975, 21 May 1975.

44. Reading 0.163%BAC – defendant submitted that it was not proved that unauthorised tampering with the blood sample did not occur between collection of the sample and receipt by the analyst – whether court entitled to rely on presumptions of regularity or continuance – whether Court required to be satisfi ed that sample of blood placed in a locked receptacle – charge found proved – Court not in error.

The Informant went to the scene of a 2-car collision at 7:20pm, one of the cars being owned by the defendant. He then went to Austin Hospital where the defendant admitted he had been driving his car when the accident occurred. The defendant was later charged with an offence of driving a motor vehicle whilst his blood/alcohol concentration exceeded .05%. He was convicted. Upon appeal—

HELD: Order nisi discharged.1. There was no necessity for the Court to be satisfi ed beyond reasonable doubt that a sample of blood taken from the defendant by a doctor was placed in a locked receptacle in the hospital as required by Reg. 223B of the Motor Car Act (Blood Samples) Regulations of 1977.

2. In order to reach the conclusion they did, the Court was entitled to rely upon presumptions of regularity or continuance, there being no evidence before them to show there was any interference with the sample between 16th April (when the collision occurred) and 30th May (when it was received by the analyst). Presumptions of fact of this kind were relied upon by Gowans J in Collins v Mithen [1975] VicSC 229 and by Lush J in Mallock v Tabak [1976] VicSC 503; [1977] VicRp 7; (1977) VR 78 at 83.

O'Bryan J:" ... No challenge was made before me, or in the court below, to the admissibility of the certifi cates. Consequently, all of the facts and matters contained in the certifi cates were proved in the absence of any rebutting evidence. The court was obliged, in my opinion, to regard those certifi cates as if the persons who prepared them had been called to court to swear under oath to all the facts and matters stated therein. Accordingly, in the absence of evidence which raised any serious issue of doubt about any of the facts and matters stated in the certifi cates it would have been the duty of the court to act upon that evidence.

... Therefore, there was no necessity for the Justices to be satisfi ed beyond reasonable doubt that a sample of blood taken from the defendant by a doctor was placed in a locked receptacle in the hospital as required by Reg. 223B of the Motor Car Act (Blood Samples) Regulations of 1977.

In order to reach the conclusion they did, the Justices were entitled to rely upon presumptions of regularity or continuance, there being no evidence before them to show there was any interference with the sample between 16th April and 30th May.

... The evidence did not raise any issue as to the integrity of the blood sample analysed by Brown. The informant was not called upon to prove a negative, namely, that no tampering with the sample occurred, after the Doctor placed it in the labelled containers, and before it was analysed. ...

Per O'Bryan J in Huntington v Jupp [1978] VicSC 217; MC 24/1978, 19 May 1978.

45. Blood sample taken from driver – later analysed – found to exceed limit – certifi cate stated that the medical practitioner complied with the regulations relating to the collection of such sample – statement by medical practitioner that such sample was placed in two containers – requirement of regulation that the sample should be divided into three parts – effect of certifi cate – non-compliance with regulations – charge dismissed by Magistrate – Magistrate in error.

The defendant was injured in an accident and taken to hospital where a compulsory blood sample was taken. He

55

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAwas charged with exceeding .05 and driving under the infl uence of intoxicating liquor. The certifi cate of the doctor as to the taking of the blood sample was as follows:–

"Sixth Schedule Motor Car Act 1958. No. 1555. Certifi cate of Medical Practitioner of the taking of blood sample."I, Marjorie Cross of Central Gippsland Hospital, a legally qualifi ed medical practitioner hereby certify that I collected a sample of the blood of Joseph Krizman, 111 Holmes Road, Morwell, at 4.10 p.m. on 20.7.74, and that all the regulations relating to the collection of such sample were complied with and that such sample was placed in two containers labelled 'Joseph Krizman, 20.7.74 4.10 p.m. Marjorie Cross.' Signature Marjorie Cross.Qualifi cations, M.B.B.S. date 20.7.74"

The Magistrate dismissed the charge. Upon order nisi to review—

HELD: Order absolute. Dismissal set aside. Remitted to the Magistrate for hearing and determination in accordance with the law.1. The meaning of the word 'collection' where used in Schedule Six was wide enough and apt enough to cover more than the taking of the blood and to include the dividing of the blood into parts and its containerising.

2. Once it was accepted that the certifi cate provided prima facie proof of the statement that 'all the regulations relating to the collection of such sample were complied with' and that that included compliance with Clause 223, and once it was apprehended that the force of the added statement 'and that such sample was placed in two containers and labelled ... ' was to provide evidence of identity, it was open to take the view that the word 'sample' in this latter statement referred not to the whole sample but to so much of it as was placed in the labelled containers, it still not losing its character as 'the sample'.

3. In relation to the submission that a person who had a blood sample taken when he was in hospital and may not have been in a condition of awareness was entitled to have strict compliance with the regulations, that consideration could not make the observance of the regulations obligatory and a condition precedent to the receipt of evidence if the legislature had not thought fi t to give those matters that effect.

4. A failure to divide the blood taken into three parts and to retain one in some unspecifi ed manner and dispose of it in some unspecifi ed manner, and the division instead into two parts (if that took place) could not in any way go to the weight of the evidence.

Gowans J:" ... So taking all these things into consideration, in my view, the meaning of the word 'collection' where used in Schedule six is wide enough and apt enough to cover more than the taking of the blood and to include the dividing of the blood into parts and its containerizing.

... Once it is accepted that the certifi cate provided prima facie proof of the statement that 'all the regulations relating to the collection of such sample were complied with' and that that included compliance with Clause 223, and once it is apprehended that the force of the added statement 'and that such sample was placed in two containers and labelled ... ' is to provide evidence of identity, it is, I think, open to take the view that the word 'sample' in this latter statement refers not to the whole sample but to so much of it as is placed in the labelled containers, it still not losing its character as 'the sample'. That construction requires some straining, but it is, I think, a permissible view, and I think it ought to be adopted rather than take the statement provided for in the statutory form as denying for force of what preceded it in the statutory form.

... I have not been given any reason justifying a change of mind as to this. It has been submitted that a person who has a blood sample taken when he is in hospital and may not be in a condition of awareness is entitled to have strict compliance with the regulations. But that consideration cannot make the observance of the regulations obligatory and a condition precedent to the receipt of evidence if the legislature has not thought fi t to give those matters that effect. That is a matter for the legislature.

Nor can I see that the failure to divide the blood taken into three parts and to retain one in some unspecifi ed manner and dispose of it in some unspecifi ed manner, and the division instead into two parts (if that took place) could in any way go to the weight of the evidence. ...

Per Gowans J in Pavlovic v Krizman [1975] VicSC 259; MC 13/1975, 29 May 1975.

46. Driver involved in motor vehicle accident – admitted to hospital – blood sample taken – reading of 0.225%BAC – sample taken two hours fi ve minutes after accident – whether certifi cates admissible – presumption of regularity – presumption of continuance – effect of post-driving consumption of alcohol – charge found proved – Magistrate not in error.

56

DRINK/DRIVING in VICTORIAThe applicant was convicted by a Magistrates' Court for driving whilst his blood/alcohol exceeded .05%. He had been admitted to hospital following a motor vehicle accident, where a blood sample was taken. At the hearing the certifi cate of analysis was tendered in evidence and showed a reading of 0.225%. The Magistrate, in fi nding the charge proved, found that the applicant had consumed "no less than one bottle of beer" between the time of driving and the taking of the blood sample. On review it was submitted that sub sections (3) and (4) of s80D of the Motor Car Act should be read down, so that certifi cates under Schedule 6 (taking a blood sample) and Schedule 8 (certifi cate of analysis) were inadmissible when such sample was not taken within 2 hours after the alleged offence. Upon appeal—

HELD: Appeal dismissed.1. Sub-s(3) and (4) of s80D of the Motor Car Act 1958 ('Act') are to be read according to their ordinary plain, natural meaning and are not to be read down in the manner contended for on behalf of the applicant defendant. On ordinary principles of statutory construction the words of sub-section (3) and (4) should be given their ordinary, plain, natural meaning unless there is some compelling reason which produces a contrary conclusion.

2. The reference to a sample within two hours in sub-section (1) of s80D of the Act and those words having an understandable signifi cance of their own, they do not justify reading down the provisions of sub sections (3) and (4) so as to confi ne the operation of those sub-sections to samples of blood taken within two hours of the relevant driving. Accordingly, the submission for the defendant, that, by reason of the provisions of the legislation the certifi cates in the terms of Schedule 6 and schedule 8 were inadmissible was not accepted.

3. The presumption of regularity is not confi ned to conclusions about holding of public offi ce or the performance of public duties, although the duty imposed on a doctor under s80DA(1) of the Act is a public duty imposed on him by Statute and a duty which obliges him to do something which would otherwise, without consent, constitute an unlawful assault. The presumption of regularity leads to the conclusion prima facie that the sample was regularly and lawfully taken, that the doctor who took the sample and gave the certifi cate should be presumed not to have acted unlawfully and should be presumed to have acted in pursuance to his statutory obligation. Collins v Mithen [1975] VicSC 229, Gowans J, VSC, 21 May 1975; and Mallock v Tabak [1976] VicSC 503; [1977] VicRp 7; (1977) VR 78, followed.

4. The presumption of continuance, and the extent to which the blood alcohol content exceeded .05 per centum fi ve minutes after the two hour period, led to the conclusion that it was reasonably open to the Magistrate to conclude that at the time of the driving the blood alcohol content of the driver exceeded .05 per cent.

5. In the present case, the relevant facts were that fi ve minutes after the two hours referred to in s80G the blood alcohol content of the defendant – the applicant – was .225 per cent, that is four and a half times the permissible limit. Having regard to the presumptions to be found in the legislation, having regard to the fact that the blood alcohol content only fi ve minutes after the two hour period was four and a half times the permissible limit, it was clearly open to the magistrate to conclude that at the time of the driving the blood alcohol content of the defendant exceeded .05 per cent. Smith v Maddison [1967] VicRp 34; (1967) VR 307, and Heywood v Robinson [1975] VicRp 55; (1975) VR 562, followed.

6. Bearing in mind that the evidence established that no more than fi ve minutes after the two-hour period the blood alcohol content of the defendant was four-and-a-half times the permissible limit, more than proof of the consumption of some alcohol after the accident was necessary to lead to the conclusion that the difference between .05 per cent and .225 per cent was brought about by the alcohol consumed by the defendant. On the evidence in this case it was open to the Magistrate to conclude that the excess above the permissible limit of .05 two hours and fi ve minutes after the driving was such that more than evidence of consumption of some alcohol was necessary to establish that the consumption of that alcohol produced the difference at the relevant time. In other words, for the defendant to avail himself of this evidence in the circumstances of this case he would need to show not merely that he consumed some alcohol but that that alcohol at least as a matter of probabilities explained the difference between the permissible limit and the blood alcohol content at the time when the sample was taken. Accordingly, that evidence which the Magistrate accepted was not inconsistent with his fi nding and it was reasonably open to him to fi nd, as he did, that the offence had been proved.

Menhennitt J:" ... The Magistrate by implication accepted the evidence of the accused that the accident happened between 7pm & 7.15pm; the prime signifi cance of that fi nding is that the accident did not happen any earlier than 7pm. The consequence of those fi ndings, in my view, is that this case must be approached on the basis that the accident happened at 7pm, and that the blood analysis took place at 9.05pm. – that is two hours and fi ve minutes after the accident.

57

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIA... Giving sub-s(3) (of section 80D) its plain, ordinary natural meaning, that certifi cate is prima facie proof of the facts and matters therein contained, whether or not the sample was taken more or less than two hours after the alleged offence of driving.

... My conclusion is that sub-s(3) and (4) of s80D are to be read according to their ordinary plain, natural meaning and are not to be read down in the manner contended for on behalf of the applicant defendant. On ordinary principles of statutory construction the words of sub section (3) and (4) should be given their ordinary, plain, natural meaning unless there is some compelling reason which produces a contrary conclusion.

... The reasons I have stated explain, in my view, the reference to a sample within two hours in sub-section (1) of s80D of the Act and those words having an understandable signifi cance of their own, they do not justify in my view reading down the provisions of sub-sections (3) and (4) so as to confi ne the operation of those sub-sections to samples of blood taken within two hours of the relevant driving.

For all of those reasons I do not accept the submission for the applicant, the defendant, that, by reason of the provisions of the legislation the certifi cates in the terms of Schedule 6 and schedule 8 were inadmissible.

... In my view the presumption of regularity is not confi ned to conclusions about holding of public offi ce or the performance of public duties, although, in my view, the duty imposed on a doctor under s80DA(1) of the Motor Car Act is a public duty imposed on him by Statute and a duty which obliges him to do something which would otherwise, without consent, constitute, as I have said, an unlawful assault. Lush J in Mallock v Tabak referred to Dillon v Gange at p84 of 1977 Victorian Reports. I reiterate that having had the matter fully re-argued I am of the view that the decision of Gowans J and Lush J, to which I have referred, were correct, and I conclude that the presumption of regularity leads to the conclusion that in this case the certifi cate was given by Dr David Ho as he was immediately responsible for the examination or treatment of the defendant because unless that were the fact, the sample would not have been regularly taken and he would have acted unlawfully, and in my view it should be presumed, on the contrary, that he acted lawfully.

... Applying those principles to the facts of the present case, the relevant facts are that fi ve minutes after the two hours referred to in s80G the blood alcohol content of the defendant – the applicant – was .225 per cent, that is four and a half times the permissible limit. Having regard to the presumptions to which I have referred to be found in the legislation, having regard to the fact that the blood alcohol content only fi ve minutes after the two hour period was four and a half times the permissible limit, in my view it was clearly open to the magistrate to conclude that at the time of the driving the blood alcohol content of the defendant exceeded .05 per cent subject to one other matter which was raised to which I shall refer.

... [I]n my view for the defendant to avail himself of this evidence in the circumstances of this case he would need to show not merely that he consumed some alcohol but that that alcohol at least as a matter of probabilities explained the difference between the permissible limit and the blood alcohol content at the time when the sample was taken. Accordingly, in my view that evidence which the Magistrate accepted was not inconsistent with his fi nding and it was reasonably open to him to fi nd, as he did, that the offence had been proved."

Per Menhennitt J in Wright v Bastin (No 2) [1979] VicRp 35; [1979] VR 329; MC 14/1979, 19 December 1978.

47. Blood sample taken from defendant driver – sample taken more than two hours after the driving – whether certifi cates admissible in evidence – whether statutory provision creates a code about proof of offence – whether certifi cates can be used where viva voce evidence admissible.

HELD: 1. When regard is had to the history of s80D of the Motor Car Act 1958 ('Act') it is clear that its original purpose was not to create a code whereby a person's blood alcohol content might be proved by the production of certifi cates but to provide a method of proving or facilitating proof that a person was or was not under the infl uence of intoxicating liquor.

2. The giving of evidence of the taking of a sample of blood and the analysis of that sample does not depend on s80D(1) or (2) of the Act in either its original or its amended form. Such evidence is admissible without the authority of statute. What sub-s(1) authorises is the giving of evidence of analysis in terms of a percentage, without further exposition of the signifi cance of the percentage. What sub-s(2) does is to give probative force to evidence so expressed without any such exposition. Neither sub-section diminishes the position under the rules of common law, which permits such evidence to be given provided its relevance to the issues of a case is demonstrated by expert evidence.

58

DRINK/DRIVING in VICTORIA3. There is no reason for restricting the general words of the three sub-sections dealing with the certifi cates. From a reading of sub-ss(5) to (9) there can be inferred a general policy that a certifi cate can be used in any circumstances where viva voce evidence would be admissible. They are, therefore, inconsistent with any construction producing a result that in some cases viva voce evidence would be admissible but a certifi cate would not.

The Court (Young CJ, Lush and Beach JJ):" ... Upon an examination of the history and upon an examination of the words of s80D." [The Court went on further to approve the reasoning and the decision of Menhennitt J in Wright v Bastin [1978] VicRp 57; [1978] VR 609; MC 14/1979) with the qualifi cation "We express no opinion on a further point made by His Honour, that sub-s(2) prevented the discretionary exclusion to which it referred."] [It concluded: "These considerations reveal that there is no reason for restricting the general words of the three sub-sections dealing with the certifi cates. We would add that, in our opinion, from a reading of sub-ss(5) to (9) there can be inferred a general policy that a certifi cate can be used in any circumstances where viva voce evidence would be admissible. They are, therefore, inconsistent with any construction producing a result that in some cases viva voce evidence would be admissible but a certifi cate would not."]

Per the Court in R v Cheer [1979] VicRp 53; [1979] VR 541; MC 40/1979, 1 June 1979.

48. Compliance with Motor Car Regulations for handling of blood sample – whether necessary for informant to prove compliance with the regulations – charge dismissed by Magistrate – Magistrate in error.

In this review the taking of a blood sample was used to prove the alcohol content. The defendant was conveyed to hospital and pursuant to s80 of Motor Car Act a medical practitioner took a blood sample for analysis. The Sixth Schedule Certifi cate was put into evidence. The informant's affi davit stated that he was present and saw the doctor take the blood sample, divide it into three bottles, one sample on being handed to him, he conveyed it to the Forensic Science Laboratory. According to the answering affi davit by the defendant's solicitor, the informant said he was handed two bottles containing samples and took both to the Laboratory.

However, at the conclusion of the informant's case, a submission was made that there was no evidence of compliance with the provisions of the Motor Car Regulations relating to handing of blood samples by the medical practitioner to a "prescribed safekeeper" and to their safekeeping thereafter, that since such provisions were mandatory the information should be dismissed. The Magistrate stated he accepted the Sixth Schedule Certifi cate but could not be satisfi ed beyond reasonable doubt that the doctor and the hospital complied with the regulations and therefore dismissed the information. Upon Order Nisi to review—

HELD: Order nisi absolute. Dismissal set aside. Remitted to the Magistrate to be re-heard in accordance with the judgment.1. It has been decided in several cases in the Supreme Court that where an informant relies upon the provisions of s80D(1) or s80F(1) of the Motor Car Act 1958, in order to prove the percentage of alcohol present in the blood of a person charged with an offence to which these sub-sections refer, it is not necessary for the informant to prove compliance with the regulations as to the taking of a sample of blood or the use of a breath analysing instrument as the case may be. Hindson v Monahan [1969] VicSC 180; [1970] VicRp 12; (1970) VR 84; Wylie v Nicholson [1973] VicRp 58; (1973) VR 596; Lloyd v Thorburn [1973] VicSC 104; [1974] VicRp 2; (1974) VR 12; and Pavlovic v Krizman [1975] VicSC 259, Gowans J, 29 May 1975, followed.

2. There was nothing in the provisions of the Motor Car Act relating to regulations made thereunder which warranted the view that the content of a particular regulation may determine whether or not it has a different effect from that of any other regulation on the operation of the substantive provisions of the Act. Accordingly, the Court was not prepared to say that those decisions were wrong. They covered the question raised in this case and it was proposed to follow them.

3. Even if the relevant provisions of regulations 219 and 223H had appeared in the Act itself, so that the decisions referred to were not apposite, the Court would not be satisfi ed that the implication contended for should be made. If such an implication was made, it would be necessary for the informant to prove compliance with the required procedure in every prosecution in which the provisions of s80D were relied upon. The evidentiary provisions in that section would not enable proof to be given by any of the certifi cates for which the provision was made. In view of the obvious intention disclosed in those provisions to dispense with the necessity of calling expert witnesses, unless the defendant exercised his right to have them called, it would be inconceivable that the legislature intended to require the proof of compliance by one of those witnesses with the procedure laid down, but refrained from permitting that proof to be given by the appropriate certifi cate. An implication in a statute will only be made in accordance with a legislative intention found to exist upon a consideration of the stature as a whole.

59

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIA4. It followed that the inability of the magistrate to be satisfi ed at the end of the informant's case that the doctor or the hospital complied with the regulations did not in itself warrant the dismissal of the information. As this was the only reason given by him for his decision, he was clearly in error.

Nelson J:" ... In a case where the prosecution is based upon the analysis of a sample which was in a container received by a member of the Police Force from prescribed safekeeper, proof of the identity of such container with the one labelled by the medical practitioner would clearly be necessary, and the certifi cate provides prima facie evidence of this fact. It also, so far as it may be relevant, provides prima facie proof that the contents were preserved in good condition and that the regulations relating to the safe-keeping and storage of the container and its contents were complied with.

... However, in my opinion, the answer to Mr Phipps' contention is given by the various decisions of this court in which it was held that under the relevant provisions of the Motor Car Act it is not necessary for an informant to prove compliance with the regulations. I can fi nd nothing in the provisions of the Act relating to regulations made thereunder which warrants the view that the content of a particular regulation may determine whether or not it has a different effect from that of any other regulation on the operation of the substantive provisions of the act. I am not prepared, any more than Mr Phipps was prepared, to say that these decisions were wrong. In my opinion, they cover the question raised in this case and I propose to follow them.

... It follows that, in my opinion, the inability of the magistrate to be satisfi ed at the end of the informant's case that the doctor or the hospital complied with the regulations did not in itself warrant the dismissal of the information. As this was the only reason given by him for his decision, he was clearly in error. ...":

Per Nelson J in Waters v Good [1976] VicSC 427; MC 85/1976, 30 August 1976.

49. Admissibility of both the certifi cate of taking of blood sample and safekeeper's certifi cate – one certifi cate mutilated – no evidence to prove doctor was a prescribed person – Court in error in dismissing charge.

Driver injured in car accident – sample of blood taken at hospital by Dr Salmon; handed to Dr Henton for safekeeping. Argued that neither certifi cate was valid: Schedule 6 Certifi cate, because it was mutilated and incomplete because certain printed words were missing; Schedule 6A Certifi cate, because the person prescribed in the rules was the Director of Medical Services and Dr Henton signed as casualty supervisor – that the certifi cate was thus not signed by a person purporting to be a person of the Class prescribed in s80D(3a) (as distinct from s80D(3) and (4) where the words used are "purporting to be signed by a person purporting to be ..."). Charge dismissed by the Justices. Upon Order Nisi to review—

HELD: Order absolute. Order of the Justices quashed. Remitted to the Magistrates' Court to be dealt with in accordance with the law.1. Having regard to the provisions of s80D(3a) of the Motor Car Act 1958 ('Act'), by parity of reasoning it followed that the expression, “A certifi cate purporting to be signed by a person of the class prescribed as being responsible for the safekeeping of samples of blood taken under s80(d)(a)” may be regarded as a composite one. The certifi cate itself must be examined to see whether it does purport to be signed by a person of the class prescribed. If it does it is admissible as prima facie proof of the facts and matters it contains.

2. An examination of the certifi cate in the present case showed clearly that it did so purport. It was headed, “Certifi cate of prescribed person as to safekeeping of blood sample” and its body contained the statement that the person signing it was a person of the class prescribed as being responsible for the safekeeping of samples of blood taken under s80DA of the Act.

3. Accordingly, the Certifi cate of Dr Henton was admissible to prove the facts and matters it contained.

4. In relation to the mutilation of the Certifi cate, the effect of mutilation was one of degree. Mutilation may be to such an extent it cannot fairly be said the document tendered is a document in or to the effect of schedule 6. But in the present case the small amount of mutilation, involving as it did none of the handwritten words and only a small number of printed words was not of such a degree to justify the conclusion that the document tendered was not a certifi cate falling within the provisions of s-s3.

5. Accordingly, the certifi cate proved the taking of a blood sample by Dr Salmon and the manner in which it was labelled suffi cient to link it up with the certifi cate of Dr Henton, the evidence of Constable Vagg and the certifi cate of Mr Brown, the analyst.

Murray J:" ... The certifi cate itself must be examined to see whether it does purport to be signed by a person of the class prescribed. If it does it is admissible as prima facie proof of the facts and matters it contains.

60

DRINK/DRIVING in VICTORIAAn examination of the certifi cate shows clearly that it does so purport. It is headed, “Certifi cate of prescribed person as to safekeeping of blood sample” and its body contains the statement that the person signing it is a person of the class prescribed as being responsible for the safekeeping of samples of blood taken under s80DA of the Motor Car Act.

... I turn now to the second matter, namely, the mutilation of the certifi cate of Dr Salmon. The material discloses that the certifi cate tendered in evidence by the applicant was compared with the copy served upon the respondent and the mutilation of each was identical. It therefore seems likely that the certifi cate and copy were torn out of the book together and that in the process the paper did not tear cleanly along the perforation. A small strip along the left-hand margin, varying in width, presumably remained in the book and was torn off the two documents.

In the result small portions of the printed words of the certifi cate do not appear. The only omission of any signifi cance whatever in my opinion is that the words “relating to” are missing between the words “all the regulations” and “the collection of such sample was complied with” and the words “containers labelled” are missing or obscured between the words “such sample was placed in two” and the respondent’s name. But both sets of words missing relate to compliance with the regulations and, as was conceded in argument by Dr Buchanan, there is nothing in the Act which makes proof of compliance with the regulations a condition precedent.

The question, therefore, in my opinion, amounts to this: is the document a document which purports to be signed by a person who purports to be a legally qualifi ed medical practitioner in or to the effect of schedule 6?

... The effect of mutilation is, obviously, one of degree. Mutilation may be to such an extent it cannot fairly be said the document tendered is a document in or to the effect of schedule 6. But in the present case I am clearly of the view that the small amount of mutilation, involving as it does none of the handwritten words and only a small number of printed words is not of such a degree to justify the conclusion that the document tendered was not a certifi cate falling within the provisions of ss3. See Wesson v Jennings [1971] VicRp 9; [1971] VR 83. I, therefore, am of the opinion that the certifi cate did prove the taking of a blood sample by Dr Salmon and the manner in which it was labelled suffi cient to link it up with the certifi cate of Dr Henton, the evidence of Constable Vagg and the certifi cate of Mr Brown, the analyst. ..."

Per Murray J in Loveday v Coibasic [1977] VicSC 53; MC 16/1977, 25 February 1977.

50. Blood sample taken – when analysed found to show BAC .223% – Driver subsequently charged with driving a motor car with more than .05% BAC – certifi cates of medical practitioner and analyst tendered in evidence – no case submission made upheld by Magistrate on ground that it had not been proved beyond reasonable doubt that regulations complied with – whether compliance with regulations an ingredient of the offence – matters to consider on the making of a no-case submission – Magistrate in error.

HELD: Order nisi absolute. Order dismissing the charge set aside. Remitted for determination according to law.1. The elements of the offence charged are (1) that the respondent was driving the motor car, and (2) that while doing so, the percentage of alcohol in his blood was more than .05 per cent. There was evidence that within two hours of the alleged offence a legally qualifi ed medical practitioner had taken a blood sample from the respondent and placed it in two containers suitably labelled. There was evidence that the blood in one of those containers was analysed by an authorized analyst and found to contain .233 per cent alcohol.

2. It is not a condition of the admissibility of the evidence made admissible by the relevant sections of the Motor Car Act 1958 ('Act') that it be proved that the regulations were complied with. Nor is it an element of the offence that the regulations were complied with. Section 80D of the Act shows that there is nothing in that section nor in any other section of the Act which provides the proof that the regulations relating to the safe-keeping of the samples of blood taken under Section 80DA shall be a condition precedent to conviction of an offence against Section 81A. Woodward v McNab [1978] VicSC 384; MC 57/1978, VSC Murray J, 31 August 1978, followed.

3. Accordingly, the Magistrate was wrong in holding that it was necessary for the Informant to prove to the Court that Regulations 223B, 223D and 223E of the Motor Car (Blood Samples) Regulations 1977 had been strictly complied with.

4. The magistrate was in error in considering the 'no case to answer' submission in applying the standard of whether the elements of the charge had been proved beyond reasonable doubt. The test should be stated in this way: At this stage and for this purpose the question is not, are the facts proved by the prosecution capable of any reasonable construction consistent with innocence? but this, do they establish a balance of probability in favour of the inference which the prosecution seeks to draw? R v Chee [1980] VicRp 32; [1980] VR 303, applied.

61

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAMcGarvie J:

" ... I consider to be correct the submission that the medical practitioner's certifi cate was evidence only of compliance with those regulations applying to the process of the collection of the sample. That was decided by O’Bryan J in Huntington v Jupp [1978] VicSC 217 (unreported) 19th May 1978 and with respect I agree. It follows that the certifi cate was no evidence of compliance with regulations 223B to 223H which prescribe the procedure to be followed after the blood sample has been collected.

... It is important to bear in mind that the elements of the offence charged are (1) that the respondent was driving the motor car, and (2) that while doing so, the percentage of alcohol in his blood was more than .05 per cent. There was evidence that within two hours of the alleged offence a legally qualifi ed medical practitioner had taken a blood sample from the respondent and placed it in two containers suitably labelled. There was evidence that the blood in one of those containers was analysed by an authorized analyst and found to contain .233 per cent alcohol.

... It is not a condition of the admissibility of the evidence made admissible by the sections of the Act to which I have referred that it be proved that the regulations were complied with. Nor is it an element of the offence that the regulations were complied with.

... Although it is not necessary to go further, I mention that it is recognised in the decisions to which I have referred or which are mentioned by Murray J in the passages I have quoted, that even if it were necessary to show compliance with the regulations, the presumption of regularity raises a presumption that they have been complied with. Similarly, those cases have referred to the presumption of continuance, from which the presumption arises that the sample analysed had not deteriorated from the time when it we taken.

... It is therefore not correct in considering a submission that there is 'no case to answer' to apply the standard of whether the elements of the charge have been established beyond reasonable doubt. ... the test would be stated in this way:

"At this stage and for this purpose the question is not, are the facts proved by the prosecution capable of any reasonable construction consistent with innocence? but this, do they establish a balance of probability in favour of the inference which the prosecution seeks to draw?" ...

Per McGarvie J in Penhallariack v Knight [1979] VicSC 289; MC 41/1979, 26 June 1979.

51. BAC 0.169% – Driver injured in motor car accident – sample of blood taken by legally qualifi ed medical practitioner – no evidence that sample taken at hospital – presumption of regularity – certifi cate indicated that driver's fi rst name was spelt differently on certifi cates – different name given to constable – number in the addresses different – charge found proved – Magistrate not in error.

Evidence established that the defendant had been in an accident, received some injuries and the constable who attended the scene, appears to have sent the defendant off in an ambulance, presuming that the ambulance would reach the (Country) District Hospital from whence it had come. Certifi cate produced showed a reading of 0.169. Certifi cate of legally qualifi ed medical practitioner in the form of Schedule 6 certifi ed that a blood sample had been taken. No express reference to the defendant's express consent. Variation of the spelling of defendant's fi rst name: GEOFFREY cf JEFFREY. Defendant's address different: 21 Perkins Street cf 18 Perkins Street. Defendant was convicted. Upon appeal—

HELD: Appeal dismissed.1. The magistrate was entitled to apply the presumption of regularity and to draw the conclusion that the certifi cate which was before it, that the doctor collected the blood, did so in the performance of the functions of a legally qualifi ed medical practitioner, acting pursuant to Section 80DA of the Motor Car Act 1958.

2. The difference in the spelling of the defendant's fi rst name and the infelicity of the address being different was not suffi cient to say that the magistrate was in error in drawing the inferences which he did. Collins v Mithen [1975] VicSC 229, Vic Sup Ct, Gowans J, 21 May 1975); and Mallock v Tabak [1976] VicSC 503; [1977] VicRp 7; (1977) VR 78; and Wright v Bastin No 2 [1979] VicRp 35; (1979) VR 329 followed.

Anderson J:" ... The submission was made there that it could not be assumed that the sample of blood was taken pursuant to s80DA by reason of the fact that the words with his express consent had not been written into the form. His Honour Gowans J in Collins v Mithen [1975] VicSC 229 (1975) said this as to that argument:

"In my view, the presumption of regularity should apply to justify the inference that the doctor who took the sample and gave that certifi cate was a doctor answering the description of subsection (1) of s80DA which authorised the taking of a blood sample as otherwise an unlawful assault

62

DRINK/DRIVING in VICTORIAwould have been committed by the doctor on the defendant and it is to be presumed that that was not the case."

... Consequently I am of the view that the Magistrate was entitled to draw the conclusion from the certifi cate which was before him, that the doctor, Dr Kirkwood, who collected the blood sample at 11:05 on the evening of 17 April 1980, did so in the performance of the functions of a legally qualifi ed medical practitioner acting pursuant to s80DA. There is certainly nothing in the evidence that was before the Magistrate to suggest that the case was other than that; ...

There is a second ground and that is ... that the defendant's name in this case was given by him to the police who visited the scene, as Geoffrey Lancelot Smith and his address was given as 21 Perkins Street, Alexandra, where the certifi cate is to a Jeffrey Smith of 18 Perkins Street, Alexandra. Now the name given by the defendant to the policeman, the Christian name of Geoffrey, was spelt G.E.O.F.F.R.E.Y. and the certifi cate given by the doctor shows the Christian name as being spelt as J.E.F.F.R.E.Y., Jeffrey Smith. The Smith at all events is the same in both cases, they are not spelt differently.

The point however that was taken was that the addresses of the two men, G.E.O.F.F.R.E.Y. being 21 Perkins Street and J.E.F.F.R.E.Y. being shown on the certifi cate by the doctor as 18 Perkins Street. Now I suppose a Magistrate sitting at Benalla could take judicial notice of the fact that it is a country town. ... The circumstance that Geoffrey is spelt one way to the Constable, and the doctor writes it down with another spelling is not, I think, a matter which would disentitle the Magistrate to say that the certifi cate in the circumstances of the case could relate to the one man, and a proper inference would be that they did so relate, and the infelicity of the address being different, 18 Perkins Street and the other one 21 Perkins Street, I do not think in the circumstances was suffi cient for me to say that the Magistrate was in error in drawing the inferences which he did, namely that the certifi cate given by the doctor of what he did at 11:05 p.m. on the night of 17th April was in relation to the man who, on the evidence, was suffi ciently identifi ed in the circumstances of this case as being the man whom the informant, Robert John Collins, saw at the scene of the accident and on whom he later served a copy of the certifi cate of the doctor. ..."

Per Anderson J in Collins v Smith [1980] VicSC 582; MC 07/1981, 12 December 1980.

52. Blood sample taken – safekeeping of blood sample – no evidence of safekeeping of blood – presumption of regularity – Magistrate not satisfi ed that regulations complied with – charge dismissed – Magistrate in error.

A Magistrate dismissed the charge on the basis that in the absence of any evidence in relation to the safekeeping of blood, the presumption of regularity or continuity did not apply. Upon appeal—

HELD: Appeal upheld.The prosecution was not required to prove that the Regulations have been complied with. Hindson v Monahan [1969] VicSC 180; [1970] VicRp 12; (1970) VR 84; Wylie v Nicholson [1973] VicRp 58; (1973) VR 596; Lloyd v Thorburn [1973] VicSC 104; [1974] VicRp 2; (1974) VR 12; Waters v Good [1976] VicSC 427, Nelson J, 30 August 1976; Pavlovic v Krizman [1975] VicSC 259, Gowans J, 29 May 1975; Huntington v Jupp [1978] VicSC 217, O'Bryan J, 19 May 1978; Woodward v McNab [1978] VicSC 384, Murray J, 31 August 1978; Attwood v Lacy [1979] VicSC 226, Gray J, 24 May 1979; Penhallariack v Knight [1979] VicSC 289, McGarvie J, 26 June 1979; and Coyle v Guthrie [1979] VicSC 433, Gray J, 13 September 1979, followed.

Marks J:" ... The prosecution is not required in relation to the said information to prove that Regulations 223B; 223C; 223D and 223E of the Motor Car Regulations 1966 (as amended) had been complied with.

Perhaps I should add in case there be any confusion that it does not mean for all purposes that the Regulations are irrelevant. Whether they are relevant may depend on the course taken by the defence in any particular case. If it is sought to attack the prima facie reliability of the certifi cates tendered under the Schedules – in this case Schedules 6 and 8 – it may be that non-compliance with those Regulations or any of them if such be the case, could become relevant to a question whether in the upshot a tribunal of fact is prepared to accept those certifi cates as suffi cient proof of their contents."

Per Marks J in Parker v Kis [1980] VicSC 329; MC 10/1981, 29 July 1980.

53. Reading 0.214%BAC – blood sample taken at hospital by legally qualifi ed medical practitioner 2 hours and 54 minutes after the motor car driven by the defendant was involved in a collision with

63

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAa light pole – taking of sample proved by production of 6th Schedule certifi cate and analysis by production of 8th Schedule certifi cate – information dismissed by magistrate on the basis that he was unable to decide if the defendant was over .05% at the time of driving due to the lack of expert evidence as to whether the blood alcohol level was on the rise or fall – Magistrate in error.

HELD: Production of expert evidence was not necessary as it was open to the Court to apply the presumption of continuance "backwards in point of time", from the time when the breath analysis certifi cate was taken to conclude that at the time of driving of the vehicle the defendant had in his blood a percentage of alcohol greater than .05%. Advertence to s80G and to the time limit of two hours which it contains tends to create a red herring in cases to which s80G does not apply.

Tadgell J:" ... There was evidence, then, of the respondent's blood alcohol content at 12.45 p.m. on 28 September 1980. There was no direct evidence of what his blood alcohol content had been two hours and forty-fi ve minutes before when he was driving his motor car. Section 80G of the Motor Car Act did not apply because the period of two hours referred to therein had elapsed. The respondent's blood alcohol content at the time of driving was therefore left to be inferred so far as that might properly be done. In my opinion the Stipendiary Magistrate introduced an irrelevancy into the case by referring to the absence of expert evidence upon the submission to which he referred. As a matter of law it was not impossible, as the magistrate said, to decide the question on with which he was faced "because no expert evidence has been given on the blood alcohol level to say whether or not it would have been on the decrease or increase at the time of being taken..."

... Advertence to s80G, and to the time limit of two hours which it contains, tends to create a red herring in cases to which s80G does not apply. After all, the period of two hours is only a mandatory statutory period adopted for the purposes of s80G. For myself I think that, subject to the effect that an undue lapse of time will have upon the drawing of any inference depending on the so-called presumption of continuance, in such cases a lapse of two hours will generally be of very little moment when there is an admission (or evidence allowing the proper inference to be drawn) that the subject whose blood was analysed did not ingest alcohol between the time of the alleged driving and the time of the analysis. At least that is so, in my view, where there is no evidence, as there was not here, that the blood alcohol level of the subject would tend spontaneously or for other reason to increase as the time interval between the driving and the analysis lengthened.

I am further of opinion that there was no reasonable conclusion open to the Magistrate on the evidence than that the respondent's blood alcohol content was in excess of that alleged in the information at the time of the alleged offence. I consider, therefore, that on the evidence the respondent should have been convicted of the offence with which he was charged. It should be left to the Magistrate, however, to draw the other conclusions of fact upon which the penalty would depend. Although I should myself fi nd it diffi cult to understand how a court, properly applying the law to the evidence, could conclude that the respondent's blood alcohol level was less than 0.214 per cent at the relevant time, there may be arguments which were not addressed to me that would support such a conclusion. The order nisi will be made absolute. The order dismissing the information will be set aside and in lieu thereof there will be an order that the respondent be convicted. I further order that the information be remitted to the Magistrates' Court at Oakleigh to be further dealt with according to law. There will be an order that the respondent pay the applicant's costs to be taxed."

Per Tadgell J in James v Sanderson [1982] VicSC 89; MC 29/1982, 23 March 1982.

54. Blood sample taken – certifi cates from medical practitioner and analyst tendered in evidence – defendant's fi rst name incorrect in certifi cates – "Robert" instead of "Robin" – submission of "no case" – Magistrate not satisfi ed that the defendant was the same person from whom the blood sample taken – charge dismissed – Magistrate in error.

1. Where a blood sample was taken from a person in a hospital serving a small town and in a not heavily populated district, it compelled an inference that the person to whom the maker of the certifi cate referred to as 'Robert Lawrence' was the defendant 'Robin Arthur Lawrence'. That inference, together with the other evidence was suffi cient to satisfy a reasonable tribunal of fact beyond reasonable doubt that the defendant was guilty of the offence of drink/driving.

2. Accordingly, the magistrate was in error in upholding the 'no case' submission and dismissing the charge.

Jenkinson J:" ... When the case for the informant was closed the solicitor appearing for the respondent submitted that there was no case for the respondent to answer because the name on the certifi cates to which I have referred was Robert Lawrence whereas the name of the respondent was Robin Arthur Lawrence and the evidence did not justify a conclusion that the person to whom reference was made in the

64

DRINK/DRIVING in VICTORIAcertifi cate and in the label on the container was Robert Lawrence was the respondent, Robin Arthur Lawrence.

... In my opinion the evidence to which I have referred and the facts of which the learned Magistrate took judicial notice, as he indicated (that is, that Ouyen is a small town and the Ouyen Hospital is a hospital serving a small town and not a heavily populated district) compel the inference that the person to whom the maker of the certifi cate in the form of the Sixth Schedule referred as Robert Lawrence was the respondent, Robin Arthur Lawrence. In my opinion the inference is compelled with suffi ciently persuasive force to justify, indeed to compel, the conclusion that that inference, together with the other evidence, could satisfy a reasonable tribunal of fact of the guilt of the respondent of the offence charged beyond reasonable doubt. Certainly, in my opinion, the inference is of suffi ciently persuasive force to satisfy the less stringent tests stated by McInerney J and McGarvie J in the passages to which I have referred, Accordingly, I am of the opinion that the learned Magistrate was in error in his determination of what is, as is made clear in a number of authorities, a question of law; and accordingly the order nisi will be made absolute on the fi rst of the two grounds specifi ed in the order nisi."

Per Jenkinson J in Taylor v Lawrence [1981] VicSC 477; MC 01/1982, 14 October 1981.

55. Sixth schedule and eighth schedule certifi cates – legally qualifi ed medical practitioner – blood sample taken by doctor at hospital – "immediately responsible for the examination and treatment" – prima facie proofs – "approved analyst" – defendant convicted – Magistrate not in error.

1. The production of a Sixth Schedule Certifi cate provides a rebuttable presumption that the sample to which it refers was regularly obtained. That presumption, a presumption of regularity, arises in substance from the existence in the Motor Car Act ('Act') of s80DA which requires the legally qualifi ed medical practitioner immediately responsible for the examination or treatment of a person who is brought into a hospital for examination or treatment to take a blood sample from that person. Because of that provision it is to be assumed that a blood sample which has been taken, and which is referred to in a Sixth Schedule Certifi cate, was taken in accordance with the requirements of s80DA. Having regard to the evidence, there was suffi cient to allow the court to reasonably fi nd that the person named in the Certifi cate was the practitioner immediately responsible for the examination and treatment of the defendant.

2. In relation to the Eighth Schedule Certifi cate there should be implied in sub-s(13) of s80D a power in Governor-in-Council, by making an Order in Council, to approve of an analyst for the purposes of s80D. Were it otherwise, the whole of the provisions of s80D of the Act would be set at nought.

3. The Eighth Schedule Certifi cate which was tendered to the court was the only evidence which was before the court of the approval of the named qualifi ed analyst for the purposes of s80D of the Act. That evidence was not disproved by the production of the Government Gazette. Accordingly, the magistrate was not in error in fi nding the charge proved.

Tadgell J:" ... The argument, shortly expressed, was that it is not possible to rely upon a Sixth Schedule Certifi cate unless there is proof that the provisions of s80DA have been complied with. It was submitted here that there was evidence given by Noel Patrick Brody, who I assume was some relation of the applicant, from which the court ought to have concluded that Dr Galbraith, who signed the Sixth Schedule Certifi cate which was put in evidence, was not "the legally qualifi ed medical practitioner immediately responsible for the examination or treatment" of the applicant.

In my opinion the provisions of sub-s(5) of s80D do not have the effect which was contended for on behalf of the applicant. To prohibit the use as evidence except for the purposes of s80D of the taking of or of the results of the analysis of a blood sample taken "in accordance with" s80DA is not, in my opinion, to require compliance with the requirements of s80DA where evidence of the taking of a blood sample or of the results of its analysis is given under s80D.

... In my opinion, the evidence which was given by Mr Noel Patrick Brody does not produce evidence such that the evidence before the court could not sustain a conclusion at which the court arrived. It is to be noted that the evidence which Mr Noel Patrick Brody gave said nothing whatever about Dr Galbraith. Indeed, Mr Noel Patrick Brody, according to his evidence, did not arrive at St Vincent's Hospital for an hour after the time at which, according to the Sixth Schedule Certifi cate, Dr Galbraith took a blood sample from the defendant. There is nothing to indicate that at fi ve minutes to twelve on the 25th November Dr Galbraith was not the legally qualifi ed medical practitioner immediately responsible for the examination or treatment of the applicant. For all I know, and indeed for all the persons constituting the Magistrates' Court knew, Dr Galbraith might have gone off duty at midnight having taken the blood sample from the applicant fi ve minutes beforehand. There was no cross-examination sought of her, and indeed there was no requirement, as there might have been, that she attend. For these reasons I am of the opinion that ground (1) of the order nisi is not sustained.

65

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIA... [T]here should be implied in sub-s(13) of s80D a power in Governor in Council, by making an Order in Council, to approve of an analyst for the purposes of s80D. ... A failure to do would, I think, impute to the legislature an intention which could not possibly have been intended. The power to revoke which is contained in s80F(15) was presumably placed there out of an abundance of caution. The fact that no such power has been inserted in sub-s(13), which was enacted at a different time than that at which sub-s(15) of s80F was enacted, carries with it no particular consequence. I think, therefore, that ground 2(a) is not sustained.

... [S]o far as I can see, in a position that the Eighth Schedule Certifi cate was the only evidence which was before the court of the approval of Dr Aitchison for the purposes of s80D. I think it is not possible to conclude, therefore, that there was no evidence that Dr Aitchison had been approved. On the contrary there was prima facie evidence. That evidence was not disproved by the production of the Government Gazette, which itself did not prove an appropriate Order in Council, if that be the case. ..."

Per Tadgell J in Brody v Brilliant [1982] VicSC 91; MC 32/1982, 24 March 1982.

56. Blood sample outside 2-hour limit – submission of "no case" – standard of proof – whether non-compliance with regulations – presumption of regularity – Magistrate in error in dismissing charge.

C. was involved in a collision between 2 motor cars. A few minutes outside the 2-hour limit, a sample of his blood was taken by a doctor, and upon analysis, was shown to have .227% of alcohol. C. was charged with driving a motor car whilst the percentage of alcohol in his blood exceeded .05. The doctor was required to attend court for the purpose of cross-examination as to his certifi cation that all regulations relating to the collection of the blood sample were complied with. He said that he presumed he complied with the regulations because he had a working knowledge of them; he said he had never read the regulations. He further said that he did not check the blood containers for cleanliness nor read the labels in the blood alcohol kit; and that he released pressure from the container into which he placed the blood sample by fi rst inserting a standard needle through the rubber. Following a submission of "no case", the court dismissed the charge, on the ground that it was not satisfi ed that the doctor had taken the sample in accordance with the regulations. On an order nisi to review—

HELD: There was no evidence of non-compliance and a prima facie case of breach of s81A was established.

O'Bryan J:" ... I see no reason why the learned magistrate should not have given effect to the decisions of Menhennitt J in Heywood v Robinson [1975] VicRp 55; (1975) VR 562 and Wright v Bastin (No. 2) [1979] VicRp 35; (1979) VR 329 and concluded there was evidence which he could accept that at the time of the driving, the blood alcohol content of the applicant exceeded .05, subject to the question of compliance with the regulations.

The applicant had not consumed alcohol between 11.45 pm., when he was found at the scene of an accident, and 1.45 a.m. the following morning when his blood was taken. The analysis of the blood, which had been taken perhaps fi ve or ten minutes outside the two-hour limit prescribed by s80D and s80G, showed an alcohol content four and a half times the statutory limit. The excess above the legal limit was such as to entitle the magistrate to conclude that at the relevant time the applicant was over the statutory limit.

... The doctor informed the court that he presumed he complied with the regulations because he had a working knowledge of them. He said he had never read the regulations.

... Again, those answers did not provide any evidence of non-compliance with the regulations. At most they revealed that the doctor did not have familiarity with Regulation 223A, in particular, but there is no basis for concluding that because a person has not read the regulations he has not complied with them. As Mr McArdle correctly observed, one does not have to read all the Road Traffi c Regulations or the Motor Car Regulations in order to comply with them.

... In my view there was no evidence of non-compliance with any regulation, on the part of the doctor or the person or persons who prepared the containers into which the blood was eventually placed. So far as the doctor is concerned he followed the requirements of Regulations 219, 220, 221, 223A(a) and 223A(b). No questions were directed to Regulation 222. There was nothing revealed in the cross-examination which revealed non-compliance with Regulation 223(b) or 223A(a).

It must be remembered that a presumption of regularity applies in cases of this type: Hindson v Monahan [1969] VicSC 180; [1970] VicRp 12; (1970) VR 84; Wylie v Nicholson [1973] VicRp 58; (1973) VR 596, and Huntington v Jupp [1978] VicSC 217, 19 May 1978. Those cases provide examples of the application of the principle. An exhaustive collection of the authorities on this point is found in Parker v Kis [1980] VicSC 329, a decision of Marks J, 27 July 1980.

In my view there was no evidence of non-compliance and a prima facie case of breach of s81A by the

66

DRINK/DRIVING in VICTORIArespondent was established by the informant's case. The evidence before the court at the end of the informant's case, if accepted, provided evidence of each element of the charge. The evidence, being reasonable, inherently probable, and uncontradicted, should have been accepted by the Court. Hardy v Gillette [1976] VicRp 36; (1976) VR 392 at 395-7, and Read v Nerey Nominees Pty Ltd [1979] VicRp 6; (1979) VR 47. Accordingly, the order nisi will be made absolute."

Per O'Bryan J in Hess v Clarebrough [1982] VicSC 437; MC 01/1983, 3 November 1982.

57. Blood sample – s80DA(6) – whether refusal is hindering – whether consent required.J, who had been involved in a motor car accident and taken to hospital, was asked by a doctor if he was prepared to allow a sample of his blood to be taken. J. indicated a refusal, and was subsequently charged under s80DA(6) of the Motor Car Act 1958 with hindering the doctor attempting to take a sample of blood. It was submitted that as the doctor was not attempting to take a blood sample, then the indication of the refusal was not a "hindering" within the section.

HELD: Consent is an irrelevant element in the operation of taking a blood sample. As there was no evidence that the doctor was attempting to take the sample when consent was refused, the defendant was not guilty of hindering.

Anderson J:" ... There were two points which have been debated before me. One was: was the doctor attempting to take a blood sample? Secondly; if he was, did the defendant hinder him in that attempt? I think the matter is determined by the fi rst point. In my view, on the evidence which was before the Magistrate, he was, entitled to reach the conclusion that at the stage of the refusal, there was no evidence that the doctor was attempting to take a sample.

... The Magistrate was entitled not to be satisfi ed that the doctor was attempting to take a sample of blood, when the defendant indicated that either he refused to consent, or said he was not prepared to allow a sample to be taken. Nothing more appears than that the defendant was asked a question and answered it, indicating his attitude to what was asked of him. Upon receiving the answer the doctor desisted from proceeding any further in the matter. It may be suggested, I suppose, that the inquiry was a preliminary step in the taking of a blood sample, because, although the sample may be taken without the consent of the person, the courtesy of inquiring; "Will you allow me to take a sample" or words to that effect may well be the usual preliminary step to the ultimate taking of the sample.

Consent of the person, however, is not an integral part of the taking of the sample and is an irrelevant or neutral element in the operation. There was no evidence that the doctor was then ready to take the sample, or had yet to prepare instruments or how much further he was advanced when he got the negative answer. I think the Magistrate was justifi ed in saying that the occasion had not yet arisen for him to be satisfi ed that the doctor was attempting to take the blood sample at the time when he desisted from pursuing the matter further. I am deciding this matter solely on the basis that the Magistrate was entitled not to be satisfi ed that at the time the defendant refused consent, the doctor was attempting to take a sample.

The Magistrate also said there was no evidence of a hindering, as there had been a mere refusal. I am not to be taken as either agreeing or disagreeing with that opinion, as such an aspect, in conjunction with facts different or additional to the facts of this case, might have a relevance which it does not have in this case. ..."

Per Anderson J in Lord v Johnson [1982] VicSC 428; MC 03/1983, 27 October 1982. 58. Blood sample taken – 25 days between sampling and analysing – whether presumptions of regularity or continuance apply.

Whilst driving his motor car, M. collided with the tray of a parked truck. M. suffered severe head injuries and was admitted to hospital where a blood test was taken showing a blood/alcohol content of .254%. When M. was questioned about the reading, he expressed "great astonishment", saying that he could not remember anything prior to 2 hours before the accident, save that he had drunk 2 bottles of Crown lager. When the matter came on for hearing, no evidence was given by or on behalf of M; but it was submitted that because it took 25 days for the blood sample to be analysed, the court could not be satisfi ed that the identity and integrity of the blood sample had been proved beyond reasonable doubt. The magistrate dismissed the information, holding, in effect, that the presumptions of regularity and continuance could not survive a 25 days' period of silence. On order nisi to review—

HELD: Order nisi absolute. There was nothing to cast doubt upon the proper deduction in the circumstances:-(1) that the labelled sample at the laboratory was the precise sample taken and labelled at the hospital;

(2) that the presumptions of regularity and continuance could survive a 25 days' period of silence. Huntington v Jupp [1978] VicSC 217; MC 24/1978 (19 May 1978, O'Bryan J), considered and followed.[See also Collins v Mithen [1975] VicSC 229; MC 12/1975]

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PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAFullagar J:

" ... In my opinion the passage of 25 days, rather than 5 or 15 days, adds nothing to the signifi cance or otherwise of the other two items (a) and (b) above in a case where no suspicions can arise from the lapse of time itself.

... If there were the slightest evidence that some real possibility existed of some identifi ed kind of sabotage or negligence or other interference with the sample, then the arguments of Mr Zayler would carry more force. Similarly if some suspicion could attach to the actual time lag per se.

In all the circumstances it seems to me that identity and integrity of the sample are reasonably secured by labelling, and by relying on the professional persons for their due compliance with the regulations. In all the circumstances of the present case I do not think the time lag could lead to any real danger at all that the sample was not properly kept or that it did not retain its integrity.

... the defendant gave no evidence, and that his friends gave no evidence, and that no reason was offered for his failure or that of his drinking companions to give evidence, and there was nothing to cast doubt upon the proper deduction in the circumstances, which was that the labelled sample at the laboratory was the precise sample which had been taken and labelled at the hospital. The Magistrate was wrong in law in holding, in effect, that the presumptions of regularity and continuance could not, in the present case, survive a 25 days' period of silence....

Having regard to the certifi cate evidence, and to the fact that the defendant was not called as a witness, I have concluded that these out of Court statements could not reasonably be regarded as displacing the strong presumption of regularity and continuance raised by the evidence for the informant. In my opinion the acquittal should be set aside. In the absence of any further submissions of Counsel, I think the proper course in all the circumstances is to order that the case be remitted to the Magistrate with a direction to him to convict the defendant and to fi x penalties in accordance with law."

Per Fullagar J in Naylor v Mitchell [1983] VicSC 83; MC 21/1983, 22 March 1983.

59. Blood sample taken more than 2 hours after driving – submission of non-compliance with regulations.

F. admitted that he was the driver of a motor car which collided with a pole "not later than about 10.15pm". F. was injured in the collision, and was admitted to hospital where, at about 1.00am, a doctor took a blood sample from him. The subsequent analysis of the blood sample indicated 0.176 % blood/alcohol. F. was charged, and when the matter came on for hearing, the doctor was cross-examined concerning his taking of the blood sample. At the end of the evidence for the prosecution, defence counsel submitted there was no case to answer on the ground that the doctor failed to comply with the Regulations. The Magistrate agreed and dismissed the information. Upon order nisi to review—

HELD: Order nisi absolute.(1) The informant does not have to prove that the doctor complied with the Regulations. Wylie v Nicholson [1973] VicRp 58; (1973) VR 596; Huntington v Jupp [1978] VicSC 217; MC 24/1978; and Attwood v Lacy [1979] VicSC 226, 24 May 1979, applied.

(2) No law provides that the doctor taking the blood sample must read the actual Regulations.

(3) It is no answer to a charge of exceeding .05% that the blood sample was not taken within 2 hours of the driving. Wright v Bastin (No 2) [1979] VicRp 35; (1979) VR 329; and R v Cheer [1979] VicRp 53; (1979) VR 541, applied.

Southwell J:" ... The Magistrate appears not to have applied his mind to the inferences which might be drawn from the uncontradicted evidence of Dr Barnett concerning his training, and the sampling kit including the instructions card. To my mind there appears in the evidence little room for doubt that the regulations were complied with.

... Dr Barnett stated that the regulations were complied with, but admitted in cross-examination that he had not read the actual regulations (as published by the Government Printer) but merely the instruction card accompanying the sample kit, a card entitled "Regulations". That card was not called for or tendered in evidence. The magistrate appears not to have applied his mind to the inferences which might clearly be drawn from all the surrounding circumstances including the matters I have earlier referred to. Certainly it was not open to the magistrate to have found that the regulations were not complied with by reason of the failure of Dr Barnett to read them. No law provides that the doctor taking the sample must read the actual regulations.

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DRINK/DRIVING in VICTORIA... In my opinion, the magistrate was in error in dismissing the information. There was abundant evidence upon which he could have been satisfi ed of guilt indeed, if the evidence stayed as it is, having regard to the high reading at 1 a.m. – .176 per cent, I fi nd some diffi culty in comprehending the basis of any reasonable doubt that the reading was in excess of .05 per cent at 10.15 pm. Accordingly, the order nisi must be made absolute ..."

Per Southwell J in Gourlay v Freeman [1983] VicSC 174; MC 24/1983, 11 May 1983.

60. Blood sample – medical practitioner cross-examined re taking of sample – doctor not fully familiar with regulations – whether failure to comply with regulations.

R. was charged with having driven a motor car whilst exceeding .05% blood/alcohol. At the hearing, the medical practitioner who took the blood sample from R. was cross-examined as to whether he complied with the regulations in taking the blood sample. The doctor said that he had never read the regulations. Upon the close of the informant's case it was submitted that there was no case to answer on the ground that it had not been shown that there had been compliance with the regula tions relating to the taking of the blood sample. The magistrate agreed and dismissed the information. Upon order nisi to review—

HELD: Order nisi absolute.The eliciting by cross-examination of a doctor of the fact that he is not familiar or fully familiar with the regulations does not produce any evidence of a failure to comply with the regulations. Hess v Clarebrough [1982] VicSC 437; MC 01/1983, followed.

Brooking J:" ... Dr Rabar did attend at the hearing and was cross-examined by the solicitor for the defendant. He was asked by the Prosecutor, who examined him briefl y before tendering him for cross-examination, whether he complied with the regulations in taking the blood sample. This question was objected to on the ground that it had not been shown that the doctor knew what the provisions of the regulations were. He was then asked in-chief whether he took the blood sample in the normal manner and answered: "Yes". In the course of his cross-examination he said that he had never read the regulations, that his procedure for taking blood samples was derived from a list attached to the wall of the Casualty room in the hospital concerned, that he had never checked the regulations against the list to see if they corresponded and that he had no knowledge as to the authorship of the list, but that the list was printed by the Government Printer.

... By s80D(3) a certifi cate answering the requirements of that sub-section shall be admitted in evidence as a prima facie proof of the facts and matters therein contained. One of the facts or matters therein contained is that all the regulations relating to the collection of the sample were complied with. As in Hess v Clarebrough [1982] VicSC 437; MC 01/1983 so in the present case the eliciting by the cross-examination of the doctor of the fact that he was not familiar or fully familiar with the regulations did not produce any evidence of a failure to comply with the regulations. Accordingly, the uncontradicted evidence on the point was that afforded by the certifi cate itself. ..."

Per Brooking J in Hocking v Roberts [1983] VicSC 228; MC 30/1983, 22 June 1983.

61. Blood sample – medical practitioner's certifi cate – dates therein altered and initialled by doctor – whether certifi cate admissible.

A doctor collected a sample of blood from R. at midnight on 16 September. R. was later charged with driving a motor car whilst exceeding .05%. When the prosecutor sought to tender the doctor's certifi cate at the hearing, its tender was objected to by R.'s solicitor on the basis that, as the date had been altered from the 17th to the 16th and initialled by the doctor who completed the certifi cate, there was an internal contradiction of facts and therefore the document was not admiss ible as prima facie evidence. The magistrate agreed and dismissed the information. Upon order nisi to review—

HELD: Order nisi absolute.By virtue of the provisions of s80D(3) of the Motor Car Act 1958, the magistrate was obliged to admit the certifi cate into evidence, despite any reservations he may have had about the terms in which the document was expressed. Houston v Harwood [1975] VicSC 196; [1975] VicRp 69; (1975) VR 698; MC 25/1975, applied.

Gray J:" ... I am unable to detect any contradiction appearing on the face of the document. It can be conceded that the doctor obviously wrote the date 17th September in each of the three places where the date appears. It is equally apparent that he corrected the date from the 17th to the 16th and initialled each alteration. In those circumstances it can hardly be that there is any contradiction in the terms of the document. Furthermore, it is quite understandable that in certifying to an event which takes place at midnight some uncertainty may be encountered when deciding upon the correct date. Quite apart from the lack of any contradiction appearing on the face of the document, the learned magistrate

69

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAhad evidence that the respondent had been taken to hospital on the evening of 16th September after having been arrested some time after 10 o'clock. In all those circumstances it is surprising that he felt that any diffi culty arose from an examination of the document.

... An examination of the 6th Schedule shows that the certifi cate in this case faithfully followed the form set out in the 6th Schedule. In fact, the doctor merely fi lled in a printed form issued in conformity with the Act. In my opinion the magistrate had an obligation to admit the certifi cate into evidence by virtue of those statutory pro visions, despite any reservations he may have felt about the terms in which the document was expressed. In this connection I refer to Houston v Harwood [1975] VicSC 196; [1975] VicRp 69; (1975) VR 698.

However, as I have already said, I consider that the reservations felt by the magistrate which led him to reject the certifi cate were not based on reasonable grounds. I have no doubt that the certifi cate should have been admitted in evidence and that the magistrate was in error in rejecting the document."

Per Gray J in Dwyer v Rickhuss [1983] VicSC 314; MC 42/1983, 11 August 1983.

62. Blood sample – manner in which sample dealt with – whether doctor must personally deal with sample – presumption of regularity.

After a road accident involving the defendant's driving of his motor car, a sample of his blood was taken by a doctor at a hospital. After the sample was taken, the doctor gave the labelled bottle to the sister on duty for her to place in the appropriate receptacle, without directing her as to what she was to do with it. When charges were later laid and the matter came on for hearing, the doctor was called by the prosecution; after a ruling that there was a case to answer, the defendant's solicitor submitted that as the doctor failed to personally place the sample in the receptacle, then this amounted to a breach of the Regulation, and therefore the prosecution case had not been proved beyond reasonable doubt. The Magistrate agreed and dismissed the information. Upon order nisi to review—

HELD: Order nisi absolute.1. The prosecution does not have any obligation to prove compliance with the Regulations as part of its case. Attwood v Lacy [1979] VicSC 226, 24 May 1979, Gray J, applied.

2. Regulation 223B does not require the medical practitioner to personally place the blood sample in the required locked receptacle.

3. As the evidence did not establish any departure from the Regulations nor indicate anything which suggested a departure from the normal course of events, the magistrate erred in law in entertaining a reasonable doubt concerning this element of the prosecution case.

Gray J:" ... [I]t is clear, in my opinion, that Regulation 223B does not require the medical practitioner to personally place the sample in the required locked receptacle. The regulation would, in my opinion, be complied with by the medical practitioner directing a member of the hospital staff to place the sample in the receptacle. The regulation should be read as if it stated that the medical practitioner "shall cause the sample to be placed in the required receptacle." Accordingly, if it be relevant, I am satisfi ed that the learned Magistrate was in error in treating the mere failure of the doctor personally to place the sample in the container as a breach of the regulation.

... This sample was taken in the Casualty section of the Benalla Hospital. It is a reasonable inference that the doctors and staff at the hospital have had a great deal of experience in handling persons from whom these samples are taken. In the absence of any indication to the contrary, it is, in my opinion, a reasonable inference that the Sister in charge at the relevant time would know perfectly well what the regulations required when a sample was handed to her by a doctor.

... The evidentiary position in this case is, in my opinion, indistinguishable from a case where there is no evidence on the subject. I do not consider that the evidence establishes any departure from the regulation, nor do I consider that the evidence brings to light anything which suggests a departure from the normal course of events. Insofar as it may be said that there was no evidence of the existence of a system of compliance with the regulations, I consider that that argument is unsustainable in the context of a large provincial hospital, where the persons concerned are a legally qualifi ed medical practitioner and the Sister in charge. ..."

Per Gray J in Norris v Norburgh [1983] VicSC 338; MC 44/1983, 25 August 1983.

63. Blood sample taken outside 2-hour limit – defendant later tested by expert – evidence given by expert discussed.

R. was the driver of a motor car which was involved in a collision between 12:30 and 1:00 a.m. R. was conveyed to hospital and at about 3:00 a.m., a blood sample was taken from him, which later showed a blood/alcohol content

70

DRINK/DRIVING in VICTORIAof .179%. At the subsequent hearing of a charge against R. of driving whilst exceeding .05%, three witnesses who were present at the scene of the accident, gave evidence; however, none of this evidence was signifi cant evidence of R.'s intoxication. R. gave evidence that he had consumed a possible maximum of ten glasses of beer between 7:30 and 9:00 p.m., and between 9:30 p.m. and 12:30 a.m. An expert also gave evidence of submitting R. to certain tests in his laboratory. After hearing submissions, the magistrate dismissed the charge. On order nisi to review—

HELD: Order nisi discharged.The circumstances that a blood/alcohol content exceeding the limit can possibly be deduced from the evidence by a process not openly canvassed at the hearing before the Magistrate is not a reason for granting an order to review the Magistrate's dismissal of the charge.

Lush J:" ... There is, however, in my opinion, no error of law disclosed in the decision now before me. The evidence of Russell was not the subject of any objection at the hearing. The challenge which is now made, based on the lack of proof of the nature of the instrument which he used, was not made at the Kyabram hearing and if it had been made it might conceivably have been then and there answered. In those circumstances it cannot be made now. The related challenge that the whole of the evidence given by Russell rested upon an unsound basis in the absence of proof, that his breath alyser was a scientifi c instrument, must be the subject of the same comment. ... On the face of the fi gures in the evidence relating to the consumption of beer by the defendant, the rate of absorption and the rate of elimination it does appear that it is correct to say that if all that evidence were accepted the proper deduction was that at the relevant time the defendant had a blood content exceeding .05 per cent. It is not, however, clear on the face of the evidence as it is set out in the affi davit in support how the absorption and elimination fi gures were derived from the test carried out by Russell and it does not appear ever to have been put to Russell that in fact the result of what he was saying was that there was a breach of s81(A) at the relevant time. It may be that this was not put because Russell's fi gures of .03 per cent and .036 per cent were understood at the hearing to be relevant to the time of the accident. ..."

Per Lush J in Scollary v Regan [1983] VicSC 254; MC 47/1983, 15 July 1983.

64. Blood sample – medical practitioner not familiar with regulations – reliance upon printed instructions in blood sample kit – presumption of regularity discussed.

M. was charged with having driven a motor car whilst exceeding .05% blood/alcohol. At the hearing, the, medical practitioner who took a blood sample from M. was cross-examined as to his taking of the sample. The doctor said that he had never read the relevant regulations, but relied entirely on the instructions printed in the blood sample kit; he had no idea what was written on the labels on the containers, and he had no knowledge about the use of anti-coagulants in connection with blood tests. At the close of the informant's case, it was submitted that there was no case to answer on the ground that the regulations had not been complied with. The magistrate agreed and dismissed the information. Upon orders nisi to review—

HELD: Order nisi absolute.1. Compliance with the regulations is not a condition precedent to a conviction. Pavlovic v Krizman [1975] VicSC 259; MC 13/1975; Mallock v Tabak [1976] VicSC 503; [1977] VicRp 7; (1977) VR 78; and Hindson v Monahan [1969] VicSC 180; [1970] VicRp 12; (1970) VR 84, applied.

2. The presumption of regularity is limited in scope when the question of compliance with the regulations is put directly in issue. Hess v Clarebrough [1982] VicSC 437; MC 01/1983; and Hocking v Roberts [1983] VicSC 228; MC 30/1983, discussed.

3. Where it emerges that a doctor has no knowledge of the requirements of the regulations, a court may dismiss the information if it is left with a reasonable doubt as to the reliability or accuracy of the doctor's fi nding on analysis. Wylie v Nicholson [1973] VicRp 58; (1973) VR 596, applied.

Nicholson J:" ... Although it is clearly correct that the presumption of regularity can apply, for my part I think that there are dangers in permitting the presumption of regularity to have too much scope when the question of compliance with the regulations is put directly in issue by the defendant in the way that it was here. It must be remembered that the defendant is charged with a criminal offence carrying a substantial penalty.

... Accordingly, where it emerges that he does not know what the requirements are, it seems to me that the prima facie effect of his certifi cation as to compliance with them is displaced. Compliance

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PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAmay of course still be proved despite his lack of knowledge if it can be established that the steps taken by him constituted compliance.

... Had compliance with the regulations been a necessary condition precedent to a conviction then I would have been disposed to think that the learned Magistrate was correct in upholding the submission of no case to answer. However it seems clear that compliance with the regulations is not a condition precedent to a conviction.

... I think that there was evidence before the Magistrate that the respondent had been driving at the relevant time in circumstances where the percentage of alcohol in his blood, expressed in grams per 100 millilitres, exceeded .05 per cent, there being evidence of a blood sample having been taken which on analysis produced a reading of .134 per cent. Accordingly the learned Magistrate should not have upheld the submission of no case to answer.

... I do not think that the evidence was such that the Magistrate should have held that the blood sample was taken and preserved for analysis by Dr Kerr in accordance with the regulations and in any event, he was not called upon to do so at the time of ruling upon the submission of no case to answer. Therefore, ground 2 of the order nisi will be discharged. Ground 3 will also be discharged for similar reasons, in that for the purpose of dealing with the submission of no case to answer, the Magistrate was not at that stage called upon to determine whether or not he was satisfi ed that the percentage of alcohol in the blood of the respondent when the sample was taken expressed in grams per 100 millilitres was more than .05 per cent."

Per Nicholson J in Lewis v Maiden [1983] VicSC 413; MC 48/1983, 5 October 1983.

65. Blood sample taken 2½ hours after driving – reading 0.191% – post-driving consumption of alcohol – presumption of continuance.

About 9pm., whilst driving a motor car, M. collided with another vehicle. After the collision, M. walked to his home nearby, stayed about fi ve minutes and was taken to hospital where a blood sample was taken at 11.35 pm., showing a blood/alcohol concentration of .191%. On the hearing of the charge of driving whilst exceeding .05% blood/alcohol, M. gave evidence that he consumed intoxicating liquor after the collision but before the taking of the blood sample. An analytical chemist gave evidence on M.'s behalf that consumption of the liquor "could easily affect the blood test to such an extent that at the time of driving the (defendant) was indeed under 0.05%." The Magistrate accepted the defendant's evidence as to his drinking after cessation of driving, and also the evidence of the analytical chemist, however, was satisfi ed that at the time of driving the defendant was "over .05 but to what extent unable to say." The Magistrate then convicted M., fi ned him $500, cancelled his driver's licence and disqualifi ed him from obtaining a licence for a period of twelve months. Upon order nisi to review—

HELD: Order nisi discharged.(1) Where the blood/alcohol content of a driver 2 hours 30 minutes after driving was .191% and there was evidence that the driver consumed alcohol shortly before driving coupled with evidence that the driver was affected by alcohol upon cessation of driving, it was reasonably open to apply the presumption of continuance and conclude beyond reasonable doubt that the driver's blood/alcohol level at the time of driving was in excess of the legal limit.

(2)(a) Evidence of a person having consumed alcohol after cessation of driving but before the blood test was material to whether the presumption of continuance should be applied.

(b) In the present case, the unsatisfactory nature of the evidence for the defendant did not raise a reasonable probability of change instead of continuance, and accordingly, it was open to the Magistrate to fi nd the charge proved beyond reasonable doubt.

O'Bryan J:"... In the present case the evidence for the defendant was unsatisfactory and defi cient in important respects. More than the mere evidence of the consumption of fi ve or six or even seven ounces of ouzo by the defendant was required to establish as a reasonable hypothesis that the alcoholic content of the ouzo consumed had produced by 2235 hours the difference between 0.05 per cent and 0.191 per cent. The opinion of Mr Russell, expressed as it was in a very guarded manner, did not raise a reasonable probability of change instead of continuance. In my opinion, the learned Magistrate was entitled to accept the evidence of Mr Russell and to fi nd the charge proved beyond reasonable doubt. The order nisi is discharged with costs."

Per O'Bryan J in Markovski v Chandler [1987] VicSC 554; (1987) 6 MVR 285; MC 51/1987, 3 December 1987.

66. Reading of 0.16%BAC – evidence to rebut breathalyser-reading – operator called to give evidence – effect of certifi cate – effect of evidence given by operator – evidence called by defence as to quantity of alcohol consumed prior to driving – such evidence accepted by Magistrate – charge dismissed – Magistrate not in error.

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DRINK/DRIVING in VICTORIAOn a charge of exceeding .05, the prosecution gave evidence that the defendant's breath smelt of liquor, his eyes were bloodshot and his speech slurred. Subsequently when breathalysed the result of the test was a reading of .16%. The defendant admitted he had been drinking champagne.

The breathalyser operator was required to attend, to give evidence pursuant to receiving a notice under s80F(3) of the Motor Car Act 1958. He gave the usual evidence of testing including the fact that the requirements of the Motor Car Blood & Breath Samples) Regulations were complied with.

In cross-examination the operator said .16 was approximately ten to twelve glasses of beer, but that he had never conducted tests with champagne and could not make a comparison between the effect of champagne as against beer. He said the approximate rate at which alcohol in the bloodstream is dissipated after a person's last drink was about .20 per cent per hour and that he was not surprised to obtain a reading of .160 for a person drinking the quantity of alcohol claimed by the defendant as in his view the reading on the instrument was correct. The defendant gave evidence on oath that he consumed two glasses of beer between 6 p.m. and 6.30pm and three glasses of champagne between 8.00pm and 8.30pm and his brother attested to this quantity of alcohol taken by the defendant.

The Magistrate dismissed the charge saying that he accepted the uncontradicted evidence of the defendant, corroborated by his brother, as to the quantity of alcohol he had consumed. Upon Order nisi to review—

HELD: Order nisi discharged.1. The certifi cate tendered in evidence was not prima facie evidence of anything by reason of the fact that the defendant had asked for the breathalyser operator to attend. (See S80F(3)). But although the certifi cate had to be tendered in evidence in order to make the breathalyser operation evidence of the offence under s80F(1) it only became prima facie evidence if the accused person had not given notice for the breathalyser operator to attend, and he did give that notice. But the authorities showed that the operator when called was entitled to give viva voce evidence of the matters referred to in sub-s(5), and it was that evidence which was made prima facie evidence of the facts deposed to.

2. It was impossible for the Supreme Court to say that acceptance by the Magistrate of the evidence of the defendant in this case, with its consequent result, was so unreasonable that it could not be reconciled with a rational assessment of the whole case.

3. Accordingly, the order nisi was discharged.

Pape J:" ... what the Magistrate has said here simply is that he has was not satisfi ed to accept the result of the reading as showing the .16 per cent of alcohol in the blood at the stage when the test was taken, and he explained that by saying that he accepted the evidence of the defendant and his brother that he had had two beers between 6 and 6.30 and three glasses of champagne between eight o'clock and half-past eight, and nothing thereafter, and Mr Batt very fairly – as we always expect of him in these cases – has said, "Well, if that were true, then plainly enough a reading of .16 could not have been obtained at twenty-fi ve minutes past twelve."

... It may be that some Magistrates would have come to an entirely different conclusion. It may be that I myself would have come to a different conclusion: I do not say that I would, but the point of all this is that it was for the Magistrate to assess this evidence, and I fi nd great diffi culty in saying that there is anything unreasonable in a Magistrate saying that he accepts evidence given by a witness on his oath, he having seen and observed the demeanour of the witness.

... it seems to me that the Magistrate must have evaluated the evidence given by the breathalyser operator as against the evidence given by the defendant and his brother, and although it may be that some judges, some magistrates, would not have come to the same conclusion, in my view it is quite impossible to say that the Stipendiary Magistrate who heard all he evidence was acting unreasonably in the course he took.

Once he accepted that evidence, it must have thrown considerable doubt upon the accuracy of the blood alcohol content as disclosed by the result of the test. The Magistrate spoke of the certifi cate as being only prima facie evidence. But I think that the certifi cate was not prima facie evidence of anything by reason of the fact that the defendant had asked for the breathalyser operator to attend. (See S80F(3)). ...

Per Pape J in Adair v Durbridge [1974] VicSC 246; MC 44/1975, 19 July 1974.

67. BAC.190% – Proper interpretation of s80G of Motor Car Act 1958 – rebuttal evidence of presumption as to level of alcohol in blood – such evidence accepted by the Magistrate – charge dismissed – Magistrate in error.

The prosecution led evidence showing that the defendant had a blood/alcohol reading of .190%. The defendant led

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PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAevidence from himself and witnesses as to how much alcohol he had consumed prior to driving. He also submitted to tests conducted by an industrial chemist which showed that the defendant would have had blood/alcohol levels of .110% and .074%. The magistrate accepted the evidence given by and on behalf of the defendant and dismissed the charge. Upon Order Nisi to review—

HELD: Order absolute. Remitted to the Magistrates' Court for rehearing.1. What is required for the operation of s80G of the Motor Car Act 1958 is that it be established that at any time within two hours after an alleged offence, a certain percentage of alcohol was present in the blood of the person charged. That fact might be established by an analysis carried out in accordance with the provisions of sections 80D or 80F or it may be established by other evidence.

2. The section does not require that it be established that a certain percentage of alcohol, and no more than that percentage, was present at the relevant time in the blood of the person charged. The possibility, or indeed the certainty, that a higher percentage of alcohol than a specifi ed percentage was present in the blood does not affect the establishment of the fact that the specifi ed percentage was present. The greater includes the less. If the evidence established that a percentage of not less than a certain percentage was present, then it was established that such certain percentage was present and the presumption in the section applied to that percentage until the contrary was proved. The presumption was that not less than that percentage was present in the person's blood at the time at which the offence alleged to have been committed.

3. The information could only be dismissed if, on a consideration of the whole of the relevant evidence, the Magistrate was not satisfi ed beyond reasonable doubt that at the time of the offence the percentage of alcohol in the blood of the defendant was more than .05 per cent. The relevant evidence included the evidence given by the defendant and his witnesses, which evidence the Magistrate stated he accepted as to the amount of alcohol consumed by the defendant and as to the substantial identity of the conditions under which the subsequent tests were made with those existing on the day of the offence. The evidence could and should have been assessed by the Magistrate in two ways.

4. Firstly, in view of the different percentages shown in the two tests conducted on the later occasion, the Magistrate would have been faced with a problem as to what percentage of alcohol, if any, he would fi nd established. But he was clearly entitled to fi nd that at least the lower percentage was established. If he did so fi nd, the provisions of s80G would apply and there was no evidence to prove the contrary of the presence of that percentage of alcohol in the blood of the defendant at the time of the offence. Holdsworth v Fox [1974] VicRp 27; [1974] VR 225, applied.

5. Secondly, and apart altogether from the question of whether s80G applied, the evidence may have had to be assessed from a different point of view; namely as to whether it satisfi ed the Magistrate that at the time of the offence the percentage of alcohol in the blood of the defendant was more than .05 per centum. If the Magistrate by the process discussed had come to the conclusion that it was established that the percentage of alcohol in the blood of the defendant at any time within two hours after the alleged offence was a certain percentage, or not less than a certain percentage, the second question would be merely one of academic interest, because the provisions of s80G would relate the percentage back to the time of the offence.

6. It is apparent from the reasons for his decision that the Magistrate in this case did not direct his mind to the inferences which could properly be drawn in favour of the informant's case from the evidence of the defendant and his witnesses. He based his decision solely on his refusal to accept the accuracy of the reading on the breathalyzing instrument operated by the police. To do that was to base his decision on one aspect of the evidence alone and on the evidence in this case he was in error in so doing.

Nelson J:" ... What is required for the operation of s80G is that it be established that at any time within two hours after an alleged offence, a certain percentage of alcohol was present in the blood of the person charged. That fact might be established by an analysis carried out in accordance with the provisions of sections 80D or 80F or it may be established by other evidence.

In my opinion, the section does not require that it be established that a certain percentage of alcohol, and no more than that percentage, was present at the relevant time in the blood of the person charged. The possibility, or indeed the certainty, that a higher percentage of alcohol than a specifi ed percentage was present in the blood does not affect the establishment of the fact that the specifi ed percentage was present.

... In view of the different percentages shown in the two tests conducted on the later occasion, he would, of course, be faced with a problem as to what percentage of alcohol, if any, he would fi nd established. But he was clearly entitled to fi nd that at least the lower percentage was established. If he did so fi nd, the provisions of s80G would apply and there was no evidence to prove the contrary of the presence of that percentage of alcohol in the blood of the defendant at the time of the offence.

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DRINK/DRIVING in VICTORIA... In my opinion, it is apparent from the reasons for his decision that the Magistrate in this case did not direct his mind to the inferences which could properly be drawn in favour of the informant's case from the evidence of the defendant and his witnesses. He based his decision solely on his refusal to accept the accuracy of the reading on the breathalyzing instrument operated by the police. To do that was to base his decision on one aspect of the evidence alone and in my opinion on the evidence in this case he was in error in so doing. ..."

Per Nelson J in Farnsworth v Reynolds [1976] VicSC 423; MC 81/1976, 30 August 1976.

68. Rebuttal of presumption of 7th Schedule certifi cate by expert evidence – Magistrate accepted evidence of defendant as to consumption of alcohol – Magistrate accepted expert evidence called on behalf of the defendant – charge found proved – Magistrate in error.

The applicant was intercepted apparently exceeding the speed limit, where the informant gave observatory and admission evidence that the applicant had been drinking. The applicant breathalysed at .110 per cent. In defence the applicant gave evidence of the quantity of alcohol he had consumed during the past 24 hours and the approximate times of his imbibing. A further witness named Roberts was called, who gave evidence he was an analyst and consultant chemist holding a Bachelor of Science degree. He said that over 12 years he had engaged in analysing alcohol content of blood, read literature regarding relevant tests and performed tests used on machines used by the police, and that the machines can make mistakes of varying degrees as to the accuracy of the blood alcohol content. He further said accepting the evidence of the applicant as to his drinking the reading .110 could not be correct, and considering dissipation of the alcohol, and quantity and times of drinking the alcohol, for a man of average build such as the applicant, he considered the reading should have been .044 per cent at the time the test was taken. The Magistrate said that he accepted the evidence given by the defendant as to his consumption of alcohol and also the evidence given by the expert witness, however, he found the charge proved. Upon Order Nisi to review—

HELD: Order absolute. Conviction quashed.1. If the Magistrate accepted the defendant's evidence, the qualifi cation of the expert witness and that witness' evidence, then it was impossible on those fi ndings of fact for the Magistrate to come to the conclusion beyond reasonable doubt that the applicant had had more than .05 per cent at the relevant time in his bloodstream.

2. Those fi ndings of fact inevitably led to the conclusion that if one puts aside the question of dishonesty there must have been something wrong with the operation of the machine on that night. On those fi ndings, accepting the fact that the burden of proof was placed upon the applicant, the only inference from the fi ndings was that the presumption in the legislation was rebutted, and in those circumstances a conviction was not warranted.

Starke J:" ... The Magistrate then stated that he accepted all the defendant's evidence including evidence as to the quantity of drink at the time of consumption. The Magistrate also stated that he accepted the qualifi cation of the expert witness and then accepted the opinion evidence offered by that witness.

... If he accepted, as the affi davit says he did and as he does not deny, the defendant's evidence, and if he accepts the qualifi cation of the expert witness and that witness' evidence, then in my judgment it is impossible on those fi ndings of fact for him to come to the conclusion beyond reasonable doubt that the applicant had had more than .05 per cent at the relevant time in his bloodstream.

Those fi ndings of fact inevitably lead to the conclusion that if one puts aside the question of dishonesty there must have been something wrong with the operation of the machine on that night. In my view, on those fi ndings, accepting the fact that the burden of proof is placed upon the applicant, the only inference from the fi ndings must be that the presumption in the legislation is rebutted, and in those circumstances a conviction was not warranted."

Per Starke J in Sachse v Emms [1976] VicSC 604; MC 20/1977, 8 November 1976.

69. Reading 0.014%BAC – evidence given by defendant that he only consumed half a bottle of beer – expert evidence led to show that such consumption would result in a reading of .02%BAC – evidence given by defendant's wife in confl ict with defendant's version – charge dismissed by Magistrate – weight to be given to certifi cate of analysis and evidence of operation – evidence in rebuttal – whether accepted – Magistrate in error.

At a hearing before a Magistrates' Court, the prosecution led evidence that the defendant, when breathalysed, had a blood alcohol concentration of .140 per cent. The defendant gave evidence of having consumed only half a bottle of beer on the morning of the test, together with some medicine and some valium. Whilst at fi rst he denied having consumed liquor the previous night, he admitted having drunk the other half of the bottle of beer. He further gave evidence that he had retired at about 8 or 9 the previous night. This evidence was in confl ict with evidence given by the respondent's de facto wife, who deposed that a few of his Army friends had called that night with a few bottles. She said that she went to bed at 8.00pm, that the respondent had had a late night but that she did not

75

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAknow how much he had drunk that night and was not aware of the time he had gone to bed. An expert witness called by the respondent gave evidence that to have had a reading of .140 per cent at the time of the test, the respondent would have had to have a reading of .380 per cent at midnight the night before, accepting that he had only consumed two glasses of beer on the day of the test. He further deposed that he had conducted a test on the respondent simulating the conditions given in evidence by the respondent, obtaining readings of .02 and .018 per cent. The Magistrate dismissed the information. On review—

HELD: Order absolute. Dismissal set aside. Remitted to be reheard by another Magistrate.1. Whilst the ultimate burden of proof rests with the prosecution, the result of analysis is to be accepted by a court unless other admissible evidence, upon a reasonable view of that evidence affects the probative force of the result of such analysis creating a reasonable doubt as to the validity of such result of analysis.

2. The provisions of s80F of the Motor Car Act 1958 lead to the result that either an operator's evidence or evidence by certifi cate of the result of a test will, in the ordinary case and there is nothing abnormal in this respect about this case, have the result that until evidence is adduced throwing doubt on the certifi cate or on the analysis result, that result should be accepted by the court. That view is consistent with the authorities referred to.

3. Accordingly, the probative force of the direct evidence of the police test was logically left unaffected by the total evidence led on the defendant's behalf, and if that was correct, the decision reached by the magistrate was one which he could not properly reach.

4. What the magistrate decided here was a question of fact, but the reason why his decision should be interfered with was that upon analysis there did not appear a basis in the evidence for that decision.

Lush J:" ... As at present advised, my view on this matter is that none of the provisions of s80F have the effect of moving the ultimate onus of proof to the defence. I consider it unnecessary to decide that matter fi nally in the present case, and because I take that view I have not asked counsel to argue the matter out in detail before me. I think, however, and in this I agree, with respect, with Nelson J that the scheme of this Act is such that the leading of the kinds of evidence which s80F contemplates will produce in all cases that I can at present call to mind a situation in which the court of trial should act upon the analysis unless there is other evidence in the case which creates a doubt as to the validity of its result.

In the case of evidence given either by the operator or by certifi cate the court will almost inevitably be in the position that the evidence so given is the only direct evidence of the blood alcohol percentage at the time of analysis called before it. Any other evidence relevant to that question will be circumstantial evidence from which the court may be invited to draw inferences. The result of the tests, however, will be the only direct evidence and will in itself not be directly contradicted, and it seems to me in those circumstances appropriate that a court should look to the defence to advance some reason by adducing evidence of its own or by bringing forward matters in the course of the prosecution case which can in the mind of the court throw a doubt upon the result of the analysis.

... This evidence put a very different complexion on the position of the defence. It indicated that a necessary line of inquiry, if doubt was to be cast on the breathalyser result, was to investigate the drinking activities of the night before. The evidence of the respondent's wife was seriously at difference with his. The direct confl ict is over the time that he went to bed, but the mention of the friends coming around with bottles presents a very different picture from that presented by the respondent's evidence that he drank half a bottle of beer from his own refrigerator and, looked at as a whole, the wife's evidence suggests a grave incompleteness in the respondent's evidence.

... Accordingly my opinion is that the probative force of the direct evidence of the police test was logically left unaffected by the total evidence led on the defendant's behalf, and if that is correct, the decision reached by the magistrate was one which he could not properly reach.... That the magistrate decided here was a question of fact, but the reason why, in my opinion, his decision should be interfered with is that upon analysis there does not appear a basis in the evidence for that decision. ..."

Per Lush J in Van Elst v Tanner [1978] VicSC 401; MC 56/1978, 7 September 1978. 70. Reading 0.20% – Defendant convicted – evidence taken by Magistrate about defendant's consumption of intoxicating liquor prior to driving – defendant said he had 8-10 beers – Magistrate read down reading to less than .15%BAC – defendant disqualifi ed from driving for 12 months – Magistrate in error.

HELD: Order nisi absolute.On general principle it is not open to a magistrate to draw any inference as to the likely effect on a person of the consumption of intoxicating liquor. Matters of this technical nature are not of the requisite notoriety

76

DRINK/DRIVING in VICTORIAthat a magistrate can take judicial notice of what a certain number of beers does or does not amount to in percentages of alcohol in any person's blood. Accordingly, the magistrate was in error in accepting the evidence of the defendant's consumption of alcohol and acting on the blood/alcohol reading being less than 0.20%. McArthur v McRae [1974] VicRp 43; (1974) VR 353; and Caughey v McClaer [1977] VicSC 80, O'Bryan J, 9 March 1977, followed. Vaughan v Bechmann [1979] VicSC 358, Beach J, 31 July 1979, not followed.

Starke J:" ... This section [80G of the Motor Car Act 1958] clearly passes the burden to the respondent, once it has been proved by the production of the required certifi cate, that his blood count was a stated percentage. Proof, of course, is only on the balance of probabilities. The evidence did not disclose what percentages 8 or 10 beers would show, nor was there any evidence that the particular pills he had taken would have had any effect on his blood count. It is important to bear in mind that the burden of proof was on him.

The question, and the short point to be determined in this case, is this – was the magistrate, because no doubt of his knowledge gleaned in other cases, very likely many other cases, entitled, by accepting his evidence which he did and which he was entitled to do, and proceed to infer that 8 or 10 beers could not produce a blood count of .2? On general principle, in my view, it is clear that he could not draw any such inference. The only basis for any argument to the contrary is that the matter is of such notoriety that magistrates could, and I should, take judicial notice of it.

I do not regard matters of this technical nature to be of the requisite notoriety to enable me to take judicial notice of what a certain number of beers does or does not amount to, in percentages of alcohol in this man or any person's blood. I am supported in forming this view by a decision of Harris J in McArthur v McRae [1974] VicRp 43; [1974] VicRp 43; (1964) VR 353. There is also an unreported decision of O'Bryan J Alexander Caughey v McClaer [1977] VicSC 80, delivered 9 March 1977 which is to the same effect. I am informed that there is a decision of Beach J in Vaughan v Bechmann [1979] VicSC 358, unreported, delivered 31 July 1979 to the opposite effect. As a matter of principle, I am quite clear in my own mind that the decisions of Harris J and O'Bryan J are correct and that that of Beach J is not and, accordingly, I propose to follow the decisions of Harris J and O'Bryan J. In the circumstances, the order nisi will be made absolute."

Per Starke J in Healy v Wright [1981] VicSC 111; MC 13/1981, 26 March 1981.

71. Motor vehicle collision – driver underwent breath test – BAC reading 0.170% – driver said he consumed a quantity of intoxicating liquor post-accident – fi nding by Court that reading was 0.170%BAC but not satisfi ed that the driver's BAC was in excess of 0.05% – No specifi c fi nding that at the time of the offence the driver's BAC was not more than .05% – Charge dismissed – Court in error.

McK., a Senior Constable was driving his car just before midnight when it went into a table drain. He notifi ed the Police Station, and was required to take a breath test which produced the result of 0.170%. McK. gave evidence that (1) an approaching truck forced him onto the wrong side of the road, resulting in his car going into the drain, (2) that between 7:30pm & 11:00pm he had consumed a total of 7 or 8 7 oz. glasses of beer, in 2 hotels, and (3) that after the accident and prior to the police arrival, he consumed 2 drinks at his home, totalling about 6 ozs of whisky. He did not disclose this to the investigating Police, and consumption of alcohol after the accident was denied. After hearing evidence in the matter, the Court (comprising two justices of the peace) dismissed the charge on the ground that it could not be satisfi ed that McK's BAC was in excess of 0.05%. The court did not fi nd that at the time of the offence McK's BAC was not more than .05%. Upon appeal—

HELD: Appeal allowed. Dismissal set aside. Remitted for hearing before a Stipendiary Magistrate sitting at the Melbourne Magistrates' Court.1. Section 80G of the Motor Car Act 1958 ('Act') requires that where in a particular case it is established that within two hours after the driving the percentage of alcohol present in the blood of a person was in excess of .05 per cent the onus is then thrown on to that person to establish that at the time of the driving the percentage of alcohol in his blood was not more than .05 per cent. Holdsworth v Fox [1974] VicRp 27; (1974) VR 225, followed.

2. Whilst it will be appreciated that in the terms of s80G of the Act the Justices found that .170% of alcohol was present in McK.'s blood at a time within two hours after the offence, it will also be appreciated that the announcement of their decision did not contain a fi nding that at the time of the offence the percentage of alcohol in McK's blood was not more than .05%. The fi nding simply was that they were not satisfi ed that the content exceeded .05%.

3. In view of the fact that there was no fi nding which was the pre-requisite to the operation of s80G of the Act, the decision reached by the Justices must be regarded as being without legal justifi cation.

Lush J:

77

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIA" ... It will be appreciated that in the terms of s80G the justices in this case had found that .170% of alcohol was present in the defendant's blood at a time within two hours after the offence, but it will also be appreciated that the announcement of their decision made by the justices does not contain a fi nding that at the time of the offence the per centage of alcohol in the defendant's blood was not more than .05%. The fi nding simply was that they were not satis fi ed that the content exceeded .05%.

... In my opinion there never having been the fi nding required by Holdsworth v Fox the decision reached by the justices must be regarded as being without legal justifi cation. ...

Per Lush J in More v McKnight [1978] VicSC 526; MC 02/1979, 28 November 1978.

72. Reading of 0.250% BAC – driver said that he had only consumed fi ve 7-oz glasses of beer prior to the test – driver was coherent when apprehended and had the demeanour of a sober man – certifi cate not personally handed to driver when test completed – whether suffi cient compliance with statutory provision – certifi cate tendered to court purported to be a copy of the certifi cate – whether suffi cient – at the hearing the Magistrate accepted the evidence as to the driver's consumption of alcohol – driver convicted of offence – Magistrate in error.

HELD: Order nisi absolute. Conviction set aside. Information dismissed.1. What s80F (2) of the Motor Car Act 1958 ('Act') requires (inter alia) is that the operator of the breath analysing instrument shall deliver to the person whose breath has been analysed a certifi cate in the form or to the effect of Schedule Seven as soon as practicable after a sample of that person's breath has been analysed. Can it be said that the operator has complied with that provision in the event he does not personally hand the certifi cate to the person whose breath has been analysed but hands it to a third person who then, and in his presence, hands it to the person whose breath has been analysed? The section does not require the operator to personally hand the certifi cate to the person whose breath has been analysed – it requires him to deliver it to him. That requires him to do no more than ensure that the person whose breath has been analysed receives the certifi cate as soon as practicable after the analysis. It is of no consequence whether he personally hands the certifi cate to that person or hands it to him via a third person. There is suffi cient compliance with the sub-section once he has caused it to be delivered in the way he did in this case.

2. Section 80F(3) of the Act provides that a document purporting to be a copy of any certifi cate given in accordance with sub-s(2) "shall be prima facie evidence" etc. The signifi cant word in the sub-section for present purposes is the word "purporting". The document tendered in evidence on behalf of the informant purported to be a copy of the certifi cate given in accordance with sub-s(2). The certifi cate was headed "Schedule Seven – Motor Car Act 1958" and was in the form or to the effect of the certifi cate in Schedule Seven. Under the words "Schedule Seven – Motor Car Act 1958” there appeared the words "Certifi cate of Authorized Operator of Breath Analysing Instrument". The fact that the informant did not check the copy tendered in evidence with the certifi cate given to the defendant was of no signifi cance whatsoever. If the document tendered purported to be such a copy that was suffi cient.

3. In the present case the certifi cate tendered in evidence certifi ed that the breath analysing instrument indicated that the percentage of alcohol present in the blood of the defendant was .250 per cent. By virtue of the provisions of s80F(1) of the Act that was evidence that that was the percentage of alcohol present in the defendant's blood at the time his breath was analysed. The defendant swore that between approximately 7pm and 9.15pm he had consumed the equivalent of fi ve 7-oz glasses of beer. The magistrate accepted that evidence and accepted that that was the only alcohol he had consumed. The evidence further established that apart from the fact that there was a smell of alcohol on the defendant’s breath and that his eyes were a bit bloodshot he was perfectly coherent and his demeanour had been that of a sober man.

4. It is now a matter of notoriety that the consumption of approximately fi ve 7-oz. glasses of beer could not produce a percentage of alcohol in a person's blood as high as .250 or anything like that fi gure. That fact is now so generally known as to give rise to the presumption that all persons are aware of it. Since the introduction of the legislation under discussion the authorities in Victoria have constantly been at pains to bring home to the public the fact that the consumption of fi ve standard alcoholic drinks will produce a blood alcohol content of about .05 per cent.

5. In the present case the Magistrate had before him evidence in the form of the breathalyzer reading that the alcoholic content of the defendant's blood was .250 per cent. On the other hand he accepted the evidence which established that the defendant had only consumed fi ve 7-oz. glasses of beer, was perfectly coherent when apprehended and had the demeanour of a sober man. Once the Magistrate accepted that evidence he had no alternative but to reject the evidence as to the breathalyzer reading. As there was no other evidence as to the alcoholic content of the defendant’s blood, the information should then have been dismissed.

Beach J:" ... At the conclusion of the whole of the evidence it was submitted on behalf of the defendant that the uncontradicted evidence of the defendant to the effect that he had only consumed four 7-oz

78

DRINK/DRIVING in VICTORIAglasses of beer and approximately half a small can of beer taken together with the evidence of his demeanour, etc. was such as to override the prima facie effect of the reading on the certifi cate. The Magistrate rejected that submission stating that he accepted that the defendant had duly consumed the equivalent of fi ve beers and no more but that in the absence of some form of scientifi c or expert evidence would not fi nd the prima facie effect of the certifi cate rebutted. The Magistrate then convicted the defendant and fi ned him $150; cancelled all licences held by him under the Act and disqualifi ed him from obtaining any further licence for a period of two years.

... The section does not require the operator to personally hand the certifi cate to the person whose breath has been analysed – it requires him to deliver it to him. I consider that requires him to do no more than ensure that the person whose breath has been analysed receives the certifi cate as soon as practicable after the analysis. To my mind it is of no consequence whether he personally hands the certifi cate to that person or hands it to him via a third person. There is suffi cient compliance with the sub-section once he has caused it to be delivered in the way he did in this case.

... Whilst evidence of the percentage of alcohol indicated to be present in the blood of that person by a breath analysing instrument is by virtue of the provisions of sub-s(1) of s80F evidence of the percentage of alcohol present in the blood of that person at the time his breath was analysed by the instrument, it need not necessarily be the only evidence placed before a court in relation to the matter as indeed sub-s(1) makes clear. A defendant is not precluded from placing before a court such admissible evidence as he wishes whether it be of a scientifi c or expert nature or not in relation to the matter.

A court looking at the whole of the evidence placed before it including the percentage of alcohol indicated to be present in the blood of the person in question, by the breath analysing instrument, must then make a fi nding in relation to the matter, that is, a fi nding as to what was the percentage of alcohol present in the blood of that person at the time his breath was analysed by the instrument.

... In my opinion it is now a matter of notoriety that the consumption of approximately fi ve 7-oz. glasses of beer could not produce a percentage of alcohol in a person's blood as high as .250 or anything like that fi gure. I consider that that fact is now so generally known as to give rise to the presumption that all persons are aware of it. Since the introduction of the legislation under discussion the authorities in this State have constantly been at pains to bring home to the public the fact that the consumption of fi ve standard alcoholic drinks will produce a blood alcohol content of about .05 per cent. In the present case the Magistrate had before him evidence in the form of the breathalyzer reading that the alcoholic content of the defendant's blood was .250 per cent. On the other hand he accepted the evidence which established that the defendant had only consumed fi ve 7-oz. glasses of beer, was perfectly coherent when apprehended and had the demeanour of a sober man. In my opinion once the Magistrate accepted that evidence he had no alternative but to reject the evidence as to the breathalyzer reading. As there was no other evidence as to the alcoholic content, of the defendant’s blood, the information should then have been dismissed. Accordingly the order nisi will be made absolute with $200 costs. The application will be set aside and the information will be dismissed."

Per Beach J in Vaughan v Bechmann [1979] VicSC 358; MC 42/1979, 31 July 1979.

73. Reading .135% BAC – evidence given by defendant as to consumption of alcohol prior to interception – evidence corroborated by other witnesses – expert witness called – opinion given by expert that defendant's BAC at the time of driving would have been .014% or thereabouts – fi nding by Magistrate that it was unlikely the witnesses would know amount of alcohol consumed by defendant – further fi nding that difference too great between reading and that given by expert witness – charge found proved – whether Magistrate in error.

Defendant was tested on a breathalyser and the reading was .135%. Evidence of drinks consumed was given. An expert witness was called who said the reading should have been .014%. The Magistrate said it was unlikely that the defendant and his witnesses would know the exact amount the defendant had drunk and stated that he did not believe the defendant had discharged the onus on him. Upon appeal—

HELD: Order nisi absolute. Matter remitted to the Magistrates' Court to be reheard.1. In relation to the issues of credibility and the weight to be given to particular aspects of the evidence, the assessment of the truth and weight of the evidence was entirely a matter for the Magistrate. Accordingly, it was impossible to say that the Magistrate should have accepted the defence evidence.

2. In relation to the words used by the Magistrate namely, that the defendant was under an obligation of proof to displace the prima facie evidence, such words indicated a wrong approach to the ultimate onus of proof.

Lush J:" ... The question in this case, accordingly, is whether the Stipendiary Magistrate was, in his references

79

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAto onus merely saying that the prima facie case was unshaken and implying that he was satisfi ed of guilt beyond reasonable doubt; or, whether he was saying that he considered whether under s80F, or the irrelevant s80G or for some other reason, that the defendant was under an obligation of proof to displace the prima facie evidence.

... Because of the form of these proceedings I think that this case must be decided by taking the words "do not believe the defendant had discharged the onus on him" as indicative of the Stipendiary Magistrate's approach. The words to me indicate a wrong approach to the ultimate onus of proof and, as this is a matter of fundamental importance, particularly in cases of this kind, where it would not be diffi cult for the regular hearing of them to become not much more than a routine, that the ultimate onus should always be kept in mind. For these reasons, I think that the order should be made absolute. ..."

Per Lush J in Patten v Van der Haar [1982] VicSC 415; MC 75/1982, 19 October 1982.

74. Schedule 7 certifi cate received in evidence – presumption – onus on defendant – evidence of consulting chemist – no evidence of precise percentage of blood/alcohol – evidence of error in breathalyser reading – whether admissible – whether presumption rebutted – Magistrate in error in dismissing charge.

P. was intercepted driving his motor car. After undergoing a preliminary breath test – which proved positive – P's breath was analysed showing a reading of .095%. At the hearing, the Schedule 7 certifi cate was tendered in evidence. P. gave evidence about his consumption of alcohol, and a consulting analytical chemist was called who said that, based on previous tests he had conducted, P. could have had a blood/alcohol content between .04% and .095%, and that the breathalyser machine may overestimate the blood/alcohol content up to .028%. The Magistrate dismissed the information, having been satisfi ed that the pre sumption in s80G of the Motor Car Act 1958 had been rebutted. On order nisi to review—

HELD: Order absolute.(1) The effect of the presumption created by s80G of the Motor Car Act 1958, is that the defendant bears the onus of proving that at the time of driving, the percentage of alcohol in his blood was:

(a) either some other precise percentage; or(b) a percentage lower than is signifi cant for any relevant purpose.Holdsworth v Fox [1974] VicRp 27; [1974] VR 225, applied.

(2) As the defendant's evidence did not show what was the precise percentage of blood/alcohol at the time of driving, nor that it was a percentage lower than .05% from that recorded by the breathalyser, then it did not rebut the presumption created by s80G of the Act.

(3) As the evidence of the consulting chemist was not suffi ciently connected with the defendant, it is doubtful whether the chemist's evidence was admissible. Larchin v Traynor [1980] VicSC 116; MC 28/1980, followed.

(4) In order to prove an error of .028% in the breathalyser used by the operator in this instance, the consulting chemist would have had to test the instrument personally and determine, as a fact, that an error of over-estimation existed in the instrument used. Francis v Stevens [1983] VicRp 21; [1983] 1 VR 260, not followed, in relation to the admissibility of evidence concerning breathalyser error.

O'Bryan J:" ... A consulting chemist, named Roberts, was called for the respondent. Amongst other matters, he said this, that, in his opinion, based on previous tests he had conducted, "a person who had consumed only two stubbies of beer some 15 minutes before interception could be expected to register a reading of between 0.04 per cent and 0.05 per cent and, as a person's blood level is rising steeply at this time, a reading of 0.095 per cent at the time of the test could conceivably have been obtained".

... Mr Roberts was unable to say, and did not in fact say to the Court, that at the time of the driving the percentage of alcohol present in the respondent's blood was a different percentage, being either some other precise percentage or a percentage lower than .05 per cent from the percentage recorded by the breathalyser. His evidence, therefore, fell short of discharging the onus created by s80G. The evidence at most might be said to have reduced the reading by .028 per cent but I do not believe it went that far. In order to prove an error of .028 per cent in the breathalyser used by the operator, in this instance, Roberts would have had to test the instrument personally and determine, as a fact, that an error of over-estimation existed in the instrument used.

In my opinion, the evidence called on behalf of the respondent did not rebut the presumption created by s80G of the Act. Therefore, Ground 1 of the order nisi is made out. Accordingly, I fi nd it unnecessary to consider the effect of s80F(3). The learned Magistrate ought to have convicted the respondent on

80

DRINK/DRIVING in VICTORIAthe evidence before him, as all the ess ential elements of the offence charged were proved. ...

Per O'Bryan J in Hearn v Poot (1984) 2 MVR 79; [1984] VicSC 135; MC 10/1984, 29 March 1984.

75. Schedule 7 certifi cate admitted into evidence – expert evidence led in reply – presumption created by s80G Motor Car Act 1958 – whether copy certifi cate raised presumption – when alcohol percentage "established".

McW. pleaded guilty to a charge of driving whilst exceeding .05% blood/alcohol. At the hearing, McW. did not give evidence; however, expert scientifi c evidence was adduced on his behalf generally to the effect that the breath analysing instrument of the kind used could have given a reading in excess of McW's actual blood/alcohol concentration at the relevant time. The Magistrate, while convicting McW., expressed himself not to be satisfi ed that the defendant's blood/alcohol concentration at the relevant time was in excess of .15%, and proceeded to impose a fi ne, cancel McW.'s licences and disqualify him from obtaining a licence for 12 months. R., the informant, applied for an order to review—

HELD: Order nisi discharged.(1) The presumption created by s80G of the Motor Car Act 1958 does not arise until the particular percentage of alcohol is "established".

(2) The particular percentage of alcohol is not "established" until all of the evidence is given; that is, the prima facie evidence afforded by the 7th Schedule copy certifi cate, any other relevant evidence (if any) together with any evidence adduced to meet or qualify the prima facie evidence.

(3) If the prima facie evidence is not met or qualifi ed and the time of the breath analysis was within two hours of the alleged offence, the presumption created by s80G of the Motor Car Act 1958 is raised – until the contrary is proved – that the alcohol concentration referred to in the copy certifi cate was not less at the time of the alleged offence. Holdsworth v Fox [1974] VicRp 27; [1974] VR 255; and Francis v Stevens [1983] VicRp 21; [1983] 1 VR 260, applied. Larchin v Traynor [1980] VicSC 116; MC 28/1980; and Hearn v Poot [1984] VicSC 135; MC 10/1984 distinguished.

(4) Observations as to matters to be considered when making fi ndings of facts concerning the accuracy of a breath analysis by a breathalyzer, such as:(i) the weight and effect to be given to expert evidence;(ii) whether the breath analysing instrument produced a high or low reading;(iii) the extent of any possible inaccuracy and the proportion of the reading to the suggested reading; and(iv) the circumstances in which the expert performed his tests, the number of tests and the percentage producing a discrepancy between breath and blood analysis, and the reasons explaining such discrepancy.

Tadgell J:" ... In my opinion s80G does no more than create a rebuttable presumption that a percentage of alcohol established to have been present in a person's blood at any time within two hours after the commission of a relevant alleged offence by him was at the least present in his blood at the time of the commission of the alleged offence. It is to be noted that the presumption does not arise unless and until the presence of a particular percentage of alcohol in a person's blood at a time within two hours of the alleged offence is "established". The section has nothing to say about the means by which that fact might be established. It might be done by evidence of the result of a blood test or by other relevant evidence, including no doubt such evidence as the result of a breath test provides. If evidence of the result of a breath test is offered, that might be provided, to the extent that s80F(3) allows, by the tender of a copy certifi cate in the form of that in the 7th Schedule; or it might be provided by oral evidence pursuant to s80F(1). If, as in the present case, a copy certifi cate is tendered, it will be prima facie evidence of the percentage referred to in it. What ever evidence is used, however, its quality cannot be improved by virtue of s80G, for that section of course presupposes that the fact is "established" before the presumption to which it refers arises. It cannot be right, therefore, to argue that, upon the mere tender of a copy certifi cate under s80F(3), s80G creates a presumption of its correctness until the contrary is proved.

If the certifi cate "established" (to use the word in the section) that within two hours of the commission of the respondent's alleged offence the percent age of alcohol in his blood was .17 per cent, the presumption referred to in s80G arose unless the contrary was proved. The copy certifi cate, however, was only prima facie evidence. Any evidence called to meet that evidence had therefore to be considered before a conclusion was reached as to whether s80G applied at all.

... If when all the evidence is considered, the tribunal is satisfi ed that the prima facie evidence afforded by the certifi cate is not rebutted or qualifi ed, it is open to the tribunal to conclude (and no doubt it usually would conclude) that proof of a blood alcohol level had been established as at the

81

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAtime of the analysis as recorded in the certifi cate. Then, but only then, does s80G operate, if the time of the analysis was within two hours of the alleged offence; and the presumption is raised until the contrary is proved that the relevant alcohol level at the time to which the certifi cate refers was not less at the time of the alleged offence. This, in my opinion, is the only way in which s80G could become relevant to the present case. If it was not open to the Stipendiary Magistrate to conclude that the prima facie evidence adduced for the applicant did not establish that the respondent's blood alcohol level was .17 per cent, then clearly s80G applied, and the respondent's evidence did not rebut the presumption that the section erects.... It might be said that the evidence of Mr Roberts, when boiled down, did no more than indicate that a breath analysis made by a machine of the kind in question can be inaccurate. It was open to the Stipendiary Magistrate to accept or reject that view; and I think he must be presumed to have accepted it here. What weight and effect he gave in the circumstances to that fi nding of fact was for him to decide. He was also entitled, I think, to give such weight as he thought fi t to the explanation Mr Roberts gave for any possible inaccuracy of the test. These were peculiarly questions of fact for the Magistrate to consider in the context of the whole of the evidence. No doubt the Magistrate was also entitled to consider (and I would assume he did consider) the relatively high reading produced by the instrument in this case, the extent of any possible inaccuracy and the proportion of the one to the other.

... My mind has, I must confess, fl uctuated to some extent upon the question whether the conclusion which the Magistrate reached was open on the evidence before him. This might be a case very close to the line, but I have decided in the end that I would be arrogating to myself the Magistrate's task if I were to say that the conclusion he reached was one which was not reasonably open to him. Moreover, one should be slow to conclude in order to review proceedings, I think, that a decision of the kind the Magistrate reached here was not properly open to him. ..."

Per Tadgell J in Reeves v McWilliams [1985] VicSC 475, [1986] VicRp 31; [1986] VR 321; (1985) 3 MVR 81; MC 40/1985, 25 September 1985.

76. Reading more than .05%BAC – notice given requiring operator to attend court – prosecutor unaware of notice – evidence defi cient in formal respects – Magistrate indicated that it was too late to re-open prosecution case – charge dismissed – Magistrate in error.

Schedule Seven certifi cate relied on. After the Informant's case was closed, Counsel for the Respondent called the Informant to give evidence, that the Informant had received a letter from the Solicitor for the Respondent, which purported to be a "notice" complying with the requirements of s80F(3). The letter was then tendered in evidence, having the effect of rendering the statements in the Schedule Seven certifi cate of no evidentiary value, The Prosecutor, until that time, had been unaware of the existence of the letter. Any application to re-open the Informant's case, and call the Operator, was forestalled by the Magistrate, who stated it was too late to re-open the case, and dismissed the information.

HELD: The Copy Schedule Seven certifi cate is prima facie evidence of the facts stated therein, unless the Defendant has given the Informant, written "notice" that he requires the person giving the certifi cate to be called as a witness. The proper exercise of the Magistrate's discretion was to permit the re-opening of the Informant's case.

Jenkinson J:" ... By way of aside it may be observed that the certifi cate was, in any event, admissible, since s80F(1) conditions the admissibility of evidence of the percentage of alcohol indicated to be present in the blood of a person by a breath analysing instrument upon compliance with the provisions of s80F(2), which requires that a certifi cate of the kind now in question should be signed by the operator and delivered to the person whose breath has been analysed. Proof of compliance with those requirements of s80F(2), admitted tender of the document signed by the operator.

... But on the material that was before him, in my opinion, there could be an exercise of his discretion conformable with law in only one way. He had no reason to suppose but that the entire hearing of the information had been conducted while an unqualifi ed and uncontradicted statement of the defendant's intention to call the operator as a witness had been in the informant's possession since the end of September 1980. If the respondent's stated intention had been carried out, the proofs which it was submitted on the respondent's behalf were lacking could have been, and almost inevitably would have been, elicited from the operator in the course of his evidence.

The learned Magistrate had also a plain admission by counsel for the respondent that counsel had refrained during the course of the informant's case from adverting to the letter or to the subject matter of the letter in the hope that there would be such a failure or proof as in fact occurred. In those circumstances, in my opinion, the only proper exercise of the Magistrate's discretion was to permit the re-opening of the informant's case if he had concluded, as one must believe that he did conclude, that the letter satisfi ed the requirements of s80F(3).

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DRINK/DRIVING in VICTORIA... Mr Moorhead has pointed out that there was no application made by Blencowe for leave to re-open his case and that is perfectly correct. On the other hand, it is also clear from the frank description by counsel for the respondent in his affi davit that the Magistrate forestalled such an application by indicating that it could not be granted. In those circumstances I would treat the prosecuting sergeant, Blencowe, as having made the application. He continued to raise, or draw matters to the attention of the Magistrate after that statement was made, and I would regard him as to be treated as having sought to re-open the case if his submission were rejected that the letter did not constitute a notice complying with s80(3).

... This was a misunderstanding of a different order, in my opinion, and called for the immediate and emphatic intervention by the learned Magistrate, without the need for any application by the sergeant representing the informant."

Per Jenkinson J in Birthisel v Wheeler [1981] VicSC 469; MC 56/1981, 13 October 1981.

77. Reading of 0.16%BAC – post-driving consumption of alcohol – accepted by Court – charge dismissed – Court in error.

The defendant was involved in a collision whilst driving his motor car. After the collision he went home and according to his evidence and that of his wife, he consumed "two or three inches in a normal size drinking glass" of brandy. Later within two hours after the defendant was driving the defendant was breathalyzed at the police station with a reading of .160%.

It was submitted to the Justices at the hearing of an information for .05% (s81A of Motor Car Act 1958) that if the Court accepted that the defendant had the brandy mentioned between the time of collision and the time of taking the breath test it must follow that the brandy would affect the reading of .16% and therefore the charge should be dismissed. The prosecutor made submissions to the contrary. The Justices were referred to Holdsworth v Fox [1974] VicRp 27; [1974] VR 225 and Turner v Bunworth [1970] VicSC 147, a decision of Menhennitt J of 10 June 1970. Upon order nisi to review—

HELD: Order absolute. Dismissal set aside.1. It is s80F(3) of the Motor Car Act 1958 which made the certifi cate which was tendered in this case prima facie evidence in any proceedings which were referred to in sub-s(1) of the fact and matter stated therein unless the accused person gave notice in writing to the informant a reasonable time in the circumstances before the hearing that he required the person giving the certifi cate to be called as a witness. The substance of the provision was that the certifi cate in the appropriate form was prima facie evidence in the proceedings against the defendant of the facts and matters stated therein.

2. The evidence which the Justices accepted established that the defendant had consumed alcohol between the time of the alleged offence and the time that the blood test was taken, but that was all that it established. There was no way at all in which from that evidence the Justices could have come to the conclusion that at the time of the accident the defendant's blood alcohol content was some other particular percentage or could have concluded what was the blood alcohol content of the defendant's blood at the time of the offence, and there was also no way in which from that evidence the Justices could have come to the conclusion that at the time of the offence the blood alcohol content of the defendant was less than .05 per cent. Unless the evidence could have enabled the Court to come to one or other of those conclusions, then the evidence which had been called and accepted was insuffi cient to prove the contrary of what had to be presumed by virtue of the provisions of s80G. Holdsworth v Fox [1974] VicRp 27; [1974] VR 225, followed. R v Durrant (1969) 3 All ER 1357; (1970) 1 WLR 29, distinguished.

Harris J:" ... It is s80F(3) which makes the certifi cate which was tendered in this case prima facie evidence in any proceedings which are referred to in sub-s(1) (these were proceedings of that kind) of the fact and matter stated therein unless the accused person gives notice in writing to the informant a reasonable time in the circumstances before the hearing that he requires the person giving the certifi cate to be called as a witness.

The substance of the provision is that the certifi cate in the appropriate form is prima facie evidence in the proceedings against the defendant of the facts and matters stated therein. (See Section 80G)

In this case the prosecution was entitled to rely upon that section to establish that a blood alcohol content of .160 percentage at 1.40am on the 28th August 1974 was evidence that the percentage of blood alcohol present in the defendant's blood at the time the offence was committed was .160, because the time at which the offence was alleged to have been committed was within two hours before 1.40am.

... The evidence which the Justices accepted did establish that the defendant had consumed alcohol

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PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAbetween the time of the alleged offence and the time that the blood test was taken, but that is all that it established. There was no way at all in which from that evidence the Justices could have come to the conclusion that at the time of the accident the defendant's blood alcohol content was some other particular percentage.

In other words, there was no way in which from that evidence the Justices could have concluded what was the blood alcohol content of the defendant's blood at the time of the offence, and there was also no way in which from that evidence the Justices could have come to the conclusion that at the time of the offence the blood alcohol content of the defendant was less than .05 per cent. Unless the evidence could have enabled the Court to come to one or other of those conclusions, then the evidence which had been called and accepted was insuffi cient to prove the contrary of what had to be presumed by virtue of the provisions of s80G.

The result is that the Justices were in error in coming to the decision that they did. They ought not to have dismissed the information but they should have convicted the defendant. The case upon which the Justices relied is not relevant to the consideration of the provisions of s80G. The English legislation follows a different pattern from the Victorian legislation. From what I have said, it follows that the order of the Justices must be set aside. ..."

Per Harris J in Dowdell v Park'Nicoll [1975] VicSC 298; MC 40/1975, 12 June 1975.

78. Blood sample taken – evidence by defendant of his belief that he consumed alcohol after driving – presumption – Magistrate in error in dismissing charge.

F. was involved in a motor car accident. He was conveyed to hospital where a blood sample was taken from him, indicating a blood/alcohol level of .149%. When the matter came on for hearing, F. gave evidence that his recollection of the accident was blurred, but that he believed – on the information of a friend – that he had been given brandy to drink whilst waiting for the ambulance. As the friend was outside Australia at the date of hearing, F. sought to tender a statutory declaration made by the friend; this was excluded from evidence. However, the court dismissed the information on the ground that the evidence of subsequent drinking raised a reasonable doubt. On order nisi to review—

HELD: Order nisi absolute.1. It was not reasonably open to the court to do other than act on the presumption expressed in s80G of the Motor Car Act.

2. Obiter: Where there is evidence that a defendant has consumed alcohol after driving but before being tested, it does not follow that the defendant should be acquitted. Wright v Bastin (No. 2) [1979] VicRp 35; (1979) VR 329, applied.

Gray J:" ... It is clear that there was no admissible evidence at all to show that the respondent had consumed any alcohol after the accident. The Statutory Declaration of the witness was rightly excluded from evidence, and the respondent's statement of his belief was clearly inadmissible hearsay material.

... To my mind, this case is a simple one. The Magistrates' Court had ample evidence to support a conviction. There was a statutory presumption in relation to the matter which the Magistrates' Court departed from in dismissing the information. It was not reasonably open to the Magistrates' Court to do other than act on the presumption expressed in s80G of the Motor Car Act and, accordingly, I am satisfi ed that the court was in error in dismissing the information. So, in the circumstances, the defendant having gone into evidence and put his case, I feel justifi ed in substituting a conviction for the order of dismissal made by the Magistrates' Court."

Per Gray J in Peters v Flude [1981] VicSC 330; MC 51/1983, 15 August 1983.

79. Consumption of alcohol after driving but before test – presumption – Magistrate in error in dismissing charge.

V. was the driver of a motor car which was involved in an accident. After the accident V. ran to his brother's home where he was given some brandy "to settle his nerves". When V. was subsequently tested, he had a blood/alcohol concentration of .170%. At the hearing, V. said that he had consumed some 7-8 glasses of beer prior to the accident. At the end of the case, it was submitted that the charge should fail because of the post-accident consumption of alcohol. The magistrate agreed, and he dismissed the charge. Upon order nisi to review—

HELD: Order nisi absolute.1. Once the presumption created by s80G of the Motor Car Act took effect, it was for the defendant to prove by admissible evidence, that his blood/alcohol level at the time of driving was lower by some relevant amount.

2. It was not open to the court to make any fi ndings as to the effect of post-accident consumption of alcoholic

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DRINK/DRIVING in VICTORIAliquor without the assistance of expert evidence. Holdsworth v Fox [1974] VicRp 27; (1974) VR 225, applied.

Gobbo J:" ... In the present case the evidence plainly established the percentage of alcohol present in the defendant's blood at the time of the test and that percentage was presumed present at the time of the driving until the defendant proved the contrary, either by proof of some other precise percentage or by proof, that it was less than was signifi cant for any relevant purpose. Thus the defendant might prove that it was less than .05 per cent or he might prove that it was less by some amount that brought the level into a lower category of penalty. It would not suffi ce to displace the presumption simply to prove that the level was probably less at the time of driving than it was at the time of the test.

... A Court may reach certain conclusions as to the effect of consumption of liquor either by non-expert evidence or even by taking judicial notice of notorious facts, but neither method in my view would normally suffi ce to provide contrary proof for the purposes of s80G in the present type of case. Here the Court, for example, had no evidence of the effect of consumption of varying quantities of brandy and could not be expected to attempt to make fi ndings without the assistance of admissible evidence, that is to say expert evidence.

... In my view this argument fails at the threshold because of the absence of any challenge as to the accuracy of the reading and in view of the absence of any such fi nding. Furthermore, it is not open to a Court to expand the effect of what may be notorious knowledge by its own unaided intuition, there being no evidence at all as to the effect that eight beers could have in relation to this defendant in the present circumstances. Once the presumption created by s80G of the Motor Car Act took effect, it was for the defendant to prove by admissible evidence, whether in the prosecution's case or his own, that the blood alcohol level at the time of driving was lower by some relevant amount. If all that occurred was that the Stipendiary Magistrate felt that some unknown increase in the blood alcohol level was caused by subsequent drink between driving and testing, then in my view he was obliged to give effect to the reading. In the present case, at most the learned Stipendiary Magistrate appears to have found a doubt on the substantive offence because of his fi nding that some brandy had been consumed and his uncertainty as to the effect of that intervening consumption. ..."

Per Gobbo J in Matthews v Van Der Maat [1983] VicSC 393; MC 52/1983, 28 September 1983.

80. Schedule 7 certifi cate tendered to Bench Clerk – whether in evidence – effect of certifi cate – Magistrate in error in dismissing charge.

Reg 227 of the Motor Car Regulations 1966 provides that:"An authorized operator shall not require any person to undertake a breath analysis until he is satisfi ed that such person has not consumed any intoxicating liquor for a period of at least 15 minutes prior to the analysis."

When giving evidence on the hearing of the charge, the informant V. handed the Schedule 7 Certifi cate to the Bench Clerk; neither the Magistrate nor B.'s counsel saw the certifi cate. At the end of the prosecution case, B.'s counsel submitted that there was no case to answer on the ground of non-compliance with Reg 227. The Magistrate agreed and dismissed the case. On order nisi to review—

HELD: Order nisi absolute.1. When the informant tendered the certifi cate by handing it from the witness box to the Bench Clerk, it was the clear duty of the Magistrate to accept it into evidence.

2. Once the certifi cate became evidence, it constituted prima facie evidence of compliance with Reg 227. Lloyd v Thorburn [1973] VicSC 104; [1974] VicRp 2; (1974) VR 12, applied.

Fullagar J:" ... I regard the allegation that the informant, "endeavoured to tender" the certifi cate, as being a virtually useless statement of ultimate fact, representing a conclusion from unstated facts and indeed, I incline to the view that the proper conclusion is that the informant did tender the certifi cate by handing it from the witness box to the Clerk of Courts. If it was tendered, then it was the clear duty of the Magistrate to accept it into evidence by allocating it an exhibit number in the pleadings – subject only to objection taken to it by the defence and if any objection was taken by the defence, it was the Magistrate's duty to rule upon the objection. If the certifi cate were in evidence, it would – as a matter of law – constitute prima facie evidence that Regulation 227 had been complied with. I say as a matter of law, because this was decided by Nelson J in several cases under the name of Lloyd v Thorburn [1973] VicSC 104; [1974] VicRp 2; (1974) VR at p12.

... If the certifi cate was not tendered, then I should have thought that it was clear that it was not tendered as a result of inadvertence and oversight on the part of the Prosecuting Sergeant. If the

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PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAcertifi cate was tendered but did not get into evidence, I am of the opinion that the failure of the Prosecutor to ensure that it got into evidence was due to an oversight within the meaning of that expression as used by McInerney J in Wylie v Nicholson [1973] VicRp 58; (1973) VR 596 at p609. Certainly it was not due to any relevant conscious election.

In all the circumstances, I consider that this Court should act upon the footing that the Prosecutor failed by readily excusable oversight, to ensure that the Schedule 7 certifi cate was accepted into evidence. I consider that this Court should now order that it be admitted into evidence and, subject to what is said below, propose so to order. ..."

Per Fullagar J in Vowles v Byers [1983] VicSC 459; MC 57/1983, 4 November 1983.

81. Notice to Produce breath analysing instrument – instrument not produced at hearing of charge of refusal to furnish sample of breath – charge dismissed – Magistrate in error.

The objection taken by counsel for the defendant was that a notice to produce the machine had been given to the informant and the police had refused to produce it, and that the evidence should not be received, and further that the label on the side of the machine which identifi ed it by its trade name, the name of the manufacturer or its patent number was documentary evidence and that this should not be admitted pursuant to the "best evidence" rule which called for the production of the machine so that the court might read the label itself. A notice to produce was called for from the custody of the police and was put in evidence. The charge was dismissed by the Magistrate. Upon appeal—

HELD: Order absolute. Dismissal set aside. Remitted to the Magistrates' Court for hearing and determination in accordance with the law.1. The fi rst of the defendant's arguments was based on an operation of the so-called "best evidence" rule which had long ceased to be accepted. That operation was that secondary evidence could not be given of the condition of a chattel until the chattel was produced. The rules as to a notice to produce applied only to documents. Accordingly, this argument could not be sustained.

2. The second argument that oral evidence could not be given of the markings of the instrument without producing them, rested upon a failure to distinguish between writings which were designed to relate events or facts and writings which were no more than identifying marks or features of an object. To the former the rule as to secondary evidence only being admissible in certain circumstances was applicable; to the latter it was not.

3. The words and fi gures to be borne by types of apparatus which are approved as breath analysing instruments are merely identifying marks, like the number on a motor car, or details of appearance, like a monogram on clothing, and however much they go to authenticate the character of the chattel, oral evidence of them can be given without observance of the conditions governing secondary evidence of a document.

4. The giving of the notice to produce the breath analysing instrument was misconceived, and the ground put forward for rejection of the oral evidence that the instrument was an approved breath analysing instrument, based upon its being a chattel inscribed with authenticating marks could not be sustained.

5. Proof of the fact that the instrument, to which the defendant was to furnish his sample, was approved, was enabled by s408A(3)(b). The instrument was, however, not lost or destroyed, so as to be beyond the reach of evidence for the defence. It could have been inspected by the defendant and any witnesses he would wish to call. If necessary he could have obtained an order from a justice of the peace pursuant to s207 of the Justices Act 1958, although one would expect that on a reasonable request being made it would not have been necessary to obtain such an order before the police would allow inspection. However, whether that would have been so or not, it was not rendered impossible for the defendant to obtain inspection and give evidence as to whether the instrument was or was not an approved breath analysing instrument.

6. If the operator had been allowed to give the evidence which subs(3)(b) permitted him to give, there would have been prima facie evidence of compliance with the regulations, in the fi rst instance, whatever the facts might have been, and unless there was a fi nding to the contrary effect of this prima facie evidence, there was no justifi cation for a dismissal on that account. Notwithstanding that subs(3)(b) enabled evidence to be given by persons qualifi ed as prescribed, that the instrument was properly operated and in relation to it all regulations made under the section with respect to breath analysing instruments were complied with, there was in fact nowhere in the section or in the Act any requirement that the regulations had to be complied with; therefore, compliance with the regulations was not a relevant circumstance in relation to the offence charged, so that failure to comply with them could not justify a dismissal.Per Gowans J in Hindson v Monahan [1970] VicRp 12; [1970] VR 84; [1969] VicSC 180; MC 07/1969, 29 September 1969.

82. Refusal to provide a sample of breath – driver a police offi cer – Chief Commissioner prescribed

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DRINK/DRIVING in VICTORIAthat only sub-offi cers should test police offi cers – Magistrate held that the driver exhibited a reason of a substantial character for refusing the breath test – Magistrate not in error.

HELD: Order nisi discharged.1. The question was whether the fact that the defendant was induced to refuse to furnish a breath sample for analysis by the fi rst constable because he had a belief that there was an instruction by the Chief Commissioner, the effect of which was to prescribe that only sub-offi cers should test members of the force, exhibited a reason of a substantial character.

2. It was open to the Magistrate to take the view that the mere awareness by the defendant of the fact that what was contemplated would run counter to a direction given by the head of the force to its members and that he was to be a central fi gure in what was to take place could provide a reason for not submitting to it, which could not be dismissed as being without weight or as lacking in substance, and which was entitled to be regarded as "of a substantial character".

3. Once the defendant's reason for his refusal had been identifi ed in the terms in which it was described in the Magistrate's fi nding, it was clearly open to the magistrate to have found as a matter of fact, having regard to the evidence that the defendant's objection was referable to the rank of the operator, that the refusal was not merely from a desire to avoid providing information which might be used against him.Per Winneke CJ (Smith and Gowans JJ agreed) in Burns v Storey [1971] VicRp 50; [1971] VR 388; MC 14/1969, 31 October 1969.

83. Whether driver of motor car who is under arrest obliged to comply with a police offi cer's request to furnish a sample of breath.

HELD: 1. In Thomson v Cotton [1973] VicSC 247, VSC, 8 October 1973, Murphy J ruled that, notwithstanding the provisions of s80F(6) of the Motor Car Act 1958 ('Act') which authorized a member of the police force to require a person who had become a suspect by answering to one or other of the descriptions therein set out to furnish a sample of his breath, and s80F(8) which obliged the "suspect" to do so, and s80F(11) which made it an offence for him to refuse or fail to do so, such provisions did not apply to a person who when so required was already under arrest on a charge of driving a motor car while under the infl uence of intoxicating liquor under s80B and that a refusal to furnish the sample was therefore not an offence under s80F(11) of the Act. The basis of his Honour's reasoning was that there was applicable to the case of a person under arrest a common law rule that protected him from being obliged to incriminate himself in any form. He held that in the absence of clear words in the relevant legislation, indicating that the legislature had intended to abrogate the common law rule, the legislation should not be construed so as to require a person under arrest to furnish a sample of his breath, the analysis of which might incriminate him, and further that on its proper construction s80F(11)(a) of the Act did not evince an intention to make it apply to a person under arrest.

2. The Court of Appeal did not share these views. Section 80F(11)(a) was not to be read down in the way suggested but applied to all persons in respect of whom the requirements of s80F(6) and s80F(8) had been fulfi lled. The contrary conclusion appeared to depend in part upon attributing to a maxim of the common law a breadth of operation which it did not have and in part upon fi nding in the relevant statutory provisions indications of intention which were not there and downgrading the clarity of the meaning of the provisions themselves. Thomson v Cotton [1973] VicSC 247, VSC, 8 October 1973, Murphy J, overruled.

3. That there is a fundamental principle that no man can be compelled to incriminate himself cannot be gainsaid. The maxim is one expression of the principle which has been quoted and applied countless times. But as an examination of the history of this principle shows, the protection afforded by it has always been accorded, and has only been accorded, in respect of a right to refuse to answer incriminating questions and not to incriminate himself, when being interrogated in some form of judicial inquiry. Even in the United States where the common law maxim has been transmuted into constitutional safeguards or statutory protections the principle has not been extended beyond incriminating answers to questions.

4. Accordingly, the common law principle regarding self-incrimination did not apply to the taking of a breath sample pursuant to s80F of the Act.

The Full Court (Gowans, Nelson and Anderson JJ):" ... We are of opinion that s80F(11)(a) is not to be read down in the way suggested but applies to all persons in respect of whom the requirements of s80F(6) and s80F(8) have been fulfi lled. The contrary conclusion appears to us to depend in part upon attributing to a maxim of the common law a breadth of operation which it does not have and in part upon fi nding in the relevant statutory provisions indications of intention which are not there and downgrading the clarity of the meaning of the provisions themselves.

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PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIA... For these reasons, we are of opinion that the common law principle regarding self-incrimination does not apply to the taking of a breath sample pursuant to s80F. This is suffi cient answer to this part of the argument.

... In our opinion, there was no foundation in the evidence before the magistrate (other possibly than the fact of arrest) to support the conclusion that there was any unfairness to the defendant in the obtaining of the evidence which enabled him to exercise his discretion by rejecting the certifi cate as evidence of the alcoholic content of the defendant. ..."

Per Gowans, Nelson and Anderson JJ in King v McLellan; Kerley v Farrell [1974] VicRp 92; [1974] VR 773, MC 45/1974, 24 June 1974.

84. Refusing preliminary breath test – evidence not given by police informant at the hearing that he entertained the belief that the defendant had driven the motor car within the previous two hours when it was involved in an accident – proof by inference – Magistrate found the charge proved – Magistrate not in error.

The police informant attended the scene of a single car accident and observed a motor car on the median strip; tracks led to the point where the car was standing, behind the car there was a twisted safety railing; the defendant, the only occupant of the car) was seated in the driver's seat. Evidence was given of various indications that the defendant was affected by alcohol. She was taken to the police station where the police offi cer said, he believed on reasonable grounds that she was driving in the last two hours and involved in an accident and he required her to take a preliminary breath test. She refused. The applicant was charged with refusing a preliminary breath test. The informant did not give direct evidence that he did in fact entertain the belief that the applicant had driven a motor car within the previous two hours when it was involved in an accident. No evidence was called by the applicant. Counsel submitted there was no evidence that the police informant entertained the belief required by the section, and further, that since he did not give evidence of his belief it was impossible for the Magistrate to determine whether such belief was on reasonable grounds or not. The Magistrate rejected this submission and found the charge proved. Upon order nisi to review—

HELD: Order nisi discharged.1. In the present case, the provisions of s80E(1)(b) of the Motor Car Act 1958 were such that proof by inference was very much easier than was the case under s408A of the Crimes Act. What must be believed on reasonable grounds under s80E(1)(b) are three matters: fi rst, that the defendant had been the driver of or in charge of a motor car; secondly, that he had been so within the previous two hours; and, thirdly, that during that period the car had been involved in an accident on the highway while he was so driving or in charge of it.

2. Belief is a state of mind which is capable of proof by means other than by the direct evidence of the person allegedly holding it. In a vast number of criminal cases intention, both basic and specifi c, which is also a state of mind, falls to be proved by inference and there is no reason why belief is not similarly capable of proof. Staples v McGill [1969] VicSC 176, VSC, Gowans J, 22 September 1969, not followed.

3. The informant having given evidence of all relevant matters, the Magistrate was amply justifi ed in inferring from the evidence that the informant believed that within the period of two hours the applicant had been the driver of the car when it was involved in an accident on the highway and that the grounds for such belief were reasonable.

4. The possibility that the respondent did not turn his mind to the question one way or the other was excluded by the evidence that the police offi cer said to the defendant when requesting her to undergo a preliminary breath test that he did hold the requisite belief. Accordingly, the Magistrate was correct in his decision and the order nisi was discharged.

Murray J:" ... In the present case, however, the provisions of s80E(1)(b) are such that proof by inference is very much easier than was the case under s408A of the Crimes Act. What must be believed on reasonable grounds under s80E(1)(b) are simply three matters: fi rst, that the defendant has been the driver of or in charge of a motor car; secondly, that he had been so within the previous two hours; and, thirdly, that during that period the car had been involved in an accident on the highway while he was so driving or in charge of it.

... Having regard to the place where the events occurred, namely the Nepean Highway in Rosebud, it would be impossible in my view to entertain any reasonable doubt that that accident had occurred inside the two-hour period. The informant having given evidence of all these matters, it appears to me that the Magistrate was amply justifi ed in inferring from the evidence that the informant believed that within the period of two hours the applicant had been the driver of the car when it was involved in an accident on the highway and that the grounds for such belief were reasonable. ...

Per Murray J in Iskov v Matters [1977] VicRp 26; [1977] VR 220; MC 11/1977, 17 February 1977.

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DRINK/DRIVING in VICTORIA85. Refusal of breath test – evidence that defendant's motor car slowly drifted in one lane – admission by defendant that he had had a few drinks before driving – suffi ciency of evidence as to informant having reasonable grounds to believe ability to drive impaired – fi nding by Magistrate that charge proved – Magistrate in error.

Evidence was that the police informant took up position behind a vehicle that was drifting in one lane. No evidence was given as to driver's demeanour on interception as to unsteadiness, slurred speech etc and as to belief under s80E of the Motor Car Act 1958. The driver/defendant admitted he had been to a party and had some drink. He refused a breath test; he did not give evidence. It was argued that this evidence was insuffi cient to prove either directly or by inference that the informant had the necessary prerequisite belief to requiring a breath test. The charge was found proved. Upon Order Nisi to review—

HELD: Order absolute. Conviction quashed.1. In order to convict the defendant, the Magistrate had to be satisfi ed beyond reasonable doubt that the police offi cer found the defendant driving a motor car and had reasonable grounds, based on his personal observations, for believing that the defendant had consumed intoxicating liquor and that his ability to drive a motor car may have been impaired thereby.

2. The two pieces of evidence given to prove beyond reasonable doubt that the police offi cers had reasonable grounds for believing that the defendant's ability to drive may have been impaired by the consumption of alcohol were not suffi cient.

3. While the social policy behind the provisions of s80E is of the greatest importance to the community, the consequences of a conviction under the section are very serious and it is important that defects of proof must not be glossed over in order to implement the policy. Reddy v Ross [1973] VicRp 46; (1973) VR 462 at p469, applied.

4. In the present case the police may well have intercepted the defendant too soon and asked too few questions. It also appears that there may have been cogent evidence in the police brief which they overlooked at the hearing. The defendant may therefore count himself lucky. But for the reasons given the conviction was unsafe and one which ought not to be allowed to stand.

Murray J:" ... In order to convict the applicant the Magistrate had to be satisfi ed beyond reasonable doubt that the respondent found the applicant driving a motor car and had reasonable grounds, based on his personal observations, for believing that the applicant had consumed intoxicating liquor and that his ability to drive a motor car may have been impaired thereby. Neither the respondent nor Sergeant Hawker gave any evidence of actually entertaining such a belief, but the existence of such a belief may be proved by inference. Furthermore, it may well be that as s80E(1)(a) is now framed all that need be shown is reasonable grounds for such a belief and not the actual existence of such a belief.

... The Magistrate also made some point of the fact that the defendant refused to undergo a preliminary breath test. But for the request for him to undergo such a test to constitute a refusal an offence it must be proved that before making the request the police had reasonable grounds for believing that his ability to drive may have been affected by alcohol and therefore it follows that his refusal can have no bearing on the question of what grounds police had before making the request. As was pointed out to me by counsel, there is no way of telling how much importance the Magistrate attached to these last two matters and what part they played in his reaching the decision to convict. ..."

Per Murray J in Rust v Fleming [1977] VicSC 42; MC 15/1977, 18 February 1977.

86. Refusing breath test – reason of a substantial character a defence – defendant advised by solicitor to refuse breath test – whether reason of a substantial character – charge dismissed – Magistrate in error.

HELD: Order absolute. Dismissal set aside.1. The situation was open to no other construction than that the reason for refusal was simply a desire to avoid providing information which might be used against the defendant.

2. Accordingly, the Magistrate was wrong in dismissing the Information and the Magistrate did not, according to the affi davit material, advert, apparently, to this question which was involved in the words appearing in s80F(12) namely, "other than a desire to avoid providing information which might be used against him". If he had adverted to these words, he would have well appreciated that this was the only desire that the defendant had in refusing to supply a sample of breath.

Murphy J:"In my opinion, on the evidence set out in the affi davit of Kevin William Dowling, there can be no doubt but that the defendant in the court below advanced no reason of a substantial character for his refusal other than a desire to avoid providing information which might be used against him. It is implicit in the circumstances in which his refusal occurred, it is implicit in the reasons he advanced

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PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAfor his refusal to supply a sample of breath that he had simply a desire to avoid providing information which might be used against him. He rang his solicitor to see what advice he could receive and received the advice not to provide a sample of breath, to refuse a breath test as it is put. In my view, this situation is open to no other construction than that the reason for refusal was simply a desire to avoid providing information which might be used against the defendant.

I can see no other argument that can be advanced to interpret this reason other than that and, for that reason I am of the opinion that the Magistrate was wrong in dismissing the Information and the Magistrate did not, according to the affi davit material, advert, apparently, to this question which is involved in the words appearing in s80F(12) namely, "other than a desire to avoid providing information which might be used against him". If he had adverted to these words, I feel sure he would have well appreciated that this was the only desire that the defendant had in refusing to supply a sample of breath."

Per Murphy J in Nichols v Funston [1976] VicSC 274; MC 40/1977, 16 June 1976.

87. Driver refused to submit to breathalyser test without legal advice – whether reason of a substantial character – fi nding by Magistrate that driver had a reasonable expectation of the arrival of a solicitor – Right to obtain legal advice – extent of the Right – charge dismissed by Magistrate – Magistrate in error – whether Magistrate had regard to extraneous considerations: Traffi c Act 1949-1977 (QLD), S16A(11).

Having refused at the scene of an accident to furnish a sample of breath until he had seen his Solicitor, the respondent was conveyed to a police station. He again refused until he had seen his Solicitor for advice, and was subsequently charged with refusing to provide a specimen of breath for analysis. It was conceded by the applicant that the respondent was seeking legal representation and was not wilfully trying to frustrate the inquiry. The Stipendiary Magistrate who dealt with the matter found that the respondent had a reasonable expectation of the arrival of a Solicitor, that Solicitors did in fact arrive and that such delay would not have prejudiced the requirement that a specimen be requested within two hours of the respondent coming under notice.

The Magistrate expressed the view that the defendant should be found guilty but dismissed the charge upon the basis that "the issue of a citizen's right to consult legal advice is so important" that notwithstanding the opinion as to guilt he would exclude the evidence of "the defendant's conduct consequent upon the direction to provide" as being evidence unfairly obtained. Upon appeal—

HELD: Appeal allowed. Order absolute. Remitted to the Magistrate with a direction to record a conviction and proceed according to law.The need to maintain order in a complex society, and the need to combat social problems such as drink/driving, have caused the Legislature to enact legislation requiring instant obedience to certain administrative directions; where instant obedience is required the right to receive confi dential legal advice before obeying is annihilated. At the police station, the request that a specimen of breath be provided must be made as soon as practicable; thereupon, so soon as an appropriate direction is given by the person in authority operating or who is to operate the breath analysing instrument, an immediate obligation to provide a specimen of breath arises.

DM Campbell J of the Queensland Full Court:" ... The question which is raised has to be examined in rather a narrow context — in connection with the now familiar breathalyzer legislation; and, on the facts of the particular case, the precise question is whether a person is entitled to wait until his solicitor arrives at the police station before taking a breathalyzer test.

... The phrase used in s16A(11)(b) is not 'reasonable excuse' but 'reason of a substantial character'. The use of the phrase does not make non-compliance with a requisition which is duly made any easier to justify or excuse. The broad intention is to make the taking of a breathalyzer test compulsory in given circumstances. Delay in undergoing a test in the prescribed manner is not contemplated. Thus, if a person's driving licence carries an endorsement that he is incapable of providing a specimen on medical grounds, he is required to produce it 'forthwith' upon being directed to provide a specimen of his breath s16A(8)(d). The reason given by the respondent that he wanted to wait until his solicitor arrived at the police station is not alone a reason of a substantial character for failing to provide a specimen. Accordingly , the order nisi should be made absolute and the matter remitted to the magistrate with a direction to record a conviction and proceed according to law."

Per DM Campbell J in Fischer v Douglas; ex parte Fischer [1978] Qd R 27; MC 01/1978, 11 November 1977. 88. Refusal to furnish sample of breath for analysis – whether defendant had a reason of substantial character for such refusal – charge found proved – Magistrate not in error.

At the hearing before a Magistrates' Court, evidence was given that a motor car, the registration number of which

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DRINK/DRIVING in VICTORIAwas LED 994 and having a black eagle on one side, was involved in a collision at about 8:20. At about 9.15 the vehicle was found garaged with the bonnet still warm. The police evidence was that the defendant conceded that he had driven the car earlier that evening, that no one else had driven the car, that the defendant said he knew nothing of any accident and that he denied having consumed liquor before returning home. Evidence was also given that the defendant, at the time of the police visit to his premises, was in bed and upon being summoned was unsteady on his feet and had a smell of alcohol on his breath. The defendant testifi ed that on arriving home he had drunk between one third and one half bottle of whisky, took tablets for a severe headache and then retired to bed. The charge was found proved. Upon appeal—

HELD: Order nisi discharged.The Magistrate was right in law in fi nding the charge proved. When it was analysed, the defendant's reason was fundamentally a reason that he desired to avoid providing information which might be used against him because he considered that the use made would be unfair, in that the reading would show a percentage of alcohol in the blood greater than would have existed at the time of the driving. In fact, however, if the reading had yielded that result, the defendant could have met that evidence by adducing evidence of his subsequent consumption of liquor. He was not entitled to refuse to furnish a sample of his breath simply because the sample so rendered might have yielded a result showing a percentage of blood alcohol greater than might have prevailed at the time of the driving. The defendant was not disadvantaged by that circumstance. He was not shut out from relying on a defence otherwise open to him.

McInerney J:" ... The Magistrate said he was not satisfi ed that the defendant had a reason of a substantial character for refusing the breath test. That must mean that the Magistrate was not satisfi ed that the defendant had some reason of a substantial character for his refusal, other than a desire to avoid providing information which might be used against him.

... I have come to the conclusion that the Magistrate was right in law in the decision which he gave. It seems, to me that when it is analysed the defendant's reason is fundamentally a reason that he desired to avoid providing information which might be used against him because he considered that the use made would be unfair, in that the reading would show a percentage of alcohol in the blood greater than would have existed at the time of the driving. In fact, however, if the reading had yielded that result, the defendant could have met that evidence by adducing evidence of his subsequent consumption of liquor. I do not think he was entitled to refuse to furnish a sample of his breath simply because the sample so rendered might have yielded a result showing a percentage of blood alcohol greater than might have prevailed at the time of the driving. The defendant was not disadvantaged by that circumstance. He was not shut out from relying on a defence otherwise open to him. I do not consider in those circumstances, that there was a reason of a substantial character for the defendant's refusal. ...

Per McInerney J in Cook v Wallace [1978] VicSC 107; MC 22/1978, 15 March 1978.

89. Refuse breath test – no evidence by informant that he held required belief that the defendant's ability to drive impaired – whether required belief could be inferred – charge found proved – Magistrate in error.

When driving his motor vehicle, the defendant was seen when he turned left veer suddenly to avoid a centre traffi c island and 80 feet from that intersection, had to veer suddenly right to avoid striking a parked car. He was then followed for over half a mile and there were no other examples of bad driving. The only observations with respect to the consumption of alcohol were the smell of intoxicating liquor and unsteadiness on the feet together with admissions by the defendant that he had consumed intoxicating liquor. The defendant admitted that he was on his way home from work and that he was very tired and had been working for long hours. The informant did not give evidence that the defendant's ability to drive the motor vehicle was impaired. The charge was found proved. Upon appeal—

HELD: Order absolute. Conviction set aside. Charge dismissed.1. The questions to be decided were (1) whether the informant formed the belief that the ability of the defendant to drive a motor car had been impaired by the consumption of intoxicating liquor and (2) whether the informant had reasonable grounds for that belief.

2. This being a criminal case, the prosecution insofar as it relied on circumstantial evidence was bound to prove its case to the extent that the facts proved excluded all reasonable hypotheses consistent with innocence.

3. The informant did not give evidence before the court that at the time when he required the defendant to undergo a breathalyser test he believed that the defendant's ability to drive a motor car was impaired by the consumption of intoxicating liquor. His evidence that at Russell St Police Station he stated to the defendant that he believed on reasonable grounds that the defendant's ability to drive the motor car was impaired by the consumption of intoxicating liquor was relevant to prove the making of the demand under s80F(6)(b) that the defendant undergo a breathalyser test. It was not admissible to prove that the informant had in fact at that time entertained the belief asserted in that statement.

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PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIA4. There may be cases where although the police offi cer concerned has not sworn that he formed the required beliefs, the state of the evidence is such as to permit only the inference that the informant held each of the relevant beliefs and that there were reasonable grounds for each of those beliefs. The present case was not such a case: on the contrary it was a case where the observed facts and information available to the informant permitted an inference consistent with innocence, namely, fatigue.

5. In those circumstances in the absence of the informant's sworn evidence that he held each of the requisite beliefs and as to the grounds on which he held those beliefs and in the absence of a fi nding by the magistrate as to the basis of and the reasonableness of the informant's beliefs, it was impossible to say that the circumstantial evidence was such as to exclude all hypotheses consistent with innocence and such as to require the conclusion, beyond reasonable doubt, that the applicant's capacity to drive a car had been impaired by the consumption of liquor.

6. The state of the prosecution evidence was not such as to exclude reasonable doubt as to whether the informant held the required beliefs and not such as to exclude reasonable doubt, that such beliefs that those it held were reasonable.

7. The present case was one in which in the absence of evidence by the informant that he held the required beliefs and as to the basis of those beliefs and in the absence of any fi nding by the magistrate as to the informant having held those beliefs and as to the basis on which such beliefs were held the prosecution had excluded all hypotheses consistent with innocence, or that no conclusion was open to the magistrate than to convict. In the present case it would be wrong in law to allow the conviction to stand.

McInerney J:" ... In this case the informant did not give evidence before the court that at the time when he required the defendant to undergo a breathalyser test he believed that the defendant's ability to drive a motor car was impaired by the consumption of intoxicating liquor. His evidence that at Russell St Police Station he stated to the defendant that he believed on reasonable grounds that the defendant's ability to drive the motor car was impaired by the consumption of intoxicating liquor was relevant to prove the making of the demand under s80F(6)(b) that the defendant undergo a breathalyser test. It was not admissible to prove that the informant had in fact at that time entertained the belief asserted in that statement.

... If no direct evidence of the existence of the relevant belief is given by the informant or other police offi cer concerned, then the informant must prove facts which permit the court to draw, beyond reasonable doubt, the inference that at the relevant time the informant or other police offi cer concerned had the requisite belief.

... On the contrary, I think the state of the prosecution evidence was not such as to exclude reasonable doubt as to whether the informant held the required beliefs and not such as to exclude reasonable doubt, that such beliefs that those it held were reasonable.

The present case is one in which in the absence of evidence by the informant that he held the required beliefs and as to the basis of those beliefs and in the absence of any fi nding by the magistrate as to the informant having held those beliefs and as to the basis on which such beliefs were held I am not satisfi ed that the prosecution had excluded all hypotheses consistent with innocence, or that no conclusion was open to the magistrate than to convict. In my opinion in the present case it would be wrong in law to allow the conviction to stand."

Per McInerney J in Fagan v Fidler [1978] VicSC 292; MC 37/1978, 30 June 1978.

90. Refuse to provide a sample of breath for analysis – driver observed to be slumped in driver's seat – said: "I just got here" – whether open to court to fi nd that driver had driven his motor vehicle to that spot within 55 minutes of being apprehended – discrepancy given by witness as to date of interception of driver – no cross-examination on the point – 'no case' submission made – application by prosecutor for matter to be stood down whilst correct date ascertained – upon resumption application made to court to re-open prosecution case – application granted – whether Magistrate in error in granting application to re-open – whether incorrect date was an obvious slip.

HELD: Order nisi discharged. Conviction affi rmed.1. On the evidence as set out in the affi davit of the respondent the ordinary meaning of the words 'I just got here' was that the applicant admitted that he had driven his car to that spot and had just got there in it. That evidence constituted prima facie evidence; it may have been evidence which would have been open to explanation by the defendant or even to contradiction but the defendant did not give evidence and nor was there any cross-examination by his solicitor directed to this aspect of the case.

2. Accordingly, the Magistrate was entitled to regard this in the fi rst place as prima facie evidence of the facts necessary and upon fi nding that there was no other evidence touching on the point, it was open

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DRINK/DRIVING in VICTORIAfor him to be satisfi ed beyond reasonable doubt that the defendant had driven the car to that spot within 55 minutes of being apprehended by the respondent.

3. It is clear that the question whether to allow a case to be re-opened remains in Victoria a matter of discretion. Obviously the circumstances will vary immensely from case to case, and much may depend upon the stage at which the prosecution seeks to reopen its case, the nature of the evidence which it is proposed to call, to some extent the type of case that is being dealt with, and also the type of tribunal.

4. The evidence of the police offi cers made it perfectly clear that they were both talking about the same occasion. One of them said it was 6th October, and the other said it was 6th September. Although this cannot be said to be a mere absence of formal proof, as referred to in some of the decisions, it was nevertheless an obvious slip. Far from it being a miscarriage of the exercise of Magistrate's discretion to allow the prosecution to reopen, it may well have been a miscarriage if he had refused the Prosecution permission to reopen.

Murray J:" ... The order nisi was obtained on two grounds: fi rst that on the whole of the evidence the Magistrate should not have been satisfi ed that the applicant had been required to furnish a sample of his breath into a breath analysing instrument within two hours after he had ceased to drive his motor car; and secondly that in all the circumstances of the case the said Court wrongly exercised its discretion by permitting the respondent to reopen his case and to call further evidence.

... It appears to me on the evidence as set out in the affi davit of the respondent that the ordinary meaning of the words deposed to is that the applicant admitted that he had driven his car to that spot and had just got there in it. That evidence in my opinion at least constituted prima facie evidence; it may have been evidence which would have been open to explanation by the applicant or even to contradiction but the applicant did not give evidence and nor was there any cross-examination by his solicitor directed to this aspect of the case.

... In my opinion the Magistrate was entitled to regard this in the fi rst place as prima facie evidence of the facts necessary and upon fi nding that there was no other evidence touching on the point, it was open for him to be satisfi ed beyond reasonable doubt that the applicant had driven the car to that spot within fi fty-fi ve minutes of being apprehended by the respondent.

... This is not a case in which it could be said that by allowing the prosecution to reopen for the purpose of proving which date was the correct date, the applicant was being placed in a position which he might be unfairly prejudiced, and that some miscarriage of justice might arise from the reopening.

Certainly it can be said that unless the case had been reopened the applicant might have had the benefi t of a dismissal of the information, but that is not to say that that would have been a just result, and, as the Magistrate very wisely, in my opinion, observed, it was not a sporting contest, it was a court of law.

In all those circumstances, I have been totally unpersuaded that the Magistrate made any error in allowing the Prosecution to reopen its case for the purpose of proving which of the two dates deposed to was correct. ...

Per Murray J in Nicoll v Miller [1978] VicSC 374; MC 48/1978, 29 August 1978.

91. Refusing breath test – police offi cer said that after administering PBT driver may have been over the legal limit – "indicates" – meaning of – not necessary to give an opinion of a positive nature that percentage was over .05 – charge dismissed by Magistrate – Magistrate in error.

When giving evidence on the return of a drink/driving charge, the police offi cer who administered the preliminary breath test said that "in my opinion the Defendant may have been over the legal limit." Section 80F(6)(a)(i) of the Motor Car Act 1958 states that the PBT "indicates that the percentage of alcohol in the person's blood is greater than .05 per centum." It was submitted that the offi cer's opinion had to be expressed that the BAC was in fact greater than .05%. The magistrate accepted this submission and dismissed the charge.

HELD: Order absolute. Matter remitted to the Magistrate for further determination.The magistrate's construction failed to take into account the use of the word "indicates". There are various words in the Concise Oxford Dictionary defi ning the word "indicates". The one that is most relevant as far as present circumstances are concerned is the word "suggests" and, if read in that sense, the opinion that is to be formed by the testing offi cer must be that the test "suggests", not proves or establishes positively, that the defendant had more than .05 per cent alcohol in his bloodstream. That being so, the Magistrate's decision that the informant was required to give an opinion of a positive nature that the percentage of alcohol was over .05 was an incorrect one.

Starke J:

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PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIA" ... The matter to be decided involves the construction of S80F(6)(a). The critical words are these:

"The test in the opinion of the member or of the testing offi cer in whose presence it is made, indicates that the percentage of alcohol in the person's blood is greater than 0.05 per centum."

As I have already indicated by reading the submission of the solicitor in the Magistrates' Court, his contention was that the opinion had to be expressed that the blood alcohol was, in fact, greater than .05 per cent. This construction, I think, fails to take into account the use of the word "indicates". There are various words in the Concise Oxford Dictionary defi ning the word "indicates". The one I think that is most relevant as far as present circumstances are concerned is the word "suggests" and, if read in that sense, the opinion that is to be formed by the testing offi cer must be that the test "suggests", not proves or establishes positively, that the defendant has more than .05 per cent alcohol in his bloodstream.

That being so, it seems to me that the Magistrate's decision that the informant is required to give an opinion of a positive nature that the percentage of alcohol was over .05 is an incorrect one. ..."

Per Starke J in Hunter v Pearce [1982] VicSC 164; MC 43/1982, 12 May 1982.

92. Driver of motor vehicle found driving – refusal by driver to furnish a sample of breath for analysis – request for police offi cer to sign document to the effect that the defendant's medication would not affect the reading – whether reason of a substantial character.

M. had been found driving a motor car in the early hours of the morning. He underwent a preliminary breath test and was then taken to a police station and requested to undergo a breath analysis test. M. stated that he would undergo the test only if the police offi cer would sign something to say that the medication M. was taking would not affect his reading. In evidence, M. said that he had inferred from what his doctor had told him, that the drugs he had taken might cause the breathalyser machine to inaccurately record the blood/alcohol concentration. The court found that M. held this belief and dismissed the charge. On order nisi to review—

HELD: Order nisi discharged. M's belief was not an unreasonable one to hold and that the reason given by M. was of a substantial character. It is a question of fact in each case as to whether the defendant holds a belief and the basis for that belief. Burns v Storey [1970] VicRp 50; (1970) VR 388, applied.

Starke J:" ... In this case the starting point of the conclusion which the Magistrate reached is that in fact the respondent had drawn an inference from what the doctor told him that the drugs he had taken might cause the breathalyser machine to inaccurately record the content of alcohol in his blood. The Magistrate found that in fact he did hold that belief and in my opinion, the respondent having sworn to that fact, that was a fi nding open to the Magistrate. It seems to me, on the fact of it, not an unreasonable belief to hold, even though it is an erroneous belief. But the apprehension that this belief raised in the respondent's mind was heightened by certain other matters.

... Now the effect of the police's refusal to do what he asked – which I might say does not seem unreasonable to me – or even to tell him verbally that there would be no effect on the accuracy of the fi gures would, in my opinion, inevitably have increased the apprehension which he initially had formed as a result of the medical advice tendered to him and which the Magistrate found proved as a fact.

Furthermore, the question the police asked "Are you taking any tablets, drugs, insulin or other medicines?" might reasonably be taken by the respondent to mean that the ingestion of such substances might affect the result of the test and to increase this apprehension. Accordingly, I have no hesitation in arriving at the conclusion that in the words of the Act the reason he gave for refusing was of a substantial character.

... Now it is one thing to refuse to give information by breathing into this machine, which can be used against you, where there is no question of the accuracy of the machine's reading; it is quite another thing to be required to be a party to a procedure which will, or might, create a false case against you, and accordingly in my opinion, having given a reason of a substantial character, it cannot be said that his desire was to avoid providing information which might be used against him. What he had a desire to do was to avoid providing false information which might be used against him. I appreciate that this construction really involves the reading of a word into the section, but I think that in the context there is a necessary implication that such a construction should be given to it.

... If further defences of this nature arise, the question of fact must fi rst always be determined in favour of the defendant to the proceedings before the Magistrate that he was in fact taking drugs, that he did have this belief and on what evidence the belief was based. If the Magistrate does not fi nd the facts in his favour, of course he cannot rely on an explanation of this nature to bring himself within

94

DRINK/DRIVING in VICTORIAsubsection (12). It will remain, in my opinion, as it always has been, a matter of fact. ...

Per Starke J in Cousens v Moran MC 07/1983, 24 November 1982.

93. Refusal to take breath test – requirement that authorised operator wait 15 minutes before requesting person to undergo test – defendant under personal observation of operator for 11 minutes – defendant in police custody for period in excess of 15 minutes – whether operator reached necessary state of satisfaction – Magistrate in error in dismissing charge.

Reg 227 of the Motor Car Regulations 1966 provides:

"An authorised operator shall not require any person to undertake a breath analysis until he is satisfi ed that such person has not consumed any intoxicating liquor for a period of at least 15 minutes prior to the analysis."

At 1.00 a.m., B. was intercepted driving a motor vehicle. He underwent a pre liminary breath test – which proved positive – and was taken to a Police Station where, at 2.00 a.m., he was introduced to an authorised operator. When required by the operator at 2.11 a.m. to undergo a breath analysis, B. refused. At the subsequent hearing, the authorised operator gave evidence that he had satisfi ed himself that for at least 15 minutes before making the formal demand, B. had not consumed any intoxicating liquor. B. did not contradict this evidence; however, the Magistrate accepted that the operator did not "wait for the 15 minutes prior to the demand being made" and dismissed the charge. On order nisi to review—

HELD: Order absolute. Dismissal overturned.(1) The satisfaction which the authorised operator is required to possess under Regulation 227 need not be derived from evidentiary sources admissible in a court of law. It is enough for the operator to satisfy himself from such enquiries as it is proper for him to make in all of the circumstances.

(2) Without deciding whether the Prosecution had to prove compliance with Regulation 227, it was clear on the evidence, that B. had been in police custody in excess of 15 minutes.

(3) Accordingly the only reasonable fi nding of fact was that the authorised operator had a well-founded state of satisfaction that B. had not consumed any intoxicating liquor during the relevant period, and it followed that B. should have been convicted.

Crockett J:" ... It is perfectly clear that the evidence as to Arnott's (the authorised operator) satisfaction that the respondent had not consumed any intoxicating liquor for a period of at least 15 minutes prior to his being asked to furnish a sample of his breath for analysis was all one way. Furthermore, it is obvious that his state of satisfaction, if he was to be believed (and there was no suggestion he was not a credible witness), was well-founded. For eleven of the fi fteen minutes, the respondent had been in the company of Arnott himself so that Arnott could, in that time, see for himself that the respondent had not consumed any intoxicating liquor. As far as the remaining four minutes are concerned, it would have to be obvious that the respondent was in the custody of the applicant for a period well in excess of those four minutes as at whatever the time it was that the respondent was intercepted by the applicant, the time taken for the inter rogations at the point of interception and also at the police station and the trip to the police station would have taken far in excess of four minutes.

... the evidence before the Magistrate shows that the only reasonable fi nding of fact that could be come to was that Arnott did have a well-founded state of satisfaction that the respondent had not consumed any intoxi cating liquor during the relevant period. ..."

Per Crockett J in Obeid v Burrows [1984] VicSC 189; MC 22/1984, 1 May 1984.

94. Taking of sample of blood – whether during internship doctor is a legally qualifi ed medical practitioner.

An information laid against A. was dismissed before a Magistrates' Court on the ground that a doctor who took a sample of blood for analysis was not, during internship, a legally qualifi ed medical practitioner.

HELD: The doctor was a legally qualifi ed medical practitioner within the meaning of s80D of the Motor Car Act 1958.

Gray J:" ... In my opinion there was ample evidence before the Magistrates' Court that Dr Ashman had obtained provisional registration with the Medical Board on the 3rd of December 1981. There was, in my opinion, ample evidence that the blood sample in question was taken by Dr Ashman at the Latrobe Valley Hospital. It was further implicit in Dr Ashman's evidence that he was at the relevant time in the course of an internship at that hospital. While it is true that there was no specifi c evidence

95

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAthat the Latrobe Valley Hospital had been approved by the Medical Board, it was a matter which could be safely inferred in the absence of any indication to the contrary.

... In my opinion it is clear almost beyond argument that a provisionally registered medical practitioner who takes a blood sample in the course of his work at the institution where he is serving his internship is a "legally qualifi ed medical practitioner" within the meaning of s80D of the Motor Car Act.

... It was also said that there was no evidence that the Latrobe Valley Hospital was an approved institution within the meaning of s19C of the Medical Practitioners' Act. Once again, no such point is relied upon and, once again, the point can still be taken if it has any substance. I should say that, if any such point is taken, the Magistrates' Court should give consideration to allowing the prosecution case to be re-opened to enable such evidentiary gaps to be fi lled, if any such gaps exist. In this connection I refer to Barritt v Baker [1948] Vic Law Rp 85; (1948) VLR 491, per Fullagar J at p495, where His Honour points out that courts, both superior and inferior, are concerned to arrive at the truth so far as it is within their power...

For the reasons I have sought to express, the order nisi will be made absolute. Information remitted to the Magistrates' Court to be further heard in the light of these reasons for judgment."

Per Gray J in Humphrey v Auger [1983] VicSC 17; MC 12/1983, 10 February 1983.

95. Refusal by driver to furnish sample of breath for analysis – not guilty plea – formal proofs required as to the operator and the breath testing device – Magistrate in error in fi nding charge proved.

R. was intercepted by a police offi cer S., whilst driving a motor vehicle. S. conducted a preliminary breath test on R. which indicated a positive result. Accordingly, R. was accompanied to a police station and interrogated concerning his alcohol consumption. S. then formally demanded that R. take a breathalyzer test, but R. refused to comply with the demand; he was duly charged. When the matter came on for hearing, R. pleaded "not guilty". After S. and a police offi cer from the Breath Analysis Section gave evidence, R's. counsel submitted that there was no case to answer on the grounds that there was no evidence to show that S. was a person authorised to conduct the test, that the relevant regulation concerning the preliminary breath testing device had not been tendered and that the device used was a prescribed instrument. The prosecutor made no application to re-open his case to correct these defi ciencies. The magistrate held that there was a case to answer, inferring that S. was authorised as R's. counsel did not question S. in regard to his authorisation, and stating that the prosecution's failure to prove the authorisation of S. was secondary to the question whether R. had refused to take the test. No evidence was called by R., and he was convicted. On order nisi to review—

HELD: Order nisi absolute. Conviction set aside.(1) The presumption of regularity cannot be used to supply defi ciencies in proof as to matters such as the authority of the operator or the prescribed nature of the device used. Mallock v Tabak [1976] VicSC 503; [1977] VicRp 7; (1977) VR 78, distinguished; Merchant v R [1971] HCA 22; (1971) 126 CLR 414; [1971] ALR 736; 45 ALJR 310, applied.

(2) As no evidence was given to show that the device was a prescribed instrument, it was not open to the Magistrate to infer that this fact had been proved. Cummins v Dalton [1982] VicSC 25; MC 49/1982, VSC, 10 February 1982, and; Scott v Baker [1969] 1 QB 659; [1968] 2 All ER 993; [1968] 3 WLR 796, applied.

(3) Obiter: If it were found that the regulations were not in fact tendered at the hearing before the Magistrate, the court would have permitted their tender upon the hearing of the order nisi. Schuett v McKenzie [1968] VicRp 24; [1968] VR 225, followed; Reddy v Ross [1973] VicRp 46; [1973] VR 462, distinguished.

Nicholson J:" ... In the present case it is quite clear that there was no evidence before the magistrate that the informant was authorised to carry out a preliminary breath test or that the device used to administer the same was a prescribed device. Further, when submissions based upon the failure to call such evidence were made, no attempt was made by the prosecution to remedy these matters. If it were simply a matter of giving formal proof, then it seems surprising that such an application was not made and it would have been more surprising if it had not been acceded to by the magistrate, even at the cost of an adjournment.

... Evidence not having been given by the informant at all concerning whether or not the instrument was a prescribed instrument, in my view counsel for the defendant was entitled to remain silent, as he did, and to rely upon the informant's failure to prove this matter as a failure to prove an essential element of the charge. The learned magistrate was clearly wrong in suggesting there was any obligation on counsel to raise the matter by means of cross-examination and I am of the view that his reference to the fact that counsel did not do so suggests that he was acting under some temporary

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DRINK/DRIVING in VICTORIAmisapprehension as to where the onus of proof lay. In my view, the presumption of regularity cannot be used to supply defi ciencies in proof as to matters such as the authority of the operator and the prescribed nature of the device used in cases of this nature.

... It follows, therefore, that I am satisfi ed that the prosecution did fail to prove that the informant was authorised to operate a preliminary breath test device or that the device used by him was a prescribed device.

... [T]he court cannot assume that a preliminary breath test within the meaning of the Act has been taken, if there is no evidence that it was taken on a prescribed instrument and/or if there was no evidence that the operator was authorised to administer it. ..."

Per Nicholson J in Robertson v Smith [1983] VicSC 283; MC 33/1983, 27 July 1983.

96. Blood sample taken at hospital – proof that hospital a "designated place" – whether tender of Government Gazette necessary – presumption of regularity.

HELD: On the hearing of a charge under s49(1)(g) of the Road Safety Act 1986, a presumption of regularity applies whereby it is not necessary for the prosecution to tender the relevant Government Gazette to prove that the hospital where the blood sample was taken was a "designated place" within s56 of the Act. Mallock v Tabak [1976] VicSC 503; [1977] VicRp 7; (1977) VR 78; and Wright v Bastin (No. 2) [1979] VicRp 35; (1979) VR 329, referred to.

Southwell J:"... Mr O'Bryan relied upon a line of authority which holds that a presumption of regularity applies to render it not necessary to prove that Moorabbin Hospital was a "designated place": it is a rebuttable presumption, but no evidence was put before the Magistrate to show that the hospital was not a "designated place".

... It is true that the tendering of the Gazette would not "add greatly to the time and expense" in mounting the prosecution case (to quote Dean J in Hardess v Beaumont (supra)): it is also true that there is really no possibility of injustice in practice, for the reason that the question whether the place at which the sample was taken was a "designated place" can be just as easily disproved as it can be proved. If the Moorabbin Hospital was not a "designated place", then Dr Purcell, in taking the sample, was guilty of an unlawful assault. It must be presumed, in the absence of evidence to the contrary, that he was not so guilty.

Accordingly, it was not necessary for the prosecution to tender the relevant Gazette, and the Magistrate was correct, albeit for a different reason, in holding that there was a case to answer. The second ground of the order has not been made out: the order nisi must be discharged with costs.

Per Southwell J in Zderski v Ellis [1988] VicSC 539; MC 63/1988, 13 October 1988.

97. Breath test – exhalation of breath insuffi cient for purposes of analysis – whether failure to furnish sample of breath – Magistrate not in error in fi nding charge proved.

Section 80F(6)(b) of the Motor Car Act 1958 provides (so far as relevant):

"Where a member of the police force—(i) fi nds a person driving a motor car ... ; or (ii) ... and such person behaves in a manner which, in the reasonable belief of such member, indicates that such person's ability to drive a motor car is or was impaired (as the case requires) by the consumption of intoxicating liquor the member of the police force may, instead of requiring such person to undergo a preliminary breath test require such person to furnish a sample of breath for analysis by a breath analysing instrument and for that purpose may further require the person to accompany a member of the police force to a police station or the grounds or precincts thereof."

Section 80F(11)(a) of the Motor Car Act 1958 provides:

"Any person who, when required by a member of the police force pursuant to the provisions of sub-section (6) to furnish a sample of his breath for analysis or when further required to accompany a member of the police force to a police station or the grounds or precincts thereof refuses or fails to do so shall be guilty of an offence against this sub-section."

B. was intercepted driving his motor car and taken to the police station for the purpose of a breath test. When requested to undergo the test, B. put his lips to the tube of the instrument, but did not appear to blow into the tube. He was later charged with failing to furnish a sample of his breath for analysis, and was subsequently found guilty and was convicted. Upon refusal by a Master for an order nisi to review—

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PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAHELD: Appeal dismissed.If a person, when required to furnish a sample of breath for analysis by a breath analysing instrument, fails to provide a suffi cient amount of air to allow the instrument to analyse the air to determine blood/alcohol concentration, that person has not furnished "a sample of his breath for analysis" as required by s80F(11)(a) of the Motor Car Act 1958.

Southwell J:" ... Mr Howard, who appeared for the defendant before me but not in the court below, submitted that where the evidence shows that some breath was supplied into the mouth-piece, it is not open for the court to be satisfi ed beyond reasonable doubt that the defendant "failed to furnish a sample of his breath for analysis." He submitted, so far as the facts were concerned, that it was not open to the Magistrate to hold that no air went into the chamber of the machine. For the purposes of this application I am prepared to assume, without deciding, that the latter submission is sound.

If one accepts, as I do, that the relevant machine was an approved machine for the purpose of taking breathalyser tests, it seems to me to follow that a person required to furnish a sample of breath for analysis must provide enough breath to enable that machine to do the task for which it was designed, namely, to analyse the air in it in order to determine the extent or at least the approximate extent of the intake of alcohol by the person blowing into the machine. If for one reason or another the person so required does not provide suffi cient air for that machine to perform the task of analysis, then, in my view, the person involved has not furnished a "sample for analysis". A quantity of air which that machine cannot analyse is not, in my view, a "sample for analysis" within the meaning of s80F(11) of the Motor Car Act. It follows, in my view, that it was open to the Magistrate to convict as he did ..."

Per Southwell J in Betheras v New [1982] VicSC 236; MC 54/1984, 18 June 1982.

98. Driver requested to accompany informant to police station for a breath test – request refused – formal demand not recited precisely with wording in Section of act – whether precise words necessary – elements necessary to establish case – Magistrate in error in dismissing charge.

R., a police offi cer, believing on reasonable grounds from his own observations and from his previous enquiries that O'B. had been driving a motor car and that his ability to drive had been impaired by the consumption of intoxicating liquor said to O'B.: "I believe your ability to drive has been impaired by liquor and I require you to come with me to Ballarat for a breath test". O'B. said: "No way". He was subsequently charged under s80F(6)(b)(ii) of the Motor Car Act 1958 ('Act') in that he refused to accompany the informant to a police station for the purpose of undergoing a breath test. When the matter came on for hearing, it was submitted at the close of the case for the prosecution that as the formal demand did not use the words of the section "to furnish a sample of breath for analysis by a breath analysing instrument" and to accompany the police offi cer to a named police station, there was no case to answer. The Magistrate agreed with this submission and dismissed the charge. On order nisi to review—

HELD: Order nisi absolute.(1) At the close of the prosecution case, the Magistrate was required to consider whether the evidence disclosed that the police offi cer had given the defendant/driver reasonably suffi cient information to know what was required of him and why it was required. It was not necessary for the police offi cer to recite precisely the words of the relevant section of the Act. Scott v Dunstone [1963] VicRp 77; [1963] VR 579, distinguished. King v McLellan [1974] VicRp 92; [1974] VR 773, referred to.

(2) The phrase "breath test" is a common enough term well understood in the community, and was suffi cient to give reasonable information to the defendant/driver as to the purpose of the request, as was the request to go to the police station. Accordingly, the Magistrate should have held that there was a case to answer.

Southwell J:" ... After the conversation in which the respondent denied driving the car, the informant then said to the respondent, "Look, you are well under the weather and your attitude leaves me no choice; you will have to come with me for a breath test". The respondent replied, "No way. I didn't do nothing", and walked away. The informant said, "Where do you think you are going? I have just told you we are going for a breath test. Now, I believe your ability to drive has been impaired by liquor and I require you to come with me to Ballarat for a breath test". The respondent said, "No way" and again commenced to walk away, whereupon the informant told him that he was under arrest, and said, "You are coming back to the station whether you like it or not".

... The only reasonable inference is that the respondent knew at least that he was to undergo a test whereby he had to breathe into "something" and that "something" would indicate whether he had more alcohol in him than the law permitted.

... In this case it is said, in effect, that there should have been a precise recital of the words of the

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DRINK/DRIVING in VICTORIAAct at the scene, and again before the administration of the test itself at the police station. I do not agree. I have said that the test is: Was the evidence as it stood such as to prove that the respondent was given reasonably suffi cient information to know what was required of him, and why. There can be little room for doubt that the respondent was aware at the scene of what was there and then being required of him: namely, to accompany the informant to the Ballarat Police Station. The informant's case below foundered on the second limb – why, or for what purpose, was he so required. The Magistrate seemed to harbour some doubt as to what the respondent was refusing. I do not believe the evidence left room for such a doubt – the respondent refused the request to accompany the informant to Ballarat – verbally, and his immediately subsequent conduct provided further proof of that refusal. The state had not been reached when the respondent could have refused to undergo the test itself. That refusal cannot occur until the breathalyzer machine is present ....

In my opinion, the words used by the informant were suffi cient to give reasonable information to the respondent as to the purpose of the request, namely, to undergo a breath test. To adopt Sholl J's words in Scott v Dunstone [1963] VicRp 77; [1963] VR 579, the stated purpose of the request to accompany was made known, that is that he was to undergo a breath test, which I have earlier labelled as a common enough term well understood in the community. The stage had not been reached where the respondent was required to incriminate himself by breathing into a breathalyzer. In my opinion, the learned Stipendiary Magistrate should have held that there was a case to answer. Accordingly, the order nisi will be made absolute."

Per Southwell J in Rankin v O'Brien [1986] VicRp 7; [1986] VR 67; (1985) 2 MVR 503, MC 20/1985, 20 May 1985.

99. Breathalyzer operator required as a witness – written notice to be given to Informant – whether such notice required to be served personally on Informant.

HELD: Where pursuant to the provisions of section 80F(3) of the Motor Car Act 1958 an accused person requires the breathalyzer operator to be called as a witness, the accused person is required to give written notice to the informant a reasonable time before the hearing; however, the accused person is not required to personally serve such notice upon the informant. R v The Deputies of the Freemen of Leicester [1850] EngR 644; (1850) 15 QB 671; 117 ER 613, applied.

O'Bryan J:"... The point involved is whether upon the proper construction of s80F(3) the 'accused' person who desires a breath analysis instrument operator to be called as a witness is required to give notice in writing, to the informant, by personal service. Should s80F(3) require personal service of a notice, the learned Magistrate was in error. Should s80F(3) be satisfi ed by post, the learned Magistrate was entitled to fi nd on the balance of probabilities that notice in writing was given to the informant, within a reasonable time before the hearing.

... In my opinion, s49 is not applicable to this proceeding because s80F(3) does not "authorise or require a document to be served by post." I consider that s49 is confi ned to an act or subordinate instrument which authorises or requires a document to be served by post. S80F(3) does neither.

... In my opinion, effect should be given to the rule of construction enunciated by Lord Campbell, as the expression the Court is here required to construe (in s80F(3)) is in similar language to the expression under consideration in the Freemen of Leicester Case 1850] EngR 644; (1850) 15 QB 671; 117 ER 613. There is no obvious reason why the legislature should have intended to require personal service of a notice in s80F(3), particularly when an alternative was offered in s80D(7). I have reached the conclusion that upon the proper construction of s80F(3), an 'accused' person is not required to give notice in writing to the informant by personally serving such a notice upon the informant.

In reaching this conclusion, I have regard, fi rst, to the nature of the section which relaxes the rules of evidence in favour of an informant in a quasi-criminal proceeding and, second, to the fact that should an issue be raised concerning reception of a notice in writing by the informant, inevitably a Court would adjourn the hearing of the information at the request of the informant, to enable the informant to produce the breath analysing instrument operator as a witness. To hold that personal service of a notice upon an informant is required by s80F(3) would impose a considerable burden upon an 'accused' person for no compelling reason. The interpretation I favour is less strict and appropriate for the purposes of s80F. In these circumstances, the order nisi will be discharged with costs."

Per O'Bryan J in Roberts v Beet [1988] VicRp 15; [1988] VR 118; (1987) 6 MVR 51; MC 53/1987, 11 November 1987.

100. Court required to enter in Register blood/alcohol concentration recorded – such concentration to determine minimum period of disqualifi cation – whether Court may enter a lesser concentration

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PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIA– whether Court may fi x a lesser period of disqualifi cation – whether Court may receive evidence as to over-estimation by breath analysing instruments.

HELD: 1. Where a Court fi xes the minimum period of disqualifi cation for an offence under s49(1)(f) of the Road Safety Act 1986 ('Act') the Court is only to have regard to the blood/alcohol level as recorded by the breath analysing instrument. Accordingly, where a person's blood/alcohol level within three hours after driving was recorded by the breath analysing instrument as 0.145%, the Court was in error in fi xing a period of disqualifi cation of 10 months. The minimum period should have been fi xed at 14 months.

2. Obiter. In view of the statutory format and plain language of sections 49(5), (7) and 50 of the Act, a Court in hearing a charge under s49(1)(f) should not receive evidence designed to show that the authorised breath analysing instruments used by the police habitually over-estimate to a degree.

JH Phillips J:"... It should be noted that the provisions relating to cancellation of licence and disqualifi cation in the Act follow directly after s49(7) and commence with the phrase "Section 50(1) on conviction for an offence under s49(1), the Court ..." et cetera. This statutory format and the plain language used persuade me that it is the intention of Parliament that, in fi xing penalty the Court is only to have regard, so far as the minimum period of disqualifi cation is concerned, to the "level of concentration of alcohol found to be recorded or shown by the breath analysing instrument" referred to in s49(7)(b), although a large variety of other considerations may be relevant as to the amount of a monetary penalty and to the extent, if any, the disqualifi cation is to operate beyond the minimum term prescribed. Accordingly, I am satisfi ed the learned Magistrate erred in law and that the grounds of the order nisi are made out and that the order nisi should be made absolute.

... Mr Robertson wishes to argue, in that event, that the Magistrate should receive evidence, assuming that it is available, that the authorised breath analysing instruments used by the police habitually over-estimate to a degree and that some allowance should be made by the learned Magistrate for this in assessing the "true level", as he put it, of concentration of alcohol at the time the respondent was tested. I am not minded to accede to this. It is a defence under the Act to the relevant charge for a defendant to prove that "the breath analysing instrument used was not on that occasion in proper working order or properly operated" (see s49(4)) and thus the whole basis for the result of an individual test might be overturned. But there is nothing in the Act which would expressly permit the receipt of the sort of evidence proposed and, in my opinion, the plain wording of s49(7)(b) conveys that such evidence should not be received. ..."

Per JH Phillips J in McDonald v Bell [1987] VicSC 558; (1987) 6 MVR 113; MC 62/1987, 4 December 1987.

101. Copy certifi cates left with accused's housekeeper – certifi cates read by accused the same day – whether personal service of certifi cates effected – meaning of "personally served" – Magistrate held that certifi cates not personally served and was in error in dismissing charge.

Section 80D(5) of the Motor Car Act 1958 ("Act") provides (so far as relevant):

"No certifi cate given pursuant to this section shall be tendered in evidence ... unless a copy of such certifi cate is proved to have been personally served on the accused ..."

A police offi cer handed copies of certifi cates under Schedules 6 and 8 of the Act to C's housekeeper after being informed that C. was asleep in the house. The housekeeper accepted the certifi cates and placed them on top of a stereo. Later that day when C. awoke, the housekeeper told him about the documents; C. picked them up and appeared to read them. On the later hearing of the drink/driving charge, the Magistrate accepted a submission that the accused had not been personally served with copies of the certifi cates and dismissed the charge. Upon order nisi to review—

HELD: Order absolute. Dismissal set aside. Remitted for further hearing.(1) "Personal service" does not necessarily mean actual service upon the person to be served. It is suffi cient if shown that the documents came into the person's hands or to the person's knowledge. R v Heron; ex parte Mulder [1884] VicLawRp 108; 1884) 10 VLR (L) 314; and Pino v Prosser [1967] VicSC 91; [1967] VicRp 107; (1967) VR 835, applied.

(2) In the present case, the copy certifi cates, although left with the accused's housekeeper, came into the accused's possession on the same day, and this constituted personal service as required by s80D(5) of the Act.

O'Bryan J:"... A more recent authority bearing upon the meaning of personal service is Pino v Prosser [1967] VicSC 91; [1967] VicRp 107; [1967] VR 835, a decision of McInerney J. A writ, of which personal

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DRINK/DRIVING in VICTORIAservice was required by Rules of Court, had been left with the defendant's wife who handed the writ to her husband later on the same day when he returned from work. Mr Justice McInerney reviewed a considerable number of authorities before holding that on the facts proved, personal service had been effected.

... What happened on 7th June is clear and uncontested. A police offi cer handed a number of documents, including a Schedule 6 and a Schedule 8 Certifi cate, to the respondent's housekeeper at the respondent's residence. The respondent was asleep and rather than disturb him, the police offi cer reasonably believed that the housekeeper would hand the documents over to the respondent when he awoke. This in fact happened when the documents were shown to the respondent by Mrs Cook and he appeared to read them. In my opinion, personal service of the documents in question was effected as required by ss(5) and the learned Magistrate ought to have been so satisfi ed. The learned Magistrate was wrong in holding that personal service had not been proved. ..."

Per O'Bryan J in Butterley v Cain [1988] VicSC 89; (1988) 6 MVR 423; MC 04/1988, 1 March 1988.

102. Alcohol consumed by defendant before and after driving – whether evidence of such admissible – whether offence relates to time of driving or time of test.

HELD:1. Where a charge is laid pursuant to s49(1)(f) of the Road Safety Act 1986, the prosecution is not required to establish the defendant's blood/alcohol concentration at the time of driving but rather the concentration as shown by the breath analysing instrument. McDonald v Bell [1987] VicSC 558; MC 62/1987, followed; R v Durrant (1970) 1 WLR 29; (1969) 3 All ER 1357, distinguished.

2. Furthermore, a person charged with such an offence is not able to call evidence on the hearing of the charge as to that person's consumption of alcohol before and after the driving but before furnishing the sample of breath for analysis.

McDonald J:"... The intention of Parliament is clear to my mind and it matters not that the provisions in the Act under consideration here are draconian, if Parliament so intended them to be. The policy in Part 5 of the Act is to make the result of the analysis as recorded or shown by the breath analysing instrument unassailable by the person charged, unless the person charged should prove that the breath analysing instrument used was not on that occasion in proper working order or properly operated. The facts and matters contained in the copy document admissible in evidence by s58(2) which are conclusively proved are all the facts and matters certifi ed in paragraphs one, two, three, four, fi ve and six of the document. In paragraph four the authorised operator certifi es that "the said instrument indicated that the quantity of alcohol present in the blood of the person providing the sample of breath for analysis at the time and place referred to (in paragraph two) was (so many) grams of alcohol per 100 millilitres of blood which, expressed as a percentage is (so many) per centum."

... In each of the three cases the evidence of the expert tendered in the Court below was inadmissible inasmuch as it was tendered to show that a breath analysing instrument can over-estimate the concentration of alcohol in a person's blood and was wrongly admitted by the learned Magistrate. It follows that in this type of case the policy of the Parliament precludes evidence of the kind adduced in these cases on behalf of the respondent unless such evidence is tendered pursuant to s49(4) namely, to prove that the breath analysing instrument used was not on that occasion in proper working order or properly operated. In each case the grounds of the order nisi are made out. Each order nisi is made absolute with costs. ..."

Per McDonald J in Giankos v Ellison [1988] VicSC 250; (1988) 7 MVR 104; MC 27/1988, 30 May 1988. 103. Certifi cate of breath analysing instrument operator admitted into evidence – "conclusive proof" – whether evidence that breath analysing instrument can over-estimate admissible.

1. The policy of Parliament in Part 5 of the Road Safety Act 1986 is to make the result of the analysis as recorded or shown by the breath analysing instrument unassailable by the person charged, unless that person can prove that on that occasion, the instrument was not in proper working order or properly operated.

2. Accordingly, a court was in error in admitting evidence tendered to show that a breath analysing instrument can over estimate the concentration of alcohol in a person's blood. McDonald v Bell [1987] VicSC 558; MC 62/1987; and Giankos v Ellison [1988] VicSC 250; (1988) 7 MVR 104; MC 27/1988, followed.

O'Bryan J:

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PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIA"... Whereas the document tendered pursuant to s80F(3) provided "prima facie" evidence, the document tendered pursuant to s58(2) is "conclusive proof" of the facts and matters contained in it. Evidence may be of varying degrees of cogency. At one level the facts proved in evidence may enable the tribunal of fact to act upon them in the absence of further evidence. In this sense the evidence may be said to be "prima facie" because it is not conclusive. At another level facts may be proved conclusively, such as uncontradicted evidence which is reasonable and inherently probable.

... The intention of Parliament is clear to my mind and it matters not that the provisions in the Act under consideration here are draconian, if Parliament so intended them to be. The policy in Part 5 of the Act is to make the result of the analysis as recorded or shown by the breath analysing instrument unassailable by the person charged, unless the person charged should prove that the breath analysing instrument used was not on that occasion in proper working order or properly operated. The facts and matters contained in the copy document admissible in evidence by s58(2) which are conclusively proved are all the facts and matters certifi ed in paragraphs one, two, three, four, fi ve and six of the document. In paragraph four the authorised operator certifi es that "the said instrument indicated that the quantity of alcohol present in the blood of the person providing the sample of breath for analysis at the time and place referred to (in paragraph two) was (so many) grams of alcohol per 100 millilitres of blood which, expressed as a percentage is (so many) per centum."

... Once it is conclusively proved at the hearing that the result of the analysis as recorded or shown by the breath analysing instrument, in the case of a person previously convicted of an offence against paragraphs (a), (b), (f) or (g) of s49(1), was more than 0.05 grams per 100 millilitres of blood or in any other case was more than 0.10 grams per 100 millilitres of blood, the provisions of Part 9 of the Penalties and Sentences Act 1985 with respect to the adjournment of an information without proceeding to conviction do not apply. The conclusivity of the result of the analysis as recorded or shown by the breath analysing instrument requires a Court to convict a person of an offence under s49(1)(a), (b), (f) or (g), if the result of the analysis as recorded or shown in the case of a fi rst offender is more than 0.10 grams and in the case of a person previously convicted is more than .05. On convicting a person the Court must comply with ss(7) of s49 and cause to be entered in the records of the Court the level of concentration of alcohol found present in the blood or recorded or shown by the breath analysing instrument or present in the sample of blood. The Court must also comply with s50 and proceed to cancel a driving licence and disqualify the offender for such time as the Court thinks fi t, not being less than the prescribed period.

... These recent decisions confi rm in my mind that the new legislation has signifi cantly altered the law pronounced in Lamb v Morrow [1986] VicRp 61; [1986] VR 623; [1986] 3 MVR 175. In each of the three cases the evidence of the expert tendered in the Court below was inadmissible inasmuch as it was tendered to show that a breath analysing instrument can over-estimate the concentration of alcohol in a person's blood and was wrongly admitted by the learned Magistrate. It follows that in this type of case the policy of the Parliament precludes evidence of the kind adduced in these cases on behalf of the respondent unless such evidence is tendered pursuant to s49(4) namely, to prove that the breath analysing instrument used was not on that occasion in proper working order or properly operated. In each case the grounds of the order nisi are made out. Each order nisi is made absolute with costs. The three matters must be returned to the Magistrates' Courts from whence they came to be dealt with in accordance with law. In the cases of Boyle and Wain the Court may not grant an adjournment instead of convicting the offender and on conviction mandatory penalties must be imposed by the Court. In the case of Gilmore, as the concentration of alcohol indicated by the analysis was not more than 0.10 grams per 100 millilitres of blood different considerations will apply. However, it might be desirable that the information be re-heard before another Magistrate."

Per O'Bryan J in Bakker v Boyle [1989] VicRp 39; [1989] VR 413; (1988) 9 MVR 149; MC 39/1988, 17 June 1988.

104. Evidence – illegally obtained – statutory offence – driving under infl uence of alcohol – compulsory breath and blood tests – grounds for requiring submission to test – grounds not satisfi ed – whether sample obtained illegally – whether evidence admissible – error in obtaining evidence not wilful – discretion to exclude – public policy

Section 63(1) of the Road Traffi c Act 1974 (WA) made it an offence for which the offender could be arrested without warrant for a person to drive or attempt to drive a motor vehicle while under the infl uence of alcohol, drugs, or alcohol and drugs to such an extent as to be incapable of having proper control of the vehicle. Sub-section (5) deemed a person who had at the time of an alleged offence against s63 a percentage of alcohol in his blood of or exceeding 0.15 per cent to have been under the infl uence of alcohol to such an extent as to be incapable of having proper control of a motor vehicle at the time of the alleged offence. Section 66(1) authorized a patrolman to require a person to provide a breath sample for a preliminary test where he had reasonable grounds to believe that a certain state of affairs existed. Sub-section (2) provided that if it appeared to the patrolman that the preliminary test indicated that the blood contained 0.08 per cent or more of alcohol or if the patrolman had reasonable grounds to believe that a person had committed an offence against s63 by reason of his being under the infl uence of alcohol,

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DRINK/DRIVING in VICTORIAhe might require that person to accompany him to a particular place and provide a breath or blood sample for analysis. Section 70 made evidence of breath and blood samples so obtained admissible in proceedings for an offence against s63.

The driver of a motor car on a public highway was stopped by a patrolman who had seen the car moving on an erratic course and at an excessive speed. The driver staggered as he stepped out of the car. The patrolman asked whether he had been drinking. He replied that he had had about three glasses of beer. Without requiring the driver to undergo a preliminary breath test the patrolman asked him to accompany him to an offi ce of the traffi c authority to provide a breath sample for breathalyzer analysis. A breathalyzer test was administered which revealed 0.19 per cent concentration of alcohol. The driver was charged with breach of s63(1). The Magistrate rejected the evidence resulting from the breathalyzer test as inadmissible and dismissed the charge. The Magistrate found that the patrolman had not had a reasonable suspicion that the driver was under the infl uence of alcohol so as to be incapable of driving a car. Hence the breathalyzer evidence had been obtained unlawfully and was inadmissible on that ground.

Upon review, a judge of the Supreme Court held that the Magistrate had erred in rejecting the breathalyzer test evidence on the ground stated and remitted the case with a direction that the Magistrate should exercise his discretion whether or not to admit the evidence because of the manner in which it had been obtained. When the complaint was heard again, the Magistrate rejected the evidence on the ground that he considered the circumstances in which it had been obtained to be unfair to the driver. Upon review before the Full Court of the Supreme Court it was held that the Magistrate had misdirected himself upon the criteria by which admissibility should be determined and that he had wrongly excluded the evidence. The case was again remitted to the Magistrate with directions requiring him to admit the result of the breathalyzer test in evidence. Upon appeal by the driver from the decision of the Full Court.

HELD: Decision of the Supreme Court of Western Australia (Full Court) affi rmed. Per Barwick CJ, Stephen, Jacobs and Aickin JJ, Murphy J dissenting. The evidence of the breathalyzer was admissible.

Per Barwick CJ, Stephen and Aickin JJ. The considerations affecting the reception of evidence obtained in contravention of requirements of law were not offended by admitting the evidence: the unlawful conduct of the patrolman had resulted from a mistake, not from deliberate or reckless disregard of the law. Further, the nature of the illegality had not affected the cogency of the evidence, cogency being a factor in determining the admissibility of evidence obtained illegally where the illegality arises only from mistake.

Per Jacobs J. The evidence was voluntary and thus had been obtained lawfully. R v Ireland [1970] HCA 21; (1970) 126 CLR 321; [1970] ALR 727; (1970) 44 ALJR 263, applied. Kuruma v R (1955) AC 197; [1955] 1 All ER 236; Spicer v Holt (1977) AC 987; [1976] 3 All ER 71; (1976) 3 WLR 398; and Jeffrey v Black (1978) QB 490; [1978] 1 All ER 555; [1977] 3 WLR 895; 66 Cr App R 81, considered.

Barwick CJ:" ... 17. This question of the competition of the public interest in conviction with the unfairness to the applicant in connexion with the taking of the test, the magistrate did not consider. If he had, the only conclusion to which, in my opinion, he could properly have come, was that there was no unfairness to the applicant in the circumstances and manner of the obtaining of the evidence as to the alcoholic content of his blood. There was nothing whatever to out-balance the public interest in the enforcement of the law. ..."

Stephen and Aickin JJ:" ... We would agree with those members of the Full Court who were unable to discern anything unfair in what occurred; to our minds unfairness does not enter into this case, any more than it should in a case of the unlawful search of person or premises. If a "breathalyzer" test, properly performed and with all attendant safeguards observed, discloses an excessive level of alcohol in a motorist's blood it is in no sense "unfair" to use it in the conviction of the motorist, just as it is surely not "unfair" to use, against a person accused of having in his possession weapons or explosives, evidence obtained by means of an unlawful body search so long, once again, as that search is so conducted as to provide all proper safeguards against weapons or explosives being "planted" on the accused in the course of the search.

... 43. The magistrate does not appear to have considered some of the above criteria. He seems to have much relied upon what he regarded, we think erroneously, as the "inherent unfairness" of what occurred and to have stressed the prejudicial nature of the evidence, which was only prejudicial in the sense that it was by statute made conclusive of the guilt of the appellant. He also does not seem directly to have accorded any weight to the public interest in bringing to conviction those who commit criminal offences.

44. In the end we believe that the balance of considerations must come down in favour of the

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PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAadmission of the evidence. We have earlier stated why, in our view, his Worship's existing exercise of discretion cannot stand. There remains the question whether this Court should now itself exercise the discretion or rather have the case once more remitted to the magistrate for him to exercise anew his discretion in accordance with law.

... It is, then, for these reasons that we think it proper in the present case to set aside the magistrate's exercise of discretion and, in its stead, for this Court to exercise the discretion in a contrary sense. In our judgment the evidence should have been received. The case should be remitted to the magistrate with a direction that the appellant be convicted, a course which the magistrate had indicated he would have been obliged to follow had the evidence of the "breathalyzer" test been received in evidence."

Per Jacobs J:" ... 3. I agree with the reasons expressed by the Chief Justice for the conclusion that nothing in the Road Traffi c Act 1974 (WA) precludes a patrolman or an unauthorized person from asking for a sample of breath of a person willing to give it or from operating the breathalyzer apparatus in relation to such a sample. It appears to me that that is what occurred in the instant case and that a contrary view of the evidence is not sustainable.

4. The evidence was thus lawfully and regularly obtained. It was admissible under s70 of the Act and there was no proper basis for any conclusion that it should be rejected in exercise of any discretion. ..."

Per the High Court in Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54; 19 ALR 641; 52 ALJR 561; noted 52 ALJ 638; 54 ALJ 36; 6 Crim LJ 89; MC 55/1980, 14 June 1978. 105. Driving under the infl uence of intoxicating liquor – when intercepted driver locked himself in his motor car – police offi cer forced entry into vehicle and required driver to submit to a breath test – at subsequent hearing Magistrate dismissed charge on basis that admitting the evidence would give curial approval to the actions of the police offi cer – Magistrate in error.

HELD: Dismissal set aside. [Appeal dismissed. cf [1982] TASRp 27; [1982] Tas R 287.]Accepting that the act of the police offi cer, not being an act in pursuance of a power of arrest or of any statutory authority, was unlawful in the sense that it was a trespass to chattels, the Magistrate gave undue emphasis to the need to avoid curial approval of unlawful acts of those whose duty it is to enforce the law. Further, no weight had been given to the public interest in ensuring that offending motorists should not escape punishment by simply locking themselves in their vehicles.

Everett J (Tas SC):Everett J accepted that the act of the police offi cer, not being an act in pursuance of a power of arrest or of any statutory authority, was unlawful in the sense that it was a trespass to chattels. However, he held that the learned magistrate had given undue emphasis to the need to avoid curial approval of unlawful acts of those whose duty it is to enforce the law. Further, in his Honour's view, no weight had been given to the public interest in ensuring that offending motorists should not escape punishment by simply locking themselves in their vehicles.

Having determined that the learned magistrate had incorrectly exercised his discretion, his Honour examined the factors referred to in the joint judgment of Stephen and Aickin JJ in Bunning v Cross and found as follows:

1. The unlawfulness was not a result of a deliberate disregard of the law. The cogency of the evidence to be obtained was not affected by the illegality and would have vanished had it not been reasonably promptly obtained.2. There was no readily available means of obtaining the evidence without the unlawful act.3. The offences charged were serious and involved potential physical harm to other persons. It may be noted that had the respondent not been arrested that potential harm would have continued until he ceased to drive.4. There was nothing to suggest that the legislature had turned its attention to the question of conferring a power of entry into a motor vehicle in the circumstances of the case. His Honour was satisfi ed that rather than being a deliberate attempt to restrict police power the failure of the legislature to confer power to enter vehicles of suspect persons to obtain evidence for drink driving offences was "a result of inadvertence".5. Although his Honour did not advert to it, the case was, for what it is worth, one where the evidence of intoxication would have disappeared with time.

Per Everett J in Marshall v Wilson (1982) 6 Crim LJ 160; MC 68/1982, 7 December 1981.

106. Defendant whilst driving his motor car collided with another – intercepted by police – breath test showed .265BAC – defendant had consumed a large quantity of beer laced with brandy – defendant charged with driving whilst under the infl uence of intoxicating liquor, exceed .05% and failing to immediately stop his motor car after the accident – whether defence of automatism available – whether

104

DRINK/DRIVING in VICTORIAProudman v Dayman defence available – charges dismissed by Magistrate on the grounds that the defendant had been made drunk involuntarily, that he had not intentionally driven his motor car and that he was not responsible for driving his car or for anything that occurred in consequence thereof – Magistrate in error.

HELD: Orders nisi in each case made absolute. Dismissals set aside. Remitted for hearing and determination in accordance with the law.1. Section 80B(1) of the Motor Car Act 1958 ('Act') is not concerned with the circumstances under which a person becomes under the infl uence of intoxicating liquor (or of any drug). Nor does it forbid a person from coming under the infl uence of liquor or drugs. It simply makes it an offence for a person to drive a motor car while under the infl uence of intoxicating liquor or of any drug to such an extent as to be incapable of having proper control of the motor car.

2. Section 80B(1) of the Act makes it an offence simply to "drive a motor car while under the infl uence of intoxicating liquor or of any drug to such an extent as to be incapable of having proper control of the motor car". There is no reference to knowledge or intention and no implication should be made that in order to commit the offence a driver must know that he is under the infl uence of intoxicating liquor to such an extent as to be incapable of having proper control of his car, or must be reckless or indifferent as to whether he is in that state, or must intend to drive in that state. Any such implication would defeat the object of s80B, because it is notorious that one of the effects of alcohol (and of many drugs) is not only to render a person incapable of properly driving a car but also to encourage him not to accept that he is in that condition. Hence, mens rea in the sense of knowledge of the relevant facts, or reckless indifference, or intention, is not an element of the offence created by s80B.

3. Where a person drives a motor car while under the infl uence of intoxicating liquor to such an extent as to be incapable of having proper control of the car, it is not a defence to a charge under s80B(1) of the Act that he was at the time in a state of alcohol-induced automatism, for which others were responsible.

4. It would certainly have been open to the Magistrate to have been satisfi ed beyond reasonable doubt on the evidence that the defendant was not in a state of automatism. For example, he was able to conduct relatively rational conversations with Stirling and Constable Barker; his performances in the sobriety tests, although not good, were by no means hopeless; and in fact he succeeded in driving his car along a number of streets. It was unnecessary to decide whether it would have been open to the Magistrate on the evidence to have held that the possibility of the defendant having been in a state of automatism while driving his car was not excluded beyond reasonable doubt.

5. In relation to the Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536; [1944] ALR 64 defence, there was no evidence that when the defendant was driving his car he honestly believed that he was not under the infl uence of intoxicating liquor to such an extent as to be incapable of having proper control of his car. His evidence was that he did not remember driving the car at all. And even if he had honestly held a belief that he was not so affected by liquor as to be incapable of having proper control of his car, such belief would not have been based on reasonable grounds: his blood alcohol level was found to be .265, so that he must have felt drunk; he was driving very erratically; he was aware that he had drunk quite a substantial quantity of beer; and from his own symptoms he could reasonably have concluded that the beer had been a good deal more potent than he had supposed.

6. There was evidence upon which the Magistrate could have been satisfi ed beyond reasonable doubt that the defendant was aware of the accident at the time of its occurrence, notwithstanding his inebriated condition. The defendant told a witness that he remembered hitting a car back in Courtney Street, and also Constable Barker's evidence that Burke, when asked whether he was involved in an accident a few minutes earlier, said: "I think so. I remember something going bang."

7. If the Magistrate was satisfi ed beyond reasonable doubt that the defendant was not driving in a state of automatism and knew of the occurrence of the accident and did not stop, then the Magistrate ought to have convicted him in respect of the information of failing to stop after an accident.

Newton J:"... Counsel for Burke then cited Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536; [1944] ALR 64, to the Stipendiary Magistrate. He submitted that the evidence of McMullen, Newlands and Burke himself showed that Burke had had no intention of getting drunk and no intention of driving his car whilst drunk. He further submitted that Burke was not responsible for his actions because of being in a state of intoxication into which he had been inveigled by the actions of McMullen, and should not be convicted. The Stipendiary Magistrate said that he agreed with these submissions, and he then dismissed the three informations. ...

Section 80B(1) is not concerned with the circumstances under which a person becomes under the infl uence of intoxicating liquor (or of any drug). Nor does it forbid a person from coming under the

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PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAinfl uence of liquor or drugs. It simply makes it an offence for a person to drive a motor car while under the infl uence of intoxicating liquor or of any drug to such an extent as to be incapable of having proper control of the motor car.

... As to circumstance (b) s80B(1) makes it an offence simply to "drive a motor car while under the infl uence of intoxicating liquor or of any drug to such an extent as to be incapable of having proper control of the motor car". There is no reference to knowledge or intention. And in my opinion, no implication should be made that in order to commit the offence a driver must know that he is under the infl uence of intoxicating liquor to such an extent as to be incapable of having proper control of his car, or must be reckless or indifferent as to whether he is in that state, or must intend to drive in that state. Any such implication would defeat the object of s80B, because it is notorious that one of the effects of alcohol (and of many drugs) is not only to render a person incapable of properly driving a car but also to encourage him not to accept that he is in that condition. Hence, in my opinion, mens rea in the sense of knowledge of the relevant facts, or reckless indifference, or intention, is not an element of the offence created by s80B.

In the present case there was no evidence that when Burke was driving his car he honestly believed that he was not under the infl uence of intoxicating liquor to such an extent as to be incapable of having proper control of his car. His evidence was that he did not remember driving the car at all. And even if he had honestly held a belief that he was not so affected by liquor as to be incapable of having proper control of his car, such belief would not, in my opinion, have been based on reasonable grounds: his blood alcohol level was found to be .265, so that he must have felt drunk; he was driving very erratically; he was aware that he had drunk quite a substantial quantity of beer; and from his own symptoms he could reasonably have concluded that the beer had been a good deal more potent than he had supposed.

... I doubt whether the Stipendiary Magistrate by his reference to Burke not being responsible for his actions intended to convey that he considered that Burke at the material time was in a state of alcohol-induced automatism, or that he considered that it is a defence to a charge under s80B that the defendant was driving in a state of alcohol-induced automatism. But I should say that, in my opinion, this would not be a defence. It would be quite inconsistent with the object of s80B, if the words "who drives a motor car" in s80B(1) were given a meaning which excluded driving in a state of alcoholic automatism. Indeed this would make nonsense of the section. ...

The evidence established beyond reasonable doubt that Burke was driving his car while the percentage of alcohol in his blood expressed in grams per one hundred millilitres of blood was more than .05 per cent. Burke ought, therefore, in my opinion, to have been convicted notwithstanding the matters relied on by the Stipendiary Magistrate."

Per Newton J in Barker v Burke [1970] VicRp 111; [1970] VR 884; MC 50/1969, 15 July 1970.

107. Defendant pleaded not guilty to the drink/driving charges but guilty to the speeding charge – identity of driver disputed in court – admissions of fact by plea of guilty – uncontradicted evidence considered – drink/driving charges dismissed by Magistrate – Magistrate in error.

The defendant was charged under the Motor Car Act 1958 with driving whilst under the infl uence of intoxicating liquor (s80B); driving whilst blood alcohol exceeded .05% (s81A), and under the Road Traffi c Regulations, exceeding 100km/h; exceeding 60km/h in a built-up area. There were two further charges – hindering Constable Bolton and resisting Constable Andrews in the execution of their duties. (s52 Summary Offences Act). When charged the defendant pleaded guilty to exceeding 60km/h in a built-up area, and not guilty to the remaining charges.

The fi rst four charges arose out of the same circumstances, the last two related to the defendant's behaviour at his home. The evidence led by the prosecution told of an erratic course a motorist took pursued by a police patrol through the city, of the vehicle being followed by the police to the home of the defendant, of a man identifi ed as the defendant going into the house, of his apparent inebriated condition – briefl y, of a course of evidence leading to a blood test of .170%. At the close of the informant's case a submission was made that the charges should be dismissed on the ground that the prosecution had failed to prove that the person charged was the person whom the police saw driving the motor vehicle on the night in question. The Magistrate after hearing some argument, stated he was not satisfi ed that the police had proved the identity of the driver and dismissed the fi rst and second informations, but convicted on the charges of speed exceeding 60km/h, hindering and resisting.

The informants in the fi rst two cases, obtained orders nisi on broad grounds that it was not open to the Magistrate at that stage to fi nd because of the uncontradicted evidence of the prosecution and the defendant's plea of guilty to one of the driving charges, that he was on the police evidence not satisfi ed that the defendant was the driver.

HELD: Order absolute. Orders of the Magistrates' Court set aside and remitted for further hearing according to law.1. There was uncontradicted evidence that the defendant was the man who had got out of the car and was also the man who had pleaded guilty to have driven that motor car at the relevant time at an excessive

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DRINK/DRIVING in VICTORIAspeed. The admission contained in such plea was an admission of the facts essential to the crime charged.

2. In the circumstances, it was unreasonable at the stage when the Magistrate said he was not satisfi ed, to disbelieve or reject the evidence for the informant as to the identity of the driver of the motor car, the more so, because the Magistrate appeared to have given no reasons for his departure from the form which Madden CJ in Richards v Jager [1909] VicLawRp 26; [1909] VLR 140; 15 ALR 119; 30 ALT 163 predicated.

Anderson J:" ... In my view, only one reasonable conclusion could have been drawn, and that was that the defendant was the driver of the motor car. Not only was there direct uncontradicted evidence that the defendant was to that effect, but there was the further point raised by Mr Uren counsel for the informant which I think is equally pertinent and that is that the defendant, having pleaded to the charge of driving the motor car in question at a speed exceeding sixty kilometres per hour, had thereby admitted to the Court the facts essential to the offence with which he was so charged and had pleaded guilty. An essential element of such an offence was that he was the driver of the vehicle and it would be curious indeed that he who had pleaded guilty to being the driver of the motor vehicle which had exceeded a speed limit was not also the driver when it was at the same time being driven in other allegedly unlawful circumstances.

All six cases were being heard together, and admission contained in the plea of guilty that he was the driver of the vehicle at an unlawful speed is quite contradictory to the submission made by his counsel that there was no evidence that he was the driver in respect of the other alleged charges committed, if they were committed, at the same time. There was uncontradicted evidence that he was the man that had got out of the car and was also the man who had pleaded guilty to have driven that motor car at the relevant time at an excessive speed. The admission contained in such plea is an admission of the facts essential to the crime charged."

Per Anderson J in Andrews & Bolton v England [1977] VicSC 229; MC 50/1977, 11 May 1977.

108. Court required to cancel defendant's driver licence – Magistrate decided to order that the defendant's driver licence be deferred for three months – whether Magistrate required to cancel the driver licence forthwith – Magistrate in error.

HELD: Magistrate's order in error. Cancellation order to take effect.1. The point raised by the Order Nisi turned upon the proper interpretation of s81A(3). That provision with respect to cancellation contained in the subsection was clearly mandatory, and it meant what it said, that the licence was to be cancelled from the time that the order was made. There was no power to say that despite a person's conviction he was entitled to continue driving till some period in the future. On the contrary, the statutory policy appeared to be clear that the licence should have been cancelled forthwith.

2. This interpretation of the section was a matter of fi rst impression and there was no agreement with the magistrate that there was nothing to prevent his cancelling the licence from a future date. On the contrary, as a matter of fi rst impression, that at the time of imposing the fi ne or other punishment, in addition to such punishment the Court was required to cancel the licence.

Gillard J:" ... The point raised by the Order Nisi is a very narrow one, and it turns upon the proper interpretation of s81A(3). In my view, that provision with respect to cancellation contained in the subsection is clearly mandatory, and it means what it says, that the licence shall be cancelled from the time that the order is made. There is no power to say that despite a person's conviction he is entitled to continue driving till some period in the future.

On the contrary, the statutory policy appears clear to be that the licence should be cancelled forthwith. The interpretation of the section is a matter of fi rst impression. I do not agree with the magistrate that there is nothing to prevent his cancelling the licence from a future date. On the contrary, as a matter of fi rst impression, it seems to me that at the time of imposing the fi ne or other punishment, in addition to such punishment the Court shall cancel the licence. ..."

Per Gillard J in Moyle v Robinson [1970] VicSC 85; MC 08/1970, 14 April 1970.

109. Defendant convicted on a charge of drink/driving – charge adjourned to a date to be fi xed not exceeding two years – defendant not released on a bond of any sort – Magistrate in error.

HELD: Order nisi absolute. Magistrate's orders set aside. Remitted to the Magistrate for hearing and determination in accordance with the law.It was contrary to the statutory duty cast upon the court by s91(2) of the Justices Act 1958 namely, that the court shall proceed to hear and determine the proceedings before it. It was of necessity that the information should be duly heard, evidence led, and a decision given. In this case, in fact, that is exactly what happened

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PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAand at the conclusion of the evidence the magistrate did say that the defendant would be convicted. Having regard to these views, the magistrate either misdirected himself as to his powers under the provisions of the Justices Act or, alternatively, failed to carry out the responsibility imposed upon him to hear and determine this information and to make the appropriate order in relation to it. In effect, he declined jurisdiction.

Gillard J:" ... Indeed, it also appears to me to be contrary to the statutory duty cast upon the court by s91(2) namely, that the court shall proceed to hear and determine the proceedings before it. It seems to me of necessity that the information should be duly heard, evidence led, and a decision given. In this case, in fact, that is exactly what happened and at the conclusion of the evidence the magistrate did say that the defendant would be convicted. Having regard to these views, it seems to me that the magistrate here either misdirected himself as to his powers under the provisions of the Justices Act or, alternatively, failed to carry out the responsibility imposed upon him to hear and determine this information and to make the appropriate order in relation to it. In effect, he declined jurisdiction as Herring CJ suggested in Lee v Saint [1958] VicRp 25; [1958] VR 126; [1958] ALR 545.

In consequence of those views, I believe the magistrate has not carried out the task imposed upon him by the statute, and accordingly, the order nisi must be made absolute. The order nisi, in fact, was given on a number of grounds. I would be prepared to hold that in this case the order nisi should be made absolute on grounds one, two and three. I particularly refrain from dealing with ground four, because it does involve matters of principle in relation to the exercise of the magisterial discretion. It may be, from Mr Graham's argument, that there is a good deal to be said for the view that the magistrate failed to exercise his discretion properly or, if he did purport to exercise the discretion, it miscarried, because he had in mind matters which were not proper to take into account in exercising his discretion. Since the matter is going back to the magistrate, I think it inappropriate that I should express any view in relation to ground four. ..."

Per Gillard J in Pittaway v Bassett [1973] VicSC 144; MC 22/1973, 24 July 1973.

110. Defendant charged with driving a motor car whilst exceeding .05BAC – defendant found guilty – convicted and fi ned but no order made in relation to his obtaining a driver licence – defendant not licensed at time of fi nding of guilt – whether Magistrate required to make an order disqualifying the defendant from obtaining a driver licence – Magistrate in error.

HELD: Order nisi absolute. Remitted to the Magistrate for hearing and determination in accordance with this decision.1. Sub-section (3) of s81A of the Motor Car Act 1958 is to be read in this way: "In addition to imposing a fi ne or term of imprisonment a court convicting a person for an offence against subs(1) shall, notwithstanding anything to the contrary in this Act or in any other Act, cancel the licence of such person to drive a motor car, and in the case of a fi rst offence, disqualify him from obtaining a licence where the percentage of alcohol in the blood at the time the offence was committed was .10 per centum or more, but less than .15 per centum—for not less than six months."

2. When those words are read it becomes apparent that what the Act does is to require the court to do two things. These are to cancel the licence and to disqualify the defendant from obtaining a licence. Obviously where the defendant has a licence the court must carry out both of these duties. It does not follow that where the defendant does not have a licence to cancel, the court is relieved from the obligation of imposing a disqualifi cation period upon the defendant. The court is still bound to carry out that duty. The section is not to be read as showing an intention that a disqualifi cation period is only to be imposed if, as it were, the condition precedent of the existence of a licence to cancel is established.

Harris J:" ... The view I take is that because there are these various penalties imposed under s81A, a conviction or order which fails to impose all the elements of the penalty which the statute requires does show an error in the conviction or order. That is to say, the view I have formed is that the section mandatorily requires the Magistrates' Court (a) to impose a fi ne or imprisonment and (b) to cancel the licence and disqualify the defendant from obtaining a licence. Consequently if one of these elements is not present in the conviction or order there is an error in the conviction or order. The result of that reasoning is that I hold that it is open to the informant to raise and have decided in this Court the question whether there is an error in the magistrate's decision in not disqualifying the defendant from obtaining a licence to drive a motor car for not less than six months.

... The point arises because of the way in which the section is set out in the Act. If one regards the setting-out of the Act as not being the important thing, but regards the important thing as being the words used in the Act, then so far as is relevant, subs(3) is to be read in this way: "In addition to imposing a fi ne or term of imprisonment a court convicting a person for an offence against subs(1) shall, notwithstanding anything to the contrary in this Act or in any other Act, cancel the licence

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DRINK/DRIVING in VICTORIAof such person to drive a motor car, and in the case of a fi rst offence, disqualify him from obtaining a licence where the percentage of alcohol in the blood at the time the offence was committed was .10 per centum or more, but less than .15 per centum—for not less than six months." When those words are read it becomes apparent that what the Act does is to require the court to do two things. These are to cancel the licence and to disqualify the defendant from obtaining a licence. Obviously where the defendant has a licence the court must carry out both of these duties. It does not follow that where the defendant does not have a licence to cancel, the court is relieved from the obligation of imposing a disqualifi cation period upon the defendant. The court is still bound to carry out that duty. I do not read the section as showing an intention that a disqualifi cation period is only to be imposed if, as it were, the condition precedent of the existence of a licence to cancel is established.

The result of what I have said is that I hold that the magistrate was in error in acceding to the submission that was put to him on behalf of the defendant. I hold that although the defendant did not have a licence to cancel and that therefore the magistrate could not cancel any licence, nevertheless the magistrate constituting the court was under a duty to disqualify the defendant from obtaining a licence, and that on the evidence in this case the relevant period was for a period of not less than six months. ..."

Per Harris J in Earl v Butler [1974] VicRp 44; [1974] VR 359; MC 32/1973, 15 November 1973.

111. Sentencing – defendant charged with exceed .05% – "Matter proven" – defendant had prior conviction for a similar offence – matter adjourned for 52 weeks – money to be paid into the Court Poor Box – whether Court in error.

On a charge of blood alcohol exceeding .05 (S81A Motor Car Act 1958), no evidence having been called on the issue by the defence, the Justices announced they had "found the charge proven". The defendant admitted four prior convictions, one of these being a conviction for .05. The defence called two character witnesses. After hearing the character evidence the Magistrate ordered that the information should be adjourned for 52 weeks conditionally on the defendant paying $50 into the Poor-box. Upon order nisi to review—

HELD: Order absolute. Matter remitted to the Magistrates' Court for determination in accordance with the law.1. As no conviction was recorded by the Magistrates' Court, the question which arose from that conclusion was whether the adjournment which the Court ordered was correctly granted.

2. This adjournment took place not during a hearing but at the end of it after the cases of both parties had been completely heard. The effect of it was to deny the informant a decision to which he was entitled, leaving all the issues still open. The adjournment was not for the better or more convenient hearing of the case. That was over. It was not an adjournment to enable the Justices to consider what was an appropriate penalty. For that purpose it was far too long an adjournment, and in any case, if that was the purpose of it a conviction should have been recorded. Its purpose in one way or another was to avoid the recording of a conviction, and if this was to be done it should have been done by reference to s92(6) of the Justices Act 1958, and it was a miscarriage of the discretion to attempt to do it by any other means.

3. The order made involved a miscarriage of the discretion. The discretion miscarried because the Justices did not advert to the right of the informant to a decision nor to their statutory power with its specifi c requirements.

Lush J:"... Mr Batt who appeared for the informant argued that a proper interpretation of events at the hearing led to the conclusion that the defendant had been convicted and in consequence, the convicting court was under a mandatory obligation to impose the cancellation and disqualifi cation required by sub-s(3).

The validity of this argument is then the fi rst matter for consideration. The solution, I think, emerges clearly from authority. To fi nd a matter proved is not the same thing as to record a conviction and the fact that a court announces that it fi nds a charge proved does not of itself bring that court within the description of a court convicting the person of that charge.

... My view, accordingly, is that as a matter of authority s92(6) is available in relation to a prosecution under s81A, and as a matter of principle the short reason why it is so available is that the mandatory penalties imposed by s81A(3) follow upon conviction. Section 92(6) is a power to adjourn before conviction. ..."

Per Lush J in Forbes v Graham [1975] VicSC 466; MC 36/1975, 16 September 1975.

112. Person previously found guilty of drink/driving – released on Bond – fi nding by Magistrate on subsequent drink/driving offence that offender should be dealt with as a fi rst offender – Magistrate in error.

109

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAL. had been before a Court in 1976 on a charge of exceeding .05: the charge was adjourned to 1977 a period of 52 weeks on the defendant entering into a recognizance to be of good behaviour. In 1977, the information against the defendant was dismissed, the defendant having satisfi ed the Court that he had observed the conditions of his recognizance. Defendant again came before the Court in 1980 on another charge of exceeding .05. The previous proceedings were proven before the Magistrate. It was submitted, because of the dismissal in 1977 (at the end of the period), the court should deal with the defendant, as not previously been guilty of the .05 offence. The submission was accepted and the defendant dealt with as a fi rst offender. Upon appeal—

HELD: Where a person had been found guilty of a drink/driving offence and released on a bond to be of good behaviour, a magistrate was in error in imposing penalties as for a fi rst offence.

Anderson J:" ... The cases to which counsel referred, insofar as really relevant, are two in number. One is Pring v Woolacott (1966) SASR 6, and the other case is Kelly v Russell [1970] ALR 644; (1969) 14 FLR 255.

... I share the view with the learned judges in those cases, expressed in the context in which the word "offence" is as used in s80A of the Motor Car Act. A dismissal of the information by the Court in 1977 does not alter the fact that the defendant had been found guilty of the .05 offence in August of 1976. I think I need say no more, and the consequence is that the magistrate was in error in imposing penalties as for a fi rst offence. ..."

Per Anderson J in Vaughan v Lennie [1981] VicRp 25; [1981] VR 229; [1980] VicSC 596; MC 06/1981, 16 December 1980.

113. Certifi cate of analysis admitted into evidence – not contested by defendant – Magistrate heard another case the same day and accepted evidence that the reading may be less than that recorded – Magistrate applied the evidence in that case to the present case – whether proper – Magistrate said that there were references which showed that there could be inaccuracies in the breath analysing instruments – Magistrate read down reading to less than 0.15BAC and imposed a lesser disqualifi cation – Magistrate in error.

HELD: Order nisi absolute. Order in relation to the disqualifi cation period set aside. Remitted to the Magistrates' Court for further hearing to determine the appropriate period of disqualifi cation.1. The only evidence as to the percentage of alcohol in the blood of the defendant was that the percentage was .16 per cent. That was established by the certifi cate. That certifi cate was prima facie evidence of that fact.

2. Section 80G of the Motor Car Act 1958 creates a statutory evidentiary presumption with respect to these matters. It provides that "For the purposes of this Division if it is established that at any time within two hours after an alleged offence a certain percentage of alcohol was present in the blood of the person charged with the offence it shall be presumed until the contrary is proved that not less than that percentage of alcohol was present in the person's blood at the time at which the offence is alleged to have been committed". This section therefore brought about the result that in the defendant's case the Court had to presume until the contrary was proved that, as it had been established that at 7.05pm. the percentage of alcohol present in his blood was .16 per cent, the percentage of alcohol present in his blood at the time when the offence was committed, namely 6.25pm. was also .16 per cent. There was no evidence at all to the contrary of this in the defendant's case.

3. The fact was that in McRae's case there was no evidence in relation to breathalyser error, and, accordingly, the magistrate was not entitled in deciding McRae's case to rely upon anything except the evidence which was given in his case.

4. Therefore, on the evidence given in McRae's case the magistrate should have been satisfi ed that the percentage of alcohol in his blood was .16 and consequently that the magistrate should have fi xed as the disqualifi cation period during which McRae was unable to obtain a licence, a period of not less than 12 months.

5. If a defendant wished to rely upon a defence based upon the inaccuracy of the blood alcohol instruments in general or the particular one that was used in the defendant's case, then it was necessary for him to call evidence to this effect.

6. Consequently, the magistrate was wrong in taking into account, in determining the period for which he disqualifi ed the defendant from obtaining a licence, that the breath analysing instrument could be slightly inaccurate. Indeed, there was no basis upon which he could make a fi nding that the breath analysing instrument used in McRae's case was slightly inaccurate. Consequently, he was wrong in basing his order disqualifying the defendant on the basis that the defendant had a percentage of alcohol in his blood less than the percentage shown by the breath analysing instrument.

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DRINK/DRIVING in VICTORIAHarris J:

" ... Section 80G of the Motor Car Act 1958 creates a statutory evidentiary presumption with respect to these matters. It provides that "For the purposes of this Division if it is established that at any time within two hours after an alleged offence a certain percentage of alcohol was present in the blood of the person charged with the offence it shall be presumed until the contrary is proved that not less than that percentage of alcohol was present in the person's blood at the time at which the offence is alleged to have been committed". This section therefore brought about the result that in the defendant's case the Court had to presume until the contrary was proved that, as it had been established that at 7.05 p.m. the percentage of alcohol present in his blood was .16 per cent, the percentage of alcohol present in his blood at the time when the offence was committed, namely 6.25 p.m. was also .16 per cent. There was no evidence at all to the contrary of this in the defendant's case.

... I therefore hold that on the evidence given before him in McRae's case the magistrate should have been satisfi ed that the percentage of alcohol in his blood was .16 and consequently that the magistrate should have fi xed as the disqualifi cation period during which McRae was unable to obtain a licence, a period of not less than 12 months.

... I have already dealt with the fact that the magistrate was not entitled to use the evidence that had been given in Griffi n's case when he was deciding McRae's case. I am further of the view that it was not open to the magistrate to use whatever knowledge he had acquired from writings, or perhaps from his experience in other cases under this section of possible inaccuracies in breath analysing instruments. In my view, s80F, s80G and s81A of the Motor Car Act 1958 deal with the matter of the use of breath analysing instruments in proceedings under the Motor Car Act. They provide statutory provisions in s80F(3) and in s80G which have the result that where there is no other evidence the reading stated in the certifi cate is the only evidence of the percentage of alcohol in the blood of the defendant at the time the offence was committed. If a defendant wishes to rely upon a defence based upon the inaccuracy of the blood alcohol instruments in general or the particular one that was used in the defendant's case, then in my opinion it is necessary for him to call evidence to this effect.

... Consequently, in my view, the magistrate was wrong in taking into account, in determining the period for which he disqualifi ed the defendant from obtaining a licence, that the breath analysing instrument could be slightly inaccurate. Indeed, in my view, there was no basis upon which he could make a fi nding that the breath analysing instrument used in McRae's case was slightly inaccurate. Consequently, he was wrong, in my view, in basing his order disqualifying the defendant on the basis that the defendant had a percentage of alcohol in his blood less than the percentage shown by the breath analysing instrument."

Per Harris J in McArthur v McRae [1974] VicRp 43; [1974] VR 353; MC 33/1973, 16 November 1973.

114. Blood/alcohol concentration less than .10% – Defendant found guilty – charge adjourned without conviction – whether cancellation of licence mandatory.

HELD: The mandatory provisions of s50 of the Road Safety Act 1986 concerning cancellation and disqualifi cation of driver licences are conditioned upon persons being convicted of certain offences. Accordingly, where a court is satisfi ed that a person is guilty of an offence under s49(1) of the Act, but does not proceed to a conviction, the court is not required to make an order against the offender's driver licence.

Gray J:"The learned Magistrate, having heard the evidence, decided to exercise his powers under s83 of the Penalties and Sentences Act. That section authorises the Magistrate, if satisfi ed that the person before the Court is guilty of the offence charged, to adjourn the proceedings to a date to be fi xed in circumstances which do not lead to a conviction if the person charged complies with the conditions upon which the adjournment is granted. The course taken by the learned Magistrate was open to him because the prohibition against adjournment contained in s78 of the Road Safety Act does not apply where the defendant's blood alcohol is less than .1 per cent. In this case, the applicant's reading was .095 per cent.

... After reading the applicant's statement, the learned Magistrate stated that he sympathised with the applicant but did not have any discretion in the matter and was compelled by law to cancel the applicant's licence. The learned Magistrate then made the order that I have stated. As I said earlier, it is now common ground that the learned Magistrate was not required to cancel the applicant's licence, notwithstanding that he had found the applicant guilty of the charge. The Magistrate did not proceed to a conviction. Section 50 of the Road Safety Act makes it mandatory to cancel a driving licence in certain circumstances, but s50 is conditioned upon the person before the Court being convicted of the offence. ..."

Per Gray J in Watson v Reiterer [1988] VicSC 592; MC 53/1988, 10 November 1988.

111

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIA115. Defendant involved in motor vehicle accident – driver intercepted in hotel – taken to police station for breath test – reading .205BAC – breath test conducted at 8.48pm – evidence unclear as to the time of the collision – defendant charged with drink/driving offences – concern expressed by Magistrate as to whether the breath test was taken within two hours of the driving – presumption of continuance – whether applicable – both charges dismissed – Magistrate not in error.

HELD: Order nisi discharged.1. It was open to the Magistrate to fi nd that he was not satisfi ed that the accident occurred within two hours of 8.48 p.m. On the state of the evidence, all that could be concluded was that it must have occurred between 6.30 and 7.45 p.m., and one was then left with the position that the breath analysis made at 8.48 p.m. was not shown to have been made within two hours of the time when the defendant last drove the motor vehicle.

2. The Magistrate was not bound to apply the presumption, that indeed, on the material proved before him there were solid reasons for doubting whether the presumption was applicable. In the fi rst place, it was clear from the Magistrate's affi davit that at the end of the prosecution case on the fi rst day he was left with reasonable doubt as to whether the defendant had consumed any alcohol between the time when he last drove a motor car and the time when his breath test was taken.

3. What the Magistrate, in the end, was saying was that having regard to the fact that he was not satisfi ed beyond reasonable doubt that the accident had occurred within two hours of 8.48 p.m. – the time when the breath test was taken – he could not use the breath test in the manner sanctioned by s81A(2) as creating a statutory presumption that at the time of the driving of the car the defendant had .205 per cent alcohol in his blood, and that having regard to his doubt as to whether the defendant had consumed alcohol between the time when he last drove a motor car and the time when the breath test was taken, it was not proper to apply the presumption of continuance.

4. What the Magistrate was saying was that on all the evidence he was not satisfi ed that the accused had not had liquor between the time of the driving and the time of the taking of the breath test, and that having regard to the fact that the accused was found in an hotel, that he may have had anything up to an hour or even slightly more between the time of the accident and the time when it was discovered that the accident occurred, it was impossible to say that a magistrate should not have had reasonable doubt, or that the magistrate should have been satisfi ed beyond reasonable doubt.

Per McInerney J:" ... accepting, as Mr Chernov accepted, that it was open to the magistrate to fi nd that he was not satisfi ed that the accident occurred within two hours of 8.48 p.m., that indeed, on the state of the evidence, all that could be concluded was that it must have occurred between 6.30 and 7.45 p.m., one is then left with the position that the breath analysis made at 8.48 p.m. was not shown to have been made within two hours of the time when the defendant last drove the motor vehicle.

... I am myself disposed to the view that what the magistrate, in the end, was saying was this: that having regard to the fact that he was not satisfi ed beyond reasonable doubt that the accident had occurred within two hours of 8.48 p.m., the time when the breath test was taken, he could not use the breath test in the manner sanctioned by s81A(2) as creating a statutory presumption that at the time of the driving of the car the defendant had .205 per cent alcohol in his blood, and that having regard to his doubt as to whether the defendant had consumed alcohol between the time when he last drove a motor car and the time when the breath test was taken, it was not proper to apply the presumption of continuance, to which I referred in Smith v Maddison [1967] VicRp 34; [1967] VR 307. If that was the frame of mind of the magistrate, as I think it was, although it is not very well expressed in the affi davit, then it appears to me that the decision of the magistrate dismissing the information cannot be set aside. ..."

Per McInerney J in De Kruiff v Smith [1971] VicRp 94; [1971] VR 761; MC 11/1970, 7 May 1970.

116. Driver found to have a BAC of .170 at 11.50pm – defendant found driving at 9.30pm – whether evidence admissible given that the defendant drove about 2 hours and 20 minutes before the time of the test – judicial notice of high blood/alcohol readings – whether open to Magistrate to conclude that defendant had a blood/alcohol in excess of .05 at 9.30pm.

HELD: Order nisi discharged. Open to the Magistrate to convict.1. Not only was the evidence of the breath analysis test admissible, but it was possible to draw reasonable inferences from all the facts including that evidence, and those inferences included inferences based upon all the evidence, including the breath analysis test and as to what the blood alcohol content of the defendant probably was at a time anterior to the taking of the test.

2. It was a well-known fact of which one could take judicial notice, that to have a blood alcohol content

112

DRINK/DRIVING in VICTORIAof .17 a considerable quantity of alcohol has to be consumed. The evidence, including the evidence that the defendant had nothing further to drink after coming home, established that that alcohol was probably consumed during the evening at the hotel where he had been, he having said that he had a few drinks at the hotel. Calling in aid of one's common knowledge and the facts of which one can take judicial notice, the conclusion followed that if the defendant had a blood alcohol content of .170 at 11.50pm, he would have had a blood alcohol content of that order for some time prior thereto, having had no further alcohol to drink in the meantime.

3. The percentage of alcohol in the blood at 11.50 was considerable. If at that stage the excess over .05 per cent had been small or signifi cantly smaller than it was, it would have been much more diffi cult to draw the inference the Magistrate drew and various hypotheses, including reasonable ones consistent with innocence, would be open. But having regard to the high proportion of alcohol at 11.50 it seemed that any hypothesis which would lead to the view that the defendant did not have alcohol in excess of .05 at 9.30 when he was driving home was not a reasonable hypothesis.

4. Accordingly, it was open to the Magistrate to come to the conclusion he did and convict the defendant.

Menhennitt J:"... The Magistrate did not make a fi nding as to the time of driving, but in my view on the evidence the only reasonable conclusion open to him, was that the defendant drove from a hotel to his home between 9.30 and 9.35 p.m., which was about 2 hours and 15 minutes or up to 2 hours and 20 minutes before the time of the test. The question raised by the order to review is whether the Magistrate could properly infer that the defendant's blood alcohol content at the time of driving the car was more than .05 per centum.

... Accordingly, the only hypothesis which occurs to me which would explain the defendant having a blood alcohol content as high as .17 at 11.50 and not having a blood alcohol content in excess of .05 at 9.30, would be the consumption of a large amount of liquor with high alcohol content very shortly before him leaving the hotel. The passage to which I have referred to the judgment of Gowans J in Chappell v Ross & Son Pty Ltd [1969] VicRp 48; [1969] VR 376 leads to the view that it is for the informant to exclude all reasonable hypotheses consistent with innocence. What I have stated is, I think, a hypothesis which would be consistent with innocence. The question remains whether it is a reasonable one.

I have not found this matter easy but on the whole I have come to the conclusion that that hypothesis is not a reasonable one and that it is in the category of speculative possibility. The language that the defendant used that he had a few drinks at the hotel is consistent with the common practice of drinking beer over a period or some other such drink; it does not suggest drinking of liquor containing a high proportion of alcohol, but even assuming that it does, it does not suggest concentrated drinking, it rather suggests leisurely drinking. ..."

Per Menhennitt J in Turner v Bunworth [1970] VicSC 147; MC 13/1970, 10 June 1970.

117. Defendant not seen driving before being intercepted by police – defendant said he had driven his motor vehicle to the spot where he was intercepted – defendant not asked at what time he drove his vehicle to that spot – question was whether defendant drove his motor vehicle within two hours before the breath test was conducted – circumstantial evidence – whether every hypothesis can be excluded – defendant elected not to give evidence – charge found proved – Magistrate not in error.

HELD: Order nisi discharged.1. The doctrine as to the test to be applied to circumstantial evidence does not mean that every hypothesis which can be advanced by counsel's ingenuity must necessarily be excluded. What it does mean is that any hypothesis which reasonably arises on the evidence, and which would explain the circumstances which have been proved, in a way which is consistent with innocence of the defendant, must be excluded before it can be said that the case has been proved beyond reasonable doubt.

2. It was open to the Magistrate to say that the reasonableness of the hypothesis was considerably discounted by the fact that when the defendant was intercepted by the police, thereafter taken to a police station and submitted to a breath test, and questioned about what drinking he had done that night, in the whole course of that interview he made no suggestion of any fact contained in this hypothesis which would have assisted him in his defence to the charge brought against him.

3. It was open to the Magistrate to come to the conclusion that there was a case to answer. In other words, that he was satisfi ed that it was open to him to draw the inference on the evidence, as it then stood, of the guilt of the defendant and that stage having been reached and the defendant then having elected not to give evidence, then the Magistrate was entitled the more readily to draw an inference which was open to him to draw on the evidence which had been given by the informant.

113

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIANelson J:

" ... A breath analysis was taken at the police station some time between 8.05 pm and 8.20 pm, which in fact showed a blood alcohol content above the permitted limit, and the onus which consequently depended upon the informant was that of satisfying the Court that the defendant had driven the car at some time between — taking it at its best for the defendant — 6.20 pm on that day and the time when he was seen by the informant.

I think that it is clear that a somewhat more careful interrogation by the informant in this case might have cleared up the matter that is at issue, one way or the other without any diffi culty. But that additional interrogation did not take place and consequently the sole question is whether the Magistrate on the evidence that I have outlined was entitled to infer that the defendant had driven the car during that period.

There is in my opinion on the evidence that was given, nothing which is suggestive of the hypothesis which Mr Ryan suggests, and indeed I can quite understand the Magistrate if he directed his mind to this particular argument, saying that the reasonableness of the hypothesis was considerably discounted by the fact that when the defendant was intercepted by the police, thereafter taken to a police station and submitted to a breath test, and questioned about what drinking he had done that night, in the whole course of that interview he makes no suggestion of any fact contained in this hypothesis which would have assisted him in his defence to the charge brought against him.

In my opinion it was open to the Magistrate to have come to the conclusion at which he did arrive, and that there was a case to answer. In other words, that he was satisfi ed that it was open to him to draw the inference on the evidence, as it then stood, of the guilt of the defendant and that stage having been reached and the defendant then having elected not to give evidence, then the Magistrate of course was entitled the more readily to draw an inference which was open to him to draw on the evidence which had been given by the informant. ..."

Per Nelson J in Calabrese v Shirreff [1971] VicSC 58; MC 07/1971, 16 March 1971.

118. Learner driver driving motor vehicle – driver's father seated in passenger's seat – father breath tested with reading of .210BAC – father charged with driving a motor car whilst BAC more than .05% – found guilty of offence – Magistrate in error.

HELD: Order nisi absolute. Conviction and orders set aside. Information dismissed.1. The words "in such case the licensed driver shall be deemed to be driving a motor car" where they appear in s23 do not mean that for the purposes of the Motor Car Act ('Act'), apart from Pt III thereof, the licensed driver is to be deemed to be driving the motor car, and consequently, do not mean that in cases to which they apply, the licensed driver is a person who drives a motor car for the purposes of s81A. R v Adams [1935] HCA 62; (1935) 53 CLR 563; [1935] ALR 421; 8 ABC 97, applied; Lucas v Ross [1925] VicLawRp 21; [1925] VLR 184; 31 ALR 85; 46 ALT 156, overruled; Bretag v Ames [1935] WALawRp 11; (1935) 37 WALR 84, not followed. 2. Accordingly, the stipendiary magistrate was in error in holding that the defendant in this case was deemed to be driving the motor car for the purposes of s81A of the Act, and as this was the sole ground upon which he convicted the defendant, the order nisi was made absolute, with costs to be taxed within the statutory limit, the order convicting the defendant quashed, and in lieu thereof an order made that the information be dismissed.

Nelson J (for the Court):" ... Section 81A imposes a duty upon "any person who drives a motor car". To adapt the words of their Honours in R v Adams [1935] HCA 62; (1935) 53 CLR 563, at pp567-8; [1935] ALR 421; 8 ABC 97, liability to the penal sanctions imposed by the section is expressly made to depend upon the act of driving. In its ordinary sense the word "driving" would appear to involve the actual physical control over the operation and movement of the motor car, and it was in that sense that Winneke CJ interpreted the word in s81A in Caughey v Spacek [1968] VicSC 73; [1968] VicRp 78; [1968] VR 600. A similar meaning has been attributed to the word "driving" in other sections of the Motor Car Act and in other comparable legislation. (See Wallace v Major [1946] KB 473; [1946] 2 All ER 87, and Doyle v Harvey [1923] VicLawRp 39; [1923] VLR 271; 29 ALR 180; 44 ALT 179.)

... In the present form of the Act, however, it is in our opinion demonstrated even more clearly that a person who under s23 is deemed to be driving a motor car is not thereby brought within the provisions of s81A. In the fi rst place the division of the Act into separate Parts dealing with separate subject matters makes it more diffi cult to rely upon a section in one part to qualify or enlarge the meaning of a section in another part, than it would be to endeavour to use the same process of interpretation by reference to sections in an Act where no such division is made. Section 23 appears in Pt III of the Act which is headed "Licensing of Drivers" and which is solely concerned with provisions relative to that subject matter.

114

DRINK/DRIVING in VICTORIA... In our opinion the words "in such case the licensed driver shall be deemed to be driving a motor car" where they appear in s23 do not mean that for the purposes of the Act, apart from Pt III thereof, the licensed driver is to be deemed to be driving the motor car, and consequently, do not mean that in cases to which they apply, the licensed driver is a person who drives a motor car for the purposes of s81A. That conclusion is, in our opinion, in line with the principles of interpretation stated and applied by the High Court in R v Adams [1935] HCA 62; (1935) 53 CLR 563; [1935] ALR 421; 8 ABC 97. ..."

Per Nelson J (for the Court) in Rowe v Hughes [1974] VicRp 7; [1974] VR 60; MC 24/1973, 31 August 1973.

119. Refuse to furnish a sample of breath when requested – defendant smelt of intoxicating liquor – police informant at the hearing did not state his reasonable belief that the defendant's driving indicated that the defendant's ability to drive was impaired – inferences to be drawn – defendant convicted – Magistrate in error.

HELD: Order nisi absolute. Conviction set aside. 1. There was no reason in a case such as this why the member of the police force concerned should not have deposed to the existence of the requisite belief, if he had that belief. If he did not depose the existence of that belief, his failure to do so may have given rise to doubts as to whether in fact he had the belief at the time in question and may have justifi ed the Court in scrutinising very closely the suffi ciency of the evidence offered as circumstantial evidence of the existence of that belief.

2. The circumstantial evidence here offered as to the facts which occurred on the roadside were not suffi cient to establish the guilt of the defendant. The evidence of what took place at the police station during the interrogation and testing of the accused could not reasonably be related back to the formation of any belief as to the behaviour of the defendant whilst driving of such a kind as to indicate that his ability to drive a motor car was impaired.

Per McInerney J:" ... The informant did not at any stage of his evidence expressly give evidence that he had believed that the defendant had been driving a motor car within the period of two hours preceding the making of the request to furnish the sample of his breath or that he had believed the defendant had behaved whilst driving or in charge of a motor car in a manner which indicated that his ability to drive a motor car was impaired at the time when he was so driving or in charge of the motor car.

Having regard to the fact that the defendant was arrested, he must, on any view of it, have ceased to be in charge of the motor car at the time of his arrest, but in any event, the term "in charge of a motor car" within the meaning of s408A(4)(a) imports a reference back to the defi nition of that phrase in s82(1)(c) of the Motor Car Act.

... There is no evidence that the defendant attempted to start or drive the motor car after he had been intercepted by the informant nor did the informant testify that he had any belief that the defendant intended to start or drive the motor car.

... If no direct evidence of the existence of the relevant belief is given by the informant or other police offi cer concerned, then the informant must prove facts which permit the Court to draw the inference that at the relevant time the constable had the requisite belief.

... There is nothing in the material which establishes, in such a fashion as to exclude all reasonable hypotheses consistent with innocence, the proposition that the ability of the defendant to drive a motor car had been impaired at the time when he was driving. The only other facts which emerge out of the interceptions are the acts of the defendant in getting a bottle of beer and asserting his determination to drink it, but this action and this assertion both took place after he had been required to go to the Brunswick Police Station to furnish a sample of his breath for analysis, and this conduct is consistent with an intention on the defendant's part to defeat or destroy the utility of the breath test.

... I see no reason in a case such as this why the member of the police force concerned should not depose to the existence of the requisite belief, if he has that belief. If he does not depose the existence of that belief, his failure to do so may give rise to doubts as to whether in fact he had the belief at the time in question and may justify the Court in scrutinising very closely the suffi ciency of the evidence offered as circumstantial evidence of the existence of that belief.

In my opinion, the circumstantial evidence here offered as to the facts which occurred on the roadside were not suffi cient to establish the guilt of the defendant. I am also of the view that the evidence of what took place at the police station during the interrogation and testing of the accused cannot

115

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAreasonably be related back to the formation of any belief as to the behaviour of the defendant whilst driving of such a kind as to indicate that his ability to drive a motor car was impaired. ..."

Per McInerney J in Palmer v Scollary [1972] VicSC 250; MC 22/1972, 16 August 1972.

120. Reading 0.150%BAC – evidence given by defendant that he consumed four glasses of beer before driving – no expert evidence given as to effect upon defendant of the alcohol consumed – the evidence given for and on behalf of the defendant accepted by Magistrate – suffi ciency of evidence to rebut breathalyzer reading – charge dismissed – Magistrate in error.

On a charge of exceeding .05%, the prosecution gave evidence that the defendant's breath smelt of liquor, that an alcotest was positive, and that he had a breathalyser reading of .15%, producing a Schedule 7 to that effect. The defence evidence, which was accepted by the Court was that he had consumed only 4 glasses of beer and that he was not affected by liquor. The Magistrate held that he was not satisfi ed beyond reasonable doubt that the defendant had a reading of .15% at the time of the test. Order Nisi that this conclusion could not be reached except by expert evidence.

HELD: Order absolute. Dismissal set aside. Remitted to the Magistrates' Court for hearing and determination in accordance with the law with a direction that the charge be found proved.The Magistrate was not entitled to reject the certifi cate of the breathalyser reading by acting upon the lay evidence as to the quantity of liquor consumed by the defendant and his behaviour, when the Magistrate had no expert evidence before him to establish that the consumption of such a quantity of liquor and the absence of an appearance of being affected by liquor at least threw doubt upon the reading of .150%. Harris J:

" ... Four glasses of beer may well be regarded as a modest amount to drink but is a Magistrate entitled to hold that it is a matter of common knowledge and therefore a matter which does not require proof by evidence that four glasses of beer would not produce .150%? I am unable to see that it is. One might speculate that it would be insuffi cient, but the estimation of the quantity of liquor required to produce any particular blood alcohol reading is a scientifi c matter which has to be proved by expert evidence.

... In my opinion, the situation in this case is that the Magistrate was not entitled to reject the certifi cate of the breathalyser reading by acting upon the lay evidence as to the quantity of liquor consumed by the defendant and his behaviour, when the Magistrate had no expert evidence before him to establish that the consumption of such a quantity of liquor and the absence of an appearance of being affected by liquor at least threw doubt upon the reading of .150%.

... Hence, there is, on the one hand, a conclusion drawn by the Magistrate, without evidence, on a scientifi c matter and, on the other hand, no fair basis for giving credence to the only, suggested explanation for the alleged falsity of the certifi cate. This re-enforces my conclusion that the Magistrate was not entitled to refuse to act upon the evidence provided by the certifi cate, there being no expert evidence upon which he could act. ..."

Per Harris J in Peeters v Helman [1975] VicSC 338; MC 19/1975; 26 June 1975.

121. Breathalyser – approved instrument – proper operation – expert – evidence of discrepancy in readings – evidence led by defendant in relation to breathalyzer error – Magistrate found charge proved – Magistrate stated that he preferred other expert evidence which he had heard in other cases – Magistrate in error.

On a charge of exceeding .05% the informant/operator gave oral evidence of a reading of .125%; that the Certifi cate and copy were compared; that the machine was in proper working order; that it complied with the regulations; that it was an approved instrument within s80F; and that he tested it as correct afterwards. Cross-examination indicated that he could not remember the machine nor its markings, nor even the occasion in question: there was no defending evidence on this point. The Magistrate found the charge proved. Upon Order nisi to review—

HELD: Order absolute. Order of the Magistrate set aside. Remitted to the Magistrates' Court for hearing and determination according to law.1. It was impossible to say that there was no evidence upon which the Magistrate as a reasonable person could have found that the instrument in question was an approved instrument. The cross-examination could not have been regarded as so destroying the evidence-in-chief as to lead to a situation where the Magistrate could not have been satisfi ed that the instrument was an approved instrument. Whether it was or not was a question of fact to be determined by the Magistrate and the Court was unable to say that as a reasonable person the Magistrate could not have reached the decision he did. Ground 1 of the order nisi therefore failed.

2. In relation to Ground 2, there was nothing in the material to suggest that the Magistrate misdirected himself as to what constituted proof that the instrument was an approved instrument or as to where the

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DRINK/DRIVING in VICTORIAonus of proof lay. The Magistrate's observation that there had been no evidence by the defendant to indicate that it was not an approved instrument was entirely accurate and did not reveal any misunderstanding of where the onus of proof lay. Ground 2 therefore failed.

3. In relation to the written articles which were tendered in evidence, the article by these authors ought not to have been received as evidence upon the basis upon which they was tendered, but since they were received in evidence their reception could not be ignored. The Magistrate was entitled to say that he would not act upon it but he was not entitled to say that he would not act upon it because he preferred certain other expert evidence which he had learnt about either in other cases which he had himself heard or about which he had read.

4. The taking into account of evidence which had not been given in the particular case was too fundamental an error to permit the Supreme Court to uphold the conviction.

5. Accordingly, the order nisi was made absolute upon ground numbered 7.

Young CJ:" ... This Court will not interfere on an order to review such a decision, in respect of fi ndings of fact if there was evidence upon which the Magistrate might, as a reasonable man, have come to the conclusion that he did: Taylor v Armour & Co Pty Ltd [1962] VicRp 48; [1962] VR 346, especially at pp351-2; (1961) 19 LGRA 232.

Adopting this approach I fi nd it impossible to say that there was no evidence upon which the Magistrate as a reasonable man could fi nd that the instrument in question was an approved instrument. Indeed, as already stated, Dr Pannam conceded that apart from the cross-examination, such evidence did exist. I cannot regard the cross-examination as so destroying the evidence-in-chief as to lead to a situation where the Magistrate could not be satisfi ed that the instrument was an approved instrument. Whether it was or not was a question of fact to be determined by the Magistrate and I am unable to say that as a reasonable man he could not have reached the decision he did. Ground 1 of the order nisi therefore fails.

... There is nothing in the material to suggest that the Magistrate misdirected himself as to what constituted proof that the instrument was an approved instrument or as to where the onus of proof lay. The Magistrate's observation that there had been no evidence by the defendant to indicate that it was not an approved instrument was of course entirely accurate and did not reveal any misunderstanding of where the onus of proof lay. Ground 2 therefore fails.

... The diffi culty in this part of the case seems to have been caused simply by the reception of inadmissible evidence. The article by McCallum and Scroggie was clearly not admissible in the manner in which it was tendered. Much of Mr Zentner's evidence was inadmissible too but, if he be regarded as an expert for relevant purposes, it may be said that there was some evidence that the machine could over-estimate.

Although the reception of the inadmissible evidence may be said to have caused the diffi culty before the Magistrate, what has caused a diffi culty so far as I am concerned is that the Magistrate appears to have decided the case upon the basis of evidence which was not given at the hearing. This of course he cannot do: cf. McArthur v McRae [1974] VicRp 43; [1974] VR 353 at p357. The Magistrate was quite right in saying that it was not necessary to accept the evidence which had been given and his remark 'There are other experts,' might be taken to have meant no more than it actually says, but having regard to his statement, 'I know of other expert evidence given in other cases,' and to his recognition of counsel's problem when he drew attention to the fact that the Magistrate was accepting evidence which he had not been given the opportunity of testing by cross-examination, I consider that the Magistrate did act upon evidence which was not given at the hearing. This is in substance Ground 7 of the order nisi which in my opinion is made out. ..."

Per Young CJ in Altman v Foley [1975] VicSC 3; MC 20/1975, 3 February 1975.

122. Rebuttal of schedule 7 of consumption of liquor between driving and test – defendant said that he consumed alcohol after driving but before breath test – whether defendant discharged the onus of proof – judicial notice of effect of later consumption of alcohol – no expert evidence called by defendant – charge dismissed – Magistrate in error.

Defendant was charged with exceeding .05% – the Schedule 7 Certifi cate indicated a reading of .120%. Defendant called evidence that after driving he consumed 7oz of spirits before the test. No expert evidence was called by the defendant. The Magistrate held that he was entitled to take judicial notice of the effect such consumption could have on a blood alcohol level and dismissed the charge. Upon Order Nisi to review—

HELD: Order absolute. Magistrate's order set aside and remitted for imposition of penalty.

117

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIA1. The real question in the present case was whether the defendant discharged the onus of proof.

2. If a person is able to establish the amount of alcohol he consumed after the driving and before the test it should not be diffi cult for him to obtain expert evidence from a doctor or some other expert as to the effect that amount of alcohol would, at the relevant time, have on that particular person and, in that way he would be able to show whether or not the percentage of alcohol present in his blood was or was not below permissible limits.

3. The critical matter from the defendant's point of view in this case was that, to rebut the statutory presumption, he needed to call some expert evidence. The expert evidence did not necessarily have to establish a particular percentage of alcohol in the blood at the relevant time, but it had to satisfy the court the percentage level was lower than was signifi cant for any relevant purpose. This, the defendant failed altogether to do. The evidence called for the defendant left the Magistrate in a situation where he accepted that a quantity of alcohol, albeit a considerable quantity, had been consumed between the time of the cessation of driving and the time of the test, and the percentage of alcohol present in the blood of the defendant had been raised above what it was at the time of the driving, but it did no more than that.

4. To succeed on the Order to review the defendant had to persuade the Court that the Magistrate could take judicial notice of the effect a given amount of alcohol has upon the blood alcohol level of an individual. Unaided by authority, the Magistrate could not do so. The matter fell to be determined according to common law principles.

O'Bryan J:" ... However, it appears to me that if a person is able to establish the amount of alcohol he consumed after the driving and before the test it should not be diffi cult for him to obtain expert evidence from a doctor or some other expert as to the effect that amount of alcohol would, at the relevant time, have on that particular person and, in that way he would, I think, be able to show whether or not the percentage of alcohol present in his blood was or was not below permissible limits.

... The critical matter from the defendant's point of view in this case was that, to rebut the statutory presumption, he needed to call some expert evidence. The expert evidence did not necessarily have to establish a particular percentage of alcohol in the blood at the relevant time, but it had to satisfy the court the percentage level was 'lower than, is signifi cant for any relevant purpose'. (p229). This, the defendant failed altogether to do. The evidence called for the defendant left the Magistrate in a situation where he accepted that a quantity of alcohol, albeit a considerable quantity, had been consumed between the time of the cessation of driving and the time of the test, and the percentage of alcohol present in the blood of the defendant had been raised above what it was at the time of the driving, but it did no more than that.

... To succeed on this order to review, Mr Rowlands conceded the defendant had to persuade me the Magistrate could take judicial notice of the effect a given amount of alcohol has upon the blood alcohol level of an individual. In my opinion, unaided by authority, I believe he could not do so. The matter fell to be determined according to common law principles. ..."

Per O'Bryan J in Caughey v McClaer [1977] VicSC 80; MC 14/1977, 9 March 1977.

123. Full breath test indicated a reading of 0.17% BAC – driver said he consumed 7 7-oz glasses of beer – expert evidence called at hearing – opinion given by expert that driver's BAC at the relevant time would have been 0.04% – charge dismissed by Magistrate on ground that he was unable to establish what the actual reading would have been – Magistrate in error.

T. was intercepted whilst driving his motor car. A PBT showed a BAC exceeding .05. When L. later underwent a full breath test he recorded a reading of .17% BAC. T. was charged with a breach of the Motor Car Act 1958 s80F and at the hearing he gave evidence that he consumed 7 7-oz glasses of beer prior to being apprehended. Expert evidence was called to say that that amount of alcohol would have produced a reading of .04%. The magistrate dismissed the information on the ground that he was unable to establish what the actual reading should or could have been. Upon appeal—

HELD: Order absolute. Dismissal set aside. Remitted for hearing and determination before another Magistrate.1. The Schedule 7 certifi cate was produced at the hearing and no notice was given to the operator, pursuant to s80F(3) and accordingly pursuant to that subsection the Schedule 7 certifi cate became "prima facie evidence ... of the facts and matters stated therein".

2. The only evidence adduced which went towards the destruction of the prima facie position established by the certifi cate and the Act was the evidence of L. himself, that he had had only seven seven ounce glasses of beer, one of which was of low alcohol beer, between 8.00 pm and 9.15 pm, and "cooked my tea", in the relevant period, and the evidence of the barman at the hotel that although he was not able to say how much the respondent had drunk at the hotel, at the time when L. fi nished drinking there he saw L. leave the hotel

118

DRINK/DRIVING in VICTORIAat 9.15 pm, "and he was not affected by liquor and was perfectly normal", and the evidence of Mr Roberts. None of this evidence was evidence which could be regarded by the Magistrate as suffi cient to rebut the statutory presumptions in the certifi cate and s80G of the Act.

3. A Magistrate cannot take judicial notice of the fact that seven drinks in 105 minutes will "not produce a blood alcohol content of .17 or anything like it". Such a conclusion must be a matter for scientifi c evidence. Judicial notice cannot be taken of facts known only to or believed only by some few cognoscenti in a particular jurisdiction and not known to or believed by very many others, and there are dangers in extending the fi eld of judicial knowledge in this precise fi eld where, once allowed, prosecutors as well may seek to rely upon them like anybody else. Caughey v McClaer [1977] VicSC 80, O'Bryan J, VSC, 9 March 1977; and Holdsworth v Fox [1974] VicRp 27; (1974) VR 225, followed.

4. It was not reasonably open upon the evidence for the Magistrate in the present case to conclude that the presumption raised by s80F(3) and s80G had been rebutted, and accordingly he should have convicted upon the evidence before him. Accordingly, the order nisi was made absolute.

Fullagar J:" ... In my opinion, the only evidence adduced which went towards the destruction of the prima facie position established by the certifi cate and the Act was the evidence of the respondent himself, that he had had only seven seven ounce glasses of beer, one of which was of low alcohol beer, between 8.00 pm and 9.15 pm, and "cooked my tea", in the relevant period, and the evidence of the barman at the hotel that although he was not able to say how much the respondent had drunk at the hotel, at the time when the respondent fi nished drinking there he saw the respondent leave the hotel at 9.15 pm, "and he was not affected by liquor and was perfectly normal", and the evidence of Mr Roberts.

... The question arises whether the Stipendiary Magistrate could reasonably have inferred from a fi nding that the respondent had drunk only seven seven ounce glasses of beer, one of which was "low alcohol beer", that the respondent's blood alcohol content at 11.55 must have been substantially less than .17 or that it must have been substantially less than .17 at the time of the alleged offence, so that the prima facie evidence of the certifi cate and the prima facie evidence referred to in s80G were rebutted. If he had legitimately reached such a conclusion, he would have had to decide on the whole of the evidence, whether he was satisfi ed beyond reasonable doubt that at 10.45 pm the respondent's blood alcohol content exceeded .05 as the s80E preliminary testing machine, unless the policeman was disbelieved, showed that it was.

... In order to reach the fi rst conclusion that the certifi cate was not correct, the Magistrate must fi rst have found, in substance, that no person who drinks only the seven glasses in 105 minutes followed by possibly a meal could possibly have had an alcohol content of .17. In my opinion this conclusion was not reasonably open to him on the evidence.

... The reality of the matter in my opinion is that a Stipendiary Magistrate still cannot take judicial notice of the fact that seven drinks in 105 minutes will "not produce a blood alcohol content of .17 or anything like it". I would agree with O'Bryan J in Caughey v McClaer [1977] VicSC 80, 9 March 1977 that such a conclusion must be a matter for scientifi c evidence. Judicial notice cannot be taken of facts known only to or believed only by some few cognoscenti in a particular jurisdiction and not known to or believed by very many others, and there are I think dangers in extending the fi eld of judicial knowledge in this precise fi eld where, once allowed, prosecutors as well may seek to rely upon them like anybody else.

... In my opinion it was not reasonably open upon the evidence for the Magistrate in the present case to conclude that the presumption raised by s80F(3) had been rebutted or that the presumption raised by s80G had been rebutted, and accordingly he should have convicted upon the evidence before him.

... I think I should summarise my reasoning in this case as follows —(a) By virtue of the Schedule 7 certifi cate and s80F(3), there was prima facie evidence that (inter alia) the breath analysing instrument was properly constructed and in proper working order and that it indicated a blood alcohol content in the respondent at 11.55 pm of .17%.(b) The evidence of Mr Roberts was ineffective to rebut these presumptions because it was not suffi ciently connected with the respondent.(c) The evidence of the respondent himself was ineffective to rebut those presumptions because—

(i) it contained no evidence to show what the respondent's blood alcohol content was in fact, or that it was below .05%, and(ii) the Magistrate was not entitled either to take judicial notice that any person who had drunk only what the respondent said he had drunk would have a blood alcohol content so far below .17 as to make it clear that at least one of the things presumed was not so, or to take judicial notice that a person who had drunk only that quantity would have a blood alcohol content less than .05.

119

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIA(d) Therefore, by s80G, the effect of the evidence was that the respondent's blood alcohol content at the time of the alleged offence was .17."

Per Fullagar J in Larchin v Traynor [1980] VicSC 116; MC 28/1980, 25 March 1980.

124. Drink/driving – witness as to element of offence on holidays – adjournment refused – whether accused unable properly to present defence – whether a denial of natural justice.

Whilst driving his motor car, M. was involved in a single-car accident. He was later taken to hospital where a blood sample was taken which when analysed showed an excessive concentration of alcohol. M. was charged under s49(1)(g) of the Road Safety Act 1986 ('Act') and at the hearing, evidence of a circumstantial nature was given as to the time when M. had been driving. When the police prosecutor sought to tender the relevant certifi cates in relation to the blood sample, M.'s counsel objected on the ground that copies that had not been served on M. The magistrate decided to conduct a voir dire as to the question of service, proceeding on the basis that M. carried the burden of proving that service had not been effected. After evidence had been called on both sides, M.'s counsel sought and was granted an adjournment of one month (approx.) in order to lead further evidence on the question of service. After M. had left the Court but whilst in the precincts, the prosecutor handed M. a copy of the relevant certifi cates, whereupon M.'s counsel went to the Magistrate's Chambers and, in the presence of the prosecutor, apprised the Magistrate of what had occurred. When the adjourned hearing resumed, M.'s counsel sought a further adjournment on the ground that a witness (who had been present on the fi rst day of hearing) was unavailable on holidays. The magistrate refused to grant the adjournment stating that there had been ample time to subpoena the witness and that a further adjournment would lead to diffi culty in recalling the evidence already given. As to the voir dire, M.'s counsel called no further evidence, the prosecutor gave evidence as to service of the documents on the fi rst day of hearing and the Magistrate refused to rule on the voir dire stating that it was not necessary because, in his view, service had been properly effected. The charge was found proved and M. convicted. Upon order nisi to review—

HELD: Order absolute. Conviction quashed. Remitted for re-hearing de novo.(1) Whilst the magistrate was in error in stating that the onus of proof of service of the certifi cates was on M., in view of the prosecutor's evidence as to personal service, the magistrate was not in error in concluding that it was not necessary to rule on the voir dire as to whether or not service had been effected in the fi rst place. Further, the magistrate was not in error in ruling that service of the certifi cates had been properly effected for the purpose of enabling their tender in evidence pursuant to s57(5) of the Act.

(2) In deciding whether to grant an application for an adjournment, a magistrate must carefully weigh the interests of the accused, the Crown, witnesses and generally the administration of justice. In view of the fact that:

(i) the absent witness could give evidence as to an ingredient of the offence;(ii) the application was made for bona fi de reasons;(iii) the evidence already given was of a straightforward nature and could be recalled without diffi culty;(iv) there was no inconvenience to the prosecution witnesses; and(v) the prosecution took advantage of the fi rst adjournment period to effect service, the magistrate, in refusing the application for an adjournment failed to allow M. to present his case fully thereby resulting in a denial of natural justice.

McInnis v R [1979] HCA 65; (1979) 143 CLR 575; 27 ALR 449; 54 ALJR 122, applied; Bloch v Bloch [1981] HCA 56; (1981) 180 CLR 390; (1981) 37 ALR 55; (1981) 55 ALJR 701; McColl v Lehmann [1987] VicRp 46; [1987] VR 503; (1986) 24 A Crim R 234; R v McGill [1967] VicRp 79; (1967) VR 683; R v Cox [1960] VicRp 102; (1960) VR 665; and Humphrey v Wills [1989] VicRp 42; (1989) VR 439, referred to.

McDonald J:"... I am of the view that in the result that the Magistrate refused the application he either gave no or insuffi cient consideration to the importance of permitting a party to present his case fully as an essential element of ensuring a fair trial. In the circumstances of this case that consideration far outweighed any inconvenience that may fl ow from the granting of an adjournment. In the result, I conclude that the exercise by the Magistrate of his discretion miscarried. Counsel for the respondent submitted that if it was found that the discretion had miscarried, then he did not contend that in the circumstances of this case it did not result in a denial of natural justice to the Applicant.

I am of the view that by refusing the application for adjournment and precluding the Applicant from being able to call the proposed witness it did constitute a denial of natural justice to the Applicant. It follows, therefore, that this ground of the Order Nisi is made out with the result that the order must be made absolute, the conviction quashed and the information remitted to the Magistrates' Court for re-hearing. For these reasons I order that the Order Nisi be made absolute with costs, including costs reserved by the Master, that the conviction be quashed, the penalties imposed be set aside and the Information remitted to the Magistrates' Court for re-hearing de novo."

Per McDonald J in Mooney v Edwards [1990] VicSC 255; (1990) 11 MVR 333; MC 47/1990, 8 June 1990.

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DRINK/DRIVING in VICTORIA125. Breath Analysis Manual – whether magistrate may refer to.

HELD: There is no objection to a magistrate having recourse to the Breath Analysis Manual of the Victoria Police. However, if a magistrate intends to rely on the Manual, it is necessary to inform the parties of that fact and give them an opportunity to be heard.

Nathan J:"... I come to the second ground of appeal, that is, the magistrate’s reference to the Police Manual. This, so Mr Hardy contended, amounted to a denial of natural justice as the magistrate must have sought to gather evidence himself, evidence about which the defendant knew nothing and could not test. Therefore, so he says, it leads to speculation as to what the magistrate actually did; ie contrary to DPP v Martell [1992] VicRp 64; [1992] 2 VR 249; (1992) 15 MVR 397.

I fi nd no attraction in these arguments. There could be no objection to a magistrate having recourse to a dictionary to help comprehend a word in a statute. If the word was a technical one, no objection could be made if recourse was had to a technical dictionary. The Police Manual is of the same nature as a dictionary insofar as it defi nes how things are to be done, it is known as a matter of common sense to be so.

Of course if the magistrate was going to rely on it, it would have been necessary to inform the parties of that fact and to have given them an opportunity to have been heard. Here he did not rely on the Manual and said so. There is no room for speculation. What the magistrate did was transparent and could not have been the subject of submissions. This ground must fail. The appeal must be dismissed. Costs should follow the event, but I shall hear counsel."

Per Nathan J in Bregazzi v Kilby [1996] VicSC 487; (1996) 25 MVR 285; MC 04/1997, 18 October 1996.

126. In charge of motor vehicle – engine started – vehicle moved short distance – whether "in charge" – "start" – "attempting to start" – whether proof of intention to drive – Magistrate in error in dismissing charge.

Section 48(1)(b) of the Road Safety Act 1986 ('Act') provides:-

"(A) person is not to be taken to be in charge of a motor vehicle unless that person is attempting to start or drive the motor vehicle or unless there are reasonable grounds for the belief that that person intends to start or drive the motor vehicle."

D., a police offi cer, saw W. get into a stationary motor car and put on the seat belt. D. then heard the engine start, saw headlights come on and the motor car move forward about six inches, stopping as if stalled. W. was intercepted, subsequently breath tested (.130% BAC) and charged with being in charge of a motor car whilst exceeding the prescribed concentration of alcohol. On the hearing of the charge, W.'s counsel submitted that the prosecution was required to prove that W. had an intention to drive the motor car; the magistrate agreed and dismissed the charge. Upon order nisi to review—

HELD: Order absolute.1. The word "start" where used in s48(1)(b) of the Act must be given some meaning, and where it is used in the phrase "attempting to start", must be given a meaning other than "attempting to drive". Therefore it was not necessary for the prosecution to prove that where a person was in charge of a motor car that that person had an intention to drive the motor car. Gillard v Wenborn [1988] VicSC 374; MC 42/1988, distinguished.

2. The word "start" means "to cause the engine to fi re". As the evidence showed that W. succeeded in his attempt to start the engine, it was open to the magistrate to fi nd that W. was in charge of the motor car within the meaning of s48(1)(b) of the Act.

Southwell J: "... In the present case the defendant not only attempted to start the engine, he succeeded in that attempt, although it would not have been necessary for the prosecution to prove that success. If the defendant had turned the ignition lock with the intention that the engine would fi re, he would have "attempted to start the motor vehicle" within the meaning of s48(1)(b). In the present case, in my opinion it was not necessary for the prosecution to prove that the defendant intended to drive the car.

Parliament makes it clear by the words of s49(1)(b) that no distinction is to be drawn between "driving" and "being in charge" of a motor vehicle. Section 48(1)(b) in turn makes it clear by the use of the words "start" or "drive" that it is not necessary to prove an intention to drive. To hold otherwise would give no meaning to the word "start" where it twice appears in s49(1)(b). The submission which was accepted by the Magistrate was, in reality, a submission that the use of the word "start" had no

121

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIArelevant meaning or effect. That cannot be right. I should add that even were the Magistrate to be affi rmatively satisfi ed that the defendant did not intend to drive, nevertheless the defendant must be held to have been "in charge" of the vehicle. However such a fi nding would of course be relevant on the question of penalty. The order nisi must be made absolute with costs. The matter will be referred to the Magistrates' Court to be further dealt with according to law."

Per Southwell J in Davies v Waldron [1989] VicRp 43; [1989] VR 449; (1989) 8 MVR 363; MC 04/1989, 13 October 1988.

127. Excessive blood/alcohol concentration – intercepted whilst driving – no accident involved – charged under s49(1)(f) of Road Safety Act 1986 – whether proof of accident ingredient of offence – whether laying of charge under s49(1)(f) where no accident an abuse of process.

HELD: 1. Section 49(1)(f) of the Road Safety Act 1986 ("Act") in combination with ss53(2) and 55(1) of the Act clearly creates an offence where a test performed by a person at a particular time records a particular result, and there is no ingredient of an offence under s49(1)(f) requiring proof of an accident occurring when the person charged was driving.

2. The authority given to a police offi cer under s53(1) of the Act is merely to require and administer a preliminary breath test, and there is no limitation on the offences to which the person in question might be vulnerable if the result of the test shows an excess over the prescribed limit. Therefore, a prosecution for an offence (against, say, s49(1)(f)) cannot be said to be an abuse of process simply because the defendant has less chance of success than if prosecuted for another offence (against, say, s49(1)(b)) which is founded on similar evidence. Meeking v Crisp & Mills [1988] VicSC 595, Vic Sup Ct, Crockett J, 14 November 1988, reversed.

Fullagar, McGarvie and Marks JJ:"... The authority given to a police offi cer under s53(1) of the Act is merely to require and administer a preliminary test. The sub-section does not express or necessarily imply any limitation on the offences to which the person in question might be vulnerable if the result shows an excess over the prescribed limit. The reference to an accident in s53(1)(c) merely restricts the occasions on which a person is vulnerable to the requirement when not intercepted when driving. Similarly, a prosecution for an offence cannot be said to be an abuse of process simply because the defendant has less chance of success than if prosecuted for another offence which is similar or founded on similar evidence. The law does not say, as the submissions for Mills suggest, that where there are possible alternatives of the stipulated kind, prosecution must be confi ned to such offence or offences as allow the best chance of success of a defence or the maximum avenues of defence (See Clyne v Director of Public Prosecutions [1984] HCA 56; (1984) 154 CLR 640 at 648; 55 ALR 9; (1984) 58 ALJR 493).

It was submitted by Mr Gebhardt of Counsel for Mills that Mills should have been prosecuted only under s49(1)(b) because it was available, and any offence against that provision or s49(1)(f) was constituted by the same act or omission. The latter proposition is not strictly true. The offence under (b) is possession of an alcohol level when driving, while that under (f) is possession when tested within three hours after driving. The fact that (f) is easier to prove cannot, in our opinion, render a prosecution under it an abuse of process. There is nothing in the statute nor in the Parliamentary debate which suggests the contrary. In fact, the speeches of the Minister to which we have been referred show an understanding that a person contemplated by s49(1)(b) might indeed be charged under s49(1)(f). In moving the amendment which has come to be s55(2) of the Act in the House of Assembly 12th November 1986, the Minister for Transport at p1998 (Hansard) said:-

"A preliminary breath test can be administered where the person has been found driving or has been in an accident. A breath analysis after this can still lead to a 'fail the test' charge".

We would allow the appeal and order that the order of the learned primary Judge made 14th November 1988 be varied by setting aside paragraphs 2 and 3 thereof where secondly appearing and substituting for them the following:-

"2. That the information under s49(1) of the Road Safety Act 1986 be remitted to the Magistrates' Court at Prahran for further hearing and determination according to law."

Per the Court (Fullagar, McGarvie and Marks JJ) in Meeking v Crisp and Mills [1989] VicRp 65; [1989] VR 740; (1989) 9 MVR 1; MC 06/1989, 22 March 1989.

128. Excessive blood/alcohol concentration – charge laid under s49(1)(f) of Road Safety Act 1986 – accused not involved in an accident – whether s49(1)(f) confi ned to cases where vehicle involved in an accident – abuse of process.

HELD: (per Mason CJ, Brennan and Toohey JJ (Dawson and McHugh JJ dissenting) Section 49(1)(f) of the

122

DRINK/DRIVING in VICTORIARoad Safety Act 1986 is not confi ned to cases where a vehicle has been involved in an accident. Accordingly, where a person was liable to be prosecuted under either s49(1)(b) or 49(1)(f) of the Act, it was not an abuse of process to lay a charge under s49(1)(f) rather than s49(1)(b). Meeking v Crisp [1989] VicRp 65; [1989] VR 740; (1989) 9 MVR 1, affi rmed.

Mason CJ and Toohey J:"... There is nothing express in the Act which would require that the appellant be prosecuted under para (b) of s49(1) rather than para (f). In accordance with s51(1) of the Interpretation of Legislation Act, therefore, the appellant was liable to be prosecuted under either of these provisions. In the present case there can be no basis for alleging abuse of process because a decision was made to prosecute the appellant under para (f) of s49(1) rather than para (b). The appeal should be dismissed with costs."

Brennan J: "I agree with the construction placed upon s49(1)(f) of the Road Safety Act 1986 (Vic) by Mason CJ and Toohey J. As the facts alleged against the appellant would, if proved, establish a prima facie case of an offence under s49(1)(f), and there is nothing to suggest that the charge was preferred for any purpose other than the application of s49(1)(f) to the facts of the case, there is no abuse of process in prosecuting the appellant on that charge.

I refer without repeating to what I said on abuse of criminal process in Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23; 87 ALR 577; (1989) 63 ALJR 640; 41 A Crim R 307. For these reasons I agree with the joint judgment of Mason CJ and Toohey J that the appeal should be dismissed."

Per Mason CJ, Toohey and Brennan JJ in Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214; (1990) 91 ALR 16; (1990) 64 ALJR 190; (1990) 45 A Crim R 373; (1990) 10 MVR 257; noted 14 Crim LJ 375; MC 05/1990, 27 February 1990.

129. Breathalyzer operator called as a witness – certifi cate of breath test not tendered – no averment as to or description of breath analysing instrument – whether element of charge proved – pre-condition for use of averments – effect of non-compliance with regulations – whether court should allow prosecutor to call further evidence.

On the hearing of a charge under s49(1)(f) of the Road Safety Act 1986 ('Act'), the authorised breath analysing instrument operator was called as a witness and gave evidence generally about the nature and operation of the instrument ('Breathalyzer') and the manner in which he tested the defendant. No certifi cate under s55(4) of the Act was tendered to the Court nor did the operator state that the apparatus used by him was a breath analysing instrument within the meaning of Part 5 of the Act nor did he state that the apparatus used by him had the word 'Breathalyzer' and certain numerals inscribed on it. Expert evidence (Bloom) was given for the defence, and at the close of the defence case an application was made by the prosecutor (which was granted) to call further evidence to rebut aspects of the evidence given by Bloom. The Magistrate found the charge proved stating that notwithstanding that the Breathalyzer did not comply with the specifi cations in the US patent and that the operator complied with the Regulations relating to the operation of the Breathalyzer he was satisfi ed that the apparatus used was a breath analysing instrument within the meaning of Part 5 of the Act. Upon order nisi to review—

HELD: Order nisi absolute. Conviction quashed absolutely.As the operator failed to use the language contained in the averment provisions of s58(4) or (5) of the Act and failed to describe the apparatus used by him whereby the court could ascertain whether the apparatus complied with the defi nition of "breath analysing instrument" in s3(1) of the Act, it was not open to the Magistrate to be satisfi ed that the apparatus was a breath analysing instrument within the meaning of Part 5 of the Act.

Obiter:(1) Where the prosecution seeks to rely on the averment provisions of s58(4) of the Act, the witness must use language substantially corresponding with the language of the relevant paragraph.

(2) The Regulations lay down requirements for the operation of the Breathalyzer which should be satisfi ed. Non-compliance with the Regulations does not automatically establish that a Breathalyzer was not in proper working order but depending on the nature and signifi cance of the non -compliance, a defence may be made out under s49(4) of the Act.

(3) The rules concerning the discretion to allow the prosecution to call further evidence after evidence has been given for the defence apply to Magistrates' Courts. As a matter of fairness, but without deciding, in the present case the prosecution should have called all of its evidence before closing its case.

Ormiston J:"... In summary therefore only the second reformulated ground of review relied upon by the applicant is upheld:

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PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIA(1) The fi rst reformulated ground is rejected, for I have concluded that changes to the breathalyzer instrument in the form described in one part of U.S. patent specifi cation 2824789 called the "preferred embodiment" of the invention and which contained what the inventor, Mr Borkenstein, thought in 1954 was the best method of carrying out his invention, would not take a breathalyzer outside paragraph (1) of the defi nition of "breath analysing instrument" in s3(1) of the Act. To satisfy that defi nition one must prove only (1) that the instrument is known as a breathalyzer and (2) that it answers the description of the apparatus contained in the claim in that patent specifi cation.

(2) However, the applicant has succeeded on ground number two (in substance) because the prosecution failed to establish that the instrument used to test his breath on the night in question came within the defi nition, in the absence of any prima facie proof of that fact pursuant to sub-ss(4)(a) and (5) of s58 of the Act and of any direct proof that it satisfi ed the defi nition. On this ground only will the conviction be quashed.

(3) The third ground is also rejected because I have concluded that the fact that the prescribed standard alcohol solution has been used once and a minute change of signifi cantly less than .002% might thereby have been caused to the sample does not establish either that the breathalyzer was not in proper working order or that the operator failed to operate it properly. Thus the applicant has not established a defence to the charge pursuant to sub-s(4) of s49 of the Act.

(4) The fourth reformulated ground is also rejected, as it sought to amend two grounds of the order nisi in an impermissible way, for the facts relied on relating to signature of the s55(4) certifi cate were not suffi ciently raised in the Magistrates' Court.

(5) In the circumstances it was not appropriate to deal with the fi fth ground which challenged the Magistrate's discretion to allow the prosecution case to be re-opened for the calling of an expert witness.

For the reasons I have expressed the order nisi granted by Master Barker on 23rd September 1987 should be made absolute, the conviction by the Magistrates' Court at Williamstown on 28th August 1987 should be quashed and the other orders should be set aside. Because a great deal of time was spent on irrelevant issues in respect of which I would have found for the respondent, I propose to order that the respondent pay only three quarters of the applicant's costs of and incidental to the application including any reserved costs."

Per Ormiston J in Bogdanovski v Buckingham [1989] VicRp 80; [1989] VR 897; 9 MVR 257; MC 20/1989, 16 December 1988.

130. Drink/driving and speeding – fi rst offences – no power to imprison – community-based order made – no order made in respect of driver licence – whether power to make community-based order – whether order against driver licence required.

HELD: Having regard to the language of s28 of the Penalties and Sentences Act 1985, power to make a community-based order is available only in respect of an offence punishable by imprisonment. Accordingly, where a fi rst offender was found guilty of an offence against s49(1)(f) of the Road Safety Act 1986 and a speeding offence against r1001 of the Road Safety (Traffi c) Regulations 1988 (in respect of neither has provision been made for imprisonment of the offender) a court was in error in making a community-based order, in refusing to convict and in failing to make an order against the offender's driver licence.

Ormiston J:"... In respect of the speeding offences the relevant provision, Regulation 1001, states that the penalty shall be not more than fi ve penalty units. It will be seen in each case that in respect of neither offence was provision made for the imprisonment or the potential imprisonment of the offender. It is necessary then to look to the powers contained in the Penalties and Sentences Act of courts to make community-based orders. That is in the fi rst place contained in s28(1) which states that:

"Where a court convicts a person of an offence punishable by imprisonment, the court may, instead of sentencing the person to a term of imprisonment of not more than 3 months, make a community-based order in respect of the person."

... The language of s28 appears to me to be entirely clear, namely that the power to make a community-based order is available only in respect of an offence punishable by imprisonment.

... It may be said with some justifi cation that the particular collocation of the sections, that is the sections of the Road Safety Act and the Penalties and Sentences Act, in particular s39, ought to be reconsidered by Parliament when it has an opportunity to consider this very badly drafted legislation, but it is not for this Court to embark upon an exercise of redrafting. In consequence the Magistrate erred in each case in making a community-based order and in refusing to convict and he erred in

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DRINK/DRIVING in VICTORIAfailing to cancel the licence and to disqualify each of the respondents from obtaining a further licence for the relevant period which is set out in the First Schedule to the Road Safety Act. ..."

Per Ormiston J in Finnis v Irvine; Fairweather v Davis [1989] VicSC 137; MC 26/1989, 10 April 1989.

131. Breath test conducted – prescribed certifi cate delivered – person charged – surname in certifi cate different from surname of person charged – whether certifi cate admissible – whether other evidence of identity admissible.

The copy of the prescribed certifi cate disclosed that the person tested had a surname different from that of the person charged before the court. The magistrate accepted a submission that as the certifi cate was conclusive proof of the facts and matters contained in it, it proved that the person charged was not the person tested, and accordingly there was no case to answer. Upon order nisi to review—

HELD: Order absolute. Remitted for further hearing.1. If the magistrate was not satisfi ed that the certifi cate referred to the person charged, the certifi cate was inadmissible as it was irrelevant. However, apart from the certifi cate, there was evidence from the police informant and the operator whereby the magistrate could fi nd that the result of the analysis as recorded by the instrument was proved.

2. If the magistrate was satisfi ed that the certifi cate related to the person charged, the recording of a different surname did not prove conclusively that the person tested was not the person charged. Whilst a name may provide some evidence of identity, there was evidence before the magistrate that the person tested was the person charged.

Gray J:"... Upon the resumption of the hearing, Counsel for the respondent was permitted to renew his submission of no case to answer. The gist of the renewed submission was that s58(2) of the Road Safety Act makes the certifi cate relating to the breath test "conclusive proof of the facts and matters contained in it". Therefore, it was argued, the statement that the person tested was Robert Anthony Little conclusively proved that Robert Anthony Dillon was not the person tested. This was said to lead to the conclusion that there was no evidence that the defendant had committed an offence under s49(1)(f). This submission apparently found favour with the learned magistrate because he thereupon dismissed the information. The informant, being aggrieved, obtained an order nisi to review the learned magistrate's ruling upon a number of grounds. These grounds, although expressed in various ways, amount to an allegation that the learned magistrate was in error in concluding that there was no evidence to support the charge laid under s49(1)(f). With very little hesitation, I have reached the conclusion that the ruling of the learned magistrate was wrong.

... the recording of the respondent's name as Little did not prove conclusively that the person tested was not the respondent. A name may provide some evidence of identity but, upon the present assumption, the identity of the person tested had been proved to be the respondent.

... Because of the evidence given by Senior Constable Warnock the prosecution evidence established a case to answer without reliance upon the certifi cate. In my opinion, the order nisi should be made absolute with costs, including reserved costs. The information will be remitted to the Oakleigh Magistrates' Court further hearing according to law."

Per Gray J in Addicoat v Dillon [1989] VicSC 371; MC 49/1989, 8 August 1989.

132. Person charged not found driving by police offi cer – breath test conducted – whether lawful preliminary breath test a condition precedent to a full breath test – whether court has discretion to exclude evidence of result of full breath test.

G. was taken by two civilians to a place where the police were in attendance. G. underwent a preliminary breath test, later a breathalyzer test and subsequently, was charged with the driving of a motor vehicle whilst in excess of the prescribed concentration of alcohol contrary to s49(1)(b) of the Road Safety Act 1986 ('Act'). At the hearing, it was submitted that as the informant had not found G. driving, there was no power to require G. to undergo a preliminary breath test. Accordingly, the breath test conducted pursuant to s55 of the Act was not lawful and evidence of the result of the breath test was not admissible. The magistrate accepted the submission and dismissed the charge. Upon order nisi to review—

HELD: Order nisi discharged.The magistrate undoubtedly had a discretion to exclude evidence of the result of the breath test, and it was not possible to conclude that the exercise of the magistrate's discretion miscarried.[Note also Peebles v Hotchin [1988] VicSC 552; [1988] 8 MVR 147; MC 61/1988, per Southwell J. Ed.]

Per Hampel J:

125

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIA"... It seems to me that the Magistrate had before him two basic issues. The fi rst was whether because there was no compliance by the police with s53 there could be no lawfully obtained breath test for the purposes of a conviction under s49(1)(b). And, secondly, whether the evidence of the breath test, or the result of the breath test, which was in fact undertaken should, as a matter of discretion be admitted in the circumstances which were before the Magistrate.

... In my opinion there may well be some substance in the submissions made by Mr Bourke in relation to the operation of s53 and s55. However, in my opinion for the purposes of this case it is not necessary for me to form a concluded view on that because I have come to the conclusion that on the material before me I am unable to say, in any event, that the Magistrate did not exercise his discretion to exclude which he undoubtedly had, correctly.

... The question of the discretion to exclude this evidence must have been adverted to by the Magistrate. Firstly, because Mr Bourke's submissions as appears from the affi davit, necessarily raised the question of the illegality in the sense that he has referred to that is of non-compliance with s53 and 55. And, secondly, because the prosecutor, as he set out in paragraph 14, made submissions that, even if the tests were conducted unlawfully in that sense, the evidence ought still to be admissible because the defendant had voluntarily submitted to the test. All that would have raised before the Magistrate, who was an experienced magistrate, not only the issue of the technical application of the sections of the Act but the question of the discretion resulting from the circumstances in which this matter came about.

Nor is it possible for me on the material which I have to say that the mere result, namely a discretionary exclusion resulting in the dismissal of the information, is in itself so obviously wrong as to call for the conclusion that there must have been a mis-exercise of his discretion. This is not a case on the circumstances which I have observed from the material in which it is possible to say that such a decision must inevitably lead to the conclusion that there was a mis-exercise of discretion. In all, therefore, I am unable to say that the Magistrate has erred in law on the material that has been presented before me and, therefore, in my opinion the order must be discharged. There will be an order for costs in favour of the respondent."

Per Hampel J in Hazeldine v Grinter [1989] VicSC 332; (1989) 9 MVR 419; MC 50/1989, 21 July 1989.

133. Blood sample taken – certifi cate tendered in evidence – wrong name and date in certifi cate – other evidence establishing defendant was person tested on a certain date – whether certifi cate "in the prescribed form" – whether suffi cient evidence to prove elements of charge.

At about 3 a.m. on 29 September 1987, S., a police offi cer, attended the scene of a single vehicle accident where she saw on the roadway a motor car lying on its roof. S. spoke to the driver who gave his name as "Serge Kislinsky" ('K.'), and when asked how the accident happened, K. said "I don't know." K. was conveyed to hospital where, at 4 a.m., had a blood sample taken from him which when analysed was found to contain a blood/alcohol concentration of .144%. K. said that he had had a few beers at a social function, and when later interviewed by S., agreed that he was involved in the accident at about 2.45 a.m., that he attended hospital on that date when a blood sample was taken from him and that he was the person referred to in the certifi cate made out by the medical practitioner. K. was charged, inter alia, with careless driving and an offence under s49(1)(g) of the Road Safety Act 1986 ('Act'). At the hearing, the medical practitioner's certifi cate was tendered which stated that the name of the person from whom the blood sample was taken was "Serg Kisminsky" and that such sample was taken on "29.9.89". A submission of 'no case' was rejected. K. chose not to give evidence or to call evidence on his own behalf and was convicted. Upon order nisi to review—

HELD: Order nisi dismissed.(1)(a) Where a prosecution case depends on facts which unexplained, indicate guilt, the failure by the defendant to offer an innocent explanation may give rise to the inference that there is, in fact, no innocent explanation. Sanders v Hill (1964) SASR 327, applied.(See also Waldie v Cook (1988) 91 FLR 413; (1988) 8 MVR 191; MC 47/1989. Ed.).

(b) Having regard to the nature of the collision and the extent of the defendant's consumption of alcohol, a conclusion that amnesia was induced or the defendant suffered memory loss could not be supported. Further, the defendant's admission as to driving and to consuming alcohol could lead a court to reject the defendant's explanation as being untrue. Accordingly, as the defendant failed to offer an innocent explanation, it was open to the court to fi nd the charge proved.

(2)(a) Given the times of the accident and the taking of the blood sample, it was open to conclude that the blood sample was taken from the defendant within 3 hours of driving.

(b) The certifi cate referred to in s57(3) of the Act is concerned with the nature of the matters set out and its form and not the accuracy of what is set out. Houston v Harwood [1975] VicSC 196; [1975] VicRp 69; (1975) VR 698, applied.

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DRINK/DRIVING in VICTORIA(c) The errors in the certifi cate as to name and date were not matters as to which the truth or accuracy of what was set out was guaranteed. Accordingly, it was open to treat the certifi cate as being in the prescribed form.

(d) Whilst the errors in the certifi cate may have raised a reasonable doubt as to whether the elements of the offence had been established, the certifi cate when looked at in conjunction with the police offi cer's evidence concerning the defendant's answers made it plain that it was that certifi cate which related to the defendant, and accordingly it was open to the court to fi nd the charge proved.

Crockett J:"... it is in my view clear that the certifi cate remains one which is in the prescribed form, even though it may have mistakenly stated the name of the person from whom the blood sample was taken and mistakenly stated the date on which it was taken. They are not matters as to which the truth or accuracy of what is set out is guaranteed. A name having been supplied and a date having been supplied, the document is one which is in the prescribed form.

... The certifi cate, being in my view in the prescribed form, was admissible. It was capable of being looked at and used as evidence. When used in conjunction with the passages in the evidence to which I have just referred, it becomes perfectly plain, I think, that the Magistrate was able to conclude that there were two inaccuracies, namely, in relation to the name and the date in the certifi cate. Nonetheless, in conjunction with the other evidence, it was plain that it was that certifi cate which related to the applicant. It would thus follow that it would be open to the Magistrate to fi nd that it was the applicant's blood sample which was taken within the statutory period and which was subject to the analysis about which evidence was given by the analyst. I think, therefore, that in respect of that particular offence also, it was open to the Magistrate to have reached the conclusion that he did and in that respect also the order nisi must be dismissed with costs."

Per Crockett J in Kislinsky v Spence [1989] VicSC 516; (1989) 10 MVR 163; MC 55/1989, 25 October 1989.

134. Blood sample taken by doctor – use of kit by doctor to collect sample – doctor not familiar with regulations – unable to say if sample collected in accordance with regulations – doctor called to give evidence – whether prosecution required to prove compliance with regulations – "safekeeper".

HELD:1. In respect of an alleged breach of s49(1) of the Road Safety Act 1986, the prosecution is not required to prove that a sample has been collected in accordance with the Regulations.

2. Where a medical practitioner gave evidence that he was not familiar with the Regulations concerning the collection of blood samples and was unable to say that he collected the relevant sample in accordance with the Regulations, a Magistrate was in error in upholding a 'no case' submission on the basis that the prosecution had failed to prove that the sample had been collected in accordance with the Regulations.

Marks J:"... I am of the fi rm conclusion that the Magistrate was in error in holding or ruling on the assumption that the prosecution was required to prove that the sample had been collected in compliance with the regulations.

... I am of the opinion that even if there were some evidence before the Magistrate that the regulations had not been strictly followed, it was necessary for him to decide whether the evidence received without objection should be ruled inadmissible. There was evidence that a blood sample had been taken from the defendant by a medical practitioner; that he had taken it under the circumstances mentioned in s56(2) and that this blood sample had been analysed with the result that the prescribed quantity had been exceeded as provided by s49(1)(g).

I do not think that any matter placed before the Magistrate as to the possible breach of the regulations, permitted him to treat as inadmissible the above evidence. He was obliged to consider it. It may well be that in certain circumstances where procedures required by regulations had not been followed, that a tribunal of fact fails to be satisfi ed beyond reasonable doubt of one or more elements of an offence. The evidence, such as it was, concerning any breach here of the regulations, was unlikely, in my opinion, to have led a reasonable tribunal of fact to conclude that the sample actually taken from the defendant had in some way lost its integrity or that the analysis was other than reliable. ..."

Per Marks J in Kos v Johnston [1989] VicSC 563; (1990) 11 MVR 471; MC 56/1989, 20 November 1989.

135. Refusing to undergo preliminary breath test – evidence by police informant as to identity of breath test device – whether such evidence admissible – regulations not tendered by prosecutor – case for prosecution closed – whether Magistrate correct in permitting re-opening to enable tender of regulations – whether a Bond for drink/driving offence a prior conviction.

127

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAHELD:1. Where a police offi cer, by reason of training and experience, is able to describe the purpose of a preliminary breath test device and how it is known not only to the offi cer but generally, such evidence as to identity of the device is admissible for the purposes of s49(1) of the Road Safety Act 1986 ('Act').

2. No error in the exercise of a Magistrate's discretion was shown where, after hearing submissions of counsel on the matter the prosecution was permitted to re-open its case for the purpose of tendering the relevant Regulations.

3. A previous offence under s81A of the Motor Car Act 1958 whereby the offender was released on a bond without conviction cannot be regarded as a prior conviction for the purposes of s49(1) of the Act.

Marks J:"... I am of the opinion that the evidence which the informant gave was admissible. The witness was qualifi ed to say what he did from his experience of the device. The evidence went merely to identify the device and its purpose. The witness was able to say that from his training and experience as a police offi cer what it was that he had in his possession, what its purpose was, and accordingly how it was known, not only to him, but generally.

Accordingly, it seemed to me that the Magistrate was right in ruling the evidence to be admissible. It must be borne in mind that there is a distinction between admissibility and weight of evidence. However there was no challenge, as it turned out, to the evidence about the identity of the device of which the witness purported to speak.

... It seems to me a matter of commonsense that the police constable must be taken to have had experience of the device to which he was referring and was well able to identify it.

... It is perfectly clear that the offence, under the Motor Car Act 1958, could not be regarded as a subsequent offence under s49(1)(c) of the Road Safety Act 1986. If the offence under s81A of the Motor Car Act 1958 resulted in conviction, s48(2) of the Road Safety Act 1986 might have been relevant to make it a fi rst offence within the meaning of s50(1)(b). I do not set out s48(2) as it is conceded by both counsel that s48(2) can only make an offence a fi rst offence within the meaning of s50(1)(b) if there had been a conviction in respect of it. As I have said, there was no such conviction, and accordingly, the proof of the offence under the Motor Car Act 1958, which did not result in a conviction, cannot be regarded as a fi rst offence so as to make the present one under consideration a subsequent offence, calling for a minimum disqualifi cation of four years...."

Per Marks J in Hewett v Harms [1989] VicSC 540; (1989) 10 MVR 63; MC 57/1989, 3 November 1989.

136. Breath test – excessive blood/alcohol concentration – "breath analysing instrument" – evidence that "breathalyzer" used – whether proof that instrument satisfi es defi nition.

HELD:Where there was evidence that a breath test was conducted with an instrument known as a "Breathalyzer" on which was engraved the numerals "2824789", a magistrate was in error in dismissing the charge on the basis of lack of satisfaction beyond reasonable doubt that the instrument complied with the specifi cations contained in the US patent. Bogdanovski v Buckingham [1989] VicRp 80; [1989] VR 897; (1988) 9 MVR 25; MC 20/1989, followed.

Hampel J:"... I return to the magistrate's fi ndings. He went on to consider the nature of the chemicals used in the particular test and concluded that those chemicals in the particular test may or may not have resulted in different readings which could be subject to attack, but his fi nal conclusion is the one which underscores the reasons why this order nisi should be made absolute, and I quote:

"Accepting all the evidence, I have some doubt that the machine used did comply with the specifi cations contained in the patent. That is a fi nding of fact. I am not satisfi ed beyond a reasonable doubt that the machine so complied and accordingly the information will be dismissed."

The reason for the non-compliance in the magistrate's view was, the machine itself failed to comply. I believe that the magistrate's decision was made in ignorance of the Bogdanovski case, and understandably so. I also believe that the attack upon the magistrate's fi ndings launched before me as to the mode of operation and the capacities of the operator are issues which may be recanvassed. I am satisfi ed that in the ultimate despatch of this matter I should return this information to the Magistrates' Court for rehearing in accordance with the terms of this judgment."

Per Hampel J in Zylstra v Smith [1989] VicSC 520; MC 73/1989, 26 October 1989.

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DRINK/DRIVING in VICTORIA137. Refusing a breath test – elements of offence – whether proof necessary that breathalyzer be available when request made – reasons for decision to be given – where reasons obvious but not given – whether conviction vitiated.

HELD:1. Where a person is charged with an offence under s49(1)(e) of the Road Safety Act 1986 ('Act') of refusing to comply with a requirement made under s55(1) of the Act, the elements of the offence require proof of a requirement and a refusal to comply with such a requirement. The Act does not require proof that when the requirement was made a breath analysing instrument was present and available for use. Scott v Dunstone [1963] VicRp 77; [1963] VR 579, not followed.

2. Where the reasons why a Magistrate found a charge proved are obvious, it does not follow that the conviction should be set aside because the Magistrate failed to give reasons.

Marks J:"... Neither section 55(1) nor other provision of the Act requires proof of the presence of a breath analysing instrument to sustain a prosecution under s49(1)(e). In my opinion neither common sense nor any principle of law requires it. Where evidence shows that a suspect refused point blank to provide a sample of his breath no matter what the instrument, particularly in circumstances indicating that his refusal was motivated by fear of the result of compliance with such a requirement, a tribunal of fact is entitled to conclude that the elements of the offence have been established. Grounds (a) and (b) fail.

Ground (c) is that the Magistrate failed to give reasons. It is not strictly correct that the Magistrate gave no reasons at all. He said that he found the elements of the charge proved after rejecting the submission that there was no case to answer. In the course of that submission it was apparent that the Magistrate was of the view that the presence of the breath analysing instrument was not required by the statute to be proved. In saying that he found that the charge was proved he is clearly to be understood as meaning that the elements of the offence were established by the evidence. ..."

Per Marks J in Lisiecki v Grigg [1990] VicSC 20; (1990) 10 MVR 336; MC 02/1990, 26 January 1990. 138. Statutory interpretation – "subsequent offence" – penalty for – general rule of construction – two drink/driving offences heard together – whether second offence a "subsequent offence".

HELD:1. As a general rule of statutory construction in relation to penalty, a second or subsequent offence must be subsequent to a conviction for a fi rst offence. Bell v Feehan [1985] VicSC 239; [1985] VicRp 82; [1985] VR 841; (1985) 2 MVR 341, applied.

2. Notwithstanding the provisions of ss48(2), 49 and 50(1) of the Road Safety Act 1986, the general rule of construction has not been excluded in relation to penalties for drink/driving offences. Where an offender pleaded guilty to two drink/driving offences committed six days apart, it was not open to the magistrate to treat the second charge as a "subsequent offence". However, given the offender's continuing disobedience of the law, a penalty in excess of the minimum was warranted.

O'Bryan J:"... The point at issue here is whether the expression "subsequent offence" means an offence allegedly committed following an earlier offence in respect of which the offender has not been convicted. There is considerable authority for the proposition that where increased penalties are prescribed for a second, or third, or subsequent offence, an offence is not ordinarily to be considered a second, or third, or subsequent offence unless it is proved that the alleged second, or third, or subsequent offence was carried out after a prior conviction for a former offence.

... Mr Thomas, who appeared for the defendant, relied upon s48(2) for the proposition that the legislature intended to, and did, exclude Coke's rule of construction that, as to penalty, the second, or subsequent offence, must be subsequent to a conviction for a fi rst offence. Cf. Bell v Feehan [1985] VicSC 239; [1985] VicRp 82; [1985] VR 841 at 843; (1985) 2 MVR 341 where Gobbo J refers to the principle "as well established".

... I agree, with respect, that the rule may not be excluded in the absence of plain and precise language, which is not to be found in s49 of the Road Safety Act...."

Per O'Bryan J in Kennan v Mears [1990] VicSC 18; MC 06/1990, 25 January 1990.

139. Excessive blood/alcohol concentration – evidence given by operator in each case – standard alcohol solution – slightly changed with each test – whether suffi cient to show non-compliance with

129

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAregulations – proper test re compliance – some formal proofs not given – whether leave to re-open should be granted.

1. B. v W. B. was charged under s49(1)(f) of the Road Safety Act 1986 ('Act') (reading .210% BAC). The breathalyzer operator was called to give evidence and said that each time air was pumped through the standard alcohol solution (SAS) some ethyl alcohol would be lost. At the close of the prosecution case, it was submitted B. had no case to answer on the ground that the operator had not stated that the instrument used on the relevant occasion was a breathalyzer within the meaning of the defi nition in s3 of the Act. The magistrate granted the prosecutor's application to re-open in order to lead the necessary formal evidence. For the defence, a consulting chemist gave evidence that the SAS lost approximately 0.7 mgs of alcohol each time it was used and that after 10 standardizations the alcohol content of the SAS decreased by 1.5% approx. In fi nding the charge proved, the magistrate held that although the Road Safety (Procedures) Regulations 1987 ('Regs') were not complied with, the breathalyzer reading could not be disregarded and it would be capricious to dismiss the charge in those circumstances. Upon order nisi to review—

HELD: Order absolute. Conviction quashed.1. In view of the magistrate's fi nding that the breathalyzer had not been tested with a SAS in compliance with the Regulations (although such a conclusion was open to doubt in that the effect on the reading may have been mathematically insignifi cant) the magistrate was in error in concluding that the breathalyzer reading could not be disregarded and accordingly should have dismissed the information.

2. Whilst courts should not encourage persons to call additional evidence following an unsuccessful 'no case' submission, in the present case the magistrate was not in error in allowing the prosecutor to call further evidence.

2. C. v D. C. was charged under s49(1)(f) of the Act (.170% BAC). The operator was called, and also the consulting chemist, and as in the previous case, both witnesses gave evidence concerning the loss of ethyl alcohol from the SAS each time it was used. In fi nding the charge proved, the magistrate held that although the SAS did not contain the components required by the Regs, the question was whether there had been substantial compliance with the Regs and was not satisfi ed the operator had produced an unreliable result. Upon order nisi to review—

HELD: Order absolute. Conviction quashed.1. Whilst minute differences concerning compliance with the requirements of the Act and Regs may in certain circumstances be overlooked, a defence will be made out if there is anything other than an insignifi cant departure from the prescribed standard. The test is not whether there has been substantial compliance with the Regs.

2. In view of the fi nding that the SAS was not as was required, the magistrate was in error in concluding that substantial compliance with the Regs was suffi cient to fi nd the charge proved. Such a fi nding amounted to non-compliance of a kind which amounted to proof of the defence and accordingly, the information should have been dismissed.

Ormiston J:"... In my opinion the averment by each of the operators retained its validity unless and until the defence has established evidence to the contrary to the satisfaction of the Magistrate. It is not suffi cient that the defence elicits or calls contrary evidence, unless that evidence has suffi cient relevance, cogency and weight to satisfy a Magistrates' Court, on the balance of probabilities, that the apparatus was not a "breath analysing instrument" as defi ned.

... I have already said in Bogdanovski's Case [1989] VicRp 80; [1989] VR 897; (1988) 9 MVR 25 (at p51) that the object of the requirements of the Act and the regulations is that those matters prescribed by the regulations should be observed. It would be unreasonable to read down those requirements by insisting only on some indefi nable lesser standard, namely substantial compliance, for that would be to disregard the language of the Act and the regulations. Again I emphasize that minute differences may in certain circumstances be overlooked, but if there is anything other than an insignifi cant departure from the prescribed standard, then the defence will be made out under s49(4). Having regard to his factual fi ndings the learned Magistrate could, as I read the evidence, only have found non-compliance of a kind which amounted to proof of the relevant defence. He should therefore have dismissed the information on this amended ground. ..."

Per Ormiston J in Binting v Wilson; Clifford v Davis [1989] VicSC 636; MC 14/1990, 19 December 1989.

140. Certifi cate admitted into evidence – "in the prescribed form" – no pre-written document prescribed – details specifi ed in regulations – whether "in the prescribed form".

HELD:A certifi cate which contains the specifi c details as set out in Reg 314 of the Road Safety (Procedures) Regulations 1988 paras (a) to (h) together with the things mentioned in s55(4) of the Road Safety Act 1986 ('Act') is "in the prescribed form" and admissible on the hearing of an offence under s49(1)(f) of the Act.

130

DRINK/DRIVING in VICTORIAPer Judge Mullaly, County Court of Victoria:

"... I fi nd that this appellant did not request a second analysis and accordingly, what the operator was required to do was confi ned to the things mentioned in paragraphs (a) and (b). Accordingly the only certifi cate, "in the prescribed form", necessary in this case was that referred to in paragraph (a). It is common ground that no prescribed form of the type for which Mr Gebhardt contended was in existence. There is no pre-written and Governor-in-Council approved document or form.

... In the appellant's reply to the respondent's argument, it was submitted that the certifi cate did not, as required refer to the things mentioned in paragraphs (c) and (d) of s55(4). Events which have never happened cannot be described as "things" in a context such as that of s55(4) and Regulation 314. In this case, the things referred to in Regulation 314 were limited to those referred to in s55(4)(a) and (b). Whilst the word "prescribed" may sometimes mean "pre-written" as the appellant contends, that is not the only meaning of that word. It may also mean, "to lay down in writing or otherwise a rule or course to be followed" or "to ordain or enjoin". (See the Shorter Oxford Dictionary and the Macquarie Dictionary.)

I am satisfi ed that the certifi cate tendered in this case complies with Regulation 314 and is therefore in "the prescribed form" as that expression is used in s55(4). I am satisfi ed of compliance with s55(4). Accordingly the evidence was properly admitted and there is a case to answer. I reject the submission."Per Judge Mullally in Re Bolton MC 33/1990, 31 August 1990.

141. Person found driving – when questioned admitted to earlier driving – one charge laid – whether bad for duplicity.

H., a police offi cer saw E. drive a motor car forwards for a short distance then stop. When E. was later questioned he admitted that just prior to his apprehension by H. he had driven the motor car some 200 metres to where he was found by H. On a hearing of a charge laid against E. for driving a motor car whilst in excess of .05% blood/alcohol, the magistrate upheld a 'no case' submission and dismissed the charge on the ground that it was bad for duplicity given the evidence as to the two episodes of driving. Upon order nisi to review—

HELD: Order absolute. Remitted for further hearing. The evidence as to the two episodes of driving did not involve a fi nding that the prosecution was alleging two separate offences. There would have been little doubt that the case the defendant was required to meet concerned the episode of driving seen by the police offi cer rather than the admission as to the earlier driving. However, in order to put the matter beyond doubt, it would have been desirable for the prosecutor to elect as to what it was the defendant had to answer.

Southwell J:"... The fact that the informant gave evidence of some admission of previous driving, does not involve

a fi nding that the prosecution was alleging two separate offences. The evidence of the admission as to earlier driving is no more, in the circumstances of this case, than evidence tending to support the otherwise overwhelming case that when the informant found the defendant driving, his blood alcohol content was in excess of .05 percent.

In those circumstances, I am satisfi ed that the Magistrate was in error in dismissing the information. However, I should express the view that it would have been desirable for the Magistrate to have required the prosecutor to elect, in order that there could be no doubt left in anybody's mind, as to just what it was that the defendant had to meet. It follows that the order nisi must be made absolute, and the matter will be referred to the Magistrates' Court to be further dealt with according to law."Per Southwell J in Humphrey v Edwards [1988] VicSC 558; MC 34/1990, 25 October 1988.

142. Exceeding prescribed concentration – breath test – "breath analysing instrument" – meaning of defi nition of – evidence of difference between instrument used and patent specifi cation – whether proof that instrument within defi nition.

On the hearing of a charge against s49(1)(f) of the Road Safety Act 1986 (Act'), a magistrate accepted the evidence of a witness to the effect that the heating element in the breath analysing instrument used was different from that in the Patent Offi ce specifi cations and accordingly, dismissed the charge on the ground that the instrument used on the relevant occasion was not within the defi nition of "breath analysing instrument" in s3 of the Act. Upon order nisi to review—

HELD: Order absolute. Remitted for further hearing.The question to be decided by the magistrate was not whether there was a difference between the instrument used and the Patent Offi ce specifi cations, but whether the specifi cations of the instrument conformed to the description of the Patent Offi ce specifi cations. As there was no evidence as to the description, the magistrate was in error in fi nding that the instrument used was not within the defi nition in s3 of the Act. Bogdanovski v Buckingham [1989] VicRp 80; [1989] VR 897; (1988) 9 MVR 257, distinguished.

131

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAMarks J:

"... In my opinion, however, accepting, as it may be presumed I must, that it was proper for the magistrate to take it into account, the evidence did not, contrary to the conclusion of the magistrate, constitute evidence which contradicted the evidence on behalf of the plaintiff. This was the submission of Mr Maguire of counsel for the plaintiff, and I uphold it. The evidence did not constitute evidence that the presence of a different heating element meant that the instrument used by Constable Jee was not a "breathalyser", a description of the specifi cations of which is to be found in the Patent Offi ce of the United States of America under the reference number 2824789. In a sense, instruments with different heating elements might be said to be different from each other. But that is not the question here. The question here is not necessarily one of mere difference, as appears from what Ormiston J said in Bogdanovski, the question arguably concerns only a description of specifi cations.

There was no evidence that the specifi cations of the breath analysing instrument used by Constable Jee did not conform to "the description of the specifi cations" in the US Patent Offi ce under the stated reference number. Accordingly, there was no evidence before the magistrate which was contrary to the evidence clearly establishing the conformity of the machine used by Constable Jee with the defi nition in the act. The order nisi is made absolute with costs. The information is remitted to the Magistrates' Court at Sale for hearing and determination according to law."

Per Marks J in Bakker v O'Connor [1990] VicSC 422; (1990) 12 MVR 468; MC 38/1990, 17 September 1880.

143. Preliminary breath test positive – failure to accompany police offi cer for a breath test – offender's concern that his motor vehicle may be stolen – charge found proved – no submissions as to penalty – charge dismissed as trifl ing – no reasons given – whether proper exercise of discretion.

R. was intercepted by S., a police offi cer, whilst riding a motor cycle. R. underwent a preliminary breath test, which proved positive, but refused to accompany S. to a police station for a full breath test due to a concern that his motor cycle may be stolen in the meantime. At the subsequent hearing, R. pleaded not guilty to the charge of failing to accompany S. to a police station for a breath test. However, the charge was found proved and without hearing submissions on the question of penalty, the magistrate, without giving reasons, dismissed the charge as trifl ing pursuant to the provisions of s81 of the Penalties and Sentences Act 1985. Upon nisi to review—

HELD: Order absolute. Remitted to the magistrate for further decision.In failing to state what considerations were taken into account and failing to give any reasons for decision, the magistrate failed to exercise his discretion properly and accordingly, fell into error. Sun Alliance Insurance v Massoud [1989] VicRp 2; (1989) VR 8, applied.

Teague J:"... I am satisfi ed that the case before me is not a case to be treated as one where the magistrate's exercise of his discretion is being reviewed merely on the basis that it was inappropriate, so that one must consider whether the circumstances are extreme, as in Bakker v Stewart [1980] VicRp 2; [1980] VR 17. In the subject case, I am satisfi ed that the magistrate is to be treated as not having exercised his discretion at all because he has not stated what considerations he has taken into account. Accordingly, I cannot be satisfi ed that he has not taken into account considerations that he ought to have taken into account, and/or failed to give proper weight to considerations that he ought to have taken into account, in the exercise of his discretion.

... I am satisfi ed that the appropriate course for me to follow is to make the order nisi absolute, and to refer the information back to the learned magistrate to be further dealt with according to law. How the learned magistrate exercises his discretion as to penalty is a matter for him to decide in the light of these reasons, and in the light of submissions made as to penalty. It may be appropriate for me to add a rider that it seems to me that it would be desirable for magistrates to note in the register, where any charge is dismissed pursuant to s81, that that was the basis for dismissal...."

Per Teague J in Stafford v Redmond [1990] VicSC 623; (1990) 52 A Crim R 173; MC 54/1990, 12 December 1990.

144. Motor vehicle collision – offender reasonably believed to have been driving at time of collision – within previous 3 hours – request to undergo preliminary breath test – whether pre-condition for request that police offi cer must fi nd offender driving at time of accident.

HELD:Where a court is satisfi ed that there are reasonable grounds for believing that within the previous three hours a person has driven a motor vehicle when it was involved in an accident, it is not necessary for the informant to prove that the person charged was found driving a motor vehicle at the time of the accident. Peebles v Hotchin [1988] VicSC 552; (1988) 8 MVR 147; MC 61/1988, explained.

132

DRINK/DRIVING in VICTORIANathan J:

"... In this case the Magistrate found as a fact there was an accident; any other conclusion from his acceptance of the police evidence and his rejection of that of the respondent, is impossible. He found as a stated fact that Svoboda was the driver. In my view it follows the preliminary breath test was lawfully conducted; no other conclusion is possible.

As to the predicate of reasonable belief, the Magistrate did not direct his attention to this, but I fi nd there was ample evidence to justify such a belief by the attending Police members. They would not be required to actually see the accident to justify a prosecution. See Iskov v Matters [1977] VicRp 26; (1977) VR 220, and Mills v Meeking & Anor [1990] HCA 6; (1990) 169 CLR 214; (1990) 91 ALR 16; (1990) 64 ALJR 190; (1990) 45 A Crim R 373; (1990) 10 MVR 257. The case is to be distinguished from Bracken v O'Sullivan [1991] VicRp 94; [1991] 2 VR 573, Full Court, 13 November 1990, which concerned the acceptance of a certifi cate of an operator under s58 of the Act because the Magistrate there found the driving is a proven fact, and secondly he also had the evidence of the actual operator, as well as the certifi cate.

In this case it was not possible to conclude, otherwise, that Svoboda drove whilst his blood alcohol levels were in excess of those permitted and did so and was doing so when the car he was driving was involved in an accident. I shall remit this matter to the Magistrate at Sale for further adjudication in accordance with the tenor of this judgment."

Per Nathan J in Askew v Svoboda [1991] VicSC 1; MC 05/1991, 14 January 1991.

145. Breathalyser operator required to give evidence – cross-examined as to operation of breathalyser – operator unaware of composition of standard alcohol solution – omission by operator to mention a necessary step taken during operation – evidentiary burden on defendant – whether burden discharged – whether defence made out.

1. It is not necessary for a Breathalyser operator to establish that all relevant Regulations were complied with during the operation of the Breathalyser. Accordingly, where an operator avers in accordance with s58(4) of the Road Safety Act 1986 ('Act') that in operating the breath analysing instrument all relevant Regulations were complied with and that the instrument was in proper working order and was properly operated, all necessary facts are thereby proved unless the defendant elicits or calls evidence of suffi cient cogency and weight to satisfy a court that one or more Regulations were not complied with. Wyllie v Sewell [1981] VicSC 600; MC 45/1982; and Binting v Wilson; Clifford v Davis [1989] VicSC 636; MC 14/1990, applied.

2. Such a defence is not made out if an operator is unaware of the composition of the standard alcohol solution used at the relevant time or that his evidence-in-chief describes the totality of things done during operation of the instrument but omits to mention a necessary step such as stability of the instrument. Lambert v Appleby [1969] VicSC 91; [1969] VicRp 80; (1969) VR 641, applied.

Beach J:"... In my opinion, once the operator of the breathalyser makes the appropriate averment, that averment retains its validity unless and until the defence has established evidence to the contrary to the satisfaction of the magistrate. It is not suffi cient that the defence elicits or calls contrary evidence unless that evidence has suffi cient relevance, cogency and weight to satisfy the magistrate, on the balance of probabilities, that the standard alcohol solution did not comply with Regulation 105, and that the breathalyser therefore was not in proper working order – see Binting v Wilson [1989] VicSC 636, an unreported decision of Ormiston J, delivered 19 December 1989. In my opinion the evidence of the analyst Fabb did not carry that cogency and weight. In my opinion the magistrate in each case properly rejected the submissions made on behalf of the applicants, and properly recorded convictions against them. It follows, therefore, that in my opinion none of the grounds in the orders nisi have been made out. The order of the court is that each order nisi is discharged, with costs to be taxed and paid by each applicant."

Per Beach J in Bardelmeyer v Whiteley, Lee v Williams, Matosic v Hamilton [1991] VicSC 41; (1991) 13 MVR 171; MC 08/1991, 8 February 1991.

146. Refusal to undergo preliminary breath test – request made in house occupied by alleged offender – after request made police offi cer requested to leave – whether offi cer entered house as trespasser – whether evidence of subsequent actions inadmissible – whether request to undergo breath test lawfully made.

As a result of information given to S., a police offi cer, attending the scene of a motor vehicle collision in which one vehicle was said to have fl ed the scene, S. proceeded to a house a short distance away and drove the police vehicle onto the unobstructed driveway and parked it. As a result of something said by two males on the property, S. entered the house and spoke to a person who told S. to "wait a minute" in the kitchen. When B. appeared in

133

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAthe kitchen, S. requested B. to undergo a preliminary breath test, B. refused and ordered S. to leave the house. Subsequently, B. was charged with an offence of refusing to undergo a preliminary breath test pursuant to s49(1)(c) of the Road Safety Act 1986 ('Act') and was convicted.

HELD: Appeal dismissed. Conviction confi rmed.Up until the time the police offi cer was ordered to leave the house, the police offi cer was either an invitee or at least had an implied licence to be in the house. Accordingly, the police offi cer was lawfully on the premises and could lawfully require the driver to undergo a preliminary breath test the refusal of which was a breach of s49(1)(c) of the Act. Halliday v Nevill [1984] HCA 80; (1984) 155 CLR 1; (1984) 57 ALR 331; (1984) 13 A Crim R 250; (1984) 59 ALJR 124; (1984) 2 MVR 161; [1984] Aust Torts Reports 80-315, referred to.

Beach J:"... The question which it is desired to raise for the determination of this court concerns the evidence of two police offi cers of their actions, observations and conversations subsequent to entering the dwelling house of the appellant. What is said in that regard is that the offi cers entered the house as trespassers; accordingly and as a matter of law, evidence as to their subsequent actions, observations and conversations whilst trespassers is inadmissible in criminal proceedings brought by them against the appellant.

... At all events, and whether that be so or not, having entered the kitchen of the house and explained the nature of their business to the appellant's wife, who was clearly an occupant of the house, they were expressly invited by the appellant's wife to "wait a minute". In my opinion, that was an express invitation to Constables Spyrou and Della Riva to remain in the kitchen. Following the appearance of the appellant in the kitchen, the two constables then asked him to submit to a breath test. It was only after the police offi cers asked the appellant to submit to a breath test and he had refused to do so that the appellant ordered the police offi cers to leave the house. In my opinion, up to the time at which Constables Spyrou and Della Riva were ordered to leave the house, they were either invitees to the house or at the least had an implied licence to be there. They did not become trespassers to the house until such time as the appellant ordered them to leave. Indeed, it could be argued that even then they were not trespassers because they were in the house at the invitation of the appellant's wife and the two other male occupants of the house. Those occupants had not withdrawn their invitations. It would be a nonsense to suggest that if a person enters a house at the invitation of a number of occupants of the house he immediately becomes a trespasser if he is ordered from the house by another occupant.

It follows from those fi ndings that in my opinion at the time Constables Spyrou and Della Riva asked the appellant to submit to a breathalyzer test, they were legally on the appellant's premises and could lawfully require the appellant to submit to such a test. The appellant's refusal to undergo such a test was a clear breach of s49(1)(c) of the Road Safety Act, and the learned County Court Judge was perfectly correct in dismissing the appellant's appeal and confi rming his conviction and sentence. In my opinion the appropriate order to make in respect of the case stated is that the respondent's costs of the case stated including any reserve costs be taxed and when taxed paid by the appellant."

Per Beach J in Barbaro v Spyrou [1991] VicSC 4; (1991) 13 MVR 449; MC 09/1991, 18 January 1991.

147. Driver found in parked car with headlights on – driver stopped because of tiredness – whether driver "intends to start or drive vehicle" – whether "in charge".

Section 48(1)(b) of the Road Safety Act 1986 ('Act') provides:For the purposes of this Part—

(b) a person is not to be taken to be in charge of a motor vehicle unless that person is attempting to start or drive the motor vehicle or unless there are reasonable grounds for the belief that that person intends to start or drive the motor vehicle."

G., a police offi cer, saw a motor vehicle parked at the roadside, headlights on and W. in the driver's seat who, when spoken to by G., admitted consuming of a quantity of intoxicating liquor and driving the vehicle one or two minutes before Police came on the scene. Subsequently, W. was charged pursuant to s49(1)(b) of the Act with being in charge of the motor vehicle with an excessive blood/alcohol concentration and was convicted. Upon order nisi to review—

HELD: Order absolute. Conviction/order set aside.For a person to be in charge of a motor vehicle under s48(1)(b) of the Act, reasonable grounds must be shown that at the time of apprehension, that person had a present intention to start or drive the motor vehicle forthwith or in the very near future that is, the driver was about to start or drive the vehicle. In the present case, as there were no such reasonable grounds, the driver was not to be taken to be in charge of the vehicle within s48(1)(b) of the Act and the police offi cer was not entitled under s53 of the Act to administer a preliminary breath test nor make a requirement under s55 for a full breath test. Accordingly, the magistrate

134

DRINK/DRIVING in VICTORIAwas in error in not dismissing the charge. Peebles v Hotchin [1988] VicSC 552; (1988) 8 MVR 147; MC 61/1988, referred to.

Fullagar J:"... In the circumstances of the present case there were, in my opinion, no reasonable grounds for any belief in anyone that the applicant intended to start the engine or drive off forthwith, or to do so at any point of very close futurity. Indeed, if one "assumes the worst" of the applicant, and adopts for the moment the suspicions which I have referred to, and considers the very instant of apprehension, that is to say one second after the applicant realised the police had observed his car and were approaching him in his hastily parked car, there are even on that footing cogent reasons for believing that the applicant intended not to start the car until at least some considerable time had elapsed after the coast was clear, and indeed one might doubt very much that he would have continued the particular journey in his car after a frightening encounter with the police, whatever he may have said to them as to his intention before they came upon the scene. But, of course this is all speculation and I mention it only by way of illustration of my view of the ambit of the critical provision. As I have concluded that, upon the proper construction of the second limb of s48(1)(b) of the Act, there were not reasonable grounds for the belief that the applicant intended to start or drive the motor vehicle, the order nisi must be made absolute.

Having regard to the wording of the grounds, I should hasten to add what must be obvious, that this conclusion does not mean that the Magistrate acted unreasonably but only that she misconstrued this diffi cult statute."

Per Fullagar J in Woods v Gamble [1991] VicSC 18; (1991) 13 MVR 153; MC 11/1991, 25 January 1991.

148. Case booked in for a contest – analytical chemist unavailable on date of hearing – request for adjournment – breathalyser operator not called as a witness – effect of certifi cate being admitted into evidence – chemist's evidence of no effect – request for adjournment refused – defendant convicted – whether prejudice suffered by refusal of adjournment.

L. was charged with drink/driving offences pursuant to s49(1)(b) and (f) of the Road Safety Act 1986 ('Act'). The matters came on for mention in April and adjourned for a contested hearing in the following August. In the meantime, L. underwent a profi le test conducted by an analytical chemist. Three days before the hearing date, the chemist indicated (without giving reasons) that he was unavailable to attend on the date fi xed for hearing. Accordingly, on the return date, L.'s legal practitioner sought an adjournment of the charges which was refused and L. was convicted of the charge under s49(1)(f) of the Act; the other charge being struck out. Upon order nisi to review—

HELD: Order nisi discharged.1. Having regard to the deeming provisions of s58(2) of the Act which provide conclusive proof as to the breath analysing instrument's being in proper working order and properly operated at the relevant time together with the fact that the instrument operator had not been required to attend the court, the evidence proposed to be given by the analytical chemist could have had no effect upon the result of the case. Accordingly, no prejudice was suffered by L. as a result of the refusal of the request for an adjournment.

2. In view of the provisions of s49(6) of the Act, the lapse of time between the mention date and the date of hearing and the fact that no reason was advanced to explain the chemist's absence, the learned magistrate was not in error in asking whether the evidence of the absent witness was arguably admissible. Humphrey v Wills [1989] VicRp 42; (1989) VR 439, distinguished.

Fullagar J:" ... In my opinion the applicant fails to make out that he is a "person who feels aggrieved by a summary conviction or order" within the meaning of s88 of the Magistrates' Courts Act 1971. It is in my opinion quite clear that, if the analytical chemist had been called, and had been allowed to give all the evidence which he was capable of giving, his evidence could have had no effect whatsoever upon the actual result of the trial which in fact ensued. This is because the applicant was not convicted of the alleged offence against s49(1)(b) and because the whole of the chemist's evidence was inadmissible upon the trial of the offence against s49(1)(f)....

In the present case, having regard to s49(6) and to the fact that the Magistrate knew that the absent witness was an analytical chemist, and to the fact that the trial had been fi xed on 24th April for 9th August, and to the fact that no reason whatever was given for the absence of the witness, I think the Magistrate was justifi ed in asking for some indication at least that the proposed evidence was arguably admissible.

... It has been in the past, I think, a not uncommon practice for persons charged with these offences to attempt to put off the evil day for as long as possible, fi rst by seeking adjournments of the trial and later, in the event of a conviction, by orders to review coupled with a stay, and the Magistrate

135

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAhad a wide discretion of exercise, and it was proper for him to consider the convenience of the court and the ordering of its busy affairs, and I am not satisfi ed in the circumstances of the present case that he erred in the exercise of that discretion. I emphasise again, however, that each case of this kind must depend on its circumstances. ..."

Per Fullagar J in Leishman v O'Connor [1991] VicSC 3; (1991) 13 MVR 499; MC 13/1991, 17 January 1991.

149. Breath test operator called as witness – no direct evidence given as to type of breath analysing instrument used – not challenged in cross-examination – whether open to infer type of instrument used.

On the hearing of a charge laid under s49(1)(f) of the Road Safety Act 1986 ('Act') a breath test operator gave evidence that: "the instrument I used was in proper working order and operated by me in accordance with Regulations 302, 303 and 304 of the Road Safety (Procedures) Regulations." There was no cross-examination as to the type of instrument used and whether it came within the defi nition of "breath analysing instrument" in s3(1) of the Act. Upon appealagainst conviction—

HELD: Appeal dismissed.If the operator's evidence did not directly prove that a breath analysing instrument as defi ned by s3(1) of the Act was used, it did so inferentially. Unless the evidence was challenged by cross-examination, it was unnecessary for the operator to identify or describe with any more particularity the instrument used. Accordingly, it was open to the magistrate to fi nd that the operator used a breath analysing instrument within s3(1) of the Act.

O'Bryan J:"... In my opinion, there is no substance or merit in this ground. The evidence of Sgt Holt, if it did not directly prove that he used a breathalyser as defi ned in s3 of the Act or an approved instrument for the analysis of breath, it did so inferentially. The learned Magistrate said in his reasons that "the prosecution have proved that the apparatus was a breath analysing instrument for the purpose of a proceeding under Part 5 of the Act."

... The learned Magistrate was entitled to infer that Sgt Holt, an authorised offi cer, used an approved breathalyser in working order at the conclusion of the evidence as no challenge was made in cross-examination to suggest that Holt had not used an approved breathalyser at the relevant time. It was enough, in my opinion, for Sgt Holt to say what he did about the Regulations and to tender them in evidence and in the absence of challenge being made to the type of instrument used, for the Magistrate to make the fi ndings which he did.

... Mr Billings invited me not to follow the decision in Smith v Van Maanen [1991] VicSC 313; (1991) 14 MVR upon the basis that it was not correctly decided. I decline the invitation, fi rstly, because the decision accords with my own view of the law and, secondly, because the facts and the law applicable in Smith are on all fours with the present appeal. In my opinion, the oral evidence of Sgt Holt admitted in the present case, if not admissible pursuant to s58(1) (as amended by Act No. 66 of 1990), was admissible at common law and together with the evidence of the respondent entitled the learned Magistrate to fi nd all the ingredients of the offence charged pursuant to s49(1)(f) proved beyond reasonable doubt. In my opinion, the questions in proceeding No. 6735 of 1991, save question 1 which was not pursued should be answered in the affi rmative. The three appeals will be dismissed and the appellant is ordered to pay the respondent's costs."

Per O'Bryan J in Reeves v Beaman MC 32/1991, 15 August 1991.

150. Breath test operator called as a witness – no direct evidence given as to type of breath analysing instrument used – whether open to fi nd that instrument used came within defi nition.

HELD: Where a breath test operator gave evidence that he was authorised under s55 of the Road Safety Act 1986 ('Act') to operate a breath analysing instrument and that he complied with the relevant Regulations when operating the instrument, the operator must be taken to be referring to the apparatus described in the defi nition of "breath analysing instrument" in s3(a) of the Act. Accordingly, it was open to a magistrate to fi nd that the informant had proved that the instrument used on the relevant occasion was a breath analysing instrument as defi ned in the Act. Reeves v Beaman MC 32/1991, affi rmed.

Brooking J (with whom Nathan and Byrne JJ agreed):" ... Whatever might be said of the effect of the evidence in Bogdanovski's case, I do not think that what His Honour decided on the facts of that case should stand in the way of the conclusion that on the evidence in the present case it was open to the magistrate, as the judge held, to fi nd that the informant had proved that the instrument was a breath analysing instrument as defi ned.

136

DRINK/DRIVING in VICTORIAMr Billings further put an argument that notwithstanding the decision of Tadgell J in Smith v Van Maanen [1991] VicSC 313; (1991) 14 MVR 365, 5 July, 1991, on a prosecution for this offence, the informant must prove not only that the instrument's reading showed a blood alcohol concentration in excess of the prescribed concentration, as the oral evidence here showed, but also that the instrument was a scientifi c instrument and so entitled to the benefi t of the so called presumption of accuracy. I do not accept this submission. It reads into the provision creating the offence something that is not there.

In my view the informant did show the instrument to be a breath analysing instrument as defi ned by evidence which the magistrate was at liberty to accept as suffi cient for a conviction. In these circumstances it is unnecessary to consider the effect of the amendment to s58 already mentioned and the effect in this case of sub-section (5) of that section and of the magistrate's willingness, had it been necessary, to receive the certifi cate in evidence. I would dismiss also the second appeal."

Per Brooking J (with whom Nathan and Byrne JJ agreed) in Reeves v Beaman [1992] VicSC 387; MC 41/1992, 31 August 1992.

151. Summons containing three informations – date and place of third offence omitted – incorrect reference to section in information – whether amendment appropriate – necessary ingredients of s49(1)(f) offence.

In a summons containing three informations, the informant failed to specify a time and place at which the third offence was alleged to have been committed. Further, in the description of the offence, an erroneous reference to s51(1) of the Road Safety Act 1986 was made.

HELD: 1. Although the expression of the information was clumsy, the document intended to allege that the third charge occurred at the same time and place as the second. Further a reference to s55(1) as part of the formulation of the terms of the information is unnecessary. In the circumstances, in order to ensure that justice was not defeated, it would have been appropriate for a magistrate pursuant to s50 of the Magistrates' Court Act 1989 to amend the summons to correct the defect or error.

2. The necessary ingredients of s49(1)(f) to be proved by the prosecution are:• that the defendant has been driving a motor car within the last three hours relevant to the time of the alleged offence; • that a preliminary breath test has been undergone pursuant to sub section (1) of s53; • that the defendant has been duly required to furnish and has furnished a sample of breath for analysis; • and that the result of analysis of the sample as recorded by the breath analysing instrument indicates that more than the prescribed concentration of alcohol was present in his or her blood. The furnishing of the sample has to be proved to be one for analysis by a breath analysing instrument, as defi ned, and, the requirements must be one to furnish under s55(1).

Tadgell J:"... It seems to me that the necessary ingredients of s49(1)(f) to be proved by the prosecution are these: that the defendant has been driving a motor car within the last three hours relevant to the time of the alleged offence; that a preliminary breath test has been undergone pursuant to sub section (1) of s53; that the defendant has been duly required to furnish and has furnished a sample of breath for analysis; and that the result of analysis of the sample as recorded by the breath analysing instrument indicates that more than the prescribed concentration of alcohol was present in his or her blood. The furnishing of the sample has to be proved to be one for analysis by a breath analysing instrument, as defi ned, and, of course, the requirements must be one to furnish under s55(1)."

Per Tadgell J in Smith v Van Maanen [1991] VicSC 313; (1991) 14 MVR 365; MC 35/1991, 5 July 1991.

152. Preliminary breath test conducted – result "indicated the possible presence of alcohol" or "may be over .05 per cent" – requisite opinion not affi rmatively proved – whether evidence of full breath test illegally obtained – whether such evidence inadmissible.

Whilst driving a motor car, L. collided with a light pole. When interviewed later he said he had consumed "heaps" of alcohol over a period of approx. 9 hours. L. underwent a preliminary breath test the result of which (as stated by S., a police offi cer, upon the subsequent hearing) "indicated the possible presence of alcohol" and "may be over .05 per cent." The result of the full breath test was .185 blood/alcohol concentration. At the hearing, the magistrate upheld a 'no case' submission and dismissed the charge on the basis that S. had not held the opinion as required by s55(1)(a) of the Road Safety Act 1986 ('Act') and accordingly, the evidence of the result of the full breath test was unlawfully obtained and thereby inadmissible. Upon appeal—

HELD: Appeal allowed. Dismissal set aside. Remitted for further hearing.

137

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAThe word "indicates" in s55(1)(a) of the Act means "suggests" and accordingly, it was not necessary that the preliminary breath test establish or prove positively that the driver's blood contained alcohol in excess of the prescribed concentration. In any event, whilst there may have been some doubt as to whether the requisite intention had been formed, there was no evidence to show that the police offi cer did not hold it. However, even if it were said that the requisite opinion was not held and the result of the breath test was illegally obtained, it was not open to the magistrate (having regard to Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54; 19 ALR 641; 52 ALJR 561 and the whole of the evidence) to exclude the result of the full breath test. Hunter v Pearce [1982] VicSC 164; MC 43/1982, Vic.Sup.Ct., 12 May 1982, followed.

Brooking JA (with whom Fullagar and Marks JJ agreed):"... I therefore turn to consider whether the learned Magistrate erred in excluding the evidence of the breath test at the police station. I am afraid it is plain that he did. It may be that there was evidence that the informant held the opinion referred to in paragraph (a) of s55(1) of the Road Safety Act 1986; I would adopt the view of Starke J that in that paragraph "indicates" means "suggests". (Hunter v Pearce [1982] VicSC 164, unreported, 12th May 1982.) Be that as it may, at worst from the informant's point of view there was a failure on her part to prove affi rmatively that she held the requisite opinion. It was not shown that she did not hold it. The evidence of the breath test at the police station was not shown to have been illegally obtained. At best there was doubt as to whether the opinion mentioned in paragraph (a) of s55(1) had been formed. And even if it could have been said that the evidence was in the present case illegally obtained, it was not open to the magistrate, directing himself in accordance with Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54; 19 ALR 641; 52 ALJR 561 and having regard to the whole of the evidence, to conclude that it was right to exclude the result of the police station breath test. ..."

Per Brooking JA in Stiles v Lamont [1991] VicSC 495; (1992) 15 MVR 557; MC 13/1992, 3 March 1992.

153. Operation of breath analysing instrument – requirements for proper operation – regulations and instruction manual – whether regulations contain a complete guide for proper operation – admissibility of instruction manual – whether failure to follow manual can make out defence – whether Court should permit expert witness to be cross-examined – limit of defence.

HELD: 1. The concept of the proper operation of a breath analysing instrument is not exhaustively defi ned by the Road Safety (Procedures) Regulations 1988. Whilst the Regulations may be complied with, the instrument may still not be properly operated and a defence under s49(4) of the Road Safety Act 1986 ('Act') may be made out by reference to errors in the operation of the instrument which do not involve a breach of the Regulations. Accordingly, a magistrate was not in error in receiving evidence concerning something which did not involve a breach of the Regulations namely, the operation of the control knob of the breath analysing instrument. Curmi v Matthews MC 04/1991, referred to.

2. Where an expert witness is accepted by the court as being qualifi ed to express an opinion, the court should allow the other party the opportunity of cross-examining the witness so as to test the opinion expressed.

3. The 'Breathalyzer' Instruction Manual is not admissible in the absence of authenticating evidence, i.e., evidence which establishes that the Manual is what it purports to be.

4. The statutory defence under s49(4) of the Act does not apply to a charge laid under s49(1)(b) of the Act. Where such a charge is laid, the onus remains on the prosecution to prove that a defendant drove a motor vehicle with a blood/alcohol level in excess of the prescribed concentration.

Smith J:"... Recent amendments to the legislation appear to me to confi rm the view that the proper operation of the breathalyzer as referred to in s49(4) is not limited to compliance with any regulations laid down for the operation of the breathalyzer.

... The effect of the provision is to require a defendant wishing to rely on defective operation outside the regulations to give notice to overcome the conclusiveness of the certifi cate (as was done in the present case).

It was also argued for the appellant that the operator's certifi cate set out in Schedule 6 of the Road Safety (Drivers) Act 1991, asserts only proper operation in accordance with the regulations and that this confi rms that the expression that "properly operated" in s49(4) relates only to the requirements of the regulations. In my view, however, that conclusion does not follow and there is a clear indication to the contrary in the amendment in the same legislation to s58(2) referred to above. For these and the foregoing reasons, question 2 should be answered in the negative.

138

DRINK/DRIVING in VICTORIA... Sgt. McCormack did not authenticate the Manual nor did the expert called by the defendant, Mr Young. In those circumstances the extracts were not strictly speaking admissible because the evidentiary facts needed to establish the relevance of the material – that the Manual was what it purported to be – had not been the subject of any evidence.

... Having been shown the alleged Manual, I can sympathise with the learned Magistrate's common-sense approach. The Manual, however, was strictly not admissible.

As to the hearsay argument, it appears to me that the relevance of the contents of the Manual turned not on the truth of what was asserted in the Manual but the fact that the Manual was a statement of instructions given by the manufacturer to those who were to operate the machine. In determining the proper operation of the machine it is relevant to know what instructions the manufacturer has given. Thus it would not seem to me to infringe the hearsay rule if tendered for that purpose.

... The learned Magistrate did not allow cross-examination because he ruled that the basis for the opinion of the witness as to the proper operation of the machine was not relevant and that cross-examination about the consequences of the operation of the machine with the control knob in the "off" position was not permitted. He further commented that his fi nding, that the witness was qualifi ed to give an opinion, prohibited cross-examination in relation to his expertise in the use of machines for analysis and commented that the prosecution would be hard pressed to fi nd a question that was relevant to ask of the witness. In light of those rulings the prosecutor did not question the defendant's expert.

The defendant's expert had said that he had formed the opinion, from his experience in the use of instruments of analysis, that turning the breathalyzer control knob to the off position during the course of an analysis was not a proper operation. Accepting, as I have indicated above, that the defence under s49(4) of the Act can be made out by reference to errors in the operation of the machine which do not involve breach of the regulations, it was argued that, where an expert asserts that a machine was not operated properly, it is open to the prosecution to cross-examine the expert with a view to demonstrating any fl aws in the basis of the opinion so expressed and its meaning. This is plainly correct. The learned Magistrate appears also to have not appreciated that there is a distinction between the question whether a witness is an expert and the question whether and to what extent his evidence should be accepted. He appears to have decided that his decision that the witness was an expert had the result that the expert's evidence of opinion had to be accepted and the basis of that opinion should not be tested. This is plainly not so. Accordingly the learned Magistrate also erred in his rulings on the prosecutor's right to cross- examine. ..."

Per Smith J in DPP v Doolan; DPP v Martell [1992] VicRp 64; [1992] 2 VR 249; (1992) 15 MVR 397; MC 14/1992, 18 February 1992.

154. Preliminary breath test device mispronounced – no evidence given as to whether device a prescribed one – no evidence that formal demand made or breathalyser available – informant not questioned on these points – whether Act not complied with – whether dismissal of charge justifi ed.

Upon the hearing of a charge under s49(1)(f) of the Road Safety Act 1985 ('Act'), the informant gave evidence that he intercepted W. driving a motor car and asked: "Are you prepared to undergo a preliminary breath test"? to which W. replied: "Yes". The informant said the device used was a 'Lion Alcometer' (instead of the prescribed 'Alcolmeter'). Also, the informant did not say that the device used was one prescribed by the Regulations. W. was conveyed to a police station and asked: "Are you prepared to furnish a sample of your breath for analysis?" to which W. replied: "Yes". The informant did not give evidence that a formal demand to undergo a breath test was made on W., nor that a breath analysing instrument was then and there available to perform the test. The Magistrate upheld a submission that the statutory requirements had not been complied with and dismissed the charge. Upon appeal—

HELD: Appeal upheld. Remitted to the Magistrate for further hearing.(1) The mispronunciation of the name of the preliminary breath test device was of such infi nitesimal inconsequence as to be immaterial and should have been ignored by the Magistrate.

(2) In view of W's consent to undergo the preliminary breath test and the fact that the informant was not cross -examined about the propriety of the test or the nature of the device used, there was no need for the informant to give evidence of the technical details of the device used. Browne v Dunn (1894) 6 Co Rep. 67, applied. Robertson v Smith [1996] VicSC 286; MC 33/1983, not followed.

(3) On a charge under s49(1)(f) of the Act, the need for a formal demand and a formal identifi cation of the breath analysing instrument are not ingredients required to be established by the prosecution. Accordingly, (and having regard to W's consent to undergo the full breath test), there was no need for the informant to give evidence that a formal demand was made and that a Breathalyser was then and there available to perform the test.

139

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIA Scott v Dunstone [1963] VicRp 77; [1963] VR 579, not followed.[See also Reeves v Beaman MC 32/1991. Ed.]

Nathan J:" ... The magistrate accepted contentions of law advanced by Mr Billings that there had been a threefold failure to comply with the statutory requirements to which I have just referred. Firstly, that the informant had not referred correctly to the preliminary breath analysing device and had referred to it as an 'Alcometer' – rather than an Alcolmeter. Secondly, that there had been a failure to give evidence or aver that the instrument was a prescribed preliminary breath analysing instrument, and fi nally, that there had been a failure to give evidence that the preliminary breath test instrument was one of those listed in Regulation 301.

... In my view the mispronunciation of the name of the preliminary breath analysing device by the informant is immaterial and an unedifying argument to have been advanced to a magistrate. The informant apparently omitted the consonant 'L' within the word 'Alcolmeter' and said "Alco Meter".

There are many words in the English language which become foreshortened or mispronounced by common usage, yet there is no doubt that the auditor of such words has a perfectly clear comprehension of what is being said. In this case the mispronunciation of the name of the device, occurring in the context of the machine being a preliminary breath analysing device is of such infi nitesimal inconsequence to be immaterial and utterly de minimis. To assent to an argument to the contrary would be to require a uniform pronunciation of technical, or indeed, common terms by all police members at all times. The absurdity of that proposition is revealed merely by being stated. And accordingly, insofar as the magistrate accepted a contention that the preliminary breath analysing instrument had not been defi ned or made known, he was in error.

... When I search the evidence to which I have referred I fi nd identifying the instrument by the mispronunciation of its trade name to be of such immateriality as to be ignored and one must take into account the circumstances in which the test was delivered. The question was, "Are you prepared to undergo a preliminary breath test?" and her reply being, "Yes." Was there any further need for the policeman to identify the technical details of the device by which the test was to be administered in view of the prior consent of the suspect to submit to such a test? I think not. I think the surrounding circumstances would spell out to any ordinary decent citizen that the policeman was performing the test in furtherance of his police duties. If there had been any contest by the suspect, Miss Walker in this case, as to the propriety or the convenience of the test being conducted then and there she would have been entitled to raise those matters and inferentially raise the propriety of the test and the instrument by which it was to be performed. None of that was done.

... Returning to Mr Billings' submission, before the magistrate he contended there was no evidence that at the time Miss Walker was asked at the police station to furnish a sample of her breath that a machine was then and there available on demand to perform the test. When examined in the light of reality this submission also falls to the ground. It would be mere surplusage or redundant for a policeman when asking a suspect to furnish a sample of her breath to be also obliged to say, "And I have here and now the required device to analyse that sample." If that were to be a requirement then, indeed, it would have found its place in the Act. There is no such requirement. Acts must be interpreted so as to give them potency and effect and although strictly interpreted in the case of criminal statutes, the section requiring the furnishing of a sample assumes, as indeed, was the assumption underlying the transaction on this night, that a machine was ready and there available to perform the test. That was the reason she had been taken to the police station and for no other. It is a nonsense then to import into the statute some requirement that the suspect be told that there is available a machine to perform the test which is being asked of her.

Mr Billings also contended that a demand in specifi c terms had to be made of Miss Walker and that no such peremptory command is to be found in the evidence. In my view, no requirement of a like character can be found in the statute. So far as the preliminary test is concerned she replied, "Yes," that she would have it and there would be little point then in making a demand of her. So far as the breath sample under s55 is concerned, the following exchange occurred: "Are you prepared to furnish a sample of your breath for analysis?" Reply: "Yes." There was no need in those circumstances to make a formal demand when consent to the giving of the sample for analysis had been forthcoming.

... In my view, the requirements of formal identifi cation and explicit demand contended for by Mr Billings do not fi nd their place in the statute or on the analysis by Tadgell J in Smith v Van Maanen [1991] VicSC 313; (1991) 14 MVR 365, and accordingly, I am of the view that the appeal should be upheld, the matter remitted to the Magistrates' Court for further adjudication in accordance with the tenor of this judgment."

Per Nathan J in DPP v Walker [1992] VicSC 201; MC 20/1992, 7 May 1992.

140

DRINK/DRIVING in VICTORIA155. PBT device mispronounced – effect of – no formal requirement for test made – no evidence that breathalyser set up ready for use – elements of s49(1)(f) offence – whether tests undergone "under section 55(1)" – meaning of "require" in s55(1).

HELD:1. It should not be submitted to a court that because a police offi cer describes a preliminary breath test device as a Lion Alcometer (instead of Lion Alcolmeter) there is no evidence that the device used was one prescribed by the Regulations.

2. Where a person who had been intercepted driving a motor car agreed to undergo a preliminary breath test and later a full breath test, a prima facie case established that both tests were undergone by the person "under section 55(1)" of the Road Safety Act 1986 ('Act').

3. The requirement to undergo a full breath test is not an element of an offence against s49(1)(f) of the Act. Accordingly, it is not necessary for the informant to give evidence that a formal demand was made and that the breath analysing instrument was then and there ready for use in the presence of the defendant. Scott v Dunstone [1963] VicRp 77; (1963) VR 579, distinguished. DPP v Walker [1992] VicSC 201; MC 20/1992, affi rmed.

Fullagar J (with whom Brooking and McDonald JJ agreed):" ... Before this Court, counsel for the defendant contended, fi rst, that because the policeman referred in his evidence to what can be phonetically reproduced as "Lion Alcometer", and not to what is prescribed in the regulation by the word "Lion Alcolmeter", there was no evidence that the breathalyser machine used was a prescribed instrument. (It is common ground that the regulations described Lion Alcolmeter as a prescribed instrument). The learned primary Judge categorised this submission as absurd, and I entirely agree. It should not have been submitted by counsel to the Magistrate, as it is patently untenable.

... In my opinion, contrary to another contention made below for the appellant but not persisted in here, a statement of the policeman that the preliminary result was "positive" was in all the surrounding circumstances prima facie evidence that in the policeman's opinion the test indicated that the defendant's blood contained alcohol in excess of the prescribed concentration of 0.05 per cent. In my opinion the evidence that "the defendant agreed to accompany me back to Carlton" in order to undergo a breathalyser test is, in all the circumstances, evidence of the fact that the defendant was willing to undergo a breathalyser test as well as willing to go to the police station for that purpose, and of the fact that a request or demand was unnecessary. Again I point out that the defendant was not charged with refusing to undergo a test when required to undergo one.

... In my opinion the above evidence in the surrounding circumstances was suffi cient to establish a prima facie case that both the preliminary test and the breathalyser test were furnished by the defendant "under section 55(1)", and the second contention made to this Court should be rejected.

... As to the argument about the tender, it is, in my opinion, clear from the evidence that the prosecutor did "tender" the certifi cate, in the sense that he attempted to hand it up with the intention that it become part of the evidence, but he was stopped by Counsel for the defendant who said that he had a submission later to make about that.

The submission was not ruled upon at the time it was made, and the matter was as it were left in abeyance still at the time when the prosecution closed its case. In those circumstances I do not think it lay in the mouth of the defendant's Counsel to say at the end of the trial that the document was not in evidence. If Counsel did raise that contention at the end of the trial, the proper course for the court to follow would then be to allow the prosecution to re-open its case and complete what should be classifi ed as an interrupted tender of the certifi cate. ...

Brooking J:" ... Section 55(1) does, it is true, begin with words, "If a person undergoes a preliminary breath test when required ... under s53 to do so", but again, while the making of a requirement under s53 may be a condition of the exercise of the power to make a requirement under s55(1), if the defendant has, as it were, dispensed with the requirement for the purposes of s53, the sample of breath furnished for analysis by a breath analysing instrument is still, in my view, furnished for analysis "under" s55(1).

... Here, the appellant chose to dispense with the performance of conditions upon which the arising of a duty to undergo a breathalyser test depended, and, on the assumption which I have made about the meaning of "require" near the outset of these reasons, that duty did not arise. But she was not charged with non-performance of that duty and, when the breath test was undergone with her consent, the sample was, in my view, furnished for analysis "under section 55(1)" within the

141

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAmeaning of s49(1)(f). I agree with the order proposed. ..."

Per Fullagar, Brooking and McDonald JJ in Walker v DPP [1993] VicSC 245; (1993) 17 MVR 194; MC 02/1994, 13 May 1993.

156. Defence that breathalyser not properly operated – waiting period during operation of instrument – no evidence that period observed by operator – whether defence made out – onus of proof.

Upon the hearing of a charge under s49(1)(f) of the Road Safety Act 1986 ('Act'), a magistrate was unable to fi nd whether a Breathalyser operator (1) omitted to give evidence that in operating the instrument he waited for a period of 90 seconds after fl ushing the instrument; or (2) had not, in fact, waited for the 90-second period. After hearing expert evidence called by the defence, the magistrate held that the prosecution had not shown that the instrument had been properly operated and dismissed the charge. Upon appeal—

HELD: Appeal allowed. Dismissal set aside. Remitted to the Magistrate for further hearing.1. In relation to the provisions of s49(4) of the Act, the prosecution is not required to establish that the breath analysing instrument was properly operated. It is incumbent on the defendant to prove that it was not properly operated.

2. As the magistrate was unable to fi nd whether (in relation to the 90-second waiting period) the operator omitted to say so or do so, it was not open to the magistrate to conclude that the instrument had not been properly operated and dismiss the charge.

Hampel J:" ... the point which I have to consider is a narrow one. It relates to the operation of s49(4) of the Road Safety Act 1986. That section provides that it is a defence to a charge such as the one which was heard by the Magistrate for the person charged to prove that the breath analysis instrument used was not on that occasion in proper working order or properly operated.

... It is clear from that brief analysis of the matter by reference to what occurred and what is set out in the affi davit that the Magistrate did not apply the correct onus of proof which is clearly enunciated in sub-s.4. It was not for the prosecution to establish that the instrument was properly operated, but for the defence to prove that it was not. The problem is compounded because the Magistrate's fact-fi nding that he could not say whether that was simply an omission to say so or an omission to do so (i.e. to wait for ninety seconds) means that there was no basis for the Magistrate to make any fi nding as to the correctness of the operation of the instrument.

It seems, therefore, that if upon a re-hearing of this matter it transpires that the operator simply omitted to say that he waited ninety seconds when he recited the procedure and gives evidence that he did, in fact, wait for ninety seconds, that would, of course, be a matter which the Magistrate could take into account and, unless some other diffi culty was demonstrated by the defence as to the operation of the instrument, no doubt the submission would fail. On the other hand, if it appeared that the operator had not, in fact, waited for ninety seconds, it will be for the Magistrate to decide whether that amounts to a defence under s49(4) after directing him or herself properly as to the onus of proof.

It follows that the correct approach to this appeal is to set aside the orders dismissing the information and awarding costs and to remit the matter back to the Magistrate for re hearing, and I do so."

Per Hampel J in DPP v Hart [1992] VicSC 115; (1992) 16 MVR 433; MC 21/1992, 25 March 1992.

157. Person taken to police station – underwent breath test – evidence not adduced that driver was requested to undergo test – whether communication of requirement an element of the offence – whether requirement may be inferred from the circumstances.

Following a driving incident involving B., a police offi cer conducted a preliminary breath test on B (which proved positive) who was then conveyed to a police station where he underwent a full breath test the result of which was in excess of the prescribed concentration. Upon the hearing of a charge under s49(1)(f) of the Road Safety Act 1986, the police offi cer was not cross-examined upon any of his evidence. At the end of the prosecution case a 'no case' submission was made on the basis that the prosecution had not proved that the police offi cer had formally requested B. to accompany him to the police station to undergo a breath test. The magistrate upheld the submission and dismissed the charge. Upon appeal—

HELD: Appeal allowed. Dismissal set aside. Remitted to the magistrate for further hearing.1. An element of the s49(1)(f) offence which must be proved is the communication to the person to be tested of the requirement to undergo a test by means of a breath analysing instrument and, where appropriate, the need to accompany a police offi cer to a police station for that purpose.

142

DRINK/DRIVING in VICTORIA2. Whilst in the present case there was no explicit evidence led by the prosecution of any specifi c communication of what was being required of the defendant, it could have been reasonably inferred from the circumstances that B. underwent the full breath test as a result of the police offi cer's requirement to do so having been communicated to him.

Coldrey J:" ... Accordingly an element of the s49(1)(f) offence which must be proved is the communication to the person to be tested of the requirement to undergo a test by means of a breath analysing instrument and, where appropriate, the need to accompany a police offi cer to a police station for that purpose.

It is to be noted that s55(1) is couched in terms of requiring which has the sense of ordering, commanding or directing rather than requesting. Moreover, there would appear to be no necessity, in terms of the section, for the requirement to undergo a breath test to be communicated both prior to, and after, arrival at a police station.

... In my view the only reasonable inference open on this evidence was that the respondent had undergone the breath test as a consequence of compliance with the procedures laid down in s55(1) of the Act. In particular, that the respondent had undergone the test at the Preston Police Station as a result of the requirement of the police offi cer that he do so, having been communicated to him.

... The test was whether the evidence as it stood was such as to prove that the respondent was given reasonably suffi cient information to know what was required of him and why.

With respect I regard his Honour's conclusion as correct. Indeed, an informal explanation of what is required of a putative defendant may well constitute a fairer approach to informing such a person of the legislative requirements. It is, however, essential, as Sholl J recognised in Scott v Dunstone [1963] VicRp 77; [1963] VR 579, that where self incriminating legislation is concerned, a defendant know precisely what is required of him or her. This point was made, and properly made, by the respondent who appeared before me on his own behalf. I turn to the core issue raised for determination by this appeal namely whether specifi c evidence of communication to the respondent of the requirements of s55(1) of the Act was necessary before an offence under s49(1)(f) could be proved.

It was conceded by Mr Just, on behalf of the appellant, that there was no explicit evidence led by the prosecution of any specifi c communication by the informant to the respondent of what was required pursuant to s55(1) of the Act. However, Mr Just submitted that compliance with such requirements could be inferred from the circumstantial evidence. ..."

Per Coldrey J in DPP v Blyth [1992] VicSC 180; (1992) 16 MVR 159; MC 22/1992, 28 April 1992.

158. Preliminary breath test conducted – opinion of informant formed – not expressed in same terms as statutory provision – copy certifi cates admitted into evidence – whether evidence of certifi cates invalid.

At the hearing of a charge under s49(1)(b) of the Road Safety Act 1986 ('Act') the informant gave evidence that as a result of conducting a preliminary breath test with B., he formed the opinion that B. had consumed intoxicating liquor. The informant did not say (as required by s55(1) of the Act) that he formed the opinion that B's blood contained alcohol in excess of the prescribed concentration. The Magistrate admitted into evidence two certifi cates of the result of full breath tests conducted on B., but upheld a 'no case' submission and dismissed the charge on the ground that the evidence of the certifi cates was invalid due to the informant's failure to give evidence whether he formed the opinion as required by s55(1) of the Act. Upon appeal—

HELD: Appeal allowed. Dismissal set aside. Remitted for further determination.(1) If there was an illegality in the way the result of the Breathalyser test was obtained, the magistrate was required to determine whether the evidence so obtained should be excluded under the Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54; 19 ALR 641; 52 ALJR 561 discretion. Stiles v Lamont [1991] VicSC 495; (1992) 15 MVR 557; MC 13/1992, applied.

(2) As the magistrate failed to exercise such a discretion he was in error in ruling that the evidence of the certifi cates was invalid and dismissing the charge.

Smith J:" ... Section 55(1)(a) Road Safety Act 1986 (the Act) authorises a member of the police force to require a person to furnish a sample of breath for analysis by a breath analysing instrument where a person has undergone a preliminary breath test when required to do so by a member of the police force and "the (preliminary breath) test in the opinion of the member ... in whose presence it is made indicates that the person's blood contains alcohol in excess of the prescribed concentration of alcohol;".

The sub-section has since been amended to delete the words "in excess of ... alcohol". Another relevant

143

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAprovision is section 58 of the Act. It contains evidentiary provisions relating to the admissibility of evidence about readings taken by breath analysing instruments and the conclusiveness of certifi cates unless notice is given.

... In his reasons, the learned Magistrate did not in terms say that the evidence was inadmissible, but said that it and the steps taken in obtaining the breathalyser test result were "invalid". It seems to me that the learned Magistrate was accepting that the evidence was admissible but took the view that he could not act upon it because the failure to comply with the requirements of section 55 rendered it "invalid". In reaching that conclusion it appears to me that the learned magistrate erred. Assuming there was an illegality in obtaining the breathalyser test result, the task for the Magistrate was to determine whether the evidence so obtained should be excluded by him under the Bunning v Cross discretion ([1978] HCA 22; (1978) 141 CLR 54; 19 ALR 641; 52 ALJR 561; see also Stiles v Lamont [1991] VicSC 495; (1992) 15 MVR 557; Full Court Supreme Court 3.3.1992). If it was admissible then he had to consider it. It appears to me that the learned Magistrate applied the wrong test. A problem for the appellant, however, is that the relevant question of law in the order proceeds on the incorrect assumption that the learned Magistrate ruled the evidence of the breathalyser certifi cate to be inadmissible where evidence direct or indirect is not given of the formation of the opinion referred to in section 55.

... I have come to the conclusion that the learned magistrate was in error in concluding that the evidence of the certifi cate was invalid. It was not invalidated. A question arose as to its admissibility and to rule on that question the learned magistrate had to apply the Bunning v Cross discretion. This he did not do. ..."

Per Smith J in DPP v Boer [1992] VicSC 245; (1992) 15 MVR 11; MC 24/1992, 3 June 1992.

159. Breath test conducted – result obtained – person left police station – testing of breathalyser not completed – certifi cate delivered 2.5 days later – whether delivered "as soon as practicable" – person not informed of right to a second test – whether such failure affects admissibility of certifi cate.

HELD:1. After conducting a full breath test, a Breathalyser Operator is required to test the instrument to ascertain that it is in proper working order. When this test has been conducted, the operator is required to sign and deliver a certifi cate of breath analysis to the person who has undergone the breath test and inform the person of a right to a second test.

2. Where a person (having undergone a breath test) left the police station before the operator had had the opportunity to fulfi l the above requirements, a magistrate was not in error in:

(i) concluding that the certifi cate was delivered "as soon as practicable" (notwithstanding its delivery approximately 2.5 days after the test);(ii) concluding that because of his conduct in leaving the police station, the person could not rely on the operator's failure to inform the person of a right to a second test;(iii) admitting the certifi cate of analysis into evidence; and (iv) fi nding the charge under s49(1) of the Road Safety Act 1986 proved.

Hayne J:" ... The Magistrate ruled that the certifi cate had been delivered as soon as practicable and that the delay in delivering it had been caused by the appellant "bolting after hearing of his reading" when the police had asked him to remain for the purpose of receiving his certifi cate. The appellant was convicted, fi ned, his driver licence cancelled and he was disqualifi ed from obtaining a driver licence for 30 months.

... The appellant contended that the certifi cate could have and should have been delivered to him before he left the Melton Police Station and that the failure to do that, meant that no evidence could be given, whether orally or by certifi cate, of the breath analysis that had been made. The respondent contended that the certifi cate could not have been delivered before the appellant left the police station because the operator had not by that time "ascertained" that the breathalyser is in proper working order by testing it with a standard alcohol solution" (Reg 302(3)(a)). He contended that it was open to the Magistrate to conclude that the certifi cate had been delivered as soon as practicable. The respondent contended further that even if there had been a failure to deliver the certifi cate as soon as practicable that failure would only preclude the prosecution from relying upon the certifi cate, it would not preclude the prosecution from relying, as it did in this case, upon oral evidence given by the breathalyser operator.

... The debate between the parties on the appeal centred upon whether the certifi cate should have been given at the police station. Little or no attention was directed to whether the certifi cate was thereafter given to the appellant as soon as was practicable. In my view that is a question of fact and degree. In the peculiar facts of this case I consider it was open to the Magistrate to conclude, as he

144

DRINK/DRIVING in VICTORIAdid, that the certifi cate was delivered as soon as practicable. Given the time at which the certifi cate was delivered, it would have been pointless to inform the appellant of the right to take a second test. And the appellant has, by his conduct disabled the respondent from complying with the provision. That being so the appellant cannot now rely on this failure. It was therefore in my view open to the Magistrate to reach the conclusions that he did. In the circumstances it is not necessary for me to express any concluded view upon the respondent's argument that a failure to comply with s55(4)(a) would go only to the admissibility of the certifi cate in evidence. In my view it was open to the Magistrate to conclude that there was no failing to comply with s55(4)(a). In my opinion the appeal should be dismissed."

Per Hayne J in Dickson v Kimber [1992] VicSC 296; (1992) 16 MVR 164; MC 34/1992, 8 July 1992.

160. Preliminary breath test – not conducted at scene but at police station – whether compliance with s53 an ingredient of offence – whether non-compliance involves exercise of court's discretion – whether test may be conducted other than at place of driving – whether requirement must be reasonable – error in place of offence in information – variance – capable of amendment.

W., was found driving by a police offi cer who did not have a prescribed breath test device in her possession. An attempt was made, unsuccessfully, to have a device brought to the scene. W. was given a choice as to whether or not he wished to accompany the police offi cer to a nearby Police Station. W. agreed to accompany the police offi cer, underwent a preliminary breath test which proved positive and later a full breath test at another Police Station; as a result a charge under s49(1)(f) of the Road Safety Act 1986 ('Act') was laid. On the hearing, a magistrate dismissed the charge on the basis that s53 of the Act had not been complied with in that the preliminary breath test was not taken in the general area where W. was found driving. Upon appeal—

HELD: Appeal allowed. Dismissal set aside. Remitted for further hearing.1. One of the elements of an offence under s49(1)(f) of the Act which must be proved by the prosecution as a necessary pre-condition for a conviction is that a person has undergone a preliminary breath test in accordance with the provisions of s53 of the Act. Non-compliance with s53 does not involve the exercise of the court's discretion as to whether evidence of the full breath test is admissible or not. Smith v Van Maanen [1991] VicSC 313; (1991) 14 MVR 365; MC 35/1991, applied.

2. Section 53 of the Act does not authorise a police offi cer to detain a driver unnecessarily or compel a driver to go to some other place to undergo a preliminary breath test. The requirement under s53 should be a reasonable one. However, there is no basis for reading into s53 that the preliminary breath test must be carried out in the general area where the person was found driving or where the requirement was made. Accordingly, as there was no evidence that the requirement made of W. was unreasonable or beyond power, the magistrate was in error in dismissing the charge.

3. The insertion in the information by the police informant of the place of driving rather than the place of the fi nal test was a mere variance capable of amendment.

4. Observations as to the effect which certain circumstances may have on a charge of refusing to undergo a preliminary breath test under s49(1)(c) of the Act.

Ormiston J:" ... It is apparent from the juxtaposition of these provisions that compliance with both s53 and s55(1) is a necessary pre-condition for a conviction under s49(1)(f) in that the prosecution must have validly required each of the breath tests permitted under s53(1) or (2) and under s55(1).

... Consequently compliance with these sub-sections is not merely a question as to the admissibility of the evidence of the tests which may be rejected on a discretionary basis if they have been illegally required: it is an essential part of the case which the prosecution must make out. By s49(1)(f) the fi rst element of the offence to be established is whether the accused has furnished a sample of breath "under" s55(1).

... As to the place where the test should be carried out, then, subject to what appears later in this judgment, I can see no basis for reading in a term that the test must be carried out "in the general area" where the defendant was found driving or, for that matter, where the requirement was made. If a driver is willing to go elsewhere to undergo the test, whether to a police station or some other place, the fact that the test is undergone some distance away from the place of driving or from the place where the offi cer made the requirement is irrelevant. If, however, the driver is directed, expressly or by implication, to travel some distance from the place where the requirement is made in order to undergo the test, then that direction will go beyond power because it would be unreasonable and it is not comprehended by the power in s53 to require that a driver undergo a breath test.

... The fi rst question, as amended, should therefore be answered: "No, it is not necessary that a preliminary breath test under s53 should be taken either in the area where the defendant was found

145

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAdriving or in the area where a requirement is made under the section."

The second question should be answered along similar lines, as follows: "Yes, a preliminary breath test under s53 may be taken at another place, including a police station, if the person tested was not directed, explicitly or implicitly, by a police or other offi cer to go to that place for the purpose of undergoing the test." The answer to that question would also result in the appeal being allowed, as the Magistrate dismissed the charge on the ground that it was immaterial whether the respondent had accompanied the police offi cer voluntarily or otherwise to the St. Kilda Police Station.

... on the evidence before the Magistrates' Court as revealed by the affi davits, no requirement beyond power was made by Constable West, for there was no demand, wrongful or otherwise, that the test be undergone at a later time, whether in Mitford Street or at the St. Kilda Police Station. The respondent chose to wait while the police offi cer sought to obtain a testing device, and the evidence is unclear as to how long that took, and he also chose to take the test later at the police station. In any event, on these facts, the requirement was not unreasonable although the test took place about one and a quarter hours later. What the evidence may be when the matter is re-heard is not for me to speculate upon, but no invalidity has been shown as to the requirement in this case. The dismissal of the charge cannot be justifi ed on this alternative basis.

... there was a simple, and understandable, error in the present case in that the informant chose the place of driving rather than the place of the fi nal test. The original information was not defective. There was a mere variance. That variance was and is capable of correction pursuant to s50 of the Magistrates' Court Act 1989 and the point is wholly without merit: cf. Warner v Sunnybrook Ice Cream Pty Ltd [1968] VicRp 11; [1968] VR 102; (1967) 15 LGRA 135.

ConclusionAs this information must be remitted for re-hearing in the Magistrates' Court it is desirable that I summarise my conclusions, although what follows must be read subject to the reasons appearing above. For the purposes of a prosecution under s49(1)(f) the informant must establish that a preliminary breath test was validly conducted pursuant to s53. The duty of a driver required to undergo a preliminary breath test under that section is limited to the obligation to undergo the test. The section gives a police or other offi cer the power to require such a test but does not give that offi cer power to detain a driver for any longer than is necessary to carry out the test. Ordinarily the offi cer ought to have available the necessary device to enable the driver to fulfi l his or her obligation. The section gives no general or indefi nite power of detention, nor any power to require the driver to go in custody or quasi-custody to a police station or any other place for the purpose of conducting the test. On the other hand the convenience of an offi cer or driver may dictate that the test not be carried out instantaneously or at the place where the requirement is made.

For the reasons already stated, the only implication which needs to be read into s53 is that the requirement should be reasonable. If the driver agrees to wait or agrees to go elsewhere, such as to a police station, for the purpose of undergoing the test, that does not invalidate the test. If he refuses to do so then, in the ordinary case, any requirement which would have the effect of obliging the driver to wait more than a few minutes or to travel any signifi cant distance to undergo the test would be unreasonable and a refusal to undergo the test in those circumstances would not be an offence under s49(1)(c). But in this case the evidence before the Magistrates' Court did not establish that any unreasonable requirement had been made or that the respondent was compelled to go to the St. Kilda Police Station. The limits placed by the Magistrate as to the area in which the test must be conducted cannot be implied into the section and he erred in requiring the test to be carried out in the "general area" where the driving occurred. The result is that this appeal must be allowed, the Magistrate's order dismissing the charge must be set aside and the information remitted for hearing at the Magistrates' Court at Prahran in accordance with these reasons and otherwise according law."

Per Ormiston J in DPP v Webb [1993] VicRp 82; [1993] 2 VR 403; (1992) 16 MVR 367; MC 40/1992, 18 November 1992.

161. Preliminary breath test – device used – no express statement that a prescribed device used – whether open to conclude that prescribed device used – evidence of analytical chemist as to inherent error factor in breathalyzer – whether such evidence relevant to defence under s49(4).

HELD:1. Where a police offi cer gave evidence that as a result of a request a driver underwent a preliminary breath test which indicated a positive reading (but did not expressly state that the device used was a prescribed device) it was open to the Magistrate to take that evidence as meaning that a preliminary breath test had been conducted under and in accordance with s53 of the Road Safety Act 1986 ('Act').

2. Evidence given by an analytical chemist (on a charge under s49(1)(f) of the Act) to the effect that a breath

146

DRINK/DRIVING in VICTORIAanalysing instrument has an inherent error or margin for error cannot be used to show that a particular instrument was not in proper working order or properly operated on a particular occasion.

Hayne J:" ... In my opinion it was open to the Court below to conclude on the evidence before it that the device used for the purpose of the preliminary breath test carried out on the appellant was a prescribed device. The informant said in evidence that he had told the appellant that he required him to undergo "a Preliminary Breath Test" and that subsequently the appellant "underwent a Preliminary Breath Test which indicated a positive reading". This evidence was not challenged or explored in cross-examination. In my view it was open to the Magistrate to take that evidence as meaning that a preliminary breath test had been required and conducted in the manner required by the Road Safety Act. As was pointed out in argument before me, s53 is the only source of power whether in the Road Safety Act or otherwise to require a driver to undergo a preliminary breath test. Notwithstanding the references in the reasons of the Magistrate to compliance with the regulations, it was common ground before me that the only regulation which touches the subject matter of preliminary breath tests is that regulation which prescribes four devices for use for the purpose of such tests.

... when the informant spoke of requiring a preliminary breath test and spoke of conducting a preliminary breath test I consider that it was open to the Magistrate to conclude that by that evidence he meant that he had conducted a preliminary breath test under and in accordance with s53. That is, it was open to the Magistrate to conclude that the informant was giving evidence using the expression preliminary breath test as a term of art. (See Reeves v Beaman) ([1992] VicSC 387 Full Court, 31 August 1992)). Of course the burden of proving the essential elements of the charge rests upon the prosecution and it may well be thought desirable that a point of this kind is dealt with expressly and directly in evidence but equally I do not think that some unduly narrow construction should be put upon the evidence given by the informant. In my view it was open to the Magistrate to conclude that the "Preliminary Breath Test" of which he spoke was a test of a kind permitted by the legislation.

... In my view, evidence of the kind given by the analytical chemist to the effect that the machine has an inherent error or margin for error, could not be used (as the appellant sought to say it could) to show that a particular machine was not in proper working order or properly operated on a particular occasion. A statement of the general limitations of accuracy of the type of machine in question says nothing about whether a particular example of that machine was operated properly or was in proper working order on a particular occasion. In my opinion even if the Magistrate did not consider the possible use of the evidence in this way, the evidence could not have led the Magistrate to any different result. Accordingly, grounds 3 and 4 fail. The appellant made no separate submissions in support of ground 5 and I therefore say no more about it. For these reasons I am of the opinion that the appeal should be dismissed."

Per Hayne J in Chisholm v Mathews [1992] VicSC 432; (1992) 16 MVR 447; MC 42/1992, 21 September 1992.

162. Preliminary breath test not conducted at place of driving – conducted at police station – whether fatal to charge – no evidence of requisite opinion formed or that driver required to furnish sample of breath – whether fatal to charge – whether open to Court to exclude evidence improperly obtained.

P. was intercepted driving a motor vehicle. He was taken to a police station where a preliminary breath test was administered, followed by a full breath test which resulted in a BAC of .220%. At the hearing of a charge laid under s49(1)(f) of the Road Safety Act 1986 ('Act'), the magistrate found that there was no evidence that the police informant had formed the requisite opinion under s55(1) of the Act or that he required the driver to furnish a sample of breath for analysis. The magistrate upheld a 'no case' submission and dismissed the charge on the basis that the preliminary breath test had not been administered at the place of driving and that in the exercise of his discretion and as a matter of fairness, the evidence of the result of the breath test should be excluded in view of the fi nding that relevant requirements of s55(1) of the Act had not been satisfi ed. Upon appeal—

HELD: Appeal dismissed.(1) The magistrate was in error in ruling that the preliminary breath test had to be administered at the place of driving. DPP v Webb [1993] VicRp 82; [1993] 2 VR 403; (1992) 16 MVR 367; MC 40/1992, followed.

(2) In view of the fi nding that not all of the relevant requirements of s55(1) of the Act had been satisfi ed, it was open to the magistrate in the exercise of his discretion to exclude the evidence of the breath test and dismiss the charge.

Smith J:" ... that decision (Smith v Van Maanen [1991] VicSC 313; (1991) 14 MVR 365 per Tadgell J), however, also considered the issue raised in the fi rst ground of appeal – whether a preliminary breath test must be administered at or near the place of driving. The conclusion reached by His Honour was

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PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAthat while a limitation of reasonableness should be implied in s53 in relation to the requirement, the statute did not require that the preliminary breath test be administered in the vicinity of the place of the driving in all cases.

... In light of His Honour's analysis I must conclude that the learned Magistrate was in error in his ruling that a preliminary breath test had to be administered at or near the place of driving.

... It was, therefore, open to the learned Magistrate to fi nd that the requirements of s55(1) of the Act had not been satisfi ed. Such a fi nding would support the decision by him to dismiss the information applying the fi rst alternative basis. The s53 procedure empowers the police to require people to submit to a preliminary breath test in circumstances where they may not have broken the law. This is a departure from the protection the law usually provides to citizens. But s53 does not authorise the police to arrest a driver or require a person to travel to a testing station. It is signifi cant in my view that Parliament required, before the further requirement of a breath test could be made, that the offi cer who did the preliminary test must form the requisite opinion and make the request for the breath test. They are not mere technicalities in my view but are intended to provide safeguards for the proper administration of the law.

The other basis for the learned Magistrate's decision was the exclusion of the evidence of the breathalyser reading. The appellant argued that the Magistrate purported to exercise a discretion to exclude evidence on the grounds that it would be unfair to admit it against the defendant and that such a discretion applied only to evidence of confessions (R v Lee [1950] HCA 25; (1950) 82 CLR 133; [1950] ALR 517; Cleland v R [1982] HCA 67; (1982) 151 CLR 1; 43 ALR 619; (1983) 57 ALJR 15). The learned Magistrate did not, however, in my view limit himself to that unfairness discretion. He referred in broad terms to his discretionary powers which included the power to exclude evidence obtained illegally or improperly. It was open to the learned Magistrate to exercise that discretion on the basis that the requirements of s55(1)(a) had not been satisfi ed and therefore, whether it was open to him to exclude the evidence on the grounds of unfairness, it was open to him to exclude the evidence in the manner in which he purported to do so. While the appellant has succeeded on the fi rst question the decision of the Magistrate should in any event be upheld because I am satisfi ed that he found, and it was open to him to fi nd, that not all the relevant requirements of s55(1) of the Act had been satisfi ed and, therefore, the information had to be dismissed. He also ruled, and it was open to him to do so, that the evidence of the breathalyser should be excluded in the exercise of his discretion. With that evidence excluded, the informant's case had to fail. For the foregoing reasons, the appeal should therefore be dismissed."

Per Smith J in DPP v Paul (1992) 16 MVR 435; MC 02/1993, 18 December 1992.

163. Refusal to undergo preliminary breath test – requirement for not contemporaneous with driving – time lapse of 90 minutes – whether driver must remain in company of police until test administered.

HELD:1. There is no requirement that a motorist found driving or in charge of a motor vehicle must be forthwith intercepted and remain in the company of the police offi cer until the preliminary breath test is completed. Mills v Meeking and Anor [1990] HCA 6; (1990) 169 CLR 214; (1990) 91 ALR 16; (1990) 64 ALJR 190; (1990) 45 A Crim R 373; (1990) 10 MVR 257, referred to. DPP v Webb [1993] VicRp 82; [1993] 2 VR 403; (1992) 16 MVR 367; MC 40/1992, applied.

2. Where a motorist failed to stop when fl agged down by a police offi cer and refused, when intercepted 90 minutes later to undergo a preliminary breath test, a magistrate was in error in dismissing a charge under s49(1)(c) of the Road Safety Act ('Act') 1986 on the basis that s53(1)(a) of the Act only applies where a motorist is intercepted on being found driving or in charge of a motor vehicle and remains in the company of the police offi cer until the preliminary breath test is completed.

Ashley J:" ... Section 53(1)(a) is expressed in the present tense because it does require a member of the police force to fi nd a person driving or in charge of a motor vehicle. The need for present and personal observation found in s53(1)(a) and (2) is to be contrasted with the factual situation contemplated by s53(1)(c). There, belief as to a past occurrence triggers the right of a police offi cer to require a preliminary breath test to be undergone. Section 53(1)(a) is concerned not to establish the time when a test may be required in consequence of a presently observed fact, but rather to establish the condition whose satisfaction grounds the right to require a test.

It follows from what I have said in the preceding paragraph that, once the condition is satisfi ed, a police offi cer is not authorized by s53(1)(a) only to require a test to be undergone if the motorist is forthwith intercepted; nor, a fortiori, only to require a test so long as the motorist thereafter remains in the company of the police offi cer. Consistently with what I have said thus far, s53(1)(a) will only apply, where a motorist is not intercepted at the time of his being found driving or in charge of the

148

DRINK/DRIVING in VICTORIAmotor vehicle, in the event that a member of the police force observes the motorist driving or in charge of the vehicle. It will not be enough, in my opinion, that the police offi cer holds a belief as to who was driving the motor vehicle at the earlier time. Such a belief might be founded, for example, upon no more than the registration certifi cate applicable to a motor vehicle whose number plate details were observed. The judgment of Southwell J in Peebles v Hotchin [1988] VicSC 552; [1988] 8 MVR 147 is relevant in this context.

... Section 49(1)(f) and (6) have been amended and s48(1A) has been introduced since the decision in Mills. The consequence is that a very limited defence to a charge under s49(1)(f) is now available in respect of after-imbibed alcohol. The defence must surely be more diffi cult to maintain than a defence under s48(1)(a). Nonetheless, it removes the risk, if the construction of s53(1)(a) preferred by Dawson and McHugh JJ in Mills is correct, that a person observed driving who thereafter innocently consumes alcohol prior to undergoing breath analysis will thereafter necessarily be convicted of an offence against s49(1)(f) if the test proves positive.

... In the result, the construction of s53(1)(a) contended for by the respondent should be rejected. There is no requirement that a motorist found driving or in charge of a motor vehicle must be forthwith intercepted and remain in the company of the police offi cer until a required test is conducted. A motorist found driving or in charge of a motor vehicle is obliged to undergo preliminary breath testing within three hours of last driving or being in charge of the vehicle, if required to do so. ..."

Per Ashley J in DPP v Phillips [1992] VicSC 687; MC 03/1993, 23 December 1992.

164. Preliminary breath test administered – positive result – driver directed to go to police station – not informed of reason – whether failure to inform fatal to charge – no evidence that operator authorized at time of test – certifi cate of authority not produced – whether fatal to charge – omission by operator to state that two regulatory requirements were observed – whether fatal to charge.

HELD:(1) By virtue of s55(1) of the Road Safety Act 1986 ('Act') a police offi cer is obliged to inform a person found driving who has undergone a preliminary breath test why that person is being required to attend a police station. Where there is direct evidence of a failure to comply with s55(1), it would be open to a court to dismiss the charge. Where, after administering a preliminary breath test, a police offi cer told a driver to "leave your car and come with me to the Ballarat Police Station," it was not open to a magistrate to conclude that there had been relevant compliance with s55(1) of the Act. Robertson v Smith [1983] VicSC 283; MC 33/1983 and Matosic v Hamilton [1991] VicSC 41; (1991) 13 MVR 171; MC 08/1991, explained. DPP v Walker [1992] VicSC 201; MC 20/1992, doubted.

(2) Where a Breathalyser operator stated that at the time of giving evidence he was authorised to operate a breath analysing instrument but did not produce or tender a certifi cate of authority pursuant to s58(3) of the Act, it was open to the magistrate to infer that the operator was relevantly authorised at the critical time. Robertson v Smith [1983] VicSC 283; MC 33/1983, distinguished.

(3) Where a Breathalyser operator omitted to state in evidence that in conducting a breath test he waited at least 15 minutes before commencing the test or that he provided for the person's use a fresh mouthpiece from a sealed container, it was open to the magistrate to be satisfi ed that having regard to all the circumstances, the operator complied with the requirements of the relevant Regulations.

Ashley J:" ... A preliminary breath test was conducted and it proved positive. The appellant was required by the informant to accompany him to the Ballarat police station. Nothing was specifi cally said as to why the informant was imposing this requirement upon the appellant. Later, at the police station, the appellant was required to undergo breath analysis. The question, then, is whether the informant's failure to specify the reason why he required the appellant to attend the police station fatally fl awed the prosecution case. Or, more correctly in terms of the question of law that has been raised, whether it was open to the Magistrate to fi nd on all the evidence that there had been a relevant compliance with s55(1).

... There is a point to the obligation imposed by s55(1) upon a member of the police force to articulate the purpose for which he requires a member of the public to accompany him to a police station or other place. The member of the public is effectively being deprived of his or her liberty, albeit in a transitory way. In these circumstances the legislature has required the police offi cer to convey to a member of the public the purpose for which the requirement to attend the police station is being imposed.

... But the fact is that the prosecution was required by s55(1) to prove that certain information had

149

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAbeen provided to the appellant. The evidence did not do so. No favourable inference was available.

... Care was required of the informant to see that s55(1) was complied with. That is the remedy for the problem which lack of care created; not judicial legislation.

... When Cole gave evidence that he was authorised to operate a breath analysing instrument he could only have been saying that he was authorised for the purposes of s55. That authority necessarily derived from the Chief Commissioner or a Deputy Commissioner. In the absence of cross examination I see no reason why the Magistrate should have considered the proof defi cient. It was submitted by counsel for the appellant that the evidence of authority was actually of hearsay character, and was therefore valueless. It appears likely that authorization was in writing (see the discussion at T.27-28). The observations of Hogarth J in Samuels v Leech [1970] SASR 60 at p67 concerning the usefulness of oral evidence of written authorization which is admitted without objection are in point. The Magistrate was not bound, in the absence of objection (there was none – as counsel for the appellant conceded) to treat Cole's evidence on the matter as entirely lacking weight.

... In my opinion the facts in evidence in the present case entitled the Magistrate to draw an inference that Cole was relevantly authorized at the critical time. The Magistrate had evidence of present authority, a past course of study and previously conducted tests. He was entitled to infer that Cole had not commenced testing until the course of study was complete, and that he would not have been undertaking tests had not study been successfully concluded and authority granted.

... Cole's evidence that (in substance) he had operated the instrument properly, together with his description of how he had gone about the task of setting up, testing and operating the instrument in my opinion permitted a Magistrate to infer compliance with regulation 304. His failure to mention use of a fresh mouthpiece during cross-examination had to be viewed contextually. I should mention, next, the third sub-part of the fi rst question of law. It enquires whether it was open to the Magistrate on the evidence to fi nd that the breath analysis instrument was operated properly. As I said earlier, this question interrelates with the question pertaining to compliance with regulations 303 and 304. To that extent it must fail.

A further matter was raised. It was submitted that the Magistrate had not read or referred to a breathalyser instruction manual tendered through Crewdson, the expert witness called for the appellant. The manual explained Cole's admission that he had not followed recommended procedure in setting up the instrument. It was said for the appellant that the Magistrate should have read and turned his mind to the manual. There is nothing to the point. Had the Magistrate read the document it could have done no more than reinforce Cole's concession. Having regard to the entirety of Cole's evidence, and to Crewdson's evidence overall, it remained a matter for the Magistrate whether he was satisfi ed that the instrument had been properly operated notwithstanding a variation from recommended set-up procedures. The evidence entitled him to be so satisfi ed, particularly having regard to test results that were in fact obtained. In the end result, the appellant succeeds only on the issue raised by the fi rst sub-part of the fi rst question of law. There is no basis for remitting the matter for re-hearing. The appeal should be allowed, the Magistrate's order convicting the appellant be set aside and in lieu thereof it be ordered that the information be dismissed."

Per Ashley J in Dalzotto v Lowell [1992] VicSC 674; MC 06/1993, 18 December 1992.

165. Preliminary breath test – two motor vehicles touched slightly – no damage – "accident" – meaning of – whether vehicles involved in an accident – whether driver required to undergo preliminary breath test.

Section 53(1) of the Road Safety Act 1986 ('Act') permits a police offi cer to require a person to undergo a preliminary breath test when the person has driven a motor vehicle "when it was involved in an accident". On a charge laid in relation to s53(l) of the Act, a magistrate held that an "accident" occurred and the charge proved when (without causing damage) the bumpers of two vehicles touched slightly with some pressure felt by one driver. On appeal—

HELD: Appeal allowed. Conviction set aside. Charge dismissed.For the purposes of s53(1) of the Act, an "accident" occurs when an untoward occurrence causes damage or some other adverse physical result. In the present case, whilst the touching of the vehicles may have been an untoward event, in the absence of damage, there was no "accident" within s53(l) of the Act. Accordingly, the police offi cer was not empowered to require the driver to undergo a preliminary breath test and the magistrate was in error in fi nding the charge proved.

Hayne J:" ... The Magistrate who heard the charges dismissed all of them except the charge of refusing to undergo a preliminary breath test. He found as a fact that the bumpers of each vehicle touched slightly, with some pressure having been felt by Colwell, but he accepted that there was no damage

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DRINK/DRIVING in VICTORIAas a result of what had happened between the two vehicles. He held that there had been an accident and that the other elements of the charge of refusing a preliminary breath test had been made out. Accordingly Colwell was convicted. He now appeals, contending that a police offi cer may not require a person to undergo a preliminary breath test in accordance with s53(l)(c) unless there has in fact been an accident and contending that what occurred in this case was not "an accident".

... Debate on the hearing of the appeal centred upon the question of whether the event that occurred amounted to an accident. "Accident" is not defi ned in the Act. It is used as an ordinary English word but it must take its colour from its context. Thus although counsel mentioned judicial expositions of the word's meaning in contexts as diverse as workers' compensation legislation, bills of lading and insurance policies, they focused attention, rightly if I may say so, upon its use in Part 5 of the Road Safety Act 1986 and in generally similar breath testing legislation in the United Kingdom and in South Australia.

... At times it seemed to be assumed in argument that what had occurred in this case was properly described as a "collision". "Collision" is defi ned in the Oxford English Dictionary (2nd Ed.) as:

"The action of colliding or forcibly striking or dashing together; violent encounter of a moving body with another: in recent use esp. of railway trains, ships, motor vehicles, aircraft etc." (Emphasis added)

Here there was no forcible striking or dashing together and no violent encounter. There was (in that sense at least) no "collision". Further, where, as here, no damage was done to the vehicles and there was no other "adverse physical result" I consider that as a matter of ordinary English usage it cannot be said that an "accident" has occurred. There may be said to have been an "untoward event" but in the absence of damage I do not consider that the event would be described in ordinary parlance as an "accident". It follows that I am of the opinion that the facts found by the Magistrate did not permit a fi nding that the event constituted an "accident". ..."

Per Hayne J in Colwell v Mason [1992] VicSC 667; (1992) 17 MVR 328; MC 13/1993, 17 December 1992.

166. Requirement made to undergo full breath test – request made by driver to make telephone call – whether a "refusal" – test to be applied whether refusal excusable.

When B., a driver of a motor vehicle was requested to undergo a full breath test, she declined to do so seeking permission to make a telephone call to a Police Inspector. B. said that if the Inspector told her to take the test, she would do so. Subsequently, after making a call, B. spoke to the Inspector who told her to undergo the test. B. then indicated that she was willing to take the test but the police informant refused to arrange a test and later laid a charge against B. of refusing to comply with a requirement made under s55(1) of the Road Safety Act 1986 ('Act'). Upon convicting B. of the charge, the magistrate said that the question to be determined was whether it was reasonable in the circumstances for B. to have given a conditional refusal. Upon appeal—

HELD: Appeal allowed. Conviction set aside. Matter remitted for further hearing and determination.(1) S55(9) of the Act casts an onus on a defendant of satisfying a court that because of a reason of substantial character (other than a desire to avoid providing information which might be used against the defendant) the refusal to submit to a breath test is excusable. Burns v Storey [1970] VicRp 50; (1970) VR 388, applied.

(2) Accordingly, in deciding whether the reason for the refusal was reasonable, the magistrate applied the wrong test.

(3) Obiter. Whether there has been a refusal in a particular case depends on the facts. In the present case, it was open to the magistrate to fi nd that B. had refused to comply with the requirement under s55(1) of the Act. The subsequent willingness to undergo the test was irrelevant once the refusal was in fact given. Reddy v Ross [1973] VicRp 46; (1973) VR 462, applied.

Ashley J:" ... I turn to consider the fi rst question of law framed for my consideration. It is in terms which superfi cially appear to concede that what the Magistrate described as the "conditional refusal" constituted a refusal for the purposes of s49(1)(e) of the Act. But in fact the question makes no such implied concession. The word "objection" is used, rather than "refusal". The question is intended to raise the issue whether there was ever a refusal for the purposes of s49(1)(e). In this context, although nothing was sought to be made of it, I note that the appellant was charged with refusing to comply rather than with failing to comply with a requirement: they being two alternative charges that might be preferred under that sub-section. The Magistrate said, as I have earlier noted, that the question for him was whether it was reasonable for the appellant to give a conditional refusal in the circumstances. He accepted, impliedly, in that passage of his reasons that the refusal was

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PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAconditional. The Magistrate later said, however, that the appellant's desire to speak to Inspector Dainton was not a suffi cient reason to refuse to furnish a breath sample. That would seem to assume that there had been a refusal, and to involve a consideration of s55(9).

... The main question must have been whether the reason was of a substantial character. The matter of "desire" raised by the last portion of s55(9) would seem almost inevitably to have been resolved in the appellant's favour. In Burns v Storey [1970] VicRp 50; (1970) VR 388, the Magistrate had applied the correct test and the next question was whether the fi nding that had been made was open. In this case, a wrong test was, in my opinion, applied and the factual outcome, had the correct test been adopted, is a matter of real uncertainty. The affi davit material does not enable me to arrive at a conclusion which would be soundly based.

... The Magistrate in the present case appears to have held, as I have said, that the "conditional refusal" so-called, was a refusal for the purpose of s49(1)(e) of the Act. Upon the evidence to which I have referred he was entitled, in my opinion, to so conclude. I should add that, once he had found that there had been a refusal, a subsequent willingness to undergo a test was irrelevant to that issue, even if the period of three hours contemplated by s55(1) had not expired. That is not to say, however, that the later expressions of frank consent might not have cast light upon the question whether there had been a prior refusal. ..."

Per Ashley J in Beardsley v Hower [1993] VicSC 90; (1993) 19 MVR 15; MC 21/1993, 4 March 1993.

167. Full breath test conducted – whether result indicates concentration of alcohol in blood or on breath – alcohol-based mouth wash used by person before test – whether defence made out.

HELD:1. The result of a breath analysis is an indication of the alcohol concentration not on a person's breath but in the person's blood.

2. Where, before a breath test, a person used an alcohol-based mouthwash, the fact that the breath analysing instrument may have detected the presence of alcohol in the person's mouth did not make out the defence under s49(4) of the Road Safety Act 1986 that the instrument was not properly operated or was not in proper working order.

Harper J:" ... All this, of course, is consonant with the conclusion which, in my opinion, is inescapable: that breach of s49(1)(f) is established on proof of the following elements:

(i) furnishing a sample of breath for analysis within three hours after driving;

(ii) furnishing such a sample, the result of which indicates the presence of more than the prescribed concentration of alcohol in the blood; and

(iii) such indication not being solely due to the consumption of alcohol after driving.

... The diffi culty with this submission is that the result of an analysis as recorded by a breath analysing instrument is always and necessarily an indication of the concentration of alcohol in the blood of the person taking the test. This is the only result which the instrument gives. Thus, a breath analysing instrument is defi ned by s3 of the Act as, among other things, an apparatus of a type that is approved for the purposes of s55 of the Act for ascertainment by analysis of a person's breath what concentration of alcohol is present in his or her blood. Moreover, the effect of s58(1) is that on the hearing of a charge for an offence against s49(1)(f), evidence may be given of the result of a breath test; and such evidence is evidence of the concentration of alcohol present in the blood. The respondent did not put to me any argument to the effect that a breath analysing instrument is capable of indicating by measurement anything other than the concentration of alcohol in the blood.

... A breath analysing instrument is, in my opinion, in proper working order and properly operated if the evidence discloses that it was in working order as designed and that it was operated in accordance with the relevant regulations and procedures laid down for its proper operation. In this case, there was unchallenged evidence before the Magistrate that all these conditions were fulfi lled. The fact that the instrument might have detected the presence of alcohol in the mouth does not in my opinion affect this evidence or the conclusion that the instrument was in proper working order and properly operated.

... The conviction by statutory fi at of persons innocent of any substantive offence is generally abhorrent. One trusts that parliament had all the consequences of this legislation clearly in view

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DRINK/DRIVING in VICTORIAwhen the legislation was passed, and is satisfi ed that the removal of one of the foundations of a civilised society is in this instance justifi ed. My sympathy for the respondent is only tempered by the consideration that any solicitor of his age and experience who uses an alcohol-based mouth wash as he did on 4 December 1991 is at the very least notably foolish."

Per Harper J in DPP v McNamara [1993] VicSC 17; (1993) 17 MVR 286; MC 24/1993, 22 January 1993.

168. Breath test conducted – person asked by operator whether second test required – told by operator that second test could give higher result – second test declined – meaning of "advice" – whether includes counselling – Bunning v Cross discretion – whether evidence of result of test should be excluded.

Section 55(4) of the Road Safety Act ('Act') provides (so far as relevant):

"As soon as practicable after a sample of a person's breath is analysed ... the person operating the instrument must—(b) advise the person whose breath has been analysed that he or she may request that a second sample of his or her breath be analysed ..."

HELD:(1) The word "advise" in s55(4)(b) of the Act is to be treated as a synonym for "inform" and not "counsel". There is no obligation on an operator to provide a measure of counselling to a person whose breath has been analysed.

(2) Section 58(1) of the Act does not require strict compliance by the operator with the provisions of s55(4). Where evidence was obtained in breach of s55(4), the admissibility of such evidence was a matter for the exercise of the magistrate's discretion. Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54; 19 ALR 641; 52 ALJR 561, applied.

(3) Where an operator asked if a person whose breath had been analysed required a second test and said that such a test could give a higher result than the fi rst, the magistrate was in error in dismissing charges under s49(1) of the Act on the ground that the requirements of s55(4)(b) had not been strictly followed.

Teague J:" ... The learned magistrate accepted the submission put to him. He dismissed both charges, indicating that he found that the requirements of s55(4)(b) in the taking of the breath test had not been strictly followed. Accordingly, he concluded that the evidence relating thereto should be rejected. The key to his conclusion lay in his construction of s55(4)(b). He construed it to mean that the breathalyser operator was obliged to do more than inform the person tested of what was stated in the paragraph, and that, under s55(4)(b), the operator was obliged to give to the person tested an explanation of the person's right to have a second sample of his breath taken and analysed. His construction of the paragraph was based on giving to the word "advise" a meaning wider than "inform".

... I am of the view that "advise" in the context of s55(4)(b) is to be treated as if it was a synonym for "inform", and not for "counsel".

... I come back to a review of the words of s55(4)(b). I cannot accept that parliament intended by the words used to impose an obligation on the offi cial breath tester to provide a measure of counselling. An obligation to advise in the sense of counselling is a very much more burdensome one than an obligation to advise in the sense of providing specifi ed information. I consider that, if the more onerous obligation had been intended, the parameters of the counselling to be provided would have been spelt out. I cannot accept that there is any support in the words of para. (b) of s55(4) or otherwise in the Act for the conclusion that the more onerous obligation was being imposed. On the contrary, I consider that the words of the paragraph spell out the limited specifi ed information (that the person may request that a second sample of his or her breath be analysed) which is to be the subject of the obligation. In short, the obligation is only to advise in the sense of providing that information.

... Put shortly, I do not accept that s58(1) is to be construed as if the word "strict" were inserted before "compliance". If that position had been intended, it could readily have been achieved by the insertion of the word "strict". I do not accept that it is appropriate to take account, as the learned magistrate did, of the legislation's potential for interference with individual rights. Bunning, Nolan and Mills were all cases which highlighted the special character of this, or this kind of, legislation. Where the measures are somewhat drastic in character, there is a special need for taking care to achieve the right kind of balance. Where I differ from the learned magistrate is that I take the view that the consideration of interference with individual rights does operate in other ways such as in relation to the exercise of the discretions as to whether to admit evidence. I do not accept that it operates to justify a construction which effectively removes those discretions.

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PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIA... I am satisfi ed that, insofar as the learned magistrate has concluded that the provisions had not been strictly followed on the basis of how he construed the word "advise", he was in error. I am also satisfi ed that, insofar as the learned magistrate has concluded that evidence had to be ruled inadmissible because he had found that there was a breach of the statutory requirements, he was in error. ..."

Per Teague in DPP v Drage [1993] VicSC 4; (1993) 17 MVR 390; MC 25/1993, 7 January 1993.

169. Operation of breathalyser – control knob turned to "off" position – contrary to manufacturer's instructions – whether instrument not properly operated – whether defence made out – ingredients of s49(1)(f) offence – one ingredient omitted in charge – whether charge bad – whether capable of amendment.

HELD:1. By turning the control knob of a Breathalyser to the "Off" position with the test ampoule in place, the operator of the instrument is in breach of an instruction in the manufacturer's manual. However, without more, a court is not required to fi nd that because of such breach the instrument was not properly operated within the meaning of s49(4) of the Road Safety Act 1986 ("the Act').

2. It is an ingredient of an offence under s49(1)(f) of the Act that the concentration of alcohol in the blood indicated by the analysis was not due solely to the consumption of alcohol after the driving. An information which fails to include such an ingredient is bad. However, to ensure that justice is not defeated, a court has power to amend the information. Broome v Chenoweth [1946] HCA 53; (1946) 73 CLR 583; [1947] ALR 27, applied.

Byrne J:" ... The facts and circumstances which constitute an offence under s49(1)(f) and the ingredients of that offence for the present purposes are the following:

1. The defendant has been driving a motor car within three hours before a sample of breath is provided;2. The defendant furnishes a sample of breath for analysis under s55(1);3. The result of the analysis as shown indicates that more than the prescribed concentration of alcohol is present in the blood;4. The concentration of alcohol in the blood indicated by the analysis was not due solely to the consumption of alcohol after the driving.

... It will be immediately seen that the charge in the Summons with Information is defective in terms of these ingredients in the following three respects:

1. The requirement to furnish the sample of breath is said to be under s.51.1 of the Act and not s55(1).2. There is no allegation in terms that the defendant has furnished a sample of his breath.3. There is no mention of the fourth ingredient summarised above.

... It will be seen that the assumption which lies behind the appellant's argument is that the manufacturer's instructions must be adhered to in order for there to be a proper operation of the machine. I am not prepared to adopt this assumption as applicable in every case. Its validity is a matter of evidence in relation to the instruction in question. To my mind the word "proper" in the expression "properly operated" requires an examination of the purpose of the machine's operation. Any other conclusion would confer upon the manufacturer's instructions a legislative import similar to that enjoyed by the regulations.

... In short, the relevant question of fact entrusted to the decision of the Magistrate by s49(4) is whether the defendant has shown that the machine was not properly operated at the relevant time. This may be demonstrated by showing a non-compliance with the regulations: Bogdanovski v Buckingham [1989] VicRp 80; [1989] VR 897; (1988) 9 MVR 257, or by showing that some act or omission in the operation of the machine occurred which would affect its proper function so as to impair its reliability. The fact that the act or omission amounted to a contravention of the manufacturer's operating instructions is doubtless relevant for the purpose of showing what instructions were given: DPP v Martell [1992] VicRp 64; [1992] 2 VR 249 at 254; (1992) 15 MVR 397, but the signifi cance of the contravention must be established by evidence, as indeed the appellant sought to do in this case through a witness such as Mr Crewdson.

... It follows from this that the criticism contained in ground 1(a)(i) is not established insofar as it is said that the proof by the appellant of a contravention of the manufacturer's instructions, without more, requires a fi nding that the machine was not properly operated within the meaning of s49(4). Counsel for the appellant next submitted in support of ground 1(a)(ii) that the interpretation of

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DRINK/DRIVING in VICTORIAs49(4) made by the Magistrate imposed an excessively heavy burden on the appellant. This burden required the appellant to prove that that contravention of the manufacturer's instructions must lead to an erroneous result. This submission fastened upon the Magistrate's emphasised use of the word "will" in the passage set out above.

I do not accept that the burden imposed by s49(4) requires the person charged with an offence against s49(1)(f) to prove the inevitability of error as a result of the contravention. From a practical point of view such a burden would be in most, if not all, cases impossible to discharge since the sample of breath and the acid which was affected by it is not retained. It would only be in the case of the most egregious departure from operating procedure that the defendant could lead evidence that error must inevitably follow. Such a conclusion would detract very much from the evident usefulness of s49(4). It is suffi cient in my view that the defendant on the balance of probabilities establish that the act or omission affecting the operation of the machine was such that the result is unreliable.

Although the emphasis on the word "will" in the passage quoted from the Magistrate's decision set out above may suggest he had in mind a more stringent test, it is clear from the passages which followed that he was satisfi ed that the defendant had failed to satisfy the more lenient test which I have adopted as to the non-compliance with the manufacturer's instructions. Accordingly ground 1(a) is not established. In the result I will dismiss the appeal with costs."

Per Byrne J in Ozbinay v Crowley [1993] VicSC 183; (1993) 17 MVR 176; MC 26/1993, 16 April 1993.

170. Two breath tests conducted – second result higher than fi rst – whether evidence admissible to make out defence – "evidence as to the effect".

HELD:1. Where a person undergoes two breath tests and the results show a marked divergence, evidence in support of the defence under s49(4) of the Road Safety Act 1986 ("Act") is admissible to prove that the breath analysing instrument used was not in proper working order or properly operated. Campbell v Renton [1988] VicSC 414; MC 39A/1988, followed.

2. Where a magistrate accepted— (a) evidence that a person ceased drinking 3.5 hours before undergoing a breath test (result .120%) and 4 hours before a second test (result .135%) and (b) expert evidence as to the effect on the person of the consumption of alcohol, the magistrate was not in error in:

(i) admitting this evidence;(ii) concluding that the breath analysing instrument on the occasion in question was either not in proper working order or properly operated; and(iii) dismissing the charge laid under s49(1)(f) of the Act.

Harper J:" ... It is impossible to argue with the logic of his Worship's reasoning. If one accepts Mr Phung's facts and Mr Crewdson's opinions, then it must follow that the result of the analysis of Mr Phung's breath as recorded or shown by the breath analysing instrument was wrong. It also follows, in these circumstances, that the instrument was on that occasion either not in proper working order or not properly operated. The Director of Public Prosecutions does not argue otherwise. He does submit, however, that the Magistrate was prevented by law from receiving, let alone accepting, the evidence of Mr Crewdson – and possibly also (at least on the question of guilt) Mr Phung.

... I refer to these matters only to show that, whatever purpose Parliament had in making these amendments, it was not intended to, nor did it, alter the Act in any way material to the decision in Campbell's case. The fact is that, far from altering the law in this respect when it had the opportunity to do so, Parliament chose to allow a further defence. It is thus, in my opinion, impossible to distinguish Campbell's case on the basis of the later amendments to the relevant legislation. For these reasons, the Director's appeal in this case should in my opinion be dismissed."

Per Harper J in DPP v Phung [1993] VicRp 75; [1993] 2 VR 337; (1993) 17 MVR 157; MC 27/1993, 15 June 1993.

171. Blood sample taken – request for doctor and analyst to attend for cross-examination – application to be determined by Court – procedure to be followed – whether similar to application for bail – whether Court can act on statements from bar table – whether evidence must be given in support of application.

HELD:1. Where an application is made pursuant to s57(7) of the Road Safety Act 1986 ('Act') to cross-examine a medical practitioner who has taken a blood sample and the person who has analysed it, a court must not

155

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAgrant the application unless it is satisfi ed that there is a reasonable possibility the blood sample was not that of the accused or it has become contaminated.

2. The procedure to be followed on the hearing of such an application is not analogous to that on an application for bail. Statements from the Bar table are not suffi cient. An applicant will be required to produce evidence in support of the application to establish the matters set out in s57(7A) of the Act.

Beach J:" ... On 2 November 1992 Green's application came before the Williamstown Magistrates' Court. At the hearing no evidence was called on Green's behalf in support of the application. Counsel for Green simply stated to the magistrate that Green had only consumed four to six pots of beer prior to the accident on 23 August 1992, and given the fact that the blood analysis showed a blood alcohol content of 0.257, that indicated that Dr Walby had in some way wrongly taken the sample or confused the sample, or that the analysis had been done incorrectly. In that situation he applied to have both Dr Walby and Ms Burke attend the hearing of the charges for cross-examination.

The affi davit material before me is to the effect that at that stage of the proceedings, the prosecutor submitted to the magistrate that before such an application could be granted, the applicant would have to lead some positive evidence on oath and could not merely rely on statements from the Bar table. The view the magistrate took of the matter was that sworn evidence was not necessary, that the procedure was analogous to a hearing under the Bail Act and that he did not wish to embark on an interlocutory hearing. The magistrate then proceeded to grant Green's application.

... Pursuant to s57(7A) the court must not grant the application unless it is satisfi ed that there is a reasonable possibility that the sample of blood in question was not that of the accused, or a reasonable possibility that it has become contaminated.

... It is clear, therefore, that the new section was designed to obviate the problem of doctors (and for that matter analysts) being compelled to give evidence unnecessarily by persons charged with drink driving offences. For that reason the legislature saw fi t to provide that the court (in this instance the Magistrates' Court) must not grant leave unless it is satisfi ed of one or more of the matters specifi ed in the sub-section.

In my opinion, a Court cannot be satisfi ed about the matters specifi ed in the sub-section unless it has evidence before it which establishes those matters. Statements from the Bar table are not evidence and should not be construed as such. The magistrate should have required the defendant, Green, to produce evidence in support of his application before determining the application. During the course of discussion, counsel for the defendant, Green, stated that if that was the proper view of the matter, that may result in Green being required to give evidence on oath on the hearing of the application as to the quantity of liquor he had consumed on the night in question. In that situation he could be cross-examined by the prosecutor, and perhaps prejudiced insofar as his defence to the drink driving charge was concerned. I am unimpressed by that contention. If Green has a genuine challenge to the accuracy of the blood test and analysis, and I am not suggesting for one moment that he does not, he will ultimately have to give evidence concerning the quantity of alcohol he consumed on the night of the accident. I fail to see, therefore, that he would be prejudiced by being required to give that evidence upon the hearing of his s57 application.

The order of the Williamstown Magistrates' Court made on 2 November 1992 is set aside. I order that the application of the defendant, Green, made pursuant to s57 of the Road Safety Act be remitted to either the Melbourne Magistrates' Court or the Williamstown Magistrates' Court to be heard by a magistrate other than the magistrate who made the order of 2 November 1992."

Per Beach J in Youla v Green & Anor [1994] VicRp 28; [1994] 1 VR 408; (1993) 18 MVR 321; MC 53/1993, 18 November 1993.

172. Evidence given by breathalyser operator – regulations complied with – standard alcohol solution destroyed – whether defendant deprived of a defence – whether an abuse of process.

HELD:Where the elements of a charge under s49(1)(f) of the Road Safety Act 1986 have been established, there are various ways by which a defendant might make out a defence under s49(4). The fact that the defendant cannot lead evidence of the constitution of the standard alcohol solution used because it has been destroyed, does not deprive the defendant of a defence to the charge so as to amount to an abuse of process.

Tadgell J (with whom Ormiston and Cummins JJ agreed);" ... The Magistrate found as fact, it seems, that the evidence before him was suffi cient to prove that the breath analysing instrument had been properly operated by Senior Constable White. He had also

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DRINK/DRIVING in VICTORIArejected a submission made to him at the end of the informant’s case that the proceeding should be stayed as an abuse of process. The basis of that submission appears to have been in substance that, the standard alcohol solution that was used having been discarded, the appellant was deprived of the opportunity to establish a defence under s49(4) to the extent that an analysis of the solution might have demonstrated such a defence. This point was agitated before the learned judge. Before him, and before us, counsel for the appellant contended that the circumstances were such that the appellant was either deprived of, or so impeded in making out, a defence under s49(4) that the charge under s49(1)(f) should have been stayed as an abuse of process and that the Magistrate was in error not to have granted a stay. Alternatively, it was submitted for the appellant that a defence under s49(4) had been made out so that the charge under s49(1)(f) should have been dismissed on the merits.

... So far as appears there was, in my view, no foundation for a conclusion that the proceedings against the appellant amounted to an abuse of process of the Magistrates’ Court.

Counsel for the appellant submitted that the preservation of the standard alcohol solution used by the operator of the breath analysing instrument in question was necessary in order that the appellant might have had the opportunity to mount a defence under s49(4). The argument was that, the solution having been destroyed, the chance of a successful defence under s49(4) was destroyed with it. What I have said shows that that argument must be wrong. The defence under s49(4) remained open notwithstanding the destruction of the solution.

In any event, there is no suggestion in the relevant legislation – the Act or the Regulations – that the operator of the breath analysing instrument should preserve the standard alcohol solution that was used or that a person tested is entitled to have the solution preserved so that he might make use of it in order to seek to make out a defence under s49(4).

... The appellant had no necessary legitimate expectation that the standard alcohol solution would be routinely preserved until the hearing on the off-chance that it might be proved on analysis to be irregular. The appellant is not deprived of the opportunity of making out a defence under s49(4) merely because of the destruction of the solution. He was, moreover, entitled to rely on evidence of the destruction of the solution – for what that evidence was worth – in seeking to persuade the Magistrate that the informant had, at the end of the day, not proved his case beyond reasonable doubt.

... I observe that although, according to his affi davit, the appellant told the Magistrate somewhat enigmatically that, “I had been to a doctor to get a blood alcohol test sample,” no details of any such blood test were given, so far as appears. Had evidence of a blood alcohol test been given, so as to raise a serious question as to the condition or operation of the breath analysing instrument, the absence of the standard alcohol solution might perhaps have assumed a different aspect in this case. As it was, the absence of the standard alcohol solution neither proved nor tended to prove anything. Grounds 1 and 3 of the grounds of appeal, in my opinion, are accordingly not made out. ..."

Per Tadgell (with whom Ormiston and Cummins JJ agreed) in Barrett v Wearne [1994] VicSC 15; (1994) 18 MVR 331; MC 14/1994, 1 February 1994.

173. Request to furnish sample made informally – whether suffi cient compliance with Act – ‘no case’ submission – test to be applied – whether test correctly applied – amendment of charge – 12-month limitation period expired – whether amendment should be made.

HELD:1. Section 55(1) of the Road Safety Act 1986 (‘Act’) which empowers a police offi cer to require a person to furnish a sample of breath for analysis is suffi ciently complied with if the person is given reasonably suffi cient information to know precisely what is required and why. Walker v DPP [1993] VicSC 245; (1993) 17 MVR 194; MC 02/1994; and DPP v Blyth [1992] VicSC 180; MC 22/1992, applied.

2. Where there was evidence that a police offi cer asked a person “to step out of the car and come back to the booze bus for a breath test”: (a) S55(1) of the Act was complied with; and

(b) the magistrate was in error in deciding there was no case to answer.

3. Obiter. Where the charge omitted words to the effect that the concentration of alcohol was not due solely to the consumption of alcohol after driving, it was open to the magistrate to amend the charge notwithstanding the expiration of the 12-month limitation period. Kerr v Hannon [1992] VicRp 3; [1992] 1 VR 43; MC 14/1991, distinguished.

Mandie J:" ... The informant gave evidence that he had administered a preliminary breath test to the respondent

157

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAand then said “I told him that he had shown positive and asked him to step out of the car and come back to the booze bus for a breath test”. In cross-examination it was put to the informant: “At the conclusion of the preliminary breath test you didn’t say to my client come back to the bus for a breath test” to which the informant replied: “I asked him to come back to the bus”. On re-examination the informant was asked” “Did you in fact ask him anything else when you asked to come back to the bus?” to which he replied: “No”. He was then asked: “During your evidence in chief you stated that you required the defendant to accompany you to the bus for the purpose of a breath test, is that correct? And he replied: “Yes”. He was then asked: “When did you say this” and he replied: “As he was alighting from his car”.

... The magistrate was asked to rule upon a submission that there was no case to answer. Accordingly, he had to be satisfi ed as to a question not of fact but of law, namely, whether on the evidence the defendant could lawfully be convicted not whether he ought to be convicted (see May v O’Sullivan [1955] HCA 38; (1955) 92 CLR 654, 658; [1955] ALR 671; Downward v Babington [1975] VicSC 244; [1975] VicRp 85; [1975] VR 872, 875; (1975) 31 LGRA 314). The question is “whether the defendant could lawfully be convicted on the evidence as it stands, – whether, that is to say, there is with respect to every element of the offence some evidence which, if accepted, would either prove the element directly or enable its existence to be inferred” (per Kitto J in Zanetti v Hill [1962] HCA 62; (1962) 108 CLR 433, 442; [1963] ALR 165; 36 ALJR 276; see, too, Attorney-General’s Reference (No. 1 of 1983) [1983] VicRp 101; [1983] 2 VR 410, 414-5). Accordingly, the magistrate must at that stage consider the evidence of primary fact at its strongest from the point of view of the case for the prosecution (see Myers v Claudianos (1990) 95 ACTR 1; (1990) 2 ACSR 73; (1990) 100 FLR 362, 369).

The magistrate was obliged to consider the no case submission on the basis of the strongest evidence for the prosecution – namely, that the informant had said to the respondent that he had shown positive and that he asked him “to step out of the car and come back to the booze bus for a breath test”. If the magistrate did consider the no case submission on this basis, he was in my opinion in error as a matter of law in deciding that there was no case to answer for the following reasons.

... In my view if a defendant is asked “to step out of the car and come back to the booze bus for a breath test”, the above tests are clearly satisfi ed and there is compliance with the section.

... The only questions which arise, it seems to me, do so under the argument as to whether the charge was defective. In Ozbinay v Crowley [1993] VicSC 183 (Supreme Court of Victoria (1993) 17 MVR 176, 16 April 1993), Byrne J considered that the charge was bad if it did not allege the ingredient added by paragraph (ii) of s49(1)(f). His Honour went on to say that if the matter had been raised before the magistrate he would have had power to amend the charge and would have done so without hesitation. In my opinion, it may well be the case that paragraph (ii) raises a matter of defence only and does not add an essential ingredient to the offence (see Collins v Black, Full Court of Supreme Court of Victoria [1995] VicRp 26; [1995] 1 VR 409, 28 June 1994, per JD Phillips and Hansen JJ at p3). In any event I agree that it is a matter most appropriate for amendment, if that be necessary. Counsel for the respondent argued that a court either could not or would not make such an amendment once the 12 month limitation period for the commencement of proceedings for a summary offence under s26(4) of the Magistrates’ Court Act 1989 had expired and he referred to Kerr v Hannon [1992] VicRp 3; [1992] 1 VR 43. In my opinion, the envisaged amendment would be one which (if required) a magistrate would clearly have a discretion to allow under s50(1) of the Magistrates’ Court Act notwithstanding the expiration of the said time limit. It does not involve a new charge and would not appear to prejudice the respondent in any way. I therefore reject the respondent’s submission. ..."

Per Mandie J in DPP v Ryan [1994] VicSC 399; (1994) 19 MVR 574; MC 18/1994, 13 July 1994.

174. Preliminary breath test positive – driver told "come with me" – no reason given – whether suffi cient request to satisfy act – evidence given by operator – no direct evidence given that breath analysing instrument within defi nition – whether open to infer that instrument was approved.

HELD: 1. It is an essential ingredient of an offence under s49(1)(f) of the Road Safety Act 1986 ('Act') that the instrument used on the relevant occasion was of an approved type. The operator must describe the instrument in a way which enables the Court to ascertain whether the instrument complies with the defi nition in the Act. Bogdanovski v Buckingham [1989] VicRp 80; [1989] VR 897; (1988) 9 MVR 257, applied. Reeves v Beaman MC 32/1991, explained.

2. Where, in cross-examination, a Breathalyser operator made reference to the instrument used on the relevant occasion as a breath analysing instrument, there was no evidence – direct or inferential – from which a Magistrate could conclude that the instrument used came within the defi nition in the Act.

158

DRINK/DRIVING in VICTORIA3. It is an essential ingredient of a charge under s49(1)(f) of the Act that a requirement be made of a person to accompany a police offi cer and the purpose stated.

4. Where a police offi cer said to a driver "come with me" but did not tell the driver the reason or purpose of the requirement, it was not open to a Magistrate to conclude that s49(1)(f) had been complied with, notwithstanding the fi nding that the driver knew the purpose for the making of the request. Dalzotto v Lowell [1992] VicSC 674; MC 06/1993, applied.

Eames J:" ... By s58(4) evidence given by an operator that the instrument was, fi rstly, an approved type, secondly, that it was in proper working order and was properly operated, and, thirdly, that it was operated in compliance with all relevant regulations, was proof of those facts unless the contrary was proved. S58(5) further relates to the facilitation of proof, by oral evidence, that the apparatus was of the “breathalyser” type. The affi davits before me disclosed an apparent dispute as to whether the operator had given evidence of all or any of those matters.

" ... Given the fact that these are criminal proceedings, and concern matters on which, as I later indicate, the courts have repeatedly expressed the view that strict proof is required as to the essential elements of the offence, I would, respectfully, prefer to adopt the view expressed by Ormiston J as to the proof of the instrument being an authorised one. In my opinion there was no evidence, direct or inferential, from which Her Worship could have concluded that the instrument used here was one which met the defi nition in s3. Accordingly, on this ground, the appeal must succeed.

... Section 55(1) provides that where a police offi cer is satisfi ed of certain matters, after a preliminary test has been conducted, he “may require the person to furnish a sample of breath for analysis by a breath analysing instrument and for that purpose may further require the person to accompany a member of the police force... to a police station or other place where the sample of breath is to be furnished and to remain there until the person has furnished the sample of breath or until 3 hours after the driving...”. It has been held that it is an essential element of the charge under s49(1)(f) that the requirement of Section 55(1) be complied with: Mills v Meeking & Anor [1990] HCA 6; (1990) 169 CLR 214 at p224; (1990) 91 ALR 16; (1990) 64 ALJR 190; (1990) 45 A Crim R 373; (1990) 10 MVR 257. The requirement involves more than a mere request to accompany the offi cer and the purpose for which the requirement is made must also be stated to the driver concerned: DPP v Blyth (1992) 16 MVR 159, an unreported decision of Coldrey J, 28 April, 1992; Dalzotto v Lowell [1992] VicSC 674, unreported judgment of Ashley J, 18 December, 1992. The terms in which the requirement is stated need not follow any precise formula of words: Rankin v O’Brien [1986] VicRp 7; [1986] VR 67; (1985) 2 MVR 503. The driver must, however, be told suffi cient to know what it is that is being required of him or her: Scott v Dunstone [1963] VicRp 77; [1963] VR 579. Whether a requirement had been made within the terms of the section need not be proved by direct evidence, but may be a matter on which an inference may be drawn from the whole of the evidence.

... In view of the fact that it was found that no words were used by the police offi cer in explanation of his request, the question is whether it was open to the Magistrate to conclude that the section had been complied with. Put another way, does a conclusion that the driver knew why she was being required to accompany the police offi cer remove the obligation that she be told the reason?

... If the citizen is entitled to know the reason why, when not under arrest, she is being deprived of her liberty, it seems to me that that is an entitlement which must apply in all circumstances, not merely in those where the incidents accompanying the deprivation of liberty may be thought to be less transitory, or less intimidating, than in other circumstances. The citizen is entitled to know why such an event is happening, and what is entailed in the requirement that she be deprived of her liberty. Whilst I understand why it might be inferred that the Appellant knew the purpose of the requirement, it was more than a request (as Coldrey J observed in Blyth), it was a command. The conclusions reached by a citizen as to the purpose of such a requirement may be quite wrong. The absence of a clearly stated reason for the requirement may lead to unnecessary disputation, perhaps even to an arrest on other grounds. There is good reason why the requirement should pertain at all times, and in all contexts. There is no justifi cation for imposing any lesser obligation when the requirement is to accompany a police offi cer to an “other place”, than there is when the requirement relates to a police station. Certainly, once inside a “booze bus”, the citizen is no less confi ned and under the control of police offi cers than would be so in the case of removal to a police station, or even to a police car. In my opinion this ground is also made out, and the conviction can not stand. ..."

Per Eames J in McCardy v McCormack [1994] VicRp 73; [1994] 2 VR 517; (1994) 20 MVR 275; MC 19/1994, 1 June 1994.

159

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIA175. Driver intercepted at 11:35 p.m. – Breath test subsequently conducted – certifi cate of analysis given to driver – indicated breath test conducted at “12 a.m.” – ambiguity – whether evidence resolved ambiguity.

Obiter: Where a driver was intercepted at about 11:35 p.m. on 26 March 1992, underwent a Breathalyser test, and was given a certifi cate which showed that the sample of breath was analysed on 27 March 1992 at 12 a.m., and that the certifi cate was delivered on 27 March 1992 at 12:14 a.m., it was open to conclude from the evidence that the test was conducted not at 12 noon on 27 March 1992 but 12 midnight on the night of the 26-27 March 1992.

JD Phillips J (with whom Brooking and Hansen JJ agreed):"... According to the Case Stated the Breath Analysis Certifi cate was then tendered in evidence and a copy of that certifi cate is before this Court, as an annexure to the Case Stated. In that certifi cate the time at which the breath analysis was made is given as “12 a.m.” on 27 March 1992. As the Case Stated discloses, after the certifi cate was tendered in evidence counsel sought as part of the prosecution case to ask Constable Craig at precisely what time the breath analysis took place. The question was objected to and, after submissions about the ambiguity inherent in the expression “12 a.m.” and the conclusive nature of the breath analysis certifi cate under s58 of the Road Safety Act, the learned County Court judge ruled that there was ambiguity as to the time at which the breath analysis had taken place, that the term 12 a.m. “really had no meaning at all” and that the respondent might accordingly lead other extraneous evidence, if available, to resolve the ambiguity.

... In the County Court, both sides were agreed that there was ambiguity inherent in the certifi cate in this case, inasmuch as the time was described as “12 a.m.”; for that designation was said to be as consistent with noon as it was with midnight. It was on the basis that such ambiguity existed, that the question was reserved for decision.

... For the appellant it was submitted below that the certifi cate was conclusive evidence that the breath analysis was made at “12 a.m.” on 27 March; that the ambiguity about the time “12 a.m.” must be resolved in favour of the appellant; and that therefore the certifi cate was conclusive evidence that the breath sample had been furnished at noon on 27 March, which was more than twelve hours after the driving and thus outside the permitted time frame under s49(1)(f).

... The appellant’s submission that “12 a.m.” in the certifi cate of analysis must be taken, in favour of the appellant, to be 12 noon on 27 March 1992 is a submission that cannot be sustained. I think it has no substance at all, and this for two reasons. First, there are the full terms of the certifi cate itself. Para.2 states that a sample of the appellant’s breath was analysed “on the 27th day of March 1992 at 12 a.m.”, which is the supposed ambiguity. But in para.5 it is said that “as soon as practicable after the sample was analysed, namely at 12.14 a.m. on the said day”, the certifi cate was delivered to the appellant. The reference to 12.14 a.m. on 27 March is not equivocal and, in my view, it makes it plain that the earlier reference to 12 a.m. was not a reference to 12 noon on 27 March but to 12 midnight on the night of 26-27 March. Secondly, there was already evidence, as revealed by the Case Stated, suffi cient to resolve any doubt about the reference in the certifi cate to 12 a.m. The evidence to which I refer was the evidence of the appellant’s having been intercepted at about 11.35 p.m. on 26 March and of a series of steps then and there taken which led to the breath analysis being made and the certifi cate being handed over. The certifi cate itself was conclusive evidence, by virtue of the statute, that the analysis was made at 12 o’clock. The only question raised by the appellant’s submission was whether it was 12 midnight on 26-27 March or 12 noon on 27 March, and the evidence of interception and events following close by made plain that it was 12 midnight. ..."

Per JD Phillips J (with whom Brooking and Hansen JJ agreed) in Doidge v Craig [1994] VicSC 292; (1994) 19 MVR 508; MC 20/1994, 31 May 1994.

176. Collision between vehicles – driver intercepted nearby – required to go to police station for preliminary breath test – whether such direction beyond power as being unreasonable – whether court can exclude evidence of breath test – no satisfactory evidence that police offi cer reasonably believed defendant was driver of or in charge of vehicle at relevant time – effect.

M. was the driver of a motor car which collided with another vehicle. Police later found M. nearby and one of the police offi cers requested M. to accompany them to a Police Station for the purpose of a preliminary breath test. At the Police Station, another police offi cer required M. to undergo a preliminary breath test and then a full breath test which resulted in a blood alcohol concentration of 0.12%. M. was later charged and convicted. Upon appeal—

HELD: Appeal allowed. Conviction and orders set aside. Charge dismissed.1. The express direction given by the fi rst police offi cer for M. to travel to the Police Station was a requirement beyond power because it was unreasonable and not comprehended by the power given by s53 of the Road Safety Act 1986. Accordingly, the Court would have had to consider in the exercise of its discretion whether the evidence of the result of the full breath test should have been excluded as being illegally obtained. DPP v Webb [1993] VicRp 82; [1993] 2 VR 403; (1992) 16 MVR 367, applied.

160

DRINK/DRIVING in VICTORIA 2. The Magistrate was in error in fi nding that the second police offi cer had made a valid requirement that M. undergo a preliminary breath test because there was no satisfactory evidence before the Court that the police offi cer believed on reasonable grounds that M. had been the driver of or in charge of the motor vehicle when it was involved in the collision.

Mandie J:" ... During conversation with the appellant, Senior Sergeant Hickey noticed that the appellant had a smell of alcohol about his breath, that his speech was slurred and that his eyes were bloodshot. After ascertaining his name, Senior Sergeant Hickey said to the appellant: “Mr Mills, I have reason to believe you were the driver of a motor vehicle involved in an accident at about 4.00 a.m. this morning and I require you to accompany me to the Police Station to furnish a sample of your breath for analysis. Are you prepared to accompany me?” The appellant replied: “Yes”.

... After all the evidence had been called, counsel for the appellant submitted to Her Worship that the appellant had been required to go in custody or quasi-custody to the St Kilda Police Station pursuant to an unequivocal demand and not voluntarily and that accordingly the preliminary breath test had not been validly conducted pursuant to s53 of the Act. As a result, an essential element in the charge under s49(1)(f) had not been established. Counsel for the appellant referred to DPP v Webb [1993] VicRp 82; [1993] 2 VR 403; (1992) 16 MVR 367.

... Counsel for the appellant submitted nevertheless that the demand by Senior Sergeant Hickey that the appellant accompany him to the St Kilda Police Station remained relevant because it resulted in the appellant being placed in unjustifi ed custody or quasi-custody as referred to in DPP v Webb. The breath analyses subsequently obtained therefore amounted to illegally or unfairly obtained evidence which should have been excluded by the Magistrate, resulting in a dismissal of the charge (although that point had not been taken before the Magistrate). Counsel for the respondent virtually conceded that if the demand by Senior Sergeant Hickey was unjustifi ed or unreasonable, then the evidence had been illegally obtained and the prosecution had to fail. In making that concession, he no doubt had in mind the discretion of the court to exclude admissible evidence which was illegally or unfairly obtained.

... In my opinion, the accompaniment could not be truly voluntary where the purpose of a preliminary breath test was not unambiguously stated (if that be relevant) but, in any event, there was an express direction to the appellant to accompany the police to the police station. I consider that it was not open to the magistrate on the evidence to make a fi nding other than that an express direction to travel some distance had been given and that accordingly the requirement was beyond the power given under s53 of the Act. No other justifi cation for the direction was argued before me. Accordingly, it would follow from the virtual concession by counsel for the respondent that the prosecution had to fail.

... In my opinion, it was wrong for the Magistrate to have found that Constable Feehan had made a valid requirement to the appellant to undergo a preliminary breath test because it was not open to her on the evidence to be satisfi ed beyond a reasonable doubt that Constable Feehan believed “on reasonable grounds” that the appellant had “within the last 3 preceding hours driven or been in charge of a motor vehicle when it was involved in an accident”. (see s53(1)(c) of the Act). There was no satisfactory evidence before the Court that Constable Feehan had any information (at the time of making the second requirement) which connected the appellant with the collision or with the vehicle involved in the collision. Indeed, the only reference to a relevant connection was that Constable Feehan “saw a man who fi tted a description given by D24 of a person who had de-camped from a vehicle involved in the earlier collision”.

I do not think that the Magistrate was entitled to conclude on the evidence before her that an ordinarily prudent and cautious person in the position of Constable Feehan would have been reasonably led to believe that the appellant had driven or been in charge of the vehicle involved in the collision. (As to “reasonable grounds”, see Misel v Teese [1942] VicLawRp 16; [1942] VLR 69; [1942] ALR 100; Cotton v Ramm (1976) 16 SASR 107; Ladlow v Hayes (1983) 8 A Crim R 377). It was therefore not open to the Magistrate to be satisfi ed that reasonable grounds existed for Constable Feehan’s belief (assuming that there was suffi cient evidence of the belief itself). Indeed, it does not appear that this aspect was in fact considered by the Magistrate having regard to her late “reliance” upon the making of a second requirement by Constable Feehan. ..."

Per Mandie J in Mills v Feehan [1994] VicSC 421; (1994) 20 MVR 263; MC 21/1994, 26 July 1994.

177. Vehicle involved in collision – driver taken to hospital – blood sample taken – charged under Road Safety Act 1986, s49(1)(b) and (g) – charge under s49(1)(g) dismissed – other charge found proved – rule of double jeopardy – whether open to convict on s49(1)(b) charge – presumption of continuance – whether presumption excluded by act – whether court bound to apply presumption.

At 1.50 a.m. police attended the scene of a single motor car collision. N., the driver was conveyed to hospital where,

161

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAat 4.15 a.m. a sample of his blood was taken which when later analysed showed a blood alcohol concentration of 0.169%. Subsequently, N. was charged with offences against s49(1)(b) and (g) of the Road Safety Act 1986 (‘Act’). At the hearing the Magistrate dismissed the charge under s49(1)(g) on the ground that he could not be satisfi ed beyond reasonable doubt that the blood sample had been taken within 3 hours of the collision. In relation to the charge under s49(1)(b), N. submitted that it should be dismissed under the rule against double jeopardy. The magistrate rejected this submission, applied the presumption of continuance, found that N.’s blood alcohol concentration at the time of driving was 0.169% and convicted him. Upon appeal—

HELD: Appeal dismissed. Magistrate’s orders confi rmed.1. Where the ultimate fact establishes proof of two offences of a similar character, a conviction on the fi rst is a bar to the second. Falkner v Barba [1970] VicSC 299; [1971] VicRp 39; [1971] VR 332; (1971) 24 LGRA 270, applied.

2. The relevant ultimate fact essential to prove guilt of an offence under s49(1)(g) was that the blood sample be taken within 3 hours after driving. But this fact was not essential to prove guilt of an offence under s49(1)(b). Accordingly, the Magistrate was correct in rejecting the double jeopardy argument and convicting N. of the charge under s49(1)(b).

3. The Act neither expressly nor impliedly excludes the common law presumption of continuance. It is open for a court to apply the presumption but it is not bound to do so. On the evidence, it was open to the Magistrate to apply the presumption and infer beyond reasonable doubt that the relevant blood alcohol concentration was 0.169%. Heywood v Robinson [1975] VicRp 55; [1975] VR 562; Smith v Maddison [1967] VicRp 34; [1967] VR 307, applied.

Batt J:" ... The primary submission for the appellant under this question was that the conviction of the appellant on the charge under s49(1)(b), after dismissal of the charge under s49(1)(g), contravened the basic common law doctrine that a person may not be put in peril more than once of conviction of an offence of the same or a similar character. Instead, it was submitted, the charge should have been dismissed in accordance with the decisions in Falkner v Barba [1970] VicSC 299; [1971] VicRp 39; [1971] VR 332; (1971) 24 LGRA 270 and R v O’Loughlin Ex parte Ralphs (1971) 1 SASR 219. In other words, the appellant invoked the fundamental rule of the common law against double jeopardy.

... [Gillard J] at p342 of Falkner v Barba, supra, concluded his review of the authorities with the second principal passage relied upon by the appellant, namely:

“From the foregoing discussion of authority there emerged, in my opinion, the general proposition that where the ultimate fact established the proof of two offences of a similar character, then it was the doctrine of the common law that the offender could not be convicted of the two offences. The conviction on the fi rst was a bar to the second.”

... The offences under paragraphs (b) and (g) of s49(1) of the Act are not the same: Meeking v Crisp [1989] VicRp 65; [1989] VR 740 at 743; (1989) 9 MVR 1 (affi rmed, without express discussion of this point, sub nom Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214; (1990) 91 ALR 16; (1990) 64 ALJR 190; (1990) 45 A Crim R 373; (1990) 10 MVR 257); but it may be accepted that they are similar for the purposes of the proposition stated by Gillard J.

... There were in each of the offences charged here several ultimate facts to be proved. Driving (or being in charge, which I shall not hereafter mention) and that the conveyance was a motor vehicle, were two such ultimate facts. But, relevantly, the ultimate fact under paragraph (b) was the presence of more than the prescribed concentration of alcohol in the appellant’s blood at the time of driving, whereas under paragraph (g) in my opinion it was the presence of more than the prescribed concentration of alcohol at the time of analysis (within twelve months of its taking) of a sample of the appellant’s blood taken within three hours after driving. That the sample was taken within three hours after driving was essential to proof of guilt of the offence under paragraph (g). It was, or was part of, the relevant ultimate fact. But it was not essential to proof of guilt of the offence under paragraph (b), though, if established, it would, by reason of s57(2)(d) and s48(1)(a), greatly facilitate proof of the abovementioned relevant ultimate fact for that offence. But, even if it was not established, evidence of the result of the analysis of the sample could be led on that ultimate fact (cf. ss56(2), 57(2) and 57(4)). That shows, of course, the evidential, as opposed to the ultimate, nature for the purposes of the proof of the offence under paragraph (b) of the blood sample and its analysis.

... If the accused is acquitted on a charge of a greater offence then, it seems to me, there is no logical reason, apart from the question of judicial discretion to prevent a possible abuse of process, why he should not be tried for a lesser offence wholly comprised within the greater offence, provided it was not possible for him to have been convicted of the lesser offence on the fi rst trial, and provided

162

DRINK/DRIVING in VICTORIAfurther that he can call in aid no principle of issue estoppel. This explains cases like R v Barron [1914] 2 KB 570; 78 JP 311. An acquittal is only an acquittal of the whole offence and it may have been the very additional circumstance distinguishing the greater offence from the lesser which the jury was not prepared to fi nd proved.”

Conversely, I should add that the respondent before me accepted that a conviction on the charge under paragraph (g) would have constituted a plea in bar to the charge under paragraph (b) because the proof of the latter would have been the analysis of the sample satisfying the former.

... For the foregoing reasons, in my opinion, the magistrate was correct in rejecting the double jeopardy argument ..."

Per Batt J in Nutting v Ryder (1994) 20 MVR 294; MC 22/1994, 17 October 1994.

178. Driver gave his brother’s name to police – misnomer not realised until date of hearing – application by police prosecutor to amend fi rst name – application refused – whether error disclosed.

PV was charged with two offences under the Road Safety Act 1986, s49(1). When the charges came on for hearing, the informant realised that the actual offender was not PV but his brother MV. The police prosecutor applied to amend the defendant’s name by substituting PV with another name. This application was refused, no evidence was led and the charges were dismissed. Upon appeal—

HELD: Appeal allowed. Dismissal set aside. Remitted to the Magistrates’ Court for further hearing and determination. Section 50 of the Magistrates’ Court Act 1989 confers on the Court an ample power to amend. In this case the amendment should have been made. No injustice would have been suffered by PV as the amendment would have removed his name as a defendant to a legal proceeding to which he should never have been a party. The making of the amendment would have produced a defendant (MV) who to his own knowledge should always have been the defendant and who would have been the defendant if he had not lied to police in the fi rst place. Pearcey v Chianta [1987] VicSC 420; (1987) 6 MVR 10; MC 30/1987, applied.

Hansen J:" ... This is an appeal from orders of the Magistrates' Court at Melbourne on 21 April 1994 whereby two charges under the Road Safety Act 1986, ss49(1)(b) and (f) respectively, were dismissed with an order for costs against the informant. The defendant named in the charges was Pita Velevski; he had a brother called Michael Velevski.

... It is self-evident that the power to amend would not ordinarily be used if to do so would cause injustice, and the cases referred to by the prosecutor establish that proposition. On that point, and the point whether an amendment should be allowed if it would raise a new case, it is worth noting that in Kennett v Holt [1974] VicRp 79; [1974] VR 644 it was held proper to amend a charge from driving through a "red circle" to "amber circle" after the evidence had been heard and the magistrate had formed a view as to the driving. The reasoning was that the amendment did not substitute a new charge, for the offence charged by the amendment was a cognate offence akin in origin and quality and allied in nature to the offence originally charged. It is instructive that at p648, Pape J quoted a passage from the judgment of Mann CJ in Thomson v Lee [1935] VicLawRp 65; [1935] VLR 360; [1935] ALR 458 which is worth repeating and should always be kept in mind –

"... It is not part of the duty of the Bench to regard the matter as a sporting contest; it must use its powers in a proper way to uphold the law; and as the magistrates have full power to amend, upon or without application, and ought, as I think, to have made the amendment ...".

... Let the matter be looked at from the point of view of injustice. What injustice could there have been to Pita Velevski in allowing the amendment. None at all. Indeed it would have removed his name as a defendant to a legal proceeding to which he should never have been a party and would not have been a party if it had not been for his brother's deceit. The informant never intended to charge him, as distinct from the actual offender. Then, where is the injustice from the point of view of Michael Velevski who was the offender and would have been the named defendant if he had not lied to the police.

... So, also, in this case, if an amendment had been granted, could an adjournment have been allowed to "enable justice to be satisfi ed" to permit service or time for preparation. All that was required was to amend the christian name of the defendant (see Pearcey at p13). That simple change would have produced a defendant who, to his own knowledge, should always have been the defendant, and removed a person who was never intended to be and should never have been, a defendant. As Murphy J said in Pearcey, at p14 –

163

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIA"The case is not one in which it is desired to substitute one defendant for another. It is the same person against whom the information is to go, but there has been a misnomer, caused by the defendant himself."

I am fi rmly of the opinion that the magistrate erred in not allowing the name of the defendant to be amended. ..."

Per Hansen J in DPP v Pita Velevski [1994] VicSC 564; (1994) 20 MVR 426; MC 26/1994, 22 September 1994.

179. “Sample of breath” – meaning of – stomach vapours in sample – could cause inaccurate reading by breath analysing instrument – whether defence to charge.

HELD:1. A “sample of breath” in s49(1)(f) of the Road Safety Act 1986 (‘Act’) means a sample of the air which has been exhaled from the mouth of the subject. Such a sample meets that description notwithstanding it includes gas from the stomach or air from the mouth or nasal cavity of the subject.

2. Where evidence is given to the effect that the possible presence of stomach vapours in the sample of breath could or would distort the reading, such evidence cannot show that the breath analysing instrument was not in proper working order or not properly operated so as to make out the defence under s49(4) of the Act.

Byrne J:" ... It would be absurd to construe the words "sample of breath" in the statute variously depending on what is the design of the instrument or, more correctly, depending on what in the given case is the evidence of that design. In my view “sample of breath” must be given its ordinary meaning, a sample of the air which has been exhaled from the mouth of the subject. Such a sample meets that description notwithstanding that it includes gas from the stomach or air from the mouth or nasal cavity of the subject; Johnson v Peters: ex Parte Johnson [1983] 1 Qd R 531. The second ground therefore fails.

... He said, and Dr Schuijers confi rmed, that he suffered from a condition called gastroesophageal refl ux, known colloquially as heartburn. He said that at the time he provided a sample he experienced a burning sensation in the throat. This, called waterbrash, is an indication of the presence of heartburn at that time. This condition may cause acid vapours to rise from the stomach to the back of the mouth. The evidence of Dr Collins was that the presence of these vapours in the sample of breath provided for analysis could or would cause the instrument to indicate a higher blood alcohol concentration than was the fact. This was because the instrument was calibrated to convert to blood alcohol concentration an analysis of deep lung air only.

... It is well established by authority that the offence created by section 49(1)(f) is established by proof only of the matters there set out including the instrument reading. The accuracy of the reading is no part of the informant's proofs: Smith v Van Maanen (1991) 14 MVR 365. To this the statute provides certain defences. One of these is contained in section 49(4):

“(4) It is a defence to a charge under paragraph (f) of sub-section (1) for the person charged to prove that the breath analysing instrument used was not on that occasion in proper working order or properly operated.”

... What is put here is that the possible presence of the stomach vapours in the breath sample could or would distort the reading so that it is not an accurate one. To my mind for section 49(4) to be relied upon it must appear that one or other of the two situations obtains. This may involve a consideration of the impact of the situation found to exist upon the reliability of the reading as in Ozbinay v Crowley [1993] VicSC 183; (1993) 17 MVR 176, but mere unreliability without relating it to either situation is not suffi cient to satisfy the sub-section.

In the present case the medical evidence cannot demonstrate that the machine was not in proper working order. Indeed, the burden of Dr Collins' evidence assumed that the machine was in proper working order. Nor does it bear upon its proper operation. Again Dr Collins' evidence was directed to the fact of an erroneous blood alcohol content may have been indicated notwithstanding the most meticulous operation of the instrument. The fi rst ground therefore fails. The appeal will be dismissed with costs including reserved costs."

Per Byrne J in Charles v Koetsier [1994] VicSC 677; (1994) 20 MVR 381; MC 30/1994, 8 November 1994.

180. Identifi cation of driver – driver not identifi ed in court – blood sample certifi cates tendered – linked with driver – name similar – evidence not contradicted by defendant – defendant convicted – whether open on the evidence.

164

DRINK/DRIVING in VICTORIAS. pleaded not guilty to a charge under s49(1)(b) of the Road Safety Act 1986. The prosecution witnesses did not identify S. as the driver of the motor car. However, certifi cates relating to a blood sample taken from the driver were tendered in evidence showing the same name and address of the defendant. No evidence was given by S. or on his behalf at the hearing. It was submitted that the magistrate could not be satisfi ed that S. was the driver of the motor car. This submission was rejected and S. was convicted. Upon appeal—

HELD: Appeal dismissed.The evidence of identity which was suffi cient to support the conviction included the—

• certifi cates linking S. to his present address.• similarity of name between person at the scene and the person served with the process.• failure of S. to give evidence, which permitted an inference adverse to him to be the more readily drawn.

R v Neilan [1991] VicSC 138; [1992] VicRp 5; [1992] 1 VR 57; (1991) 52 A Crim R 303, applied.

Ashley J:" ... [t]he person charged has driven or been in charge of a motor vehicle whilst his blood alcohol level has exceeded the prescribed concentration. The appellant by his affi davit sworn 28 February 1994 avers that four witnesses gave evidence in the proceedings before the Magistrate. In addition, certifi cates under s57(3) and (4) of the Act were tendered, as well as two statutory declarations purportedly made under s57(6) of the Act.

... Mr Gillespie-Jones of counsel for the appellant has submitted that there was no such evidence. He did not deny that the s57(3) certifi cate was evidence that a blood sample was taken from a Jeff Stainsby, and that the man from whom the sample was taken was one and the same as the man who had been interviewed at the accident scene, and who had there given that name and had admitted to driving the Ford Falcon. Neither did he deny that the s57(4) certifi cate was evidence that the blood sampled was that taken by the doctor from Jeff Stainsby, or that the blood contained a blood alcohol concentration of .252 grams per 100 millilitres of blood. But Mr Gillespie-Jones submitted that no evidence existed to link his client with the Jeff Stainsby involved in the events of 26 October 1992.

... In my opinion the Magistrate was entitled to draw the inference that the man who appeared to answer the charge, that is, Jeff Stainsby of 10 Rose Street, Highett, was one and the same as the man who on 26 October 1992 had given his name as Jeff Stainsby of 7 Highbury Avenue, Moorabbin. That is so, in my opinion, for a number of reasons. First, the two statutory declarations, which despite their defects were admitted without objection, asserted that service had been effected upon the person whose blood had been sampled and analysed.

... Not only was there an assertion that the person served with the s57(4) certifi cate, that is, the appellant, was one and the same person as the person whose blood had been sampled and analysed, service upon that person, who had lived at Highbury Avenue, Moorabbin according to the certifi cates, was effected at Rose Street, Highett. I add, before going further, that the relevant assertions made in the declarations were not challenged by any cross-examination of Constable Madden.

... The defendant's name is not a common one, and I think the magistrate was entitled to conclude, at least prima facie, that the two persons were one and the same. The submission made for the appellant, that there was nothing to disprove the proposition that someone else had used the appellant's name at the scene (a submission not pursued before me) did not assist the appellant. It was, of course, not for the prosecution to disprove any such thing.

There is, I think, one further consideration. I do not doubt that there was evidence which entitled the learned Magistrate to reject the submission that there was no case to answer on the issue of identity. Thereafter the appellant stood mute. The analysis of the Court of Criminal Appeal in R v Neilan [1991] VicSC 138; [1992] VicRp 5; [1992] 1 VR 57 at pp65-67; (1991) 52 A Crim R 303 shows that, in a limited way, the failure of a defendant to give evidence may assist in more ready acceptance of a case established against him at a prima facie level. In my opinion, upon the question of identity, the failure of the appellant to give evidence permitted an inference adverse to him to be the more readily drawn. But it is unnecessary to rest this judgment upon that consideration. It follows, in my opinion, that the appeal should be dismissed."

Per Ashley J in Stainsby v Madden [1994] VicSC 445; (1994) 20 MVR 315; MC 45/1994, 11 August 1994.

181. Refusal to accompany for breath test – reason given that dog due for daily pill – whether reason of substantial character – whether such defence available – defence of necessity – upheld by magistrate – whether in error – whether such defence available – defendant asked to go to police station – whether requirement.

After undergoing a preliminary breath test, E. was asked by a police offi cer to go to the Police Station for a breath test. E. refused saying that if her dog were not given its nightly pill for the treatment of some ailment it might

165

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAdrop dead. At the hearing of the charge against E. under s49(1)(e) of the Road Safety Act 1986 (‘Act’), E. raised the defence of necessity. This was upheld by the Magistrate and the charge dismissed. Upon appeal—

HELD: Appeal allowed. Remitted for further hearing. Application for an indemnity certifi cate refused.1. It was not open to the Magistrate to fi nd on the evidence that any delay in the administering of the pill to the dog would have caused it to perish or suffer serious injury. In any event, the defence of necessity is not wide enough to embrace the circumstances of this case.

2. Whilst the Magistrate was correct in expressing the view that the defence in s55(9) of the Act did not apply to a charge under s49(1)(e), it would not have been open to the Magistrate to fi nd that E. had shown there was some reason of a substantial character for the refusal.

3. Where there was evidence that E. had been asked by the police offi cer to go to a Police Station for a breath test, it was open to the Magistrate to fi nd that there had been a requirement under s55(1) of the Act. Walker v DPP [1993] VicSC 245; (1993) 17 MVR 194; MC 02/1994, referred to.

Brooking J:" ... The submission made by Mr Swanwick of counsel, with some encouragement from the bench, evidently was that the defendant was constrained by circumstances not to go to the police station because the time was approaching at which her dog should be given by her its nightly pill for the treatment of some ailment and because if the pill was not timeously given the dog might drop dead. Most surprisingly, this defence was upheld and the charge dismissed.

The learned magistrate has clearly gone wrong. In the fi rst place, making all due allowances for the advantage which the magistrate enjoyed of seeing and hearing the witnesses and his right to prefer the evidence of one witness to that of another, I consider that it was not open to the magistrate on the evidence to fi nd that the defendant’s complying with the constable’s request would have caused or that it was reasonably possible that the defendant’s complying with the request would have caused the dog to perish or suffer serious injury for want of its pill.

... There was no admissible evidence that the dog suffered from any serious ailment. There was no evidence that the taking of the pill somewhat later than usual (and to say this perhaps wrongly assumes that there was evidence that it was usually taken at the same time) would adversely affect the dog, let alone put it at serious risk. In my opinion, the point ought not to have been taken and certainly ought not to have been upheld. The defence of necessity is in any event not wide enough to embrace solicitude for the wellbeing of a dog, elderly and ailing and well-loved as that animal may be.

... In Walker v DPP (Full Court, [1993] VicSC 245; (1993) 17 MVR 194, 13 May 1993) I said something about what is needed under s55(1). In my opinion the material before me discloses that it was open to the magistrate to fi nd and indeed, obligatory upon the magistrate to fi nd that there had been a requirement. I say this because there is evidence that the police offi cer requested the defendant to attend and that the offi cer then informed the defendant of the obligation to attend the police station and of the consequences of a refusal to do so. The defendant is said to have replied that she did not care. To ask someone to go and tell them that they are obliged to go seems to me to make a requirement on any possible meaning of the word “require”. ..."

Per Brooking J in DPP v Ellison [1995] VicSC 6; (1995) 21 MVR 444; MC 52/1994, 18 January 1995.

182. Identifi cation of provision of Act – drink/driving charge – Road Safety Act referred to as 'RSA' – whether charge identifi ed provision of act – whether charge capable of amendment.

Section 27(2) of the Magistrates' Court Act 1989 provides:

"A charge must identify the provision of the Act or subordinate instrument (if any) that creates the offence which the defendant is alleged to have committed."

A magistrate held three charges laid under the Road Safety Act 1986 to be invalid and not capable of amendment on the ground that in the box provided in the printed form of charge for identifi cation of the Act creating the offence the abbreviation "RSA" appeared. Upon appeal from Tadgell J upholding the appeal and fi nding the magistrate to be in error—

HELD: Appeal dismissed with costs.1. The charges suffi ciently identifi ed the provision of the Act as required. The appellant cannot have been in the slightest doubt about what criminal conduct was alleged against him. The Road Safety Act 1986 is the only Victorian Act the short title if abbreviated gives the letters "RSA".

2. Even if the identifi cation of the provision was defective, the case was a clear one for amendment under s50(1) of the Magistrates' Court Act 1989.

166

DRINK/DRIVING in VICTORIABrooking JA (with whom Charles and Callaway JJA agreed):

" ... The appellant was represented by Mr Billings of counsel, who persuaded the Magistrate to dismiss all three charges on the ground that in the box provided in the printed form of charge for the identifi cation of the Act creating the offence the abbreviation "RSA" appeared. The informant was ordered to pay $2,000 costs.

Each of the three charges alleged the offence in the words of the section creating it and the provision of the Road Safety Act was in each case correctly identifi ed in the box provided for that purpose, the section, sub-section, and, where appropriate, paragraph being correctly stated. The appellant cannot have been in the slightest doubt about what criminal conduct was alleged against him. The point taken was entirely devoid of merit so far as considerations of fairness and justice are concerned. But it was the submission on his behalf that the use of the abbreviation "RSA" instead of the short title to the Act or its year and number was fatal to the prosecution having regard to the provisions of s27(2) of the Magistrates' Court Act 1989, whereby a charge "must identify the provision of the Act or subordinate instrument (if any) that creates the offence which the defendant is alleged to have committed".

... The Magistrate held the charges to be invalid and ruled that they could not be amended because more than twelve months had passed since the date of the appellant's driving. By s26(4) of the Magistrates' Court Act 1989 a time limit of twelve months for proceedings for a summary offence is in general imposed.

... When regard is had to the affi davit of the appellant, it seems that the Magistrate accepted the submission on his behalf that the requirement of s27(2) of the Magistrates' Court Act could be met only by use in the charge either of the short title of the Act or of its year and number. If he took this view, as I think he did, it is clear that he misdirected himself. In addition to this misdirection, the Magistrate erred in law in determining that the requirement of s27(2) had not been met.

... I have no doubt that these charges were capable of amendment. Defects or errors both in substance and in form are comprehended by s50(1). There has never been any doubt about the criminal conduct with which the appellant was charged. The offence would remain the same notwithstanding the amendment and the Magistrate's reliance on the running of time under s26(4) was erroneous. The only right exercise of discretion was to amend these charges, assuming them to be defective in the respect suggested. The Magistrate erred in law in concluding that the date of the offences meant that the amendment could not be made...."

Per Brooking JA (with whom Charles and Callaway JJA agreed) in McMahon v DPP [1995] VicSC 303; MC 01/1995, 20 June 1995.

183. Driver required to go to "the police station” – particular police station not nominated – whether provision of s55(1) Road Safety Act 1986 not complied with – whether charge should have been dismissed.

HELD:Section 55(1) of the Road Safety Act 1986 ('Act') empowers a police offi cer to require a person who has undergone a preliminary breath test to accompany the offi cer "to a police station" for the purpose of furnishing a sample of breath. Where a police offi cer required a person to "come back to the police station for the purpose of conducting a breath test" the requirement of s55(1) of the Act was complied with. The section does not require the nomination of a particular police station in order to suffi ciently inform the person as to what is involved in the person's deprivation of liberty. McCardy v McCormack [1994] VicRp 73; [1994] 2 VR 517; 20 MVR 275; MC 19/1994; Dalzotto v Lowell [1992] VicSC 674; MC 06/1993; and DPP v Blyth [1992] VicSC 180; (1992) 16 MVR 159; MC 22/1992, referred to.

Judge Jones (County Court):" ... The matter raised by Mr Murphy is concerned with what the respondent told the appellant after the conduct of the preliminary breath test before he was conveyed to the Hurstbridge Police Station. In essence, Mr Murphy submits that a proper foundation has not been established pursuant to s55 of the Act for the appellant to be required to submit to analysis by a breath analysing instrument. It is clear that such a foundation has to be established by the respondent. It is an essential element of the charge under s49(1)(f) that the requirement of s55(1) be complied with.

Mr Murphy submits that a proper foundation has not been established in that the requirement of s55(1) has not been complied with because the appellant was not informed by the respondent that he was required to attend a particular police station, namely, the Hurstbridge Police Station. Rather, he was informed that he was required to come back to the police station and was then taken to the Hurstbridge Police Station.

167

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIA... I am satisfi ed that the respondent did not refer to a particular police station in his conversation with the appellant. Mr Murphy has said that there is no decision that he is aware of that has specifi cally dealt with this point and Mr Reynolds has also informed me that he is not aware of any decision that specifi cally deals with the point raised by Mr Murphy.

... The question raised is whether the requirement of s55(1) has been complied with. It has been held that the requirement involves more than a mere request to accompany the police offi cer and that the purpose for which the requirement is made must also be stated to the driver concerned. (See DPP v Blyth, Dalzotto's case and also McCardy's case.) The terms in which the requirement is stated need not follow any precise formula of words. (See Rankin v O'Brien [1986] VicRp 7; [1986] VR 67; (1985) 2 MVR 503.)

In essence, as I understand him, Mr Murphy submits that the citizen is entitled to know not only that he is being required to go to a police station for a breath analysis or test, but the particular police station he is being required to go to. I do not consider the duty or requirement imposed by s55(1) of the Act goes so far. The words used in the sub-section are "a police station", not "a particular police station" or "a nominated police station" or "a stated police station". This factor is not conclusive but is, in my view, important. What the citizen needs to know is that he or she is being required to go to a police station and why he or she is being so required. That is what the section requires. It does not go so far as to require the nomination of the particular police station and I do not think it is necessary to take the requirement that far in order to ensure that the citizen is suffi ciently informed as to what is involved in the deprivation of his or her liberty.

To sum up the position, although it may be the practice to inform a person of the name of the particular police station he or she is required to accompany the police offi cer to, there is not, in my view, a duty or requirement pursuant to s55(1) of the Act to provide that information.

In this case I am satisfi ed that the respondent has proved beyond reasonable doubt that the information required by s55(1) to be provided to the appellant, was provided to him. In the result, I am satisfi ed beyond reasonable doubt that the offence under s49(1)(f) has been proven. ..."

Per Judge Jones (County Court) in Watt v Smyth MC 03/1995, 10 May 1995.

184. Breath test taken – sample analysed – certifi cate given to person tested 17 minutes later – “as soon as practicable” – meaning of – whether certifi cate given as soon as practicable.

HELD:1. The certifi cate of analysis referred to in s55(4) of the Road Safety Act 1986 (‘Act’) should be given to the person tested within a short period of time after the fi rst test so that the person tested can be informed of the result and advised that a second sample may be requested. The greater the gap in time between the fi rst and second tests the more diffi cult, if not impossible, it becomes to compare the results in any meaningful way.

2. Where a period of 17 minutes elapsed between the conducting of the fi rst test and delivery of the certifi cate and there were no practical reasons why the certifi cate could not have been given to the person tested within 7-8 minutes of the sample being taken, it was not reasonably open to a magistrate to fi nd that the certifi cate had been signed and delivered as soon as practicable after the taking of the sample. Accordingly, as the provisions of s55(4) of the Act were not complied with, evidence of the reading was not admissible and the charge should have been dismissed.

Smith J:" ... It is not disputed that the respondent gave evidence that he had substantially completed the certifi cate while he was waiting for the reading to be produced by the machine and that the latter process can take one and a half to two minutes. Thus taking a view of the evidence most favourable to the respondent, the evidence before the learned Magistrate was that the reading had been obtained by 4.27 pm at which time the certifi cate was already substantially completed. It appears to be common ground that the certifi cate was handed to the appellant at 4.44 pm. Thus some 17 minutes elapsed between the obtaining of the reading and the provision of the certifi cate to the appellant.

... Thus, on the respondent's evidence, six of the 17 minutes spent in the intervening period were explainable as time spent by the respondent in carrying out statutory and regulatory requirements that had to be met before the delivery of the certifi cate to the appellant.

... To succeed on this appeal, the appellant must satisfy me that it was not reasonably open to the learned Magistrate to conclude that a certifi cate had been delivered as soon as practicable after the sample of breath had been analysed. (Compare Creely v Ingles [1969] VicSC 90; [1969] VicRp 94; [1969] VR 732, at 734). I note that the burden of proof on the issue rested with the respondent (Tampion v Chiller [1969] VicSC 265; [1970] VicRp 46; [1970] VR 361, at 366). The standard of proof

168

DRINK/DRIVING in VICTORIAwas presumably on the balance of probabilities. Before reaching a decision on the question posed, it is necessary to consider the meaning of the expression "as soon as practicable" in s55(4) of the Act.

... The test prescribed by Parliament is not diffi cult to satisfy. Accepting that the provisions of s55(4) are designed to enable the person tested to be informed and advised and to double check by means of a second test, ideally the certifi cate should be given to the person tested within a short period of time after the fi rst test; for it is important that any second test be done in close proximity with the fi rst test. The greater the gap in times, the more diffi cult, if not impossible, it becomes to compare the results in any meaningful way. It should also be noted that the procedures required to be carried out after obtaining the sample can, on the evidence before the learned Magistrate, occupy seven or eight minutes. Thus, while plainly some time will inevitably elapse between the obtaining of the sample and the giving of a certifi cate, that inevitable loss of time heightens the need to avoid unnecessary further loss of time.

The protection given, however, is to be determined according to the terms of the legislation. The key words chosen to give effect to the scheme are "as soon as practicable". They will not ensure in all cases that the various steps are taken in the shortest time (see for example Dickson v Kimber [1992] VicSC 296; (1992) 16 MVR 164). They present a compromise which should ensure in most cases that a meaningful second test can be done. The words "as soon as practicable" do not defy defi nition (cf Creely v Ingles, above, at 734). "As soon as" means "at the very time or moment when". "Practicable" means "capable of being carried out in action" (Shorter Oxford Dictionary, 1973). They do not mean "within a reasonable time". At the same time the words quoted do not impose a standard of perfection but require the practicalities to be considered and for the certifi cate to be given to the person at the moment when the circumstances of the given situation allow it to be done. A reasonable approach is to be taken in assessing any given case.

Each case must be determined in the light of its evidence. In the present case, 17 minutes elapsed after the reading was obtained and there is an unexplained loss of time of about 10 minutes. This lost time is in addition to the time which elapsed while the operator carried out the various tests and fi lled in the certifi cate. It is not one or two minutes but about 10 minutes. The respondent could not explain the loss of time except on the basis that he may have made the appellant a cup of tea and sat down and talked with him. If that was what happened, that courtesy is to be commended. Regrettably, however, the respondent could have given the appellant the signed certifi cate before doing that. Any making of tea and conversation would not constitute relevant circumstances that could affect the practicality of signing and delivering the certifi cate.

It is not suggested that the respondent was carrying out other actions required by the Act or Regulations or that any emergency occurred that prevented him from observing the statutory procedure. On the evidence, there were no practical reasons why the signed certifi cate could not have been given to the appellant within seven or eight minutes of the sample being taken (or 5 or 6 minutes after the result was obtained). It may be that no harm was in fact done to the appellant but that is not the test. The test is whether the certifi cate was signed and delivered "as soon as practicable" after the sample of breath was analysed. The question for me to determine is whether it was reasonably open to fi nd that the certifi cate had been signed and delivered as soon as practicable after the taking of the sample. In my view, on the evidence before the learned Magistrate, such a fi nding was not open. If the presumption of regularity is applicable, it would not assist the respondent in all the circumstances. The appeal should be allowed."

Per Smith J in Nicholl v Hunter [1994] VicSC 405; (1994) 20 MVR 384; MC 09/1995, 15 July 1994.

185. Procedure – charge and summons – informant’s address omitted – whether document vitiated – application for adjournment to serve notice on informant – application refused – whether improper exercise of discretion – bias – Magistrate informed of priors before defence case – no evidence called – whether Magistrate in error in proceeding to fi nalise case.

HELD:1. Where a police informant’s address was omitted from the charge and summons, this defect did not vitiate the document.

2. Where an accused had 3-4 months in which to serve a notice pursuant to s58(2) of the Road Safety Act 1986, there was suffi cient time for the notice to be sent to the informant care of the Chief Commissioner of Police. Accordingly, the Magistrate was not in error in refusing an application for an adjournment in order to serve the notice on the informant.

3. Where, before the defence case was opened the Magistrate was informed that the accused had prior convictions and the accused then called no evidence, the Magistrate was not in error in proceeding with the hearing of the charge.

169

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAHarper J:

" ... The information, or, more strictly described, the charge and summons, does not contain any information at all in the box opposite the words “Agency and Address”. Nevertheless, the informant is clearly identifi ed as “Constable Ross Colley, 29785. Moreover, the document includes a description of the offence, which description has not been challenged as being insuffi cient. Indeed, such a challenge would not be reasonably open. The document also includes all relevant information about the place, date and time when the defendant must attend court to answer the charge. It is not suggested that the charge and summons is defective in any respect, save the absence of an address for the informant.

This defect does not, in my opinion, vitiate the document. It contains all the information which the appellant needs in order to meet the charge. At worst, the absence of the informant’s address may cause diffi culty in serving documents on the informant. If so, the consequences would be visited upon the informant and not upon the Appellant. In fact, however, any notices required to be served on the informant could be so served by addressing the notice to him care of the Chief Commissioner of Police; the address of the Chief Commissioner is readily available. This, I think, is the answer to the question posed under part (i)(b) of the matters put forward by the Master for decision.

The Appellant complains that the Magistrate’s discretion miscarried when His Worship refused the Appellant’s application for adjournment. That application was based upon the assertion that an adjournment was necessary to enable the Appellant to serve upon the informant a notice pursuant to s58(2) of the Road Safety Act 1986. But the charge and summons were served on the Appellant in August 1994; the information was not heard until 13 January 1995. A notice under s58(2) must be served on the informant not less than 28 days before the hearing or within any shorter period ordered by the court. The notice in this case could therefore have been served upon the informant at any time between August 1994 and 14 December 1994. There could be no suggestion that that time was insuffi cient. All the Appellant needed to do was forward the notice to the informant care of the Chief Commissioner at the Chief Commissioner’s address. There is no suggestion that such service would have been insuffi cient. In any event, I hold that it would have been suffi cient, at least in the absence of any other address shown on the charge and summons.

... It was submitted on behalf of the Appellant that the decision to call no evidence may have been taken as a result of the Appellant’s legal adviser’s apprehension of the Magistrate’s bias, bias induced by his receipt of the information that the Appellant had prior convictions. But if so, that apprehension was misplaced. In any event, if an accused has a case to put, that case must be put, to the extent that the rulings of the court allow, at the hearing or trial. Should a conviction follow, any appeal against a ruling of the court can then be taken. Here, no ruling of the Magistrate prevented the Appellant calling whatever evidence he wished in his defence. ..."

Per Harper J in Brady v Colley [1995] VicSC 327; MC 20/1995, 30 June 1995.

186. Where charge to be fi led – “place of residence” – meaning of – motor traffi c – drink/driving – operator called as witness – evidence given as per certifi cate – certifi cate admitted – whether open to convict notwithstanding that certifi cate may have been inadmissible.

HELD:1. To determine the meaning of “place of residence” in s26(1)(a) of the Magistrates’ Court Act 1989, it is necessary to look beyond the place where a defendant may sleep or eat. Intention and state of mind are relevant as is the address for correspondence and in offi cial records.

2. Where a breathalyser operator was called as a witness in a drink/driving charge and gave evidence of the matters required by s58 of the Road Safety Act 1986, the evidence was suffi cient to sustain a conviction notwithstanding the fact that the certifi cate (which had been admitted into evidence) may have been inadmissible or ineffective.

Byrne J:"... The remaining grounds may be conveniently dealt with under three headings: fi rst, whether the proceeding was a nullity because the charge was fi led in the wrong court; second, whether the Road Safety (Procedures) (Breath & Blood Tests) Regulations 1994 were invalid or might not be used to the prejudice of the appellant; and third, whether the certifi cate of breath analysis tendered was in the prescribed form.

The informant in this case fi led the charge with the Registrar of the Court at Frankston. The mention court nearest the place of the offence was not Frankston. This registry was selected because it was thought to be the court nearest the place of residence of the appellant which was said by the informant to be at 32 Jacksons Road, Mount Eliza. The appellant, however, maintains that his place of residence on 4 August 1994 was at the Shore Inn Motel, 31 Nepean Highway, Aspendale. It was accepted, by all parties before me, that the Frankston Registry was nearest to Mount Eliza but not nearest to Aspendale. Accordingly, it was submitted that the charge had not been fi led with the

170

DRINK/DRIVING in VICTORIAappropriate registrar as required by s26 and the proceeding was, therefore, a nullity. The debate therefore focussed on the expression "place of residence" in s3(1) and to the evidence as to this. Counsel for the appellant submitted that the expression means the place where the person sleeps and lives. He accepted, however, that if the appellant was to sleep and eat on a temporary or transient basis at a place different from that where he normally slept and ate, this would not mean that the normal place had ceased to be his place of residence. To my mind this concession was properly made.

... [T]he Magistrate did not fall into error of law in concluding that the charge had been fi led in the appropriate Registry. In my opinion, it is relevant for the determination of the place of residence of an appellant charged with an offence, for the purposes of s26, to look beyond the place where he laid his head and took his meals at the time. Intention and state of mind are relevant, as are matters such as where his offi cial correspondence was directed and what he recorded as his residence in offi cial records. The appellant's place of residence is, for present purposes, where he sees his home to be, notwithstanding that he may, on a temporary basis, not be living there at the time. There was abundant evidence upon which the Magistrate might have found that the place of residence of the appellant on 4 August 1994 was at Mount Eliza.

... The consequence of these submissions, if accepted, was said to be that the certifi cate of breath analysis tendered in evidence before the Magistrate was inadmissible or ineffective. A third broad submission, that this certifi cate was not in the prescribed form, was to the same effect. All of these submissions assume that a failure by the informant to tender a valid certifi cate of breath analysis was fatal to the prosecution. I do not make this assumption. The appellant gave notice under the Road Safety Act s58(2) requiring the breathalyser operator to be called as a witness. The operator gave evidence of the matters required by s58. This evidence was admitted despite objection and not challenged or contradicted. No point is taken before me that the evidence ought not to have been received or that this evidence was not, of itself, suffi cient to sustain the [7] conviction. To my mind the evidence is suffi cient for that purpose. ..."

Per Byrne J in Yates v Ebert [1995] VicSC 494; MC 02/1996, 11 September 1995.

187. Whether offence under s49(1)(f) of Road Safety Act 1986 is one of strict liability – whether defence of honest and reasonable mistake available – fi nding that person’s blood/alcohol concentration could not have exceeded 0.03% – person convicted – Magistrate in error.

HELD:1. The legislature has established an increasingly strict regime with respect to drink/driving offences designed to protect the community. There would seem to be little doubt that the offence established by s49(1)(f) of the Road Safety Act 1986 (‘Act’) is to be regarded as one of strict liability. Accordingly, the defence of honest and reasonable mistake is not available with respect to the offence established by s49(1)(f) of the Act. Welsh v Donnelly [1983] VicRp 79; [1983] 2 VR 173; MC 11/1983, applied.

2. Where a magistrate found beyond reasonable doubt that a person’s blood/alcohol concentration could not have exceeded 0.03%, the magistrate was in error in imposing a conviction and making an order against the person’s driver licence.

Vincent J:"... Dr Ian Kronberg, a gastroenterologist, who was accepted by the Magistrate as an expert in his fi eld, gave evidence in that proceeding that he had performed a gastroscopy upon the appellant. This examination revealed the presence of a moderately sized hiatus hernia and the existence of some antral erosion of the stomach. He found that the appellant suffered from gastro-intestinal refl ux. This, it would appear, is occasioned by the failure of the sphincter to seal off the top of the stomach as adequately as it should, thus allowing stomach gases to escape into the oesophagus and windpipe. In Kronberg's opinion, the appellant was suffering from gastro-oesophageal disease. Further, and more importantly for present purposes, he concluded that, based on his experience and knowledge, it was more likely than not that the sample of breath given by the appellant would have been contaminated by stomach gas enriched with alcohol. This contamination could, according to the witness, have resulted in an erroneously high reading.

... The Magistrate accepted Dr Kronberg's evidence with respect to the appellant's medical condition. Although satisfi ed that the instrument was operated in accordance with the regulations, he concluded that the reading was obtained partly from air from the lungs and partly from gas from the stomach and was, accordingly, misleading. Indeed, he found beyond reasonable doubt that the actual blood alcohol concentration of the appellant did not exceed 0.03 per cent.

... Considering, however, that he was compelled by law to ignore the reality that the appellant had never in fact driven a motor car with a blood alcohol concentration in excess of the prescribed limit, the Magistrate fi ned him $100.00 and $26.00 court costs. In addition, he cancelled his driver's licence and disqualifi ed him from obtaining a licence for 16 months from that day.

171

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIA... These authorities, emanating from different jurisdictions and concerned with a variety of pieces of legislation, contain statements emphasising the fundamental importance in the attribution of criminal responsibility of the existence of what might be described as a suffi ciently culpable state of mind. The undoubtedly correct view is repeatedly expressed that Courts should be very reluctant to adopt interpretations of statutory provisions which could have the effect of holding criminally responsible an individual who has acted in the honest and reasonable belief that his or her conduct was lawful.

... Acknowledging the force of the arguments advanced on behalf of the appellant, I am of the opinion that the defence of honest and reasonable mistake is not available with respect to the offence established by s49(1)(f) of the Road Safety Act 1986. I do not think that it is necessary to set out the history of this section or the structure within which it is contained. It is suffi cient, I think, to state that over the years the legislature has established an increasingly strict regime with respect to drink driving offences designed to protect the community. There would seem to be little doubt that, at least since the decision in Welsh v Donnelly [1983] VicRp 79; [1983] 2 VR 173, and consistent with this approach, s49(1)(f) has been regarded as one of strict liability. Although the provision has been the subject of repeated examination in this Court over a number of years, there is nowhere to be found, as I understand the situation, any pronouncement or indication in any of many judgments handed down, that this is not the case. For good or ill, the position is, in my opinion, fairly clear. I do not consider that the Magistrate fell into error in deciding as he did.

... In the circumstances, I do not think that it is necessary for me to remit this matter to the Magistrates’ Court. I consider that proper exercise of judicial discretion would inevitably lead to a dismissal of the charge against the appellant and, accordingly, direct that both the conviction and sentence be quashed. ..."

Per Vincent J in Skase v Holmes and Anor [1995] VicSC 555; MC 03/1996, 11 October 1995.

188. Operation of breathalyser – said by expert not to have been operated properly – nature of burden on defendant – no positive evidence that test result was probably inaccurate – whether defence made out – whether open to Magistrate to convict.

HELD:1. Under s49(1)(f) of the Road Safety Act 1986 (‘Act’), the general burden of proof remains on the prosecution to prove the elements of the offence beyond reasonable doubt. However, s49(4) of the Act imposes a legal onus on the defendant to prove that the breath analysing instrument was not in proper working order or properly operated at the relevant time. This evidential burden is not satisfi ed merely by pointing to some departure from the manufacturer’s instruction in the operator’s manual. It requires proof that by virtue of the departure from proper operation the test result would have overstated the driver’s blood alcohol concentration. Ozbinay v Crowley [1993] VicSC 183; (1993) 17 MVR 176; MC 26/1993, considered.

2. Where an expert witness gave no positive evidence that the test result was probably an overstatement or inaccurate, it was open to a magistrate to conclude that the defence under s49(4) of the Act had not been made out and convict the defendant.

Eames J:"... Byrne J held in Ozbinay v Crowley [1993] VicSC 183; (1993) 17 MVR 176 that the standard of proof was on the balance of probabilities, with which I agree. If, on the balance of probabilities, the defendant proved that the machine was not operated properly then he must be acquitted, because s49(4) makes proof of that matter a defence to the charge. The question remains, what constitutes improper operation? Must it be demonstrated that an inaccurate result did occur, or probably occurred? Or is it suffi cient if the defendant established that error was merely possible?

... As I have said, in my view it is an error to describe s49(4) as imposing merely an evidential burden of proof upon the defendant, which is satisfi ed merely by pointing to some departure from the instructions. If the burden of proof cast by the sub-section is met, that will provide a complete defence to the charge, but even if the defendant fails to establish the defence under that section the general burden of proof of the offence under s49(1)(f) remains upon the Crown at all times; that being a burden of proof beyond reasonable doubt

... I conclude, therefore, that insofar as improper operation is alleged to arise from a failure to comply with an instruction in the manufacturer's manual, then in order to establish a defence under s49(4) the defendant must prove that the test result overstated his blood alcohol concentration at the time of the test. Whether the defendant must prove that the overstatement of the test result was probable or merely possible is unnecessary for me to fi nally decide.

Proof of the probability of such error was the standard required by Byrne J and has been accepted to be the appropriate test by Harper J. I have not been persuaded that the formulation of the test as requiring proof of the probability of error is wrong, or confl icts with the intention of Parliament in

172

DRINK/DRIVING in VICTORIAthe context of this Act in which the sub-section appears, but, as I have said, I do not need to fi nally resolve this question because the appellant in this case did not establish the defence under s49(4) to either standard of proof. ..."

Per Eames J in Fitzgerald v Howey [1995] VicSC 427; (1996) 24 MVR 369; MC 04/1996, 10 August 1995.

189. Breath samples – insuffi cient for analysis by breathalyser – requirement for blood sample – must be reasonable – “nominated by” – meaning of – whether particular doctor to be specifi ed.

Section 55(9A) of the Road Safety Act 1986 (‘Act’) provides (so far as relevant):

“(9A) The person who required a sample of breath under sub-section (1) or (2) from a person may require that person to allow a legally qualifi ed medical practitioner nominated by the person requiring the sample to take from him or her a sample of that person’s blood for analysis if it appears to him or her that—...(b) the breath analysing instrument is incapable of measuring in grams per 100 millilitres of blood the concentration of alcohol present in any sample of breath furnished by that person for any reason whatsoever.”

HELD:1. Section 55(9A)(b) of the Act should be construed to relate not only to the operation of the breath analysing instrument but also to the person who it is sought to test.

2. The requirement to allow a blood sample to be taken must be reasonable in the circumstances. Where a person’s consent followed a police offi cer’s decision to require a blood sample be taken and the delay between interception and the taking of the blood sample was not unreasonable, it would not have been open to a magistrate to fi nd that the requirement was unreasonable. DPP v Webb [1993] VicRp 82; [1993] 2 VR 403; (1992) 16 MVR 367; MC 40/1992, applied.

3. The words “nominated by” in s55(9A) of the Act do not require the express naming of a specifi ed doctor and if a particular doctor is named, a particular formula of words is not needed. Accordingly, a magistrate was in error in dismissing two charges under s49(1) of the Act on the ground that the police informant had failed to nominate a specifi c medical practitioner.

Teague J:"... The prosecutor’s affi davit gave this summary, not challenged by Mr Birrell, as to what the Magistrate said after hearing the three submissions of Mr Birrell and the prosecutor in reply:

"The failure of the Informant to nominate appropriately the medical practitioner as required under s55(9A) was the only argument of merit advanced for the defendant ... where sanctions and heavy penalties apply against a defendant should he be found guilty for non-observance of the law, then strict compliance with the requirements of the section must be adhered to ... it was clear that at the time Dr Howard attended to conduct the procedure he was not known to the informant and had not been asked for by name by the informant ... on this basis ... Dr Howard was not an appropriately 'nominated doctor' ... upon the evidence ... strict compliance did not occur ... in these circumstances a form should be available for Police to complete or a deeming provision enacted in the legislation."

... My view is that there is no need for the express naming of a specifi ed doctor, and that, if a particular doctor is named, a particular formula of words is not needed. It is clear from the sort of search which is made readily by computer that the words “nominated by” are used hundreds of times in the Victorian statutes. In some circumstances the nominating by one person of another, or by the person himself or herself can be merely the starting point in a process, as where a person is nominated as a candidate for an election. In other circumstances the process is short, and the nominating of one person by another is a decision which concludes the process. In the latter category the words “nominated by” are usually likely to be used interchangeably with “chosen by”. The words “chosen by” are used dozens of times in the Victorian statutes, in circumstances which are not patently distinguishable from “nominated by”.

Even if I am wrong in the view that I take on the construction of s55(9A), there is a further factor in the instant case which warrants the conclusion that, if a higher degree of formality is required than I have stated to be necessary, that higher degree has been satisfi ed in the instant case. That is because of the signing by the respondent of the consent form before the blood sample was taken. The clear inference from the evidence is that Dr Howard’s name was in the form at the time that the respondent signed it. I do not accept Mr Birrell’s argument that the consent form was irrelevant, because it was a form required by the hospital, and was not in any way related to the investigation and prosecution of the respondent.

173

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAI am satisfi ed that the learned Magistrate erred in construing s55(9A) as he did, and that that led to his erring in concluding that the nomination of Dr Howard by the informant was not carried out as required by the sub-section, and in dismissing the two charges. The appeal must be allowed. The order of the learned Magistrate must be set aside. The informations must be remitted for hearing at the Magistrates’ Court at Shepparton in accordance with these reasons and otherwise according to law."

Per Teague J in DPP v Sanders [1996] VicSC 221; (1996) 23 MVR 515; (1996) 86 A Crim R 378; MC 22/1996, 20 May 1996.

190. Proof of breath analysing instrument – whether able to be proved by certifi cate – document produced by instrument has appearance of certifi cate in prescribed form – whether admissible to prove instrument.

HELD: Section 58(2) of the Road Safety Act 1986 (‘Act’) is concerned with the admissibility of one item, “a document”, which has the appearance of “a certifi cate in the prescribed form produced by a breath analysing instrument”. If the document produced to the court has the appearance of such a certifi cate, it is admissible in evidence and provides conclusive proof of “the facts and matters contained in it” such as the fact that the instrument used was a breath analysing instrument within the meaning of the Act.

O'Bryan J:"... The Magistrate admitted into evidence a document tendered by the prosecution pursuant to s58(2) of the Act and held that the document provided conclusive proof that the instrument or apparatus used to analyse the plaintiff's breath was a breath analysing instrument within the meaning of the Act. In the Court below Mr Murphy of counsel, who appeared for the plaintiff, had submitted that the document was not admissible to prove an essential element of the offence namely, that the instrument or apparatus used to analyse the plaintiff's breath as a "breath analysing instrument" as defi ned by the Act (s3).

... The learned Magistrate held that the document was admissible pursuant to s58(2) and provided conclusive proof of the fact that the instrument used was a breath analysing instrument within the meaning of the Act.

... The sub-section is concerned with the admissibility of one item, "a document", which has the appearance of "a certifi cate in the prescribed form produced by a breath analysing instrument". If the document produced to the Court has the appearance of a certifi cate in the prescribed form produced by a breath analysing instrument it is admissible in evidence and provides conclusive proof of, inter alia, "the facts and matters contained in it; and the fact that the instrument used was a breath analysing instrument within the meaning of this Act." However, should the accused person give notice in writing to the informant not less than 28 days before the hearing that he/she requires the person giving the certifi cate to be called as a witness or that he/she intends to adduce evidence in rebuttal of any such fact or matter the conclusivity of the facts and matters in paragraphs (a) to (f) will not apply.

The word "purporting" in ss(2) is a plain English word meaning: claiming or appearing. Were it necessary, I would accept the construction of ss(2) proposed by Mr Silbert of counsel who appeared for the defendant that "purporting" governs not only the words "a certifi cate in the prescribed form" but also the words "produced by a breath analysing instrument". However, I am clearly of the opinion that the intended meaning of the sub-section is that the words "purporting to be a certifi cate in the prescribed form produced by a breath analysing instrument" relate to one item, "a document". ..."

Per O'Bryan J in McKenzie v McFadzean [1996] VicSC 284; (1996) 23 MVR 327; MC 23/1996, 20 June 1996.

191. Certifi cate signed by “legally qualifi ed medical practitioner” – Act amended – certifi cate to be signed by “registered medical practitioner” – whether certifi cate admissible – evidence of post-driving consumption of alcohol – not supported by sworn evidence – whether fi nding of fact reasonably open – presumption of continuance – whether open as to blood/alcohol level – admissibility of analyst’s certifi cate.

W. was the driver of a motor vehicle which ran off the road. There were three passengers in the vehicle. On attending the scene, M., a police offi cer, found an empty beer bottle on the fl oor of the vehicle in the driver’s position. W. was conveyed to hospital where a sample of blood was taken from him and later analysed to show a reading of 0.140% BAC. When interviewed some four months after the accident, W. mentioned that after the accident he had consumed a quantity of bourbon on the side of the road. W. was subsequently charged, inter alia, with offences under s49(1)(b) and (g) of the Road Safety Act 1986 (‘Act’). At the hearing on 9 August 1995, a certifi cate of a medical practitioner was tendered in evidence which described the doctor (as at 9 April 1994) as a “legally qualifi ed medical practitioner”. The analyst’s certifi cate was also tendered in evidence. The defence called no evidence. The magistrate dismissed the charge under s49(1)(g) of the Act as not being satisfi ed that the blood sample was taken within 3 hours of driving. However, in applying the presumption of continuance, the magistrate found the charge

174

DRINK/DRIVING in VICTORIAunder s49(1)(b) proved and convicted W. Upon appeal it was submitted— (a) that the doctor’s certifi cate was not admissible in evidence due to the fact that s57(3) of the Act provided only for the case where a certifi cate purported to be signed by a “registered medical practitioner”. (b) that given the evidence as to post-driving consumption of alcohol, it was not reasonably open to the magistrate to fi nd the charge proved (c) without expert evidence it was not open to the magistrate to apply the presumption of continuance in order to determine the blood/alcohol concentration level at the time of driving.

HELD: Appeal dismissed on all questions.(1) Section 57(3) of the Act is an evidentiary or procedural provision. Therefore, the amended form of s57(3), although enacted after the date of the offence, was applicable to the hearing of the charge. The certifi cate of the doctor was admissible under s57(3) in its amended form by virtue of s104 of the Medical Practice Act 1994. Accordingly, the reference in the certifi cate to a “legally qualifi ed medical practitioner” must be taken to be a reference to a “registered medical practitioner” within the meaning of the Medical Practice Act 1994.

(2) Whilst there was some evidence of post-driving drinking in the form of W.’s exculpatory statements, it would not have been reasonably open to the magistrate to fi nd that the presumption of continuance did not apply. In coming to this conclusion it is noted that none of the witnesses called gave direct evidence of any post-driving drinking; no bourbon bottle was located in or around the vehicle; the topic was fi rst mentioned by W. some four months after the accident; and the consideration that W. did not give sworn evidence of post-accident drinking. R v Neilan [1991] VicSC 138; [1992] VicRp 5; [1992] 1 VR 57; (1991) 52 A Crim R 303; and Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298; [1959] ALR 367; 32 ALJR 395, referred to.

(3) Section 57(4) of the Act makes admissible a certifi cate as to the blood/alcohol concentration if it purports to be signed by an approved analyst. It dispenses with the need for the certifi er to show that he or she is a person who would be accepted as a “properly qualifi ed analyst”. Wright v Bastin (No.2) [1979] VicRp 35; [1979] VR 329; R v Cheer [1979] VicRp 53; [1979] VR 541, followed.

(4) A magistrate is entitled, though not bound, to rely on the common law evidentiary presumption of continuance operating retroactively where the breath test or blood sample was taken outside the 3-hour period. It is open to a magistrate (without trespassing into the province of an expert) to take the view that the blood/alcohol level will peak a relative short time after drinking ceases and will thereafter decline. Accordingly, it was open to the magistrate in the present case, to apply the presumption or use inference and judicial notice to be satisfi ed beyond reasonable doubt that W.’s blood/alcohol concentration at the time of driving not only exceeded the prescribed concentration but was 0.140%. Smith v Maddison [1967] VicRp 34; [1967] VR 307; Heywood v Robinson [1975] VicRp 55; [1975] VR 562; and Pippos v Craig [1993] VicRp 44; [1993] 1 VR 603; (1992) 16 MVR 327; [1992] Aust Torts Reports 81-196, followed. R v Olejarnik (1994) 72 A Crim R 542; (1994) 33 NSWLR 567; (1994) 19 MVR 125, not followed.

Batt J:"... Applying that interpretation and construction to the certifi cate tendered, I consider that, unless there is an inconsistency with context or subject matter, the reference in it to a legally qualifi ed medical practitioner must in respect of the date 9 August 1995 be taken to be a reference to a registered medical practitioner within the meaning of the Medical Practice Act 1994.

... In Neilan the Court of Criminal Appeal, by reference to earlier well-known authorities, held that the silence of an accused will be of greater weight where it appears that the accused alone is able to explain the true facts surrounding a relevant incident. Such is the case here. It is true that there was sworn evidence that the appellant had said out of court that he had consumed alcohol after the accident. But, in my view, the failure to give sworn evidence to the same effect entitles the Magistrate, as a reasonable person, to conclude that it is not reasonable or rational to fi nd the explanation for the blood alcohol reading of .14% in post-accident consumption of alcohol. Moreover, the appellant's failure to give sworn evidence enables the other evidence to be accepted more readily and inferences from it to be drawn more confi dently. In short, I consider that a reasonable Magistrate is bound to be sceptical of the out of court answers when the appellant neither confi rmed them on oath nor allowed their truth to be tested by cross-examination.

... But certifi cates of the requisite description are admissible by virtue of succeeding provisions of the section. Sub-section (4) makes admissible a certifi cate as to the concentration if it purports to be signed by an approved analyst. It dispenses with the need for the certifi er to show that he or she is a person who would be accepted as a "properly qualifi ed analyst" within sub para(ii) of the defi nition of that phrase. (Sub-section (4) unlike sub-s(3) is limited as to the matters which may be certifi ed to and I therefore doubt, contrary to the suggestion for the appellant, that an approved analyst could

175

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAeffectively certify as to his or her qualifi cations, training and experience.)..."

Per Batt J in Wright v Morton [1996] VicSC 305; (1996) 87 A Crim R 468; (1996) 24 MVR 497; MC 26/1996, 26 June 1996.

192. Certifi cate of analysis delivered in prescribed form – no reference in s58(2) to such certifi cate – whether nexus between s55(4) and s58(2) broken – whether certifi cate admissible.

HELD:1. There is a clear nexus between s55(4) and s58(2) of the Road Safety Act 1986 (‘Act’). The certifi cate in the prescribed form referred to in s55(4) of the Act is the very same certifi cate referred to in the opening words of s58(2) of the Act.

2. Where a certifi cate of analysis was tendered in evidence, the certifi cate established all the matters required to be established by the prosecution and it was open to a magistrate to conclude that the charge had been proved beyond reasonable doubt.

Beach J:"... It is convenient to consider what are said to be the fi rst three questions of law, together. They require a consideration of the certifi cate of analysis which was tendered in evidence before the Magistrate and a consideration of the relevant legislative provisions. The certifi cate reads:

VICTORIA POLICE ROAD SAFETY Act 1986 DRAGER ALCOTEST 7110 SERIAL-NO.: MRFL-0015 SAMPLE-NO.: 00796 LOCATION OF TEST: PBTS ST KILDA ROAD MELBOURNE SUBJECT'S NAME: BUZZARD SUBJECT'S GIVEN NAMES: GAYE LORRAINE DOB: 14-11-47 INFORMANT'S SURNAME WALSH INFORMANT'S NUMBER 30688 OPERATOR'S SURNAME: EWART OPERATOR'S NUMBER: 27868 ** SELFTEST CORRECT ** ** ZERO TEST CORRECT** SUFFICIENT SAMPLE SUBJECT'S ANALYSIS DATE: 17-09-95 TEST-TIME: 00:57 HRS EST RESULT: 0.144 GRAMS OF ALCOHOL PER 100 MILLILITRES OF BLOOD ** ZERO TEST CORRECT** ** SELFTEST CORRECT

... By the provisions of s51 of the Miscellaneous Acts (Omnibus Amendments) Act, the words "in the prescribed form produced by a breath analysing instrument of the concentration of alcohol indicated by the analysis to be present in the blood of a person and purporting to be signed by the person who operated the instrument" were substituted for the words "given in accordance with section 55(4) and purporting to be signed by a person authorised by the Chief Commissioner of Police to operate breath analysing instruments under section 55" where appearing in Sec58(2) of the Road Safety Act so that the opening words of the sub-section now read:-

"58(2) A document purporting to be a certifi cate in the prescribed form produced by a breath analysing instrument of the concentration of alcohol indicated by the analysis to be present in the blood of a person and purporting to be signed by the person who operated the instrument is admissible in evidence in any proceeding referred to in sub-section (1) and subject to sub-section (2E) is conclusive proof of – ";

and the following sub-section was substituted for the original sub-section 2(f):

"(f) the fact that the certifi cate is identical in its terms to another certifi cate produced by the instrument in respect of the sample of breath and that it was signed by the person who operated the instrument and given to the accused person as soon as practical after the sample of breath was analysed."

... What is said on the appellant's behalf is that the effect of the amendment to the opening words of Sec58(2) is to break the nexus between Sec58(2) and Section 55(4) of the Act; that there is no longer a requirement that the document referred to in Sec58(2) be the document purporting to be a certifi cate given in accordance with Section 55(4). It is said further that as a consequence of the amendment, whilst there may be a prescribed form for a certifi cate given in accordance with Section 55(4), namely that which complies with Regulation 314, there is no prescribed form for the certifi cate referred to in Sec58(2). In that situation the Magistrate should not have accepted in evidence the so-called certifi cate of analysis tendered by the prosecution and both charges should have been dismissed. I am unable to accept any of those propositions.

There are four sub-sections in the Act which refer to prescribed forms, namely sections 55(4), 57(3), 57(4) and 58(2). Sec57(3) refers to a certifi cate in the prescribed form purporting to be signed by a registered medical practitioner. Sec57(4) refers to a certifi cate in the prescribed form purporting to be signed by an approved analyst as to the quantity of alcohol found in any sample of blood. Sec55(4), on the other hand, refers to a certifi cate in the prescribed form produced by the breath analysing instrument. In my opinion that is the very same certifi cate referred to in the opening words of Sec58(2).

176

DRINK/DRIVING in VICTORIAThe references in Sec55(4) and Sec58(2) to certifi cates in the prescribed form produced by a breath analysing instrument can only be references to the same certifi cates. In my opinion there is a clear nexus between Section 55(4) and 58(2) and the submissions to the contrary must fail.

The remaining question asks whether a reasonable Magistrate properly instructed on the evidence before him could conclude that the charge had been proved beyond reasonable doubt. The short answer to the question posed is yes. The certifi cate in question established all matters required to be established by the prosecution. The appeal will be dismissed with costs to be taxed, including any reserved costs, and paid by the appellant."

Per Beach J in Buzzard v Walsh [1996] VicSC 411; (1996) 24 MVR 568; MC 05/1997, 5 September 1996.

193. Charges laid under s49(1)(b) and (f) of Road Safety Act 1986 – conviction on one charge dismissal on other – whether an abuse of process to lay charge under s49(1)(f) when circumstances relevant for charge under s49(1)(b) – difference in result of breathalyser tests and blood test – charge proved – whether Court in error.

T. was intercepted by police whilst driving his motor car. He underwent a preliminary breath test and later, two breathalyser tests which each showed a blood/alcohol concentration of .105%. Later, a sample of blood taken from T. showed a concentration of .043%. T. was subsequently charged, inter alia, with offences against s49(1)(b) and (f) of the Road Safety Act 1986 (“Act”) and on the hearing, was convicted of the charge under s49(1)(f). The charge under s49(1)(b) was dismissed. T. later unsuccessfully appealed to the County Court and subsequently sought by originating motion, an order in the nature of certiorari to quash the conviction on the grounds that it was an abuse of process to pursue the charge under s49(1)(f) when a charge under s49(1)(b) was “more than suffi cient to deal with the circumstances of the case”. The motion was later dismissed and T. lodged a notice of appeal—

HELD: Appeal dismissed.1. Two offences of a quite different nature are created by s49(1)(b) and (f) of the Act. It is not necessary that there be an accident before para (f) is applicable. There is nothing in the Act which would require that the person be prosecuted under para (b) rather than para (f). Accordingly, there is no basis for alleging abuse of process because a decision was made to prosecute T. under para (f) rather than para (b). Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214; (1990) 91 ALR 16; (1990) 64 ALJR 190; (1990) 45 A Crim R 373; (1990) 10 MVR 257, followed.

2. Whilst the evidence of the blood test could be used to show that T.’s elimination rate was improbably high, the court was not in error accepting the breathalyser results and fi nding that no defence under s49(4) was proved.

Charles JA (with whom Winneke P and Hayne J agreed):"... There are three possible defences to a charge under s49(1)(f) expressly contemplated by the Act; fi rst, that the concentration of alcohol found to be present in the blood of the person charged was due solely to the consumption of alcohol after driving, the onus of proof of this fact being placed on the driver (s48(1A)); secondly, that the breath analysing instrument used to test the driver was not in proper working order, and thirdly, that the instrument was not properly operated (both these defences being found in s49(4)). The s48(1A) defence was introduced after Meeking v Crisp was decided.

... Ground 1 asserts that Judge Byrne was in error in allowing the appellant to be charged under par.(f) when par.(b) was more than suffi cient in dealing with the circumstances of the case, having found that the appellant was below the legal limit of percentage blood alcohol at the time of driving. Judge Byrne in fact made no such fi nding. His Honour said that the appellant had made out a "plausible" case. There was only one charge before His Honour, the s49(1)(b) alternative charge having been dismissed by the magistrate. Any claim that to pursue the charge under par.(f) was an abuse of process is disposed of by the judgment of the majority in Mills v Meeking. Ground 1 must fail.

... Ground 3 involves a claim that Judge Byrne, by allowing the prosecution to proceed, denied the appellant legitimate defence material that par.(f) was not intended by Parliament to cope with. In effect the argument is that since the appellant showed he was not guilty of an offence under par.(b), Judge Byrne should not have allowed the case to proceed under par.(f). The charge before his Honour was laid under par.(f). The facts necessary to prove the charge were established. His Honour did not fi nd that the appellant had shown that he was not guilty of an offence under par.(b), and again the majority's reasoning in Mills v Meeking is applicable. None of the grounds in the appellant's originating motion was established.

... This issue raised a question of fact for his Honour to decide after a consideration of the evidence of the two expert witnesses. If his Honour accepted the evidence of Dr Ogden that an elimination rate as high as .03 per cent was not uncommon, then there was no contradiction between the breathalyser results and that of the blood test. Nor would any necessary doubt remain as to the accuracy of the

177

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAbreathalyser. This was an issue of fact decided by his Honour after hearing and seeing the witnesses. No error is shown in Judge Byrne's fact-fi nding process. The prosecution had tendered certifi cates as to the breathalyser having been in proper working order and having been properly operated, which, by virtue of s58(2), are conclusive proof of those facts. Nor is any error shown in Ashley J's reasoning on this issue.

... There remains the question whether any error on the face of the record is shown. The main thrust of the appellant's argument was that Parliament intended to limit the making of a charge under s49(1)(f) to circumstances where it was appropriate, for example a driver escaping after an accident, but that a charge under par.(f) was not appropriate in the circumstances of this case where there was no possibility of the appellant consuming alcohol in the intervening period. The appellant submitted that he should not have been charged except under s49(1)(b). He submitted that the proper construction of s49(1)(f) was that, expressly or by implication, it was a good defence to a charge under that paragraph if the defendant could establish that at the time of driving he did not have a blood alcohol reading over .05 percent.

The fi rst thing to be said about these arguments is that the appellant did not persuade Judge Byrne that, when he was intercepted, he did not have a blood alcohol reading over .05 percent. His Honour merely found, I repeat, that he had made out a "plausible" case. Secondly, there is no justifi cation in the wording of s49(1)(b) and (f) for giving these paragraphs the construction contended for by the appellant. Thirdly, this argument is an attempt to revive the interpretation given these paragraphs or their predecessors by Crockett J at fi rst instance, and by Dawson J in Mills v Meeking at pp231-236. The approach of Crockett J was, however, rejected both by the Full Court and the majority of the High Court, and the judgment of Dawson J was a dissenting one. The judgment of the majority in Mills v Meeking compels, I think, the rejection of these arguments.

In conclusion, the appellant invited this Court to read down s49(1) of the Act, or to amend it, and suggested a variety of methods by which this Court could add to or subtract from portions of various relevant sections of the Act. The fact that this Court cannot accept any such invitation merely emphasizes that the appellant's major complaint in this case is with the form of the legislation which Parliament has chosen to enact rather than with the conduct of the proceeding before Judge Byrne. In my view no error on the face of the record has been established in relation to the hearing of the charge before Judge Byrne, nor has any error been shown in Ashley J's careful and, I might add, sympathetic treatment of the appellant's arguments ([1995] VicSC 606). ..."

Per Charles JA (with whom Winneke P and Hayne JA agreed) in Thompson v Judge Byrne and Ors [1998] 2 VR 274; (1997) 93 A Crim R 69; MC 33/1997, 15 April 1997.

On Appeal to High Court—

194. Prescribed concentration of alcohol – breath samples furnished within 3 hours after driving exceeded prescribed limit – later blood sample showing concentration of alcohol within prescribed limit – whether offence committed – proper interpretation of s49(1)(f) of the Road Safety Act 1986 (Vic) – Precedent – Stare decisis – High Court – whether Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214; (1990) 91 ALR 16; (1990) 64 ALJR 190; (1990) 45 A Crim R 373; (1990) 10 MVR 257 should be reconsidered.

Gleeson, Gummow, Kirby and Callinan JJ:"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 affi rmed. No question therefore arises as to overruling it.

18. First, as a simple matter of construction, it is extremely diffi cult in the face of the language used by Parliament to confi ne the operation of par (f) to a case in which the motor vehicle in question "was involved in an accident". The precondition to the application of par (f) is nothing more than that, within three hours after driving or being in charge of a motor vehicle, the person charged has furnished a sample for breath analysis by a breath analysing instrument under s55(1). That section, as was pointed out, refers, in turn, to the conduct of a "preliminary breath test" under s53 of the Act. The last-mentioned section provides that a member of the police force may at any time require a person to undergo a preliminary breath test by a prescribed device if one of four stated circumstances exists. Two of the four expressly contemplate that the motor vehicle "was involved in an accident". But two of them have no such requirement. Relevant to the present case, it is suffi cient that the person is found "driving a motor vehicle or in charge of a motor vehicle". Had Parliament's purpose been to limit the undertaking of "preliminary breath tests" to the aftermaths of accidents, it would

178

DRINK/DRIVING in VICTORIAhave said so. If the legislature had done so, it would have severely circumscribed the availability of the police power to require persons to undergo preliminary breath tests.

19. Having omitted to confi ne the exercise of the power to post-accident situations, it is impermissible for a court to read such a condition into the requirements of the offence provided in par (f). The language of the Act is clear and unambiguous. The duty of a court is to give effect to the purpose of Parliament as expressed in that language. That obligation is not altered because the Act is penal in character.

20. Secondly, even accepting that the offence provided by par (f) is a far-reaching one, it is clearly enacted, as the stated purposes of the Part of the Act in which it appears make plain, to deal with a major social problem. The provision of the offence in such terms is the means by which Parliament has sought to achieve those generally stated purposes, viz to reduce the number of motor vehicle collisions to which alcohol or other drugs are causally related, to reduce the number of drivers whose driving is impaired by such causes and to provide a simple and effective means of establishing the presence in the blood of a driver of more than the legal limit of alcohol.

38. So it is in the case of the offence created by par (f) of s49(1) of the Act. The actual offence, as expressed, is not the driving or being in charge of a motor vehicle with the prescribed concentration of alcohol. It is, as the Commission described in its proposal, "failing the test". Legislation based on the Commission's report was enacted in the Australian Capital Territory. It included an offence in terms of the proposal. The "traditional" offence of driving under the infl uence (par (a)) and the later offence of driving with more than the prescribed concentration of alcohol present in the blood (par (b)) were re-enacted in Victoria when the present Act became law. The former carries a maximum penalty greater than that provided in respect of the offences enacted in pars (b) and (f) which share an identical penalty. Although the preconditions for the offences in pars (a) and (b) are not precisely the same, the survival of par (b) probably owes more to legislative apathy and the caution often exhibited in repealing criminal offences than to a conviction that par (b) is necessary for circumstances not adequately covered, in practice, by the offence provided for in par (f).

39. When this background to the creation of offences such as that contained in par (f) of s49(1) of the Act is understood, the decision which the Court reached in Mills is reinforced. Far from producing an outcome which was contrary to the parliamentary intention, which departed from the stated purposes of the relevant Part of the Act, or which was ambiguous or so drastic and unreasonable that another construction was demanded, the contrary is the case. Offences of this kind are now common not only throughout Australia but also overseas.

40. Still further confi rmation, albeit non-conclusive for this opinion, may be derived from the history of the legislation since the decision in Mills was announced. After the orders of the Full Court of the Supreme Court of Victoria, affi rmed in that case, Parliament amended the Act to address the particular problem of post-driving consumption of alcohol. Otherwise, it left the offence as provided by par (f) of s49(1) unchanged. Although there have been many amendments to the Act in the decade since Mills was decided, no amendment has been proposed, and none adopted, to repeal the provisions of par (f). The defects of the previous offences had led to a completely new approach to such offences. This new approach was apparently a deliberate one by Parliament. The duty of courts is to give effect to Parliament's clearly stated purpose. The "purposive approach" to the construction of legislation affords no authority to do otherwise. On the contrary, it obliges that approach.

Reopening, conclusion and order41. In the light of the conclusion that Mills was correctly decided, its authority must stand. There is no occasion, therefore, to consider the circumstances in which this Court will review one of its own decisions in which the law on a particular subject has been authoritatively expressed. The further exploration of those circumstances should await a case in which the Court is convinced that error has been shown.

42. The application that the Court reconsider and change its holding in Mills should be rejected. As special leave was only granted on the footing that the appellant sought to reopen Mills, and as he has failed to achieve that end, the proper order is that the grant of special leave should be revoked."

Per the High Court in Thompson v Byrne [1999] HCA 16; 196 CLR 141; 161 ALR 632; 73 ALJR 642, 14 April 1999.

195. Reading 0.101 – Whether such reading is more than 0.10 – Whether expert evidence admissible on such point – references in Act to readings limited to two decimal places – whether for penalty purposes court to consider readings of more than two decimal places.

B. pleaded guilty to an offence under the Road Safety Act 1986 (‘Act’) of exceeding the prescribed blood alcohol

179

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAlimit. The reading was certifi ed to be 0.101. On the plea, B. submitted that 0.101 was not necessarily more than 0.10 and sought to call expert evidence on the point. This was not permitted and B. was then fi ned, his driver licence cancelled and disqualifi ed from obtaining a licence for a period of 10 months. Upon appeal—

HELD: Appeal allowed. Remitted for further sentencing.1. The magistrate was correct in refusing to hear expert evidence from a mathematician because the question whether 0.101 is necessarily more than 0.10 is one of arithmetic and interpretation of the Act. It is not a proper subject for expert evidence.

2. The Act describes all blood/alcohol readings by reference to two decimal places. This evidences an intention so to limit the measurement of blood alcohol levels by breath testing and not be concerned with minute fractions which may be diffi cult to measure.

3. Accordingly, in considering whether one reading is necessarily more or less than another (for the purposes of penalty) the two decimal place measurement should be applied.

Hampel J:"... This appeal from a decision of a Magistrate raises a deceptively simple question whether, in the context of the Road Safety Act 1986 (Vic), the measurement of blood alcohol concentration of 0.101 is necessarily more than 0.10. The appellant was breath tested by an authorised instrument and his reading certifi ed to be 0.101 grams of alcohol per 100 millilitres of blood. He pleaded guilty to exceeding the prescribed limit of 0.05.

... In my opinion, the Magistrate was correct in refusing to hear expert evidence from a mathematician because the question whether 0.101 is necessarily more than 0.10 is one of arithmetic and interpretation of the Road Safety Act. It is not a proper subject for expert evidence.

The Road Safety Act describes all blood alcohol readings by reference to two decimal places. This evidences an intention so to limit the measurement of blood alcohol levels by breath testing. This is amply illustrated by the fact that section 52, which is described as “Zero Blood Alcohol”, in sub-section (2) relies on a concentration of 0.00. It is, I think clear that to call 0.00 zero, one must be limited to the second decimal place for, in truth, 0.001 is not zero except by the limitation of measurement by the Act. It follows, that the legislation intended to limit the measurement of blood alcohol readings to two decimal places and not be concerned with minute fractions which may be diffi cult to measure if taken, for example, to the fi fth or tenth decimal places.

Therefore, in considering whether one reading is necessarily more or less than another (for the purposes of penalty) the two decimal place measurement should be applied. It is, therefore, not appropriate to compare a three decimal place reading of 0.101 with the two decimal place reading of 0.10 because, if those two measurements are to be compared at the same decimal place then 0.10 could, in fact, be 0.102. The fact that the particular authorised instrument was capable of showing the reading to a third decimal place could not, in my opinion, determine the standard of comparison when the Act itself is limited in all of its references to two decimal places. It could not have been the intention of the legislature that if and when a machine is designed to show readings say, to ten decimal places, even if that machine be an authorised one, that such fi ne fractions, would defi ne the limits for the purpose of penalty.

... There is no evidence of any intention to extend the range of readings available to the court for the purpose of penalty to readings of more than two decimal places. The purpose of the Schedule is to re-state the prescribed limits for sentencing purposes; the prescribed limits are defi ned in the body of the Act, to two decimal places. The Magistrate, in my opinion, erred in holding, as he did, that he was constrained in sentencing to a reading of more than 0.10. He was therefore obliged to consider the penalty by reference to a reading of not more than 0.10 which means that he was obliged to consider whether or not to record a conviction, and whether or not to cancel the appellant’s licence. I therefore allow the appeal and remit the matter of sentence to the Magistrates’ Court."

Per Hampel J in Blanksby v Barnes [1998] 2 VR 164; 26 MVR 471; (1997) 96 A Crim R 92; MC 03/1998, 25 September 1997.

196. Single motor vehicle accident on country road at night – no witnesses to accident – emergency telephone call received by ambulance offi cer – ambulance attended scene – blood sample later taken – no admissions made or evidence given by defendant – no evidence given as to time of accident – whether open to Magistrate to fi nd that sample taken within 3 hours of accident – whether open to Magistrate to take accused’s failure to give evidence into account.

As a result of receiving an emergency call at 1.29am, ambulance offi cers attended the scene of a single motor vehicle accident where they saw C. sitting on a tree stump. A blood sample later taken from C. at 3.10am showed a blood alcohol concentration of 0.178%. C. made no admissions. C. was subsequently charged with an offence against

180

DRINK/DRIVING in VICTORIAs49(1)(g) of the Road Safety Act 1986. At the hearing C. did not give evidence and submitted that the magistrate could not be satisfi ed beyond reasonable doubt that the accident occurred within the prescribed 3 hours. The magistrate rejected this submission and found the charge proved. Upon appeal—

HELD: Appeal allowed. Conviction quashed.1. For the magistrate to be able to be satisfi ed beyond reasonable doubt that the blood test was taken within 3 hours of the driving of the motor vehicle, evidence was needed that would enable that inference to be drawn in the absence of any direct evidence about the time of the accident. The accident occurred on a country road at night where there would not be a great deal of passing traffi c or persons. It was possible for passing traffi c not to notice the vehicle. Having regard to these matters it was a matter for speculation to infer that the accident occurred within the 3-hour period. Accordingly, it was not possible for the magistrate to draw the necessary inference in the absence of evidence of the location. Scilley v Potter [1991] VicSC 15; (1991) 13 MVR 23; and Kislinsky v Spence [1989] VicSC 516; (1989) 10 MVR 163, considered.

2. As the drawing of the necessary inference was not open, it was not permissible for the magistrate to take into account the fact that C. did not give evidence. However, assuming a prima facie case had been made out, C. may not have been in a position to give evidence as to the time when the accident occurred. Further, the defi ciencies in the prosecution case may have accounted for C.’s remaining silent and relying on the burden of proof resting on the prosecution. In those circumstances, it was not open for the magistrate to take C.’s failure to give evidence into account in deciding whether to infer from the evidence that the last driving had occurred within the requisite 3 hours. Weissensteiner v R [1993] HCA 65; (1993) 178 CLR 217; (1993) 117 ALR 545; 68 A Crim R 251; 68 ALJR 23, applied.

Smith J:"... It was alleged before the Magistrates' Court that Chapman had a blood alcohol concentration of .178% grams per 100 millilitres of blood. The informant adduced evidence that the blood test was taken at 3.10 am. The informant also led evidence that:

(a) Joanne Kerr, an ambulance offi cer, received an emergency call at 1.29 am on the same morning;(b) that the ambulance offi cers attended at the scene of the accident at 1.57 am;(c) that the police attended the accident scene at approximately 2.00 am; and(d) the original emergency telephone call had been made from somebody who was at a camp site in close proximity to the scene of the accident via a mobile phone.

Critically, there was no direct evidence about the time of the actual accident. There was no evidence as to when it was that the emergency call was received and thus how much time elapsed until the ambulance service was contacted. There was no evidence as to the visibility in the area, the volume of traffi c at the relevant time and the proximity of the embankment to the road and whether and to what extent the car was visible to ordinary passing cars. There was no evidence as to when it was that the people at the campsite fi rst became aware of the accident, where they were at the time and how they became aware of it. Evidence was given, without objection, of conversations with people at the scene but not as to any of the above details. The accused made no admissions.

... Turning to the fi rst question in the appeal, for the magistrate to be able to be satisfi ed beyond reasonable doubt that the blood test was taken within three hours of the driving of the vehicle, evidence was needed that would enable that inference to be drawn in the absence of any direct evidence about the time of the accident. It was, it must be remembered, for the prosecution to prove that the sample was taken within three hours after the accident.

... Having regard to the foregoing matters, it seems to me that it would be a matter of speculation to infer, on the evidence led by the prosecution, that the accident had occurred within the three-hour period. It was not, in my view, open to the learned magistrate to draw that inference from that evidence.

... If the above be the correct response to question (a), it would not avail the prosecution to point to the fact that the accused had remained silent at trial. (Weissensteiner v R [1993] HCA 65; (1993) 178 CLR 217; (1993) 117 ALR 545; 68 A Crim R 251; 68 ALJR 23 and R v Neilan [1991] VicSC 138; [1992] VicRp 5; [1992] 1 VR 57; (1991) 52 A Crim R 303). The prosecution had to be in a position to point to the requisite inference as being open on the evidence and then argue, in the light of Weissensteiner, that such inference might more readily be drawn. If my view be correct that such an inference was not open on the prosecution case, it was not permissible for the learned magistrate to take into account the fact that the appellant did not give evidence.

... In determining whether the relevant inferences should be drawn, the court is always faced with the diffi culty that there is no evidence given to explain a decision not to give evidence. The accused is also entitled in a criminal trial to the benefi t of the presumption of innocence. It has often been

181

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIApointed out that there can be any number of reasons why an accused person will not give evidence.

... One matter that has not been considered in the authorities, as yet, is the signifi cance to be attached to the fact that the authorities relied upon in Weissensteiner were decided at a time when the right of the accused to make an unsworn statement existed. That right has now been abolished in this State and it seems to me that that introduces a further problem. It is one thing to attach signifi cance to the silence of the accused when the accused has the choice to either give sworn evidence or unsworn evidence and thus could, by giving unsworn evidence, give his account without running the risk of being convicted because of his inability to handle cross-examination.

With that right available it could be said that, if the accused had an explanation, the accused could be expected to give it. The choice facing an accused person now is to give evidence and be cross-examined or to remain silent. The inarticulate, excessively nervous or slow-witted accused runs the risk of being made to seem evasive or dishonest in cross-examination even though innocent.

In light of the above, it seems to me that this case was clearly one of those cases where even if the inference required was open applying the principles enunciated in Weissensteiner, it was not open to the learned magistrate to infer that the accused's evidence would not have assisted the accused on the issue of time. Thus the failure to give evidence could not properly be taken into account in deciding whether to infer from the evidence that the last driving had occurred within the requisite three hours. ..."

Per Smith J in Chapman v Kavanagh [1997] VicSC 608; (1997) 26 MVR 43; MC 06/1998, 10 December 1997.

197. Reading of 0.113%BAC – charge laid under s49(1)(f) of Road Safety Act 1986 – plea of guilty entered – reading disputed for purpose of sentence – expert evidence called – whether Magistrate in error in allowing such evidence to be given – post-driving consumption of alcohol – result of test confi rmed by expert – “relevant time” – whether relevant time is time of driving or time of test – result of analysis read down – whether Magistrate in error.

Whilst driving his motor vehicle, D. collided with a number of vehicles; a breath test later resulted in a reading of 0.113%BAC. On the hearing, D. pleaded guilty, inter alia, to a charge under s49(1)(f) of the Road Safety Act 1986 (“Act”). In seeking to prove that at the relevant time his blood alcohol concentration was not more than 0.10%, D. gave evidence that prior to and after the accident he had consumed a quantity of alcohol. D. was then allowed to call expert evidence to the effect that although the reading at the time of the test was correct, the relevant time for the purposes of the Act was his blood/alcohol concentration at the time of the accident. The magistrate found that at the relevant time D.’s blood/alcohol concentration was not more than 0.10%. Upon appeal—

HELD: Appeal allowed. Orders set aside. Remitted for further hearing.1. By pleading guilty, it was not open to D. to seek to rebut the presumption in s48(1A) of the Act to the effect that his blood/alcohol concentration was not due solely to the consumption of alcohol after driving. However, in relation to the question of sentence under s50(1AB), the Act does not preclude expert evidence being called on the question of sentence provided that such evidence is relevant to the issues and in admissible form. Accordingly, the magistrate was not in error in granting leave to D. to call expert evidence on the sentencing exercise.

2. In the present case, having regard to the relevant provisions of s50(1AB)(b), the issue was whether “at the relevant time the concentration of alcohol in the blood of the offender ... was not more than 0.10grams per 100 millilitres of blood”. The “relevant time” for the purposes of s49(1)(f) and s50(1AB)(b) of the Act is the time when the result of the analysis of the sample of breath as recorded was shown by the breath analysing instrument. What D.’s blood alcohol reading might have been at the time of the accident was not a relevant issue. In those circumstances, the expert evidence when called was not relevant to any issue under s49(1)(f) nor to sentencing under s50(1AB). Accordingly, it was not open to the magistrate to fi nd that D.’s blood alcohol concentration at the time of the test was not more than 0.10 per cent.

Gillard J:"... The magistrate then ordered with respect to charge 2 that the proceeding be adjourned for a period of 12 months and Mr Drucker be released upon an undertaking to be of good behaviour and to appear, if called upon, during the period of the adjournment. Mr Drucker was directed to pay $400 to the court fund. The same order was made with respect to charge 3, that is the careless driving charge, and on charge 5, Mr Drucker was convicted and fi ned $75 with $30 costs.

... At the outset it is to be noted that Mr Drucker pleaded guilty to the charge No. 2 brought under s49(1)(f) of the Act. ... As a result of pleading guilty, Mr Drucker admits each element of the charge. Charge 2 alleged that he had a concentration of alcohol being 0.113 grams per hundred millilitres of blood which was the analysis recorded by the breath analysing instrument.

182

DRINK/DRIVING in VICTORIA... Mr Drucker was represented by a barrister at the hearing. No application was made to withdraw his plea of guilty. The topic was not raised by anybody in the court. It is clear that the plea of guilty is a formal confession to the existence of every ingredient constituting the offence. By reason of the plea of guilty it was not open to Mr Drucker to seek to rebut the presumption which is found in s48(1A) of the Act. It is clear from s50(1A) that once a person is convicted or found guilty of an offence under s49(1)(f), the court must cancel the driving licence of that person for a period depending on the concentration of alcohol in the blood of the offender.

"The relevant time" for the purposes of s50(1AB) varies according to the particular offence. The magistrate was concerned with an offence under section 49(1)(f) of the Act. In my opinion, "the relevant time" under that paragraph refers to the time when the result of the analysis of the sample of breath as recorded was shown by the breath analysing instrument. In the present case the evidence clearly established that at the hour of 35 minutes past midnight on 7 June 1996 the reading was 0.113 grams per of alcohol per hundred millilitres of blood. That was the relevant time and that was the blood alcohol reading. Evidence which disputed that result would be relevant under s50(1AB). The evidence called on behalf of Mr Drucker did not address the issues at all and indeed in cross-examination of the expert, Mr Young, it was elicited that at the relevant time, namely, 35 minutes past midnight, the reading recorded by the breath analysing instrument was "a correct result".

... I am satisfi ed that the fi nding of the magistrate was not relevant to the issue under s49(1)(f) or s50(1AB). What Mr Drucker's blood alcohol reading might have been at the time of the accident is not a relevant issue, either in respect of an offence under s49(1)(f) or in relation to sentencing under s50(1AB). The relevant time is the time when the instrument recorded or showed the result of the analysis of the sample of breath. It was not open to the magistrate to fi nd that at that point in time the concentration of alcohol in the blood of Mr Drucker was not more than 0.10 per cent.

... Following on from the submission put by Mr Ryan in relation to ground 2, even though the evidence was called and even though, in my view, it was open to the magistrate to permit the evidence to be called, the evidence when called was not relevant to any issue on the sentencing and indeed, as I have already pointed out, provided some evidence in support of the case for the informant. It follows that the appellant has succeeded on the question of law (i). Accordingly, I will order that the appeal be allowed, that the orders made on charges 2 and 3 be set aside, that the proceeding in respect of both these charges be remitted to the magistrate to impose the correct penalties in accordance with these reasons. ..."

Per Gillard J in DPP v Drucker [1997] VicSC 609; (1997) 98 A Crim R 142; (1997) 27 MVR 248; MC 08/1998, 10 December 1997.

198(a). Preliminary breath test conducted – opinion formed by police offi cer that driver’s blood contained alcohol – driver not informed of the result of the preliminary breath test – whether any statutory requirement for police offi cer to inform driver of result of test – whether Magistrate in error in dismissing charges for failure to inform result of test.

198(b). Preliminary breath test conducted – result positive – statutory requirement to inform driver the purpose of being required to accompany – Magistrate not satisfi ed that driver informed of such purpose – whether such requirement is an element or pre-condition of an offence against s49(1)(b) and (f) of the Road Safety Act 1986 – whether Magistrate in error in dismissing charges.

1. DPP v ConstantinouHELD: Where a person undergoes a preliminary breath test when required by a police offi cer to do so under s53(1) of the Road Safety Act 1986 (“Act”), there is no requirement in s55(1) of the Act for the police offi cer to show to or inform the person tested of the result of the test. Accordingly, a magistrate was in error in dismissing charges under s49(1)(b) and (f) of the Act after concluding that it was a necessary element in the proof of those charges that the result of the preliminary breath test had to be notifi ed to the person tested.

2. DPP v NicholsonOn the hearing of charges laid against N. under s49(1)(b) and (f) of the Act, the magistrate was not satisfi ed that after N. had undergone a preliminary breath test, the police offi cer had told N. the purpose for accompanying the police offi cer to the police station. The magistrate concluded that it was a necessary element of both offences that the requirement to accompany for the purpose of a breath test be established. As this element was not established, the magistrate dismissed both charges. Upon appeal—

HELD: Appeal dismissed.Where a person has undergone a preliminary breath test, it is a necessary element or pre-condition of proof of an offence under s49(1)(b) and (f) of the Act that the requirements of s55(1) be complied with. One of the requirements of s55(1) is that the relevant police offi cer is obliged to state to the person tested the purpose of the requirement to accompany namely, to undergo a breath test. In the present case, as the magistrate was not satisfi ed that this requirement had been complied with, it was open to the magistrate to dismiss

183

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAboth charges. Dalzotto v Lowell [1992] VicSC 674; MC 06/1993; and McCardy v McCormack [1994] VicRp 73; [1994] 2 VR 517; (1994) 20 MVR 275; MC 19/1994, applied.

Hedigan J:DPP v Constantinou

"... The absence of any language in s55(1) that the police offi cer has to state to the person taking the preliminary breath test either the a result of the test or the opinion held, surely a simple piece of drafting, points strongly to the absence of any legislative intent that it should occur. The statement of the request to accompany and the necessity to undergo a further breath test is prompted by the result of the preliminary breath test. The purpose of requiring to accompany (for the purpose of having a breath test) and the reason that prompted the requirement are different concepts. I note also that there are no words in s55(2) (reasonable belief, without the aid of a preliminary breath testing device) that require the offi cer to state the grounds of his belief. For these reasons in my view the magistrate was wrong in concluding that it was a necessary element in the proof of breach of s49(1)(f) of the Act that the result of the preliminary had to be notifi ed to the person tested.

DPP v Nicholson... The fundamental feature of the defence in this case was that the prosecution had failed to prove beyond reasonable doubt that McInnes had informed Nicholson of the purpose for which he was required to accompany him to the police station. The magistrate accepted the defence evidence about what passed between McInnes and Nicholson which left a gap in the Crown case on s49(1)(f), namely the requirement to accompany.

... However, notwithstanding all this, none of it matters if the requirement to accompany is an element or pre-condition that has to be established for the purpose of the offence created by s49(1)(b) in a case where the full breath test was obtained as a consequence of a requirement to accompany made pursuant to s55(1) (in the case, as here of a preliminary breath test) or s55(2). I have already expressed my opinion that it is. This is enough to dispose of the appeal of Nicholson against the appellant on both charges and makes it unnecessary for me to decide the Bunning v Cross point. If I were incorrect in my view concerning the application of the s49(1)(f) necessities to s49(1)(b) in a preliminary breath test case, then it would seem that a conviction on s49(1)(b) would have to be recorded as all the other necessary elements were established. For the reasons given, the appeal in the case of Nicholson is dismissed. I will hear counsel on the form of orders and costs."

Per Hedigan J in DPP v Constantinou; DPP v Nicholson [1997] VicSC 645; (1997) 27 MVR 120; (1997) 98 A Crim R 558; MC 09/1998, 19 December 1997.

199. Pre-trial disclosure – breath analysing instrument, software and related documents sought – order made for uncontrolled delivery to defendant’s solicitors – whether open to order pre-trial disclosure of such objects – whether extent of order for delivery too wide.

At the contest mention hearing of a drink/driving charge, the Magistrate ordered that the police informant make available and deliver to the defendant’s solicitors the breath analysing instrument, related software and associated operating manual and documents. Upon appeal—

HELD: Appeal allowed. Order quashed.1. The statutory scheme for proof of the blood/alcohol content of a driver leaves to the driver the right to challenge the alleged alcohol content. Accordingly, the magistrate had power to order pre-trial disclosure of the relevant testing equipment, relevant software and documents. Gaffee v Johnson [1996] VicSC 604; (1996) 90 A Crim R 157, applied.

2. However, the magistrate had no power to order that the breath analysing instrument be handed over to someone else, out of the control of the owner and with no restrictions on what could be done with it.

Balmford J:"... On 21 May 1997 at the Magistrates' Court at Frankston, on the application of the defendant fi led on 2 May 1997, the Magistrate made the following order ("the magistrate's order"):

That the Informant forthwith makes available and delivers to the Defendants solicitors:1. Drager Alcotest 7110 serial number MRFK-0014.2. The software and/or any other apparatus or device used in connection with the Drager Alcotest 7110.3. Any technical data, operators or users manual and/or manufacturers instructions in relation to the use and operation of the Drager Alcotest 7110 and any software used in connection therewith.The question of costs is reserved.

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DRINK/DRIVING in VICTORIAThe magistrate’s order thus affects the machine, software and other apparatus, and documents.

... Mr Dennis submitted that, if I should fi nd that the magistrate had that power, the production of a machine was a different matter from the production of documents. To allow a party to examine documents was one thing. To hand over a machine without controlling what could be done with it was another. He referred to Order 37 of the General Rules of Procedure in Civil Proceedings, only as an indication of the manner in which, he submitted, the Supreme Court considered that such a power should be exercised. He did not suggest that that provision had direct operation in this matter. Order 37, which is headed "Inspection, detention and preservation of property" relates only to civil proceedings, where it has relevance in the Magistrates' Court as a result of Rule 1.14 of the Magistrates' Court Civil Procedure Rules.

... Mr Dennis pointed out that that Rule did not contemplate that property should be transmitted to another party to be under the possession and control of that party. It made specifi c provision for an order to be made specifying the way in which the property was to be treated by that party, and provided for orders to be made conditional on the giving of security for the costs and expenses of any person affected. He submitted that there was no authority for the making of an order as wide as that with which I am here concerned, and that clearly the Supreme Court had not considered it appropriate that such orders should be made. Pre-trial disclosure was not the same as uncontrolled pre-trial delivery. Neither section 136 of the Act, nor any incidental power of the Magistrates' Court, could authorise an order that a machine be handed over to someone else, out of the control of the owner, and with no restrictions on what could be done with it.

I accept that submission. Accordingly it is not necessary to consider the other issues which were raised before me. ..."

Per Balmford J in Kaschke v Hornsby & Anor [1998] VicSC 290; (1998) 27 MVR 337; MC 21/1988, 5 June 1998.

200. Breath test held in police car – “police station or other place” – meaning of – whether “other place” includes a police car.

HELD: 1. The expression “police station or other place” in s55(1) of the Road Safety Act 1986 (“Act”) must be construed in its legislative context and to serve the purposes of the legislation. In addition to the considerations which support a narrower construction of the expression, to apply the phrase “other place” to a police car requires “other place” to mean “any place” and renders the reference to “police station” superfl uous. Parliament must have intended that the phrase “or other place” should limit the operation of the section.

2. Construction of the phrase “or other place” requires at least a defi ned structure or space of some substance (not necessarily attached to land) but when in use having a connection to a location of some permanence giving it a degree of localisation. A “booze bus” is like a mobile police station and can serve a similar purposes. A police car is not and cannot serve such a purpose.

3. Accordingly, a magistrate was not in error in dismissing charges under s49(1)(b) and (f) of the Act where the breath test on the defendant had been conducted in a police car.

Smith J:"... In all the circumstances, I am satisfi ed the issue of admissibility of the evidence did not arise in the proceedings. Rather, the issue whether or not the expression "or other place" applied to a police vehicle arose in the context of whether an offence had been committed.

... 23. In construing the provisions, it must be remembered that they are privative provisions which require persons to provide evidence incriminating them. They involve a curtailment of citizens' rights and immunities. They should therefore be construed in favour of a defendant to the extent of any ambiguity.

... 25. The expression "other place" must be construed in its legislative context and to serve the purposes of the legislation. To apply the phrase "other place" to a police car, however, requires "other place" to mean "any place" and renders the reference to “police station" superfl uous. Parliament did not use the expression "any place". It could easily have done so if that was its intention. Parliament intended that the phrase "or other place" should limit the operation of the section.

26. Construing the language of the section without the assistance of Hansard, I would have concluded that the words "other place" required at least a defi ned structure or space of some substance either attached to land or having a connection to a location of some permanence giving it a degree of localisation. It would also need to be a space capable of substantially serving the purposes of a police station.

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PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIA27. With the assistance of Hansard, it would seem that Parliament had the above in mind but not necessarily attached to land in that it wanted the words to cover a "booze bus" and thus a mobile location but one with a connection to a particular location of some permanence when in use. A "booze bus" is like a mobile police station and can serve similar purposes. A police car is not and cannot.

... 30. I am persuaded, therefore, that the expression "police station or other place" was not intended to include police cars. At best for the appellant, the provision is ambiguous and should, therefore, be construed in a manner favourable to the defendant. ..."

Per Smith J in DPP v Williams [1998] VSC 119; (1998) 104 A Crim R 65; (1998) 28 MVR 521; MC 30/1998, 23 October 1998.

201. Offence against s49(1)(f) of Road Safety Act 1986 – elements of – "under s.55(1)" – whether "requirements" specifi ed in s55(1) are elements of the offence – whether prosecution required to prove that each of the "requirements" were imposed on the motorist – offence against s49(1)(b) – whether compliance with s55(1) an element of the offence.

Section 49(1)(f) of the Road Safety Act 1986 ('Act') provides:

"A person is guilty of an offence if he or she— … within 3 hours after driving … furnishes a sample of breath for analysis by a breath analysing instrument under section 55(1) …"

Section 55(1) of the Act provides that where a person undergoes a preliminary breath test when required and the test is positive a police offi cer may require the person to —• furnish a sample of breath• accompany the offi cer to a police station• remain there until the sample has been furnished or 3 hours have elapsed.

HELD: By the Court: 1. Proof of the offence created by s49(1)(f) of the Act does not require the prosecution to establish that the informant has, following the administration of the preliminary breath test, imposed on the motorist, in compendious and imperative terms, each of the "requirements" to which s55(1) of the Act refers. DPP v Foster & Bajram [1999] VSC 91, Hampel J, 29 March 1999, reversed.

2. Accordingly, magistrates were in error in dismissing charges because of a failure by the informants to tell the motorists at the outset not only that they were required to accompany police to the police station but that they were required to remain at the police station until the sample of breath had been furnished or 3 hours had elapsed from the time of driving, whichever was the sooner.

Winneke P (with whom Batt JA agreed):3. None of the "requirements" referred to in s55(1) of the Act is an indispensable pre-condition of, or ingredient in, the proof of the offence created by s49(1)(f). They are powers which the legislature has invested in police offi cers in order to effectuate the purpose and policies of the Act and may be exercised as and when the circumstances dictate. Walker v DPP [1993] VicSC 245; (1993) 17 MVR 194, followed. Dalzotto v Lowell [1992] VicSC 674; MC 37/1993; and McCardy v McCormack [1994] VicRp 73; [1994] 2 VR 517; (1994) 20 MVR 275, disapproved.

The Court: 4. Charges laid under s49(1)(b) and (f) of the Act are discretely different offences which involve proof of different ingredients. Compliance with s55(1) is not an element of the offence created by s49(1)(a) or s49(1)(b) or the other offences in respect of which a certifi cate of analysis, obtained after a preliminary breath test, might be admissible. DPP v Nicholson [1997] VicSC 645; (1997) 98 A Crim R 558; (1997) 27 MVR 120, disapproved.

Winneke P:"...7... The submission made, in each case, was substantially similar. It was that, in order to prove the commission of the offences prescribed by paragraphs (b) and (f) of s49(1) of the Act, it was necessary for the informant to have “required” the person furnishing the breath sample to “remain at the police station until the sample was furnished or for a period of up to 3 hours from the time of driving, whichever was the sooner”. This, it was said, was a “requirement” provided for by s55(1) of the Act and was a necessary ingredient of the offences charged.

... 11. The arguments advanced on the appeal thus centred largely upon the meaning of the opening words creating the offence described in s49(1)(f) of the offence, namely:

“A person is guilty of an offence if he ...(f) within 3 hours after driving ... furnishes a sample of breath for analysis by a breath analysing instrument under s55(1) ...” (emphasis added).

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DRINK/DRIVING in VICTORIA... 14. Unaided or, perhaps more importantly, unimpeded by authority, I would have had no doubt that the submissions of Mr Hillman on behalf of the Director were correct; namely that it is not an essential element in the proof of the offence under s49(1)(f) of the Road Safety Act 1986 that the requirements, referred to in s55(1), have been made by a police offi cer in a compendious and coercive form. Likewise I would have had no doubt that it is unnecessary, in proof of that offence, for the prosecution to establish that the relevant police offi cer who had formed the opinion under s55(1)(a) had, then and there, required the motorist to “remain” at a police station where he was not at that time, and might never be. Section 49(1)(f) requires for its proof, inter alia, that the motorist has “within 3 hours after driving ... furnish[ed] a sample of breath ... under s55(1).”

... 21. These cases, Mr Holdenson submitted, erect a formidable barrier of binding authority from which this Court cannot retreat. They bind this Court to conclude, he submits, that not only is the requirement to furnish a sample of breath for analysis an essential pre-condition in proof of the offence under s49(1)(f), but so is the requirement to accompany the police offi cer “to a police station or other place” as well as the obligation to inform the motorist of the reason for the latter requirement.

... 24... In my view, Walker’s case is clear authority for the proposition that a sample of breath said to be furnished “under” s55(1) is such a sample notwithstanding that it has been furnished willingly and without a formal demand. In my own view, as I have said previously, it would be an affront to common sense if the contrary view were to prevail.

... 25... It would, in any event, be diffi cult to conceive of circumstances where a motorist has furnished a sample of breath into an analysing machine without some request, formal or informal, having been made. However, it is not in my view necessary that a “demand” in imperative terms should have been made as a pre-requisite to proof of a “requirement”. A request in precatory or polite terms by a person clothed with apparent authority will be suffi cient to satisfy the requirement to “furnish a breath test”, if indeed such a requirement is an element of the offence under s49(1)(f). (R v Clarke [1969] 2 All ER 1008; [1969] 2 QB 91; Cullen v Huffa [1970] SASR 155; Rankin v O’Brien [1986] VicRp 7; [1986] VR 67; (1985) 2 MVR 503.)

26. I am prepared to accept, for present purposes, that the authorities to which Mr Holdenson refers oblige the Court to fi nd that the prosecutor must prove that the motorist has been “required” to furnish a sample of breath for analysis as a necessary pre-condition of proof of the offence created by s49(1)(f). But, for the reasons already given, I do not accept that the “requirement” must be made in terms of an imperative demand. Nor do I accept that any such requirement is to be made “at the outset” in the sense that it must be made at the scene of the preliminary breath test. It is, to my mind, abundantly plain from a reading of s55(1) that the requirement to furnish a sample of breath for analysis by a breath analysing instrument can only sensibly be made at the time when the device is presented to the motorist at the police station (or other place). That, as I see it, was the view taken by Southwell J in Rankin v O’Brien (supra, at 73) when considering different, but for present purposes, similar legislation which existed in s80F of the Motor Car Act 1958. Indeed, in my view, the words of s55(1) themselves imply that the requirement to “furnish a sample of breath” is to be made when the instrument is presented to the motorist because it is stated that the relevant member of the police force “may require the person to furnish a sample of breath for analysis and for that purpose may further require the person to accompany a member of the police force … to a police station …” (my emphasis). In other words, the section itself makes it plain, as I see it, that the power to make the latter requirement is to facilitate the purpose for which the power to make the primary requirement is given, which can only sensibly be exercised when the motorist is confronted with the machine.

... 33. That is enough to dispose of these appeals. The failure to inform the respondents “at the outset” that they were “required” to remain at a police station until the sample of breath had been furnished or for 3 hours from the time of driving could not lead to the conclusion that the samples of breath furnished were not furnished “under s55(1)”. ..."

Per Winneke P (with whom Ormiston and Batt JJA agreed) in DPP v Foster; DPP v Bajram [1999] VSCA 73; [1999] 2 VR 643; (1999) 104 A Crim R; (1999) 29 MVR 365; MC 01/1999, 298 May 1999.

202. Operation of breathalyser – not operated in accordance with manufacturer's manual – expert evidence given to the effect that instrument not operated properly – defence under s49(4) of Road Safety Act 1986 – nature of – fi nding made that instrument not properly operated – charge found proved – whether Magistrate in error.

Section 49(4) of the Road Safety Act 1986 ('Act') provides:

It is a defence to a charge under paragraph (f) of sub-section (1) for the person charged to prove that the breath analysing instrument used was not on that occasion in proper working order or properly operated.

After hearing evidence from a Breathalyser operator and an expert in respect of the operation of the instrument, a

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PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAmagistrate found that the instrument was not properly operated on the relevant occasion. However, the magistrate found the charge proved indicating that the defendant had failed to show that the reading obtained was incorrect. Upon appeal—

HELD: Appeal allowed. Conviction quashed.1. Having regard to s49(4) of the Act, what the defence must establish is proof of the probability or possibility, as opposed to certainty, that the result of the incorrect operation of the instrument would be unreliable – in effect, would produce a wrong fi nding. Fitzgerald v Howey [1995] VicSC 427; (1995) 24 MVR 369, applied.

2. The magistrate applied the wrong test. Having found that the instrument was not properly operated and applying the appropriate test, the magistrate could have found that it was probable that the result was a wrong fi nding and accordingly, dismissed the charge.

Balmford J:"... 9. Mr Hardy's principal submission related to section 49(4) of the Act. In the passage quoted in paragraph 5 above the magistrate had found that the instrument was not properly operated, but that for the accused to establish a defence under sub-section (4), there was an obligation on the defence to show, not only that the instrument was not properly operated, but also that the reading was incorrect. Mr Hardy submitted that there was authority, established since the time of the fi nding by the Magistrate, that it was not necessary for the defence to show that the reading was incorrect.

... 12. As to the fi rst ground of appeal, it has become clear, since the time of making of the decision under appeal, that what the defence must establish is proof of the probability or possibility, as opposed to the certainty, that the result of the incorrect operation of the instrument would be unreliable – in effect, would produce a wrong fi nding (see the discussion by Eames J at page 379 of Fitzgerald). The Magistrate's decision was accordingly wrong in law, in that he applied the wrong test to the evidence before him.

... 14 ... Relying, as I must, on the unchallenged affi davit material before me, I fi nd that the prosecutor expressly accepted the qualifi cations of Mr Young as an expert in respect of the operation of the breathalyser instrument; and that there was evidence from Mr Young from which the Magistrate could have found, had he applied what has since his decision been established as the appropriate test, that it was probable that the result of the instrument not being operated properly was a wrong fi nding. I refer to paragraphs 33(e), (i), (j), (n) and (o) and 35(d) of the appellant's affi davit. There is nothing in the material before me to suggest that that evidence of Mr Young was challenged before the Magistrate. The evidence is such that it is not necessary for me to consider the question as to whether the defence must establish the probability or merely the possibility that the result is unreliable.

15. Accordingly I fi nd that the defence under section 49(4) of the Act is established. The appeal will be allowed."

Per Balmford J in Williams v Jacobs [1999] VSC 88; (1999) 29 MVR 24; MC 02/1999, 29 March 1999.

203. Offence against s49(1)(e) of Road Safety Act 1986 – elements of – whether making of a requirement an essential ingredient of offence – failure to allege making of requirement in charge – whether defect in substance or form – amendment made by Magistrate – "refuse" – meaning of – whether Magistrate in error in making amendment.

Section 27(1) of the Magistrates' Court Act 1989 provides:

(1) A charge must describe the offence which the defendant is alleged to have committed and a description of an offence in the words of the Act or subordinate instrument creating it, or in similar words, is suffi cient.

B. was charged with refusing to accompany a police offi cer to a police station for the purpose of furnishing a sample of breath for analysis. The charge failed to allege specifi cally that a requirement to accompany was made. At the hearing of the charge B. submitted that without the allegation of the making of a requirement the charge did not disclose an offence known to law. The prosecutor applied for an amendment of the charge to include the making of the requirement. The magistrate granted the application, made the amendment and subsequently convicted B. of the charge. Upon appeal—

HELD: Appeal dismissed.1. Given that the making of a requirement is an essential ingredient of the offence with which B. was charged, the question was whether the failure to allege specifi cally that the requirement was made was such a defect that the charge was bad as not disclosing an offence known to law. DPP v Bajram; DPP v Foster [1999] VSCA 73; [1999] 2 VR 643; (1999) 104 A Crim R 426; (1999) 29 MVR 365; MC 01/1999, applied.

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DRINK/DRIVING in VICTORIA2. The meaning and effect of any written document must depend on the words appearing in that document. The use of the word "refuse" in the charge implied the previous making of a requirement or request. It is not possible for a person to refuse to do something which that person has not been required or requested to do. When the charge was interpreted according to the ordinary meaning of the words used, the allegation that B. "did refuse to accompany …" must have necessarily implied an allegation of a requirement or request to accompany. It could not be said that the absence of a specifi c statement of the making of the requirement would have left B. in any doubt, on reading the charge, as to what was alleged against him both as to the nature of the offence and as to the acts said to constitute that offence. Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467; [1938] ALR 104; and Pointon v Cox (1927) 136 LT 506, applied.

3. In those circumstances, the charge (prior to its amendment by the Magistrate) suffi ciently described an offence under the Road Safety Act 1986.

Balmford J:" ... 8. At the outset of the hearing before the Magistrate, counsel for the defendant submitted that the charge was defective in that it alleged that the defendant had refused to accompany a member of the police force to a police station, but did not allege that he had been required to do so. It was put that the making of a requirement to accompany was an essential element of the offence, the refusal itself being the other element, and without the allegation of the making of a requirement the charge did not disclose an offence known to the law.

... 11. It is clear that the making of a requirement is an essential ingredient of the offence with which the appellant was charged. The authorities on the requirement to furnish a sample of breath, also contained in section 55(1), are equally applicable to the requirement to accompany a member of the police force to a police station.

... 16. Given what I have found to be the effect of the verb "refuse", I fi nd that by the use of that word, as required by section 49(1)(e), the charge "sets forth the acts which are relied upon as constituting the offence" (Latham CJ in Johnson v Miller); apprises the defendant of "the particular act, matter or thing alleged as the foundation of the charge" (Dixon J in Johnson v Miller); tells the accused "what law, statutory or other, he is alleged to have broken; and … with reasonable particularity how he is alleged to have broken that law" (Salter J in Pointon v Cox); and, fi nally, "describes the offence" as required by section 27 of the Magistrates' Court Act. ..."

Per Balmford J in Bell v Dawson [2000] VSC 169; (2000) 31 MVR 111; (2000) 114 A Crim R 26; MC 01/2000, 9 May 2000.

204. Charge alleging failure to accompany police offi cer – statutory provision only provides for refusal to comply – "similar words" – meaning of "similar" – whether words "fail" and "refuse" are similar – no statement in charge that police offi cer formed requisite opinion – charge found proved – whether error disclosed.

A charge laid under s49(1)(e) of the Act failed to state that the police informant formed an opinion pursuant to s55(1) of the Act. Further, the charge alleged that the defendant "did fail" to comply with a requirement to accompany a member of the police force to a police station for the purposes of a breath test. At the hearing, the defendant submitted that a "refusal" rather than a "failure" was an essential element of the offence and that without the allegation of a refusal to accompany, the charge did not disclose an offence known to the law. The magistrate rejected this submission and convicted C-B. On appeal to the County Court, the learned judge in dismissing the appeal, found that the words "fail" and "refusal" were similar words within the meaning of s27(1) of the Magistrates'' Court Act 1989. Upon a summons on originating motion for an order in the nature of certiorari—

HELD: Summons dismissed.1. Section 27(1) of the Magistrates' Court Act 1989 provides that in a charge a description of the offence in "similar words" to the words of the Act is suffi cient. The relevant meaning of "similar" is defi ned in the Oxford English Dictionary, (2nd ed) as "Having a marked resemblance or likeness; of a like nature or kind". The word "fail" is suffi ciently similar to the word "refuse" to enable the defendant to be aware of the nature of the charge. The charge was suffi cient to allow the defendant to realise that the test to be applied was that the defendant had allegedly refused to comply with a requirement made.

2. The omission of any recital in the charge to the effect that the police informant had formed the required opinion does not invalidate the charge. The defendant would not have been in any doubt, on that ground, of what was being alleged. The formation of the opinion could be dealt with as a matter of evidence.

Balmford J:"... 3. The charge pursuant to which the plaintiff was convicted reads as follows:

The defendant at Gembrook on the 15/11/95 being the driver of a motor vehicle and after having

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PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAbeen required to have a preliminary breath test and when further required to furnish a sample of breath for analysis by a breath analysing instrument pursuant to s55(1) of the Road Safety Act and for that purpose a requirement was made for you to accompany a member of the police force to a police station such requirement you did fail to comply with.

... 5. It is apparent from the terms of the charge that it relates to a failure to accompany a member of a police force to a police station.

... 7. At the outset of the hearing before the Magistrate, counsel for the plaintiff submitted that the charge was defective in that it alleged that the plaintiff had "failed" to accompany a member of the police force to a police station, but did not allege that she had "refused" to do so. It was put that a "refusal", rather than a "failure" was an essential element of the offence, and that without the allegation of a refusal to accompany, the charge did not disclose an offence known to the law. The prosecutor applied to amend the charge to delete the word "fail" and replace it with the word "refuse". Counsel for the plaintiff submitted that as the twelve month limitation period under section 26(4) of the Act had long expired, it was not possible to amend the charge because that would have the effect of creating a new charge and would be out of time. The Magistrate rejected that submission, but did not allow the amendment and proceeded to convict and sentence the plaintiff, as set out in paragraph 2 above, on the basis of the charge as it stood.

... 21. That section provides that in a charge, a description of the offence in "similar words" to the words of the Act is suffi cient (see paragraph 6 above). The relevant meaning of "similar" is defi ned in the second edition of the Oxford English Dictionary as "Having a marked resemblance or likeness; of a like nature or kind." I would agree with the view of Judge Ross, expressed in his ruling set out in paragraph 9 above, both as to the relevance of the word "similar" and, in the light of the authorities cited in paragraph 12 above, as to the suffi ciency of the charge for its purpose.

... 23. As to Mr Billings's second submission, he emphasised that section 55(1) has the effect of empowering a member of the police force to deprive a person of liberty, and submitted that that deprivation could not be effective without the formation of the relevant opinion. However, the omission of any recital to the effect that the member of the police force had formed the required opinion does not, in my view, invalidate the charge. The plaintiff would not have been in any doubt, on that ground, of what was alleged against her. The formation of the opinion could be dealt with as a matter of evidence.

... 26. As to the third submission of Mr Billings, while the drafting of the charge cannot be described as elegant, I do not fi nd it to be imprecise, ambiguous, duplex, incomprehensible or otherwise bad in law. The plaintiff would have been well aware of what was alleged against her, in terms of both section 27 and the authorities cited in paragraph 12 above. ..."

Per Balmford J in Cooper-Baker v His Honour Judge Ross and Anor [2000] VSC 221; (2000) 31 MVR 235; (2000) 114 A Crim R 40; MC 02/2000, 31 May 2000. 205. Certifi cate of breath analysis – police offi cer no longer in police force at time of hearing – certifi cate not admitted into evidence – whether Magistrate had discretion to exclude certifi cate on grounds of unfairness – case said to be "rather unusual" – admission of certifi cate could cause conviction – said to be unfair result – express purpose of legislation not taken into account – whether Magistrate erred in exercise of discretion.

Whilst driving his motor vehicle, M. was involved in a collision with another vehicle. After exchanging names and addresses, M. – who had consumed alcohol before the accident – waited at the scene for some time and then walked home where he consumed a further quantity of alcohol. Subsequently M. was subjected to a full breath test which showed a reading of 0.131% BAC. M. was later charged with drink/driving offences pursuant to section 49(1)(b) and (f) of the Road Safety Act 1986 ("Act") and careless driving. Prior to the hearing, M. gave notice under s58(2) of the Act that he required the police offi cer giving the certifi cate to be called to give evidence. However, on the hearing, the police offi cer was no longer a member of the police force and had left the State of Victoria. In those circumstances, s58(2C) of the Act required the court to order that s58(2) had effect as if notice had not been given and accordingly the certifi cate, if admitted into evidence, would have been conclusive proof of the matters set out in s58(2)(a-f) of the Act. Following a submission from M.'s counsel, the magistrate excluded the evidence of the certifi cate with the result that both drink/driving charges failed. The magistrate based his ruling on the fact that the facts of the case were "rather unusual" or "peculiar and particular", that M. "did all the right things at the accident scene" and that admission of the certifi cate would cause "a very signifi cant unfairness" to M. Upon appeal—

HELD: Appeal allowed.1. There is a discretion in a criminal case to reject any evidence on the ground that to receive it would be unfair to the accused in the sense that the trial would be unfair. Accordingly, the magistrate had a discretion to exclude from evidence the certifi cate of analysis of breath issued pursuant to s55(4) of the Act which had been lawfully and properly obtained. Given the existence of the discretion, the question was whether it was

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DRINK/DRIVING in VICTORIAproperly exercised in the circumstances. Rozenes v Beljajev [1995] VicRp 34; [1995] 1 VR 533; (1994) 126 ALR 481; 8 VAR 1, applied.

2. The unfairness which the magistrate perceived was not any unfairness in the conduct of the trial itself but rather if the certifi cate were admitted into evidence M. would be convicted and that would be an unfair result. The admission into evidence of the certifi cate would have had the effect that the legislation was operating as it was intended to operate and any unfairness to M. was an unfairness intended by the legislation.

3. The magistrate acted on wrong principles, was guided by irrelevant matters and did not take into account the express purpose of the legislation. For those reasons, the magistrate erred in the exercise of the magistrate’s discretion.

Balmford J:"... 7. The legal representatives of the respondent gave notice within the prescribed time pursuant to sub-section 58(2) of the Act requiring that Constable Hinchen, the person giving the certifi cate, be called to give evidence before the Magistrates' Court. However, when the matter came on for hearing, Constable Hinchen was no longer a member of the police force, she had left the State of Victoria and it was not reasonably practicable to secure her attendance. That being so, sub-section 58(2C) of the Act required the Court to order that sub-section 58(2) had effect as if the notice had not been given. Accordingly, the certifi cate, if admitted into evidence, would be conclusive proof of the matters set out in paragraphs (a) to (f) of that sub-section.

8. The respondent said in evidence that he had consumed two cans of full strength beer between 4pm and 4.50pm (i.e. before the accident) and a further four to fi ve cans of full strength beer at home after the accident. His evidence as to the drinks before the accident, but not his evidence as to the drinks after the accident, was corroborated.

... 14. On the basis of those passages it would be diffi cult to maintain that there is not a residual discretion to exclude evidence on the ground that to receive it "would be unfair to the accused in the sense that the trial would be unfair". The answer to the fi rst question accordingly should be Yes.

... However, it cannot be said that the Magistrate had, on the basis of the second passage quoted above from Rozenes, a discretion to exclude the certifi cate on that ground. Sub-section 58(2C) provides expressly that the effect of such unavailability is to restore the operation of sub-section 58(2) as to the admissibility of the certifi cate and the proof of the matters set out in that sub-section. It cannot be said that the intention of the legislature was, in those circumstances, to confer a discretion to exclude the certifi cate, when the effect of the unavailability of the maker of the certifi cate is so precisely set out.

17. That, of course, was not the basis upon which the Magistrate excluded the certifi cate. There seem to be three matters which he took into account. The fi rst was his fi nding that the facts of the case were "rather unusual" or "peculiar and particular". The second was his fi nding that the respondent "had done all the right things at the accident scene". And the third, it would seem from the passages cited above, was a view that the effect conferred upon the certifi cate by the presumptions set out in paragraph 48(1)(a) (relating to the charge under paragraph 49(1)(b)) and sub-section 48(1A) (relating to the charge under paragraph 49(1)(f)) was unfair to the respondent.

... 21. Considering the exercise of the discretion by the Magistrate in the light of the authorities to which I have referred, I am satisfi ed that he acted on wrong principles, and was guided by irrelevant matters, and did not take into account the express purpose of the legislation. For those reasons, his exercise of the discretion should not be allowed to stand. The answer to the second question must therefore be Yes.

Per Balmford J in DPP v Murphy [2000] VSC 458; MC 39/2000, 3 November 2000.

206. Driver requested to go to booze bus and remain there until breath sample given – sample of breath furnished – driver asked to wait for second sample – driver left bus to have cigarette – remained close to steps of bus in company of two police offi cers – “other place” – meaning of – whether includes bus itself – whether driver remained linked to that place – whether driver remained there for purposes of Act – whether the requirement to remain in the bus was an unreasonable requirement – evidence – at trial informant refreshed memory from written statement – defence counsel cross-examined informant using statement – document admitted into evidence – whether magistrate in error.

M. was intercepted driving a motor vehicle. After undergoing a preliminary breath test, M. was required by the informant H. to accompany him to a booze bus for the purpose of a breath test and to remain there until a sample of breath was furnished and a certifi cate of analysis given. M. complied with this request and underwent a breath test. The result showed “alcohol in mouth” and M. was told to wait a further 15 minutes. M. said she wanted to

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PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAgo outside and have a cigarette. She left the vehicle, obtained a cigarette from her partner but remained close to the steps of the bus in the company of two police offi cers. Subsequently M. became involved in a dispute and was later arrested and charged with an offence against s49(1)(e) of the Road Safety Act 1986 and an offence against s52(1) of the Summary Offences Act 1966. At the hearing of the charges, H. refreshed his memory from a copy of a written statement he had made earlier and was cross-examined by defence counsel, using the statement, about what happened at the scene. The magistrate stated that as defence counsel cross-examined on the statement it would be admitted into evidence for all purposes. At the close of the case, M. was found guilty of the charges. Upon appeal—

HELD: Appeal allowed. Conviction on the drink/driving charge quashed.1. The words “other place” mean the booze bus itself; however, it does not follow that by going outside the bus M. ceased to “remain there”. A person can remain at the “other place” notwithstanding that that person may be outside its four walls. The critical question is whether the person remained linked to that place.

2. In the present case, M. remained in close proximity to the bus. It could not be shown that she did not intend to return inside the bus to be tested and she had not entered another “place”. On the evidence, the link with the bus remained. Accordingly, it was not open to the magistrate to fi nd that M. refused to “remain there”.

3. It was not disputed that all M. wished to do was to go outside the bus to smoke a cigarette. There was nothing to indicate that she would not in due course, after her cigarette, submit to a breath test. Further, while M. was outside the bus, she was kept under observation by two police offi cers. In those circumstances it was not open to the magistrate to fi nd that a requirement that M. remain within the confi nes of the bus was a reasonable requirement. DPP v Webb [1993] VicRp 82; [1993] 2 VR 403; (1992) 16 MVR 367, applied.

4. The magistrate was in error in taking the view that counsel having cross-examined the witness on the prior statement to show inconsistency between the evidence and the statement was obliged to tender the document. The relevant section was s36 of the Evidence Act 1958.

Smith J:"... 7. From the time the issue of a cigarette was raised the appellant behaved in an angry manner and used colourful language to express her feelings. At no time, however, did she say she would not give a further sample (and that was not alleged) or that she wanted to leave the site. There was evidence that she briefl y went inside the van to get her bag but returned outside to the same position – close to the steps of the bus. Otherwise, she was at all times in close proximity to the bus and the offi cers. The evidence was that, shortly after she came out of the bus the second time, a dispute broke out initially between the police and Moore. The appellant became involved and was arrested along with Moore for certain offences. The appellant was subsequently charged with the offence under s49(1) (e) of the Act.

... 17. If, however, the judge does have a statutory discretion to require a cross-examining party to tender a document used in cross-examination, the circumstances of the case did not warrant such a course. Up to the moment of the tender of the document the witness had admitted the specifi c contents put to him and the lack of a reference in it to the appellant Mansfi eld returning inside the booze bus. As I read the transcript, he was not otherwise challenged using the document. In those circumstances there was not, in my view, any proper basis upon which the issue might have been said to arise as to whether cross-examining counsel should be required to tender the documents. There was no reason why the respondent could not have tendered it if he had wished, and, if it was admissible for a relevant purpose, had it admitted into evidence (cf Wood v Desmond (1958) 78 WN (NSW) 65, 69).

18. I am satisfi ed, therefore, that error has been shown in his Worship's decision to require cross-examining counsel to tender the document.

... 33. It does not follow, however, that, in going outside the bus, she ceased to "remain there". Those words require the person being tested to remain at the "other place". That person, however, can remain at the other place notwithstanding that that person may be outside its four walls. What is critical is the question of whether the person remains linked to that place. For example, if a person were taken to a police station for the purpose of breath analysis under s55 and, while the equipment was being set up, stood immediately outside the front entrance while smoking a cigarette fully intending to return for the test and remaining under police supervision it could not be said that that person had refused to remain at the police station. What is critical is the proximity to the "other place" and the continuation of the purpose for which the person was taken there and the fact that the person has not gone to another place.

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DRINK/DRIVING in VICTORIA34. Ultimately it becomes a question of fact. The case here, however, was presented by the respondent to the learned magistrate and determined on the basis that merely leaving the four walls of the bus involved ceasing to remain at the bus. For the above reasons, I have concluded that that construction was incorrect. Applying the above alternative construction it was not open, in my view, to fi nd that there had been a severing of the link between the visit of the appellant to the bus and the bus. On the evidence, she remained in close proximity to the bus. It could not be demonstrated that she did not intend to return inside the bus to be tested and she had not entered another "place". On the evidence the link with the bus remained. Thus, it was not open to fi nd that the appellant refused to "remain there".

... 37. In my view, it was not open to fi nd that a requirement that the appellant remain within the confi nes of the bus was a reasonable requirement. It was not disputed on the evidence that all the appellant wished to do was to go outside to smoke a cigarette. While she reacted angrily to statements by the police about her obligation to submit to a breath test, there was nothing to indicate that she would not in due course, after her cigarette, submit to a breath test. The operator, Sergeant Horman, acknowledged in evidence that to smoke a cigarette would not affect the breath analysis. It was also common ground that while outside the bus the appellant was kept under observation by the two police offi cers. This was plainly available as a consideration when the appellant asked to leave the booze bus to smoke a cigarette — thus addressing any concern the police might have had that she might do something to compromise the next attempt at breath analysis. She remained close to the bus and there was nothing to indicate that she had thoughts of leaving the site without taking part in the breath test. What she wanted was a cigarette.

Conclusion38. For the above reasons the appeal should be allowed and the conviction quashed. In particular, the learned Magistrate erred in holding that the appellant had failed to remain for the purpose of a breath analysis test. In addition, assuming a requirement was imposed upon Mansfi eld to remain, it was an unreasonable requirement and not authorised by the Act."

Per Smith J in Mansfi eld v Hrysikos [2000] VSC 474; (2000) 32 MVR 491; MC 41/2000, 14 November 2000.

On Appeal—

207. Driver requested to go to booze bus and remain there until breath sample given or until three hours after driving – sample of breath furnished – driver asked to wait for second sample – driver left bus to have cigarette – remained close to steps of bus in company of two police offi cers – whether driver remained there for purposes of act – driver charged with refusing to remain at booze bus – found guilty by Magistrate – whether Magistrate in error – evidence – at trial informant refreshed memory from written statement – defence counsel cross-examined informant using statement – application by prosecutor to tender document – document admitted into evidence – whether Magistrate in error.

M. was intercepted driving a motor vehicle. After undergoing a preliminary breath test, M. was required by the informant H. to accompany him to a booze bus for the purpose of a breath test and to remain there until a sample of breath was furnished and a certifi cate of analysis given. M. complied with this request and underwent a breath test. The result showed “alcohol in mouth” and M. was told to wait a further 15 minutes. M. said she wanted to go outside and have a cigarette. She left the vehicle, obtained a cigarette from her partner but remained close to the steps of the bus in the company of two police offi cers. Subsequently M. became involved in a dispute and was later arrested and charged with an offence against s49(1)(e) of the Road Safety Act 1986 and an offence against s52(1) of the Summary Offences Act 1966. At the hearing of the charges, H. refreshed his memory from a copy of a written statement he had made earlier and was cross-examined by defence counsel, using the statement, about what happened at the scene. The prosecutor applied to have the statement admitted into evidence. Subsequently, the magistrate stated that as defence counsel cross-examined on the statement it would be admitted into evidence for all purposes. At the close of the case, M. was found guilty of the charges. Upon appeal to Smith J., the appeal was allowed and the conviction on the drink-driving charge quashed. Upon appeal by H.—

HELD: Appeal dismissed.1. For the offence to be proved there must be a “refusal to comply” with the requirement to “remain there”. The legislative objective in imposing the requirement is to discourage persons from choosing to depart the scene before completing an effective breath analysis. The requirement “to remain there” is to remain at the “place” where the testing is to take place. Nothing in the legislation imposes an obligation that if the requirement is to be met one must enter and remain in the vehicle or enter and remain in a particular section of the police station, rather than merely arrive and remain at the place with the intention of participating in the test as directed. The magistrate was in error in concluding that the offence was committed as soon as M. left the bus. Mansfi eld v Hrysikos [2000] VSC 474; (2000) 32 MVR 491; MC 41/2000, approved (in relation to this point).

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PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIA2. In relation to the tender of the statement, the issue was whether the use made by defence counsel of the document enabled the prosecutor to require the document to be tendered. The real purpose behind placing the statement in the informant’s hands was to cross-examine the witness on the statement under the pretext that that was being done as part of an exercise of refreshing his memory rather than as cross-examination to establish inconsistencies between the statement and his evidence. The further questions which were asked went beyond the topic on which memory had been refreshed. Accordingly, the magistrate was entitled to require that counsel tender the statement.

Ormiston JA:"4. ... Each case must depend on its own particular circumstances but, in the absence of a direct and explicit refusal, it should be remembered that a failure to comply must always be shown to be such that implicitly the driver is refusing to comply with the relevant requirement. Further it should be remembered that the requirement is not merely a requirement to accompany a police offi cer and to remain in a stated place, but also to do so "for that purpose", in effect, for the purposes of s55(1), for in each case the requirement is extended only so far as is necessary to enable a sample of breath to be furnished which is to be carried out within three hours of the last moment of driving.

5. ... The object sought to be achieved is that the driver attend at the designated place and undergo the appropriate breath test. So long as drivers are in a position whereby the test can be carried out at request with reasonable promptitude, they cannot be directed any more explicitly than s55(1) permits (for present purposes). One should not infer a right in a police offi cer to detain a driver by use of force or to require the subject to go to or stay in some particular room or place which would involve a further deprivation of liberty. No authority cited to the Court would gainsay any of these matters.

16. The boundaries may not be precise, but the issue in each case is not a failure to "remain", rather the issue is whether there has been a "refusal to comply with a requirement". If a person is within a few metres of the place where the test is to be carried out, then there could not be the slightest doubt that that person should ordinarily be treated as complying with the requirement to remain at the relevant place. It would be quite another question if the person departing from the mobile vehicle were to burst out and run at high speed away into the distance, for then the evidence would permit an inference to be drawn, if all the facts justifi ed it, that the driver was thereby refusing to comply with a relevant requirement.

17. ... However much one might disapprove of her language and smoking habits, there was no evidence at all of a refusal to comply with the requirement, once one accepts that the place at which she was obliged to remain was not confi ned to the four walls of the compartment or the outer exterior of the mobile breath testing vehicle, whichever interpretation one might wish to place on the appellant's contentions."

Chernov JA:"21. The question before the magistrate was whether, by leaving the van for the purpose of smoking a cigarette immediately outside it, the respondent thereby refused to comply with the requirement of the informant that she remain "there" for the purpose of s55(1) of the Act. The appellant's case before us, stripped to its essentials, was that, once the respondent walked out of the van to smoke the cigarette she thereby manifested such a refusal and thus breached s49(1)(e) of the Act. It was contended that such a result fl owed from a proper construction of s55(1) of the Act which should be read as entitling a member of the police force to require the person to remain within the "four walls" of "the place" until the sample of breath has been furnished to the satisfaction of the police or three hours have elapsed, whichever period is the lesser. In my view, however, s55(1) does not support such a construction.

24. ... In those circumstances, and given the fact that the respondent had left her belongings in the station when she fi rst went outside it to smoke a cigarette, (which supports her claim that she intended to return to the van), it cannot be sensibly said that she refused to remain there in breach of the Act. Had she decided, after having gone outside to smoke a cigarette, to wander away from the precinct of the station, a different conclusion might be reached on the issue. But that was not the case here.

25. In the circumstances, therefore, the learned primary judge was correct in his conclusion that it was not open to the magistrate on the facts before him to conclude that the respondent had refused to remain at the station in breach of s49(1)(e) of the Act."

Eames JA:"44. In my respectful opinion, Smith J was correct in concluding that the issue is primarily one of fact. For the offence to be proved there must be a "refusal to comply" with the requirement to remain "there". The legislative objective in imposing the requirement, in my opinion, was to discourage persons from choosing to depart the scene before completing an effective breath analysis. The requirement

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DRINK/DRIVING in VICTORIA"to remain there" is to remain at the "place" where the testing is to take place.

45. Although counsel for the appellant contends that in the present case the "place" is the area bounded by the four walls of the van, it was not contended that where the place is a police station the person must remain within the four walls of the room where the breath analysing machine was located. It was submitted, however, that to stand outside the entrance of the police station would constitute a refusal to remain at the police station.

55. In the present case, the issue was whether by leaving the bus for the purpose of smoking a cigarette, but remaining close to the bus, and fully intending to re-enter the bus when required for testing, that conduct constituted a refusal by the respondent to comply with the requirement which Hrysikos had initially made that she remain at the place to which she had been directed. The magistrate in this case concluded that the offence was committed as soon as the respondent left the bus. That, in my view, on the facts in this case did not constitute an offence. In my opinion, it was not open to conclude that the offence had been committed. The decision of Smith J, in that respect, was correct.

68. In my opinion, the question of law, whilst accurately refl ecting the basis for his Honour's decision on this issue perpetuates what I believe is a misunderstanding of the basis on which the document came to be tendered before the magistrate. The ground of appeal before us asserts that the judge was wrong to have held that the magistrate was himself in error "in deciding to require the prosecuting counsel to tender the document". Smith J, accepting the analysis presented by counsel for the present appellant, accepted that it was the magistrate who had required the tender of the document. Upon that assumption his Honour examined authorities on the question whether a judicial offi cer had an entitlement to require the tendering of evidence in a proceeding. With respect, I can not agree with the analysis which Smith J and counsel for the appellant made as to the circumstances of the tendering of the document.

80. I make one observation, however, about His Honour's analysis of s36. His Honour concluded that the words "make such use of it" in s36 did not empower the magistrate to require either party to tender the document. With respect to his Honour, and with some hesitation, having regard to his Honour's depth of knowledge as to the laws of evidence, I disagree that the section denies such power to the judge or magistrate, in an appropriate case, to compel the tender of a document. The section, in my view, is couched in terms suffi ciently wide to cover such situations as cross-examination before a jury which would give a false or misleading impression that a document was inconsistent with the witness's evidence. In those circumstances, in my view, the judge or magistrate would retain the power to compel one or other party to tender the document. The power of the judge or magistrate to compel tender under s36 is recognised by the authorities, in my opinion. Even when the contents of the document are not referred to explicitly in cross-examination, the manner in which cross-examination proceeds may still lead to the obligation being imposed on counsel to tender the statement. For example, if a statement is placed in the hands of a witness and he is asked "having read that do you stand by your evidence" then the statement may be required to be tendered by counsel who asked the question, in order to dispel any unfair suggestion that his statement was at odds with his evidence. ..."

Per the Court of Appeal in Hrysikos v Mansfi eld [2002] VSCA 175; (2002) 5 VR 485; (2002) 37 MVR 408; (2002) 135 A Crim R 17); MC 32/2002, 1 November 2002.

208. Operator of instrument called as a witness – evidentiary effect of the facts and matters stated in certifi cate – whether prima facie evidence – whether certifi cate admissible – no evidence given that instrument not in proper working order or properly operated – whether part of prosecution case to prove such matters – onus on person charged – compliance with s55(4) conditional upon admissibility of certifi cate under s58(1) – nature of offence under s49(1)(f) – whether compliance with s55(4) relates to offences under s49(1)(f) – whether prosecution can rely upon certifi cate where s55(4) not complied with.

HELD:1. Where a person gives written notice to the informant that the person giving the certifi cate of analysis is required to be called as a witness, the certifi cate remains admissible in evidence but ceases to be conclusive proof of the facts and matters in it. The word “remains” does not connote that the certifi cate remains as prima facie evidence of the matters stated in it but only refers to the fact that the certifi cate is to have residual evidentiary value – a value depending then upon the contents of the document rather than upon the provision dealing with its conclusive effect in the absence of notice.

2. Where a certifi cate provided no evidence at all of the fact that the breath analysing instrument was “properly operated”, the operator of the instrument would have been entitled to give such evidence orally. Where no such evidence was given, it would not have been open to a court to fi nd that the instrument on the relevant occasion was “properly operated”. The certifi cate was not evidence of anything beyond the facts

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PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAand matters set forth within it. However, it was no part of the prosecution case to prove that on the relevant occasion the instrument was either in proper working order or properly operated. By virtue of s49(4) of the Act the person charged carried the onus of proving that the instrument on the relevant occasion was not in proper working order or properly operated.

3. Section 58(1) of the Act provides that if the blood/alcohol level indicated by a breath analysing instrument is to constitute evidence of the actual concentration of alcohol present in the blood, compliance with s55(4) must be shown. Section 58(2)(f) provides that the certifi cate is proof that the certifi cate was identical in its terms to another certifi cate produced by the instrument. Where neither the operator nor the informant actually checked to see that the certifi cates corresponded, the certifi cate tendered in evidence was not evidence of the fact that the certifi cates were identical. Therefore the certifi cate was of no assistance in demonstrating “compliance with section 55(4)” as required by s58(1) of the Act.

4. The concluding words of s58(1) of the Act are concerned only with evidence of the actual concentration of alcohol present in the blood. The offence under s49(1)(f) of the Road Safety Act 1986 (‘Act’) depends only upon “the result of the analysis as recorded or shown by a breath analysing instrument”. Section 49(1)(f) does not refer to the concentration of alcohol in the blood; the offence is constituted directly by the indication given by the breath analysing instrument (albeit as to blood alcohol concentration) and no more than that. The actual concentration of alcohol present in the blood is irrelevant. On the proper construction of s58(1) the words which expressly require compliance with s55(4) relate only to the use of the certifi cate to prove the actual concentration of alcohol in the blood and not to its use to prove the result of the breath analysis as recorded or shown by the instrument employed. Therefore the tendering of the certifi cate in evidence under s58(2) is not conditional upon compliance with s55(4) of the Act. The prosecution did not have to prove compliance with s55(4) before being able to rely upon the certifi cate tendered in evidence.

JD Phillips, Batt and Buchanan JJA:"... 2. As will be seen, the questions at issue turn upon the evidentiary effect under the legislation of a certifi cate of analysis produced by a breath analysing instrument. That certifi cate showed a concentration of alcohol in the appellant's blood of 0.113 per cent, which was well above the prescribed limit. The appellant's contention, which the judge rejected, was that in the circumstances of this case that certifi cate was evidence of nothing: hence the case stated.

...10. As for the rest of s49(1)(f), we draw attention to the fact it makes no mention of any certifi cate of analysis as such and, as will be seen, the certifi cate which is central to the questions reserved by way of this case stated is purely evidential. At least as written, the offence created by s49(1)(f) is independent of any certifi cate. So far as presently relevant, the offence depends only upon "the result of the analysis as recorded or shown by a breath analysing instrument": nothing more and nothing less.

... 21. So far as s58(1)(e) is concerned, it would surely have been suffi cient had this Court been asked whether the certifi cate in evidence was evidence of the fact that the instrument was "properly operated". Had that been the question, the answer must have been No. That is not one of the matters actually set forth in the certifi cate and, notice having been given under subs(2D), the certifi cate is not evidence of anything beyond the facts and matters set forth within it.

22. The conclusion just expressed is, however, subject to a most important rider; for in our opinion it was no part of the prosecution case to prove that on the relevant occasion the breath analysing instrument was either in proper working order or properly operated.

...32. Under paragraph (f)(i), one must show that within three hours after driving, the driver furnished a sample of breath for analysis by a breath analysing instrument and that "the result of the analysis as recorded or shown by the breath analysing instrument indicates" the presence of "more than the prescribed concentration of alcohol" in the blood. The actual concentration of alcohol present in the blood is irrelevant; the criterion of criminality under s49(1)(f) is quite different, as the High Court pointed out in Thompson v Judge Byrne [1999] HCA 16; (1999) 196 CLR 141; (1999) 161 ALR 632; (1999) 73 ALJR 642; (1999) 29 MVR 1; (1999) 7 Leg Rep 27. ... 41. Thus, however it is approached, we think we must reject the argument of the appellant that the respondent had to prove compliance with s55(4) before being able to rely upon the certifi cate in evidence, Exhibit "A", on the prosecution of the appellant for an offence against s49(1)(f). In our opinion compliance with s55(4) was irrelevant on such a prosecution. If so, it cannot matter whether the certifi cate given to the appellant was or was not "in the prescribed form" as mentioned in s55(4) or, accordingly, that the certifi cate which was in evidence had not been compared by either the operator or the informant with that which was given to the appellant. The prosecutor did not need to rely upon s58(2)(f) and it follows that in our opinion the questions reserved for the consideration of this Court – that is, questions (i)(a) and (b) – in so far as they asked after the effect of the certifi cate in evidence in relation to the fact described in s58(2)(f), were not relevant. To that extent, neither of

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DRINK/DRIVING in VICTORIAthose questions is a "question of diffi culty in point of law [which] has arisen" on the appeal to the County Court and, as the only other point to them was whether the breath analysing instrument was "properly operated" (with which we have already dealt), questions (i)(a) and (b) should not have been reserved for our consideration at all. ..."

Per JD Phillips, Batt and Buchanan JJA in Furze v Nixon [2000] VSCA 149; (2000] 2 VR 503; (2000) 113 A Crim R 556; (2000) 32 MVR 547; MC 04/2001, 21 August 2000. 209. Description of charge – charge failed to state that defendant was “the driver of a motor vehicle” – whether such words should be specifi ed in the charge – charge dismissed by Magistrate as a nullity – whether Magistrate in error – whether charge should have been amended.

C. was charged with an offence of refusing to comply with a requirement to accompany a police offi cer to a police station for the purposes of a breath test under s49(1)(e) of the Road Safety Act 1986 (‘Act’). The charge failed to state that C. had been the driver of a motor vehicle. When the charge came on for hearing C. submitted that the charge was a nullity because it contained no allegation in the wording of the charge that C. was driving. The magistrate accepted this submission and dismissed the charge as a nullity. Upon appeal—

HELD: Appeal allowed. Order set aside. Remitted to be heard by a different magistrate.In the charge and summons, C. had been provided with the details of a motor car registration number and a driver licence number. This information would have conveyed to a reasonable person charged with a s49(1)(e) offence that the requirement to have a preliminary breath test under s53 of the Act resulted from his being the driver of a motor vehicle. The charge and summons when read as a whole enabled the defendant to identify all of the necessary ingredients of the offence under s49(1)(e) of the Act to be proved by the prosecution. The charge was not defective or so uncertain that the defendant could not identify the charge brought against him. Whilst it is desirable that the paragraph in s53 of the Act relied upon should be specifi ed in the charge, the words in the paragraph are unnecessary in the charge. The magistrate had power to amend the charge and summons and his refusal to do so was an error of law.

O'Bryan J:"... 5. Before any evidence was led, Mr Hardy submitted that the charge was a nullity because it contained no allegation that the defendant was driving in the wording of the charge and no allegation that the requirement to undergo a preliminary breath test by a prescribed device was made pursuant to s53(1)(a) or (b) or (c) or (d). Mr Hardy submitted that the driving aspect was a fundamental or essential ingredient of the actual offence and the omission could not be cured by amendment pursuant to s50 of the Magistrates' Court Act 1989 because an amendment would amount to a fresh charge outside the 12 month time limit applicable to that offence: s26(4) Magistrates' Court Act 1989.

6. The Magistrate accepted the submission of Mr Hardy and dismissed the charge as a nullity. He did not consider that he could amend the charge because more than 12 months had elapsed since the offence was committed.

21. ... The fi ve necessary ingredients of s49(1)(e) to be proved by the prosecution are these: that the defendant had been found driving a motor vehicle or in charge of a motor vehicle; that a preliminary breath test by a prescribed device has been undergone pursuant to ss(1) of s53; that a member of the police force has formed an opinion the test made in his presence indicates that the defendant's blood contains alcohol; that the defendant has been required to furnish a sample of breath for analysis by a breath analysing instrument and for that purpose required to accompany a member of the police force to a police station; and that the defendant has refused to comply with the requirement. ...

23. ... In my opinion, the Charge and Summons sheet, read as a whole, enabled the defendant to identify all of the necessary ingredients of the offence under s49(1)(e) to be proved by the prosecution. The Charge and Summons was not defective or so uncertain that the defendant could not identify the charge brought against him.

... 25. The principle relied upon cannot be doubted. Its application, in the present case does not require a fi nding that the charge is fundamentally defective, in my opinion.

26. In fi nding that the charge is not fundamentally defective I should add that it would have been better if the Charge and Summons had included words such as "being the driver of a motor vehicle" as was done in Cooper-Baker v Judge Ross [2000] VSC 221; (2000) 31 MVR 235; (2000) 114 A Crim R 40 or words descriptive of the conduct which led to the preliminary breath test. ...

32. In my view, the present case was a fi t case for amendment, if justice is not to be defeated, and the Magistrate had power to amend the Charge and Summons. His refusal to do so was an error of law. All that was required was to add after s53 the sub-section number and sub-clause: (1)(a) or (b) or (c) as the circumstances required. Alternatively, the words used in the charge in Cooper-Baker "being the driver of a motor vehicle" would have suffi ced. Support for adding after s53 the sub-section

197

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAnumber (1) and the sub-clause can be found in Smith v Van Maanen [1991] VicSC 313; (1991) 14 MVR 365, in my opinion. ..."

Per O'Bryan J in DPP v Collicoat [2000] VSC 368; (2000) 32 MVR 113; (2000) A Crim R 18; MC 14/2001, 14 September 2000.

210. Drink/driving – charges laid – nature of offences not fully described in charges – whether omissions essential elements of offences – whether charges suffi ciently described.

HELD:1. It is necessary that a charge identify suffi ciently the essential ingredients of an alleged offence; however, it is necessary to distinguish between the essential ingredients of the alleged offence and other facts which the prosecution is obliged to establish.

2. In relation to an offence under s49(1)(f) of the Road Safety Act 1986 (‘Act’) whilst there must be evidence led as to the practical operation of ss53 and 55 as a necessary precondition of proof of the relevant offence, these matters do not constitute essential elements of the offence so as to require individual particularisation in the charge. Accordingly, where a charge failed to state that the defendant had been “required to undergo a preliminary breath test under s53” but referred to each of the matters capable of identifi cation as an essential element in a charge under s49(1)(f) the charge was neither defective nor a nullity.

3. In relation to an offence under s49(1)e) of the Act, there must be evidence led by the prosecution of the conduct which led to the preliminary breath test. However, such a fact is not an essential ingredient for the purposes of identifying the offence. Accordingly, where the charge failed to include words such as “being the driver of a motor vehicle” or other words descriptive of the conduct which led to the preliminary breath test, the charge was neither defective nor a nullity because of the absence of those words.

4. In relation to a charge under s49(1)(e) of the Act, the making of a requirement to accompany a police offi cer is an essential ingredient or element of the charge which is required to be included in the charge itself. However, a charge should be interpreted in the manner a reasonable defendant would understand it, giving reasonable consideration to the words of the charge in their context. Where the charge failed to include the words “having been required by a member of the police force to accompany a member to the police station” before the words “did refuse to accompany” the use of the word “refuse” in the charge conveyed suffi ciently to the defendant that his alleged refusal must have followed some requirement or request to accompany, made as of right. The defendant was perfectly capable of reaching a correct conclusion as to the nature of the subject matter of the charge and its essential ingredients. Accordingly, The charge suffi ciently identifi ed the offence and was neither defective nor a nullity.

Winneke P:"1. For the reasons given by Charles JA, I agree that the questions raised in the Director of Public Prosecutions Reference No.2 of 2001 should be answered in the manner proposed by his Honour, and that the two appeals should be dismissed.

Charles JA (with whom Winneke P and Chernov JJA agreed):

"2. The Court has before it three matters, which were argued together, each of which concerns a summons relating to an offence alleged under Part 5 of the Road Safety Act 1986. In each case the defendant claimed that the charge was defective in that it failed properly to allege the offence in question, and that the defect could not be cured by amendment. In each case like issues were therefore raised as to the form of the charge and the specifi city with which the elements of the charge must be alleged, and the power of amendment contained in s50 of the Magistrates' Court Act 1989.

24. In my view the essential elements of the offence under s49(1)(f) are prescribed by the section itself and do not by direct or indirect reference incorporate any other allegation of fact necessary to exist in order to create the offence. In my view this Court, indeed, decided to the contrary in Foster and Bajram, in the passages last cited. It follows that while there must be evidence led as to the practical operation of ss53 and 55 in circumstances of a prosecution under s49(1)(f), as a necessary precondition of proof of the relevant offence, these matters do not constitute essential elements of the offence so as to require individual particularisation in the charge. I conclude, therefore, that the charge as drawn referred to each of the matters capable of identifi cation as an essential element in a charge under s49(1)(f), and was therefore neither defective nor a nullity.

24. As to the use of the words "pursuant to" s55(1) of the Road Safety Act, rather than "under", I note the observations of Ormiston JA in Foster and Bajram [1999] VSCA 73; [1999] 2 VR 643 at [47]; (1999) 104 A Crim R 426; (1999) 29 MVR 365 as to the diffi culty of giving a meaning to the word "under" in this context. But I do not think that the prosecution is obliged to follow slavishly the wording of the section in the formulation of the charge in this respect. The defendant cannot, I think, have been left in any doubt as to the nature of the offence alleged against him simply because

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DRINK/DRIVING in VICTORIAthe expression "pursuant to" was used. In the event that the terminology was considered by the magistrate to be of any moment, an amendment should have been made so as to give effect to s50(1) of the Magistrates' Court Act.

30. As was the case with the charge against Callegher under s49(1)(f), in my view the charge in the Collicoat appeal included all the essential ingredients of a charge under s49(1)(e). I agree with O'Bryan J that it would have been preferable if the charge had included words such as "being the driver of a motor vehicle", or other words descriptive of the conduct which led to the preliminary breath test. But this, although a fact necessary to be proved in the prosecution, was not an essential ingredient for the purposes of identifying the offence, and I do not think that the charge was defective or a nullity because of the absence of these words.

31. As to the question of amendment, O'Bryan J said ([2000] VSC 368; (2000) 32 MVR 113; (2000) A Crim R 18), later in his reasons, that –

"the present case was a fi t case for amendment, if justice is not to be defeated, and the Magistrate had power to amend the Charge and Summons. His refusal to do so was an error of law. All that was required was to add after s53 the sub-section number and sub-clause: (1)(a) or (b) or (c) as the circumstances required. Alternatively the words ... ̀ being the driver of a motor vehicle' would have suffi ced."

Again I agree.

32. The Collicoat appeal should, in my view, be dismissed.

37. To my mind the use of the verb "refuse" in the charge conveyed suffi ciently to the defendant that his alleged refusal must have followed some requirement or request to accompany, made as of right.

41. Reading the charge against Bell as a reasonable defendant should, I think the defendant would be perfectly capable of reaching a correct conclusion as to the nature of the subject matter of the charge and its essential ingredients. The offence is therefore suffi ciently identifi ed to comply with s27 of the Magistrates' Court Act, and it follows that the submission that the charge in Bell's appeal was defective and a nullity should be rejected.

42. It would, I think, have been preferable if the charge had in the fi rst instance included the words "having been required by a member of the police force to accompany a member to the police station" before the words "did refuse to accompany", an amendment which was sought before the magistrate and permitted by his Worship to be made. Such an amendment was, in my view, clearly a correct exercise of the magistrate's discretion; McMahon v DPP; Gigante v Hickson [2001] VSCA 4; (2001) 3 VR 296; (2001) 120 A Crim R 483; (2001) 33 MVR 51, Court of Appeal, 23 February 2001. As Mann CJ said in Thomson v Lee [1935] VicLawRp 65; [1935] VLR 360 at 364; [1935] ALR 458, of the power of amendment in s200 of the Justices Act 1958 (a predecessor of s50 of the Magistrates' Court Act) —

"it is not part of the duty of the Bench to regard the matter as a sporting contest; it must use its powers in a proper way to uphold the law; ...".

See also Kennett v Holt [1974] VicRp 79; [1974] VR 644, at 647-648.

43. I would also dismiss Bell's appeal. ..."Per Charles JA (with whom Winneke P and Chernov JJA agreed) in DPP Reference No 2 of 2001 [2001] VSCA 114; (2001) 4 VR 55; (2001) 122 A Crim R 251; (2001) 34 MVR 164; MC 13/2001, 8 August 2001. 211. Drink/driving charge – application by prosecutor to amend place of alleged offence – application granted – whether place of offence an essential ingredient in offence – whether Magistrate in error.

A charge alleged that G. at Deer Park within 3 hours of driving furnished a sample of breath in excess of the prescribed concentration. The sample of breath was furnished at a breath testing vehicle in Yarraville. At the hearing of the charge the magistrate allowed an amendment of the charge by substituting the word “Yarraville” for the words “Deer Park” and convicted G. On appeal to the County Court the judge found the offence proved, imposed the same orders but stated a case for the Court of Appeal. The question reserved was whether the magistrate acted in accordance with the law in allowing the amendment of the charge.

HELD: Question declined to be answered on the ground that to answer the question would be of no practical value.The offence under s49(1)(f) occurs at the place where the sample was furnished which, in the present case, was Yarraville. The place of offending in the charge under s49(1)(f) of the Road Safety Act 1986 is not an

199

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAessential element of the offence and was not a material allegation. However, this does not mean that the place of offending was not an important particular to which G. was entitled as a matter of procedural fairness. The charge in the present case merely named a suburb which the evidence to be led would show to be erroneous. Since the suburb was not essential to the offence, the substitution of a different suburb did not amount to charging a different offence. The offence remained the same though a particular in the charge was altered. Justice, which is a two-way street, required either amendment or (on proof in due course of the necessary facts) conviction on the unamended charge. Kerr v Hannon [1992] VicRp 3; [1992] 1 VR 43; MC 14/1991; and Goodman v Stafford [1992] VicSC 163; (1992) 15 MVR 145; MC 25/1992, disapproved.

Batt JA (with whom Tadgell and Callaway JJA agreed):"... 12. By s447(1) of the Crimes Act this Court is empowered to hear and fi nally determine a question reserved; but it is not bound to determine the question or questions in every case. A well recognised ground for declining to do so is that of inutility. In my opinion, to answer the present question will be of no practical value and the court should accordingly decline to answer it. I say this because, if his Honour had jurisdiction, he must, for the reasons set out below, have upheld the magistrate's decision on amendment, there being no suggestion of countervailing discretionary considerations. Thus, even if the question is answered affi rmatively, the appellant will not achieve any practical success: the charge will stand amended and his conviction on it will remain.

14. ... the presently relevant offence, that under paragraph (f) of s49(1), occurs at the place where the sample is furnished. In the present case that place was undoubtedly Yarraville. But the place of offending ordinarily at least is not, and in the present case in particular was not, an essential element of the offence under paragraph (f) and so ordinarily is not, and here was not, a material allegation. Offences where the place of offending is an essential element or a material allegation are exemplifi ed by that of dangerous driving on a public street and that of conducting a noxious business, say, in a town or on land zoned for residential use or within so many kilometres of the principal post offi ce in the City of Melbourne. But, as Parmeter v Proctor (1948) 66 WN (NSW) 48 shows, even the identity of the street where the dangerous driving allegedly occurred is not material. Offences such as I have instanced are quite different from the offence here in question.

15. That the place of offending was not essential or material in the instant case does not mean that it was not an important particular to which the appellant was entitled as a matter of procedural fairness. But he did not need to ask for it as it was supplied in the amendment. If he had been misled by the original charge or if the amendment had caught him by surprise, he would, other things being equal, have been entitled to an adjournment, but no such prejudice or embarrassment was suggested. ..."

Per Batt JA (with whom Tadgell and Callaway JJA agreed) in Gigante v Hickson [2001] VSCA 4; [2001] 3 VR 296; (2001) 33 MVR 51; (2001) 120 A Crim R 483; MC 15/2001, 23 February 2001.

212. Drink/driving – dismissal of charge by Magistrate on technical point – dismissal set aside on appeal – remitted to Magistrates’ Court for rehearing – appeal from such order – whether the order for rehearing interlocutory – whether appeal incompetent – observations on activity of lawyers taking technical points in drink/driving cases – whether such activity in the public interest – whether courts should do their best to keep drunk drivers off the streets.

HELD: Where a judge of the Supreme Court quashed a magistrate’s dismissal of a drink/driving charge and another and remitted the charges for rehearing in the Magistrates’ Court, such an order was interlocutory in nature and accordingly, an appeal against it was incompetent.

Obiter: Some lawyers seem to fi nd full-time employment in keeping the streets safe for those who drive when they have had too much to drink. The results of this activity are not in the public interest. Parliament does its best to keep drunk drivers off the streets. But the hydra of technicality is a many-headed beast and as one unattractive point is cut off another rears up in its place. The Courts must do their best too.

Brooking JA (delivering the judgment of the Court (Brooking, Batt and Buchanan JJ A):"... 4. Mr Jack Sher, a solicitor, is the latest combatant. He was originally charged with four offences, including driving under the infl uence, but the informant proceeded only on two charges: refusing a preliminary breath test and using a car with a bald tyre. The date of the alleged offences was as long ago as 7 November 1998. Remarkably, the charges were heard for four days. This was in November 1999. On the fourth day they were dismissed because the informant, who had himself issued the summons, had fi led a carbon copy of it, not the fi rst strike. Although the informant had signed the carbon copy, it was held that the words "original summons" in the Act of Parliament somehow prohibited the use of carbon paper. The magistrate awarded $7,700 costs against the police.

6. Gillard J in yet another decision given with his Honour's customary promptitude, has corrected the magistrate's error and remitted the charges to the Magistrates' Court. Now we have an appeal against that decision.

200

DRINK/DRIVING in VICTORIA8. Mr Sher asks for leave to appeal. But he should not have it. No substantial injustice would be done by allowing this decision to stand. More important, it is not attended by suffi cient doubt to warrant the grant of leave to appeal. On the contrary, it is manifestly correct, both as regards the carbon copy point and as regards the other point taken by Mr Sher – that the fact that he was charged with having a bald tyre as well as with refusing a breath test meant that there had to be two appeals, not one, to set the magistrate right. Indeed, the decision of Gillard J is manifestly correct on all points.

9. The appeal is dismissed as incompetent. The application for leave to appeal is refused. ..."Per Brooking JA (delivering the judgment of the Court) in Sher v DPP [2001] VSCA 110; (2001) 34 MVR 153; (2001) 120 A Crim R 585; MC 18/2001, 2 August 2001.

213. Evidence given by operator of breath analysing instrument – statement that operator not familiar with relevant regulations – unable to say whether regulations complied with – charges dismissed by Magistrate – Magistrate not satisfi ed that result obtained by proper operation of instrument – whether Magistrate in error.

L. was charged with offences of drink/driving under s49(1)(b) and (f) of the Road Safety Act 1986 (‘Act’). At the hearing, the operator of the breath analysing instrument was called to give evidence. In cross-examination when asked what regulations he complied with he said: “I don’t know the exact regulations and what they say.” When asked whether he complied with the regulations in conducting the breath test, the operator said: “I can’t say.” In dismissing both charges, the Magistrate said: “…the reality is if he doesn’t know what regulations he complied with, I can’t be satisfi ed he complied with the regulations. He doesn’t know what they are, he couldn’t say what they are. It leaves me in the position where I cannot be satisfi ed that the test result obtained was obtained as a result of a properly operated machine by an authorised offi cer and those .05 charges will be dismissed accordingly.” Upon appeal—

HELD: Appeal allowed. Dismissal set aside.In relation to the charge under s49(1)(f) of the Act, it was no part of the prosecution case to prove that on the relevant occasion the breath analysing instrument was either in proper working order or properly operated. The correct onus of proof which is clearly enunciated in s49(4) of the Act is that it was a matter for the defence to prove that the instrument was not properly operated on the relevant occasion. Accordingly, the magistrate’s lack of satisfaction was irrelevant to the issues to be determined. It was not an element of either offence that the instrument be properly operated. In dismissing both charges on the same ground, the magistrate took into account an irrelevant matter. Furze v Nixon [2000] VSCA 149; (2000) 2 VR 503; (2000) 113 A Crim R 556; (2000) 32 MVR 547; MC 04/2001, applied.

Balmford J:"... 16. As has been said, certifi cates showing the respondent's blood alcohol concentration were printed out in the morning of 5 December 1997 by a breath analysing instrument operated by Senior Constable Charlesworth. By virtue of paragraph 58(1)(c) of the Act each of those certifi cates is, on the hearing of the two charges under sub-section 49(1) to which this appeal relates, and subject to compliance with sub-section 55(4), evidence of the concentration shown, namely 0.189%. Senior Constable Charlesworth complied with sub-section 55(4) by giving one of those certifi cates to the respondent.

17. By virtue of sub-section 58(2) the certifi cate, if purporting to be signed by the operator, is conclusive proof of the matters set out in that sub-section, unless the accused person gives a notice in accordance with that sub-section requiring the person giving the certifi cate to be called as a witness. It is not suggested that the certifi cates were not signed by Senior Constable Charlesworth. A notice in accordance with the sub-section was given in this case and accordingly, by virtue of sub-section 58(2D), the certifi cate, while remaining admissible, ceased to be conclusive proof of those matters.

18. ... Since the service of the notice under sub-section 58(2) the certifi cate is no longer conclusive evidence on the point. However, by virtue of sub-section 58(4), evidence of a person authorised to operate a breath analysing instrument (as was Senior Constable Charlesworth) is proof, in the absence of evidence to the contrary, that the instrument was properly operated and the relevant regulations (see paragraph 3 above) complied with. There was no evidence to the contrary. ... 21. In cross-examination he was asked what regulations he had complied with and replied, "I don't know the exact regulations and what they say". Later he was asked, "You didn't comply with the regulations, did you?" to which he replied "I can't say". In re-examination he was asked, "Can you tell the Court what you actually did immediately prior to the breath test to conform with the regulations?" and replied, "I can't say".

28. ... it is clear from the authorities cited above that the matter as to which the Magistrate was not satisfi ed was not a matter which was required to be proved by the prosecution. Her lack of satisfaction

201

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAwas therefore irrelevant to the issues before her. It was not an element of either offence that the machine be properly operated.

... 31. In any case, it is clear from the passages cited above from the reasons for decision of the Magistrate that both charges were dismissed on the same ground. The proper operation of the instrument could have been relevant only to a defence under paragraph (f). That being so, it does not appear to me that that matter was relevant to the Magistrate's consideration of the charge under paragraph (b). Relevant or not, she took it into account in the consideration of that charge, and dismissed both charges on the same ground. That being so, the question in ground (a) can be seen, in the circumstances of this case, as relevant to the consideration of both charges.

32. For the reasons given, I fi nd that the Magistrate misdirected herself as to the onus of proof regarding the operation of the breath analysing instrument. Counsel may wish to make submissions as to the orders to be made consequent upon that fi nding. It is not necessary to consider the second question of law raised in the Master's Order."

Per Balmford J in DPP v Luff [2001] VSC 260; (2001) 34 MVR 78; MC 19/2001, 2 August 2001.

On Appeal—

214. Evidence given by operator of breath analysing instrument – statement that operator not familiar with relevant regulations – unable to say whether regulations complied with – charges dismissed by Magistrate – Magistrate not satisfi ed that result obtained by proper operation of instrument – whether Magistrate in error – decision of Court of Appeal in Furze v Nixon MC 04/2001 – whether correctly decided.

L. was charged with offences of drink/driving under s49(1)(b) and (f) of the Road Safety Act 1986 (‘Act’). At the hearing, the operator of the breath analysing instrument was called to give evidence. In cross-examination when asked what regulations he complied with he said: “I don’t know the exact regulations and what they say.” When asked whether he complied with the regulations in conducting the breath test, the operator said: “I can’t say.” In dismissing both charges, the magistrate said: “…the reality is if he doesn’t know what regulations he complied with, I can’t be satisfi ed he complied with the regulations. He doesn’t know what they are, he couldn’t say what they are. It leaves me in the position where I cannot be satisfi ed that the test result obtained was obtained as a result of a properly operated machine by an authorised offi cer and those .05 charges will be dismissed accordingly.” Upon appeal to a judge of the Supreme Court, the appeal was allowed, the dismissals set aside and remitted to the magistrate for further determination. See (2001) 34 MVR 78; MC 19/01; [2001] VSC 260. Upon appeal—

HELD: Appeal dismissed. Decision of trial judge affi rmed. Remitted to the Magistrates’ Court for further consideration.1. In relation to the charge under s49(1)(f) of the Act, it was no part of the prosecution case to prove that on the relevant occasion the breath analysing instrument was either in proper working order or properly operated. Section 49(4) reverses the onus of proof and evidences a clear intention that the results of the analysis are to be accepted for the purposes of s49(1)(f), unless on the balance of probabilities the person charged establishes either that the instrument was not in proper working order or that it was not properly operated. Furze v Nixon [2000] VSCA 149; (2000) 2 VR 503; (2000) 113 A Crim R 556; (2000) 32 MVR 547; MC 04/2001, applied.

2. In relation to the charge under s49(1)(b) of the Act, the prosecution bears the onus of establishing that the concentration of alcohol present in a driver’s blood equals or exceeds the prescribed concentration. However, there is no requirement that a breath analysing instrument be used to ascertain that concentration. It may be ascertained by other means. Nor is there any obligation cast upon the prosecution, in a case where a breath analysing instrument is employed, to prove that the instrument was properly operated. If a reasonable doubt can be seen to exist concerning the reliability of the analysis, a magistrate may well not be satisfi ed that the commission of the offence has been established. That is not because there is an onus cast upon the prosecution to establish that the instrument has been properly operated but because they have failed to prove the presence of an essential element of the offence itself.

3. The interpretation of s49(1)(f) adopted by the Court of Appeal in Furze v Nixon not only stands as the view of this Court to be followed until overturned in accordance with proper practice but was clearly correct.

Vincent JA (with whom Callaway and Eames JJA agreed):"26. These grounds may also be conveniently considered together. They challenge the fi nding by the judge in the Trial Division that the magistrate fell into error in approaching the matter on the basis that it was necessary before the appellant could be convicted of an offence under s49(1)(b) or s49(1)(f) that the prosecution establish beyond reasonable doubt that the breath analysing instrument, which recorded the concentration of alcohol present, was properly operated.

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DRINK/DRIVING in VICTORIA29. Evidence of the concentration of alcohol in the blood of the person can be given in the form of a certifi cate satisfying the requirements of s58(2) and, subject to certain exceptions with which we are not here concerned, the certifi cate constitutes conclusive proof, unless the accused person gives notice in writing in accordance with the sub-section. Such notice was given in the present case.

30. In those circumstances, the certifi cate remained admissible in evidence but ceased to be conclusive proof of the facts and matters asserted by it. Accordingly, the operator of the breath analysing instrument gave evidence pursuant to s58(4). In view of the matters set out in her statement of reasons [9], the magistrate regarded that evidence as unsatisfactory.

35. There are, I consider, major obstacles lying in the path of the adoption of this line of reasoning. First, if the legislature intended that proof of the proper operation of the breath analysing instrument was an element of the offence created by s49(1)(f), then it is remarkable that this was not explicitly stated. Second, the legislature has made specifi c provision by s49(4) for the possibility that the instrument may not have been in proper working order or properly operated on the occasion in question. If it had been contemplated that proof beyond reasonable doubt of these matters was required in any event, any such provision would be otiose. However, s49(4) reverses the onus of proof with respect to these matters and evidences a clear legislative intention that the results of the analysis are to be accepted for the purposes of s49(1)(f), unless on the balance of probabilities the person charged establishes either that the instrument was not in proper working order or that it was not properly operated.

36. Finally, in this context, it must be borne in mind that the purposes for the introduction of Part 5 of the Road Safety Act 1986 set out in s47 are:

“The purposes of this Part are to – (a) reduce the number of motor vehicle collisions of which alcohol or other drugs are a cause; and (b) reduce the number of drivers whose driving is impaired by alcohol or other drugs; and (c) provide a simple and effective means of establishing that there is present in the blood of a driver more than the legal limit of alcohol.”

37. There is no need to dwell upon the concern which has been experienced in this community over the death, injury and damage occasioned by persons whose driving has been affected by the ingestion of alcohol or drugs. A variety of different approaches have been taken to address this situation, including the adoption of the legislative scheme set out in Part 5. It is evident that Parliament directed a great deal of attention to the question of the manner in which the concentration of alcohol in a driver’s blood was to be established. The interpretation of s49(1)(f) adopted by the Court in Furze v Nixon not only stands as the view of this Court to be followed until overturned in accordance with proper practice, but, in my respectful opinion, it was clearly correct. ..."

Per the Court of Appeal in Luff v DPP [2003] VSCA 81; (2003) 38 MVR 362; MC 16/2003, 24 June 2003.

215. Blood sample taken by medical practitioner – certifi cate of practitioner admitted into evidence – fi nding by Magistrate that certifi cate did not contain prescribed particulars – certifi cate did not specifi cally refer to the regulations – reference in certifi cate to ‘collection’ of blood rather than ‘taking’ – charges dismissed by Magistrate – whether Magistrate in error.

On the hearing of charges under the Road Safety Act 1986 (‘Act’), s49(1)(b) and (g), a magistrate admitted into evidence a certifi cate of a medical practitioner concerning the taking of a blood sample from the defendant. However, the certifi cate did not refer specifi cally to the Regulations and the word “collected” was used rather than “taken”. Accordingly, the magistrate held that the certifi cate was of no effect and dismissed the charges. Upon appeal—

HELD: Appeal allowed. Dismissals set aside. Remitted for further hearing and determination.The certifi cate, by stating that “all regulations relating to the collection of such sample were complied with” must be taken to have stated that the relevant Regulations which fall within that description were complied with. The words “taking” and “collection” are, in this context, interchangeable. Section 57(3) of the Act makes the proof of certain facts follow, in the absence of evidence to the contrary, from the signature by the medical practitioner of a certifi cate containing the prescribed particulars. No evidence to the contrary was called. Accordingly, the certifi cate was admissible pursuant to s57(3) of the Act and the magistrate was in error in dismissing the charges.

Balmford J:"... 9. The Magistrate found that the words "all the regulations relating to the collection of such sample were complied with" did not meet the requirement of Regulation 206(a). Accordingly the certifi cate was of no effect under section 57(3) because it did not contain "the prescribed particulars". It did not refer specifi cally to the Regulations, and the word "collection" was not the same as the word "taking".

203

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIA12. ... To repeat, the certifi cate, by stating that "all the regulations relating to the collection of such sample were complied with" must be taken to have stated that Regulations 204 and 205, which fall within that description, were complied with.

16. That is the kind of argument which section 57(3) is intended to foreclose. That provision makes the proof of certain facts follow, in the absence of evidence to the contrary, from the signature by the medical practitioner of a certifi cate containing the prescribed particulars. No "evidence to the contrary" was called before the Magistrate. No enquiry is required as to what was in the mind of the registered medical practitioner.

17. I note that section 47(c) of the Act provides that one of the purposes of the Part of the Act in which the relevant provisions occur is to "provide a simple and effective means of establishing that there is present in the blood of a driver more than the legal limit of alcohol". Section 35 of the Interpretation of Legislation Act 1984 provides that in the interpretation of a provision of an Act a construction that would promote the purpose or object underlying the Act shall be preferred to a construction that would not promote that purpose or object. ..."

Per Balmford J in DPP v Jamieson [2001] VSC 366; (2001) 34 MVR 464; MC 20/2001, 5 October 2001.

216. Brief of evidence served on defendant – no appearance of defendant at hearing – matters determined in defendant’s absence – charges dismissed due to lack of evidence – whether evidence that police offi cer required defendant to accompany him to a police station – whether evidence that operator authorised to operate breath analysing instrument – whether Magistrate in error in dismissing charges.

Pursuant to s37 of the Magistrates’ Court Act 1989, the prosecution served on J. a brief of evidence in relation to charges under the Road Safety Act 1986 (‘Act’) s49(1)(b) and (f). This brief included a pro-forma document parts of which were not completed and alternatives were not suitably crossed out. There was no Certifi cate of Authority but there was a Certifi cate of Analysis in the brief. When the defendant failed to appear on the return date, the magistrate decided to hear and determine the charges. After considering the material contained in the brief of evidence, the magistrate dismissed the charges on the basis that there were two defi ciencies of proof in the prosecution’s evidence. The magistrate said that there was no evidence that a police offi cer required J. to accompany him to a police station for the purposes of a breath test. Further, there was no evidence that the operator of the breath analysing instrument was an authorised operator of such an instrument. Upon appeal—

HELD: Appeal allowed. Dismissals set aside. Remitted for further consideration.1. The Certifi cate of Analysis contained the prescribed particulars in relation to the authority of the operator. By reason of the interlinking of s55(4) and s58(2) of the Act this certifi cate stated that the person who operated the instrument was authorised to do so by the Chief Commissioner of Police. Further, when recourse was had to the pro-forma statement, there was some evidence that J. had been required to accompany a police offi cer to a police station.

2. The matter should be remitted to the magistrate for further consideration, the parties being at liberty to make submissions concerning the admissibility and effect of the material contained in the brief of evidence.

Ashley J:"... 2. ... What happened is that the learned Magistrate dismissed the charges in the respondent's absence on the footing that there were two defi ciencies of proof in the prosecution's evidence. After his Worship had done so the prosecutor applied to adjourn the matter in order to adduce further evidence to fi ll in the supposed gaps. His Worship refused the application saying that it was made too late, that the charges had already been dismissed.

... 8. His Worship concluded that, in substance, there was no evidence that a member of the Police Force had required the respondent to accompany him to a police station or other place where a sample of breath was to be furnished. See s55(1) RSA. That was not so. See Question 9 and the answer thereto contained in a document headed, "Exceed PCA-Intercept." That document, part of the brief of evidence, was a pro forma. That said, it was at least for the most part relevantly completed and it certainly provided some evidence pertinent to the issue now under consideration.

... 10. I turn to the second of the perceived gaps in the prosecution case. His Worship considered, in substance, that there was no evidence that the operator of the breath-analysing instrument was an authorised operator of such an instrument.

... 19. Regulation 203 of the Road Safety (General) Regulations 1999 prescribes the requirements of a certifi cate for s55(4) purposes. It appears that the certifi cate, a copy of which was in the brief of evidence, did contain the prescribed particulars. By reason of the interlinking of s55(4) and s58(2), it

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DRINK/DRIVING in VICTORIAcan therefore be said that the certifi cate was at least capable of meeting the description of a document purporting to be a certifi cate containing the prescribed particulars for the purposes of s58(2). It would follow, by operation of s58(2)(c), that there was evidence which in the absence of notice being given by the respondent was conclusive proof of the fact that the person who operated the instrument was authorised to do so by the Chief Commissioner of Police under s55.

... 24. Two matters, however, remain to be mentioned. The fi rst of them is this: I said a little earlier that it was right for the Magistrate to carefully examine the material provided for his consideration in the brief of evidence. It could not be said that the material provided, in the most part by completion of pro forma documents, was satisfactory. Parts of those documents were not completed. Alternatives were not suitably crossed out. It ill behoves informants to prepare briefs of evidence in such a form.

25. The second matter concerns the relief that ought be granted in circumstances where the appellant has made good its primary complaints. It does not follow because it has done so that the prosecution must then succeed. The matter must be remitted for consideration by the Magistrates' Court. ..."

Per Ashley J in DPP v Jamieson [2001] VSC 482; (2001) 126 A Crim R 353; MC 21/2001, 7 December 2001.

217. Preliminary breath test conducted with a prescribed device – display on device showed 0.00 Reading prior to use on defendant – police offi cer unable to read third decimal numeral – instruction card and Police Manual require ‘000’ prior to use – effect of instructions – whether any statutory basis – full breath test undertaken with BAC 0.088 – charges under Road Safety Act 1986 s49(1)(b) and (f) dismissed – whether Magistrate in error.

C. was intercepted driving a motor car. A police offi cer administered a preliminary breath test using a prescribed device. The offi cer said that the display on the device showed 0.00 prior to its use on C. The offi cer said he could not see the third decimal numeral because it was obscured by the leather container in which the device was housed. C. underwent a full breath test which gave a reading of 0.088BAC. C. was later charged with offences against the Road Safety Act 1986 (’Act’), s49(1)(b) and (f). At the hearing of the charges, the police offi cer said he was satisfi ed the prescribed device was operating correctly but admitted that the third decimal numeral could have registered above zero. The police offi cer was referred to two editions of the Police Drink Driving Manual for the device the fi rst of which indicated that the device should read less than ‘0.005’ prior to use, the second which indicated ‘0.00%’. The magistrate was persuaded by C. that the preliminary breath test from which the police offi cer formed an opinion was fl awed because the prosecution did not adduce evidence that the display on the device did not show 0.000 before the test was administered. The magistrate then dismissed both charges. Upon appeal—

HELD: Appeal allowed. Orders of dismissal set aside. Convictions imposed on both charges. Remitted to the Magistrates’ Court for plea and sentence.1. Although charges laid under s49(1)(b) and (f) of the Act might depend for their proof upon the same set of facts, they are nonetheless discretely different offences which involve proof of different ingredients. A charge laid under s49(1)(b) has only two necessary ingredients: the fi rst ingredient to be proved is that the person drove or was in charge of a motor vehicle. The second ingredient to be proved is that the person furnished a sample of breath for analysis which was more than the prescribed concentration of alcohol present in the blood. Accordingly, as the prosecution was not required to prove that a preliminary breath test had been undergone pursuant to s53(1) for the purposes of the s49(1((b) charge, the magistrate was in error in dismissing the charge.

2. There was no evidence to show that the omission by the police offi cer to read the third decimal point on the prescribed device affected the result of the test. No expert or scientifi c evidence was given enabling the magistrate to determine the consequence of a departure from the manufacturer’s procedures. In any event, the manufacturer’s procedures had no legislative import similar to that enjoyed by the regulations made under the Act. Had the evidence impugned the preliminary breath test, it would not follow necessarily that the charge laid under s49(1)(f) must fail. It was still necessary for the magistrate to determine why the result was unreliable. If the conduct of the member who conducted the test resulted from a mistake and not from deliberate or reckless disregard of the law, the evidence may have been admitted according to the principles in Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54; 19 ALR 641; 52 ALJR 561.

O'Bryan J:"... 9. Two witnesses were called for the prosecution and a statutory certifi cate showing that more than the prescribed concentration of alcohol was present in the respondent's blood was tendered in evidence without objection. The certifi cate showed .088 grams of alcohol per 100 millilitres of blood at 08.20 hours. The respondent did not give evidence or adduce evidence. He relied upon a submission by his counsel that both charges should be dismissed.

23. The matter of importance, for the purposes of s55 is the opinion of the member in whose presence the preliminary breath test is made. If the test indicates that the person's blood contains alcohol, the member may require the person to furnish a sample of breath for analysis by a breath analysing

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PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAinstrument. The legislation does not prescribe how much alcohol in the blood is required before the member may require a further test, only that in the opinion of the member the person's blood contains alcohol.

24. The learned Magistrate was persuaded by counsel for the respondent that the preliminary breath test result from which Senior Constable Vains formed an opinion that the respondent's blood contained alcohol was fl awed because the prosecution did not adduce evidence that the LCD did not show 0.000 before the test was administered.

25. He dismissed both charges, apparently without adverting to the fact that the charge laid under s49(1)(b) did not have the same elements as the charge laid under s49(1)(f).

27. Therefore, as the prosecution was not required to prove that a preliminary breath test had been undergone pursuant to s53(1) for the purposes of the s49(1)(b) charge the Magistrate erred in dismissing that charge.

28. The charge laid under s49(1)(f) depended for its proof upon the same set of facts as the charge laid under s49(1)(b). For convenience, the two charges were heard together. Had the Magistrate found both charges proved, he would not have imposed a penalty on each charge.

34. The Magistrate appears to have drawn two inferences neither of which was reasonably open, in my opinion. First, that the third decimal point could have read as high as 9. In theory it could have, but no evidence entitled him to infer what it read. Second, that if it read 5, or above 5, the member in whose presence the test was conducted could not form an opinion that the respondent's blood contained alcohol. The leap made by the Magistrate was a quantum leap not justifi ed by the evidence.

36. Had the evidence impugned the preliminary breath test, it would not follow necessarily that the charge laid under s49(1)(f) must fail. It would still be necessary for the Magistrate to determine why the result was unreliable. If the conduct of the member who conducted the test resulted from a mistake and not from deliberate or reckless disregard of the law, the evidence may have been admitted according to the principles in Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54; 19 ALR 641; 52 ALJR 561. In the absence of a law requiring a mandatory procedure to be followed, it would be surprising were a Magistrate not to accept the evidence. After all, the preliminary breath test requirement is preliminary to the breath analysing instrument test. The result of the fi rst test does not have to be disclosed to the respondent, it is simply the foundation for the opinion of the member that a person's blood contains alcohol. ..."

Per O'Bryan J in DPP v Connor [2000] VSC 407; (2000) 32 MVR 479; (2000) 117 A Crim R 319; MC 24/2001, 6 October 2000.

218. Traffi c infringement notice issued to defendant for drink/driving offence – effect of notice – whether conviction for purposes of a subsequent offence – “conviction” – meaning of – whether magistrate in error in not treating infringement as a prior conviction.

HELD: Section 89A of the Road Safety Act 1986 has the effect that a traffi c infringement notice issued in respect of a drink/driving infringement takes effect as a conviction for the offence 28 days after the date of the notice. The statutory conviction brought about by s89A(2) incorporates as a matter of necessity a statutory fi nding of guilt. Accordingly, a magistrate was in error in ruling that the conviction under s89A(2) did not involve a fi nding of guilt.

Bongiorno J:"1. On 20 December 1996 the respondent, Scott Croaker, was apprehended by police and given a breath test, as a result of which he was found to have been driving a motor vehicle whilst the percentage of alcohol in his blood exceeded the statutory limit, contrary to s49(1)(b) Road Safety Act 1986. His reading on that occasion was .07%. He was issued with a traffi c infringement notice by a police offi cer which had the effect, 28 days after it was issued, of taking effect as a conviction for the offence specifi ed in the notice. This result is achieved by the effect given to a traffi c infringement notice by s89A Road Safety Act 1986.

2. On 19 June 2000 Mr Croaker was again apprehended and breath tested by police, and on this occasion was found to have a blood alcohol reading of .077%. As a result of that event, on 21 February 2001 he appeared in the Melbourne Magistrates' Court charged with another breach of s49(1)(b) Road Safety Act 1986, the same offence with which he had been charged in 1996. 10. In this case, what is being asserted by the respondent is that the statutory conviction brought into existence by s89A(2) Road Safety Act 1986 does not involve a fi nding of guilt. In effect, he says that for there to be a fi nding of guilt there must be a curial process. The fi nding of guilt must be made by

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DRINK/DRIVING in VICTORIAa court. I disagree. If the discussion concerning the meaning of a conviction to which I have referred in R v Tonks [1963] VicRp 19; [1963] VR 121 and R v Maxwell [1996] HCA 46; (1996) 184 CLR 501; (1996) 135 ALR 1; [1997] 4 Leg Rep C1; (1996) 70 ALJR 324; (1996) 87 A Crim R 180 is applied to s89A(2) Road Safety Act 1986, it follows that the statutory conviction must incorporate, as a matter of necessity, a statutory fi nding of guilt. Were it otherwise, the conviction itself would have no basis. Whilst Maxwell and Tonks were both dealing with the procedures followed in a common law court, the Act is providing a new method by which a conviction can be obtained, namely, by the issue of a traffi c infringement notice, the failure to object to that notice and the statutory coming into effect of a conviction 28 days after the notice. It would seem to me to make a nonsense of the Act to say that in some way that conviction, which is itself a creature of the statute, did not involve a fi nding of guilt, also a creature of the same statute.

11. That is suffi cient to dispose of the matters raised in this appeal. If the conviction under s89A(2) involves a fi nding of guilt as I have held, then the discretion open to the magistrate in respect of a fi rst offender under s50(1AB) Road Safety Act 1986 does not exist, and accordingly the ruling of the magistrate that he had a discretion not to interfere with the respondent's licence in this case was an error, as was his disposition of the case by not interfering with the respondent's driver licence.

13. ... the whole of Mr Walsh-Buckley's argument depended, in effect, on the prosecutor below having taken a different position to that taken by the appellant here. A careful reading of the transcript reveals that he did no such thing. He did no more than say to the magistrate that he had no submissions to make in respect of the matter. He was not a legally qualifi ed prosecutor. He said he was not in a position to put an argument. There is a big difference between failing to put an argument and positively acquiescing in a particular course of conduct suffi ciently prejudicial to a respondent to bring into play cases such as Coleman [2001] VSCA 59; 120 A Crim R 415, or the other cases to which Mr Walsh-Buckley referred so as to prevent this Court rectifying the error of the magistrate, or rectifying it but refusing to permit the respondent to be further dealt with according to law. Although the argument put by Mr Walsh-Buckley in this respect may have been largely sound as a matter of law it fails on the facts. There was no blowing "hot and cold".

... Her Honour (Gaudron J) was there referring to the power that the District Court of New South Wales had to stay its own proceedings as being an abuse of process, and the power which it also had to ensure the fairness of a trial in the way in which Her Honour suggested. The situation is somewhat different here, but the same discretion resides in the magistrate. If he or she were to consider it unfair to the present respondent that his previous plea of guilty be held against him, as it were, on a re-trial, then there is ample discretion to exclude that evidence upon that re-trial. ..."

Per Bongiorno J in DPP v Croaker [2001] VSC 342; (2001) 34 MVR 397; (2001) 120 A Crim R 588; MC 25/2001, 24 August 2001.

219. Procedure – witness summons to produce documents in relation to breath analysing instrument and other things – production of documents opposed by prosecution – test to be applied by Magistrate – order that production be denied and witness summons set aside – whether legitimate forensic purpose existed to compel production of documents – whether it was “on the cards” that the documents would materially assist the defendant in his defence – meaning of “on the cards” – whether Magistrate in error.

F. was charged with drink/driving offences. Prior to the hearing, a witness summons was served on the Chief Commissioner of Police requiring the production of certain documents surrounding the taking of the breath test on F. After inspecting the documents sought, the magistrate stated that the material sought was nothing more than a ‘fi shing expedition’ and that the defendant had failed to demonstrate a legitimate forensic purpose for which he sought the denied documents. The magistrate upheld the objection to the production of the documents and set aside the witness summons. Upon an originating motion seeking an order to quash—

HELD: Motion dismissed.1. The principle of law as to whether access should be granted to documents subpoenaed from the police in relation to which objection has been taken that no legitimate forensic purpose exists for their production is well established. That principle is that a magistrate must be satisfi ed that it is “on the cards” that the documents would materially assist the defendant in his/her defence. “On the cards” means “within the range of probability”. R v Saleam (1989) 16 NSWLR 14; (1989) 39 A Crim R 406, applied. Kaschke v Hornsby (1998) 27 MVR 337; MC 21/1998, and Gaffee v Johnson [1996] VicSC 604; (1996) 90 A Crim R 157; MC 16/1997, distinguished.

2. A mere statement by a party that the breath analysing instrument must be defective or was not properly operated does not give rise to a probability that the requested documents would assist the defendant in the defence of the charges. In the present case, no material was produced which could form the basis of a submission that it was within the range of probability that the denied documents would assist the defendant in his defence of the charges. Accordingly, there was no ground to rebut the presumption as to the correctness of the exercise of the magistrate’s discretion.

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PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIABalmford J:

"... 8. On 28 June 2000 the witness summons referred to in paragraph 1 above was served on the Commissioner requiring production of certain documents. The Commissioner objected to production of the documents sought and an application to set aside the witness summons was heard in the Magistrates' Court on 17 July 2000. The documents sought were in Court and were inspected by the Magistrate.

9. Some of the documents sought were released to the plaintiff by consent. However, as has been said, the Magistrate refused production of the denied documents, being the documents described in paragraphs 1, 2, 5 and 6 of the schedule to the witness summons, and set aside the witness summons in respect of the denied documents.

12. The principal remedy sought by the plaintiff under Order 56 is an order in the nature of certiorari.

28. ... However, the issue before me, like that in Glare v Bolster [1993] VicSC 18; (1993) 18 MVR 53, turns on the merits of an application for a witness summons, and not to the power of the Magistrates' Court to give pre-trial discovery, which was in issue in Gaffee v Johnson [1996] VicSC 604; (1996) 90 A Crim R 157 and Kaschke v Hornsby [1998] VicSC 290; (1998) 27 MVR 337.

31. While Mr Billings did put the matter to this Court in the terms suggested by Mr Dennis in paragraph 25 above, he did so only indirectly. However, the transcript of the hearing before the Magistrate indicates that he there said that the defendant "says that the result of analysis is incorrect on my instructions, it follows therefore, hypothetically, or taken hypothetically, that something is wrong with the instrument on that evening or it wasn't properly operated. That therefore is a legitimate forensic purpose." He produced no material which could form the basis of a submission that it was within the range of probability that the denied documents would assist the plaintiff in his defence of the charges; i.e. that they would provide a basis for submissions that the instrument "was not on that occasion in proper working order or properly operated" in terms of section 49(4) of the Act, or that there was a defect relevant to the formation of the opinion by the operator. It was the view of the court in Ex parte Cardy and Ex parte Williams [1985] RTR 49 that a mere statement by a party that the instrument must be defective does not give rise to such a probability. It is apparent from the decision of the Magistrate in the matter before me that he shared that view, and I see no ground to rebut the presumption as to the correctness of his exercise of his discretion. ..."

Per Balmford J in Fitzgerald v Magistrates' Court and Ors 26/01; [2001] VSC 348; (2001) 34 MVR 448; MC 26/2001, 19 September 2001.

220. Operator of breath analysing instrument called to give evidence – no direct evidence given that the apparatus used by the operator was a breath analysing instrument – fi nding by Magistrate that suffi cient evidence given when reference made to the certifi cate of analysis and other matters – whether Magistrate in error.

I. was charged with an offence of drink/driving under the Road Safety Act 1986 (‘Act’) s49(1)(b) and (f). At the hearing, the operator of the breath analysing instrument was called to give evidence. The operator tendered a Certifi cate of Analysis but did not state the instrument he operated was a breath analysing instrument within the meaning of the defi nition in section 3 of the Act. In fi nding the charges proved, the magistrate found that when the Acts and regulations were considered together with the certifi cate there was suffi cient proof that the instrument used on the relevant occasion was a breath analysing instrument within the meaning of the defi nition in section 3 of the Act. Upon appeal—

HELD: Appeal dismissed.1. It is an element of the offence under s49(1)(f) of the Act that the instrument recording the analysis be a “breath analysing instrument” within the meaning of the defi nition in section 3 of the Act. Furze v Nixon [2000] VSCA 149; (2000) 2 VR 503; (2000) 113 A Crim R 556; (2000) 32 MVR 547, applied.

2. There were items of evidence before the magistrate from which it could be inferred that the instrument was one within the meaning of the Act. Such items included the Certifi cate from the Chief Commissioner of Police authorising the operator to operate a breath analysing instrument and the certifi cate of analysis which stated that the certifi cate was produced by a breath analysing instrument within the meaning of the Act.

3. A number of recent decisions of the Court of Appeal have indicated a change in the approach to the interpretation of the drink/driving provisions of the Act. Further, the Act has been amended to allow a Certifi cate of Analysis to be tendered notwithstanding that notice may have been given requiring the operator of the instrument to be called as a witness. The cases emphasise the duty of the Court to give effect to the purpose of the legislation in relation to drink/driving matters.

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DRINK/DRIVING in VICTORIA4. In considering these matters, there was evidence before the magistrate upon which he might have come to the conclusion that the apparatus used by the operator was a breath analysing instrument within the meaning of section 3 of the Act.

Balmford J:"16. All of the cases on which Mr Hardy relied were decided by single judges. Mr Trapnell submitted that a number of recent decisions of the Court of Appeal indicated a change in the approach to the interpretation of the Act. Further, the legislation had been signifi cantly amended in 1994, notably by the inclusion of section 58(2D), permitting the tender of the certifi cate after a notice had been given under section 58(2).

20. The cases emphasise the duty of the Court to give effect to the purpose of legislation. For completeness, I would refer to the direction in section 35 of the Interpretation of Legislation Act 1984 that:

In the interpretation of a provision of an Act or subordinate instrument— (a) a construction that would promote the purpose or object underlying the Act or subordinate instrument (whether or not that purpose or object is expressly stated in the Act or subordinate instrument) shall be preferred to a construction that would not promote that purpose or object; ...

21. Section 47 of the Act provides that the purposes of Part 5, which includes sections 47 to 58A, are (as also appears from the judgment cited in [18] above from Thompson v Judge Byrne [1999] HCA 16; (1999) 196 CLR 141; (1999) 161 ALR 632; (1999) 73 ALJR 642; (1999) 29 MVR 1; (1999) 7 Leg Rep 27) to:

(a) reduce the number of motor vehicle collisions of which alcohol or other drugs are a cause; and (b) reduce the number of drivers whose driving is impaired by alcohol or other drugs; and (c) provide a simple and effective means of establishing that there is present in the blood of a driver more than the legal limit of alcohol.

22. Considering the matters to which I have referred in the light of the passage cited in [9] above from Spurling v Development Underwriting (Vic) Pty Ltd [1973] VicRp 1; [1973] VR 1; (1972) 30 LGRA 19, I am satisfi ed that there was evidence before the Magistrate upon which, as a reasonable person, he might have come to the conclusion to which he did come. I could not fi nd that a decision contrary to the view of the Magistrate is the only possible decision that the evidence on any reasonable view can support. The answer to the question before the Court is accordingly Yes.

23. For the reasons given, the appeal will be dismissed with costs."Per Balmford J in Impagnatiello v Campbell [2001] VSC 425; (2001) 35 MVR 181; MC 27/2001, 8 November 2001.

On appeal—

221. Notice given requiring operator of breath analysing instrument to give evidence – notice not specifi c in relation to matters in dispute – no direct evidence given by operator that the apparatus used by the operator was a breath analysing instrument within the meaning of the act – whether presumption of regularity applied – whether inferences could be drawn – charge found proved – whether magistrate in error.

I. was charged with the offence of drink/driving under the Road Safety Act 1986 (‘Act’) s49(1)(b) and (f). Notice under s58(2) of the Act required the operator of the breath analysing instrument to be called as a witness. The notice was general in its terms and did not spell out any technical or substantive defence which was proposed to be taken in answer to the certifi cate. At the hearing the operator did not give evidence that the instrument he used on the relevant occasion was one authorised by the Act. The magistrate (and subsequently the Judge on appeal) held that inferences could be drawn that the instrument complied with the Act. Upon appeal—

HELD: Appeal allowed. Order of magistrate and judge set aside and in lieu the charge dismissed.1. The issue in this case was whether it was open to the magistrate to be satisfi ed that the instrument on which the breath analysis was conducted was one defi ned and authorised by the Act. Conviction for an offence under s49(1)(f) requires merely that a sample of breath furnished for examination by a breath analysing instrument recorded, indicated or showed the presence of more than the prescribed concentration of alcohol in the blood. It is that result which constitutes the offence and therefore it is an essential element of the offence that it was a “breath analysing instrument” within s3 of the Act. 2. Parliament has provided two ways in which the prosecution may establish that the instrument was one authorised by the Act. First, pursuant to s58(4)(a), the operator of the instrument may simply give

209

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAevidence that the instrument was a breath analysing instrument within the meaning of the Act. Alternatively, pursuant to s58(5), the operator might state that the instrument used had written inscribed or impressed on some portion of it certain expressions. In this case the operator did not adopt either course.

3. In the present case proof that the instrument complied with s3 was central to the offence and the presumption of regularity could not be relied on (directly or indirectly) as proof in itself that the instrument complied with the Act. Assuming that the operator was acting under a public duty when conducting the breath test, a presumption of regularity would not establish that the instrument he used was one which duly complied with the defi nition in the Act. Dillon v R [1982] AC 484; [1982] 1 All ER 1016, applied.

4. The inferences drawn by the magistrate (and Judge) were not properly drawn in that the conclusions amounted to mere speculation. The conclusions drawn left room for confl icting conjectures or hypotheses and did not establish that the instrument used complied with the Act. Accordingly, there was no proof of an essential element of the offence and the magistrate (and Judge) were in error in concluding otherwise. Impagnatiello v Campbell [2001] VSC 425; (2001) 35 MVR 181; MC 27/2001, reversed.

5. The requirement of the notice under s58(2) of the Act is to oblige the defence to spell out any technical or substantive defence proposed to be taken at the hearing of the charge. The notice must state what matters are addressed by s58(2(a) to (f) are challenged and as to what fact or matter. In view of the lack of specifi city of the notice in the present case it was appropriate to order that both parties should pay their own costs in the Magistrates’ Court proceedings.

Eames JA (with whom Callaway and Buchanan JJA agreed):"10. In rejecting the arguments made by counsel for the appellant the magistrate said that there was suffi cient proof that the machine was an authorised breath analysing instrument. Against that decision the appellant appealed, on questions of law, pursuant to s92 of the Magistrates’ Court Act 1989. Although a number of grounds of appeal and questions of law were separately identifi ed essentially the issue for the judge was whether it was open to the magistrate to be satisfi ed that the instrument on which the breath analysis was conducted was one defi ned and authorised under the Act.

11. ... The relevant grounds of appeal to this court may be summarised as amounting to a contention, generally, that the judge erred in law in concluding that it was open to the magistrate to be satisfi ed that the instrument complied with the Act, and, more specifi cally, that the judge erred in law in fi nding that various inferences were open to be drawn by the magistrate in proof of the offence and/or that a presumption of regularity could be called in aid in proof of the offence.

13. ... Mr Hardy submitted, correctly in my view, that nothing said by the Court of Appeal as to the purpose of the legislation and the desirability of discouraging merely technical defences over-rode the continuing requirement that the prosecution was obliged to prove the elements of the offence.

14. In addition to reliance on a certifi cate under s58(2), Parliament has provided two ways in which the prosecution may establish that the instrument is one authorised by the Act. First, pursuant to s58(4)(a), the operator of the machine may simply give evidence that the machine was a breath analysing instrument within the meaning of the Act. Alternatively, pursuant to s58(5), the operator might state that the instrument which he or she used had written inscribed or impressed on some portion of it or on a plate attached to it the expressions “Alcotest 7110” and “3530791”. In this case the operator/respondent did not adopt either course.

31. In the present case proof that the instrument complied with s3 was central to this offence. In my opinion, not only could the presumption not be relied on as proof in itself that the instrument complied with the Act (which Ms Judd accepted) it could not be relied on indirectly. Thus, I reject the submission advanced on behalf of the respondent that whilst the presumption could not provide proof beyond reasonable doubt as to that element “the Court may be assisted in reaching the requisite level of satisfaction by recourse to the presumption of regularity.”

34. Thus, none of the suggested inferences were, in fact, capable of being drawn and their individual incapacity in that respect was not overcome when they were combined. I agree with Mr Hardy, that the conclusions sought to be drawn amounted to mere speculation, and were not properly drawn inferences. The conclusions drawn left room for confl icting conjectures or hypotheses and even if the inferences were capable of being drawn if the standard of proof was the civil one, i.e. on the balance of probabilities (a proposition which I doubt, in any event) could certainly not establish beyond reasonable doubt, either as discrete inferences or as a fi nal conclusion when all are drawn together, that the instrument was compliant with s3.

35. The conclusion is inescapable, therefore, that there was no proof of an essential element of the offence. The charge ought to have been dismissed, and the learned judge was in error in concluding

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DRINK/DRIVING in VICTORIAotherwise. The appeal should be allowed, and the orders of the judge made on 8 November 2001 should be set aside.

36. The charge under s49(1)(b) was found proved but dismissed by the magistrate pursuant to s76 of the Sentencing Act 1991. Because it was dismissed, rather than struck out, it is not possible for the charge to now be revived. Ms Judd said that the respondent did not seek to argue otherwise.

37. The conviction imposed by the magistrate under s49(1)(f) and orders made on 7 May 2001 should be set aside and, in lieu, the charge should be dismissed.

42. In my opinion, it would be consistent with the intended purpose of the provisions as to notice that specifi city should be required. It is not necessary in this case to consider whether, given the failure to more precisely identify in the notice the defect on which the case was said to founder, counsel for the appellant should have been precluded from taking the point. As I have said, the respondent did not seek to argue that proposition before us. In my opinion, however, the lack of specifi city is a decisive consideration on the question of costs in this case, with respect to the Magistrates’ Court hearing. But it is not just that there was a lack of specifi city in the notice; in my view there was no notice given of this point, at all. In my opinion, when technical points are to be relied upon the penalty for the failure to be precise in the terms of the notice given may redound on the question of costs. And so it should here. Both sides should pay their own costs of the Magistrates’ Court proceedings."

Per the Court of Appeal in Impagnatiello v Campbell [2003] VSCA 154; (2003) 6 VR 416; (2003) 39 MVR 486; MC 27/2003, 26 September 2003.

222. Certifi cate of analysis produced by instrument – error as to date of birth on certifi cate – error corrected by operator, initialled and handed to defendant – defendant charged with drink/driving offences – submission that certifi cate not admissible in view of error – submission rejected – defendant convicted – whether Magistrate in error.

When a certifi cate of analysis was produced by a breath analysing instrument it showed an error in the date of birth of the person tested. The operator added the fi gures “55” after the fi gure “19” initialled the alteration and handed the amended certifi cate to the person tested. Charges were subsequently laid against V. and at the hearing it was submitted by V. that as the certifi cate did not comply with the provisions of the Road Safety Act 1986 (‘Act’) s55(4) or s58(2) it was inadmissible. The magistrate rejected this submission, admitted the certifi cate and convicted V. Upon appeal—

HELD: Appeal dismissed.1. There is nothing in the Act which precluded the admission into evidence of the certifi cate which had been altered. Nor was there anything in the Act or Regulations which precluded the admission into evidence of the certifi cate even if there was an error in anything recorded on it. The certifi cate answered the description of “a document purporting to be a certifi cate containing the prescribed particulars produced by a breath analysing instrument”. The additional fi gures were not on the document as produced by the instrument and hence did not become part of the evidence. The addition of the fi gures did not alter the effi cacy of the document as evidence admitted under s58(2). The birth date was a fact relevant to the identity of the person the subject of the charge; however, identity was not an issue and the defendant did not seek to raise it as an issue.

2. To exclude the certifi cate on the ground that an addition to it which corrected a mistake with respect to a matter of minor importance made it inadmissible would defeat and frustrate the clear purpose of the legislation set out in s47 of the Act.

Gillard J:"11. The certifi cate was produced by a breath analysing instrument. After it was produced it was observed that the date of birth of the appellant noted on the certifi cate was incorrect in that it read "20-07-19". The operator added the fi gures "55" after the fi gure "19", initialled the alteration and handed the amended certifi cate to the appellant.

12. It was submitted on behalf of the appellant that the certifi cate did not comply with the provisions of s55(4) or s58(2) and accordingly was inadmissible.

11. The certifi cate was produced by a breath analysing instrument. After it was produced it was observed that the date of birth of the appellant noted on the certifi cate was incorrect in that it read "20-07-19". The operator added the fi gures "55" after the fi gure "19", initialled the alteration and handed the amended certifi cate to the appellant.

12. It was submitted on behalf of the appellant that the certifi cate did not comply with the provisions of s55(4) or s58(2) and accordingly was inadmissible.

211

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIA13. For the purpose of the argument, it was accepted by counsel on behalf of the appellant that an error had been made by the operator of the instrument in that the instrument was incapable of accepting four digits for the year and that the operator should have inserted into the machine "55" instead of "19". It was also accepted that the operator added the fi gures in order to correct the error and make clear the year the appellant was born.

14. The magistrate ruled that the document was admissible under s58(2) of the Act and accordingly by reason of the provisions of that sub-section was conclusive proof of, inter alia, the facts and matters contained in it.

34. But the charge under s49(1)(f) is not concerned with the driving but is concerned with the fact that a person furnishes a sample within three hours after driving or being in charge of a motor vehicle for analysis by an instrument and the result as recorded indicates that the prescribed concentration of alcohol is exceeded and is not due to any drinking after the driving or being in charge of a motor vehicle.

38. Under s55(4) the operator is obliged to give a signed certifi cate as soon as practicable after the sample is analysed containing prescribed particulars. Compliance with this sub-section is a condition precedent to the admissibility of the evidence of the concentration of alcohol indicated to be present in the blood of a person whose breath has been analysed by the instrument – see s48(1) but is not a necessary element in the proof of an offence under s49(1)(f).

65. In my opinion, the certifi cate was admissible in evidence under s58(2) and the Magistrate was correct in so admitting it.

71. The structure of the present legislation is eloquent testimony to the efforts of the legislature to put a stop to technical points. The legislation provides means to ensure that matters of substance are raised as issues and that problems concerning proof can be overcome by the admission of other evidence.

72. Justice is a two-way street. The public have a very important interest in the outcome of criminal proceedings which may affect the well-being of members of the community.

73. Driving whilst affected by the consumption of alcohol is a major social problem which sometimes has catastrophic effects on innocent people.

74. The court should not frustrate the clear intention of Parliament which is to deal with the major social problem and to overcome technical points concerning admission of evidence.

75. That is not to say that the statutory prerequisites to the admission of evidence should not be complied with – see Hanlon v Lynch [1968] VicRp 80; [1968] VR 613.

76. To uphold the submission that the certifi cate should not have been admitted into evidence because there was an alteration to the certifi cate which had little to no effect in respect of the commission of the offence by the appellant would be to frustrate the clear purpose of these provisions.

77. The certifi cate does in fact contain an error. It has the appellant born in the year 1919 and not 1955. The birth date is no doubt a fact relevant to the identity of the person who allegedly contravened s49(1)(f) and the person the subject of the charge before the court. There is no doubt that the appellant's name was correct on the certifi cate, as it was on the charge, and that he was present at the hearing and represented by counsel who announced his appearance on behalf of the defendant as named. Identity was not an issue and the defendant did not seek to raise it as an issue. The evidence given by and on behalf of the informant clearly established that the defendant before the court was the same person who had provided the sample of breath for analysis and was the person present in court. ..."

Per Gillard J in Venezia v Marshall [2001] VSC 87; (2001) 33 MVR 269; MC 28/2001, 2 April 2001.

Upon appeal the Court said "Lawyers are not to be discouraged from raising points that can, on any fair view, be described as arguable, But they owe a duty to the Court not to raise and argue manifestly hopeless points. The point taken by V. was a hopeless one. In Venezia v Marshall [2001] VSC 87; (2001) 33 MVR 269; MC 28/2001, Gillard J dealt with the matter correctly. Magistrates, masters and judges must deal fi rmly with hopeless points."

223. BAC reading .068 – Administrative discretion existed whether to lay charge – discussion at scene as to whether charges would be laid – defendant aware of right to have blood test – chose not to do so in light of conversation – at hearing Magistrate invited to exclude certifi cate of operator – Magistrate

212

DRINK/DRIVING in VICTORIAdismissed charges on “issue of unfairness” – whether dismissal of charges involved the exercise of a discretion known to law.

B. underwent a breath test which disclosed a reading of .068. At the scene, a discussion occurred between B. and the informant and operator which involved the exercise of an administrative discretion whether to lay charges or not. Charges were subsequently laid and at the hearing, the certifi cate of the operator was admitted into evidence. B. gave evidence at the hearing that if he was going to be charged he would have sought a blood test. B. submitted to the magistrate that the evidence of the certifi cate should be excluded in the exercise of the fairness discretion. The magistrate found that there was an unfairness to B. which operated in relation to the charges laid and dismissed both charges. Upon appeal—

HELD: Appeal allowed. Orders set aside. Remitted for further consideration.The dismissal of the charges in reliance upon an assumed discretion that was not put by either party involved the exercise of a discretion unknown to the law and was insupportable.

Ashley J:"1. This is an appeal under s92 of the Magistrates' Court Act 1989 from a fi nal order of the Magistrates' Court made 8 February 2001 by which that court dismissed charges laid against the respondent under s49(1)(b) and (f) of the Road Safety Act 1986 (the Act).

5. On the hearing the evidence given by the informant and by Mr Berman centred upon a conversation which had taken place on the evening of 11 April 1998. It was common ground that at the pertinent time the police had an administrative discretion whether to lay a charge when a breath analysis showed a reading greater than .05 but no more than .07. That discretion, it seems, was one that as a matter of practice, at least, was exercised in favour of a driver unless he or she had been involved in an accident or unless there was a past history of traffi c offences. Just what was meant by the latter term was perhaps a matter of some debate.

14. Her Worship concluded that although there was no deliberate unfairness or improper conduct on the part of the police nonetheless there was an unfairness to the defendant which operated in his mind so that he did not request a blood test which would otherwise have been open to him and which may have formed the basis of a defence.

16. It follows that the learned magistrate dismissed the charges in reliance upon an assumed discretion that was not put to her and which neither counsel sought to persuade me was a basis for dismissal known to the law.

31. I had noted already that it was not argued by either side that the discretion as the magistrate exercised it was supportable. I have no doubt that no such discretion existed. The question that then arises is what must be done? Mr Billings has submitted that I should not return the matter to the magistrate for reconsideration because it was stale, the events giving rise to the prosecution having occurred some three-and-a-half years ago.

34. All in all then, I consider that the proper course is to allow the appeal, set aside the magistrate's order, and remit the matter for further consideration by the magistrate on the evidence already adduced. ..."

Per Ashley J in DPP v Berman [2001] VSC 367; (2001) 34 MVR 403; MC 01/2002, 26 September 2001.

224. Reading 0.074% – Defendant advised by operator not to have a blood test – charges laid under s49(1)(b) and (f) of Road Safety Act 1986 – charge under s49(1)(f) dismissed as being a nullity because it did not contain the words “after having undergone a preliminary breath test” – whether Magistrate in error – no notice given requiring operator to attend court – fi nding by Magistrate that advice given by operator and to exclude evidence relating to the breath test – charge under s49(1)(b) dismissed – whether in the circumstances the Magistrate had a discretion to exclude the certifi cate from evidence – whether Magistrate in error in dismissing the charge.

After undergoing a breath test, M. was found to have a BAC of 0.074%. M. said that he was advised by the operator not to have a blood test. Charges were laid pursuant to s49(1)(b) and (f) of the Road Safety Act 1986 (‘Act’). At the hearing, no notice under s58(2) of the Act requiring the operator to attend was given. The certifi cate was formally tendered and was conclusive proof of the matters set out in paras (a) to (f) thereof. In response to a preliminary submission by M., the magistrate declared that the charge under s49(1)(f) was a nullity because it did not contain the words “after having undergone a preliminary breath test” and accordingly, struck out the charge. In relation to the charge under s49(1)(b), in view of the advice given by the operator to M., the magistrate excluded the certifi cate from evidence and dismissed the charge. Upon appeal—

HELD: Appeal in respect of the s49(1)(f) charge upheld. Order set aside. Remitted for further determination

213

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAby the magistrate. Appeal in respect of the s49(1)(b) charge dismissed.1. The charge under s49(1)(f) was not a nullity. The omission of the words “after having undergone a preliminary breath test” did not constitute an essential element of the offence so as to require individual particularisation in the charge.

DPP Reference No 2 of 2001 [2001] VSCA 114; (2001) 4 VR 55; (2001) 122 A Crim R 251; (2001) 34 MVR 164; MC 13/2001, followed.

2. The Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54; 19 ALR 641; 52 ALJR 561 discretion has a very specifi c role and justifi cation in the context of broader questions of high public policy. That being so, the provision in s58(2) which renders the certifi cate conclusive proof of the matters listed, absent the service of a notice requiring the operator to attend court, cannot be taken to exclude the operation of that discretion. Had Parliament intended the exclusion of such a signifi cant discretion, it would have said so expressly. Accordingly, the magistrate had a discretion to exclude the certifi cate from evidence where no notice under s58(2) had been properly served on the informant.

3. There was a clear nexus between the failure to obtain a blood test and the giving of advice by the operator. There was a possibility that the blood test might have produced a lower reading than the breath analysis thus giving ground for M. to dispute the fi nding recorded in the certifi cate. There was no ground on which it could be found that the Magistrate erred in the exercise of the discretion to dismiss the charge.

Balmford J:"1. This is an appeal under section 92 of the Magistrates' Court Act 1989 from a fi nal order made on 8 June 2001 in the Magistrates' Court at Melbourne dismissing a charge against the respondent under section 49(1)(b) of the Road Safety Act 1986 ("the Act"), and striking out a charge under section 49(1)(f) of the Act.

3. On 6 August 2001 Master Wheeler ordered that the questions of law raised by this appeal were:

(1) (a) Is it necessary for a charge for an offence contrary to section 49(1)(f) of [the Act] to contain the words "after having undergone a preliminary breath test" or words to that effect?

(b) If yes, what is the effect of not including the said words?

(2) Did the Magistrate have a discretion to exclude from evidence the certifi cate produced by the breath analysing instrument in circumstances where no notice under section 58(2) had been properly served on the informant?

(3) If yes, did the Magistrate have a discretion to exclude from evidence the certifi cate in circumstances where it was not suggested that the police had acted unlawfully or improperly?

(4) If yes, did the Magistrate err in the exercise of that discretion?

7. In response to a preliminary submission by counsel for the respondent, the Magistrate declared that the charge under section 49(1)(f) was a nullity because it did not contain the words "after having undergone a preliminary breath test" or words to that effect, and accordingly struck out the charge. In making that fi nding Her Worship relied on a decision of Judge Hassett in the County Court in the matter of R v Callegher.

8. The respondent said in evidence that after he received the certifi cate, he said to the operator "Because of the fact that it was so close, I'm entitled to a blood test." The operator said to him that by the time a doctor arrived his blood alcohol level would probably be higher than .07, "so if I was you, I'd cop the .07 and forget about the blood". The respondent went on to say "My thoughts were that he's obviously thinking in my best interests, and of course, .07's a better result than .09, so I took his advice." It would appear from the transcript that this evidence was accepted by the Magistrate, and that she decided on that basis to exclude the evidence relating to the breath test and accordingly to dismiss the charge under section 49(1)(b).

13. ... In the absence of a notice properly served under section 58(2), that certifi cate is, by virtue of that section, conclusive proof of the matters set out in paragraphs (a) to (f) thereof. The question before the Court is thus whether in that situation the Magistrate had a discretion to exclude the certifi cate from evidence.

23. In considering the question now before me, that is, whether the Bunning v Cross discretion is available where no notice has been given under section 58(2), it is important to consider the principles justifying the existence of that discretion, as set out in the case itself. Stephen and Aickin JJ, with whom Barwick CJ agreed, cited from R v Ireland [1970] HCA 21; (1970) 126 CLR 321; [1970] ALR 727; (1970) 44 ALJR 263 the following passage from the judgment of the Chief Justice:

214

DRINK/DRIVING in VICTORIAWhenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion.

24. The Bunning v Cross discretion thus has a very specifi c role and justifi cation, in the context of "broader questions of high public policy". That being so, I do not consider that the provision in section 58(2) which renders the certifi cate conclusive proof of the matters listed, absent the service of a notice, can be taken, as Mr Just submitted it could, to exclude the operation of that discretion. Had Parliament intended the exclusion of such a signifi cant discretion, it would, in my view, have said so expressly. On that basis, and relying also on what was said by O'Bryan J in Connor [2000] VSC 407; (2000) 117 A Crim R 319; (2000) 32 MVR 479 and the decision in Nolan v Rhodes (1982) 32 SASR 207, I fi nd the answer to question (2) to be Yes.

26. Mr Just pointed out in this context that the giving of the advice not to have a blood test, being the conduct on which the Magistrate relied as the basis for the exercise of the discretion (see [12] above), occurred after the taking of the sample of breath and production of the certifi cate. That being so, he submitted, there was no nexus between the giving of the advice and the evidence contained in the certifi cate, and thus it was inappropriate to exclude the certifi cate from evidence on that basis. However, there was a clear nexus between the failure to obtain a blood test and the giving of the advice, and that submission overlooks the possibility that the blood test might have produced a lower reading than the breath analysis, thus giving ground to the respondent to dispute the fi nding recorded in the certifi cate.

28. Considering the matter in the light of the principles set out in that passage, and bearing in mind the defi ciencies of the transcript, there is no ground on which I could fi nd that the Magistrate erred in the exercise of the discretion which I have found that she had. The answer to question (4) is accordingly, No. ..."

Per Balmford J in DPP v Moore [2002] VSC 29; (2002) 35 MVR 357; (2002) 129 A Crim R 95; MC 03/2002, 27 February 2002.

On Appeal—

225. Reading 0.074% – Defendant advised by operator not to have a blood test – charges laid under s49(1)(b) and (f) of Road Safety Act 1986 – charge under s49(1)(f) struck out as being a nullity because it did not contain the words “after having undergone a preliminary breath test” – Magistrate in error in striking charge out – no notice given requiring operator to attend court – fi nding by Magistrate that advice given by operator to person tested about the taking of a blood test – evidence relating to the breath test excluded – charge under s49(1)(b) dismissed – whether in the circumstances the Magistrate had a discretion to exclude the certifi cate from evidence – types of discretion available to Magistrate – public policy discretion – general unfairness discretion – public policy discretion chosen by Magistrate – whether Magistrate in error in dismissing the charge.

After undergoing a breath test, M. was found to have a BAC of 0.074%. M. said that he was advised by the operator not to have a blood test. Charges were laid pursuant to s49(1)(b) and (f) of the Road Safety Act 1986 (‘Act’). At the hearing, no notice under s58(2) of the Act requiring the operator to attend was given. The certifi cate was formally tendered and was conclusive proof of the matters set out in paras (a) to (f) thereof. In response to a preliminary submission by M., the magistrate declared that the charge under s49(1)(f) was a nullity because it did not contain the words “after having undergone a preliminary breath test” and accordingly, struck out the charge. In relation to the charge under s49(1)(b), in view of the advice given by the operator to M., the magistrate excluded the certifi cate from evidence and dismissed the charge.

Upon appeal to a judge of the Supreme Court, the appeal in respect of the s49(1)(f) charge was upheld, the order set aside and remitted for further determination by the magistrate. The appeal in respect of the s49(1)(b) charge was dismissed. See DPP v Moore [2002] VSC 29; (2002) 35 MVR 357; (2002) 129 A Crim R 95; MC 03/2002. On appeal—

HELD: Appeal in respect of the s49(1)(b) charge dismissed. In respect of the s49(1)(f) charge appeal upheld, the judge’s order set aside and the appeal dismissed as incompetent.1. The Court: The decision by the magistrate to strike out the charge under s49(1)(f) was incorrect. See DPP Reference No 2 of 2001 [2001] VSCA 114; (2001) 4 VR 55; 34 MVR 164; MC 13/2001. The general principle is that what has been struck out, whether it be an information, charge, summons, proceeding or appeal, may be restored or reinstated because the legal effect of striking out is merely to take the subject matter out of the court lists. The principle that a court of summary jurisdiction has power to set aside an order striking out a complaint or information which has been made in error, is applicable to the order made in the present case striking out the charge under s49(1)(f). As the subject matter is capable of being brought

215

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAon again, the order striking it out is not fi nal and the judge did not have jurisdiction to hear an appeal from it. In the event that an application for reinstatement of the original charge is sought, the magistrate must grant it. R v McGowan [1984] VicRp 78; [1984] VR 1000; and Thiessen v Fielding [1890] VicLawRp 138; (1890) 16 VLR 666, applied.

2. Chernov and Eames JJ A, Batt JA dissenting: The public policy discretion discussed in Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54; 19 ALR 641; 52 ALJR 561 was available to the magistrate and was appropriately applied. Accordingly, it was open to the magistrate to rule that evidence of the breath analysis should be excluded.

3. The Court: The concept underlying the public policy discretion applies when the evidence is the product of unfair and unlawful conduct on the part of the authorities. Its rationale is to prevent the administration of criminal justice from being brought into disrepute. It is a discretion which involves the balancing of two public policy considerations, namely, the public interest in placing all relevant and admissible evidence before the court and the public interest in ensuring that law enforcement offi cers do not act unlawfully or improperly. Hence, in appropriate cases, courts may exercise the discretion to exclude such evidence if the price of conviction that could be obtained by reason of such evidence, would be “too high”. R v Ireland [1970] HCA 21; (1970) 126 CLR 321; [1970] ALR 727; (1970) 44 ALJR 263, and Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54; 19 ALR 641; 52 ALJR 561, applied.

4. The Court: The general unfairness discretion may be exercised by the court to exclude evidence where it considers that it would be unfair to the accused if it were admitted in the sense that this would or might render the accused’s trial unfair. Therefore, this discretion is primarily concerned with circumstances which might produce an unfair trial, carrying the potential for a miscarriage of justice. Although ordinarily there is a signifi cant overlap in the underlying bases for the exercise of one or other of the categories of discretion to exclude evidence, considerations that may move the court to exercise the public policy discretion may not be identical to those which result in the exercise of the general unfairness discretion and vice versa. For example, the considerations which underpin the public policy discretion may not be accorded the same weight (and might not be deemed relevant at all) when considering the general unfairness discretion. It would have been appropriate for the magistrate in the present case to have exercised the general unfairness discretion so as to exclude the certifi cate from evidence. M., having been effectively divested of the opportunity of obtaining a blood test and thereby challenging the accuracy of the breathalyser instrument reading, was deprived of the opportunity of having a trial that was not unfair.

5. Chernov and Eames JJ A: It has been suggested that the public policy discretion had no operation in the present case because the improper conduct of the police offi cer concerning the oral advice took place temporarily after the certifi cate was lawfully obtained. However, having regard to the close connection between the breathalyser reading and the circumstances pertaining to the improper conduct the public policy discretion was enlivened. Clearly there is a point where events occurring after the obtaining of evidence could not bear upon the admissibility of that evidence. In the present case there was no reason why the public policy discretion should be unavailable merely because the conduct of the police offi cer followed immediately after the procuring of evidence rather than preceding it. Question of Law Reserved (No 1 of 1998) (1998) 70 SASR 281; (1998) 100 A Crim R 281, distinguished; R v Lobban [2000] SASC 48; (2000) 77 SASR 24; (2000) 112 A Crim R 357, not followed.

Batt JA:"2. ... The differences between the two offences are well known. The fi rst concerns the actual concentration in the blood at the time of driving, the second the concentration at the time of testing as shown by the instrument.

20. ... Although no case considering reinstatement of a charge or information struck out as a nullity was cited or has otherwise come to my attention, I have in the end come to the conclusion that the principle discerned by Kaye J in R v McGowan [1984] VicRp 78; [1984] VR 1000 from the decision of the Full Court in Thiessen v Fielding [1890] VicLawRp 138; (1890) 16 VLR 666, that a court of summary jurisdiction has power to set aside an order striking out a complaint or information which has been made in error, is applicable to the order striking out the charge under s49(1)(f) here. Accordingly, that order was interlocutory and the primary judge had no jurisdiction to hear an appeal from it.

27. ... To my mind, s58(2) contains two presently relevant statements. The fi rst is simply that a certifi cate under s55(4) is admissible, that is, that it may be admitted, not that it must be admitted. In other words, the certifi cate is no different from other admissible evidence in a prosecution, which may be excluded in the discretion of the judge. There is no reason why, if the facts warrant it, the certifi cate should not be excluded in the exercise of a discretion. Secondly, the sub-section states that the certifi cate is conclusive proof of the matters enumerated. But it can only be proof, and conclusive proof, when it has been admitted. The conclusive character of the proof which a certifi cate affords does not deny the possibility of the certifi cate’s being excluded from evidence before it can constitute proof.

216

DRINK/DRIVING in VICTORIAThe sub-section, then, is not expressly or impliedly inconsistent with the availability in appropriate circumstances of a discretionary power to exclude from evidence or to decline to receive in evidence that which is the subject matter of the sub-section, namely, a certifi cate under s55(4). Thus, the two statements which s58(2) relevantly makes do not support the suggested exclusion of the discretionary power. Furthermore, s55(13), to my mind, implies that evidence of the kind there referred to may not be received if reasonable efforts are not made to comply with a request under s55(10) and, perhaps, in other circumstances quite separate from an unsatisfi ed request under sub-s(10).

29. ... This is not a case where the request was made and the person making it was prevailed upon to withdraw it. Therefore, in my view, there was no improper (as opposed to unwise) conduct. But, even if there was, it occurred after the evidence in the form of the certifi cate had been obtained and, in my opinion, the better view is, as was submitted for the appellant, at least initially, that in such a case the Bunning v Cross discretion cannot apply so as to permit of the exclusion of the certifi cate on that ground.

32. It follows that in excluding the certifi cate in this case under the public policy aspect of the discretion by reason of police conduct after the certifi cate had been produced, the magistrate erred. For she exercised it on a basis which was not available. Her decision cannot, I consider, be supported as having been made under the general unfairness aspect of the discretion, because, as appears from paragraph [9] above, which is based on the agreed facts before this Court, confi rmed now by reference to the transcript, it was not so made. This is so even if, as the agreed summary states (though I cannot fi nd the word in the transcript of her remarks), the magistrate spoke of the evidence as having been unfairly obtained.[44] Nor can it be said that the discretion must have been exercised on the latter basis in favour of excluding the certifi cate had it been exercised, for the factors requiring consideration, whilst overlapping, are by no means entirely the same as between the two aspects, as appears from their respective rationales. 2[2]4[1] ..."

Chernov JA:"42. In the circumstances, I consider that the conduct of the operator in this case, although not unlawful, was improper in the sense that it was, in the circumstances, of suffi cient seriousness to warrant “sacrifi cing the community’s desire to see the guilty convicted in order to express disapproval of, and to discourage, the use of unacceptable methods in achieving that end.”

51. In light of these authorities, and given the circumstances of this case, I consider that the public policy discretion arose for consideration and that, in all the circumstances, there was no relevant error on the part of the magistrate in the exercise of it. It has been suggested, however, that, in light of the decisions in Question of Law Reserved (No.1 of 1998) (1998) 70 SASR 281; (1998) 100 A Crim R 281 and R v Lobban [2000] SASC 48; (2000) 77 SASR 24; (2000) 112 A Crim R 357 the public policy discretion had no operation in this case because the improper conduct of the police offi cer, assuming it was that, took place, temporally, after the certifi cate was lawfully obtained. Consequently, I turn to consider the two cases.

56. It seems to me, however, that situations such as those in this case and in French v Scarman (1979) 20 SASR 333 are altogether different. In this case, there was such a close connection between the breathalyser reading and the circumstances pertaining to the improper conduct that the public policy discretion could be said to have been enlivened. The statutory right given to the respondent by s55(10) of the Act was, as King CJ recognised in French v Scarman (1979) 20 SASR 333, closely connected with the obligation to submit to the breathalyser test. Furthermore, the improper behaviour occurred immediately after the breathalyser reading was obtained and it had the consequence of enabling the police to rely only on the breathalyser certifi cate in the prosecution of charge 1 and to avoid the prospect of having to lead evidence of blood test results which might have contradicted the reading that was reproduced in the certifi cate. Moreover, if a blood test had been taken, the respondent might have given notice to Senior Constable Steele pursuant to s58(2) of the Act to attend court in which case, of course, the certifi cate would not have constituted conclusive proof of the respondent’s blood alcohol content.

57. Thus, I remain of the view that, in the circumstances of this particular case, the public policy discretion was enlivened (and, as I have said, the magistrate did not relevantly err in excluding the certifi cate from the evidence in the exercise of her discretion).

61. If, however, I am wrong in my conclusion that the public policy discretion was available to be exercised by the magistrate, then, as Martin J has made clear in R v Lobban [2000] SASC 48; (2000) 112 A Crim R 357; (2000) 77 SASR 244 the interests of the respondent may nevertheless be protected by the general unfairness discretion. In my opinion, it would have been appropriate for the magistrate to have exercised this aspect of the court’s discretion so as to exclude the certifi cate from evidence. The respondent, having been effectively divested of the opportunity of obtaining a blood test and thereby challenging the accuracy of the breathalyser machine reading, was deprived of the

217

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAopportunity of having a trial that was not unfair. In the circumstances, I consider that it would be appropriate to uphold the magistrate’s decision on this alternative basis.

Eames JA:"68. In the event that we concluded that the public policy discretion was not available to the magistrate a notice of contention was fi led on behalf of the respondent in which it was sought to support her Worship’s decision by the application of a general unfairness discretion. Given that the other members of the court disagree on the question whether the Bunning v Cross discretion was open to be applied by the magistrate I wish to state my own view on that issue. As will be seen, I agree with Chernov JA that the public policy discretion was available to the magistrate in this case, and was appropriately applied by her.

90. In the present case the learned magistrate concluded that the conduct of Senior Constable Steele was persuasive in dissuading the respondent from exercising the right given to him by s55(10) to request that arrangements be made for him to take a blood test. In proffering advice that the blood alcohol reading from a blood test result was likely to be higher than from the breath analysis the circumstances were such that it was very likely that the advice would be heeded. Because Steele did not give evidence we do not know whether (assuming he agreed that he had proffered such advice) he genuinely believed the truth of what he said. Nor do we know whether, if it was his honest belief, there was any scientifi c basis for it. As I will later discuss, the answers to those questions might have been very relevant when applying the fairness discretion. However, even without knowing the answers to those questions the magistrate when applying the Bunning v Cross discretion was entitled to conclude that the conduct of the police offi cer was improper and effectively dissuaded the respondent from exercising his right under s55(10). That is conduct which should not be countenanced by the courts. Notwithstanding the seriousness of drink driving offences the legislation provides a statutory safeguard by s55(10) and it is not for the law enforcement authorities to use their position to effectively withdraw that safeguard from a citizen.

94. I conclude, therefore, that the learned magistrate was correct in applying the Bunning v Cross discretion. The substantive issue raised by ground 2 in the grounds of appeal before us is whether there was a discretion to exclude the breath test evidence and for the reasons given I conclude that both a Bunning v Cross and a general unfairness discretion were open to be applied. The third ground of appeal contends that the magistrate erred in the exercise of any such discretion and I conclude that no error has been established. For the reasons given by Batt JA I conclude that ground 1 has also not been made out. That would be suffi cient to dispose of the appeal. I add one further matter, however.

96. ... The magistrate ought to have known whether the allegations were admitted by Senior Constable Steele, and, if so, whether he believed the truth of what he said, and whether, objectively, there was any truth as to what he asserted. Because of the conclusion I have reached as to the availability of the Bunning v Cross discretion it is unnecessary for me to further consider the application of the general unfairness discretion.

97. For the reasons given, the appeal should be dismissed."Per the Court of Appeal in DPP v Moore [2003] VSCA 90; [2003] 6 VR 430; (2003) 39 MVR 323; MC 20/2003, 29 July 2003.

226. Defendant required to accompany police offi cer to police station for breath test – statement by defendant that he wanted to take child to his parents’ home nearby – defendant subsequently charged with refusing to accompany police offi cer to police station – defence of “some reason of a substantial character” – defence upheld by Magistrate – whether defence applies to charge of refusing to accompany.

Section 55(9) of the Road Safety Act 1986 (‘Act’) provides:“A person must not be convicted or found guilty of refusing to furnish under this section a sample of breath for analysis if he or she satisfi es the court that there was some reason of a substantial character for the refusal …”

HELD: If a person refuses to accompany a member of the police force to a police station or other place, that person does not fail to comply with a requirement to furnish a sample of breath for analysis, for that requirement can only be made where the breath analysing instrument is to be found. The phrase “for that purpose” in s55(1) of the Act is intended to limit the circumstances in which a requirement to accompany a member of the police force can be made. The fact that the requirement to accompany a member of the police force is described in the sub-section as a “further” requirement emphasises that it is a requirement separate from one to furnish a sample of breath for analysis. Accordingly, s55(9) of the Act does not provide a defence to a charge under s49(1)(e) of the Act arising out of a refusal to comply with a requirement to accompany pursuant to s55(1) of the Act.

218

DRINK/DRIVING in VICTORIADPP v Foster [1999] VSCA 73; [1999] 2 VR 643; (1999) 104 A Crim R 426; (1999) 29 MVR 365, applied. DPP v Greelish [2000] VSC 364; (2000) 115 A Crim R 178; (2000) 32 MVR 271; MC 22/2001, reversed.

Buchanan JA (with whom Phillips JA and O'Bryan AJA agreed):"3. The respondent told the police that he would not allow anyone else to take his daughter to his parents' house. He refused an offer by the police to take the child to his parents' house in a police vehicle while the respondent followed in a divisional van. The respondent walked with his daughter to his parents' house and returned to the police offi cers, who informed him that he was too late and he would be charged.

6. The charge was treated by the parties and a judge as alleging that the respondent had refused to comply with a requirement to accompany a member of the police force to a police station. The parties who appeared before us agreed that, if the proceeding is remitted to the Magistrates' Court, the charge should be further amended by adding after the words "did refuse to" the words "comply with the requirement to".

9. ... The question was further refi ned in the course of the hearing of this appeal and became:

"Does s55(9) of the Road Safety Act 1986 provide a defence to a charge under s49(1)(e) of the Road Safety Act 1986 arising out of a refusal to comply with a requirement to accompany pursuant to s55(1) of the Road Safety Act 1986?"

11. In my opinion, the essential question posed by this appeal is whether s55(1) creates one or more offences. If there is one offence, namely, refusing to comply with a requirement to furnish a sample of breath for analysis, and refusal to accompany a police offi cer to a police station or remain at a police station are but different means of exemplifying a refusal to furnish a sample of breath, in my view s55(9) did afford a defence to the respondent. On the other hand, if there are as many potential offences as there are requirements which may be made under s55(1), sub-s(9) applies to the only requirement which the sub-section identifi es.

14. If a person refuses to accompany a member of the police force to a police station or other place, that person does not fail to comply with a requirement to furnish a sample of breath for analysis, for that requirement can only be made where the breath analysing instrument is to be found, and unless the refusal to accompany constitutes an offence, the purpose of s55(1) will be frustrated.

15. ... As I have said, a refusal to accompany a member of the police force is not tantamount to a refusal to furnish a sample of breath for analysis. In my view, the phrase "for that purpose" was intended to limit the circumstances in which a requirement to accompany a member of the police force could be made. I am also of the view that the fact that the requirement to accompany a member of the police force is described in the sub-section as a "further" requirement emphasises that it is a requirement separate from one to furnish a sample of breath for analysis.

18. I am mindful that the legislation is penal in nature and requires persons to provide potentially incriminating material. Consequently, the provisions are to be construed strictly and any ambiguity should be resolved in favour of the respondent. Nevertheless, in my opinion, the words found in the Act are clear. In terms, s55(9) refers to one only of several requirements found in s55(1). ..."

Per the Court of Appeal in DPP v Greelish [2002] VSCA 49; (2002) 4 VR 220; (2002) 35 MVR 466; (2002) 128 A Crim R 144; MC 04/2002, 27 March 2002.

227. Sample of breath provided by defendant – no result produced – further sample required – refusal by defendant to provide further sample – defendant charged with refusing to comply under s55(1) of Road Safety Act 1986 – should have been charged under s55(2a) – no case submission rejected – at end of case application by prosecutor to amend charge to substitute “s55(2a)” for “s55(1)” – application granted – defendant convicted – whether s55(2a) creates a separate offence – whether Magistrate in error in amending information.

G. provided a sample of breath for analysis by a breath analysing instrument however, the sample did not produce a result. The police offi cer proceeded to use the procedure authorised by s55(2A) of the Road Safety Act 1986 (‘Act’) which permits a breath analysis operator to seek further samples of breath when the initial sample does not produce a sample capable of being measured or a measurement is not obtained. G. was charged with a failure to comply with s55(1) of the Act notwithstanding the fact that he provided the initial sample of breath. At the end of the prosecution case, a ‘no case’ submission was made but rejected despite the fact that G. had complied with s55(1). At the end of the case, the prosecutor applied to amend the charge to substitute s55(2A) for s55(1). The magistrate granted the application, made the amendment and convicted G. Upon appeal—

HELD: Appeal upheld. Order of Magistrate quashed.1. Section 49(1)(e) of the Act provides that a person is guilty of an offence if he or she refuses to comply

219

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAwith a requirement made under s55(1), (2), (2A) or (9A). Section 55(1) and s55(2A) create separate offences: in the fi rst, a failure to provide a breath sample simpliciter and, in the second, a failure to provide further samples in the circumstances provided by s55(2A). This conclusion is reinforced when one looks at the elements of those offences which would have to be proved under s55(1) and then under s55(2A).

2. Accordingly, the magistrate was in error in holding that an offence under s55(1) was a cognate offence with that of refusing to comply with a requirement under s55(2A).

3. In order to support a conviction for an offence it is necessary either that the information upon which it is based should accurately state the acts necessary to constitute all the ingredients of that offence. It is necessary that the court be informed of the identity of the offence with which it is required to deal and to provide the defendant with the substance of the charge which he or she has been called upon to meet.

Ex Parte Lovell; Re Buckley and Anor [1938] NSWStRp 12; (1938) 38 SR (NSW) 153; 55 WN (NSW) 63; and

John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508; 73 ALR 545; 61 ALJR 508; 27 A Crim R 228, applied.

4. After the amendment was made by the magistrate, the charge simply referred to the section without reference to the way in which it was said the section was breached. Further, the charge was amended at a time when a new charge under s55(2A) could not have been laid. It would have been out of time. In those circumstances, the making of the amendment was an error of law.

Bongiorno J:"4. The problem the prosecution faced in this case was that it charged Mr Goodey with a failure to comply with s55(1). It is not contested that in fact he did provide the initial sample. The prosecution's complaint is that he did not comply with the further requirements which were, in this particular case, required of him by s55(2A). Counsel for Mr Goodey made a "no case" submission at the end of the prosecution case. That submission was rejected, despite the fact that at that stage he had complied, and there was no contest that he had complied, with s55(1).

7. Notwithstanding Mr Gyorffy's submission, I have concluded that s55(1) and s55(2A) do in fact create separate offences: in the fi rst, a failure to provide a breath sample simpliciter and, in the second, a failure to provide further samples in the circumstances provided by s55(2A). Having regard to the preliminary words of s55(2A), it would not be open, in my view, to argue that s49(1)(f) was rendered inoperative where a sample is provided pursuant to s55(2A). Section 55(2A) commences with reference to the person who required a sample of breath under s55(1) or (2) being entitled to require the person who furnished the breath sample to provide further samples. That is suffi cient, in my opinion, to interpret s49(1)(f) as applying to a sample of breath and its analysis whether the sample was provided under s55(2A) or s55(1). That legal analysis does not mean that the two sections create the same offence or that there is only one offence. Section 49(1)(e) makes it clear that there is more than one offence, and when one looks at the elements of those offences which would have to be proved under s55(1) and then under s55(2A) that conclusion is reinforced.

8. Following the rejection of the "no case" submission, the case proceeded with the defendant giving evidence, at the end of which, after some discussion and at the invitation of the magistrate, the prosecution applied to amend the charge to substitute s55(2A) for s55(1) in its formulation. This seems to have been a recognition that there was a different offence created, otherwise the amendment would have been unnecessary. However, whether that was such a recognition or not, the question then is whether such an application to amend should have been entertained by the magistrate and, if entertained, should have been granted. In the event, the magistrate granted the application and proceeded to convict the now appellant.

12. In this case, after amendment allowed by the magistrate, the charge simply referred to the section without reference to the way in which it was said the section was breached. Further, the charge was amended at a time when a new charge under s55(2A) could not have been laid. It would have been out of time. The amendment should not have been allowed. To have allowed it was an error of law. ..."

Per Bongiorno J in Goodey v Clarke [2002] VSC 246; (2002) 37 MVR 121; MC 05/2002, 12 June 2002.

228. Person found by police offi cer next to his motor vehicle – person appeared to be under the infl uence of alcohol – requested by police offi cer to accompany offi cer to police station for a breath test – request refused – charge subsequently laid – dismissed by Magistrate – whether Magistrate in error.

M., who had been consuming intoxicating liquor, was found by a police offi cer next to the driver’s door of his motor vehicle. M. locked his vehicle, dropped the keys to the ground and walked off. M., was holding a half-consumed stubby of beer in his hand, his eyes were glazed and was unsteady on his feet. M. was requested to accompany

220

DRINK/DRIVING in VICTORIAthe offi cer to a police station for the purposes of a breath test because he was found in charge of the vehicle, but refused on the basis that the police did not fi nd him driving. M. was charged with an offence under s49(1)(e) of the Road Safety Act 1986 (‘Act’) in that he refused to comply with a requirement to accompany the informant to a police station for the purposes of a breath test. At the hearing, no evidence was called on M.’s behalf. After submissions were made, the magistrate held that the charge was not proven and dismissed it. Upon appeal—

HELD: Appeal allowed. Dismissal set aside. Remitted to the magistrate for further consideration.1. For a charge under s49(1)(e) of the Act, the informant has to prove beyond reasonable doubt each of the following elements:

(a) That a police offi cer reasonably believed that the defendant had driven or was in charge of a motor vehicle while more than the prescribed concentration of alcohol was present in the blood;(b) That the member required the defendant to furnish a sample of breath for analysis; and (c) That the defendant refused the request.

2. The police offi cer was required to form the belief that M. had committed an offence and the belief must be reasonably based. In forming that belief, the offi cer was entitled to rely upon any information available to him. There was ample evidence pointing to M. driving the vehicle within a relatively short period prior to his being questioned by the informant. Accordingly, there was suffi cient evidence to conclude that M. had been in charge of the vehicle within the three-hour period prior to the time when the request to provide a sample was made. In the circumstances the formation of the belief by the informant was reasonable and the magistrate was in error in holding otherwise.

3. If M. had not been in charge of his motor vehicle within a period of three hours prior to the request being made to furnish the sample, then that factual information was within his knowledge and he could have given evidence and called other evidence to establish that the ground of the informant’s belief was non-existent. He failed to do so.

Weissensteiner v R [1993] HCA 65; (1993) 178 CLR 217; (1993) 117 ALR 545; 68 A Crim R 251; 68 ALJR 23, applied.

Gillard J:"6. The offence with which the respondent was charged in fact is an offence against s49(1)(e) of the Act. It provides –

"(1) A person is guilty of an offence if he or she— ... (a) refuses to comply with a requirement made under s.55(1), (2), (2A) or (9A); or"

7. It was alleged that the respondent breached s55(2), in that he was requested to accompany a policeman to a police station to furnish a sample of breath for analysis by a breath analysing instrument and he refused to do so.

39. State of belief is a state of mind and the only person who can provide that evidence is the particular member of the force who formed the belief. He would have to give evidence not only of his state of belief just prior to making a request, but he would also have to state the facts upon which he relied to ground that belief. It would be necessary for the prosecution to persuade the tribunal of fact, namely, the magistrate, that his state of belief was reasonable, taking into account all the circumstances.

45. In my opinion, it is not part of the informant's proof that the suspect driver had in fact driven or was in charge of the motor vehicle within the three hour period. It is a defence that would have to be properly raised by the defendant by adducing evidence to support the fact that he had not driven or was not in charge of a motor vehicle within the three hour period.

46. The question is, whether the prosecution has to establish that at the time when the request was made by the member of the force, the member had reasonable grounds for the belief that the suspect intended to start or drive his motor vehicle within the meaning of s48(1)(b) of the Act.

47. With respect to the fi rst element of proof, what does the member of the force have to believe? The answer is that he has to believe that a person has offended against s49(1)(a) or (b).

48. Belief is something more than suspicion. The belief is formed by the member based on the facts known to him at the time. Some of the facts may be hearsay. But they are facts upon which he relied and upon which he is entitled to take into account in forming his belief. The facts need not be established to the satisfaction of the member beyond reasonable doubt. Having ascertained the facts, he then forms his belief.

59. In the present matter, the member of the force must form the belief that the person has offended against s49(1)(a) or (b). That is, the person has committed the offence. He does not have to form that belief beyond reasonable doubt. But his belief must be reasonably based.

221

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIA70. The learned magistrate was wrong in concluding that the prosecution had to prove beyond reasonable doubt that the respondent was in charge of a motor vehicle at the time when the request was made.

79. In my opinion, the magistrate misdirected herself and was wrong in concluding that it was necessary to prove either (1) that at the time the request was made, the respondent was in charge of the motor vehicle within the meaning of s49(1)(b) and (2) that the informant had reasonable grounds that at the time when he made the request, he was in charge of the vehicle.

80. What the informant had to prove was that he had a belief that at some time prior to the request, no greater than three hours prior to the request to furnish a sample of breath, the respondent was in charge of a motor vehicle whilst more than the required concentration of alcohol was present in his blood contrary to s49(1)(b).

85. In answer to question of law (i), in my opinion, the learned magistrate was wrong in holding that it was necessary for the prosecution to prove beyond reasonable doubt that the defendant was in charge of a motor vehicle at the time when he was questioned, or within three hours of the request being made to undergo the breath test.

86. With respect to question of law (ii), that if she had found the facts stated, she should have found the charge proven, but on a proper reading of her reasons, in my opinion, the learned magistrate did not eventually hold that a member of the force reasonably believed that the driver had offended against s49(1)(b) of the Act.

101. In Weissensteiner v R [1993] HCA 65; (1993) 178 CLR 217; (1993) 117 ALR 545; 68 A Crim R 251; 68 ALJR 23, Mason CJ, Deane and Dawson JJ, at CLR p227, said –

"There has never really been doubt that when a party to litigation fails to accept an opportunity to place before the Court evidence of facts within his or her knowledge which, if they exist at all, would explain or contradict the evidence against that party, the Court may more readily accept that evidence. It is not just because uncontradicted evidence is easier or safer to accept than contradicted evidence. That is almost a truism. It is because doubts about the reliability of witnesses or about the inferences to be drawn from the evidence may be more readily discounted in the absence of contradictory evidence from a party who might be expected to give or call it. In particular in a criminal trial hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused." (Emphasis added).

102. If the respondent had not been in charge of his motor vehicle within a period of three hours prior to the request being made to furnish a sample, then that factual information is within his knowledge and he could have given evidence and maybe called other evidence to establish that the ground of belief of the informant was non-existent. He failed to do so. He did not seek to raise a defence pursuant to s55(6) of the Act.

103. In my opinion, the overall evidence leads to the conclusion beyond reasonable doubt that the informant had formed the necessary belief and that the basis for his belief was reasonable.

104. In my opinion, the magistrate should have found the charge was proven, and I propose to remit the matter to the Magistrates' Court sitting at Bendigo to further deal with the charge in accordance with the law. ..."

Per Gillard J in DPP v Mitchell [2002] VSC 326; (2002) 37 MVR 142; MC 22/2002, 14 August 2002.

On Appeal—

229. Driver of motor vehicle intercepted when outside his vehicle – belief by police offi cer that driver had been driving his vehicle a short time before interception – driver requested to accompany police offi cer to police station for a breath test – driver refused – subsequently charged with refusing to comply with offi cer's requirement – charge dismissed by Magistrate on ground that offi cer did not have reasonable belief that driver had an intention to start or drive the motor vehicle – Magistrate in error.

HELD: 1. A police offi cer who requires a person to accompany the member pursuant to s55(2) of the Road Safety Act 1986 ('Act'), is obliged to state the purpose of the requirement namely, to obtain a sample of breath for analysis by a breath analysing instrument and to disclose the circumstances which justify the requirement namely, that the person has offended against s49(1)(a) or (b) of the Act.

222

DRINK/DRIVING in VICTORIA2. Where there was ample evidence that a driver had been driving a motor vehicle within a relatively short period of time prior to his being questioned by a police offi cer, the formation of the belief was reasonable and the magistrate was in error in holding otherwise. The prosecution was not obliged to establish beyond reasonable doubt that the driver was in charge of his motor vehicle at the time he was required to accompany the police offi cer. DPP v Mitchell [2002] VSC 326; (2002) 37 MVR 142; MC 22/2002, approved.

Buchanan JA (with whom JD Phillips and Callaway JJA agreed):"6. The appellant was charged with an offence under s49(1)(e) of the Road Safety Act 1986 (“the Act”) in that he refused to comply with a request to accompany a member of the police force to a police station for the purpose of furnishing a sample of his breath for analysis and the refusal was made “prior to three hours elapsing from being in charge of a motor vehicle”.

9. The magistrate dismissed the charge. She said in her reasons that she was required to be satisfi ed beyond reasonable doubt that the appellant was in charge of the vehicle at the time the informant required him to furnish a sample of breath. The magistrate, however, did not proceed to determine whether that element had been proved, but instead dealt with the question of Mr Fleming’s belief, concluding:

“I cannot be satisfi ed that there were reasonable grounds for a belief that he had a present intention to start or drive that motor vehicle. That being the case, not all the elements of the charge have been made out and accordingly, the charge before the Court will be dismissed.”

17. Accordingly, I am of the opinion that it is only necessary for the prosecution to establish that a person required to furnish a sample of breath for analysis drove or was in charge of a motor vehicle less than three hours earlier in a case where the person, having arrived at the place or vehicle where the sample of breath was to be furnished, fails to remain for what the prosecution contends is the time limited by the sub-section. In the present case no question arose as to the obligation of the appellant to remain for three hours as the appellant refused to accompany Senior Constable Fleming to the police station.

19. In my view the words in parenthesis in s55(2) do not add another element to the offence created by s49(1)(e), but were intended merely to make it clear that, even if s53 might be thought to apply, a sample of a person’s breath could be taken for analysis by a breath analysing instrument without that person fi rst undergoing a preliminary breath test.

25. In my opinion a member of the police force who requires a person to accompany the member pursuant to s55(2) is obliged to state the purpose of the requirement, namely, to obtain a sample of breath for analysis by a breath analysing instrument, and to disclose the circumstances which by law justify the requirement. Parliament has not said that a person is obliged to accompany a member of the police force whenever the latter desires to obtain a sample of breath for analysis but only where the member reasonably believes the person to have offended against s49(1)(a) or (b). The belief which is the condition precedent to the exercise of the power should be asserted, although not necessarily in the statutory language. ..."

Per the Court of Appeal in Mitchell v DPP [2004] VSCA 36; (2004) 8 VR 192; (2004) 40 MVR 358; MC 16/2004, 24 March 2004.

230. Date of offence – place of offence – capable of amendment where variance – blood test taken from driver – test taken more than three hours after driving – “expressed consent” to blood test – meaning of – driver told by doctor that he will take his blood and asked: “will you let me?” – fi nding by Court that driver “expressed consent” – whether Court in error.

On 27 August 1999 shortly after 11.30pm, D. drove his motor vehicle into a service station situated on the corner of Frankston-Flinders Road and Moorooduc Road. The service station operator called the police who arrived at about 12.45am on 28 August 1999. As the breath analysis instrument was unable to analyse a sample of D.’s breath, D. was required to remain for a blood test pursuant to s55(9A) of the Road Safety Act 1986 (‘Act’) and indicated his willingness to do so. The doctor who attended to take a blood sample said to D.: “I am going to take your blood will you let me?” to which D. answered: “Yes”. D. returned a blood/alcohol reading of 0.107% and was charged with an offence under s49(1)(b) of the Act and also a charge of driving a motor vehicle on a highway namely Moorooduc Road whilst disqualifi ed. At the hearing, D. was convicted and appealed to the County Court which also imposed convictions. Upon an originating motion to quash—

HELD: Conviction and sentence on charge under s49(1)(b) quashed. No error in relation to charge of driving whilst disqualifi ed.1. Each charge could just have easily stated that the offences occurred on or about 27 August 1999. The situation was one where the precise date was something that could have been amended without altering the offence. The amendment to the date of offence was of something not essential or material to the charge and it addressed a variance as provided by s50 of the Magistrates’ Court Act 1989.

223

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIA2. The identity of the street where the driving allegedly occurred was not material. Whilst there was no evidence that D. was observed to be actually driving on either the Frankston-Flinders Road or Moorooduc Road, the evidence that D. was observed driving into the service station led to the inescapable conclusion that D. must have been driving on one or other of those two highways.

3. In view of the fact that the blood sample was taken more than three hours after the relevant driving, the prosecution had to rely on s57(9) to prove that D. had “expressed consent to the collection of blood”. Whilst D. expressed his willingness to undergo a blood test, the question was whether the assent amounted to “expressed consent”. There was no evidence that D. was aware of his right not to consent at the time he was asked to consent. D. remained under the impression that he had no choice so that, when asked by the doctor, D.’s assent amounted to no more than an allowing of the doctor to take the sample and not the giving of consent. Anything short of an informed consent will not suffi ce to enable a blood sample to be taken. In the circumstances, it was not open to the court to fi nd that a consent was made following the exercise of a choice. It would reduce the “expressed consent” requirement to a mere formality if permission given in the circumstances of the present case could be regarded as a consent which satisfi ed the legislation.

Smith J:"9. His Honour noted in his reasons that he allowed the respondent to the appeal to amend both charges so as to allege that the offences took place on 27 August 1999 and not 28 August 1999 as set out in the stated charges. He noted that he allowed the amendment pursuant to s50 Magistrates' Court Act 1989.

12. ... The situation was one where the precise date was something that could be amended without altering the offence. Each charge could just as easily have stated that the offences occurred on or about 27 August 1999. The amendment made was of something not essential or material to the charge under either section. It addressed a variance.

As to counsel's submission that there was no direct evidence of driving on any highway, his Honour said he accepted there was no evidence from any witness stating that Mr Day was observed to be actually driving on either the Moorooduc Road or the Frankston-Flinders Road. He stated, however, that the evidence of Mr McKinnon that he observed Mr Day driving into the service station area led to the inescapable conclusion that he must have been driving on one or other of those two highways.

16. I agree with his Honour's analysis. It is, therefore, unnecessary to consider whether the service station driving areas were also highways.

18. ... Counsel for Mr Day argued before his Honour that the statutory prerequisites had not been established in that a demand satisfying the section had not been made. He argued that, as a result, the evidence of the blood sample was not admissible.

23. Section 55(9A) and s56 set out the circumstances in which blood samples may be lawfully taken without consent. Section 57(9) otherwise forbade the taking of a blood sample except with consent. Section 57 also dealt with the evidentiary aspects.

29. In my view, the prosecution could not rely on s55(9A) to authorise the taking of the sample, the three hours having elapsed. It had to rely, therefore, on s57(9) which required "expressed consent" to justify the taking of the sample and to be able to tender evidence of the result.

36. There was no evidence before his Honour that Mr Day was aware of his right not to consent at that time he was asked to consent. There was evidence, however, that he had been told that he had to submit to a blood test. On the evidence, he had not been told that he did not remain under that obligation. In those circumstances, I have diffi culty with the proposition that a consent was given by Mr Day to the taking of the blood sample. Plainly, Parliament attached signifi cance to the requirement that consent be given. In my view, it would reduce the "expressed consent" requirement to a mere formality if permission given in the circumstances of the present case could be regarded as a consent which satisfi ed the legislation.

39. The Victorian provision, of course, was not drafted in express terms conferring an option. Nonetheless, it is clear that Parliament intended that the driver have a choice and that, if the driver was agreeable to having a blood sample taken, the driver should express his or her consent before any blood sample was taken or evidence of the result could be tendered. In the present case I am persuaded, on the basis of the facts found and referred to in his Honour's reasons, that it was not open to fi nd that a consent was made following the exercise of a choice. On the facts as found by his Honour, the driver remained under the impression that he had no choice so that, when asked by the doctor, his assent amounted to no more than an allowing of the doctor to take the sample and not the giving of consent. That distinction is a real distinction and is used in the Act itself. For example, s56 which obliges injured persons to provide blood samples states "The person must allow a doctor to take from that person ... a sample of that person's blood".

224

DRINK/DRIVING in VICTORIA47. In light of the foregoing, it follows that error has been demonstrated on the face of the record in respect of the decision on the charge of breach of s49(1)(b). The evidence of the blood test was not admissible. The plaintiff, however, has failed to establish error in respect of the charge brought under s30 of the Act. ..."

Per Smith J in Day v County Court of Victoria and Hanson [2002] VSC 426; (2002) 37 MVR 319; MC 29/2002, 9 October 2002.

231. Brief of evidence – drink/driving charge – service of summons to answer charge short-served – no appearance of defendant on hearing of charge – matter dealt with ex parte – certifi cates with respect to blood sample admitted into evidence – defendant convicted – whether Magistrate in error in admitting certifi cates into evidence – whether Magistrate in error in fi nding charge proved.

A summons to answer charges laid under the Road Safety Act 1986 (‘Act’) and a brief of evidence containing certifi cates were served on P. Pursuant to s34(1)(a)(ii) of the Magistrates’ Court Act 1989, service of the process had to be effected “at least 14 days before the mention date”. In P.’s case, the summons was served 7-8 days before the mention date. When the charges came on for hearing, P. did not attend court. The magistrate admitted the certifi cates as to the taking of the blood sample and the result of the analysis and convicted P. Upon appeal—

HELD: Appeal allowed. Orders set aside.1. Section 34(1) of the Magistrates’ Court Act 1989 prescribes in para (a) the time within which service is to be effected and in para (b) the mode of service. Each commences with the expression “must be served”. These statutory procedures must be strictly complied with and accordingly, the magistrate fell into error in proceeding to deal with the charges where the summons was not served in accordance with s34.

Nitz v Evans [1993] VicSC 177; (1993) 19 MVR 55, andBrereton v Sinclair [2000] VSCA 211; (2000) 2 VR 424; (2000) 118 A Crim R 366, followed.

2. Obiter: Section 57 of the Act sets out the evidentiary provisions with respect to blood tests for certain driving offences. Section 57(5) of the Act provides that a certifi cate must not be tendered in evidence unless a copy of the certifi cate is proved to have been personally served on the accused more than 10 days before the day on which the certifi cate is tendered in evidence. Compliance with the service requirement is a pre-condition to admissibility of a certifi cate under this section. A certifi cate which has been short-served in terms of the date of its tender into evidence is inadmissible. Accordingly, the magistrate fell into error in admitting the certifi cates in evidence and fi nding the charges proved.

Byrne J:"7. On 10 July 2002, Ms Platz appealed pursuant to s92 of the Magistrates' Court Act against these fi nal orders made against her. Two questions of law have been certifi ed by the Master on 26 August 2002:

"(a) did the learned Magistrate err in determining the charges laid against the Appellant in circumstances where the charge and summons were served less than 14 days before the mention date specifi ed in the summons?

(b) was there admissible evidence before the learned Magistrate which entitled him to fi nd that the Appellant's blood alcohol content was in excess of the prescribed concentration of alcohol within 3 hours after driving a motor vehicle in circumstances where the brief of evidence was served less than 10 days before the hearing date".

I am satisfi ed that the fi rst question should be answered in the affi rmative. Section 34(1) prescribes in para (a) the time within which service is to be effected and in para (b) the mode of service. Each commences with the expression "must be served".

13. Section 57 of the Road Safety Act 1986 sets out the evidentiary provisions with respect to blood tests for certain driving offences. The informant is permitted to rely upon a certifi cate as to the taking of a blood sample and a certifi cate as to its analysis. Sub-section (5) then provides a condition for admissibility of these certifi cates, and I quote:

"A certifi cate given under this section must not be tendered in evidence at a trial or hearing referred to in sub-section 2(a), (ab), (b) or (c) without the consent of the accused unless a copy of the certifi cate is proved to have been personally served on the accused more than 10 days before the day on which the certifi cate is tendered in evidence".

To my mind, the intent of Parliament is clearly expressed. Compliance with the service requirement is a pre-condition to admissibility of a certifi cate under this section. There is an evident policy underlying this that the defendant should have the opportunity of considering the content of the certifi cate well before trial. A certifi cate which has been short-served in terms of the date of its tender into evidence is inadmissible. The second question therefore should also be answered in the affi rmative. ..."

225

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAPer Byrne J in Platz v Barmby [2002] VSC 531; (2002) 135 A Crim R 571; MC 33/2002, 26 November 2002.

232. PBT positive – driver requested by police offi cer to go to police station for breath test – on way to police station driver complained of chest pain – driver taken to hospital – at hospital driver required to provide blood sample – driver agreed to allow medical practitioner to take blood sample – analysis later showed BAC of .180% – driver subsequently charged with offence – charge found proved – whether sample taken “in accordance” with s55(9a) of Road Safety Act 1986 – whether requirement to furnish breath sample an element of the offence – whether Court in error in fi nding charge proved.

Whilst driving his motor car, McP. was intercepted by a police offi cer. A PBT was taken of McP. which proved positive and the police offi cer requested McP. to accompany him to a police station for the purposes of a full breath test. On the way to the police station, McP. complained of chest pain and accordingly, he was taken to the nearest hospital where a blood sample was subsequently taken. Prior to the taking of the blood sample the police offi cer told McP. that he was required to allow a medical practitioner to take a sample of blood to which McP. responded: “Yes, OK.” On analysis, the BAC was 0.180%. McP. was later charged with an offence under s49(1)(g) of the Road Safety Act 1986 (‘Act’). At the hearing, McP. was convicted and fi ned and an order made against his driver licence. Upon appeal to the County Court, it was argued that as the police offi cer had not required McP. to undergo a breath test as provided for in s55(1) of the Act an essential part of the prosecution case had not been established. This argument was rejected and the appeal was dismissed. Upon originating motion seeking judicial review—

HELD: Originating motion dismissed.1. It is not an “essential pre-condition” or an element of an offence under s49(1)(g) of the Act in circumstances where reliance is held by the prosecution upon a blood analysis obtained pursuant to s55(9A) of the Act for the police offi cer who requires a blood sample to be taken to state to the motorist that he or she “requires the person to furnish a sample of breath for analysis” before a blood sample can be taken and evidence of its analysis given to the court. The words “the person who required a sample of breath” in s55(9A) do not mean that the police offi cer must have articulated a requirement for a sample of breath to be supplied by McP. before he was able to articulate a requirement for a sample of blood to be obtained legally. DPP v Foster [1999] VSCA 73; [1999] 2 VR 643; (1999) 104 A Crim R 426; (1999) 29 MVR 365; MC 01/1999, applied.

2. In the circumstances, the court made no error of law on the face of the record in fi nding the charge proved notwithstanding that there was no specifi c “requirement” to provide a sample of breath either articulated by the police offi cer or demonstrated by a requirement to provide a sample of breath by the presence of a breath analysing instrument at any time. Walker v DPP [1993] VicSC 245; (1993) 17 MVR 194; MC 02/1994, applied.

Kellam J:"8. It is useful by way of background to refer to the factual matters which were before the learned Judge and some of the issues which arose in the appeal before him. Evidence was given that the plaintiff was intercepted by the Sergeant when driving a motor car in Little River late in the evening of 6 January 2001. A preliminary breath test was undertaken and the Sergeant being of the opinion that the plaintiff’s blood contained alcohol requested the plaintiff to accompany him back to Werribee Police Station for the purpose of a breathalyser analysis. On the way back to Werribee Police Station the plaintiff complained of chest pain and accordingly the Sergeant took him to Werribee Hospital. There a blood sample was taken from the plaintiff. The learned Judge accepted the evidence of the Sergeant that prior to the taking of the blood sample the Sergeant told the plaintiff that pursuant to s55(9A) of the Road Safety Act 1986 (“the Act”) the plaintiff was required to allow a medical practitioner to take a sample of his blood for analysis. That blood sample was alleged to have a blood alcohol content of .180% upon analysis.

21. Whilst the “line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly diffi cult to discern” it appears to me that the circumstances of the case now before me, do not demonstrate jurisdictional error in an inferior court. It is apparent that the learned Judge had the jurisdiction to determine whether or not he was satisfi ed on the evidence before him that the prosecution had proved all the elements of the charge beyond reasonable doubt. In my view he clearly had jurisdiction to rule on the admissibility of the certifi cate of taking blood and the certifi cate of analysis of blood, both under the principles of Bunning v Cross and the alternative basis under s83(1) of the Act 1986.

25. The question of whether or not the learned Judge exercised his discretion erroneously in admitting evidence of the taking of the blood sample and of the analysis of the blood sample is not relevant to the question of whether or not he had jurisdiction to exercise such a discretion. Accordingly, as stated above, I conclude that there was no jurisdictional error on the part of the learned Judge and thus if the plaintiff is to succeed in this application he must prove error of law on the face of the record.

226

DRINK/DRIVING in VICTORIA30. For current purposes it may be said that the matters required to be proved in order to convict the plaintiff under s49(1)(g) of the Act are –

(a) A sample of blood has been taken from him. (b) In accordance with s6. (c) Within three hours after driving or being in charge of a motor vehicle. (d) The sample has been analysed within 12 months after it was taken. (e) By a properly qualifi ed analyst within the meaning of s57. (f) The analyst has found at the time of the analysis that more than the prescribed concentration of alcohol was present in the sample. (g) The concentration of alcohol found by the analyst to be present in the blood sample of the plaintiff was not due solely to his consumption of alcohol after driving or being in charge of the motor vehicle.

35. In my view, it is not an “essential pre-condition”, or an element, of an offence under s49(1)(g) of the Act, in circumstances where reliance is held by the prosecution upon a blood analysis obtained pursuant to s55(9A) of the Act, for the police offi cer who requires a blood sample to be taken to state to the motorist that he or she “requires the person to furnish a sample of breath for analysis” before a blood sample can be taken, and evidence of its analysis given to the court.

38. It is apparent, as stated above, that the plaintiff was travelling to Werribee Police Station pursuant to a requirement made by the Sergeant to accompany him to the police station for the purposes of the provision of a sample of breath for analysis in accordance with the provisions of s55(1) of the Act.

39. However, before that requirement could be put into effect and as the plaintiff accompanied the Sergeant to the Werribee Police Station the plaintiff complained of chest pain and the Sergeant accordingly took him to Werribee Hospital rather than to the police station. Shortly thereafter the Sergeant told the plaintiff that it appeared to him that the plaintiff was unable to provide a suffi cient sample of breath on medical grounds and that he would require a blood sample.

45. It is apparent from the legislation that once the plaintiff provided a “positive” sample of breath into the preliminary breath test device pursuant to s55(1) of the Act, he remained under a continuing obligation either to furnish a sample of his breath for analysis by a breath analysing instrument or alternatively and pursuant to s55(9A) of the Act, to provide a sample of blood for analysis for a period of three hours after he was found driving a motor vehicle.

48. Whilst it is true that Parliament has chosen to use the words “under s55(1)” in s49(f) and the words “in accordance” with s55(9A) in s49(g), I do not conclude that the words “in accordance” mean that total compliance with s55(9A) is required to the point that such compliance is an essential precondition or element to be proved before an offence under s49(g) can be made out. Notwithstanding the use of the word “accordance” in s55(9A) instead of “under” in s55(1), I conclude that the words “the person who required a sample of breath” do not mean that the Sergeant in this case must have articulated a requirement for a sample of breath to be supplied by the plaintiff before he was able to articulate a requirement for a sample of blood to be obtained legally. In my view, those words are facilitative and, if anything, are intended to identify the person who is authorised to make the requirement for the provision of a blood sample.

52. It follows that in my view the learned Judge made no error of law on the face of the record in fi nding the plaintiff guilty of the s49(1)(g) offence notwithstanding that there was no specifi c “requirement” to provide a sample of breath either articulated by the Sergeant or demonstrated by a requirement to provide a sample of breath by the presence of a breath analysing instrument at any time.

53. It follows further that no error of law on the face of the record is demonstrated by the learned Judge exercising his discretion to admit the certifi cate of taking blood and the certifi cate of analysis into evidence in accordance with the principles in Bunning v Cross. It is apparent that his Honour considered carefully the principles set out in Bunning v Cross and I can see no basis upon which his exercise of discretion in this regard discloses any error of law on the face of the record.

54. In my view, his Honour’s alternative basis for admitting the certifi cate of taking blood and the certifi cate of analysis pursuant to s57(9) of the Act also discloses no error of law on the face of the record. It should be noted that this case is quite different from that of Day v County Court of Victoria and Hanson [2002] VSC 426; (2002) 37 MVR 319 in that in that case, three hours from the driving had expired and the defendant had not been informed that he was then under no legal obligation to submit to a blood test. In such circumstances it is apparent that the consent of the defendant was not an informed consent. It appears to me to be apparent in the circumstances of the case before me that no error is disclosed on the face of the record by the learned Judge fi nding that the plaintiff consented to a blood sample being taken. ..."

Per Kellam J in McPherson v County Court of Victoria and Anor [2003] VSC 105; (2003) 38 MVR 362; MC 01/2003, 4 April 2003.

227

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIA233. Offender found guilty of drink/driving offences twice within ten-year period – penalty to be applied to subsequent offence – whether second offence a “subsequent offence” – conviction not imposed for second offence with reading of 0.095% – minimum licence disqualifi cation period of 18 months – disqualifi cation period of 6 months imposed by Magistrate – whether Magistrate in error.

N. had been found guilty within a ten-year period of two drink/driving offences. On the second occasion N’s BAC was 0.095% for which the relevant licence disqualifi cation was 18 months. At the hearing, the magistrate concluded that by not recording a conviction, he was not required to treat the offence to which N. pleaded guilty as a “subsequent offence”. The effect of this was that the magistrate found that the mandatory penalties did not apply and then imposed the minimum disqualifi cation of 6 months which is mandatory for a “fi rst offence”. Upon appeal by the DPP—

HELD: Appeal allowed. Order of magistrate set aside. Remitted to the magistrate for re-sentencing. 1. The legislative scheme contemplated by s50(1A) of the Road Safety Act 1986 (‘Act’) is that a person who is found guilty of certain drink/driving offences is to have his or her driving licence or permit cancelled and is to be disqualifi ed from driving for a period which varies according to the level of blood alcohol concentration and according to whether the offence is a fi rst or a subsequent offence of the same nature.

2. It is quite clear that the intention of the legislation in relation to s50(1A) of the Act is that persons who have previously been found guilty of an offence against s49(1)(b), (f) or (g) (subject to the limitation of ten years from the date of commission of the offence established by s50AA of the Act) are to have their licences or permits cancelled for longer periods than fi rst offenders. To treat the later offence as a fi rst offence is absurd and wholly inconsistent with the intention of the Act.

3. Reading the expression “subsequent offence” as it appears in s50(1A) of the Act in its ordinary sense, it is apparent that N. committed a subsequent offence as contemplated by the section and was required to have his licence cancelled and to be disqualifi ed from obtaining a licence or permit for a minimum period of 18 months. Accordingly, the magistrate was in error in holding that the offence in question was not a “subsequent offence” under s50(1A) of the Act.

Kellam J:"11. However, notwithstanding the apparently clear intention of s50(1A) of the Act, Mr Norman, through his counsel, Mr Walsh-Buckley submits that s48(2) of the Act provides that an earlier offence under s49(1)(f) of the Act turns a later offence into a “subsequent offence” only in circumstances where a conviction is imposed on the later offence.

15. ... Mr Trapnell submits that the relevant legislation is not ambiguous and that the ordinary English language meaning of “subsequent offence” where it appears in s50(1A) means an offence following a previous offence. He submits that s48(2) of the Act does not purport to defi ne the expression “subsequent offence” and that it is apparent both from the language used in s50(1A) and by the history of the legislation that Parliament intended that the commission of a subsequent offence (during the relevant time of ten years established under s50(AA) of the Act) was to result in suspension and cancellation of the driving licence. 22. It should be noted that the discretion, “in certain limited circumstances”, not to disqualify a driver for the same period as would have been required if a conviction had been recorded, resulted from the insertion of s50(1AB) into the Act by the amending legislation of 1992 referred to above. That section permits a court not to cancel a driver’s licence if a person has been previously found guilty of an offence under s49(1) (b), (f) or (g) of the Act where his or her blood alcohol concentration was not more than 0.5%, or in circumstances where the person has not previously been found guilty of such an offence, where the blood alcohol concentration was not more than .10%. Mr Norman of course had been previously convicted of an offence under s49(1)(f) of the Act with a concentration of blood alcohol of .135% and thus the legislative discretion is irrelevant in his circumstances.

24. Accordingly, it is quite clear to me that the intention of the legislation in relation to s50(1A) of the Act is that persons who have previously been found guilty of an offence against s49(1)(b), (f) or (g) (subject to the limitation of ten years from the date of commission of the offence established by s50AA of the Act) are to have their licences or permits cancelled for longer periods than fi rst offenders.

27. In the circumstances before the Magistrate, Mr Norman had been convicted of an offence under s49(1)(f) of the Act on 14 May 1992. The offence, the subject of this appeal, was committed less than ten years later, on 24 February 2002. Thus Mr Norman committed the same offence (ie an offence against s49(1)(f) of the Act) twice within a ten year period. In my view, reading the expression “subsequent offence” as it appears in s50(1A) of the Act in its ordinary sense, it is apparent that Mr Norman committed a subsequent offence as contemplated by the section and was required to have his licence cancelled and to be disqualifi ed from obtaining a licence or permit for a minimum period of 18 months. ..."

Per Kellam J in DPP v Norman [2003] VSC 369; (2003) 39 MVR 480; MC 28/2003, 3 October 2003.

228

DRINK/DRIVING in VICTORIA234. At police station driver unable to provide a suffi cient sample of breath for analysis by breath analysing instrument – request by police offi cer that driver allow a medical practitioner to take a sample of blood for analysis – doctor not present when request made – driver charged with refusal to allow blood sample to be taken – charge found proved – whether requirement for the taking of blood must be made in the presence of medical practitioner – whether Magistrate in error in fi nding charge proved.

After being intercepted driving a motor vehicle, H. was asked by S., a police offi cer, to undergo a preliminary breath test. H. failed to produce an adequate sample of breath for analysis and then accompanied S. to a police station where further unsuccessful attempts were made to produce a breath sample from H. S. then required H. to allow a medical practitioner or approved health professional to take a sample of H’s blood for analysis. H. refused to allow a blood sample to be taken and was charged with an offence under s49(e) of the Road Safety Act 1986 (‘Act’). H. was later convicted of the offence. Upon appeal—

HELD: Appeal allowed. Order of magistrate set aside and the charge dismissed. 1. Before a person can be required to allow a registered medical practitioner or other approved person to take a blood sample from him or her, that registered medical practitioner or other approved person must be present. Scott v Dunstone [1963] VicRp 77; [1963] VR 579; and DPP v Foster [1999] VSCA 73; [1999] 2 VR 643; (1999) 104 A Crim R 426; (1999) 29 MVR 365, applied.

2. As it is not suggested that there was any doctor (or other approved person) present at the time H. was asked to permit a blood sample to be taken, it follows that there was no obligation on him to give his consent at that point. Such an obligation would only arise when the doctor was physically present wherever the driver might be. Accordingly, the magistrate was in error in fi nding the charge proved.

Per Bongiorno J:"17. Here, there was clearly no evidence that any doctor was nominated and, if it was a necessary requirement of the section, then there was no evidence to satisfy that requirement. If the point of law were to be decided as Mr Hardy submits the appeal would be upheld on that ground. However, I say nothing further about it.

18. The second argument is to the effect that unless the registered medical practitioner or approved health professional is present at the time the driver is required to permit the blood sample to be taken, then the requirement cannot be put in terms where a refusal constitutes an offence.

26. In the circumstances I am unable to distinguish the two provisions. It seems to me that it is necessary before a person can be required to allow a registered medical practitioner or other approved person to take a blood sample from him or her, that registered medical practitioner or other approved person must be present.

27. As it is not suggested that there was any doctor (or other approved person) present at the time the appellant was asked to permit a blood sample to be taken, it follows that there was no obligation on the appellant to give his consent at that point. Such an obligation would only arise when the doctor was physically present wherever the driver might be. ..."

Per Bongiorno J in Halepovic v Sangson [2003] VSC 464; (2003) 40 MVR 203; MC 29/2003, 24 October 2003.

235. PBT positive – driver requested to accompany police offi cer to booze bus to furnish sample of breath for analysis – driver requested to remain in booze bus by another police offi cer – driver failed to remain – charged with refusing to comply with a requirement to remain – charge dismissed – Magistrate held that same police offi cer must make each requirement – Magistrate in error.

HELD: For a valid requirement to remain under s55(1) of the Road Safety Act 1986, it is not nec es sary that that requirement be made by the same offi cer who made the requirement to furnish a sample of breath for analysis or the requirement to accompany a member to the place or vehicle where it is to be furnished or both such requirements.

Cummins J:"... 4. ... The Magistrate dismissed the summons, essentially on the basis that for a conviction the police offi cer who required the defendant to furnish a sample of breath for analysis (after the preliminary breath test) and to accompany a member to the vehicle where the sample of breath was to be furnished was the only offi cer who could require the defendant to remain for further testing under s55(1). The appellant before me contends that that decision was erroneous in law because s55(1) does not require the same offi cer to require the defendant to remain for further testing a who made the earlier requirements. Thus this appeal.

229

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIA10. The defendant’s point before the Magistrate, and before this Court, was that the police requirement to the defendant to remain for the breath test was invalid because the wrong offi cer made it. The defence submitted below, and before me, that Constable Ramsey should have made it, not Senior Constable Wansleeben. The defence submitted below, and before me, that the relevant section, s55(1), requires the offi cer who required the defendant to furnish a sample of breath for analysis by a breath analysing instrument and for that purpose further required the defendant to accompany an offi cer to the vehicle where the sample of breath was to be furnished, and no-one else other than that fi rst offi cer, make the requirement to remain for the breath test by the breath analysing instrument.

12. I consider that the Magistrate, despite his considered address to the legislation and rel e vant considerations, was wrong in law in his reasoning and in the conclusion he reached. It is not a requirement of s55(1) that the offi cer who required the defendant to accompany an offi cer to the vehicle where the sample of breath was to be furnished, be the offi cer who requires the driver to remain for the purpose of furnishing a sample of breath for analysis.

14. It will have been seen that the question of law for consideration stated in the Order of the Master of 19 March 2003 was:

“Following a preliminary breath test, can a Police Offi cer, other than the one who conducted same (and formed the opinion that it indicated that a person’s blood contains alcohol) require the driver to remain for further testing under section 55(1) of the Road Safety Act 1986?”

18. It is plain beyond argument that a police offi cer other than the one who conducted the preliminary breath test can validly require the driver to remain for further testing under s55(1). That is because that is what the section clearly states. It states:

“(1) If a person undergoes a preliminary breath test when required by a member of the police force ... and—(a) the test in the opinion of this member ... in whose presence it is made indicates that the person’s blood contains alcohol ... —any member of the police force may require the person to furnish a sample of breath for analysis by a breath analysing instrument and for that purpose may further require the person to ac com pa ny a member of the police force to a place or vehicle where the ample of breath is to be furnished and to remain there ...”

19. However, for the reasons I stated in paragraph 16, I do not consider that that is the true issue before me and I consider the question formulated by the Master is inaccurate. The true question, as Mr Nash correctly contended before me, following so far as one can the wording of the Master and arising on the facts of this case is:

“Following a preliminary breath test which in the opinion of the police offi cer in whose presence it is made indicates that the person’s blood contains alcohol, can a member of the police force – other than the member of the police force who requires the person to furnish a sample of breath for analysis by a breath analysing instrument and who for that purpose requires the person to accompany a member to a vehicle where the sample of breath is to be furnished – require the person to remain there until the person has furnished the sample of breath and been given the appropriate certifi cate or until 3 hours after the driving, whichever is the sooner?”

Section 55(1) does not say in terms “that member” before the words “may further require”. The legislation could have stated “that member”, just as it does in s55(2), but it does not. The legislation does not say in terms “The person who required ... may require” just as it does in s55(2A) and (9A), but it does not. I consider that omission in s55(1), and that contrast with s55(2), (2A) and (9A) is signifi cant. The subject of the verb “may require” and “may further require” is unstated; it is implicit. The clear implication upon a proper grammatical construction of s55(1) is:

“any member of the police force ... may require the person to furnish a sample of breath for analysis by a breath analysing instrument and for that purpose any member of the police force may further require the person to accompany a member of the police force ... to a place or vehicle where the sample of breath is to be furnished and to remain there ...”

39. For the above reasons I conclude that for a valid requirement to remain it is not nec es sary that that requirement be made by the same offi cer who made the requirement to furnish a sample of breath for analysis or the requirement to accompany a member to the place or vehicle where it is to be furnished or both such requirements. Accordingly I would answer the re for mu lat ed question posed in paragraph 19 above: Yes. ..."

Per Cummins J in DPP v Loftus [2004] VSC 39; (2004) 40 MVR 415; MC 03/2004, 18 February 2004.

230

DRINK/DRIVING in VICTORIA236. Driver underwent three attempts to provide a sample of breath for analysis – breath analysing instrument indicated on each occasion "alcohol in mouth" – driver requested to undergo a blood test – refusal by driver to undergo test – charged with refusing a requirement to allow a medical practitioner to take a sample of blood for analysis – fi nding by Magistrate that prosecution must prove the police offi cer believed on reasonable grounds that the instrument was incapable of measuring the driver's BAC – fi nding by Magistrate that he was not satisfi ed beyond reasonable doubt of the existence of reasonable grounds – charge dismissed – Magistrate not in error.

HELD: 1. According to ordinary principles, an exercise of statutory discretionary power is invalid if lacking in bona fi des or if not based upon reasonable grounds. Since the existence of a valid requirement is an essential element of any offence of refusing to comply with a requirement, it follows that it is incumbent upon the prosecution to adduce evidence suffi cient to establish beyond reasonable doubt that the police offi cer requiring the accused to provide a blood sample believed on reasonable grounds that the breath analysing instrument was incapable of measuring the accused's blood alcohol concentration in grams per 100ml.

2. Where a magistrate found that the evidence adduced was insuffi cient to establish beyond reasonable doubt that the police informant held the necessary belief, the magistrate was not in error in dismissing the charge.

Nettle J:"3. The Magistrate based his decision on the judgment of Hedigan J in DPP v Holden [1999] VSC 14; (1999) 28 MVR 315. Consistently with that decision, his Worship held that in order to suc ceed it was incumbent upon the prosecution to adduce evidence suffi cient to establish beyond reasonable doubt that the person requiring the accused to provide a blood sample believed on reasonable grounds that the breath analysing instrument was incapable of measuring the ac cused’s blood alcohol concentration in gms per 100 ml. In the Magistrate’s view, the evidence adduced was insuffi cient to establish beyond reasonable doubt that the informant had such reasonable grounds.

10. In my judgment Hedigan J was correct in holding that it is not only necessary that it appear to the person requiring the blood sample that the instrument be incapable of providing a reading in gms/100ml but also that the person’s opinion be based on reasonable grounds.

14. Putting it another way, it cannot be supposed that Parliament intended to empower po lice offi cers arbitrarily and capriciously to impose a requirement to undergo a blood test. Consequently, a requirement based upon an opinion that was not bona fi de or not reasonably grounded would be beyond the power contemplated by the section and therefore it would be invalid.

16. That being so, and since the existence of a valid requirement is an essential element of any offence of refusing to comply with a requirement, it follows that Hedigan J in Holden, and thus too the Magistrate below were right to hold that it was incumbent upon the prosecution to adduce evidence suffi cient to establish beyond reasonable doubt that the police offi cer requiring the accused to provide a blood sample believed on reasonable grounds that the breath analysing instrument was incapable of measuring the accused’s blood alcohol concentration in gms per 100 ml.

20. In my view the fact that the informant carried out three separate tests in close suc ces sion, and the fact that each test failed to produce any reading other than “Alcohol in Mouth”, constituted powerful evidence that the machine was incapable in the particular circumstances of the case of producing a measure of concentration in gms/100 ml. I take to be self evident that a prescribed breath analysing instrument is designed to measure alcohol concentration in gms/100 ml and, consequently, if such a machine fails to do so on each of three consecutive occasions when a measurement is attempted, logic and every-day experience of things mechanical suggest that the machine was incapable of producing the reading.

21. Moreover, and as has been seen, the Magistrate had before him evidence not only of the way in which the machine performed but also of the accused’s condition upon apprehension, and of the admissions which the accused had made as to the amount of alcohol he consumed. As it appears to me, the latter increased the likelihood that the machine was incapable of producing a reading. If a man has consumed the amount of alcohol to which the accused admitted, one expects a signifi cant reading. The fact that none was forthcoming bespoke a high probability that the machine was incapable of producing a reading. In the result, in my opinion, it was open to the Magistrate to be satisfi ed on the evidence before him of the existence of reasonable grounds.

22. The question, however, is not whether it was open to the Magistrate to fi nd that there were reasonable grounds but rather whether it was open to his Worship to fi nd that he was not so persuaded. And, for the reasons already given, I consider that it was. ..."

Per Nettle J in DPP v Skinner [2004] VSC 32; (2004) 40 MVR 427; MC 04/2004, 17 February 2004.

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PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIA237. PBT positive – driver taken to booze bus – driver told to wait outside booze bus whilst licence check conducted by police offi cer – driver told that he would be required to accompany police offi cer into booze bus for a breath test after checks completed – driver agreed with this requirement – driver later left scene before breath test could be conducted – later charged with refusing to comply with a requirement to undergo a breath test – driver later convicted of charge – whether Court in error.

S. was intercepted whilst driving his motor vehicle. S. underwent a preliminary breath test which proved positive and was required by a police offi cer, to accompany him to a breath-testing vehicle for the purpose of a breath test. S. agreed and accompanied the offi cer to the rear of the booze bus. S. was told to wait whilst the offi cer went on board the bus to carry out some checks. The offi cer told S. that after the checks were completed he would be required to accompany him on board the bus for the purpose of a breath test. S. said that he was prepared to accompany the offi cer. After the checks were completed, the offi cer moved outside the bus to fi nd that S. had left the scene. S. was later charged under s49(1)(e) with failing to comply with a requirement to remain at the bus. S. was convicted. Upon application in the nature of certiorari—

HELD: Application refused.1. The test of whether the prosecution has proved a requirement is whether the accused was given reasonably suffi cient information to know what was required of him and why. Such may be achieved in a number of ways, by terms formal or informal, imperative or precatory, and offi cious or polite. Whether there has been a refusal to comply with the requirement may also be proved in a number of ways: either by direct evidence, as, for example, when a defendant has said “I refuse” or “No”; or by inference drawn from circumstantial evidence, as, for example, when a defendant has turned and run or even later left the scene. Each case will depend on its own circumstances and it must be remembered that a failure to comply must always be shown to be such that implicitly the driver is refusing to comply with the relevant requirement. But it is plainly not the case that the only way in which that can be established is by direct refusal.

2. It did not necessarily follow that the fact that the requirement in the present case was couched in the future simple tense was not a valid requirement. The test was whether S. was given reasonably suffi cient information to know what was required of him and why. The police offi cer made plain his intent that S. should remain at the rear of the bus and that S. was left in no doubt that he was obligated to remain there. Accordingly, the court was not in error in fi nding the charge proved.

Nettle J:"... 8. The plaintiff also gave evidence, which the judge rejected, that after he had been waiting for some time, he was told by another police offi cer that he might leave, and that is why he did leave.

11. ... As the judge rightly said, the test is whether the evidence as it stood was such as to prove that the plaintiff was given reasonably suffi cient information to know what was required of him and why? Consequently, a requirement need not take the form of a demand in imperative terms. A request in precatory or polite terms by a person clothed with apparent authority will ordinarily be suffi cient. And indeed it is to be hoped, and in most cases may be expected, that a requirement will be made in terms of a polite request. In any event, whatever terms may or may not be used in any given case, it will be enough that the intent of the police offi cer and the obligation of the person required to comply have been made clear.

13. ... But once it is understood that the terms in which a requirement is stated need not follow any precise formula of words, and that all that is required is that the driver be told suffi cient to know what it is that is being required of him or her, I see no relevant problem. Given that spoken words are an inherently imprecise means of communication, the effect of which depends as much upon the persons between whom and the context in which they are spoken as upon the words themselves, the question of whether what is spoken constitutes a requirement for the purposes of the section is necessarily a question of fact and degree. Such a question is to be decided upon the whole of the evidence, including such inferences, not inconsistent with the direct evidence, as it may be appropriate to draw.

14. In my opinion it was open to the judge to decide that question as she did.

25. It is enough to dispose of the plaintiff’s fi nal contention to repeat that the test of whether the prosecution has proved a requirement is whether the accused was given reasonably suffi cient information to know what was required of him and why. For the reasons more than once already given, such may be achieved in a number of ways, by terms formal or informal, imperative or precatory, and offi cious or polite. Whether there has been a refusal to comply with the requirement may also be proved in a number of ways: either by direct evidence, as, for example, when a defendant has said “I refuse” or “No”; or by inference drawn from circumstantial evidence, as, for example, when a defendant has turned and run or even later left the scene. Each case will depend on its own circumstances and it must be remembered that a failure to comply must always be shown to be such that implicitly the driver is refusing to comply with the relevant requirement. But it is plainly

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DRINK/DRIVING in VICTORIAnot the case that the only way in which that can be established is by direct refusal.

27. ... As appears in her Honour’s fi nal reasons for judgment, the basis of her judgment was that she was satisfi ed on all the evidence, beyond reasonable doubt, that the requirement had been imposed. Consequently, the fact that her Honour may have earlier suggested an alternative basis for reaching the same conclusion in the end proved immaterial. ..."

Per Nettle J in Sanzaro v County Court of Victoria and Anor [2004] VSC 48; (2004) 42 MVR 279; MC 09/2004, 3 March 2004.

238. Sentencing – drink/driving offence – offender sentenced to a term of imprisonment in addition to the imposition of a fi ne – meaning of "or" – whether Magistrate in error.

Section 49(3) of the Road Safety Act 1986 ('Act') provides:

"A person who is guilty of an offence under paragraph (f) ... of sub-section (1) ... is liable— ...(b) in the case of a subsequent offence, to a fi ne of not more than 25 penalty units or imprisonment for a term of not more than 3 months."

HELD: 1. There are two categories of circumstances in which courts have been prepared to read the word “or” in a statute as meaning “and” and vice versa. The fi rst is where the court is persuaded that the legislature has made a mistake in the Act and the wrong conjunction has been used. The second is by reading the words in context, as where a list of items joined by “and” is governed by words showing that the list is a list of alternatives. Neither of these circumstances were present in this case. There was no reason to suppose that the word "or" in s49(3)(b) of the Act was to be read as meaning "and".

2. Accordingly, a magistrate did not have power pursuant to the said section to sentence a defendant to a term of imprisonment in addition to imposing a fi ne.

Balmford J:"1. This is an appeal under section 92 of the Magistrates’ Court Act 1989 against a fi nal order made on 3 February 2003 by the Magistrates’ Court at Colac whereby the appellant, having pleaded guilty to an offence under section 49(1)(f) of the Road Safety Act 1986 (“the Act”) was sentenced to pay a fi ne of $1250 and to a term of imprisonment of 2 months, wholly suspended for a period of 12 months....

8. In Re The Licensing Ordinance (1968) 13 FLR 143 Blackburn J pointed out that there are two categories of circumstances in which courts have been prepared to read the word “or” in a statute as meaning “and” and vice versa. The fi rst is where the court is persuaded that the legislature has made a mistake in the Act and the wrong conjunction has been used. The second is by reading the words in context, as where a list of items joined by “and” is governed by words showing that the list is a list of alternatives. Neither of these circumstances is present here. There is no reason to suppose that the word “or” in section 49(3)(b) is to be read as meaning “and”.

11. Those passages encourage a reading of section 49(3)(b) on the basis that, had the legislature intended there to provide for a penalty of a fi ne or imprisonment or both, it would have used similar words to those appearing in section 64.

12. Both counsel were effectively in agreement that, for the reasons which I have set out, the answer to the question as enunciated in [3] above should be No, and accordingly that the appeal should be allowed.

13. It appears that no transcript of the hearing before the Magistrate is available. That being so, it would seem appropriate, having allowed the appeal, to remit the matter to the Magistrates’ Court for the appellant to be further sentenced according to law. There will be orders to that effect, and that the respondent pay the appellant’s costs of the appeal together with costs thrown away by reason of the re-hearing before the Magistrates’ Court."

Per Balmford J in Dunlop v Anstee [2004] VSC 139; MC 12/2004, 7 April 2004.

239. Refuse breath test – motorist taken to police station – breath analysing instrument present when motorist required to take test – instrument not immediately available to be breathed into – compliance status of instrument not precisely established – motorist convicted – Court not in error.

After being intercepted driving a motor vehicle, MacD. accompanied police offi cers to a police station where he was asked to undergo a breath test by a certifi ed breath test operator. MacD. refused to undergo the test. At the time of the request a breath analysing instrument was present however, it was not immediately ready to be breathed into. MacD. was later charged with refusing to take a breath test. At the hearing, the compliance status of the instrument was not specifi cally established; however, MacD. was convicted. Upon appeal—

233

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAHELD: Appeal dismissed.The Court was not in error in fi nding the charge proved despite the fact that it had not been specifi cally established that the breath analysing instrument complied with the statutory defi nition or that the instrument was not immediately ready to be breathed into. Lisiecki v Grigg (1990) 10 MVR 336; MC 2/1990, followed. Scott v Dunstone [1963] VicRp 77; [1963] VR 579, discussed.[Other cases considered and discussed:

DPP v Blyth (1992) 16 MVR 159 Bogdanovski v Buckingham [1989] VicRp 80; [1989] VR 897; (1988) 9 MVR 257 Draper v Morgan [1970] TASStRp 21; [1970] Tas SR 247 DPP v Foster, DPP v Bajram [1999] VSCA 73; [1999] 2 VR 643; (1999) 104 A Crim R 426; (1999) 29 MVR 365 DPP v Greelish [2002] VSCA 49; (2002) 4 VR 220; (2002) 128 A Crim R 144; (2002) 35 MVR 466 Halepovic v Sangston [2003] VSC 464; (2003) 40 MVR 203 Impagnatiello v Campbell [2003] VSCA 154; (2003) 6 VR 416; (2003) 39 MVR 486 Mintern-Lane v Kercher [1968] VicRp 71; [1968] VR 552 Rankin v O’Brien [1986] VicRp 7; [1986] VR 86; (1985) 2 MVR 503 Sanzaro v County Court of Victoria [2004] VSC 48; (2004) 42 MVR 279 Walker v DPP (1993) 17 MVR 114.]

Teague J:"1. Must a magistrate dismiss a “refuse breath test” prosecution where the compliance status of the breathalyser is not specifi cally established as per the statutory defi nition, or where the breathalyser is not immediately ready to be breathed into? Put shortly, those are the issues raised in this Order 56 proceeding.

25. As to both issues raised in the outlines before me, I am satisfi ed that Judge Crossley decided as he did correctly. He was bound to follow Lisiecki, both as to specifi c machine conformity and as to timeliness, as against Scott which was binding as to neither. Scott was referred to in Mr Tovey’s outline as if all the opinions expressed by Sholl J had binding force. That is not so. As to basic compliance, the decision is binding, but not otherwise. In those other respects, the words of Sholl J should continue to be treated only as persuasive authority. They certainly ought not to be treated as if they were to be interpreted and applied like a statutory provision.

27. I have taken account of the context of the evidence before Judge Crossley, and of the decisions presented to him. I am well satisfi ed that he did not err as to the law to be applied. Unless there are other matters to be put to me as to costs or otherwise, the proceedings should be dismissed with the usual order as to costs."

Per Teague J in MacDonald v The County Court of Victoria & Anor [2004] VSC 202; (2004) 41 MVR 183; MC 23/2004, 8 June 2004.

240. Application to be again licensed – application granted subject to alcohol interlock condition for six months – appeal by Chief Commissioner of Police – whether application a "criminal proceeding" – whether Chief Commissioner a party to the proceedings – "proceeding" – meaning of – "party" – meaning of – whether Chief Commissioner entitled to appeal – classifi cation of offences – applicant had prior convictions – offender convicted of second when not convicted of fi rst offence – whether applicant convicted of a "third offence" – whether Magistrate in error.

R. was convicted of a drink/driving offence in 2003. At the time of the conviction, R. had two drink/driving convictions however, the conviction imposed on the fi rst offence occurred after the time when the conviction for the second offence was imposed. R. applied to the Magistrates' Court to be again licensed. The application was granted subject to the imposition of an alcohol interlock condition for a period of six months. If R. had been convicted of a relevant third offence, the minimum period of the alcohol interlock condition would have been three years. Upon appeal by the Chief Commissioner—

HELD: Appeal dismissed.1. "Proceeding" means any matter in the Magistrates' Court including a committal proceeding. The very nature of the inquiry by the Magistrate in the application to be again licensed turned on the number of criminal offences related to drink/driving for which R. had been convicted. Accordingly, the application was properly regarded as a criminal proceeding which could be the subject of an appeal under s92 of the Magistrates' Court Act 1989.

2. Section 50(4) of the Road Safety Act 1986 ('Act') provides that a copy of an application to be again licensed must be given to the Chief Commissioner of Police. Further, on the hearing of the application the court must hear any evidence tendered by the applicant or the Chief Commissioner. Those provisions lead to the conclusion that the Chief Commissioner was a party to the proceeding and was entitled to appear to oppose the application.

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DRINK/DRIVING in VICTORIA3. R. had been convicted three times of drink/driving offences. However, the conviction in respect of the second offence was recorded before the conviction in respect of the fi rst offence. If R.'s conviction in respect of the 2003 offence was a third offence, s50AAB(3)(b) of the Act required that the Magistrate impose a period of three years during which R. would be subject to the alcohol interlock condition.

4. Where an Act imposes penalties for second and subsequent offences, an offence is not ordinarily to be considered a "second offence" unless at the time it was committed the offender had a prior conviction. That is, an offence is not a "third offence" unless the offender had two prior convictions when the offence was committed. Whilst the court in the present case had a discretion to specify a period longer than the prescribed minimum, the magistrate was not in error in deciding that R.'s third offence was a second offence and accordingly that he was required to direct that the specifi ed period was six months. Farrington v Thomson and Bridgland [1959] VicRp 49; [1959] VR 286; [1959] ALR 695; and Christie v Britnell [1895] VicLawRp 9; (1895) 21 VLR 71, applied.

Balmford J:"22. For the reasons given, I fi nd that the Chief Commissioner was entitled to appeal to this Court under section 92(1) of the Magistrates’ Court Act against the decision of the Magistrate on the application of the respondent under section 50(4) of the Road Safety Act.

27. The essential issue in this appeal is thus whether (C) was a second offence, with the result, as the Magistrate found, that the specifi ed period is to be at least six months; or a third offence, with the result, as the Chief Commissioner contends, that the specifi ed period is to be at least three years. In order to decide that question, it is necessary to decide whether (B) was a fi rst or a second offence.

35. However, the court is not bound to grant an application under section 50(4) merely because it is made at the expiry of the specifi ed minimum time, and section 50(5) is wide enough to enable the court to take such an offence into account in deciding whether to grant the application. That decision is quite separate from the specifi cation of the minimum period within which such an application may not be made. That specifi cation depends on the precise terms of the legislation, and the only discretion which the court has is a discretion to specify a period longer than the prescribed minimum. No doubt in the exercise of that discretion such a conviction could also be taken into account. However, the present appeal is concerned with the specifi cation of the minimum period. ..."

Per Balmford J in Chief Commissioner of Police v Rigg [2004] VSC 448; (2004) 10 VR 134; (2004) 42 MVR 496; MC 27/2004, 8 November 2004.

241. Refusal to undergo preliminary breath test – charge dismissed – fi nding by Magistrate that defendant not made aware of the consequences of refusal – Magistrate in error.

HELD: Where a person is charged with an offence pursuant to s49(1)(c) of the Road Safety Act 1986 namely, refusing to undergo a preliminary breath test, it is not necessary for the prosecution to prove beyond reasonable doubt that the defendant was made aware of the consequences of refusal.

Williams J:"3. ... The amended question of law the subject of the appeal was:

“Did the learned Magistrate err in holding that it was necessary in order to establish the commission of an offence pursuant to s49(1)(c) Road Safety Act 1986 for the prosecution to prove beyond reasonable doubt that the requirement of having the defendant be conscious of the consequences of the refusal be met?”

5. It was common ground that it was not an element of an offence under s49(1)(c) of the Act that a person required to undergo a breath test under s53 of the Act be informed or aware of the consequences of refusing to do so.

29. The evidence which would appear from the reasons not to have been accepted by his Worship was that from both the informant and the corroborator that, after Mr Vaa had refused to comply with the informant’s request that he undergo a breath test, the informant had made customary statements explaining the consequences of non-compliance with the request. It is not clear whether the Magistrate accepted the balance of the police evidence, although it was arguably consistent with that given by Mr Vaa in respect of an initial request and refusal to undergo the test.

30. The Magistrate made no express fi ndings as to the proof of the requirement to undergo a breath test or refusal necessary to establish the commission of an offence under s49(1)(c) of the Act.

31. I am not persuaded by the arguments of senior counsel for Mr Vaa that the reasons should be construed as no more than fi ndings that, in all the circumstances (such as those related to Mr Vaa’s

235

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAEnglish language skills), the elements of the offence had not been proven.

32. The Magistrate rather appears, in my view, to have considered that it was necessary to prove that Mr Vaa was made aware of the consequences of refusal, in order either to prove the requisite requirement or refusal necessary for the establishment of the offence or to prove a separate element of the offence that he be made so aware. In either case, in my view, his Worship would have erred in law.

34. In my view, there was evidence from which it would have been open to the Magistrate to have concluded that a “request in precatory or polite terms by a person clothed with apparent authority” had been made to Mr Vaa, that he had refused it and that, accordingly, the elements of an offence under s49(1)(c) had been proved, without being satisfi ed that Mr Vaa had been made aware of the consequences of a refusal. Indeed, Mr Vaa’s testimony, on its own, might have been construed as evidence of his refusal to comply with a request that he take a breath test, suffi cient to prove the charge.

35. Therefore, I am not persuaded that it would be futile to remit the matter to the Magistrates’ Court to be heard in accordance with law."

Per Williams J in DPP v Vaa [2004] VSC 444; (2004) 42 MVR 511; MC 28/2004, 5 November 2004.

242. Notice given to police informant requiring the person who gave the certifi cate of analysis to be called as a witness – notice did not specify the facts and matters with which issue was taken – whether notice complied with legislative requirements – Magistrate found that notice not valid – defendant convicted – whether Magistrate in error.

Scully was charged with a drink/driving offence pursuant to s49(1)(f) of the Road Safety Act 1986 ('Act'). Prior to the hearing Scully's lawyer wrote to the police informant requiring a copy of the police brief and for the person who gave Scully the certifi cate of analysis to be called as a witness. The letter did not specify any fact or matter with which issue was taken as required by s58(2A) of the Act. At the hearing, the magistrate held that the notice did not meet the legislative requirements and accordingly there was no valid notice. Scully was convicted. Upon appeal—

HELD: Appeal dismissed.The requirement of a notice under s58 of the Act is to oblige the defence to specify what matters are challenged. One of the purposes of the Act is to ensure that the prosecution is not taken by surprise thereby preventing the adjournments necessitated by the need to adduce evidence and in particular expert evidence to meet unanticipated challenges. The requirement for a notice to be specifi c applies whether or not the defendant intends to adduce any evidence in rebuttal. If a defendant did not intend to adduce any expert evidence at the hearing, the facts or matters which are put in issue would need to be specifi ed in the notice. In the present case the letter did not specify the facts or matters with which issue was taken. Accordingly, it did not comply with s58(2A) of the Act and the magistrate was not in error in so ruling. Impagnatiello v Campbell [2003] VSCA 154; (2003) 6 VR 416; (2003) 39 MVR 486; MC 27/2003, followed; Roberts v Beet [1988] VicRp 15; [1988] VR 118; (1987) 6 MVR 51; MC 53/1987, distinguished.

Williams J:"10. I note, at the outset, that no point was taken as to the form of the notice nor as to the time at which it was given. The narrow issue in dispute was as to whether the letter complied with s58(2) of the Act, it being common ground that it did not comply with s58(2A).

22. I am not persuaded by the argument of counsel for the appellant that the ordinary meaning of sub-s(2A) was nonsensical, unless read down in accordance with s15AB (1)(b)(ii) of the Acts Interpretation Act 1901 (Cth) to apply only to the written notice given of intention to adduce rebuttal evidence referred to in s58(2). In my view, the subsection could logically relate to the situation, such as that in the present case, in which notice requiring the attendance of the operator of the instrument had been given, even if it was not intended by an accused person to adduce any evidence in rebuttal. The facts or matters which were thereby put in issue (in the sense that the accused person required them to be proved by other evidence or other additional evidence) would then need to be specifi ed in the notice, notwithstanding that the accused did not intend to adduce any expert evidence.

23. I agree with counsel for the respondent’s submission that the amendments introduced by the Amending Act were designed to fulfi l the Act’s purposes as they were stated by the majority of the High Court in Thompson v Judge Byrne [1999] HCA 16; (1999) 196 CLR 141 at 149-50; (1999) 161 ALR 632; (1999) 73 ALJR 642; (1999) 29 MVR 1; (1999) 7 Leg Rep 27 per Gleeson CJ, Gummow, Kirby and Callinan JJ, in the context of the introduction of a new breath analysing device. Those statutory objectives would be achieved, in part, by preventing the adjournments necessitated by the need to adduce evidence and, in particular, expert evidence, to meet unanticipated challenges to the facts or matters referred to in s58(2)(a)-(f).

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DRINK/DRIVING in VICTORIA36. In my view, the evidence as to the submissions of the appellant’s counsel in the Magistrates' Court to the effect that the matters in s58(2)(a)-(f) of the Act had not been proved indicates that the appellant did make the question as to the proof by the prosecution of the facts and matters set out in s58(2)(a)-(f) one for decision by the Magistrate. In other words, the appellant took issue with those facts or matters within the meaning of sub-s(2A).

37. I am also of the view that the giving of notice under sub-s(2) requiring the attendance of the operator of the apparatus would have had the same effect, in any event, because it would have resulted in the prosecution being required to prove by other means those facts and matters relevant to the proof of any offence.

38. The letter did not specify the facts or matters with which issue was taken. Accordingly, in my opinion, it did not comply with s58(2A). ...

Per Williams J in Scully v Semple [2004] VSC 393; (2004) 42 MVR 88; MC 30/2004, 11 October 2004.

243. Sentencing – person with relevant prior conviction – reading of .061% BAC – whether court has discretion not to cancel person's driver licence.

HELD: Under s50(1AB) of the Road Safety Act 1986 ('Act') there are only two limited categories of offender who can invoke the right to seek the exercise of the court's discretion whether to cancel that person's driver licence. The fi rst category applies to those who are required to have a zero blood/alcohol concentration and return a reading of less than .05%BAC. The second category applies to those on full licences and then only if the offence was a fi rst offence and the reading was less than .07%BAC. Accordingly, where a person with a relevant prior conviction returned a reading of .061%BAC, a magistrate was in error in declining to cancel that person's driver licence.

Smith J:"... 3. ... The reading obtained was .061 grams. Mr Fernandez had previously been convicted on 25 July 1994 on a drink driving offence where his reading was .11 grams. It was common ground that this had the effect that for the purpose of the application of the relevant statutory provisions the charge to which he had pleaded guilty was a second offence, it having occurred within 10 years of the fi rst offence. Counsel for Mr Fernandez had put written submissions to Her Worship supporting the argument that s50(1AB) of the Road Safety Act 1986 conferred upon her, in the circumstances of the case, a discretion not to cancel the driving licence of Mr Fernandez. Her Worship indicated that she accepted those submissions and decided to exercise that discretion in favour of Mr Fernandez.

12. ... It appears to me, however, that what the drafter was attempting to do was to emphasise that there were to be only two limited categories of offender who could invoke the discretion and was spelling out the blood alcohol levels under which each category had to come if it was to have the right to seek the exercise of the discretion. It so happens that the practical result is that para 50(1AB)(a) will apply only to s52 offenders. ...

The practical result would be that in the case of someone to whom s52 applied who committed a fi rst offence with a reading between .05 grams and .07 grams, s50(1) would not apply but s50(1A) and s50(1AB) (b) would apply so that a discretion would be available under those provisions. Where a person to whom s52 applied committed a second offence, s50(1) would not apply but a discretion would be available if the reading on the second offence was less than .05% (s50(1AB)(a)). For those on full licences, only s50(1AB)(b) would provide a discretion and then only if the offence was a fi rst offence and the reading was less than .07%.

16. I have found the task of understanding the above provisions to be the most diffi cult yet. Thus it is in fact with considerable hesitation that I have come to the above conclusions about the construction of s50(1AB). In my view, Her Worship erred in her construction of s50(1AB) in concluding that the provision of para (b) could apply to a second offender such as Mr Fernandez. I am persuaded that there was no discretion and accordingly the appeal should be allowed."

Per Smith J in DPP v Fernandez [2004] VSC 401; (2004) 149 A Crim R 390; (2004) 42 MVR 59; MC 33/2004, 15 October 2004.

244. Driver intercepted and given PBT which was positive – driver requested to accompany police offi cer to police station for breath test – driver did not respond and left scene – later charged with offence – charge contained elements of offence plus surplus verbiage – driver found guilty – whether Court in error – at end of hearing counsel submitted that no evidence was led to prove that a prescribed device was used for the PBT – prosecution permitted to reopen its case – whether Court in error.

B. was intercepted by a police offi cer whilst driving a motor car and underwent a PBT which was positive. B. was

237

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAthen required to accompany the offi cer to a police station for the purposes of a full breath test. B. left the scene and was later charged with a breach of s55(1) of the Road Safety Act 1986 (Act) in that "a requirement was made for him to accompany the member of the police force to a Police Station such requirement he did refuse to comply with." B. was convicted of the charge and appealed to the County Court. On the appeal, B.'s counsel said that the crux of the case was that the requirement to accompany was not made. The prosecution led evidence to say that it was and after B. closed his case, B.'s counsel submitted that there was no evidence that the instrument used for the PBT was a prescribed device. The judge allowed the prosecution to reopen its case to prove this point and B. was subsequently convicted of the charge. Upon application for review—

HELD: Application dismissed.1. It was common ground that the offence charged was that of refusing to comply with a requirement to accompany a member of the police force to a police station for the purpose of furnishing a sample of breath for analysis, contrary to ss49(1)(e) and 55(1) of the Act. It is established that proof of the “requirement” under that section does not require proof of a formal demand in relation to each element. It is suffi cient if a demand or requirement is made in substance and in comprehensible terms. However, the element to which B.'s counsel referred was not one which was necessary to proof of the charge and simply arose from inelegant drafting of the charge. The language used in the charge did not turn it into a different charge. There was surplus verbiage in the charge and it was not suggested that this was in any way misleading or prejudicial to B. Instead of the charge alleging that a requirement was made for B. to accompany a member of the police force to the police station for the purpose of furnishing a sample of breath for analysis, the charge alleged that the defendant was required to furnish a sample of breath for analysis [etc] and for that purpose such requirement was made. It was not a necessary part of the charge, nor was there any reason to think that it was so understood, that the member of the police force should have required the defendant to furnish a sample of breath for analysis at the time of requiring the defendant to accompany him to a police station.

2. The prosecution should be permitted to reopen its case only in special or exceptional circumstances. No lack of procedural fairness or any unfairness to the defence has been shown. In the circumstances described, and having regard to the explicit statements made by the defence about what were and were not issues, justice required that the prosecution be permitted to reopen its case in order to lead evidence as to a matter which it was reasonably entitled to assume was not in issue. There was no apparent prejudice or risk of prejudice to the defence in relation to this discrete issue which, in the forensic circumstances of this case, was a matter of formal proof only. No injustice was thereby done to B.

Mandie J:"3. There were two independent grounds for judicial review relied upon before this Court, to which I shall return, but in essence they are that the learned County Court Judge should not have convicted Mr Blair because the evidence did not support one essential element of the charge and that the learned County Court Judge should not have permitted the informant to reopen his case in order to permit him to prove another essential element of the charge.

24. ... It is suffi cient if a demand or requirement is made in substance and in comprehensible terms.

25. Thus, although the charge was inelegantly drafted, it was not so confusing or obscure that it did not amount to a charge of the offence with which it was intended to deal. A fair reading of the charge in the light of the statutory provisions shows that the so-called “element” which was not proved was not an essential ingredient of the charge but simply “arose” from the way that the charge was framed.

26. I conclude that all the essential elements of the charge were proved and that the defence was not misled or confused by the way the charge was framed. There was no jurisdictional error by the trial judge. Insofar as there was any error in the reasoning of the trial judge[8] his conclusion was correct in law.

27. ... In the circumstances described, in paras [8]-[9] and [11]-[13] above, and having regard to the explicit statements made by the defence about what were and were not issues, justice required that the prosecution be permitted to reopen its case in order to lead evidence as to a matter which it was reasonably entitled to assume was not in issue. There was no apparent prejudice or risk of prejudice to the defence in relation to this discrete issue which, in the forensic circumstances of this case, was a matter of formal proof only. No injustice was thereby done to Mr Blair.

28. For the foregoing reasons this proceeding should be dismissed. I will hear Counsel on the question of what other orders should be made and as to costs."

Per Mandie J in Blair v County Court of Victoria and Anor [2005] VSC 213; MC 18/2005, 21 June 2005.

On Appeal—

245. Refusal to comply with a requirement to accompany police offi cer to a police station for the purposes of a breath test – charge found proved.

238

DRINK/DRIVING in VICTORIAHELD: Where the evidence clearly established that a driver of a motor vehicle had undergone a preliminary breath test; that in the opinion of the police offi cer the test indicated that the driver's blood contained alcohol; and that the offi cer then required the driver to accompany the offi cer to the police station for the purposes of a breath test and the driver refused to comply with that requirement, the evidence demonstrated that all the elements of an offence under s49(1) of the Road Safety Act had been established. Where the charge on which the driver was subsequently convicted referred unequivocally to the driver's refusal to comply with the requirement that he accompany a member of the Police Force to a police station for the purpose of a breath test, there was, therefore, a coincidence between the elements of the offence, the charge and the evidence. Blair v County Court of Victoria & Anor [2005] VSC 213; MC 18/2005, approved.

Harper AJA (for the Court consisting of Ormiston and Chernov JJA and Harper AJA):"... 8. The matter came before Mandie J on 9 June 2005. The fi rst and primary ground then relied upon was that there was a lack or excess of jurisdiction or an error of law on the face of the record in the evidence, in that the evidence did not support the element of the charge which alleged that “he was then further required to furnish a sample of breath for analysis by a breath analysing instrument pursuant to s55(1) of the ... Act.”

10. The evidence before the County Court, if accepted (as it was) by the County Court judge, clearly established that the appellant had undergone a preliminary breath test; that in the opinion of the second respondent, a police offi cer, the test indicated that the appellant’s blood contained alcohol; and that the second respondent then required the appellant to accompany the second respondent to the police station for the purposes of a breath test. The evidence also clearly established that the appellant refused to comply with that requirement. Accordingly, the evidence demonstrated that all the elements of an offence under s49(1) of the Road Safety Act had been established.

11. The charge on which the appellant was subsequently convicted referred unequivocally to the appellant’s refusal to comply with the requirement that he accompany a member of the Police Force to a police station for the purpose of a breath test. There was, therefore, a coincidence between the elements of the offence, the charge and the evidence. In our opinion Mandie J was clearly correct to conclude that:

“Although the charge was inelegantly drafted, it was not so confusing or obscure that it did not amount to a charge of the offence with which it was intended to deal.”

12. Moreover, we agree with the reasons His Honour gave for reaching that conclusion and for dismissing the proceeding. All fi ve grounds of appeal attack his Honour’s fi nding. In our opinion, none of them have any substance. The appeal must, therefore, be dismissed. ..."

Per the Court of Appeal in Blair v County Court of Victoria [2005] VSCA 237; MC 37/2005, 20 September 2005.

246. Driver made two attempts at providing a sample of breath for analysis – breath analysing instrument indicated on fi rst occasion "insuffi cient sample" – further sample taken which recorded a BAC of 0.168% – driver charged with drink/driving offence – charge found proved – driver fi ned and driver licence cancelled – whether Court in error – whether evidence supported fi nding that police offi cer was of opinion that the PBT indicated presence of alcohol in driver's blood – whether evidence supported fi nding that police offi cer was satisfi ed that breath analysing instrument on the fi rst occasion was incapable of measuring the driver's blood/alcohol concentration.

N. was intercepted driving a motor vehicle. He underwent a PBT which indicated the presence of alcohol in his blood and he was then accompanied to a police station for the purpose of furnishing a sample of breath. When the fi rst sample was taken, the instrument printout indicated "insuffi cient sample". A second test was conducted which recorded a BAC of 0.168%. N. was charged with offences under the Road Safety Act 1986 ('Act') and was convicted and fi ned, his licence was cancelled and he was disqualifi ed from obtaining another one for a period of 23 months. Upon appeal—

HELD: Appeal dismissed.1. The statutory purpose of the PBT is to provide an indication of the concentration of alcohol present in the person's blood. Section 55(1) of the Act requires the police offi cer to form an opinion upon reasonable grounds that the test indicates the presence of alcohol in the blood. The positive reading reported by the PBT provided a suffi cient basis for the offi cer's opinion and was evidence upon which the court could properly have concluded that the offi cer held the relevant opinion on reasonable grounds.

2. The police offi cer gave formal evidence of making a requirement that N. provide a sample for analysis. He said that the sample was insuffi cient so he asked N. to provide a further sample, which was done. The court said that the reading which the instrument returned after the fi rst sample entitled the court to infer that the breath sample furnished was such that the instrument was incapable of analysing it to measure the blood alcohol of the subject within the meaning of sub-section (2A). A report “insuffi cient sample” invites

239

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAthe question as to the nature and signifi cance of the insuffi ciency. The court was entitled to conclude that the printout and the impact of this upon the police offi cer's state of mind provided a suffi cient basis for the making of the request for a second breath sample which he said was made pursuant to s55 of the Act.

Byrne J:"15. This point is entirely without substance for any of a number of reasons.

(1) The question is not whether the evidence in support of the conviction was challenged by credible evidence; it is whether there was no evidence upon which the Judge could properly have concluded that the police offi cer held the relevant opinion on reasonable grounds. (2) In any event, the fact that the test might have produced an excessive reading does not necessarily lead to the conclusion that a positive reading is consistent with the absence of any alcohol in the subject’s blood. The statutory purpose of the preliminary breath test in a case such as the present is to provide an indication of the presence of some alcohol in the blood of the subject. It is not to provide an indication of the concentration of the alcohol present. Her Honour quickly identifi ed this fl aw and, correctly, if I may say so, rejected the submission in her reasons.

(3) Mr Rogers was not aware that Mr Neill had so recently consumed alcohol. Section 55(1) requires the police offi cer to form an opinion upon reasonable grounds that the test indicates the presence of alcohol in the blood. Absent some particular circumstance, which were not suggested here, his opinion can not be affected by matters of which he had no knowledge. (4) Mr Rogers said in evidence in chief that he formed the relevant opinion. The positive reading reported by the preliminary breath test instrument provides a suffi cient basis for it. This evidence could support her Honour’s fi nding.

(5) The contrary position was never put to Mr Rogers in cross-examination. If it had, the witness may have referred to p2.19 of the Manufacturers Operating Manual where it states that 90 percent of breath alcohol is dispersed within only eight minutes of drinking.

20. Her Honour in her reasons for rejecting the submission, said that the reading which the instrument returned after the fi rst sample entitled her to infer that the breath sample furnished was such that the instrument was incapable of analysing it to measure the blood alcohol of the subject within the meaning of sub-section (2A).

26. The present case, where it is the defendant who appeals, falls into the fi rst category mentioned in the last sentence. It is clear enough from the evidence that it was open to her Honour to be satisfi ed that Mr Rogers had the required state of mind and had this on reasonable grounds. Unlike the report “alcohol in mouth”, a report “insuffi cient sample” invites the question as to the nature and signifi cance of the insuffi ciency. The judge was entitled to conclude, as she did, that the printout and the impact of this upon Mr Rogers’ state of mind provided a suffi cient basis for the making of the request for a second breath sample which he said was made pursuant to s55. Accordingly, the ground must fail. ..."

Per Byrne J in Neill v County Court of Victoria & Anor [2005] VSC 341; MC 27/2005, 26 August 2005.

247. PBT conducted – positive result – breath test later conducted – BAC reading of 0.082% – charge laid – certifi cate tendered in evidence – reference in certifi cate to "grams in 210 litres of breath" – reference in Road Safety Act 1986 to "grams per 210 litres of exhaled air" – whether material difference – whether certifi cate proved this essential element of the offence – no mention by police offi cer at hearing that PBT was conducted using a prescribed device – whether open to Magistrate to infer that the PBT had been conducted using a prescribed device – whether Magistrate in error in fi nding charge proved.

S. was intercepted whilst driving his motor vehicle. Following tests, S. was charged with an offence under s49(1)(f) of the Road Safety Act 1986 ('Act'). At the hearing the police informant gave evidence that S. underwent a PBT. No mention was made that the PBT had been conducted on a prescribed device. Under s58(2) of the Act a certifi cate was tendered in evidence which stated that the result of the test was "0.082 grams of alcohol in 210 litres of breath". The relevant provision in the Act referred to "grams per 210 litres of exhaled air". S. was convicted. Upon appeal—

HELD: Appeal upheld. Conviction set aside.1. It was contended that because of the material difference in the wording of the Act and the certifi cate, the certifi cate did not prove an essential element of the offence. It is clear that Parliament intended that the breath of a person is to be sampled by the person exhaling suffi cient air to enable a breath analysing instrument to measure the concentration of alcohol in the breath of that person. Accordingly, Parliament did not, by referring to “exhaled air” in the defi nition of prescribed concentration of alcohol, intend to draw

240

DRINK/DRIVING in VICTORIAany distinction between breath and exhaled air. The whole purpose of the provisions under consideration is to provide, in the words of s47(c) of the Act, “a simple and effective means of establishing that there is present in the ... breath of a driver more than the legal limit of alcohol”. The reference to “exhaled air” means nothing more, less or different than a person’s breath which is exhaled into a breath analysing instrument within the meaning of the Act. Accordingly, the certifi cate was conclusive proof under s58(2) of the Act that the result of the analysis of a sample of S.'s breath indicated that more than the prescribed concentration of alcohol was present in the breath of S.

2. It was submitted that there is a material difference between a reading of 0.082 grams of alcohol in 210 litres of breath and 0.082 grams of alcohol per 210 litres of breath. Accordingly, it was submitted that the certifi cate did not prove that there was more than the prescribed concentration of alcohol in the breath of the appellant. This argument was based upon a submission that, in order to measure the concentration of alcohol in 210 litres of breath, it would be necessary to require a driver to physically furnish 210 litres of breath for analysis and that this is a physical impossibility because no person can actually furnish a sample of breath of that size. The reference in the certifi cate to there being 0.082 grams of alcohol in 210 litres of the appellant’s breath is a reference to the proportion of alcohol in the sample of breath supplied by the appellant, as required under s55 of the Act. The word “in” has many meanings. According to the Concise Oxford English Dictionary, one of them is “as a proportionate part of”. That is how the word “in” should be read in the certifi cate. It is absurd to give it any other meaning because, as was submitted on behalf of the appellant, it is not possible for a person to continuously exhale 210 litres of breath into a breath analysing instrument. As the provisions of sub-ss55(2A) and 55(5) of the Act indicate, the Act requires a driver who is required to provide a sample of breath to provide, by “exhaling continuously”, a suffi cient sample to enable the breath analysing instrument to measure the concentration of alcohol present in the sample.

3. It was not open to the magistrate to infer that the PBT had been conducted by a prescribed device. The magistrate's conclusion amounted to mere speculation and left room for confl icting conjectures or hypotheses and could not establish beyond reasonable doubt that the PBT was conducted with a prescribed device. Accordingly, the PBT was not conducted under s53 as required by s55 of the Act and the magistrate was in error in fi nding the charge proved. Chisholm v Mathews [1992] VicSC 432; (1992) 16 MVR 447; MC 42/1992, not followed. Impagnatiello v Campbell [2003] VSCA 154; (2003) 6 VR 416; (2003) 39 MVR 486; MC 27/2003, followed.

Hargrave J:"6. As can be seen, conviction of an offence against s49(1)(f) does not depend upon the actual concentration of alcohol in a person’s blood or breath. A conviction depends upon the result of the analysis of the breath of the driver of a motor vehicle, as recorded by a test of the driver’s breath “by a breath analysing instrument under s5”.

9. As can be seen from the opening words of s55(1), a driver can only be required to furnish a sample of breath for analysis by a breath analysing instrument under that sub-section if the driver has fi rst undergone a preliminary breath test under s53 of the Act.

18. In the notice of appeal to this Court, two questions of law are identifi ed. First, it is contended that it was not open to the Magistrate to fi nd, on the evidence before him, that the preliminary breath test conducted on the appellant was performed using a “prescribed device”. Accordingly, it is contended that the preliminary breath test was not conducted under s53, as required by s55.

19. Second, it is contended that the certifi cate does not establish that the appellant had more than the “prescribed concentration of alcohol” present in his breath. As I have said, no argument was addressed to the Magistrate about the form of the certifi cate. However, as will appear, the respondent did not object to the second ground of appeal being raised in this Court. To the contrary, the respondent encouraged me to hear and determine the second ground of appeal because it has the capacity to be of general application.

29. This submission does no more than draw attention to the question which arises for determination on the second ground of appeal. Did Parliament intend there to be any difference between the concentration of alcohol in a person’s breath and the concentration of alcohol in a person’s exhaled air? In my opinion, when resort is had to Part 5 of the Act as a whole, it is absurd to attribute to Parliament an intention to distinguish between the concentration of alcohol in a person’s breath and the concentration of alcohol in a person’s exhaled air.

35. In my view, it is clear that Parliament intended that the breath of a person is to be sampled by the person exhaling suffi cient air to enable a breath analysing instrument to measure the concentration of alcohol in the breath of that person. Accordingly, I conclude that Parliament did not, by referring to “exhaled air” in the defi nition of prescribed concentration of alcohol, intend to draw any distinction between breath and exhaled air. The whole purpose of the provisions under consideration is to

241

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAprovide, in the words of s47(c) of the Act, “a simple and effective means of establishing that there is present in the... breath of a driver more than the legal limit of alcohol”.

39. Accordingly, the certifi cate was conclusive proof under s58(2) of the Act that the result of the analysis of a sample of the breath of the appellant, as recorded or shown by the breath analysing instrument used, indicated that more than the prescribed concentration of alcohol was present in the breath of the appellant. It follows that the second ground of appeal fails.

59. Eames JA concluded in Impagnatiello ([2003] VSCA 154; (2003) 6 VR 416 at [31]; (2003) 39 MVR 486):

“Thus, none of the suggested inferences were, in fact, capable of being drawn ... the conclusions sought to be drawn amounted to mere speculation, and were not properly drawn inferences. The conclusions drawn left room for confl icting conjectures or hypotheses and even if the inferences were capable of being drawn if the standard of proof was the civil one, ie on the balance of probabilities (a proposition which I doubt, in any event) could certainly not establish beyond reasonable doubt, either as discrete inferences or as a fi nal conclusion when all are drawn together, that the instrument was compliant with s3.”

60. It follows, in my view, that the decision of Hayne J in Chisholm v Mathews [1992] VicSC 432; (1992) 16 MVR 447 cannot stand with the decision of the Court of Appeal in Impagnatiello. Accordingly, I decline to follow and apply it.

61. In the result, I must uphold the fi rst ground of appeal. The conviction of the appellant must be set aside and, in lieu, the charge should be dismissed. This is an unfortunate result. The certifi cate clearly demonstrates that the appellant was driving with more than the prescribed concentration of alcohol in his breath. ...'

Per Hargrave J in Sirajuddin v Ziino [2005] VSC 418; (2005) 14 VR 689; (2005) 45 MVR 21; MC 33/2005, 21 October 2005.

248. Breath test conducted – BAC reading of 0.101% – Charge laid – certifi cate tendered in evidence – reference in certifi cate to "0.101 Grams of alcohol in 210 litres of breath" – reference in Road Safety Act 1986 to "grams per 210 litres of exhaled air" – whether evidence of alcohol level in breath is the same thing as the level of alcohol in exhaled air – fi nding by Magistrate that there was a difference between the concept of breath and the concept of exhaled air – charges dismissed – Magistrate in error.

HELD:1. In the present case, it was contended that because of the material difference in the wording of the Road Safety Act 1986 ('Act') and the certifi cate, the certifi cate did not prove an essential element of the offence. It is clear that Parliament intended that the breath of a person is to be sampled by the person exhaling suffi cient air to enable a breath analysing instrument to measure the concentration of alcohol in the breath of that person. Accordingly, Parliament did not, by referring to “exhaled air” in the defi nition of prescribed concentration of alcohol, intend to draw any distinction between breath and exhaled air. The whole purpose of the provisions under consideration is to provide, in the words of s47(c) of the Act, “a simple and effective means of establishing that there is present in the ... breath of a driver more than the legal limit of alcohol”. The reference to “exhaled air” means nothing more, less or different than a person’s breath which is exhaled into a breath analysing instrument within the meaning of the Act.

2. There is a variety of expressions that one fi nds in dictionaries to explain the meaning of "exhaled" and the meaning of "per" and "in" as well as the word "breath". Accepting for present purposes that there are different shades of meaning for different contexts, the word "in" has many meanings but that one of them is "as a proportionate part of". That is how the word "in" should be read in the certifi cate and it is absurd to give it any other meaning because it is obviously impossible for a person to continuously exhale 210 litres of breath into a breath analysing instrument. Sirajuddin v Ziino [2005] VSC 418; (2005) 14 VR 689; (2005) 45 MVR 21; MC 33/2005, followed.

3. Accordingly, the Magistrate was in error in dismissing the charges,

Smith J:"... 4. It was common ground that critical to the issue, and the learned Magistrate's decision, was the view that there was a distinction to be drawn in the Act between the concept of "breath" and the concept of "exhaled air".

5. It was also common ground that that issue was considered late last year, after the hearing before the learned Magistrate in this case, by Hargrave J in Sirajuddin v Ziino.[1] In that case the same argument was run but on that occasion the defendant was unsuccessful. His Honour posed the question as follows:

242

DRINK/DRIVING in VICTORIA"Did Parliament intend there to be any difference between the concentration of alcohol in a person’s breath and the concentration of alcohol in a person’s exhaled air?"

His Honour expressed the view that to attribute such an intention to Parliament, when resort is had to the act as a whole, is absurd. After referring in some detail to the relevant provisions in the legislation his Honour concluded:

"35. In my view, it is clear the Parliament intended that the breath of a person is to be sampled by the person exhaling suffi cient air to enable the breath analysing instrument to measure the concentration of alcohol in the breath of that person. Accordingly, I conclude that Parliament did not, by referring to ‘exhaled air’ in the defi nition of prescribed concentration of alcohol, intend to draw any distinction between breath and exhaled air. The whole purpose of the provisions under consideration is to provide, in the words of s47(c) of the Act a simple and effective means of establishing that there is present in the . . . breath of a driver more than the legal limit of alcohol."

36. In my view, the reference to ‘exhaled air’ means nothing more, less or different than a person’s breath which is exhaled into a breath analysing instrument within the meaning of the Act."

In my view, his Honour’s analysis is the correct analysis.

8. ... Accepting for present purposes that there are different shades of meaning for different contexts, I have no hesitation in coming to the same conclusion as Hargrave J as to the appropriate meaning to be attached to those expressions in the Act. In particular, his Honour noted that the word "in" has many meanings but that one of them is "as a proportionate part of". He said that that is how the word "in" should be read in the certifi cate and that it was absurd to give it any other meaning because, as was submitted on behalf of the appellant, it is obviously impossible for a person to continuously exhale 210 litres of breath into a breath analysing instrument.

9. The learned Magistrate did not have the benefi t of the analysis of Hargrave J. I agree with that analysis and accordingly have come to the conclusion that error of law has been shown and the appeal should be allowed. I will hear further submissions as to the consequential orders that should be made."

Per Smith J in DPP v Bleakley [2006] VSC 66; (2006) 45 MVR 387; MC 04/2006, 2 March 2006.

249. Evidence given by operator of breath analysing instrument – statement that operator not familiar with relevant regulations – unable to say whether regulations complied with – charges dismissed by Magistrate – Magistrate not satisfi ed that elements of offences proved – whether Magistrate in error.

L. was charged with offences of drink/driving under s49(1)(b) and (f) of the Road Safety Act 1986 (‘Act’). At the hearing, the operator of the breath analysing instrument was called to give evidence. In cross-examination when asked what regulations he complied with he said: “I don’t know the exact regulations and what they say.” When asked whether he complied with the regulations in conducting the breath test, the operator said: “I can’t say.” In dismissing both charges, the magistrate said: “… the reality is if he doesn’t know what regulations he complied with, I can’t be satisfi ed he complied with the regulations. He doesn’t know what they are, he couldn’t say what they are. It leaves me in the position where I cannot be satisfi ed that the test result obtained was obtained as a result of a properly operated machine by an authorised offi cer and those .05 charges will be dismissed accordingly.” The matter went on appeal to the Supreme Court of Victoria (see DPP v Luff MC 19/2001) and to the Court of Appeal. In allowing the appeal, it was held that in relation to a charge under s49(1)(f) of the Act, it was no part of the prosecution case to prove that on the relevant occasion the breath analysing instrument was either in proper working order or properly operated. It was a matter for the defence to prove that the instrument was not properly operated on the relevant occasion. When the matter was referred back to the Magistrate, after hearing submissions, the Magistrate dismissed both charges stating that she was not satisfi ed that the elements of either offence were made out. Upon appeal—

HELD: Appeal allowed. Dismissal of s49(1)(f) charge set aside and referred to the Magistrate to be further considered in accordance with the law.Two decisions of the Court of Appeal now make clear that the onus is upon the defendant to establish the defence under s49(4) of the Act and that it was not for the prosecution to establish the instrument was properly operated. The approach put in submission to the Magistrate was fundamentally fl awed in that it specifi cally invited her to simply state that she was not satisfi ed that the essential elements of the offence under s49(1)(f) were made out in that she was not satisfi ed that the instrument was operated correctly. The necessity to fi nd positively that the defence was made out under s49(4) was not conceded. It was incumbent upon the Magistrate to consider whether she was positively satisfi ed on the balance of probabilities that the instrument was not properly operated. Unless she was so satisfi ed the relevant defence could not succeed. As the Magistrate did not consider properly or at all the onus upon the defence under s49(4), the matter was remitted to the Magistrate for further consideration.

243

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAOsborn J:

"14. By reason of s58(2) the certifi cate constituted conclusive proof of the matters referred to in that sub-section subject to notice of objection being given. In the present case notice was given requiring the person giving the certifi cate to be called as a witness. Thus the certifi cate, although remaining evidence of the analysis stated pursuant to s59(2D), was not conclusive evidence of such analysis.

15. Upon the initial hearing before the Magistrate the defence put in issue the question whether the breath analysing instrument was properly operated.

24. Unfortunately when the matter was further considered by the Magistrate she was persuaded to adopt an approach other than that suggested by Callaway JA. When the matter came back before the Magistrate counsel for Luff submitted detailed written submissions and a folder of background material to her. On the other hand, the prosecution made an abbreviated submission to the effect that the Magistrate should fi nd the charges proved.

27. Insofar as the charge under s49(1)(f) is concerned, however, I am satisfi ed the Magistrate's reasons demonstrate an acceptance of submissions made on behalf of Luff which were misconceived and as a result she did not address the onus imposed by s49(4).

30. Two decisions of the Court of Appeal now make clear that the onus was upon Luff to establish the defence under s49(4) and that it was not for the prosecution to establish the instrument was properly operated. In my view, the approach put in submission to the Magistrate was fundamentally fl awed in that it specifi cally invited her to simply state that she was not satisfi ed that the essential elements of the offence under s49(1)(f) were made out in that she was not satisfi ed that the instrument was operated correctly. The necessity to fi nd positively that the defence was made out under s49(4) was not conceded.

31. It was incumbent upon the Magistrate to consider whether she was positively satisfi ed on the balance of probabilities that the instrument was not properly operated. Unless she was so satisfi ed the relevant defence could not succeed.

35. In the circumstances of the case I am satisfi ed that the Director has established the Magistrate did not consider properly or at all the onus upon the defence under s49(4).

36. It remains to consider whether it was open to the Magistrate to conclude that the onus under s49(4) could have been satisfi ed on the evidence before her.

37. It is apparent that neither Vincent JA (implicitly) nor Callaway JA (explicitly) were prepared to exclude this possibility when the matter was considered in the Full Court.

38. In my view it cannot be demonstrated that the whole of the evidence given by the operator (including the manner in which such evidence was given) could not found an inference on the balance of probabilities that the instrument was not properly operated.

39. It is for the Magistrates' Court to consider whether it is satisfi ed of such inference or not.

40. Accordingly the matter will have to be remitted for further consideration with respect to the s49(1)(f) charge.

42. Accordingly I propose to set aside the order of the Magistrates' Court with respect to the charge under s49(1)(f) and direct that the matter be further considered by the Magistrate in accordance with law."

Per Osborn J in DPP v Luff [2006] VSC 195; (2006) 45 MVR 248; MC 15/2006, 29 May 2006.

250. Copy of brief of evidence served on defendant – notice given by defendant requiring person who gave breathalyser certifi cate to attend court – defendant failed to appear on hearing date – matter proceeded ex parte – oral evidence called – certain procedure not followed by Magistrate – brief of evidence not tendered in evidence – no proof that operator authorised or that PBT had been conducted using a prescribed device – defendant convicted – Magistrate in error.

H. was charged with an offence against s49(1)(f) of the Road Safety Act 1986 ('Act'). Some time later the police informant served a copy of the charge and summons and a copy of the brief of evidence on H. A date of hearing was fi xed and when the case was called, H. did not appear. The magistrate granted an application for the matter to proceed ex parte. The informant gave evidence and a certifi cate of analysis was tendered. However, the procedure set out in cl 5 of Schedule 2 of the Magistrates' Court Act 1989 was not followed. This procedure required the brief of evidence to be tendered in evidence and the magistrate to consider the question of admissibility of any documents in the brief. Further, the informant failed to prove (a) that the PBT was conducted pursuant to s53(1)

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DRINK/DRIVING in VICTORIAof the Act (b) that the PBT was conducted on a prescribed device and (c) that the person who operated the breath analysing instrument was authorised to do so by the Chief Commissioner of Police. The defendant was convicted. Upon appeal—

HELD: Appeal allowed. Orders quashed and the charge dismissed.The Court did not follow the proper procedure after a direction was given that the matter proceed ex parte, and further, that the oral evidence called was defi cient and failed to prove the case against the appellant. The evidence failed to prove that the operator was authorised to operate the breath analysing instrument and that the instrument was one within the meaning of the Act. Further, there was no proof that the preliminary breath test had been conducted using a device prescribed under the Act. As the evidence before the Court did not establish beyond reasonable doubt all of the elements of proof that rested upon the respondent as informant the magistrate was in error in convicting and penalising N.

Gillard J:"... 21. The fact that the defendant did not appear does not entitle the prosecution to obtain a conviction without proper proof of the elements of the charge. Whilst the objection to the tendering of inadmissible evidence may be waived by a litigant present at a hearing, the mere absence of the litigant does not entitle the Court to ignore the principles of evidence. Where a proceeding is heard ex parte, it is incumbent upon the Court to closely examine the evidence to ensure that it is admissible. It would appear that neither the magistrate nor the prosecutor fully understood the requirements of the Act and the Schedule with respect to an ex parte hearing, where a brief of evidence had been served pursuant to s37. Although the magistrate directed that the matter could proceed ex parte, at the request of the prosecutor and presumably pursuant to s41(2)(b), the procedure laid down by clause 5 of Schedule 2 was ignored. Further, despite the direction, the prosecutor called oral evidence relating to the charge. 28. In Furze v Nixon [2000] VSCA 149; (2000) 2 VR 503; (2000) 113 A Crim R 556; (2000) 32 MVR 547, the Court of Appeal held that if the certifi cate is no longer conclusive proof, its contents provide evidence, but only as to the matters contained in the certifi cate. In the present matter, the certifi cate did not state that the operator was authorised by the Chief Commissioner of Police. Accordingly, on the evidence before the magistrate, there was no proof of the fact that the operator was authorised to operate the instrument.

30. By reason of the concessions made, it was accepted on behalf of the respondent that the Court had not followed the proper procedure after a direction was given that the matter proceed ex parte, and further, that the oral evidence called was defi cient and failed to prove the case against the appellant.

37. On the assumption that the only evidence before the Court was the oral evidence given before the magistrate, the ground has clearly been made out. By reason of Furze v Nixon [2000] VSC 149; [2000] 2 VR 503; (2000) 113 A Crim R 556; (2000) 32 MVR 547, the certifi cate produced by the breath analysing instrument did not contain certain matters that must be proven. It was necessary to prove that the operator was authorised to do so by the Chief Commissioner of Police and that the instrument was one within the meaning of the Act. This ground has been established.

38. On the basis that the decision of Hargrave J in Shabbir Sirajuddin v Glenn Ziino [2005] VSC 418; (2005) 14 VR 689; (2005) 45 MVR 21 is correct, there was no proof that the preliminary breath test had been conducted using a device prescribed under the Act. This ground has also been established.

42. At best, from the respondent’s position, the proceeding was arguably voidable only and since there is no proceeding in this Court to attack its validity, in my opinion this appeal should be determined in accordance with general principles. The appellant has succeeded. The orders convicting and penalising the appellant must be set aside. The evidence before the Court did not establish beyond reasonable doubt all of the elements of proof that rested upon the respondent as informant. There is no basis for remitting the charge back to the Magistrates’ Court for re-hearing. ..."

Per Gillard J in Hannon v Norman [2006] VSC 228; (2006) 45 MVR 520; MC 16/2006, 30 June 2006.

251. Defendant charged with refusal to undergo breath test within 3 hours of being the driver of a motor vehicle involved in an accident – matters to be proved – whether occurrence of an accident must be established beyond reasonable doubt – "believes on reasonable grounds" – meaning of – fi nding by Magistrate that reasonable grounds existed for police offi cer to form the belief that defendant drove a motor vehicle within 3 hours when it was involved in an accident – defendant convicted – whether Magistrate not in error.

Section 53(1)(c) of the Road Safety Act 1986 ('Act') provides that:

"A member of the police force may at any time require—

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PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIA(c) any person who he or she believes on reasonable grounds has within the last 3 preceding hours driven ... a motor vehicle when it was involved in an accident:"

HELD: Section 53(1)(c) of the Act should be construed according to its terms. There is no punctuation or language to suggest that Parliament intended a separation between the two elements of driving or being in charge of a motor vehicle within the last preceding three hours on the one hand, and the vehicle being involved in an accident on the other hand. There is no word or other indication of disjunction. It is one composite statement of that as to which the member of the police force must have a belief on reasonable grounds. The offence under s49(1)(c) of the Act does not require the prosecution to prove beyond reasonable doubt that the police offi cer requiring the person to undergo a PBT believed on reasonable grounds that the person drove the motor vehicle when it was involved in an accident. Accordingly, a magistrate was correct in holding that reasonable grounds existed for the police informant to form the belief referred to in s53(1)(c) of the Act.

Hansen J:"5. That leaves as the sole question raised on the appeal whether it was open to the learned Magistrate to fi nd the charge of refusing to undergo a preliminary breath test proved in the circumstance that he found, on the charge of driving while disqualifi ed, that it was not established that an accident had occurred. To understand how the point is put it is necessary to refer to the relevant legislation, the facts and the reasoning of the learned Magistrate. 12. ... Senior Constable Forai then said to him that she believed on reasonable grounds that he was the driver of a motor vehicle involved in an accident within the last three hours and required him to undergo a preliminary breath test on a prescribed device to her satisfaction. He refused. He was warned of the penalty if he refused and was found guilty to which he said "it’s 4 years, I know it’s my second time". Senior Constable Forai again required him to undergo a preliminary breath test and again he refused. When asked for a reason for doing so he said that he was having a quiet barbecue. Finally, Senior Constable Forai said that she attended at Sawyer’s premises at 4.45 pm.

23. The learned Magistrate rejected the submission. He held that the belief on reasonable grounds applied to each of the matters specifi ed in para (c), and found the charge proved. It is clear from the transcript overall that the learned Magistrate found that reasonable grounds existed upon which the informant, Senior Constable Forai, might and did form the belief that within the last three preceding hours the defendant had driven a motor vehicle when it was involved in an accident. It is also apparent that he approached the case on the basis that having so concluded he was satisfi ed that the charge was proved beyond reasonable doubt. Having so concluded the learned Magistrate convicted the defendant on the charge of refusing to undergo a preliminary breath test and made the orders referred to earlier.

30. In my view the learned Magistrate was plainly correct in holding, and counsel for the appellant was correct in conceding, that reasonable grounds existed on which it was open to Senior Constable Forai to form the belief referred to in s53(1)(c).

35. I have not overlooked in this analysis the appellant’s contention that the construction adopted by the learned Magistrate produced an inconsistency in the result on the two charges. In my view there is no inconsistency when regard is had to the purpose of the legislation. Section 53 addresses situations in which a member of the police force may require a person to undergo a preliminary breath test. In the situations in which s53(1)(a) and (b) and (2) apply the request is made to the person found driving or in charge of a motor vehicle. That is one thing, but s53(1)(c), and (d) in my view, comprehend circumstances in which the person is not found driving or in charge of a motor vehicle. Those provisions are to be understood as stating a policy decision of Parliament that in the circumstances specifi ed in them a person may be required to undergo a preliminary breath test. That is understandable as a matter of policy in the area of drink driving.

37. In my view however, what counsel described as an inconsistency is not an inconsistency at all but rather the consequence of Parliament’s intention that in the circumstances specifi ed in s53(1)(c) the subject person submit to a preliminary breath test on pain of committing an offence if he or she refuses to do so. The statutory provision refl ects the importance that the legislature has placed on persons submitting to a preliminary breath test in the defi ned circumstances. It was necessary to make refusal to undergo the test an offence as otherwise there would be an absence of constraint on a person requested to do so. ..."

Per Hansen J in Sawyer v Forai [2006] VSC 232; (2006) 13 VR 309; (2006) 163 A Crim R 313; MC 17/2006, 5 July 2006.

252. Driver intercepted while driving – breath test taken – driver notifi ed of result – given caution – driver made "no comment" to questions asked by police offi cer – driver later charged with offence and convicted in Magistrates' Court – appeal to County Court – convicted by County Court – Judge used driver's silence after police caution to impugn his credibility as a witness – extent of the right to

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DRINK/DRIVING in VICTORIAsilence – whether right applies where accused raises issue of his own credit in his own case – whether relevant that burden of proof as to operation of the breath analysing instrument was on the accused – whether an error of law on the face of the record – whether error must be fundamental – whether Judge in error in fi nding charge proved.

W. was intercepted driving his motor vehicle and later underwent a breath test which returned a reading of 0.147%. W. was subsequently charged and convicted in the Magistrates' Court. On appeal to the County Court W. was again convicted. At the hearing on appeal, W. claimed that because of his gastric refl ux disease he burped at the time of taking the test. Further, he claimed that he had not drunk nearly enough alcohol to warrant the reading. In fi nding the charge proved, the judge indicated that in assessing W.s credibility he had taken into account that W. had said "No comment" and that he did not mention having burped while taking the test. Upon appeal—

HELD: Orders made by County Court quashed. Appeal remitted to the County Court (differently constituted) to be heard and determined according to law.1. Silence by an accused in the face of questioning by the police or similar authorities cannot be used against the accused in a criminal proceeding in any circumstances or for any purpose. Petty v R [1991] HCA 34; (1991) 173 CLR 95; 102 ALR 129; 55 A Crim R 322; 65 ALJR 625, applied.

2. There is nothing in the language used in Petty to suggest that the principles discussed are not universal. That is, the principles are applicable in trials before juries as well as summary proceedings.

3. Further, there is no support in law to state that the principles may not apply where the onus of proof is on an accused in relation to the defences under s49(4) of the Road Safety Act 1986.

4. Where a judge or jury takes an unfavourable view of a witness’s credibility because of the witness’s prior silence on a particular matter, an inference or a suspicion of "recent invention" will inevitably be involved in the process of reasoning, at least in the usual case. It is hard to imagine that any other kind of reasoning could logically link the conclusion with the premise. The relevant comments of the judge show that he inferred or at least strongly suspected recent invention on the part of W. in relation to the alleged burping incident, and that he accorded less credibility to W.s evidence in general on that basis. W.s "No comment" answer was used by the judge to impugn his credibility on the question of the amount of his drinking. Accordingly, the court committed an error of law.

5. W. was able to show that the judge's decision might have been different in the absence of the error of law. Further, the error was so fundamental to the decision as to strike at the very roots of its order and to invalidate it. Accordingly, W. was entitled to an order quashing the orders made by the County Court.

Cavanough J:"... 2. In giving judgment, the learned County Court judge said, among other things, that he was not convinced that Mr Wilson was being truthful in his evidence before the Court as to how much he had drunk. He announced that the appeal against conviction would be dismissed. In the course of pre-sentence discussions, his Honour made certain remarks that now form the sole remaining basis of Mr Wilson’s complaint to this Court. His Honour indicated that he had taken into account in assessing Mr Wilson’s credibility that, after being notifi ed of the high reading and after being given the usual caution by the police, Mr Wilson, on being asked whether he had any comment to make, simply said "No comment", and did not mention having burped while taking the test. Mr Wilson claims that this should not have been taken into account against him, because it represented an exercise by him of his "right to silence". All the more so because he had been given the usual caution.

26. ... I do not think that the sentencing order casts any signifi cant doubt on the proposition that his Honour had used Mr Wilson’s silence to the police against him on the appeal against conviction, contrary to the principles stated in Petty and Glennon [1994] HCA 7; (1994) 179 CLR 1; (1994) 119 ALR 706; (1994) 68 ALJR 209; 70 A Crim R 459.

32. However, later decisions of the High Court have qualifi ed and restricted what was said in Weissensteiner [1993] HCA 65; (1993) 178 CLR 217; (1993) 117 ALR 545; 68 A Crim R 251; 68 ALJR 23. Moreover, on refl ection, I am satisfi ed that whatever is left of Weissensteiner does not apply to pre-trial silence on the part of the accused while in the hands of the police. Therefore, in my opinion, the approach taken by the learned County Court judge gains no support in law from the fact that the burden of proof was effectively on the accused, whether or not it was reasonable to expect that Mr Wilson, had he burped during the breath test, would have told the police so despite the caution.

Conclusion as to error of law 33. It follows from the above that, in my opinion, the learned County Court judge used Mr Wilson’s "no comment" answer to impugn his credibility as a witness on the question of the amount of his drinking, and that while this may have been understandable as factual reasoning, it involved an error of law.

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PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIA47. In the present case, it seems to me that Mr Wilson only needs to show that the decision of the learned County Court judge might have been different in the absence of the identifi ed error of law. I think that he has done that. The judge’s remarks show that his Honour’s view of Mr Wilson’s credibility was detrimentally affected by Mr Wilson’s silence in the hands of the police. It is true that Mr Wilson faced an uphill battle to discharge his onus of proof in any event. But if he was to have any chance of succeeding, it was vital that his evidence as to the amount of his drinking be believed. The learned judge repeatedly referred to the fact that he was not convinced that Mr Wilson had been truthful with respect to his drinking. It is true that his Honour also referred to the high level of the reading and to the absence of "compelling objective evidence" to show that the machine was not operating properly. But his Honour did not say, even after he was respectfully queried by Mr Billings about having taken into account the post-caution "no comment" answer, that he had had independent reasons for dismissing the appeal. On the contrary, his Honour defended his use of Mr Wilson’s prior silence.

56. Accordingly I propose to make orders to the effect that:(a) The orders made by the County Court on 27 May 2005 in the plaintiff’s appeal to that Court be quashed. (b) The plaintiff’s appeal be remitted to the County Court (differently constituted) to be heard and determined according to law.

Per Cavanough J in Wilson v County Court and Anor [2006] VSC 322; (2006) 14 VR 461; (2006) 164 A Crim R 525; (2006) 46 MVR 117; MC 30/2006, 7 September 2006.

253. Driver requested to undergo preliminary breath test – PBT device not immediately available – request made by police offi cer for device to be brought to scene – PBT test kit delivered soon after – driver requested to undergo PBT – driver refused – driver later charged with offence – no direct evidence called at hearing that PBT device was in fact a prescribed device – 'no case' submission upheld – charge dismissed – whether Magistrate in error.

Section 49(1A) of the Road Safety Act 1986 ('Act') provides:

"(1A) A person may be convicted or found guilty of an offence ... even if (a) in the case of an offence under paragraph (c), a prescribed device was not presented to the person at the time of the making of the requirement; ..."

A. was intercepted whilst driving his motor vehicle and asked to remain in the area while they waited for a police van to convey a breath testing device to the scene. When the device arrived, the police informant asked A. to blow into the device but he refused. A. was subsequently charged with offences and at the hearing no direct evidence was called to establish that the PBT device was in fact a prescribed device. At the close of the prosecution case A. submitted that the prosecution had not proved an essential element of the offence under s49(1)(c) of the Act that the device A. was asked to blow into was a prescribed breath analysing device under the Act. The magistrate concluded that the prosecution had not proved a relevant element of the offence and dismissed the charge under the Act. Upon appeal—

HELD: Appeal upheld. Dismissal set aside. Remitted for further consideration in accordance with law.1. The authorities lead to the conclusion that prior to the enactment of s49(1A), it was necessary for the purpose of the offence here in issue, that the prosecution prove inter alia that a prescribed device was presented to the alleged offender at the time of the relevant requirement, and that an element of such proof was proof beyond reasonable doubt that the device was a prescribed device.

2. The effect of s49(1A) is to remove the element of a valid requirement to undertake a test as expressed by Sholl J in Scott v Dunstone [1963] VicRp 77; [1963] VR 579. It follows that the Magistrate erred in fi nding that there was no case to answer because in his view the prosecution must prove as an element of the offence that a prescribed device was presented at the time of the making of the relevant requirement (evidence having been led that a device of some sort was presented), and that it followed there was no case to answer because there was no evidence that the device presented to the respondent was in fact a prescribed device. The offence may now be committed whether or not a prescribed device is proved to have been presented to the suspect.

3. It follows that whereas proof of the results of a test still requires proof that a prescribed instrument was utilised, the essential elements of a requirement giving rise to an offence of refusal have been radically reduced. Such a requirement must still, however, convey to the suspect the purpose of the proposed test namely the conduct of a preliminary breath test in accordance with law i.e. by a prescribed device.

4. If the prosecution cannot establish that the suspect was presented with a prescribed device, this may limit the modes of proof of an adequate request. To adapt the words of Sholl J the offi cer must clearly ask the suspect "to furnish a sample of his breath for the stated purpose of preliminary test by a prescribed device." Such a request may be clear in its own terms alone or may be made by reference to an identifi ed

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DRINK/DRIVING in VICTORIAdevice which is proved to be a prescribed device. In the absence of a device proved to be prescribed, however, the fact that the requirement is directed to the relevant purpose must be otherwise established.

5. In the present case it was open to the Magistrate to conclude that in all the circumstances a suffi cient requirement had been made to undertake a preliminary breath test utilising a prescribed device. The sense of such request was to be evaluated in part by reference to the fact that a "preliminary breath test" is "a common enough term well understood in the community." We now live in the age of booze buses (a term used in the examples now inserted in the legislation) and widespread random preliminary breath testing. It was open to the Magistrate to conclude that given all the relevant circumstances the suspect would understand the term "preliminary breath test" in the sense now generally understood by the public, namely a breath test on an approved device providing a test preliminary to and indicative of the need for a subsequent breath test providing a reading of the suspect's breath alcohol level. It is not the intention of the Act as amended that the requirement contemplated by s53(1) if made absent the presentation of a device proved to be prescribed, must be constituted by a request which expressly requires a suspect to furnish breath for the purposes of a preliminary breath test "upon a prescribed device."

6. The failure to prove that the device presented to A. was a prescribed device was not fatal to the prosecution case. Accordingly, the Magistrate was in error in concluding on the facts that there was no case to answer.

Osborn J:"... 10. During the altercation a Senior Constable Lycett arrived in a police van and provided the preliminary breath test kit to Mellor. Mellor gave evidence that she prepared the kit for operation. She put the straw in the machine, looked at the machine, waited for it to ready itself and then handed the machine to the informant, who was still entangled with the respondent. The informant gave evidence that he "double-checked" the device before pointing the device towards the respondent’s mouth, and asking him to undergo a preliminary breath test, on at least two occasions. The informant gave evidence that he said to the respondent "This preliminary breath test device is set up, ready for use and I require you to undergo a preliminary breath test." The respondent refused to undergo the test on each occasion. On the fi nal occasion the informant's evidence corroborated by Mellor was that the informant said to the respondent "I require you to undergo a preliminary breath test and failure to do so could cause you to lose your licence for a period of 2 years." The respondent and the informant then separated and the respondent was placed under arrest.

17. Prior to the introduction of s49(1A) the authorities supported the view that in order to establish an offence of refusing to undertake a breath test (whether a preliminary or full test), it was necessary for the prescribed device or the approved breath analysis instrument (as relevant) to be present at the time the request to take the test was made.

34. In summary the above authorities lead to the conclusion that prior to s49(1A), it was necessary for the purpose of the offence here in issue, that the prosecution prove inter alia that a prescribed device was presented to the alleged offender at the time of the relevant requirement, and that an element of such proof was proof beyond reasonable doubt that the device was a prescribed device.

35. The appellant submits that s49(1A) removes the requirement for the prosecution to prove that at the time the respondent was asked to undergo a preliminary breath test he was presented with a prescribed device. It is submitted that the legislation removes the second element of a valid requirement to undertake a test as expressed by Sholl J and thus, all that is required for an offence to be committed is for an offi cer to clearly ask the motorist to undertake a preliminary breath test, and for the motorist to refuse.

37. In my opinion the effect of s49(1A) is to remove the second element of a valid requirement to undertake a test as expressed by Sholl J in Scott v Dunstone [1963] VicRp 77; [1963] VR 579. It follows that the learned Magistrate did err in fi nding that there was no case to answer because in his view the prosecution must prove as an element of the offence that a prescribed device was presented at the time of the making of the relevant requirement (evidence having been led that a device of some sort was presented), and that it followed there was no case to answer because there was no evidence that the device presented to the respondent was in fact a prescribed device.

38. The offence may now be committed whether or not a prescribed device is proved to have been presented to the suspect.

39. It follows that whereas proof of the results of a test still requires proof that a prescribed instrument was utilised, the essential elements of a requirement giving rise to an offence of refusal have been radically reduced. Such a requirement must still, however, convey to the suspect the purpose of the proposed test namely the conduct of a preliminary breath test in accordance with law i.e. by a prescribed device.

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PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIA44. In the present case it was in my view open to the Magistrate to conclude that in all the circumstances a suffi cient requirement had been made to undertake a preliminary breath test utilising a prescribed device.

46. In my view it is not the intention of the Act as amended that the requirement contemplated by s53(1) if made absent the presentation of a device proved to be prescribed, must be constituted by a request which expressly requires a suspect to furnish breath for the purposes of a preliminary breath test "upon a prescribed device."

47. As the second example of an appropriate request given by Sholl J in Scott v Dunstone indicates, the adequacy of the words used is to be gauged in all the circumstances of the case and need not be constituted by a recitation of the words of the section. I am not persuaded that it is now the case when requesting a preliminary breath test that:

"If (an offi cer) does not expressly say that the analysis is to be by an approved instrument, he must at least point out such an instrument as that by which the analysis (is) to be done."

Per Osborn J in DPP v Alliston [2006] VSC 330; (2006) 46 MVR 401; MC 31/2006, 13 September 2006.

254. Motor vehicle accident – driver taken to hospital – blood sample taken from driver by medical practitioner – driver later charged with offences – at hearing a certifi cate signed by the medical practitioner sought to be tendered in evidence – objection taken by defence – certifi cate marked for identifi cation – medical practitioner not required to attend court – evidence given by driver that he did not have his blood sample in his possession when he left hospital – fi nding by Magistrate that there was "evidence to the contrary" – meaning of – fi nding that regulations not strictly complied with – question of fairness raised by Magistrate – charges dismissed – Magistrate in error.

C. was driving a motor vehicle when it was involved in an accident. As a result C. was conveyed to hospital where a sample of his blood was taken from C. in the presence of the police informant. C. was later charged with offences under the Road Safety Act 1986 ('Act'). Prior to the hearing no notice was served requiring the medical practitioner to attend court to give evidence in relation to the procedure involved in the taking of the blood sample. At the hearing, the prosecution sought to tender the doctor's certifi cate however, objection was taken by C. The magistrate initially marked the certifi cate for identifi cation. Evidence was given by C. that when he left the hospital some three days after the accident he did not have the blood sample in his possession. At the conclusion of the case, in dismissing the charges, the magistrate stated that there was evidence that the medical practitioner, contrary to her certifi cate, did not deliver a container of the blood sample to C. nor place it with his personal property at the hospital. Accordingly, the magistrate found that there was "evidence to the contrary" of the facts contained in the certifi cate and dismissed the charges. Upon appeal—

HELD: Appeal allowed. Dismissals set aside. Remitted to the Magistrates' Court to be re-heard according to law.1. The phrase "to the contrary" means "to the opposite effect". To be evidence to the contrary the evidence must at least be accepted by the tribunal of fact as having some weight. In the circumstances of the certifi cates referred to in s57 of the Act the circumstances in which evidence to the contrary could be established without any challenge being made to the maker of the certifi cate or to other persons as referred to in s57(7) would be rare. It is not suffi cient that such evidence be no more than slight or unconvincing in circumstances where the defendant has chosen to lead it without seeking to challenge the certifi cate by cross-examination of its maker. Roads and Traffi c Authority of NSW v Michell [2006] NSWSC 194; (2006) 45 MVR 162, distinguished.

2. Section 57(7) of the Act requires the accused to seek leave before requiring a witness who has given a certifi cate to attend for the purposes of cross-examination. However, the Act does not state that no evidence can be called to rebut proof of the facts contained in the certifi cate unless application for leave to cross-examine the maker of the certifi cate has been made. Accordingly, the magistrate was not in error in allowing the defence to call evidence concerning the issue of whether the defendant had been supplied with a sample of his blood.

3. The evidence before the magistrate was that the defendant had no memory of the blood sample having been taken. Accordingly, there was no evidence upon which the magistrate could fi nd that the medical practitioner did not deliver the container to the defendant or place it with his personal property at the hospital.

4. It is clear beyond argument that there is nothing in s57(3) or s49(1)(a) or (g) of the Act that suggests that it is an element of the offence that the blood sample must be taken or collected in conformity with the regulations under the Act. Numerous decisions of the Supreme Court of Victoria have held consistently that prosecutions of the nature of those under s49(1)(a) or (g) of the Act do not require proof by the prosecution that the regulations governing the collection of blood samples have been complied with. Kos v Johnston [1989] VicSC 563; (1990) 11 MVR 471, applied.

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DRINK/DRIVING in VICTORIA5. There was no evidence that the statutory requirements of the taking of the blood sample and its analysis were anything other than in accordance with the regulations. There was no evidence that the medical practitioner did not comply with the regulations. The highest point the evidence reached is that the defendant did not have possession of a blood sample when he left hospital and had no memory of possession of it during the time he was in hospital. There is no evidence apart from a subsequent visit to the hospital deposed to by the defendant, that any endeavour was made to request that the screening sample be tested. Furthermore, the defendant did not avail himself of the opportunity to seek leave to cross-examine the doctor in relation to the issue raised by him at the hearing of the matter. Accordingly, there was no basis in all of the circumstances before the magistrate for any exercise of a general discretion based upon unfairness. DPP v Moore [2003] VSCA 90; (2003) 6 VR 430; (2003) 39 MVR 323, applied.

6. There can be no doubt that the use of "contest mentions" in the Magistrates’ Court has proved to be highly effective in terms of dealing with issues before that Court. However, there are no rules or legislative support for contest mentions. In the present case the contest mention was conducted and there was no suggestion made at that time of the nature of the defence to be raised before the magistrate. Since the enactment of the Crimes (Criminal Trials) Act 1993 and its subsequent re-enactment in 1999, trial by ambush in the superior courts has been virtually removed. There is no reason why the issues upon which a proceeding is to be fought should not be enunciated clearly at the contest mention in the Magistrates’ Court and it appears if necessary, appropriate legislation and rules should be put in place so as to enable such identifi cation of issues.

Kellam J:"... 10. At that stage the magistrate marked the certifi cate for identifi cation. I am unsure as to why the magistrate did that. Provided the certifi cate contained the prescribed particulars and purported to be signed by a registered medical practitioner, as it did, it was admissible and capable of being tendered absolutely pursuant to s57(3). The marking of an exhibit "for identifi cation" is a course often followed where it is intended that a subsequent witness will prove the source or the authority of the document so as to make it admissible. It was never intended to tender the certifi cate absolutely before the magistrate. Apparently what was intended in the proceeding before the magistrate was to hear further evidence to establish whether there was other evidence that was "contrary" to the evidence the subject of the certifi cate. Section 57(3) of the Act provides that if the certifi cate contains the prescribed particulars and purports to have been signed by a doctor, then the certifi cate is admissible, and in the absence of evidence to the contrary, is proof of the facts and matters contained in it.

44. Nevertheless, and although I do not accept the submission of the appellant that s57(7) is an "exhaustive code" which regulates how evidence might be given in rebuttal of any certifi cate under s57 of the Act, it must be remembered that the scheme of the Act is to provide for proof of many formal matters by certifi cate. As conceded by Mr Bourke in the case before me, the respondent had an evidentiary onus upon him to establish that there was evidence to the contrary which would render the certifi cate not to be proof of the "facts and matters contained in it". As stated above, I do not accept that it is suffi cient that such evidence be no more than slight or unconvincing in circumstances where the defendant has chosen to lead it without seeking to challenge the certifi cate by cross-examination of its maker or others as provided for by s57(3).

55. Accordingly, there was no evidence whatsoever before the magistrate upon which she could fi nd as she did that the "defendant gave evidence that his blood sample had not been provided to him or placed with his personal property." There was no evidence upon which she could fi nd as she did that "as a matter of fact ... the sample was not provided to the defendant and nor was it placed with his personal property".

57. ... There is no direct evidence that the requirements of the regulations were not complied with by Dr West and no inference can be drawn that she did not comply with the regulations by reason of the evidence of the respondent that he did not have a blood sample in his possession when he left hospital or that he had no memory of being in possession of it during his time in hospital, if that was the effect of his evidence.

58. For the above reasons I conclude that the magistrate was in error in fi nding that the evidence of the respondent was "evidence to the contrary" of the certifi cate of the taking of a blood sample under s57(3) of the Act. The answer to Question 3 is in the affi rmative and accordingly the appeal should be upheld.

61. Even accepting the view of the magistrate that there was evidence to the contrary that the respondent was not provided with a sample of his blood by Dr West, the fact is that there was unchallenged evidence that the blood sample was taken in accordance with s56(2) of the Act and that this blood sample had been analysed with the result that the prescribed quantity had been exceeded as provided for by s49(1)(g) of the Act. In my view, no matter put before the magistrate as to the possible breach of the regulatory requirement that the respondent be supplied with a sample

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PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAof his blood, permitted the above evidence to be treated as inadmissible or to be ignored. There was no basis for the magistrate to conclude that the sample actually taken from the respondent was in any way contaminated or otherwise improperly analysed.

70. ... There is no reason why the issues upon which a proceeding is to be fought should not be enunciated clearly at the contest mention in the Magistrates’ Court and it appears to me, if necessary, appropriate legislation and rules should be put in place so as to enable such identifi cation of issues.

71. Irrespective of these matters and as stated above, I conclude that the magistrate did err in law in dismissing the charge brought against the respondent and the proceeding should be remitted to the Magistrates’ Court to be re-heard according to law. ..."

Per Kellam J in DPP v Cummings [2006] VSC 327; (2006) 46 MVR 84; MC 35/2006, 11 September 2006.

255. Driver requested to undergo breath test – breath analysing instrument unable to measure driver's concentration of blood/alcohol – driver requested by police offi cer to allow a medical practitioner to take a sample of blood – later a doctor came to police station and took a sample of blood – blood placed in three separate containers one of which was handed to driver – doctor took other two containers to hospital and placed them in a blood safe – doctor required by regulations to provide sample to police informant – no sample provided to police offi cer – sample later collected from blood safe and conveyed to police forensic services centre – later analysis revealed BAC of 0.087% – Driver subsequently charged with two offences – at hearing submitted that the statutory requirement to deliver a sample to the police offi cer was mandatory – meaning of "mandatory" – fi nding by Magistrate that the continuity of the sample left the court with a reasonable doubt as to its integrity – charges dismissed – whether Magistrate in error – whether compliance with the statutory requirement an essential element of the charges.

C. was intercepted driving his motor vehicle and later at a police station asked to undergo a breath test. As the breath analysing instrument was unable to measure C.'s blood/alcohol concentration, the police informant required C. to allow a medical practitioner to take a sample of his blood. When this was done, the medical practitioner handed one container of the sample to C. and retained the other two which she later placed in a blood safe at the hospital. By virtue of s55(9B) of the Road Safety Act 1986 ('Act') the medical practitioner was required to deliver a part of the blood sample taken to the police informant; however, this was not done. Some time later the police informant collected one container of the sample from the blood safe at the hospital and conveyed it to Victoria Police Forensic Services Centre where an analysis revealed a BAC of 0.087%. C. was later charged with offences against s49(1)(b) and (g) of the Act. At the hearing of the charges, the magistrate found that the prosecution had failed to establish to his satisfaction that the sample of blood when analysed was in the same condition it was in when it was taken from C. That is, the magistrate was left with a reasonable doubt as to its integrity. Accordingly, the charges were dismissed. Upon appeal—

HELD: Appeal dismissed.1. As the continuity of the part of the sample which was analysed was in issue, the magistrate was not in error in refusing to act upon the evidence of the analysis of the blood sample and in refusing to give effect to the evidence of the analyst.

Obiter: 2. The question was whether compliance with s55(9B) of the Act was an essential element of the charges under s49(1)(b) and (g) of the Act or were so fundamental that they must be established if the offences are to be proved. The central issue was whether s55(9B) is a 'mandatory' or 'directory' provision.

3. A test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. In the present case, the issue was not whether the actions of the police and prosecuting authorities were 'void' or 'invalid' as a result of the doctor's failure to comply with s55(9B). Rather, the questions raised concerned the signifi cance of that failure to the charges brought against C. Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; 153 ALR 490; (1998) 72 ALJR 841; (1998) 8 Leg Rep 41, applied.

4. In relation to the charge under s49(1)(g) it is clear from the terms of that section that compliance with the relevant statutory procedure for the taking of a blood sample is a necessary element of the offence. The requirement that a part of the sample be delivered to the person who requested the taking of the sample is an essential precondition or element of the offence created by s49(1)(g). The place of s55(9B) within the statutory regime shows that strict compliance is required. The language employed in s55(9B), and in particular the use of the term "must", strongly supports this conclusion. The importance of the delivery of a part of the blood sample to the person who requested the sample be taken, and who assumed responsibility for maintenance of the integrity of the part of the sample to be analysed, was demonstrated clearly by the circumstances of this case. The evidentiary diffi culties which arose in this case were a direct consequence

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DRINK/DRIVING in VICTORIAof the failure to comply with the procedure in s55(9B). Compliance with the requirement for the delivery of the blood sample is an important statutory protection for the accused in the prosecution of an offence under s49(1)(g).

5. In relation to a charge under s49(1)(b) different considerations apply. In DPP v Foster [1999] VSCA 73; [1999] 2 VR 643; (1999) 104 A Crim R 426; (1999) 29 MVR 365, the Court of Appeal held that compliance with s55 is not an element of the offence enacted by s49(1)(b). There is no explicit requirement in that section for compliance with a statutory procedure as, unlike s49(1)(g), the offence under s49(1)(b) does not require that the procedure for the taking of and delivery of the sample be "in accordance with s55".

Redlich J:"1. ... The principal questions raised in this appeal are: (i) whether a failure to deliver a part of the sample to the person who requested it be taken is fatal to prosecutions under ss49(1)(b) and 49(1)(g) of the Act and (ii) what consequences follow when the continuity of possession of that part of the sample has been compromised.

30. The requirement that a part of the sample be delivered to the person who requested the taking of the sample is, in my view, an essential precondition or element of the offence created by s49(1)(g). The place of s55(9B) within the statutory regime shows that strict compliance is required. The language employed in s55(9B), and in particular the use of the term "must", strongly supports this conclusion. The importance of the delivery of a part of the blood sample to the person who requested the sample be taken, and who will assume responsibility for maintenance of the integrity of the part of the sample to be analysed, is demonstrated clearly by the circumstances of this case. The evidentiary diffi culties which arose in this case, and which were considered decisive by his Honour, were a direct consequence of the failure to comply with the procedure in s55(9B).

35. In this case, as the continuity of the part of the sample was in issue, it would have been open to the prosecution, in proving the charge, to have led evidence concerning who had access to the hospital safe in which the blood sample was stored in order to establish that the condition of the sample was unaltered when it was tested. No such evidence was called. His Honour stated that he refused to act upon the evidence of the analysis of the blood sample given at the hearing by Ms Davies. That was a course that was plainly open to his Honour. As counsel for the director conceded, it could not be said that his Honour was in error in refusing to give effect to the evidence of the analyst, Ms Davies.

36. The appeal should be dismissed."Per Redlich J in DPP v Colbey [2006] VSC 357; 166 A Crim R 85; MC 37/2006, 29 September 2006.

256. Preliminary breath test – driver waved over by a police offi cer who was standing with a torch in the middle of the road – driver underwent a preliminary breath test which showed driver's breath contained alcohol – driver conveyed to police station for full breath test which produced a reading of 0.07% – driver charged with offences – at hearing police offi cers gave evidence that the scene was not a preliminary breath testing site but a road block to conduct PBTs and check licences and registrations – submitted by driver that a preliminary breath testing station had been set up – such station not identifi ed by suitable signs or lights as required by statute – in consequence there was no power to conduct a PBT – submission overruled – charges found proved – Magistrate not in error.

Whilst driving his motor vehicle, M. was waved over by a police offi cer who was standing with a torch in the middle of the road. The police offi cer (in company with two others) had been randomly stopping vehicles on both sides of the road for preliminary breath tests and licence and registration checks. There were no signs relating to a preliminary breath testing station site set up nor any witches hats. M. was subsequently breath tested which produced a reading of 0.07%. M. was subsequently charged with offences under s49(1)(b) and (f) of the Road Safety Act 1986 ('Act'). At the hearing the police informant said that he and the other police offi cers were randomly testing drivers travelling along the road and that a preliminary breath testing station had not been set up but rather a road block in order to conduct preliminary breath tests and check licences and registrations. M. submitted that the police had set up a preliminary breath testing station within the meaning of s54 of the Act. As the station was not identifi ed by suitable signs, lights or other devices as required by s54(2)(b), it had not been set up within the meaning of s54 and accordingly, there was no power to conduct a preliminary breath test or to request M. to furnish a sample of breath for analysis. The magistrate rejected this submission and found the charges proved. Upon appeal—

HELD: Appeal dismissed.1. It was open on the evidence for the magistrate to fi nd that the manner in which the police were operating at the time did not constitute a preliminary breath testing station as contemplated by the Act and that the police had exercised their power under s53(1)(a) of the Act.

2. [Observation] The only condition for the application of s53(1)(a) is that the person is found driving a motor vehicle. There is no specifi cation of the circumstances of that fi nding. There is no doubt that Parliament intended the power in para (a) to be exercisable in the widest range of circumstances. For the purposes of the

253

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIApresent case, there was no basis upon which para (a), having regard to the natural and ordinary meaning of its language and considered in the context of the Act as a whole, could be read down so as to exclude its operation in the circumstances found by the magistrate.

Hansen J:"3. An appeal under s92 is limited to a question of law. The question of law that is raised concerns the interpretation and operation of s53(1)(a) and (b) of the Road Safety Act, in particular whether those paragraphs have a mutually exclusive operation in the sense that one or the other but not both may apply in any given fact situation. The appellant submits that the section is to be so construed. But that is not the only point. The appellant also attacks the fi nding of the Magistrate that he was not stopped and required to undergo a preliminary breath test at a preliminary testing station as referred to in s53(1)(b).

11. The respondent was stationed at the Macedon Ranges Traffi c Management Unit performing traffi c duties in the Gisborne Area. On the evening in question he was in Station Road where his sedan car was parked, randomly stopping vehicles for preliminary breath tests and licence and registration checks. Senior Constable Ellen and Constable Taylor were at the same location doing the same kind of work. They were working, and their respective vehicles were parked, on opposite sides of the road. The respondent intercepted the appellant’s vehicle and spoke to him. (I pass over the conversation, the licence check, the preliminary breath test and subsequent test.) The respondent could not remember if his vehicle was marked or unmarked as a police vehicle.

19. As stated in the notice of appeal and by counsel for the appellant the attack upon the Magistrate’s reasoning is that it was not open on the evidence to fi nd, as he did, that the manner in which the police were operating at the time did not constitute a preliminary testing station as contemplated by the Act and that the police had exercised their power under s53(1)(a). ...

22. The short answer to these submissions is that it was open to the Magistrate to conclude as he did in his reasons quoted above. I do not accept that it was "perverse in terms of the evidence" for the Magistrate to so decide. That is how counsel for the appellant described the fi nding. I disagree. The Magistrate was faced with a question of fact on which he determined, upon a consideration of the evidence, that the police offi cers acted under s53(1)(a). That fi nding was open and cannot be disturbed. The consequence is that the appeal must fail. ..."

Per Hansen J in Maitland v Swinden [2006] VSC 467; (2006) 46 MVR 507; MC 40/2006, 5 December 2006.

On Appeal:

257. Driver found driving by police offi cer – police offi cer standing in the middle of the road holding a torch – driver required to undergo preliminary breath test – not a preliminary testing station – power validly exercised by police offi cer – fi nding by Magistrate that charge proved – Magistrate not in error.

HELD: 1. The four sub-paragraphs of sub-s(1) of s53 of the Road Safety Act 1986 ('Act') create separate sets of conditions in which a member of the police force may require a person (identifi ed under the relevant sub-paragraph) to undergo a preliminary breath test. The fi rst sub-paragraph entitles the police offi cer to make the requirement of "any person he or she fi nds driving a motor vehicle or in charge of a motor vehicle" to "undergo a preliminary breath test". Paragraph (b) empowers the police offi cer to make the requirement of "the driver of a motor vehicle that has been required to stop and remain stopped at a preliminary testing station under s54(3)."

2. Where a police offi cer standing in the middle of the road holding a torch found a person driving a motor vehicle and required that person to undergo a preliminary breath test, it was open to a magistrate to fi nd that the offi cer had exercised his power under para (a) of s53(1) of the Act rather than under para (b) and to convict the person of an offence under s49(1)(f) of the Act. Maitland v Swinden [2006] VSC 467; (2006) 46 MVR 507; MC 40/2006, approved.

3. Per Redlich JA: Evidence of compliance with s53 is not an essential element of the offence under s49(1)(f), nor need it be particularised in the charge. It is suffi cient that there be evidence which enables the Court to be satisfi ed that there has been a lawful request pursuant to s53(1). So long as the prosecution adduces evidence which establishes that the requirement to furnish a sample of breath fell within one or more of the sub-paras (a) to (d) of s53(1), the prosecution will have established the necessary precondition to proof of an offence under s49(1)(f).

Maxwell P:"1. This application for leave to appeal raises two related questions. The fi rst is whether, in order to

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DRINK/DRIVING in VICTORIAprove a charge under paragraph 49(1)(f) of the Road Safety Act, the prosecution must identify – not in the charge, but in its case before the Magistrate – under which paragraph of sub-s53(1) the power to require the preliminary breath test was exercised, and then establish that the power was validly exercised pursuant to that paragraph. The second question is whether paragraphs 53(1)(a) and (b) have a mutually exclusive operation.

2. In my opinion, the application for leave should be refused. There is, in my respectful opinion, no reason to doubt the correctness of the decision arrived at by Hansen J in dismissing the appeal from the Magistrate's decision convicting the applicant of an offence under 49(1)(f).

5. The provisions of sub-s (1) of s53 are, in my opinion, unambiguously clear. The four sub-paragraphs create separate sets of conditions in which a member of the police force may require a person (identifi ed under the relevant sub-paragraph) to undergo a preliminary breath test. The fi rst sub-paragraph entitles the police offi cer to make the requirement of "any person he or she fi nds driving a motor vehicle or in charge of a motor vehicle" to "undergo a preliminary breath test". Paragraph (b) empowers the police offi cer to make the requirement of "the driver of a motor vehicle that has been required to stop and remain stopped at a preliminary testing station under s54(3)."

7. There is, it would seem, some scope for overlap between paragraphs (a) and (b), in that a person whose vehicle is "required to stop and remain stopped at a preliminary testing station" may also be described as a person "found driving a motor vehicle". In my opinion, however, it was clearly open to the Magistrate to conclude that this was an exercise of power under paragraph (a) of s53(1) rather than under paragraph (b).

9. Mr Billings suggested that this application raised an important public policy issue, as to why provision was made (under (b)) for the requirement to be issued at a preliminary breath testing station if there was such a wide power under paragraph (a). In my opinion, no such public policy issue arises. The public policy which informs the drink-driving provisions has often been explained in this Court and elsewhere. In short, Parliament has enacted stringent provisions designed to prevent the public evil of drink-driving.

10. The only public policy issue which arises here is the undesirability of unmeritorious technical points being argued, in an endeavour to achieve an acquittal or somebody who was found driving a motor vehicle and was required to take a breath test which, so the Magistrate found, gave a reading over the prescribed limit.

11. I would dismiss the application.

Redlich JA:"... 14. The appellant's outline of submission, relied upon before Hansen J and on this application, wrongly elevates the need for proof of compliance with s53 to an obligation resting upon the prosecution to identify, either in the charge or in the course of proceedings, which specifi c sub-section of s53(1) it relies upon to establish that the requirement was lawfully made under s53(1). In my view, no such obligation exists. It is suffi cient that there be evidence which enables the Court to be satisfi ed that there has a been a lawful request pursuant to s53(1).

15. I see no error in the conclusion reached by Hansen J that it was open to the Magistrate to conclude that the informant was not conducting a preliminary breath testing station within the meaning of s53(1)(b) and that the requirement of the respondent that the appellant furnish sample of his breath was made pursuant to s53(1)(a), as he found the appellant driving his motor vehicle. So long as the prosecution adduces evidence which establishes that the requirement to furnish a sample of breath fell within one or more of sub-paragraphs (a) to (d) of s53(1), the prosecution will have established the necessary precondition to proof of an offence under s49(1)(f). Neither Hansen J’s conclusion or the observations that his Honour made concerning s53 are, in my view, attended by any doubt.

16. I agree with the President that leave to appeal should be refused. ..."Per the Court of Appeal in Maitland v Swinden [2007] VSCA 44; (2007) 48 MVR 27; MC 09/2007, 9 March 2007.

258. Defendant charged with driving a motor vehicle whilst over the limit – reading 0.175BAC – charge specifi ed "being any concentration of alcohol whatsoever" – defendant produced a driver licence endorsed with a "Z" meaning defendant was subject to a zero limit – at hearing not proved that defendant was subject to zero blood alcohol limit – fi nding that such proof was an element of the charge – "any other person" – meaning of – charge dismissed – Magistrate in error.

Section 49(1)(b) of the Road Safety Act 1986 ('Act') provides:

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PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIA(1) A person is guilty of an offence if he or she—(b) drives a motor vehicle or is in charge of a motor vehicle while the prescribed concentration of alcohol or more than the prescribed concentration of alcohol is present in his or her blood or breath;

Section 3(1) of the Act provides:

"prescribed concentration of alcohol" means—(a) in the case of a person to whom section 52 applies, the concentration of alcohol specifi ed in that section; and(b) in the case of any other person—

(i) a concentration of alcohol present in the blood of that person of 0.05 grams per 100 millilitres of blood; or(ii) a concentration of alcohol present in the breath of that person of 0.05 grams per 210 litres of exhaled air;"

Whilst driving her motor vehicle, O'R. was stopped by a "booze bus" and later underwent a breath test which returned a reading of 0.175. O'R. produced her driver licence which was endorsed with a "Z" which signifi ed that a zero blood alcohol limit condition applied to the licence. O'R. was later charged with offences under s49(1)(b) and (f) of the Act and the charges specifi ed that she did drive a motor vehicle "while more than the prescribed concentration of alcohol was present in her blood being any concentration of alcohol whatsoever." At the hearing the prosecution did not lead admissible evidence to show that O'R. was a person to whom s52 applied, that is, subject to the zero limit. At the conclusion of the prosecution case, O'R. made a 'no case' submission on the basis that O'R.'s status as the holder of a Z licence was an element of the offence that had not been proved. The magistrate agreed and dismissed the charges. On appeal to the Supreme Court, Bell J dismissed the appeal. Upon appeal—

HELD: Appeal allowed. Dismissal set aside. Remitted for hearing and determination.1. A single offence is created by 49(1)(b) of the Act that is, the offence of driving while more than the prescribed concentration of alcohol is present in the driver's blood. There is an absolute maximum of 0.05 blood alcohol for all drivers. For certain special categories of driver, alcohol in the blood is prohibited altogether.

2. Where a person is subject to a zero blood alcohol limit, it is not an element of the offence and it is not necessary for the prosecution to prove that the driver was a person subject to that limit. Breach of the zero limit is an aggravating factor which may affect penalty.

3. Where the prosecution failed to prove that a driver was subject to the more stringent limit, proof that the driver was driving with a blood alcohol concentration of 0.175 was suffi cient, without more, to establish guilt of the offence under s49(1)(b) of the Act. For the purposes of the defi nition of "prescribed concentration of alcohol" the driver fell into the category of "any other person", since it had not been proven that the driver was a person to whom s52 applied.

4. Accordingly, a magistrate was in error in dismissing a charge under s49(1)(b) (reading 0.175) on the ground that it had not been proved that the driver was subject to zero blood alcohol. DPP v O'Rourke (2006) 159 A Crim R 590; [2006] VSC 150; (2006) 45 MVR 223, overruled.

Maxwell P (with whom Chernov and Neave JJA agreed):"2. O’Rourke produced her driver’s licence on request. The relevant police offi cer noted that the licence was endorsed with a "Z", which signifi ed that a zero blood alcohol limit condition applied to the licence.

7. The holder of a Z licence is a person to whom s52 applies. O’Rourke having produced a Z licence to the offi cer, the charges against her were evidently drafted on the basis that, in her case, the prescribed concentration of alcohol was "any concentration of alcohol" (s52(2)).

13. With respect to the learned Judge, and to the learned magistrate, I consider that the appeal must be allowed. In my opinion, Parliament’s intention is clearly expressed in the language of s49(1)(b) and in the defi nition of "prescribed concentration of alcohol". A maximum blood alcohol concentration of 0.05 has been established. That maximum applies to any person who drives a motor vehicle or is in charge of a motor vehicle. Quite deliberately, a more stringent limit – of zero blood alcohol – has been imposed on drivers who fall into one or other of the categories specifi ed in s52.

16. Thus understood, breach of the zero limit in a case such as this is an aggravating factor. If established, it may affect penalty. It is not itself an element of the offence. A single offence is created by s49(1)(b), the offence of driving while more than the prescribed concentration of alcohol is present in the driver’s blood. This conclusion is unaffected by the fact that the blood alcohol concentration applicable to s52 drivers is more stringent.

18. Proof that O’Rourke was driving with a blood alcohol concentration of 0.175 was suffi cient, without more, to establish her guilt of the relevant offence under s49(1)(b) – that is, of driving with more than the prescribed concentration of alcohol in her blood. For the purposes of the defi nition

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DRINK/DRIVING in VICTORIAof "prescribed concentration of alcohol", she fell into the category of "any other person", since it had not been proven that she was a person to whom s52 applied.

19. The category "any other person" is thus a default category. Every person is prohibited from driving with a blood alcohol concentration of 0.05 or greater. If it is shown that the driver is a "s52 person", then he/she is subject to a more stringent limit. But if it is not shown that he/she is "a s52 person", then the driver must be classifi ed as "any other person", who is therefore subject to the same limit as applies to every driver. On that view, O'Rourke, if convicted, will have to be treated for sentencing purposes as someone for whom the prescribed concentration of alcohol was 0.05, not zero.

21. The position would have been different if O’Rourke’s blood alcohol concentration had been between zero and 0.05. The prosecution’s failure to prove that she was a person to whom s52 applied would have necessitated the dismissal of the charge.

24. It follows that the appeal must be allowed and the decision appealed from set aside. In place of his Honour's order, there should be an order allowing the Director's appeal with costs, setting aside the Magistrate's order and remitting the matter to the Magistrate to be determined in accordance with law. ..."

Per Maxwell P (with whom Chernov and Neave JJA agreed) in DPP v O'Rourke [2006] VSCA 252; (2006) 14 VR 522; (2006) 165 A Crim R 445; (2006) 47 MVR 175; MC 01/2007, 22 November 2006.

259. Evidence – scientifi c matters and instruments – PBT and breath analysing instrument – used to ascertain blood alcohol concentration – evidence given by experts as to accuracy of instrument – whether reading obtained from PBT device admissible as evidence of blood alcohol concentration.

HELD:1. The provisions of s58 of the Road Safety Act 1986 are facultative. They do not purport to exclude nor do they have the effect of rendering inadmissible proof from another source of blood/alcohol concentration. Like any other bodily condition, blood/alcohol concentration may be proved by any recognised and reliable scientifi c technique. A court may admit results of a test conducted with a scientifi c instrument on the basis of evidence from a witness expert in its use. It is suffi cient if it is established that it is a scientifi cally accepted instrument for its avowed purpose and that the particular instrument was handled properly and read accurately. Mehesz v Redman (No 2) (1980) 26 SASR 244, followed. Porter v Kolodzeij [1962] VicRp 11; (1962) VR 75, doubted.

2. Where evidence was given by expert witnesses that the PBT was within a class of instrument generally accepted by experts as accurate for its particular purpose and that if handled properly produced accurate results and there was evidence to show that the PBT was handled properly and read accurately by the operator on the relevant occasion, a court was not in error in admitting evidence of the PBT result.

The Court (Warren CJ, Chernov, Nettle, Neave and Redlich JJ A):"6. Under ground 1 of the appeal against conviction, the applicant submits that the judge erred in admitting the evidence of the preliminary breath test, on the basis that the results of a preliminary breath test are not evidence of anything other than that the applicant had some alcohol in his blood at the time of the test. In the applicant’s submission, the effect of ss53, 55 and 58 of the Road Safety Act 1986 is that evidence of blood alcohol concentration is only admissible if obtained by analysis by a prescribed breath analysing instrument, and even then only subject to strict statutory controls, and that, by implication, those provisions exclude as inadmissible evidence of blood alcohol concentration obtained by means of a preliminary breath testing device.

7. We do not accept that submission. No doubt the results of the preliminary breath test were not admissible as such under s58 of the Road Safety Act 1986. But the provisions of that section are facultative. As was in the end conceded, they do not purport to exclude nor do they have the effect of rendering inadmissible proof aliunde of blood alcohol concentration. And like any other bodily condition, blood alcohol concentration may be proved by any recognised and reliable scientifi c technique.

9. ... a court may admit the results of a test conducted with a scientifi c instrument on the basis of evidence from a witness expert in its use. It is suffi cient if it is established that it is a scientifi cally accepted instrument for its avowed purpose and that the particular instrument was handled properly and read accurately.

13. In our view, Dr Odell’s testimony established that the PBT is within a class of instrument generally accepted by experts as accurate for its particular purpose. Mr Ducza’s testimony established that the instrument, if handled properly, does produce accurate results and, moreover, that when tested

257

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAsubsequently it was producing accurate results. And Constable Larkin’s testimony established that the PBT was handled properly and read accurately by the operator on the particular occasion it was used to test the applicant.

16. ... The judge directed the jury that they were free to accept or reject the expert evidence given by Dr Odell and Mr Ducza and that it was for them to give such weight to the opinions of those witnesses as they thought fi t. His Honour also summarised at some length the submissions made by defence counsel as to the inherent limitations of the evidence about the PBT's. Looking at the charge as a whole, we consider that the jury would have been left in no doubt as to the distinction between the Draeger and the PBT machines and the arguments each way, and, signifi cantly in a matter of this kind, no exception was taken. ..."

Per the Court of Appeal in R v Ciantar [2006] VSCA 263; (2006) 16 VR 26; (2006) 167 A Crim R 504; (2006) 46 MVR 461; MC 08/2007, 30 November 2006.

260. Application to re-open prosecution case – at commencement of hearing, witnesses including operator ordered from the court – application made by defence for permission to serve a s58(2) notice out of time – notice specifi ed that issue was taken with the fact that the defendant was given a certifi cate of analysis as soon as practicable after sample of breath analysed – application granted – operator subsequently gave evidence – failure by operator to state his authority to operate instrument – test to be applied on application to re-open – whether Magistrate in error.

At the commencement of the hearing of a drink/driving charge, all witnesses were ordered from the court including the breath analysing instrument operator. Defence counsel then applied to the magistrate for an abridgment of time to serve a notice on the informant pursuant to s58(2) of the Road Safety Act 1986 ('Act'). The magistrate granted the application on the basis that there was no prejudice identifi ed by the prosecutor. In giving evidence the operator failed to state that he was authorised by the Chief Commissioner of Police to operate breath analysing instruments or produce a certifi cate signed by the Chief Commissioner to that effect. After the defence case had been closed, defence counsel submitted that the prosecution had failed to prove the authorisation of the operator in the manner allowed for under s58(3) of the Act. The prosecutor indicated the making of an application to re-open the prosecution case to call evidence of authorisation. Subsequently, the magistrate granted the application and evidence was led of the operator's authorisation. The charge was later found proved and the defendant convicted. Upon appeal—

HELD: Appeal dismissed.1. A magistrate has a discretion in relation to an application to re-open the prosecution case. However, the prosecution may call evidence at that stage only if the circumstances are very special or exceptional and, generally speaking, not if the occasion for calling the further evidence ought reasonably to have been foreseen. R v Chin [1985] HCA 35; (1985) 157 CLR 671; 59 ALR 1; 16 A Crim R 147; 59 ALJR 495, applied.

2. In the present case, the magistrate clearly noted and applied the principles established by authority and did not take into account any irrelevant considerations in determining that exceptional circumstances existed justifying the exercise of his discretion to permit the re-opening of the prosecution case. Nor was the magistrate's decision either unreasonable or unjust.

3. Factors which were relevant to the magistrate's determination were the late service of the s58(2) notice and the fact that the operator was absent from the court when the application for abridgment of time of service of the notice was allowed. Also, it was relevant that the notice did not on its face draw the prosecutor's attention to the challenge to the operator's authority and further that it was diffi cult to point to any resultant unfairness to the defendant in granting the application.

Williams J:"1. ... The conviction followed the Magistrate being satisfi ed that Mr Burridge had furnished a breath sample which indicated that the concentration of alcohol in his breath was .228%, within three hours of driving a motor car on 12 November 2005 in Ararat.

4. ... the appeal proceeded on the basis that the fi rst and only question for the Court was in the following terms:

Did the learned magistrate err in law in permitting the prosecution to reopen the prosecution case and call further evidence in circumstances where the defence had already closed its case?

15. The Magistrate noted that the operator was at the court that day. His Honour went on to allow an abridgement of the period for service of the notice under s58(2), on the basis that there was no prejudice identifi ed by the prosecutor.

28. After the defence case had been closed, counsel for Mr Burridge submitted that the prosecution

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DRINK/DRIVING in VICTORIAhad failed to prove the authorisation of the operator of the breath analysis instrument in the manner allowed for under s58(3) of the Act. Counsel for Mr Burridge submitted that it needed to be stated clearly that the operator was authorised by the Chief Commissioner. The proof of the authorisation was defi cient in that regard.

29. The prosecutor responded that there was suffi cient proof of the requisite authorisation and pointed out that there had been no challenge to the evidence of authorisation. He foreshadowed an application by the prosecution for the re-opening of the case. There was some discussion and counsel for Mr Burridge indicated his opposition to the re-opening.

31. The learned Magistrate decided to exercise his discretion to allow the prosecution to re-open its case.

39. The prosecution case was then re-opened. The operator gave evidence that he had been authorised under s55(3) of the Act, when operating the breath analysis instrument which produced the certifi cate on 12 November 2005. The operator produced an authority, dated 15 May 2000, which was tendered in evidence. Under cross-examination, he said that the document had been at the police station which was “just outside the door of the court” when he gave his oral evidence of authorisation on 7 April 2006. He agreed that it would have taken about one minute for him to have gone to fetch the authority from the station that day. The operator was asked whether a copy of the authority had been included in the police brief to the prosecutor. He responded that he did not know and had not seen the brief.

43. It was common ground that the Magistrate had a discretion in relation to the re-opening of the prosecution case. The relevant principles were agreed to have been stated by the High Court in R v Chin [1985] HCA 35; (1985) 157 CLR 671; 59 ALR 1; 16 A Crim R 147; 59 ALJR 495 where Gibbs CJ and Wilson J said:

The principles that govern the exercise of the discretion of a trial judge to call evidence after the close of the case for the defence have been discussed in this Court in Shaw v R [1952] HCA 18; (1952) 85 CLR 365, at pp378-380, 383-384; [1952] ALR 257; Killick v R [1981] HCA 63; (1981) 147 CLR 565, at pp568-571, 575-576; 37 ALR 407; 56 ALJR 35 and Lawrence v R (1981) 38 ALR 1 at pp3, 7, 22-23. The general principle is that the prosecution must present its case completely before the accused is called upon for his defence. Although the trial judge has a discretion to allow the prosecution to call further evidence after evidence has been given for the defence, he should permit the prosecution to call evidence at that stage only if the circumstances are very special or exceptional and, generally speaking, not if the occasion for calling the further evidence ought reasonably to have been foreseen. The principle applies where the prosecution seeks to call evidence to rebut matters raised for the fi rst time by the defence; if the rebutting evidence was itself relevant to prove the prosecution case (unless, perhaps, it was no more than marginally, minimally or doubtfully relevant: R v Levy and Tait (1966) 50 Cr App R 198 at p202) and the need to give it could have been foreseen it will, generally speaking, be rejected.

The principle would not prevent the prosecution from giving in reply evidence directed to an issue the proof of which did not lie on the prosecution, such as insanity, or from rebutting evidence of the accused's good character, provided that the prosecution had not anticipated the raising of an issue of this kind and led evidence with regard to it, for the prosecution must not split its case on any issue. Also, it has been held that evidence may be given in reply to prove some purely formal matter the proof of which was overlooked in chief.

65. I am not persuaded that the learned Magistrate’s discretion miscarried.

66. I am satisfi ed that his Honour clearly noted and applied the principles established by authority.

67. I am not persuaded that he took any irrelevant considerations into account in his determination that exceptional circumstances existed, justifying the exercise of his discretion to permit the re-opening of the prosecution case.

69. I am not persuaded that the learned Magistrate’s decision was either unreasonable or unjust. I consider that a reasonable magistrate could well have concluded that the circumstances which his Honour characterised as exceptional were just that, in the context of the hearing before him. The comparison with fact situations in other cases does not persuade me to a contrary view.

72. The appeal should be dismissed."Per Williams J in Burridge v Tonkin [2007] VSC 230; MC 32/2007, 3 July 2007.

259

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIA261. Driver intercepted after driving erratically – motor vehicle thought to be stolen – driver sprayed with capsicum spray and handcuffed – driver conveyed to police station – there requested by another police offi cer to undergo breath test – BAC reading of 0.059% – driver charged with numerous offences – fi nding by Magistrate that because of the occurrence of matters at the roadside the police informant acted excessively – Magistrate satisfi ed that the evidence of the breath analysis should be excluded – drink/driving charges dismissed – nature and scope of the public policy discretion to exclude evidence – whether facts enlivened Magistrate's discretion – whether Magistrate in error in excluding evidence.

R. was intercepted by a police offi cer after driving erratically. At the scene, the offi cer believed that the vehicle had been stolen and used capsicum spray and handcuffs to restrain R. After R. was conveyed to the police station, he was requested by another police offi cer to undergo a breath test which produced a BAC result of 0.059%. It was discovered that the informant's belief as to the vehicle's being stolen was incorrect. R. was charged with numerous driving offences including drink/driving. At the hearing, the magistrate excluded evidence of the breath analysis and dismissed the drink/driving charges on the ground that the informant acted excessively at the scene in using the spray and the handcuffs. Upon appeal—

HELD: Appeal allowed. Remitted to the magistrate for further hearing and determination according to law.1. A magistrate has a discretion to exclude evidence on the grounds of public policy. The discretion is enlivened only where the impugned conduct was the means by which the evidence was obtained or where the obtaining of the evidence involved such conduct. In the present case, the critical question was whether the evidence of the unlawful or improper conduct of the police was the means by which the evidence was obtained or where the obtaining of the evidence involved such conduct. Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54; 19 ALR 641; 52 ALJR 561, and DPP v Moore [2003] VSCA 90; (2003) 6 VR 430; (2003) 39 MVR 323; MC 20/2003, applied.

2. The question was whether the evidence of the breath analysis was the product of unlawful or improper conduct by police. The link between the informant's conduct at the roadside and the later obtaining of the evidence was so tenuous that it could not reasonably be said that the evidence was obtained by means of that improper conduct.

3. The public policy discretion requires a balancing of competing factors in the sense of examining the comparative seriousness of the offence charged and the unlawful or improper conduct of the police. By failing to engage in such a balancing exercise, and failing to exercise the discretion by reference to relevant criteria, the magistrate's discretion miscarried.

Hansen J:"1. ... The orders were made in consequence of the decision of the Magistrate to exclude evidence of the respondent’s breath test showing the concentration of alcohol in the respondent’s breath, on the basis that the informant had acted “excessively”.

3. In seeking to uphold the Magistrate’s orders counsel for the respondent contended that there were several aspects of unlawful and/or improper behaviour by the police which attracted the discretion to exclude the subject evidence and that, in the circumstances of the case, it was open to the Magistrate to exercise the discretion so as to exclude the evidence and dismiss the charges.

7. The respondent’s evidence of the arrest was, relevantly, that (a) the informant did not identify himself as a police offi cer when he approached the car, (b) the informant placed the handcuffs on him extremely tightly and had his knee in his back, and (c) that when he was taken to the divisional van he received a blow in the stomach which he believed was a punch.

23. In my view, it is clear from Moore that the public policy discretion may be exercised even where there is no strict causal link between the relevant illegality or improper conduct of the police and the obtaining of the relevant evidence. That follows from the fact that, in Moore [2003] VSCA 90; (2003) 6 VR 430; (2003) 39 MVR 323, the improper conduct held to enliven the discretion occurred after the evidence was obtained. But, as counsel correctly conceded, the mere fact that no strict causal link is required does not mean that there is no need for some connection. On the contrary, there must be a relevant connection. In the present case, the critical question is whether, to use the language of Stephen and Aickin JJ in Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54; 19 ALR 641; 52 ALJR 561, the evidence of the breath analysis was the product of unlawful or improper conduct of the police or, as Chernov JA put it in Moore, whether the improper conduct was the means by which the evidence was obtained or where the obtaining of the evidence involved such conduct.

28. In my view it was not open to the Magistrate to decide, on the basis of the matters at the roadside, that the public policy discretion arose for consideration. As the authorities make clear, the public policy discretion only arises for consideration when the relevant evidence is procured by means of unlawful or improper conduct. In the present case, can it be said that the evidence of the breath

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DRINK/DRIVING in VICTORIAanalysis was the product of unlawful or improper conduct by the police? Or, as Chernov JA put it in Moore, was the improper conduct the means by which the evidence was obtained or did the obtaining of the evidence involve such conduct? In my view, the link between the “excessive” conduct at the roadside and the obtaining of the evidence is so tenuous that it cannot reasonably be said that the evidence was obtained by means of that improper conduct. The present case is readily distinguishable from Bunning v Cross, where the police offi cer failed to administer a preliminary breath test to the defendant at the roadside but nevertheless (and in contravention of the statute) took the defendant to the police station and administered a breath analysis. In those circumstances, it could readily be said that the evidence of the breath analysis was obtained by reason of the fact that the defendant had been taken to the police station unlawfully. In the present case, the respondent was lawfully arrested and taken to the police station under suspicion of stealing the Commodore. After the respondent arrived at the police station, the police were still entitled to request the respondent to undergo a preliminary breath test, which they duly did. In effect, the informant’s conduct at the roadside was overtaken by subsequent events. It simply cannot be said that the evidence of the breath analysis was obtained by means of the roadside conduct. The Magistrate thus erred in deciding that the discretion arose for consideration on the basis of the roadside matters.

31. ... That is to say, the breath analysis was not obtained by means of the improper conduct, but rather was obtained in circumstances where the respondent happened to have been held in custody for about half an hour more than he should have been, but where that conduct could not in any real way be said to be the means by which the evidence was obtained. It was obtained pursuant to the request, which request could as equally have been made prior to discovering that the Commodore was not stolen or subsequent to that discovery. 34. It is clear that the public policy discretion requires a balancing of competing factors. In the present case, there is no indication that the Magistrate engaged in such a balancing exercise, in the sense of examining the comparative seriousness of the offence charged and the unlawful or improper conduct of the police, in order to conclude that the evidence should be excluded for reasons of public policy. Rather, and not disregarding the absence of transcript, it appears suffi ciently that the informant’s actions at the scene were the basis on which the Magistrate excluded the evidence of the breath analysis. And even if the Magistrate had based her decision on the period of unlawful detention or the s53 point (assuming either to have been open) rather than the roadside conduct, she would still have needed to exercise the discretion by reference to the factors set out above. That did not occur. By failing to exercise the discretion by reference to relevant criteria, the discretion miscarried.

35. For my part I would only add that, in the circumstances of the present case and regarding all that was said by counsel for the respondent and bearing in mind all the factors referred to in Bunning v Cross, the proper exercise of the discretion was to admit the evidence of the breath analysis.

36. For these reasons, the appeal will be allowed and the matter will be remitted for further hearing and determination according to law. There is at least for the Magistrate’s consideration the appellant’s foreshadowed argument concerning the operation of s53 and matters of penalty. I will hear counsel on the question of costs."

Per Hansen J in DPP v Riley [2007] VSC 270; (2007) 16 VR 519; (2007) 173 A Crim R 360; (2007) 48 MVR 261; MC 37/2007, 26 July 2007.

262. Driver involved in motor vehicle accident – conveyed to hospital – blood sample taken at hospital – charges laid – certifi cate of person taking blood sample tendered in evidence – statement in certifi cate that person was "a registered medical practitioner or approved health professional" – letters MRCS after word qualifi cations in certifi cate – whether judicial notice may be taken of meaning of acronym – charge found proved by Magistrate – Magistrate not in error.

HELD:1. It is a necessary part of the proofs for the prosecution of a charge under s49(1)(g) of the Road Safety Act 1986 ('Act') to establish that a doctor has taken a sample of the driver's blood pursuant to s56 of the Act.

2. Where a driver involved in a motor vehicle accident had been conveyed to hospital and had a sample of blood taken, it can be presumed that the person taking the sample was a doctor who complied with all statutory requirements. Further, the letters 'MRCS' appearing in the certifi cate after the printed word "qualifi cations" mean that a court can readily infer that the initials translate to 'Member of the Royal College of Surgeons' and accordingly, such a person was a registered medical practitioner within the meaning of the Act. In those circumstances there was evidence upon which a magistrate was entitled to conclude that a doctor had in fact taken the blood sample pursuant to s56 and to fi nd a charge under s49 of the Act proved.

J Forrest J:"4. Subsequently the appellant was taken by ambulance to the Maroondah Hospital. Both the

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PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIArespondent and a Senior Sergeant McGregor attended the hospital, having followed the ambulance to the hospital. At the hospital a blood sample was taken and subsequently a certifi cate provided to the appellant in respect of the taking of the sample. It is the contents of that certifi cate which form the subject of the appeal.

12. The prosecutor relied upon the “qualifi cations” portion of the certifi cate in which several letters or acronyms were inserted apparently to establish that the certifi cate was completed by a registered medical practitioner.

16. The grounds of appeal are narrow and raise the same point argued before the learned Magistrate, namely, a prosecution under s49(1)(g) has as its genesis establishing that a sample of blood has been taken in accordance with s56. Section 56 requires the blood sample to be taken by a doctor (being a registered medical practitioner). The appellant contends that the certifi cate tendered under s57(3) – a procedural provision – did not demonstrate that the person who took the blood sample was, in fact, a registered medical practitioner.

43. In my view, s49(1)(g), by its very words, requires compliance with the provisions of s56. The words “in accordance with s56” within s49(1)(g) can be given no other interpretation, particularly when the terms of s56 are considered.

44. ... Consideration of the terms of s49(1)(g), the structure of s56 and the relevant parts of s57 lead, in my view, unerringly to the conclusion that the blood sample must be taken by a doctor. I think that it forms an essential element of the offence.

47. I turn now to that question namely whether, assuming it was necessary for it to be proved that a doctor took the sample, there was evidence available to the learned Magistrate to reach the conclusion that a doctor did, in fact, take the sample. Mr Hardy’s submission is attractively simple; the certifi cate is ambiguous – it was either a doctor or an approved health professional. Such ambiguity, he contends, means that it was not open to the Magistrate to convict the appellant.

48. In my view that argument should be rejected. I think that there was evidence upon which the learned Magistrate could reach the conclusion that the person who took the sample was a doctor, and I think so for the following reasons.

49. First, the certifi cate was not the only evidence available to the Magistrate about the taking of the blood sample. The respondent gave evidence unchallenged, reproduced at para 8 herein, that she attended the hospital shortly after the arrival of the appellant and after attending the hospital she had a certifi cate of the taking of blood by a doctor. The appellant, upon her departure, was given a sample of her blood which she ultimately had sent off for testing. No contradictory evidence was led from the appellant.

50. Secondly, the reasoning of Lush J in Mallock v Tabak [1976] VicSC 503; [1977] VicRp 7; [1977] VR 78 at 85 means, I think, that the presumption of regularity can be invoked in a situation where a blood sample is taken from a patient by a person performing a public duty such as Helen Cook was. In such circumstances it can be presumed that in doing so, that person has complied with all statutory preconditions for such performance.

53. I am satisfi ed that it is likely that a doctor, given the totality of the provisions of s56 and, particularly, the cloak of immunity provided to a doctor by s56(8), would have taken the sample.

54. Thirdly, I think that the letters MRCS are capable of giving rise to judicial notice that such initials bespeak “Member of the Royal College of Surgeons”. Neither counsel took me to any relevant authorities; each simply rhetorically arguing in support of their assertion that such notice could or could not be taken.

56. In my view a degree of commonsense has to be injected into this argument. The letters MRCS appear after the printed word “qualifi cations”. It is general knowledge that a Fellow of the Royal College of Surgeons or a Member of the Royal College of Surgeons is often described by an acronym such as FRCS or MRCS. Indeed, Justices of this Court, Judges of the County Court and Magistrates in this State are referred to in terms of title by acronyms. Acronyms and their translation into words are a daily occurrence. If courts can take judicial notice of the travelling times of motor vehicles to halt, that a person who has consumed 15 to 20 schooners in a few hours would be drunk, it seems no great leap to translate a well known acronym, MRCS, into its well known title, “Member of the Royal College of Surgeons”. I would readily infer that such a person was a registered medical practitioner within the meaning of the Road Safety Act and therefore a doctor for the purpose of s56.

58. For each of these reasons I conclude that there was evidence available to the learned Magistrate

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DRINK/DRIVING in VICTORIAto conclude that the certifi cate purported to be signed by a registered medical practitioner and therefore by a doctor in accordance with s56 of the Road Safety Act. ..."

Per J Forrest J in Stone v McIntyre [2007] VSC 406; (2007) 17 VR 280; (2007) 176 A Crim R 540; 48 MVR 549; MC 43/2007, 19 October 2007.

263. Certifi cate admitted into evidence – BAC 0.131% – statement in record of interview that driver consumed "fi ve or six pots of full strength beer" – fi nding by Magistrate that in the absence of expert evidence charge not proved – charge dismissed – Magistrate in error.

HELD:1. The wording of s48(1)(a) of the Road Safety Act 1986 ('Act') is unambiguous. It creates a statutory presumption and reverses the onus of proof. It casts upon the defendant the burden of establishing on the balance of probabilities that at the time at which the offence was committed the concentration of alcohol was less than that alleged.

2. The authorities establish that this must be done by sworn evidence. That may be by the calling of expert evidence to reduce the reading to a signifi cantly lower level so as to bring it into a lower category of penalty or by eliciting evidence from the prosecution expert witness to that effect. This was not done here. The record of interview was a self-serving statement. It was not sworn evidence and thus could not be said to be suffi cient to displace the presumption on the balance of probabilities. Even if the defendant had given sworn evidence consistent with his answers in the record of interview, that alone would not have displaced the statutory presumption.

3. In short, there was no evidence before the Magistrate which was capable of displacing the statutory presumption and thus, as there was no dispute that the blood sample was taken within three hours after the offence, the Magistrate was obliged, pursuant to the provisions of s48(1)(a), to accept as conclusively established that the defendant's blood alcohol reading at the time of driving was 0.131%. Even if such expert evidence had been called, there was nothing in the material before the court which would warrant a conclusion that the defendant's blood alcohol was below 0.05%, which it would have needed to have been in order for the Magistrate to dismiss the charge. Matthews v Van de Maat [1983] VicSC 393, MC 52/1983; Holdsworth v Fox [1974] VicRp 27; (1974) VR 225, applied.

Curtain J:"5. The only issue at the hearing appears to be the qualifi cations of the analyst, Peter James McCaffery. At the time of conducting the analysis, he had not then obtained the appropriate certifi cation. Her Honour, having heard evidence as to his experience and expertise, found, as she was entitled to under the provisions of s57(1)(a)(ii) of the Road Safety Act, that he was qualifi ed to give the expert evidence as to the analysis. Accordingly, the reading of 0.131% was admitted into evidence. Although the doctor who took the sample and the courier who collected it from the hospital also gave evidence and were cross-examined, there was no challenge to legislative or regulatory compliance.

11. Section 48(1)(a) of the Road Safety Act 1986 provides as follows:

“If it is established that at any time within three hours after an alleged offence against paragraph (a) or (b) of s49(1) a certain concentration of alcohol was present in the blood or breath of the person charged with the offence it must be presumed, until the contrary is proved, that not less than that concentration of alcohol was present in the person’s blood or breath (as the case requires) at the time at which the offence is alleged to have been committed.”

12. The wording of the section is unambiguous. It creates a statutory presumption and reverses the onus of proof. It casts upon the defendant the burden of establishing on the balance of probabilities that at the time at which the offence is committed the concentration of alcohol was less than that alleged.

13. ... In short, there was no evidence before her Honour which was capable of displacing the statutory presumption and thus, as there was no dispute that the blood sample was taken within three hours after the offence, her Honour was obliged, pursuant to the provisions of s48(1)(a), to accept as conclusively established that Mr Mitchell’s blood alcohol reading at the time of driving was 0.131%. Her Honour has either misdirected herself as to the meaning of s48(1)(a) of the Road Safety Act 1986 as her reasons appear to indicate or its requirements were not brought to her attention.

14. Even if such expert evidence had been called, there was nothing in the material before the court which would warrant a conclusion that Mr Mitchell’s blood alcohol was below 0.05%, which it would have needed to have been in order for her Honour to dismiss the charge. Accordingly, I am satisfi ed that her Honour has fallen into appellable error. ..."

Per Curtain J in DPP v Mitchell [2008] VSC 130; (2008) 50 MVR 83; MC 24/2008, 22 April 2008.

263

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIA264. Driver underwent breath test – instrument malfunctioned and failed to print the certifi cate automatically – certifi cate manually produced – reading 0.127% BAC – request by driver for second test refused by operator – driver informed that he could request a blood test – driver allegedly told by operator that a blood test could produce a higher reading – no blood test taken – driver charged and subsequently convicted – appeal to County Court unsuccessful – operator not called as a witness in either court proceedings – decision in DPP v Moore [2003] 6 VR 430 considered – whether driver prejudiced by not requesting a blood test – whether blood test would have assisted driver in his defence – no error demonstrated.

T. was intercepted whilst driving his motor vehicle and underwent a breath test. Before the results of the test were automatically printed from the instrument there was a mechanical problem and it became necessary for the instrument operator to manually produce a certifi cate which showed a reading of 0.127% BAC. T. claimed that he queried the malfunction with the operator and was told that he could request a blood test. T. said that the operator stated that the blood test results are "always higher". T. said that having a blood test would be "futile" and the operator effectively "talked him out of it". At the subsequent hearings, the certifi cate of the instrument was admitted into evidence, the operator was not called to give evidence and T. was convicted. Upon appeal against the order in the County Court—

HELD: Application to quash conviction dismissed with costs.1. T. could have compelled the attendance of the operator by serving a notice within time under s58(2) of the Road Safety Act 1986 ('Act'). This notice must be given, in the absence of agreement or order of the court, not less than 28 days prior to the hearing. By giving such a notice within the prescribed time the defendant can avoid the conclusiveness of the certifi cate as evidence of its content. Had that notice been served within the prescribed time, the prosecution would have been required to call the operator, thus exposing him to cross-examination about the operation of the instrument. In such cross-examination, counsel for T. would have been required to put to the operator the conversations about which T. proposed to give evidence. The s58(2) notice was ineffective unless the time for giving it was abridged by agreement or by order of the court. No application was made to the judge to abridge time for service of the notice and the operator was not called to give evidence. Accordingly, T. was not able to put his account of the conversation to the operator and instead put his account to the Informant who was not in a position to contradict any part of it because she said that she could not recall any such conversation. She said that she was “coming and going from the interview room”.

2. The authorities establish that where a defendant has suffered any unfairness or unlawfulness, a Magistrate has a discretion whether to accept or reject the breath analysis evidence. The Magistrate must consider the competing public requirements of the public need to bring to conviction those who commit criminal offences with the public interest in the protection of the individual from unlawful and unfair treatment. Where a Magistrate found that a driver had acted on advice from a police offi cer which denied him evidence which could possibly have defeated the charge, the subsequent conviction was "obtained at too high a price". R v Ireland [1970] HCA 21; (1970) 126 CLR 321; [1970] ALR 727; (1970) 44 ALJR 263; DPP v Moore [2003] VSCA 90; (2003) 6 VR 430; (2003) 39 MVR 323; and Nolan v Rhodes [1982] 32 SASR 207, applied.

3. While the right to a blood test is undoubtedly important, the potential prejudice or unfairness to the plaintiff may be more or less depending upon the likelihood that a blood test might assist in his defence. The obvious reason for highlighting the difference between the breath analysis results and the legal limit in DPP v Moore and Nolan v Rhodes was the likelihood of a blood test assisting a defence to the charge. The greater the gap between the reading and the legal limit the less likely it will be that a blood test would have assisted the person.

4. As T. chose not to challenge the operation or working order of the instrument or the validity of its product – the manually produced certifi cate – he could not rely upon the malfunction as a springboard to enhance his submission about the unfairness of his having been denied a blood test. There was no evidence that a blood test was likely to assist T. in his defence. While the right to a blood test was denied, T. chose not to give a notice under s58(2) within the prescribed time nor did he request an abridgment of time nor did he challenge the operation or working order of the instrument and its reading.

5. Accordingly, the error complained of by T. was not "central" to the jurisdiction or orders made by the County Court and was not reviewable so as to justify relief in the nature of certiorari.

Judd J:"1. The plaintiff seeks an order in the nature of certiorari quashing the decision made in the County Court at Melbourne. The plaintiff had been convicted in the Magistrates’ Court at Heidelberg on 10 June 2005 of a charge under s49(1)(f) of the Road Safety Act 1986 (the Act). He was fi ned, ordered to pay costs and disqualifi ed from driving. His appeal was heard and dismissed on 17 November 2006 and he was convicted of the same offence, with the same penalty and period of disqualifi cation, as had been imposed by the magistrate.

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DRINK/DRIVING in VICTORIA2. The plaintiff contends that the judge hearing his appeal in the County Court failed to properly exercise her discretion to reject evidence constituted by a certifi cate of analysis tendered by the prosecution and relied upon as conclusive proof of the facts alleged therein. The certifi cate indicated that at the relevant time, the plaintiff had a blood alcohol reading of 0.127 grams of alcohol per 100ml of blood. The plaintiff alleges that the judge failed to apply the decision of the Court of Appeal in DPP v Moore to exclude the evidence on public policy grounds because of the improper conduct of Senior Constable Warr (the operator) who operated the breath analysis instrument and who, it is said, talked the plaintiff out of having a blood test.

32. The plaintiff submitted that the judge misdirected herself in the exercise of her discretion by failing to apply the principles enunciated in DPP v Moore and, in particular, did not consider that the plaintiff had suffered any unfairness when talked out of a blood test by the operator. The plaintiff also argued that the judge misdirected herself by taking into account the results of the breath analysis.

43. ... In the circumstances, I consider that the conduct of the operator in this case, although not unlawful, was improper in the sense that it was, in the circumstances, of suffi cient seriousness to warrant “sacrifi cing the community’s desire to see the guilty convicted in order to express disapproval of, and to discourage, the use of unacceptable methods in achieving that end”.

48. The obvious reason for highlighting the difference between the breath analysis results and the legal limit in DPP v Moore and Nolan v Rhodes was the likelihood of a blood test assisting a defence to the charge. The greater the gap between the reading and the legal limit the less likely it will be that a blood test would have assisted the person.

51. This is not a case where the content of the certifi cate of analysis, including the result of the analysis, could be regarded as irrelevant to the exercise of the discretion to exclude the certifi cate as evidence. In the absence of a challenge to the operation and accuracy of the instrument or evidence to support the likelihood that a blood analysis would produce a more favourable result, I regard the content of Exhibit 1 to be highly relevant to the exercise of discretion to reject it as evidence. If, as I think probable, when referring to the breath test result, the judge was drawing a distinction between the facts in this case and those in Nolan v Rhodes and DPP v Moore then, in my view, she was quite justifi ed in doing so.

52. It follows, in my opinion, that even accepting the plaintiff’s account of the reasons for judgment, the plaintiff has not demonstrated an error of law on the face of the record and his application must fail.

54. This is not a case where the breath analysis was only slightly above the legal limit. There was no evidence to the effect that a blood test was likely to assist the plaintiff in his defence. While the right denied to the plaintiff was an important right, the plaintiff chose not to give a notice under s58(2) within the prescribed time. He did not request an abridgment of time. He chose not to pursue his secondary or “sub-defence”, challenging the operation or working order of the instrument and thus the breath analysis reading. The plaintiff enjoyed the forensic advantage of not being required to put his account of the conversation with the operator to the only person who could verify or contradict it, namely, the operator. He allowed the prosecution to close its case before leading evidence to support the exercise of discretion and making the application for exclusion. By the time his application to exclude evidence was made, the certifi cate was in evidence with the status of conclusive evidence. In the circumstances of this case, and assuming the correctness of the plaintiff’s evidence as to the judge’s reasons, the error complained of by the plaintiff would not have been central to the jurisdiction or orders made by the County Court and in my opinion would not be a reviewable error under Order 56 of the Rules of Court so as to justify relief in the nature of certiorari. ..."

Per Judd J in Terry v Johnson & Anor [2008] VSC 123; MC 25/2008, 8 May 2008.

On Appeal:

265. Driver underwent breath test – instrument malfunctioned and failed to print the certifi cate automatically – certifi cate manually produced – reading 0.127% BAC – request by driver for second test refused by operator – driver informed that he could request a blood test – driver allegedly told by operator that a blood test could take all night to arrange and could produce a higher reading – no blood test taken – driver charged and subsequently convicted – appeal to County Court unsuccessful – operator not called as a witness in either court proceedings – decision in DPP v Moore [2003] VSCA 90; [2003] 6 VR 430; (2003) 39 MVR 323 considered – whether driver prejudiced by not requesting a blood test – whether blood test would have assisted driver in his defence – evidence of the breath analysis certifi cate should have been excluded.

T. was intercepted whilst driving his motor vehicle and underwent a breath test. Before the results of the test were automatically printed from the instrument there was a mechanical problem and it became necessary for the

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PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAinstrument operator to manually produce a certifi cate which showed a reading of 0.127% BAC. T. claimed that he queried the malfunction with the operator and was told that he could request a blood test. T. said that the operator stated that it could take all night to arrange the blood test and that blood test results are "always higher". T. said that having a blood test would be "futile" and the operator effectively "talked him out of it". At the subsequent hearings, the certifi cate of the instrument was admitted into evidence, the operator was not called to give evidence and T. was convicted. Appeals to the County Court and a Judge of the Supreme Court were unsuccessful. Upon appeal to the Court of Appeal—

HELD: Appeal allowed. Conviction quashed. Terry v Johnson MC 25/2008 overruled.1. The authorities establish that where a defendant has suffered any unfairness or unlawfulness, a Magistrate has a discretion whether to accept or reject the breath analysis evidence. The Magistrate must consider the competing public requirements of the public need to bring to conviction those who commit criminal offences with the public interest in the protection of the individual from unlawful and unfair treatment. Where a Magistrate found that a driver had acted on advice from a police offi cer which denied him evidence which could possibly have defeated the charge, the subsequent conviction was "obtained at too high a price". R v Ireland [1970] HCA 21; (1970) 126 CLR 321; [1970] ALR 727; (1970) 44 ALJR 263; DPP v Moore [2003] VSCA 90; [2003] 6 VR 430; (2003) 39 MVR 323; and Nolan v Rhodes [1982] 32 SASR 207, applied.

2. The County Court judge in the present case considered that the magnitude of the breath test reading, 0.127%, in comparison to the permitted 0.05%, was such that T. could not have been assisted by a blood test reading. Implicit in this was the judge's assumptions that the blood test would have been unlikely to show a blood alcohol content to be less than 0.05% and that, further, the recorded breath test reading was accurate, or approximately so. There was in fact no evidence to support either assumption.

3. A relevant purpose of obtaining the blood test reading was to verify or not the accuracy of the breath test reading. T. was charged with an offence contrary to s49(1)(f) of the Road Safety Act 1986 which depended upon a result of analysis as recorded or shown by the breath analysing instrument of breath sample taken within three hours after driving. If T. had pursued his right to have a blood test it may be that the reading would have been less than 0.05%. This would have provided a powerful basis for concluding that the breath analysis instrument was not in proper working order or properly operated, giving rise to a statutory defence to the charge based on the breath test certifi cate.

4. The discretion to exclude evidence on the Bunning v Cross principle requires T. to satisfy this court that the application of the balancing exercise referred to in Ireland’s case must favour exc lusion. In the present case, the weight to be given to the fact that the misconduct of the offi cer caused T. to forego an important right, is established by the authorities. The County Court Judge appeared to discount the signifi cance of this consequence by her conclusion based on assumptions which were unwarranted. Furthermore, the accuracy of the breath test reading was signifi cant not only for the purposes of determining whether T. was guilty of the offence charged, but also with respect to the imposition of the appropriate fi ne and licence suspension order in the event that he was convicted.

5. In the ci rcumstances, a judge properly applying the Bunning v Cross principle to the facts in evidence, must inevitably have exercised the discretion to exclude the evidence of the breath analysis certifi cate. In failing to do so, the judge's discretion miscarried.

Byrne AJA (with whom Buchanan and Mandie JJA agreed):"10. There was only one point argued before the primary judge and before this court on the appeal. It was that the order of the County Court judge was affected by error of law on the face of the record inasmuch as her Honour declined to refuse to accept in evidence Ex G, the certifi cate of breath analysis made at 3.09 am on 27 November 2003. The tender was objected to on the ground that the document came into existence in circumstances of impropriety so that it should be rejected upon the application of the Bunning v Cross [1978] HCA 2 2 ; (1978) 141 CLR 54; 19 ALR 641; 52 ALJR 561 dis cretion or the discretion to exclude evidence obtained unfairly.

16. The County Court judge considered that the magnitude of the breath test reading, 0.127%, in comparison to the permitted 0.05%, were such that Mr Terry could not have been assisted by a blood test reading. Implicit in this was her Honour’s assumptions that the blood test would have been unlikely to show a blood alcohol content to be less than 0.05% and that, further, the recorded breath test reading was accurate, or approximately so. There was in fact no evidence to support either assumption.

20. The discretion to exclude evidence on the Bunning v Cross principle requires the appellant to satisfy this court that the application of the balancing exercise referred to in Ireland’s case [1 9 70] HCA 21; (1970) 126 CLR 321; [1970] ALR 727; (1970) 44 ALJR 263 must favour exc lusion. In the present case, the weight to be given to the fact that the misconduct of the offi cer caused the defendant

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DRINK/DRIVING in VICTORIAto forego an important right, is established by the authorities. Her Honour appeared to discount the signifi cance of this consequence by her conclusion based on the assumptions to which I have referred. These assumptions were, as I have observed, unwarranted.

21. Furthermore, the accuracy of the breath test reading was signifi cant not only for the purposes of determining whether Mr Terry was guilty of the offence charged, but also with respect to the imposition of the appropriate fi ne and licence suspension order in the event that he was convicted.

22. In the ci rcumstances, we are of opinion a judge properly applying the Bunning v Cross principle to the facts in evidence, must inevitably have exercised her discretion to exclude the evidence of the breath analysis certifi cate. Her discretion has miscarried. Insofar as the primary judge took a different view, his Honour, too, fell into appellable error.

23. The appeal will be allowed and the conviction quashed."Per the Court of Appeal in Terry v Johnson and Anor [2009] VSCA 286; (2009) 198 A Crim R 128; MC 40/2009, 9 December 2009.

266. Driver underwent a PBT which indicated that driver's breath contained alcohol – driver then required to accompany police offi cer to police station for a full breath test – driver agreed to accompany police offi cer – when driver saw that she would have to travel in the rear of a divisional van she withdrew consent – driver later charged with refusing to comply with the requirement to accompany the police offi cer – fi nding by Magistrate that the rear of a divisional van was a form of imprisonment – fi nding that the requirement was not a valid one – charge dismissed – Magistrate in error.

HELD: Appeal allowed. Dismissal set aside.1. A requirement made under s55(1) of the Road Safety Act 1986 ('Act') to accompany a police offi cer or other authorised person to a place for the purpose of furnishing a sample of breath must be objectively reasonable at the time that it is made. DPP v Webb [1993] VicRp 82; [1993] 2 VR 403; (1992) 16 MVR 367, distinguished; Hrysikos v Mansfi eld [2002] VSCA 175; (2002) 5 VR 485; (2002) 135 A Crim R 179; (2002) 37 MVR 408, obiter comments of Eames J adopted.

2. It is neither necessary nor desirable to seek to defi ne “reasonableness” for the purposes of a requirement to accompany made under s55(1). The issue must be determined objectively in the circumstances of each case at the time the requirement is made. A relevant circumstance is the mode of accompanying that is proposed. If a requirement is unreasonable, it would not be a valid requirement and therefore refusal to comply with the requirement would not be an offence under s49(1) of the Act.

3. A requirement made under s55(1) for a person to accompany the police to a place of testing in the rear compartment of a police divisional van will not always constitute imprisonment so as to always render such a requirement invalid. Where a person tests positively to a preliminary breath test and is required by the police to accompany them to a place of testing in the rear compartment of a police divisional van, that person is informed that he or she cannot be compelled to comply with the request but that if he or she refuses to do so, he or she may be charged with an offence and may be convicted and fi ned and lose his or her licence for at least two years, and the person, with that knowledge, voluntarily enters the rear compartment of the police divisional van, there is no imprisonment and the requirement made under s55(1) is not invalid on that basis. On the other hand, if the individual enters the rear compartment of a police divisional van after being misinformed by the police that he or she can be forced against his or her will to do so, or if he or she is physically forced into the rear of the police divisional van, then that person will be imprisoned and the requirement made under s55(1) will be invalid.

4. However, the individual concerned must have the ability at all stages of the journey to communicate to the police his or her desire to leave the vehicle and the police must be willing to comply with such a request. If the position is that a person in the rear compartment of a police divisional van is not able to effectively communicate to the police offi cers in the front compartment a request that they stop the vehicle and allow the person to leave the vehicle, or if the police are not willing to comply with such a request, then the use of the police divisional van as a means of accompanying would constitute a form of imprisonment which would invalidate a requirement made under s55(1).

5. The learned Magistrate should have determined whether, on the basis of the evidence before him, including the proposed transport in the rear compartment of the police divisional van, the requirement that was made under s55(1) was reasonable. A relevant consideration was whether the police offi cers informed the driver that she could not be forced to enter the rear compartment of the police divisional van against her will and of the consequences of not accompanying the police, and the reasons given by the driver for declining to enter the rear compartment of the police divisional van. Another relevant consideration was whether the police divisional van in question provided an effective means by which a person in the rear compartment could

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PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAat any time request the police offi cers in the front compartment to stop the vehicle to allow the person to leave the vehicle. It follows that the learned Magistrate erred in law in dismissing the charge under s49(1)(e).

Kyrou J:"2. The learned Magistrate dismissed the charge on the ground that the police offi cers required Ms Mastwyk to accompany them to the police station in the rear compartment of a police divisional van, that this constituted a form of imprisonment, that the police did not have the power to imprison Ms Mastwyk under s55(1) of the RS Act and that therefore the requirement to accompany them was not a valid requirement under s55(1). 3. For the reasons set out in this judgment, I have concluded that the learned Magistrate erred in law and that the appeal should be allowed.

41. Although the comments about reasonableness made by Eames JA in Hrysikos were made in obiter, I am persuaded that I should adopt them in this case. Accordingly, I fi nd that a requirement made under s55(1) to accompany a police offi cer or other authorised person to a place for the purpose of furnishing a sample of breath must be objectively reasonable at the time that it is made. I am fortifi ed in this conclusion by the reliance placed by Nettle J (as his Honour then was) on the comments of Eames JA in relation to reasonableness in concluding that “it cannot be supposed that Parliament intended to empower police offi cers arbitrarily and capriciously to impose a requirement to undergo a blood test” under s55(9A) of the RS Act in DPP v Skinner [2004] VSC 32, [14]; (2004) 40 MVR 427.In my opinion, the same principle is applicable to implying that a requirement to accompany made under s55(1) must be reasonable. For the reasons given by Nettle J in Skinner, relating to the lack of consistency in the drafting styles and practices employed in amending the RS Act from time to time and the law’s jealousy of attempts to detract from the rights of the individual, the fact that s55(9) does not apply to a requirement to accompany made under s55(1) does not dissuade me from holding that such a requirement must be reasonable. Although there are differences between ss53 and 55(1), neither section authorises the arrest of a person who refuses to comply with a requirement made under that section and therefore the underlying considerations which persuaded Ormiston J in Webb to imply a requirement of reasonableness in s53 also apply to s55(1). The approach I have adopted is not inconsistent with the purposes of Part 5 of the RS Act.

46. Where the form of accompanying proposed is the rear compartment of a police divisional van, that is a relevant consideration in determining whether a requirement made under s55(1) is reasonable. This is particularly so if, in the circumstances of the case, the rear compartment of a police divisional van constitutes imprisonment.

55. In my opinion, a person in Ms Mastwyk’s position has a choice, albeit an unpalatable one given that the alternative to complying with a requirement made under s55(1) is the probable commission of an offence resulting in a fi ne and loss of driver licence. Ms Mastwyk could not have been compelled to enter the rear compartment of the police divisional van. While being conveyed in the rear compartment of a police divisional van involves a partial deprivation of liberty, the travel is for the limited purpose of being conveyed from one place to another for the purpose of a breath analysis test.

65. The learned Magistrate should have determined whether, on the basis of the evidence before him, including the proposed transport in the rear compartment of the police divisional van, the requirement that was made under s55(1) was reasonable. A relevant consideration was whether the police offi cers informed Ms Mastwyk that she could not be forced to enter the rear compartment of the police divisional van against her will and of the consequences of not accompanying the police, and the reasons given by Ms Mastwyk for declining to enter the rear compartment of the police divisional van. Another relevant consideration was whether the police divisional van in question provided an effective means by which a person in the rear compartment could at any time request the police offi cers in the front compartment to stop the vehicle to allow the person to leave the vehicle.

66. It follows that the learned Magistrate erred in law in dismissing the charge under s49(1)(e). I answer the second and third questions of law upon which the appeal is brought “Yes”. In relation to the fi rst question, in my opinion, the learned Magistrate erred in purporting to make a fi nding of fact without fi rst considering what constitutes imprisonment as a matter of law. ..."

Per Kyrou J in DPP v Mastwyk [2008] VSC 192; (2008) 185 A Crim R 285; MC 31/2008, 13 June 2008.

On appeal:

267. Breath test and blood alcohol – blood alcohol content exceeding 0.05% – Driver underwent a PBT which indicated that driver's breath contained alcohol – driver then required to accompany police offi cer to police station for a full breath test – driver agreed to accompany police offi cer – when driver

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DRINK/DRIVING in VICTORIAsaw that she would have to travel in the rear of a divisional van she withdrew consent – driver later charged with refusing to comply with the requirement to accompany the police offi cer – fi nding by Magistrate that the rear of a divisional van was a form of imprisonment – fi nding that the requirement was not a valid one – charge dismissed – whether Magistrate in error – whether matter should be remitted to the Magistrate for rehearing.

M. was charged with havin g refused to comply with the informant’s requ irement made under s55 of the Road Safety Act 1986 (Vic) (‘Act’) that she accompany him to a nearby police station for the purpose of providing a sample of her breath for analysis, contrary to s49(1)(e) of the Act. The mode by which she was required to do so was by travelling in the rear compartment of a divisional van. The Magistrate at fi rst instance concluded that it was beyond the power of the informant to require the appellant to travel in the rear of the divisional van as it constituted a form of imprisonment and dismissed the charge. On appeal and allowing the Director’s appeal (MC 31/2008; [2008] VSC 192), Kyrou J found that such a requirement would not constitute imprisonment if the person travelled to the police station by that means voluntarily. His Honour further held that the Magistrate should have determined whether, on the basis of all of the evidence before him, including the means of transport proposed, the requirement that was made under s55(1) was reasonable. His Honour ordered that the Magistrate’s decision be set aside and that the charge be reheard according to law. Upon appeal—

HELD: Appeal dismissed. The Court: 1. The power conferred by s55(1) of the Act to require a driver to accompany a police offi cer, does not authorise the arrest or detention of a driver.

Nettle and Redlich JJA, Maxwell P dissenting:2. Where a driver does not comply with a requirement to accompany the police offi cer because the proposed manner of compliance with the request is objectively unreasonable, the prosecution will fail to establish the element of ‘refusal’ by the driver. DPP v Webb [1993] VicRp 82; [1993] 2 VR 403; (1992) 16 MVR 367; MC 40/1992, and Hrysikos v Mansfi eld [2002] VSCA 175; (2002) 5 VR 485; (2002) 135 A Crim R 179; (2002) 37 MVR 408; MC 32/2002, followed. Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223; [1947] 2 All ER 680; (1947) 63 TLR 623; (1947) 177 LT 641; (1947) 112 JP 55; [1948] LJR 190; (1947) 45 LGR 635, considered.

Nettle JA: 3. Where a driver is otherwise willing to comply with a requirement that he or she accompany a police offi cer to a designated place to undergo a breath test, but the police offi cer directs the driver to accompany the police offi cer to that place by means of travel which is objectively unreasonable, a refusal by the driver so to travel is not without more a contravention of s55(1) of the Act. It is implicit in Ormiston JA’s reasoning in DPP v Webb [1993] 2 VR 403 that a requirement to rem ain in an unreasonably confi ned space is beyond the power conferred on a police offi cer by s55(1). Put another way, the power under s55(1) to require a driver to stay at a place does not extend to requiring a driver to stay in a space which is so confi ned as to be unreasonable. DPP v Webb [1993] VicRp 82; [1993] 2 VR 403; (1992) 16 MVR 367; MC 40/1992; and Hrysikos v Mansfi eld [2002] VSCA 175; (2002) 5 VR 485; (2002) 135 A Crim R 179; (2002) 37 MVR 408; MC 32/2002, followed.

4. Fundamentally, a statutory restriction on the liberty of the subject is to be strictly construed. In the absence of a clear indication to the contrary, it should be taken as going no further than necessary to achieve the object in view. Here, to adopt and adapt Ormiston JA’s reasoning in Hrysikos, the object in view is that the driver accompany the police offi cer to the designated place for testing. It is capable of being achieved by a requirement to accompany a police offi cer to a designated place by means of travel which is not objectively unreasonable.

5. Consequently, if an accused defends a prosecution under s49(1)(e) of the Act on the basis that the means of travel by which he or she was directed to accompany the police offi cer in question were unreasonable, the prosecution under s49(1)(e) will fail unless the Crown establishes that the stipulated means of travel were objectively reasonable.

Maxwell P (dissenting):"8. Whether it is sought to attach the concept of reasonableness to the making of the requirement or to the driver’s refusal to comply, the point of principle is the same. The question to be investigated is whether it is correct to imply the concept of reasonableness into s55(1), so as to qualify the power which the subsection confers.

9. In my view, for reasons which follow, there is no legal basis for treating the power conferred on a police offi cer by s55(1) as subject to an implied requirement of reasonableness. There is nothing in

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PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAthe provision itself, or in the legislative scheme of which it is a part, which could justify the Court reading in – as a matter of necessary implication – a test of reasonableness which Parliament itself did not impose.

22. As Lord Mersey said a century ago, it is ‘a strong thing’ to read into an Act of Parliament words which are not there, ‘and in the absence of clear necessity it is a wrong thing to do.’ With great respect to my colleagues, I can see not hing in the language of s55(1), or in the statutory scheme of which it forms part, which necessitates reading into s55(1) (or s49(1)(e)) a qualifying requirement of reasonableness. In my view, the corollary of Parliament’s intention that statutory powers be exercised reasonably is the availability of the unreasonableness ground of review at common law.

32. For the reasons I have given, I consider that it is not correct as a matter of law to read s55(1) as subject to an implied requirement that the exercise of power must be objectively reasonable at the time it is made. In my view, no question of the reasonableness of the exercise of power will arise – either on a collateral challenge of the kind mounted by Ms Mastwyk or directly on judicial review – unless the ground of Wednesbury unreasonableness is invoked. The same applies to every provision of the RSA which confers power on an authorised person to require another person to do, or refrain from doing, a particular thing.

35. Since I would affi rm the orders of Kyrou J, though on different grounds, the appeal must be dismissed."

Nettle JA:"38. Accordingly, I would limit the basis for decision in this case to saying that, where a driver is otherwise willing to comply with a requirement that he or she accompany a police offi cer to a designated place to undergo a breath test, but the police offi cer directs the driver to accompany the police offi cer to that place by means of travel which are objectively unreasonable, a refusal by the driver so to travel is not without more a contravention of s55(1).

46. Consequently, I consider that, if an accused defends a prosecution under s49(1)(e) of the Act on the basis that the means of travel by which he or she was directed to accompany the police offi cer in question were unreasonable, the prosecution under s49(1)(e) will fail unless the Crown establishes that the stipulated means of travel were objectively reasonable.

Police resources51. Finally, a fair amount was made in the course of argument of the diffi c ulty which police would face if they had to provide reasonable means of transport in all cases of requiring a driver to accompany them to a designated place for testing. In my view that is not persuasive. Practical diffi culties of the kind to which reference were made are the product of executive budgetary decisions. Absent an express or otherwise clear statutory indication that they were regarded by Parliament as informing the scope of a power, they are irrelevant to the amplitude of the power. The solution is to furnish the police with the resources required to carry out their duties in the manner that Parliament intended or to have Parliament amend the legislation to make clear that it intends to authorise requirements which are unreasonable.

Conclusion52. I would dismiss the appeal."

Redlich JA:"54. Like Nettle JA I have concluded that, where a driver does not comply with a requirement to accompany the police offi cer because the proposed manner of compliance with the request is objectively unreasonable, the prosecution will fail to establish the element of ‘refusal’ by the driver.

66. It is accepted by all parties to this appeal, albeit for different reasons, that refusal of a plainly unreasonable requi rement under s55(1) would not constitute an offence under s49(1)(e). I agree with the President and Nettle JA that Parliament would not have intended that a refusal of a plainly unreasonable request should be proscribed conduct for the purposes of the section. But the President has concluded that the right to undertake a collateral attack on the exercise of the power by establishing ‘Wednesbury’ unreasonableness provides a suffi cient ‘safeguard’ to ensure that refusal of an unreasonable request will not be the subject of a successful prosecution under the section. Because such an administrative law remedy already exists, it is therefore unnecessary, in his view, to read into the elements of the offence, any implication of objective unreasonableness.

75. I consider that the section should be construed so that the requirement must be one that is objectively reasonable in the circumstances. My conclusion rests upon the premise that Parliament would not have intended that the refusal of an objectively unreasonable requirement would constitute an offence. It is an implication that is derived from the accepted presumption of statutory interpretation

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DRINK/DRIVING in VICTORIAthat Parliament will not, without clear words to the contrary, be taken to have intended a restriction on individual liberty that goes beyond what is necessary to meet the purposes of the section and the Act. The elements of the offence should, therefore, be read to refl ect the intention. Accordingly, where a driver does not comply with a requirement to accompany the police offi cer because the proposed manner of compliance is objectively unreasonable, the prosecution will fail to establish the element of ‘refusal’ by the driver.

81. As already stated, s55(1) does not confer a power of arrest. It empowers an offi cer to make, but not to enforce a requirement to accompany. The legislation contemplates that the requirement will present the driver with the choice of compliance or refusal. The penalty for refusal is the offence under s49(1)(e). It is central to the operation of the provision that where the driver willingly complies with the requirement to accompany the offi cer, his consent to do so is not vitiated by being informed that a refusal will constitute an offence. Plainly a requirement that forces a person to comply (physically or otherwise) would be unreasonable, because it would not offer the driver even a notional choice as to whether to offer consent. The choice which must be presented to the driver, is between compliance and committing an offence under s49(1)(e). It is the choice embodied in the Act.

82. Leaving consent obtained by fraudulent means aside, unlawful restraint can occur only where the driver has not consented to travel by the means proposed. Consequently where the driver is properly informed as to their choice and is prepared to accompany the offi cer by the means proposed, the driver will not by entering the rear of the divisional van be imprisoned. Hence an inquiry as to whether the proposed course would constitute imprisonment misconceives the issue. The true question is whether it is, in all the circumstances, objectively unreasonable to require the driver to travel by that means. If it is, the prosecution will fail to establish that the driver refused to accompany the offi cer. It is to the resolution of that question that the Magistrate’s attention should be directed.

83. The appeal should be dismissed."Per the Court of Appeal in DPP v Mastwyk [2010] VSCA 111; [2010] 27 VR 92; (2010) 200 A Crim R 563; MC 26/2010, 11 May 2010.

268. Summons for production of documents relating to the service and maintenance of a breath analysing instrument – test for determining whether there is a legitimate forensic purpose – fi nding that it was not within the range of probability that the documents would assist defendant in his defence – whether Magistrate in error – driver not given certifi cate of the reading of the breath analysing instrument – driver not informed of the right to a blood test – whether such failure justifi ed rejection of the certifi cate – fi nding of charge under s49(1)(f) proved – Magistrate in error.

HELD:1. Proof of compliance with s55(4) of the Road Safety Act 1986 ('Act') is not a pre-condition for a conviction under s49(1)(f) of the Act and non-compliance does not render the certifi cate inadmissible in respect of a charge under that section. Accordingly, it was open to a magistrate to convict a defendant of a charge under s49(1)(f) notwithstanding that the defendant was not given a certifi cate of the reading of the breath analysing instrument as required by s55(4) of the Act. Furze v Nixon [2000] VSCA 149; (2000) 2 VR 503; (2000) 113 A Crim R 556; (2000) 32 MVR 547, applied.

2. The test for determining whether evidence sought on summons by a defendant has a legitimate forensic purpose, is whether there is a reasonable possibility that the evidence would materially assist the defence. The test of “within the range of probability” does not correctly state the law. The authorities also establish that while a fi shing expedition is insuffi cient, the test of “reasonable possibility” must be applied fl exibly and with common sense in order to give the accused a fair opportunity to test the Crown’s case and take advantage of any defences available to the accused. Where the accused wishes to rely on a statutory defence, the absence of evidence from which an inference can be drawn that the documents sought will satisfy the requirements of the defence does not necessarily mean that the reasonable possibility test is not met. This is particularly so where there is only one statutory defence available to the accused and that defence involves technical information exclusively in the possession of the Crown. Insistence by the court that the accused present evidence which provides a basis for a positive inference that the documents sought will satisfy the requirements of the defence may effectively “eviscerate” the defence. Fitzgerald v Magistrates’ Court of Victoria [2001] VSC 348; (2001) 34 MVR 448; MC 26/2001; and Glare v Bolster [1993] VicSC 18; (1993) 18 MVR 53, distinguished.

3. In this case, the “reasonable possibility” test for determining whether access to the records surrounding the test on the defendant and the service and maintenance records for the instrument used on the defendant would materially assist the defendant in defending the charge under s49(1)(f) of the Act had to be applied having regard to the fact that s49(4) of the Act provides the only statutory defence that is available to a motorist in the defendant's position. A defendant's ability to have access to such documents is

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PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAof fundamental importance in being able to establish a defence under s49(4). The summons did not involve a fi shing expedition. The possibility that the documents would materially assist in establishing the defence was not merely hypothetical. The magistrate should have inspected the documents. The magistrate was in error in fi nding that the documents were not required to be provided to the defendant.

Kyrou J:"2. There are two issues in the appeal proceeding. The fi rst is whether the Magistrate erred in law in fi nding that certain documents relating to the service and maintenance of the breath analysing instrument used to analyse Mr Johnson’s breath were not required to be provided to Mr Johnson pursuant to a summons because Mr Johnson had not demonstrated a legitimate forensic purpose. The second is whether the Magistrate erred in law in convicting Mr Johnson under s49(1)(f) of the RSA notwithstanding that he was not satisfi ed that Mr Johnson had been provided with a certifi cate containing the results of the breath analysing instrument, as required by s55(4) of the RSA. The second issue involves consideration of whether the Magistrate failed to properly exercise his discretion to reject the certifi cate in order to ensure the trial was not unfair.

3. For the reasons set out in this judgment, I have concluded that the Magistrate erred in law in relation to the fi rst but not the second issue, that the appeal should be allowed, that the conviction should be set aside and that the charge under s49(1)(f) of the RSA should be remitted to the Magistrates' Court at Frankston to be reheard and determined by another Magistrate according to law.

26. The facts of this case, however, are very different from DPP v Moore [2003] VSCA 90; [2003] 6 VR 430; (2003) 39 MVR 323. Neither Mr Johnson nor any police offi cer mentioned a blood test. There was no improper conduct by the police which dissuaded Mr Johnson from seeking a blood test. I reject Mr Billings’ submission that failure to inform Mr Johnson of the right under s55(10), even if deliberate, is tantamount to dissuading him from exercising that right. While s49(10) of the RSA gave Mr Johnson a right to request a blood test, the RSA does not impose an obligation on the police to inform him of that right. The failure to inform Mr Johnson of his right under s55(10), without more, cannot enliven the unfairness discretion to exclude the breath analysis certifi cate. In light of Furze, the giving of a certifi cate to Mr Johnson was not a precondition to establishing the offence under s49(1)(f) and it is therefore diffi cult to see how an inadvertent failure to give a certifi cate, without more, can enliven the unfairness discretion to exclude the certifi cate. Do the two failures, in combination, enliven the discretion? In my opinion, they do not because they are not causally linked. The certifi cate does not refer to the right under s55(10) and therefore Mr Johnson’s lack of awareness of that right was not affected by his not having been given a certifi cate.

29. Accordingly, I fi nd that the Magistrate did not err in law in admitting the certifi cate into evidence notwithstanding the non-compliance with s55(4) of the RSA and in relying on the certifi cate in deciding whether to fi nd Mr Johnson guilty of an offence under s49(1)(f) of the RSA.

42. In my view, the authorities discussed above establish that in Victoria, the test for determining whether evidence sought on summons by a defendant has a legitimate forensic purpose, is whether there is a reasonable possibility that the evidence would materially assist the defence. The test of “within the range of probability” set out in Fitzgerald does not correctly state the law. The authorities also establish that while a fi shing expedition is insuffi cient, the test of “reasonable possibility” must be applied fl exibly (and, I would add, with common sense) in order to give the accused a fair opportunity to test the Crown’s case and take advantage of any defences available to the accused. Where the accused wishes to rely on a statutory defence, the absence of evidence from which an inference can be drawn that the documents sought will satisfy the requirements of the defence does not necessarily mean that the reasonable possibility test is not met. This is particularly so where there is only one statutory defence available to the accused and that defence involves technical information exclusively in the possession of the Crown; insistence by the court that the accused present evidence which provides a basis for a positive inference that the documents sought will satisfy the requirements of the defence may effectively “eviscerate” the defence.

46. It follows that the Magistrate applied the wrong test in ruling that Mr Johnson had not demonstrated a legitimate forensic purpose for seeking access to schedule items 7 and 8(b).

50. On the basis of the above matters, had the Magistrate applied the correct test, it would have been open to him to fi nd that the summons did not involve a fi shing expedition. This was not a case where the summons sought documents which may or may not exist on the speculative basis that they might contain something which might be of some assistance to the defence in some unspecifi ed way. It would have been open to the Magistrate to fi nd that the possibility that schedule items 7 and 8(b) would materially assist in establishing the defence in s49(4) of the RSA was not merely hypothetical.

54. It is also not clear why the Magistrate was not requested to inspect the schedule items. As they were in court and readily available for inspection by him, he should have done so before ruling on the

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DRINK/DRIVING in VICTORIAprosecutor’s objections. Such inspection is encouraged by the authorities as it enables an informed decision to be made and has the potential to save time and costs.

58. ... In the circumstances of this case, I cannot be satisfi ed that, if the Magistrate had applied the correct test, he would have reached the same conclusion in relation to schedule items 7 and 8(b). If the Magistrate had decided that Mr Johnson be given access to those items, it is possible that their contents may have established the defence under s49(4) of the RSA. If the defence had been established, Mr Johnson would not have been convicted. It is thus not possible for me to say that the denial of access to schedule items 7 and 8(b) did not deprive Mr Johnson of an opportunity of acquittal.

Proposed orders59. I have concluded that the appropriate course is to allow the appeal, set aside the conviction and remit the charge under s49(1)(f) of the RSA to the Magistrates’ Court at Frankston to be reheard and determined by another Magistrate according to law. 60. I will hear from the parties on the precise form of the orders to be made and on the question of costs."

Per Kyrou J in Johnson v Poppeliers [2008] VSC 461; (2008) 20 VR 92; (2008) 190 A Crim R 23; (2008) 51 MVR 444; MC 50/2008, 7 November 2008.

269. Reading of 0.091% BAC – charges laid under s49(1)(b) and (f) of Road Safety Act 1986 – both charges found proven – at the sentencing stage charge under s49(1)(f) dismissed by Magistrate – whether Magistrate in error – reading read down by Magistrate to 0.067% BAC – no order made against offender's driver licence – Magistrate in error.

J. was charged with driving a motor vehicle with more than the prescribed concentration of alcohol in his breath under s49(1)(f) of the Road Safety Act 1986 ('Act') and with an offence under s49(1)(b) of the Act. J's reading was 0.091% BAC. At the hearing the magistrate found both charges proved but dismissed the charge under s49(1)(f), read down the reading to 0.067% BAC and decided not to make an order against J's driver licence. Upon appeal—

HELD: Appeal allowed.1. It is well established that a s49(1)(b) offence and a s49(1)(f) offence are different in nature and that a driver may be charged with either or both offences. It has been the practice in Victoria to allege both offences and to try them together but in the event of a fi nding of guilt to seek a penalty on one offence only even though they are discretely different offences involving proof of different ingredients. There is nothing inappropriate in principle in the laying of charges and the undertaking of a prosecution in respect of both offences: they contain different elements, notwithstanding that they may be based on the same facts.

2. The doctrine against double punishment cannot be used to justify a choice by a sentencing court to dismiss the most serious charge of a group of two or more duly lain, duly prosecuted and duly proven charges where a mandatory penalty is prescribed for the most serious charge. To do so would not be an appropriate means of avoiding double jeopardy or double punishment. Rather, it would inappropriately shield the offender from the penalty prescribed by law for the single most serious offence committed.

3. In the present case, the charge under s49(1)(f) should be regarded as the more serious of the two charges. Upon being found proved, it carried with it a fi nding that the concentration of alcohol in J's breath at the time relevant for that offence – the time of the test – was 0.091%. By contrast, assuming for the moment that it was legitimate in the circumstances for the Magistrate to “read down” the result of analysis for the purpose of the charge under s49(1)(b), the concentration of alcohol as found in relation to the time relevant for that charge – the time of driving – was 0.067%. In those circumstances, the Act treats the s49(1)(f) charge as the more serious, in two respects. First, speaking generally, the Act is framed on the basis that higher readings involve higher levels of criminality. Higher readings tend to authorise or require higher penalties, both in relation to the level of fi nes and the minimum periods of disqualifi cation from driving. The difference in the readings would probably have been a relevant discretionary consideration in sentencing. Secondly, and more signifi cantly for this case, so far as relevant, s50(1AB) of the Act only applies (as an exception from the requirement under s50(1A) to cancel the offender’s licence and disqualify the offender from driving) where it appears to the Court that at the relevant time the concentration of alcohol in the breath of the offender was less than 0.07%. However, s50(1AB) would not have been available to the Magistrate in this case in relation to the offence under s49(1)(f), because the relevant reading was 0.091%.

4. The Victorian practice of alleging both offences under s49(1)(b) and (f) of the Act and trying them together, in itself, does not amount to an abuse of process. Further, the prosecutor by offering to withdraw the charge under s49(1)(b) or to have it struck out or dismissed was not engaging in an abuse of process.

5. As J. was found guilty of an offence under s49(1)(f) with a reading of 0.091%, the Act imposed a mandatory minimum penalty for such an offence, namely cancellation of J.s driver’s licence and disqualifi cation

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PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAfrom obtaining a further licence for a period of 6 months. Given that, by virtue of s50(1AB), the Magistrate was not obliged to convict J. of the offence under s49(1)(b) or otherwise to impose any punishment on him for it, the mere fact that the Magistrate had found him guilty of that other offence could not, whether by virtue of the doctrine of double punishment or otherwise, enable the Magistrate to avoid the imposition of the mandatory minimum penalty for the offence under s49(1)(f). Accordingly, the magistrate had no power to dismiss the charge under s49(1)(f) in order to avoid sentencing J. for that charge.

6. In relation to J.s submission that the breath analysing instrument was not in proper working order at the relevant time, the magistrate's fi ndings were open on the evidence.

Cavanough J:"3. Mr Johnstone was subsequently found guilty of both offences in the Magistrates’ Court. However, over opposition from the prosecution, the Magistrate dismissed the charge under s49(1)(f) and proceeded to deal with Mr Johnstone by reference to the charge under s49(1)(b) only. On the basis of expert evidence she “read back” the result of analysis to 0.067% as at the time of driving. She then exercised in Mr Johnstone’s favour the discretion which is conferred by s50(1AB) of the Act not to interfere with an offender’s licence where (so far as relevant) it appears to the court that “at the relevant time” the concentration of alcohol in the breath of the offender was less than 0.07%. No such discretion would have been available to the Magistrate had she sentenced Mr Johnstone by reference to the charge under s49(1)(f), because the “relevant time” for that offence is the time of the test. 4. The principal question in this case is whether the Magistrate truly had the power to dismiss the charge under s49(1)(f) in order to avoid sentencing Mr Johnstone by reference to that charge. For reasons I will explain, I consider that she did not, and that the appeal by the Director of Public Prosecutions (on behalf of Senior Constable Matheson) must be allowed accordingly.

5. Mr Johnstone has cross-appealed on the ground that, on the evidence, it was not open to the Magistrate to have found him guilty of either offence. However, in my view, as I will explain in due course, the fi ndings of guilty were quite open to the Magistrate and Mr Johnstone’s cross-appeal must therefore fail.

6. It is well established that a s49(1)(b) offence and a s49(1)(f) offence are different in nature and that a driver may be charged with either or both offences. It has been the practice in Victoria to allege both offences and to try them together but in the event of a fi nding of guilt to seek a penalty on one offence only even though they are discretely different offences involving proof of different ingredients. There is nothing inappropriate in principle in the laying of charges and the undertaking of a prosecution in respect of both offences: they contain different elements, notwithstanding that they may be based on the same facts.

25. So far as presently relevant, the sole issue before the Magistrate was whether Mr Johnstone had made out the defence under s49(4). He did not suggest to the Magistrate that the instrument had not been properly operated. His case was that the instrument was not in proper working order.

26. Mr Johnstone invited the Magistrate to infer that the instrument was not in proper working order from a comparison between, on the one hand, printouts from the instrument itself purporting to show that the authorised operator took 10 minutes to administer the test in Mr Johnstone’s case, and, on the other, the oral evidence of the authorised operator tending to show that he took only 3 minutes or so to administer the test.

28. In any event, Mr Johnstone had the burden of proof on this point below. He has certainly not discharged the diffi cult task of showing before this Court, as he needed to do, that the evidence below was such that the Magistrate was, as a matter of law, obliged to fi nd that he had satisfi ed the burden of proof.

29. ... However, in passing, I note that there was no clear or direct evidence that a fault in the time recording function of the instrument would tend to indicate that the result of the analysis was, or even might be, unreliable.

Per Cavanough J in Johnstone v Matheson [2008] VSC 567; (2008) 21 VR 570; (2008) 52 MVR 1; MC 59/2008, 18 December 2008.

270. Refuse breath test – refuse to provide blood sample – refuse to remain at police station for purpose of blood sample – requirements – no necessity for approved instrument – driver understood nature of requirement to allow a medical practitioner to take a blood sample – driver not told that a 3-hour time limit applied – charge found proved – whether Magistrate in error – statutory construction – distinction between substantive/procedural law – fi ling of charges by police out of time – whether a substantive or procedural question – Magistrate refused to strike out charges – whether Magistrate

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DRINK/DRIVING in VICTORIAin error – charges went to contest mention – requirement for pre-hearing disclosure – statements of police witnesses not pivotal to the hearing not disclosed to defendant prior to hearing – application by defendant for an adjournment – application refused by Magistrate – whether Magistrate in error.

N. a police offi cer, intercepted U. whilst driving his motor vehicle. After undergoing a preliminary breath test, U. was conveyed to the police station to undergo a breathalyser test. At the station U. was either unable or deliberately refused to provide a breath sample for analysis by the breath analysing instrument. He was then asked by N. to remain at the police station to await the arrival of a medical practitioner to take a blood sample. U. refused and left the police station.

Subsequently U. was charged with offences under the Road Safety Act 1986 ('Act') namely, refusing to undergo a breath test (s49(1)(e)), refusing to allow a blood sample to be taken (s49(1)(e)) and refusing a remain at the police station for the purpose of a blood test (s49(1)(e)). The charges were signed by N. on 23 May and fi led with the Magistrates' Court on 5 June, that is, outside the seven-day period allowed by s30(2)(a) of the Magistrates' Court Act 1989 ('MCA'). The charges were before the Mention Court on three occasions and a trial fi xed for hearing. At the hearing, U. applied for an adjournment because statements of two of the police witnesses had not been served on U. The Magistrate refused this application and after hearing evidence found the charges proved. Upon appeal—

HELD: Appeal dismissed in respect of two charges. Appeal upheld in respect of one charge.1. The question whether the Magistrate should have struck out the charges on the ground that they were fi led outside the period allowed required a consideration of whether the provisions of the MCA as to fi ling of charges are procedural or substantive.

2. The distinction between statutory provisions which are characterised as either substantive or procedural commonly arises in two contexts. One is for the purpose of confl ict of laws considerations in determining the application of “foreign” law by characterising such law or laws as substantive (in which case the “foreign” law is to be applied by the forum court) or procedural (in which case the law of the forum applies). The other purpose of the distinction (and the necessary characterisation of the provision) is in determining the retrospective effect of a piece of legislation upon a particular set of facts or events occurring prior to the enactment of the legislation. The primary rule is that absent clear intention to the contrary a statute is prima facie to be construed as not attaching new legal consequences to facts or events which occurred before its commencement.

3. The starting point is to examine the words of the MCA and the context in which they appear. Whilst it is not conclusive, the section falls within a part of the MCA described as “procedure”. Section 30(3) imposes an obligation upon the Court to strike out the charge if not fi led within the seven days of the issue. The fi ling within seven days forms part of an administrative scheme that has been established under the MCA empowering the “on the spot” issue of summonses by police amongst other prescribed persons. 4. There is nothing in the scheme of the MCA which indicates that the legislature intended to provide a substantive right to a person charged with an offence in which the s30 process was utilized. Its purpose is to provide a procedure or process for a different method of fi ling a summons. The purpose of the seven day time limit between issue and fi ling and the necessity for striking out the charge was to ensure that once charges were laid then the documentation needed to be fi led promptly in the relevant Magistrates’ Court Registry, as the new procedure required the police offi cer (or other prescribed person) to choose the venue and the date of hearing. In those circumstances it is understandable that for court management purposes the registry of the relevant Magistrates’ Court should be armed with the charge and summons at an early date and time. The entitlement given to a defendant under s30(3) also points to the provision being procedural rather than substantive. It does not spring up once the seven days has expired. The section speaks of an obligation upon a court once evidence substantiates the failure to comply with s30(2). Section 30(3) does no more than provide a mandatory stipulation in respect of the fi ling of process. It is directed to an administrative task of the fi ling of the summons and it regulates the mode of the proceeding. It did not give U. a substantive right; at best it gave him a procedural entitlement to raise the issue before the Magistrate and to seek that the matter be struck out. Accordingly, the Magistrate was not in error in rejecting the argument advanced by U.

5. In relation to the question of whether the Magistrate should have adjourned the proceeding, no identifi able prejudice was demonstrated. The key witness was N. and U. had a copy of her statement. The corroborator simply confi rmed N's evidence. Two other police offi cers were not pivotal to the proceeding. The Magistrate was correct in dismissing the application and in categorising the application for documents as a fi shing expedition.

6. In relation to the issue whether it was necessary for the prosecution to prove that the breathalyser was an approved instrument, case law has decided that it is not necessary. Further, having regard to the amendment of the Act in 2004, it appears that Parliament was intending to remove the need to establish as an element of an offence under s49(1)(e) of the Act proof of the presence of an approved instrument. Lisiecki v Grigg (1990) 10 MVR 336; MC 02/1990; and MacDonald v The County Court of Victoria [2004] VSC 202; (2004) 41 MVR 183, followed.

275

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIA7. In relation to the requests made by N. for U. to allow a medical practitioner to take a blood sample, N. told U. that she required U. to allow a medical practitioner to take a sample of blood for analysis and when U. was asked to remain for that purpose, he said 'No'. In those circumstances the question was whether the requirement was made suffi ciently clear to U., in conformity with the law, so that U. would know what was being required of him and why. 8. When one looks at the whole of the evidence and the context in which the initial statement was made by N. it is clear beyond argument that U. must have understood that he was being required to provide a blood sample. The provision of a blood sample was the next logical step well known to most members of the community. Th e words uttered by N., in the light of the aborted breath test, must have alerted U. to that fact that the next step was for the police to seek a blood sample, and further that this was the requirement being made of him. Common sense would have told him this as well. His initial answer was given on the basis that he understood that there was a requirement that he provide a blood sample and accordingly, he knew that he was required to take a blood sample and he refused.

9. In relation to the requirement that he remain at the police station, U. was told that he was required to remain for his blood to be taken and if he refused he would be charged. U. was not told that he was required to remain at the police station for three hours after the driving. It was incumbent upon the prosecution to prove at least in a basic sense that the terms of the requirement were communicated to U. Critical to this is that three hours “after the driving” was the maximum period for which he could be detained. N's requirement was not “near enough” to be anywhere approximating “good enough”. This is particularly so when one takes into account the context. The request was made at approximately 1.15 am at the Frankston Police Station. When the medical practitioner might arrive, if at all, was “open-ended” to use the Magistrate’s words, whereas the section was not. U. was entitled to know what was required of him. What he was not told was the most basic proposition required by the section, namely that he did not have to stay at the station once the three-hour period after the subject driving had expired. To establish the offence, it was necessary to prove the requirement. The refusal can only become relevant provided that the requirement has been properly stated, at least so that t he driver knows his or her basic obligations. This was not done and therefore an essential element of the offence was not made out. Rankin v O'Brien [1986] VicRp 7; [1986] VR 67; (1985) 2 MVR 503, applied.

J Forrest J:"7. The charges relevant to this appeal laid against Mr Uren can be summarised as follows:

(a) Refusing to undergo a breath test contrary to s49(1)(e) of the Road Safety Act (“RSA”) – Charge two. (b) Refusing to allow a blood sample to be taken contrary to s49(1)(e) of the RSA – Charge one. (c) Refusing to remain at the Frankston Police Station for the purpose of a blood test contrary to s49(1)(e) of the RSA – Charge four.

36. The Magistrate rejected the application made on behalf of Mr Uren on two bases. First, his Honour held that it did not create a substantive right but rather cast a positive obligation upon the Court and second, that in any event any entitlement under the section was procedural rather than substantive.

56. I think that s30(3) did no more than provide a mandatory stipulation in respect of the fi ling of process. It is directed to an administrative task – the fi ling of the summons. It, to use Mason CJ’s words in McKain v Miller [1991] HCA 56; (1991) 174 CLR 1; (1991) 104 ALR 257; 66 ALJR 186; [1991] Aust Torts Reports 81-14, regulates the mode of the proceeding. It did not give Mr Uren a substantive right; at best it gave him a procedural entitlement to raise the issue before the Magistrate and to seek that the matter be struck out. That entitlement remained on foot until the amendment and then continued, in its amended version, subsequent to 1 July 2008.

57. Mr Uren’s argument was correctly rejected by the Magistrate.

60. At the commencement of the hearing, after an application for adjournment by Mr Uren on the basis of non-compliance, the Magistrate held that there had been a number of contest mentions at which these matters had not been raised and that there was waiver in relation to any right to obtain the material. He regarded the exercise in relation to access the documentary material as “fi shing”.

62. The Magistrate was clearly correct in rejecting the application for the adjournment. The proceeding had been on foot for nearly a year and a half. There had been three contest mentions at which nothing had been said about access to st atements (if they existed) or other material. Mr Uren had been served with a “brief of evidence” which, itself, was not the subject of any complaint about non-compliance at these hearings.

67. The Magistrate was also correct in categorising the application for documents as a fi shing expedition. It is beyond me as to how the equipment register for the PBT devices could possibly be relevant to a prosecution brought i n relation to Mr Uren’s failure to provide a breath sample into a

276

DRINK/DRIVING in VICTORIAbreathalyser (not a PBT) and his refusal to comply with requests in relation to providing a sample of his blood. Similarly, the patrol running sheet in which entries were made whilst the 2 offi cers (Neale and Kaschke) were on patrol does not leap up as being relevant given that the subject offences occurred at the police station subsequent to the apprehension of Mr Uren.

69. In my view the Magistrate was clearly correct in dismissing the application for an adjournment and regarding the documentary pursuit as a fi shing exercise.

77. ... However, the question as to whether the prosecution needs to prove, in a refuse breath test prosecution under s49(1)(e), whether a breathalyser is an “approved instrument” raises a signifi cantly different question – namely, identifi cation of the elements of an offence relating to a refusal to give a sample of breath as opposed to an analysis of a sample of breath. In a s49(1)(e) case, it is the refusal of the defendant to comply with the lawful request (be it for a sample of breath or a blood test or to remain until a doctor arrives) that is the gist of the offence. This distinction was recognised by Marks J in Lisiecki v Grigg (1990) 10 MVR 336.

85. Given that two judges of this Court have specifi cally considered s49(1)(e) of the RSA in circumstances which involved determination of the necessity to prove that an approved instrument was present at the time of the request, I would need to be satisfi ed that those decisions were clearly wrong before departing from them. I am not so persuaded.

88. I therefore conclude that it was not necessary for the prosecution to establish as an element of charge one that the breathalyser was an approved instrument.

89. If I am wrong in that conclusion, I am satisfi ed, nevertheless, that there was evidence before the Magistrate that entitled him to conclude that the breathalyser present and used by Ms Neale was an approved instrument.

93. Accordingly, I conclude that there was no error of law on the part of the Magistrate in regard to the question of proof of the approved instrument on charge one.

94. The two charges under s49(1)(e) relating to the provision of a blood sample under s55(9A) do not, in my view, require proof that the breathalyser available at the station was an approved instrument within the meaning of s3 of the RSA.

102. I conclude, therefore, that there was no error of law relating to the issue of proof that the breathalyser was an approved instrument in relation to charges two and four.

116. Mr Uren was not asked by Ms Neale in terms whether he was prepared to provide a sample of blood which is the thrust of charge one. Rather, she made two statements and then posed a question. The fi rst of these statements related to the failure to provide a sample of breath, the second to allowing a medical practitioner to take a blood sample and as to remaining at the police station. After his fi rst refusal – “No do I have to” – he was again told that he was required to remain to which he replied “no”.

117. There was no issue that Ms Neale had not told Mr Uren that there were two elements to the requirement to remain at the police station stipulated by s55(9A), namely:

(a) three hours after the relevant driving; or (b) the arrival of the medical practitioner, or health professional, whichever was the sooner.

It was not suggested in argument how Mr Uren might have acquired knowledge of these obligations absent being told by Ms Neale.

124. In relation to charge one, when one looks at the whole of the evidence and the context in which the initial statement was made by Ms Neale I think it is clear, beyond argument, that Mr Uren must have understood that he was being required to provide a blood sample. He had done his best, the Magistrate appears to have concluded, to avoid giving a breath sample. The provision of a blood sample was the next logical step well known to most members of the community. Th e words uttered by Ms Neale, in the light of the aborted breath test, must have alerted Mr Uren to that fact that the next step was for the police to seek a blood sample, and further that this was the requirement being made of him. Common sense would have told him this as well. His initial answer, I readily infer, (despite the confl ated nature of Ms Neale’s requirement), was given on the basis that he understood that there was a requirement that he provide a blood sample. In my view he knew that he was required to take a blood sample and he refused.

125. ... As I have said, I think most members of the community are also aware of the further potential obligation to provide a blood sample whether at a hospital or police station. However, I doubt very

277

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAmuch whether anyone, unless highly familiar with the provisions of the RSA, is aware of the temporal requirements as to remaining at “a place” for the taking of a blood sample. No doubt the sunset provision of three hours as a maximum period was inserted to ensure that what would otherwise be an unlawful detention was limited to a reasonable time. This maximum duration of the statutory requirement was not conveyed to Mr Uren.

126. ... Mr Uren was entitled to know what was required of him. What he was not told was the most basic proposition required by the section, namely that he did not have to stay at the station once the three hour period after the subject driving had expired. He was not given reasonably suffi cient information to know what was required of him – indeed, he could have been detained interminably on the basis of Constable Neale’s requirement.

127. ... To establish the offence, it was necessary to prove the requirement.[82] The refusal can only become relevant provided that the requirement has been properly stated, at least so that t he driver knows his or her basic obligations. This was not done and therefore an essential element of the offence was not made out.

128. I have therefore concluded that the Magistrate was in error in convicting Mr Uren on charge four and that the conviction on that charge should be quashed.

Conclusion129. Mr Uren’s appeal in respect of charges one and two should be dismissed. His appeal in respect of ch arge four is upheld and his conviction is quashed."

Per J Forrest J in Uren v Neale [2009] VSC 267; (2009) 53 MVR 57; (2010) 196 A Crim R 415; MC 17/2009, 26 June 2009.

271. Discretion to exclude unlawfully obtained evidence – police entered accused’s dwelling and administered preliminary breath test – confl ict of evidence as to whether police invited in – onus and standard of proof of facts relevant to discretionary exclusion of evidence – whether “Bunning v Cross factors” appropriately taken into account – appeal against conviction allowed and matter remitted for rehearing.

H. was charged with a drink/driving offence. At the hearing of the charge, there was a dispute on the evidence as to whether the police informant was invited into H's home or not in order to conduct a preliminary breath test on H. The informant said that he was invited to "Go inside". The evidence for H. was that a witness told the informant "I'll just go and get him. I won't be a minute." The magistrate took the view that the onus was on the prosecution to prove that an invitation was issued to the informant by the witness to enter the house and that it had to be proved beyond reasonable doubt. However, the magistrate found that the evidence of the subsequent BAC was admissible and the charge proved on the basis that the public interest in a conviction outweighed any unfairness to H. Upon appeal—

HELD: Appeal allowed. Decision set aside. Remitted to the Magistrates' Court for further hearing and determination by another Magistrate.1. The Magistrate applied an erroneous test in assessing the confl ict between the evidence of the police informant and the witness. The Magistrate took the view that the onus was on the prosecution to prove that an invitation was issued to the police informant by the witness to enter the house, and to prove it beyond reasonable doubt. However that was not the appropriate test. The onus was on the defence to establish, on the balance of probabilities, the facts on which the defence relied in order to justify the exclusion of the evidence on the Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54; 19 ALR 641; 52 ALJR 561 discretionary ground.

2. Whilst there is an obligation on the Crown to satisfy the court, beyond reasonable doubt, that the elements or ingredients of the offence have been made out, the position is quite different in relation to a submission that admissible evidence should be excluded as a matter of discretion on fairness or public policy grounds.

3. In the present case, the Magistrate had to identify with clarity whether H's entry to the house was to be classifi ed as an (honest or understandable) mistake or accident, or as reckless, or as deliberate. Such an analysis or classifi cation needed to be done in this case under the Bunning v Cross principles.

Cavanough J:"2. There were really only two issues below, namely whether evidence sought to be adduced by the informant by way of a certifi cate under s55 of the Act of the result of an analysis of the appellant’s breath was obtained illegally by trespass by the police into the appellant’s home; and, if so, whether the certifi cate should be excluded in the exercise of the public policy discretion referred to in Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54; 19 ALR 641; 52 ALJR 561. The Chief Magistrate ruled in favour of the appellant on the fi rst point but against him on the second.

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DRINK/DRIVING in VICTORIA3. I am satisfi ed that both aspects of the decision below were vitiated by errors of law and that the matter should be reheard afresh.

12. In my opinion the Chief Magistrate applied an erroneous test in assessing the confl ict between the evidence of Brannaghan and that of Ms Lahogue. The Chief Magistrate took the view, accepting submissions made to him on behalf of the defence that were not contradicted by the police prosecutor, that the onus was on the prosecution to prove that an invitation was issued to Brannaghan by Ms Lahogue to enter the house, and to prove it beyond reasonable doubt. However it is now common ground or virtually common ground that that was not the appropriate test, and that in fact the onus was on the defence to establish, on the balance of probabilities, the facts on which the defence relied in order to justify the exclusion of the evidence on the Bunning v Cross discretionary ground. Mr Tehan QC sought for a time to support the Chief Magistrate’s contrary approach by reliance on Liberato v R [1985] HCA 66; (1985) 159 CLR 507; 61 ALR 623; 59 ALJR 792 but the relevant statements in that case relate to the obligation of the Crown to satisfy the court, beyond reasonable doubt, that the elements or ingredients of the offence have been made out. The position is quite different in relation to a submission that admissible evidence should be excluded as a matter of discretion on fairness or public policy grounds. I think that, in the end, Mr Tehan QC did not seriously contest that proposition.

13. ... The Chief Magistrate found an unlawful entry, and yet he did not identify in any clear way whether that entry was to be classifi ed as an (honest or understandable) mistake or accident, or as reckless, or as deliberate. Such an analysis and classifi cation, at least, needed to be done in this case under the Bunning v Cross principles. 17. So, although the analysis that I would apply is perhaps not completely in line with the submissions of either side, it seems to me that this is a case where it would be wrong to let the decision stand. The decision seems to have been arrived at from a fundamentally unsound original basis, namely the application of the beyond reasonable doubt test to the evidence in question. The application of that test was inapposite in the circumstances and it is not so surprising that it has led to the failure of the Chief Magistrate to make the fi ndings that needed to be made in relation to the Bunning v Cross principles.

19. There being no opposition to the appellant’s claim for costs, the Court will order that the orders of the Magistrates’ Court in question be set aside, that the Chief Commissioner of Police pay the appellant’s costs, and that the matter be remitted to the Magistrates’ Court (differently constituted) for re-hearing."

Per Cavanough J in Hinneberg v Brannaghan [2009] VSC 356; (2009) 53 MVR 354; MC 21/2009, 17 August 2009.

272. Blood alcohol content exceeding 0.05% – Driver required to accompany police offi cer to police station for breath test – driver agreed to travel in rear of police van – driver subsequently requested to be released – whether failure to release constituted detention – whether breath test evidence inadmissible if ‘requirement to accompany’ invalid – DPP v Foster [1999] VSCA 73; [1999] 2 VR 643; MC 1/1999 applied – Magistrate in error in dismissing charge.

F. was intercepted whilst driving his motor vehicle and required by a police offi cer to accompany the member to a place where a sample of breath could be furnished. The means of transport offered to F. to enable him to comply with the ‘requirement to accompany’ was travel in the lockable rear compartment of a police divisional van. F. voluntarily entered the rear compartment of the police van and the rear door was then closed behind him. When F. saw the police offi cers arresting his companion, F. wanted to get out of the van but the offi cers did not hear his request. F. was then taken to a police station, where he furnished a sample of breath which disclosed a reading of 0.187 grams of alcohol in 210 litres of breath. He was charged with an offence under s49(1)(f) of the Road Safety Act ('Act') on the basis that he had more than the prescribed concentration of alcohol in his breath within three hours after he had been driving a motor vehicle. At the hearing, the Magistrate dismissed the charge on the basis that a precondition for conviction had not been satisfi ed namely, that F. was held under detention for a short period. The Magistrate found that the requirement to accompany was invalid and the charge necessarily failed. Upon appeal—

HELD: Appeal allowed. Remitted to the Magistrate for further hearing.1. The conclusion arrived by the Magistrate was not reasonably open on the facts as found. The entry into the police vehicle having been voluntary, F.'s change of mind did not, by itself, convert his presence in the van into involuntary detention. There would have needed to be evidence, and an affi rmative fi nding, that the police offi cers had refused to release F. upon his request. The Magistrate evidently accepted that the offi cers did not hear his request and, in the particular circumstances of this case, it follows that there was no refusal and no detention.

2. In relation to the fi nding by the Magistrate that as the ‘requirement to accompany’ purportedly made under s55(1) was invalid (because of what was said to have been the period of involuntary detention),

279

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAthe charge under s49(1)(f) must necessarily fail, the premise of the argument was that, by analogy with the decision of DPP Reference No 2 of 2001 [2001] VSCA 114; (2001) 4 VR 55; MC 13/2001 proof of the making of a valid ‘requirement to accompany’ was a ‘necessary precondition of proof’ of the offence under s49(1)(f).

3. Proof of the offence created by s49(1)(f) of the Act does not require the prosecution to establish that the informant has imposed on the driver each of the requirements to which s55(1) refers. These requirements have not been made essential ingredients of the offence but are nothing more than the machinery by which the police offi cer is empowered to bring the driver to the breath analysing instrument so that a sample of breath can be furnished. DPP v Foster [1999] VSCA 73; [1999] 2 VR 643; (1999) 104 A Crim R 426; (1999) 29 MVR 365; MC 1/1999, applied.

4. In the present case , the question of the possible exclusion of the evidence – should it arise – would fall to be determined in accordance with the applicable provisions of the Evidence Act 2008 (Vic) (ss135-138). The determination of that q uestion would affect both the charge under s49(1)(f) and the charge under s49(1)(b) of the Act.

Maxwell P, Nettle and Redlich JJA:"2. That power was exercised in this case, as in Mastwyk [2010] VSCA 111; (2010) 27 VR 92. Here, as there, the means of transport offered to the driver, to enable him to comply with the ‘requirement to accompany’, was travel in the lockable rear compartment of a police divisional van. It would appear that Mr Foot voluntarily entered the rear compartment of the police van, and the rear door was then closed behind him. (What occurred subsequently is discussed below.)

3. He was then taken to a police station, where he furnished a sample of breath which disclosed a reading of 0.187 grams of alcohol in 210 litres of breath. Mr Foot was charged with an offence under s49(1)(f) of the RSA, on the basis that he had more than the prescribed concentration of alcohol in his breath within three hours after he had been driving a motor vehicle.

4. At the conclusion of evidence before the Magistrate, counsel for Mr Foot argued that the charge should be dismissed because ‘a precondition for conviction’ under s49(1)(f) had not been satisfi ed. The submission involved the following steps: Mr Foot had been confi ned against his will for a limited period; s55(1) of the RSA did not give police offi cers any power of arrest; accordingly, the sample of breath had not been furnished ‘under section 55’ as required by s49(1)(f) of the RSA. This submission was upheld by the Magistrate, who concluded that:

For a s h o rt period ... [Mr Foot] ... was held under detention, and to that extent, a precondition of s49(1)(f) has not been complied with and the charges should be dismissed.

6. The unanimous view of the Court in Mastwyk is that the power conferred by s55(1) (to require the driver to accompany the offi cer) does not authorise the arrest or detention of a driver. Moreover, the decision of the majority (Nettle and Redlich JJA) is that the mode of travel by which the driver is required to accompany the offi cer must be objectively reasonable. The present appeal falls to be disposed of accordingly.

9. With great respect, we do not consider that the conclusion arrived at was reasonably open on the facts as found. The entry into the police vehicle having been voluntary, Mr Foot’s change of mind did not, by itself, convert his presence in the van into involuntary detention. There would have needed to be evidence, and an affi rmative fi nding, that the police offi cers had refused to release Mr Foot upon his request. The learned Magistrate evidently accepted that the offi cers did not hear his request and, in the particular circumstances of this case, we consider it follows that there was no refusal and no detention.

12. With respect, the defence argument was not well-founded and should have been rejected. As counsel for the Director argued on this appeal, a contention essentially to the same effect was rejected by this Court in Director of Public Prosecutions v Foster [1999] VSCA 73; [1999] 2 VR 6 4 3; (1999) 104 A Crim R 426; (1999) 29 MVR 365. The leading judgment was given by Winneke P, with whom Ormiston and Batt JJA agreed. The Court in Foster over ruled a series of fi rst instance decisions which had been said to establish that the requirement to accompany the police offi cer was ‘an essential precondition in proof of the offence under s49(1)(f)’.

13. As Winneke P conclude d, if the power to require the motorist to accompany the offi cer is abused, there is a risk that the prosecution will be unable to use the evidence obtained (as the result of the subsequent furnishing of a breath sample). The risk to which his Honour was referring was, as counsel for the Director submitted, the risk that the Court would exclude the evidence of the breath sample in the exercise of its discretion, whether on public policy grounds Bunning v Cross [1978] HCA 22; ( 1 978) 141 CLR 54; 19 ALR 641; 52 ALJR 561 or on fairness grounds R v Swaffi eld and

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DRINK/DRIVING in VICTORIAPavic [1998] HCA 1; (1998) 192 CLR 159; (1998) 151 ALR 98; (1998) 72 ALJR 339; (1998) 96 A Crim R 96; [1998] 1 Leg Rep C 5.

14. In the present case , the question of the possible exclusion of the evidence – should it arise – would fall to be determined in accordance with the applicable provisions of the Evidence Act 2008 (Vic). The determination of that q uestion would affect both the charge under s49(1)(f) and the charge under s49(1)(b).

15. The position is quite different when a charge is brought under s49(1)(e), as in Mastwyk, alleging a refusal by the driver to comply with a requirement to accompany. As the reasons in Mastwyk make clear, if no valid requirement was made it follows necessarily that there can be no question of non-compliance. There was nothing with which the driver was obliged to comply."

Per the Court of Appeal (Maxwell P, Nettle and Redlich JJA) in DPP v Foot [2010] VSCA 112; (2010) 200 A Crim R 558; MC 27/2010, 11 May 2010.

273. Refusal to undergo preliminary breath test – defendant found in parked vehicle in driver’s seat with seat belt on and engine running – whether reasonable grounds for believing he would drive the vehicle – charge dismissed – whether Magistrate applied correct legal test – ‘reasonable belief’.

F. was found in his motor vehicle parked on the side of the road at about 4am. A police offi cer found F. in the driver's seat with his seat belt on and talking on a mobile phone. The keys were in the ignition and the engine was running. F. was asked to undergo a preliminary breath test (PBT) which he refused to do. F. was later charged with an offence of refusing to undergo a PBT. At the hearing of the charge, the magistrate dismissed it on the ground that the police offi cer lacked reasonable grounds for believing that F. intended to drive the vehicle. On appeal—

HELD: Appeal upheld. Remitted to the Magistrates' Court for rehearing in accordance with law.1. The Magistrate had to decide whether he was satisfi ed beyond reasonable doubt that F. was guilty of the charge and to determine whether on the facts proved by the prosecution, the police offi cer made the request to undergo the PBT on reasonable grounds. DPP v Mitchell [2002] VSC 326; (2002) 37 MVR 142; MC 22/2002, followed.

2. The issue about which the police offi cer was required to have that belief was whether F. intended to ‘drive the motor vehicle’ as specifi ed in s3AA(1)(b) of the Road Safety Act. Intending to drive here has a temporal aspect. It means intending to drive near, but not necessarily exactly at, the point in time when the request to undergo the preliminary breath test is made. Woods v Gamble [1991] VicSC 18; (1991) 13 MVR 153; MC 11/1991, applied.

3. Remembering the function of the magistrate was to determine beyond reasonable doubt whether the police offi cer’s belief was reasonable, the magistrate held the observations made by the offi cer were equally consistent with the vehicle being stopped with a view to the cessation of any further driving by F. The magistrate pointed to a number of possibilities not consistent with F. intending to drive. The thrust of the Magistrate's reasoning was towards what was inconsistent with the offi cer's belief, not towards whether the grounds given for having the belief were reasonable.

4. By focusing on whether there were contrary possibilities, the magistrate did not really focus on the reasonableness of the police offi cer's grounds for having the belief. None of the contrary possibilities identifi ed by the magistrate undermined the validity to a reasonable mind of the facts which were relied on by the offi cer as the grounds for his belief that F. would drive the vehicle. They were that F. was found alone in the driver’s seat of a motor vehicle with his seat belt on, with the ignition turned on and with the engine running. The offi cer was told that he had just driven from home. The reasonableness of a belief based on these grounds cannot be defeated by pointing to mere possibilities consistent with F. having ceased driving.

5. While the magistrate purported to decide beyond reasonable doubt whether the police offi cer had reasonable grounds for the belief which he held, this is not the test which the magistrate actually applied. Rather, the magistrate determined beyond reasonable doubt whether he (the magistrate) held that belief on those grounds. That was to misunderstand and misapply the reasonable belief test.

Bell J:"3. The informant charged Mr Farmer on summons with refusing to undergo a preliminary breath test contrary to s49(1)(c) of the Road Safety Act 1986. The charge was heard in the Magistrates’ Court at Sunshine. The magistrate dismissed it. He determined Mr Farmer was not required to undergo the test because the informant lacked reasonable grounds for believing Mr Farmer intended to drive the vehicle. 6. Under s49(1)(c) of the Road Safety Act, it is an offence to refuse to undergo a preliminary breath test when required by s53 to do so.

281

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIA7. Section 53(1)(a) provides that a police offi cer may at any time require a person found driving or in charge of a motor vehicle to undergo a preliminary breath test. In the present case, the charge was that Mr Farmer was in charge of the vehicle. For the purposes of Part 5, which includes s53, s48(1)(b) provides that a person is not to be taken to be in charge of a motor vehicle unless the defi nition in s3AA(1)(a), (b), (c) or (d) applies. Section 48(1)(c) thus makes the defi nition in pars 3AA(1)(a), (b), (c) and (d) an exclusive code for the purpose of determining when a person is in charge of a motor vehicle under s53(1)(a).

12. It was the magistrate’s function to hear and determine the charge brought by the informant. He had to decide whether he was satisfi ed beyond reasonable doubt that Mr Farmer was guilty of that charge. The onus of proof was carried at all times by the prosecution. Mr Farmer was not obliged to give evidence.

13. But it is important to appreciate that, under the legislation, an offence against s49(1)(c) is made out whenever someone refuses to undergo a preliminary breath test at the request of an informant who has found them in charge of a motor vehicle in that the informant has reasonable grounds of believing that they intend to drive that vehicle. It is the magistrate’s function to determine whether, on the facts as proved by the prosecution, the informant made such a request on reasonable grounds, not whether, on those facts, the magistrate would hold the same belief.

18. Returning to Gillard J in Director of Public Prosecutions (Vic) v Mitchell [2002] VSC 326; (2002) 37 MVR 142 , hi s Honour held the function of the magistrate was to determine whether they are satisfi ed beyond reasonable doubt that the informant held the required belief on reasonable grounds. Th at was the function of the magistrate in the present case.

19. The issue about which the informant was required to have that belief was whether Mr Farmer intended to ‘drive the motor vehicle’ as specifi ed in s3AA(1)(b) of the Road Safety Act. Intending to drive here has a temporal aspect. It means intending to drive near, but not necessarily exactly at, the point in time when the request to undergo the preliminary breath test is made.

23. The grounds put forward by the informant for having the belief were very straightforward. As found by the magistrate, when on patrol at the time, the informant saw Mr Farmer sitting in a motor vehicle with the headlights on. The vehicle was parked in the bicycle lane of the road. Just after the informant saw the vehicle, the headlights went off. That raised his suspicions, so he drove past the vehicle. After making certain observations, he pulled up behind it.

24. The informant approached the driver’s side door. He observed Mr Farmer talking on a mobile telephone. He saw that Mr Farmer was sitting in the driver’s seat with his seat belt on and that the engine was running. The keys were in the ignition.

25. The informant asked Mr Farmer what he was doing there. Mr Farmer said he was waiting for friends he had dropped off. The informant asked him if he had been drinking. Mr Farmer said he had had a few. He asked him if he had driven there. Mr Farmer said yes and that he had just come from home.

31. Remembering the function of the magistrate was to determine beyond reasonable doubt whether the informant’s belief was reasonable, the magistrate held the observations made by the informant were equally consistent with the vehicle being stopped with a view to the cessation of any further driving by Mr Farmer. The magistrate pointed to a number of possibilities not consistent with Mr Farmer intending to drive. The thrust of his Honour’s reasoning was towards what was inconsistent with the informant’s belief, not towards whether the grounds given for having the belief were reasonable. It was as if his Honour thought the informant should have approached the matter on the basis of whether Mr Farmer had an innocent explanation, and then determined whether the informant had a reasonable belief against that standard.

35. With respect, I think this was clearly a case in which the magistrate erred in law by dismissing the charge brought against Mr Farmer on the basis of incorrectly applying the correct test. While the magistrate purported to decide beyond reasonable doubt whether the informant had reasonable grounds for the belief which he held, this is not the test which the magistrate actually applied. Rather, his Honour determined beyond reasonable doubt whether he (the magistrate) held that belief on those grounds. That was to misunderstand and misapply the reasonable belief test.

39. ... Therefore I will uphold the appeal, quash the magistrate’s orders and remit the case for rehearing in the Magistrates’ Court in accordance with law. There will be orders accordingly."

Per Bell J in DPP v Farmer [2010] VSC 343; (2010) 56 MVR 137; MC 43/2010, 10 August 2010.

274. Defendant charged with refusing to comply with a requirement under section 55 – section refers

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DRINK/DRIVING in VICTORIAto several fact situations in section 55 – none specifi ed in the charge – whether essential elements of charge – whether section 49(1)(e) creates separate offences – no case submission upheld by Magistrate – whether Magistrate in error – amendment of charge – whether amendment of charge should be allowed.

Section 49(1)(e) of the Road Safety Act ('Act') 1986 provides:

"(1) A person is guilty of an offence if he or she—(e) refuses to comply with a requirement made under section 55(1), (2), (2AA), (2A) or (9A);"

K. was charged under s49(1) of the Act with the offence of having failed to furnish a sample of breath pursuant to section 55 of the Act. The charge did not specify which of the various statutory requirements under s55 K. had failed to comply with. At the hearing of the charge, K. submitted that the charge should be dismissed because the essential ingredients of the offence were missing from the charge. The Magistrate agreed, upheld the submission and dismissed the charge. Upon appeal—

HELD: Appeal dismissed.1. Section 55 of the Act does not itself create offences. It is s49 of the Act which creates the relevant offence by, in this case, providing that a person is guilty of an offence if he or she “refuses to comply with a requirement made under section 55(1), (2), (2AA), (2A) or (9A)”. The charge plainly enough alleged that K. had refused to comply with a requirement made pursuant to s55 but did not specify which of the various statutory requirements under s55 he had failed to comply with. Accordingly, each of the subsections referred to in s49(1)(e) in fact create separate offences. Goodey v Clarke (2002) 37 MVR 121; MC 05/2002, followed. 2. Section 49(1)(e) refers to separate offences but in the present case a reading of the charge would not identify which of the many potential obligations to accompany a member of the police force which s55 permitted had not been complied with. Accordingly, the magistrate was not in error in concluding that the charge had failed to include essential elements and in dismissing the charge.

3. Whether or not to allow an amendment of a charge which fails to disclose an offence is to be determined as a matter of degree. In undertaking that task it is necessary to ask whether the “amendment” is clarifying something in the nature of a misstatement which is otherwise clearly indicated in the charge. There may, perhaps, be other situations where an amendment may be justifi ed but it must usually be possible for the amendment to be said to clarify a charge otherwise found to have been identifi ed in some meaningful, albeit defective, way.

4. In this case the amendment which was sought could not fairly be described as clarifying something which was otherwise disclosed in the formulation of the charge. An amendment to the charge by referring to subsection 55(1) would, rather, be a selection of one of a number of competing possibilities which the charge in its present form equally permits. Accordingly, the amendment would not be allowed even if it had been properly engaged as a ground of appeal. Broome v Chenoweth [1946] HCA 53; (1946) 73 CLR 583; [1947] ALR 27, applied.

Pagone J:"3. Section 55 does not itself create offences. It is s49 of the Act which creates the relevant offence by, in this case, providing that a person is guilty of an offence if he or she “refuses to comply with a requirement made under section 55(1), (2), (2AA), (2A) or (9A)”. The charge plainly enough alleged that Mr Kypri had refused to comply with a requirement made pursuant to s55 but did not specify which of the various statutory requirements under s55 he had failed to comply with.

5. The conclusion that s49(1)(e) refers to separate offences, together with the decisions in Goodey v Clarke, DPP v Greelish and Clarke v Goodey, is suffi cient to dispose of the appeal in this case against the DPP. The charge averred a failure to comply with a requirement “to accompany a member” of the police force to a police station but it did not identify which of the possible requirements under s55 had been invoked and not complied with. Each of ss55(1) and (2) expressly contemplates a requirement that a person accompany a member of the police force but do so in different circumstances. Section 55(9A) also permits the imposition of a requirement to accompany a member of the police force but does so as a secondary requirement in the context of an earlier requirement to allow a registered medical practitioner or an approved health professional to take a sample of blood from a person required to give a sample of breath under subsections (1), (2), (2AA) or (2A) of s55. In these circumstances the learned Magistrate cannot be said to have erred in the conclusion that the charge had failed to include essential elements. It may readily enough be accepted that the charge and summons should be read as a whole and that it is necessary to strive conscientiously to read the information in a sense that gives it the meaning the draftsman intended, but a reading of the charge would not identify which of the many potential obligations to accompany a member of the police force which s55 permitted had not been complied with. It is not a case where the relevant occurrence or foundation of the charge had been averred but that its evidence or proof had been omitted.

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PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIA7. ... There may, perhaps, be other situations where an amendment may be justifi ed but it must usually be possible for the amendment to be said to clarify a charge otherwise found to have been identifi ed in some meaningful, albeit defective, way. In this case I do not think that the amendment which is sought could fairly be described as clarifying something which is otherwise disclosed in the formulation of the charge. An amendment to the charge by referring to subsection 55(1) would, rather, be a selection of one of a number of competing possibilities which the charge in its present form equally permits. Accordingly I would not allow the amendment even if it had been properly engaged as a ground of appeal. ..."

Per Pagone J in DPP v Kypri [2010] VSC 400; (2010) 201 A Crim R 424; MC 46/2010, 7 September 2010.

On Appeal:

275. Failure to obey a requirement to accompany a member of the police force to a police station in order to furnish a sample of breath – charge dismissed by the Magistrate – appeal from the magistrate to a single judge dismissed – application for leave to appeal to the Court of Appeal – whether charge as framed suffi ciently specifi ed the offence – whether charge should have referred to the relevant subsections of section 55 of the Road Safety Act 1986 – whether offence as charged duplicitous – leave to appeal granted.

Section 49(1)(e) of the Road Safety Act ('Act') 1986 provides:

"(1) A person is guilty of an offence if he or she—(e) refuses to comply with a requirement made under section 55(1), (2), (2AA), (2A) or (9A);"

K. was charged under s49(1) of the Act with the offence of having failed to furnish a sample of breath pursuant to section 55 of the Act. The charge did not specify which of the various statutory requirements under s55 K. had failed to comply with. At the hearing of the charge, K. submitted that the charge should be dismissed because the essential ingredients of the offence were missing from the charge. The Magistrate agreed, upheld the submission and dismissed the charge. The appeal to the Supreme Court (Pagone J) was dismissed. Upon application for leave to appeal—

HELD: Leave to appeal granted. 1. Only two of the specifi ed subsections of s55 empower a member of the police force to require a person who has already been required to furnish a sample of breath to subsequently accompany such a member to a place where a sample of breath is to be furnished. These are subsections (1) and (2) of s55. As framed, the charge therefore, at least arguably, raised no diffi culty with the remaining subsection specifi ed in s49(1)(e), namely sub-ss (2AA), (2A) and (9A).

2. It is arguable that the charge as framed adequately specifi ed the offence which the prosecution sought to establish had been committed by K. It is true that both sub-s (1) and sub-s(2) of s55 empower a member of the police force, when the circumstances specifi ed in one or other of those subsections obtain, to require a person to accompany that member to a police station. But, although the preconditions which enliven the right to so require are (slightly) different as between those two subsections, the offence constituted by a failure to comply with the requirement is the same in each case. And that is the offence of which (as the prosecution alleged) K. is guilty, namely the offence of failing to obey a requirement that the respondent accompany a member of the police force to a police station.

3. It is arguable that the magistrate ought to have allowed the prosecution the opportunity to amend the charge or to make an election in favour of one of the counts included in the duplicitous charge. The fact that the opportunity was not allowed is another argument for the conclusion that the magistrate was wrong to dismiss the charge.

Harper and Hansen JJA:"2. On 22 November 2006, the respondent was charged with an offence against s49(1)(e) of the Road Safety Act 1986. By that provision, a person is guilty of an offence if (among other things) he or she refuses to comply with a requirement made under s55(1), (2), (2AA), (2A) or (9A).

3. In dismissing an appeal from the Magistrates' Court at Ringwood, the trial division judge held that, while s49(1)(e) created the relevant offence, the particular s49(1)(e) offence thus created would in any particular case differ according as to which of the specifi ed subsections of s55 were alleged by the prosecution to apply. Because in this case the charge failed this test of specifi city, his Honour upheld the applicant’s submission that it 'did not aver the essential ingredients of an offence under s49(1)(e) of failing to comply with s55(1)' and was therefore bad.

4. The relevant charge was in the following terms:

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DRINK/DRIVING in VICTORIAT he defendant at Doncaster on 27 November 2005 having been required to furnish a sample of breath pursuant to s55 of the Road Safety Act 1986 and for that purpose a requirement was made for him to accompany a member of the police force to a police station did refuse to comply with such requirement to accompany the member of the police force prior to three hours elapsing since the driving of a motor vehicle.

5. Only two of the specifi ed subsections of s55 empower a member of the police force to require a person who has already been required to furnish a sample of breath to subsequently accompany such a member to a place where a sample of breath is to be furnished. These are subsections (1) and (2) of s55. As framed, the charge therefore, in our opinion, at least arguably, raises no diffi culty with the remaining subsection specifi ed in s49(1)(e), namely sub-ss (2AA), (2A) and (9A).

6. In our opinion, it is arguable that the charge as framed adequately specifi es the offence which the prosecution seeks to establish has been committed by the respondent. It is true that both sub-s(1) and sub-s(2) of s55 empower a member of the police force, when the circumstances specifi ed in one or other of those subsections obtain, to require a person to accompany that member to a police station. But, although the preconditions which enliven the right to so require are (slightly) different as between those two subsections, the offence constituted by a failure to comply with the requirement is the same in each case. And that is the offence of which (as the prosecution alleges) the respondent is guilty, namely the offence of failing to obey a requirement that the respondent accompany a member of the police force to a police station.

9. It is, in our opinion, therefore arguable that a charge framed in the terms of this charge adequately describes the offence which the respondent is alleged to have committed. It is not an offence which is diffi cult to describe. It is simply that he failed to do what he was required to do, that is, he refused, when required to accompany a member of the police to a police station, to do so. The charge as framed says just that. It also gives the date and place of the alleged offence.

10. The charge was dismissed by the magistrate. In the words of the judge, the magistrate held that it 'failed to include essential elements'. The judge agreed, and therefore dismissed the appeal. But the only ‘elements’ which might have been added would have been a description of the circumstances upon which the power to require attendance at the station arose. In our opinion, for the reasons which we have endeavoured to express, it is arguable that such a description is unnecessary.

12. It was submitted by the applicant in answer to those submissions that, if there was duplicity, or if there was a need to amend, then the magistrate ought to have offered the prosecution an opportunity to amend or to make an election in favour of one of the counts included in the duplicitous charge. In our opinion, it is again arguable that the magistrate ought to have allowed the prosecution that opportunity.

13. The fact that the opportunity was not allowed is, in our view, another argument for the conclusion that the magistrate was wrong to dismiss the charge.

16. We have been informed by counsel for the applicant that more than 700 summary prosecutions involving a charge laid under s49(1)(e) await hearing and therefore the ultimate outcome of this litigation. More than 400 of these charges are over 12 months old. They are too old, therefore, to permit their being amended or reissued. For these reasons there will be leave to appeal the order of Pagone J pronounced on 7 September 2010. There will also be an order that the appeal be given such priority as the Registrar or Acting Registrar of the Court of Appeal deems appropriate."

Per Harper and Hansen JJA in DPP v Kypri [2010] VSCA 323; MC 53/2010, 29 October 2010.

Upon appeal:

276. HELD: Appeal allowed. Matter remitted to the magistrate for reconsideration of whether the charge might be amended.1. Section 49(1)(f) of the Act creates but one offence (of having a blood alcohol concentration greater than the prescribed percentage) albeit that the offence may be committed in a number of different circumstances. Contrastingly, s49(1)(e) creates as many different offences (of failing to comply with a requirement under s55) as there are different kinds of requirements under s55.

2. The proper characterisation of an act which comprises an offence under s49(1)(e) is one of failure to comply with a particular kind of requirement under s55. It follows that, in order to identify the act which comprises the offence, it is necessary to identify the particular kind of requirement under s55 with which it is alleged that there was non-compliance. Hence, it was an essential element.

3. Where the charge and summons did not allege suffi cient facts to enable a reasonable defendant to

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PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAdetermine ex facie the sub-section of s55 under which the requirement is alleged to have been uttered, the charge was defective because it failed to convey the nature of the offence alleged.

4. If the police brief in this case wer e provided to K. before the expiration of the limitation period, and its contents were such as to enable K. to understand that the case alleged against him was one of failing to comply with a requirement to accompany the informant to a place for the purposes of a breath test, which requirement was made because K. had undergone a preliminary breath test and in the opinion of the informant it indicated that K.'s breath contained alcohol, it would be open (and, other things being equal, it would be appropriate) to amend the charge to make clear that the reference to s55 is a reference to sub-section (1) of s55.

5. The magistrate having embarked on a consideration of whether the defect in the charge in this case should have been amended, as he was right to do, the questions which the magistrate needed to decide were as follows: (a) Whether, before the expiration of the limitation period, the police brief was supplied to the defendant or his representatives and whether it made clear that the case alleged against the defendant was one of failing to comply with a requirement to accompany the informant to a place for the purposes of a breath test, which requirement was made because the respondent had undergone a preliminary breath test and in the opinion of the informant it indicated that the respondent’s breath contained alcohol; (b) If so, whether the defendant was able to point to anything which showed that he could not reasonably have understood that the case alleged against him was one of failing to comply with a requirement to accompany the informant to a place for the purposes of a breath test, which requirement was made because the respondent had undergone a preliminary breath test and in the opinion of the informant it indicated that the respondent’s breath contained alcohol; and

(c) If not, whether there was any reason, in those circumstances, which would render it unjust to allow the charge to be amended so as to make specifi c reference to s55(1) (and thereby to make the form of the charge accord to the case which the defendant had always understood was alleged against him).

6. Accordingly, the appeal was allowed, the magistrate's order dismissing the charge quashed and the matter remitted to the magistrate for reconsideration of whether the charge should be amended.

Nettle JA:"7. The Director contends that the judge erred in holding that the charge lacked an essential element of the offence alleged and so in concluding that the charge was defective. In the alternative, the Director says, if the charge were defective, the judge was wrong to uphold the magistrate’s decision not to amend it.

12. It being so, the proper characterisation of an act which comprises an offence under s49(1)(e) is one of failure to comply with a particular kind of requirement under s55. It follows that, in order to identify the act which comprises the offence, it is necessary to identify the particular kind of requirement under s55 with which it is alleged that there was non-compliance. Hence, it is an essential element.

15. ... To start with, the charge did not describe the offence in the terms of s49(1)(e). Section 49(1)(e) refers to the several sub-sections of s55 individually. The charge did not. It referred collectively or globally to s55 as a whole. Further, because s49(1)(e) operates in an ambulatory fashion, creating offences by reference to contraventions of obligations otherwise appearing in several different sub-sections of the Act, it is semantically inapt to speak of something as framed in terms ‘similar’ to s49(1)(e) unless it specifi cally identifi es the particular obligation which is alleged to have been breached. Furthermore, and perhaps for that reason, it has been held that a provision like s27 has no application relation to an ambulatory provision like s49(1)(e).

16. ... Where, however, as here, the charge and summons do not allege suffi cient facts to enable a reasonable defendant to determine ex facie the sub-section of s55 under which the requirement is alleged to have been uttered, the charge is defective because it fails to convey the nature of the offence alleged.

23. The rule is that an amendment which clarifi es a charge is permissible and an amendment which goes further than that is not. So, an amendment may be permitted o ut of time when, despite the amendment, the offence charged stays the same. But an amendment will not be allowe d out of time if it would result in the formulation of a new and different charge. The latter is treated as an impermissible attempt to avoid the limitation period.

24. A charge which lacks an essen tial element of the alleged offence is defective and, at common law, may be described as a nullity. If, however, the true nature of the offence is apparent from the face of the charge, and the defendant has not been misled or otherwise prejudiced by the omission, the

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DRINK/DRIVING in VICTORIAcharge may be amended under s50 (even out of time) to include the missing element; on the basis that such an amendment does no more than clarify what is already apparent from the face of the charge.

41. At all events, I consider that, if the police brief in this case wer e provided to the respondent before the expiration of the limitation period, and its contents were such as to enable the respondent to understand that the case alleged against him was one of failing to comply with a requirement to accompany the informant to a place for the purposes of a breath test, which requirement was made because the respondent had undergone a preliminary breath test and in the opinion of the informant it indicated that the respondent’s breath contained alcohol, it would be open (and, other things being equal, it would be appropriate) to amend the charge to make clear that the reference to s55 is a reference to sub-section (1) of s55.

50. In the result, I would allow the appeal and set aside the judgment below. In lieu thereo f, I would order that the magistrate’s order dismissing the charge be quashed and that the matter be remitted to the magistrate for reconsideration of whether the charge should be amended.

Ashley JA:"63. In the end, I consider, the question resolves to this: did the Magistrate’s reasons amount to a conclusion that the charge was defective and must be dismissed because it was incapable of amendment? Supervisory courts have been, and should be, careful not to permit on appeal the agitation of questions of law which might have been, but were not, agitated at fi rst instance. But, that said, I have concluded that the answer to the question which I posed is ‘yes’. It seems likely to me that the Magistrate took R v Kidd (Unreported, County Court of Victoria, Judge White, 20 August 2007) to say something which it did not. It follows that the question whether the charge was susceptible of amendment was a question of law which arose, in substance, in the Magistrates’ Court, the answer being integral to the fi nal order made in that Court. Thus it was a matter which could be agitated on appeal.

64. The matter being properly before this Court, I agree with Nettle JA that amendment in this case was, conceptually, possible. Whether it proves on examination to be possible is another matter.

Tate JA:"84. Nevertheless, I consider that Nettle JA is correct to conclude that it would be open to the magistrate, on remitter, to amend the charge to clarify that the reference to s55 should be a reference to s55(1) if it is proved that the police brief was provided to Mr Kypri before the expiration of the limitation period and that its contents removed any uncertainty by making it plain that the requirement to accompany and furnish was made because Mr Kypri had undergone a preliminary breath test and, in the opinion of the informant, it indicated that Mr Kypri’s breath contained alcohol. If that were made plain, a perusal of the legislation would indicate unequivocally that, as between s55(1) and s55(2), the requirement had been made under the former. The charge would have been clarifi ed, no new offence would have been substituted, and (other things being equal and, if necessary, an adjournment being granted) the amendment could be granted without injustice to Mr Kypri. 85. In my opinion, such an amendment, if it were to be granted, would not ‘defeat’ the limitation period. While the amendment would be made out of time, its justifi cation would depend upon what information had been provided in the police brief withi n time. Moreover, the amendment would take effect as at the date on which the charge had initially been laid. In those circumstances, in my opinion, the limitation period is not avoided or overcome.

86. The limitation period would be defeated if an amendment sought to substitute a new offence (not one contemplated by the contents of the police brief) after the limitation period had expired. This would be so, for example, if it were now proposed to amend the charge to refer to s55(2).

89. I agree with Nettle JA that the judgment below should be set aside, the magistrate’s order dismissing the charge be quashed and the matter remitted to the magistrate for reconsideration of whether the charge should be amended in the light of the three questions Nettle JA has identifi ed."

Per the Court of Appeal (Nettle, Ashley and Tate JJA) in DPP v Kypri [2011] VSCA 257; (2011) 207 A Crim R 566; MC 27/2011, 31 August 2011.

277. Driver required to undergo breath test – driver unable to undergo test due to a medical or physical reason – driver requested by police offi cer to allow a sample of blood to be taken – sample taken – on analysis sample found to have a BAC of 0.18% – driver subsequently convicted – whether prosecution had to prove authority of operator of breath analysing instrument – whether fi nding of fact can be appealed against – drawing of inferences – whether appeal should be allowed if an error did not clearly affect the result.

287

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAHELD: Appeal dismissed.1. In a criminal appeal, a fi nding of fact supporting conviction beyond reasonable doubt can be attacked as erroneous in law if (but only if) there was no evidence to support it or, where the fi nding was made by drawing inferences from circumstantial evidence, the inference of guilt was not reasonably open in the sense that there was no evidence on which the inference might reasonably have been drawn.

2. In the present case, there was direct evidence to support the magistrate’s fi nding. Even if the magistrate made the fi nding by drawing inferences from the totality of the evidence, the inference was reasonably open on that evidence. There was no inference, consistent with innocence, which the magistrate could not rationally exclude. Accordingly, the magistrate made no error of law in fi nding the operator to have been authorised at the time of the alleged offence.

3. On the proper interpretation of the applicable provisions of the Road Safety Act, the police offi cer was empowered to require the driver to allow a sample of blood to be taken because he was entitled to require him to furnish a sample of breath and he formed the view that the driver appeared unable to do so for medical or physical reasons. The authority of the operator of the breath analysing instrument was not legally material to the powers which the police offi cer exercised. The prosecution was based on the sample of blood taken from the driver, not on a sample of breath. Accordingly, even if the magistrate erred in law in the fi nding he made about the authority of the operator, the fi nding clearly did not affect the result of the hearing. The conviction of the driver must therefore stand in any event.

Bell J:"3. On the basis of the blood analysis results, Constable Howard, as informant, charged Mr Rugolino with drink-driving offences against the Road Safety Act 1986. At the hearing of the charges by a magistrate, Mr Rugolino did not challenge those results. Rather, he contended that blood tests could be requested, and the results used in court, only where the authority of the operator of the breath-analysing instrument was proved, even where the prosecution was not based on a sample of breath. In his submission, that authority had not been proved. He also pleaded the defence of necessity. He said he was driving himself to hospital for treatment for a panic attack

5. Mr Rugolino now appeals against this conviction on a question of law. He contends there was no evidence to support the magistrate’s fi nding about the operator’s authority. The informant contends the fi nding was open and, in the alternative, was not a prerequisite to a conviction for the offence.

13. It follows that, if there is any direct evidence in support of the fi nding of fact which is under challenge, the court cannot interfere with the fi nding on appeal, even if it would have made a different fi nding on the evidence before the magistrate. As we will see, on one view of the evidence in the present case, there was such direct evidence before the magistrate on the issue of the authority of the operator, and that would be enough to dismiss the appeal. On another view, however, the evidence on this subject was all circumstantial and the magistrate’s fi nding could only have been made by drawing inferences.

32. At the end of the hearing, counsel for Mr Rugolino submitted the prosecution had failed to prove the operator was authorised at the relevant time. He submitted the certifi cate which had been tendered did not prove the operator’s authority as it post-dated the alleged commission of the offence. The prosecutor submitted the operator had given evidence that he was authorised at the relevant time.

35. In my view, the operator’s evidence about operating the instrument in accordance with the regulations was direct evidence that he had authority to do so at the time he administered the test to Mr Rugolino. His oral evidence was that the instrument was operated by him at that time in accordance with the regulations, which were tendered. The regulations stipulated the requirements for the proper operation of the instrument by the person having the relevant authority under s55(3). In my view, this was a statement within the evidentiary provision that the operator ‘was authorised by the Chief Commissioner of Police under s 55 to operate the breath analysing instrument.’ There was no evidence to the contrary and, under that provision, the statement was therefore proof of the operator’s authority.

36. That is enough to dismiss the appeal. The evidence of the operator was some evidence in support of the magistrate’s fi nding. More than that, under the evidentiary provision, the operator’s statement was proof of his authority.

78. I have concluded that, on the proper interpretation of the provisions of the Road Safety Act, a member of the police force may require a driver to allow a sample of blood to be taken where it appears they are unable to furnish a sample of breath for a medical for physical reason. The capacity of the member to require the person to allow a sample of blood to be taken depends on their entitlement to require a sample to breath to be furnished, not on the authority of the operator of the breath analysing instrument. So, when a member of the police force is statutorily entitled to require someone

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DRINK/DRIVING in VICTORIAto furnish a sample of breath and it appears they are unable to do so for a medical or physical reason, the member can require the person to allow a sample of blood to be taken and the authority of the operator of the breath analysing instrument is not material. ..."

Per Bell J in Rugolino v Howard [2010] VSC 590; (2010) 57 MVR 178; MC 56/2010,17 December 2010.

278. Dismissal of charge under s49(1)(e) Road Safety Act 1986 (Vic) of refusing to comply with requirement made under s55(1) to accompany police offi cer to a place to furnish a sample of breath – nature of requirement under s55(1) for the purposes of s49(1)(e) – whether trial judge erred in holding that requirement to accompany and remain under s55(1) integral components of a single composite requirement – whether judge erred in holding that motorist must be informed that he or she is required to accompany police offi cer to a place and to remain there until a sample of breath is furnished and certifi cate is given or until 3 hours after the driving, whichever is sooner – ‘to accompany’ and ‘to remain’ two discrete requirements with different content – appeal allowed – matter remitted to Magistrates’ Court for a conviction to be entered, and for determination of penalty.

P. was intercepted whilst driving a motor vehicle. A PBT was conducted which proved positive and the police offi cer asked P. to accompany him to a police station for the purpose of a breath test. The police offi cer did not inform P. of the period within which he would be required to remain at the police station. P. was charged with refusing a requirement under s55(1) of the Road Safety Act 1986 ('Act'). At the hearing, a 'no case' submission was made that the charge should be dismissed on the ground that the police offi cer had failed to establish all of the elements of the offence namely the temporal limitation. The Magistrate agreed and dismissed the charge. An appeal to a Judge of the Supreme Court was dismissed. Upon appeal—

HELD: Appeal allowed. Orders set aside. Matter remitted to the Magistrates' Court so that a conviction can be entered on that charge and for determination of penalty.The power to require a person to accompany a police offi cer and remain conferred by s55(9A) of the Act is a statement of two component parts of a single requirement rather than a statement of two discrete powers. The making of a requirement to accompany does not require a statement of what can be called the three-hour period.

Ashley JA (with whom Weinberg and Tate JA agreed):"1. ... The second charge, to which he pleaded not guilty, was that –

... at Delahey on 13/09/2008 having been required to furnish a sample of breath pursuant to section 55(1) of the Road Safety Act 1986 and for that purpose a requirement was made for him to accompany a member of the police force to a place namely Keilor downs Police Station he did refuse to comply with such requirement to accompany the member of the police force prior to three hours elapsing since the driving of a motor vehicle.

11. The latter sub-section empowers a police offi cer to require a driver to accompany a police offi cer to a place or vehicle (‘the accompany requirement’) for the purposes of furnishing a sample of breath for analysis by a breath analysing instrument.

12. The sub-section further empowers a police offi cer to require a driver to remain at the place or vehicle until a suitable sample of breath has been provided, or until 3 hours after the driving, whichever sooner occurs. In these reasons, again only for convenience, I will call this ‘the remain requirement’.

14. In this appeal, a central issue was whether the accompany and remain requirements were separate and independent or were components of a single, conjoint requirement. That issue focussed upon the words ‘a requirement made under section 55(1)’ in s49(1)(e). It was not in debate that it was essential to prove refusal to comply with such a requirement if that s49(1)(e) offence was to be made out. Although, according to the charge, the refusal was a refusal to accompany, the argument which found favour below was that the relevant requirement was to accompany and remain. So, the requirement stated by the police offi cer having been only a requirement to accompany, an essential matter for proof had not been established. But according to the appellant’s argument, below and in this Court, s55(1) provides for discrete requirements – to accompany, and to remain. For that reason, the police offi cer had imposed as a requirement all that was necessary to satisfy the words of s49(1)(e).

70. I must refer to the two grounds raised by the Notice of Contention. I will do so without addressing a technical argument raised by counsel for the Director.

71. I reject each ground. The fi rst, noted at [28]-[29] above, has no textual support at all. Section 49(1)(e) required proof that a requirement was made under s55(1). Relevantly, there was either one requirement, embodying two components, or two discrete requirements. I have concluded that it was the latter. The relevant requirement was that the respondent accompany the police offi cer to a specifi ed place for the purpose of furnishing a sample of breath. There is no warrant for grafting onto

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PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAthat requirement a temporal limitation particularly attaching to the discrete requirement to remain.

72. The second ground, noted at [30] above, is in my opinion without merit, essentially for the reasons discussed by the judge below at [94]-[96] in his reasons.

Order73. I would allow the appeal and set aside the orders made below on 12 November 2010, and in the Magistrates’ Court on 13 July 2009 so far as t he charge alleging breach of s49(1)(e) of the Road Safety Act 1986 is concerned. I would remit the matter to the Magistrates’ Court so that a conviction can be entered on that charge, and for determination of penalty."

Per the Court of Appeal in DPP v Piscopo [2011] VSCA 275; (2011) 210 A Crim R 126; (2011) 59 MVR 200; MC 31/2011, 9 September 2011.

279. Dismissal of charge under s49(1)(e) Road Safety Act 1986 (Vic) of refusing to comply with requirement made under s55(1) to accompany police offi cer to a medical centre to provide a sample of blood for analysis – nature of requirement under s55(1) for the purposes of s49(1)(e) – whether trial judge erred in holding that requirement to accompany and remain under s55(1) integral components of a single composite requirement – whether judge erred in holding that motorist must be informed that he or she is required to accompany police offi cer to a place and to remain there until a sample of blood is furnished or until 3 hours after the driving, whichever is sooner – ‘to accompany’ and ‘to remain’ two discrete requirements with different content – appeal allowed – matter remitted to Magistrates’ Court for a conviction to be entered and for determination of penalty.

R. was required to undergo a PBT following his driving of a motor vehicle which was involved in an accident. A PBT was conducted which proved positive and the police offi cer asked R. to accompany him to a police station for the purpose of a breath test. The breath test was conducted on two occasions but did not produce a result. R. was then asked to accompany the police offi cer to a Medical Centre for the purpose of providing a sample of blood for analysis. R. refused to accompany the offi cer. The police offi cer did not inform R. of the period within which he would be required to remain at the Medical Centre. R. was charged with refusing a requirement under s55(1) of the Road Safety Act 1986 ('Act'). At the hearing, a 'no case' submission was made that the charge should be dismissed on the ground that the police offi cer had failed to establish all of the elements of the offence namely the temporal limitation. The Magistrate agreed and dismissed the charge. An appeal to a Judge of the Supreme Court was dismissed. Upon appeal—

HELD: Appeal allowed. Orders set aside. Matter remitted to the Magistrates' Court so that a conviction can be entered on that charge and for determination of penalty.The power to require a person to accompany a police offi cer and remain conferred by s55(9A) of the Act is a statement of two component parts of a single requirement rather than a statement of two discrete powers. The making of a requirement to accompany does not require a statement of what can be called the three-hour period.

Ashley JA (with whom Weinberg and Tate JJA agreed):"1. On 12 August 2009 the respondent, Ramzan Rukandin, was charged with three offences. The fi rst charge alleged that he refused to comply with a requirement under s55(9A) of the Road Safety Act 1986 (‘the Act’) to accompany a police offi cer to the Monash Medical Centre for the purpose of furnishing a sample of blood, contrary to s49(1)(e) of the Act. The second charge alleged careless driving, contrary to s65 of the Act. The third charge related to his driving while unlicensed, contrary to s18(1)(a) of the Act.

2. ... The fi rst charge was heard at the Moorabbin Magistrates’ Court on 18 March 2010. The Magistrate dismissed the charge on the basis that the respondent had not been informed that he would have to remain at the Monash Medical Centre until a sample of his blood was taken or until 3 hours after the driving of the relevant motor vehicle, whichever was sooner.

10. It is not in dispute that the police offi cer failed to inform the respondent that he would have to remain at the Monash Medical Centre until a sample of his blood was taken or until 3 hours after the driving of the relevant motor vehicle, whichever was sooner.

16. Mindful as I am that what was here in issue was an alleged offence against s49(1)(e) of the Act constituted by a failure to accompany imposed under s55(9A), and that submissions addressed the particular language of the latter provision, it is the fact that the submissions bore a very close resemblance to the submissions advanced in DPP v Piscopo [2011] VSCA 275; (2011) 210 A Crim R 126; (2011) 59 MVR 200. I have noted the competing submissions at [23]-[29] in my reasons in that matter, and they provide an understanding of what was submitted in the present case. It is only necessary to note that, although there was no Notice of Contention in the present case, the respondent called in aid ss21(3) and 32 of the Charter of Human Rights and Responsibilities Act 2006, they having been adverted to by the judge in his reasons.

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DRINK/DRIVING in VICTORIAConclusions17. In my opinion, there is no relevant difference between the language of s55(1) of the Act, which I considered in Piscopo, and the language of s55(9A). For the reasons which I gave in that case, I consider that the judge erred in concluding that the power to require a person to accompany and remain conferred by s55(9A) is a statement of two component parts of a single requirement rather than a statement of two discrete powers. I further consider, for reasons explained in Piscopo, that the making of a requirement to accompany does not require a statement of what I called, in that case, the 3 hour period. I should add, albeit that it does not affect the outcome of this appeal, that although the evidentiary provisions respecting the blood test regime somewhat differ from those relating to the regime applicable to breath and other tests, I consider that the power to make a requirement to remain does entail stating both the purpose and the temporal limit.

Order18. I would allow the appeal and set aside the orders made below on 12 November 2010, and in the Magistrates’ Court on 18 March 2010 so far as the charge alleging breach of s49(1)(e) of the Road Safety Act 1986 is concerned. I would remit the matter to the Magistrates’ Court so that a conviction can be entered on that charge, and for determination of penalty."

Per the Court of Appeal in DPP v Rukandin [2011] VSC 276; (2011) 210 A Crim R 547; (2011) 59 MVR 222; MC 32/2011, 9 September 2011.

280. Preliminary breath test conducted – positive result – driver asked to return to police station to undergo a breath test – driver said he did not want to – driver subsequently charged with refusing to comply with a requirement to accompany a police offi cer – charge dismissed by Magistrate – Magistrate in error in fi nding that there was a requirement to prove a subjective understanding of the relevant section of the Road Safety Act 1986 – whether the relevant sections impose an obligation to accompany police offi cer for further breath test.

S. was charged under s49(1)(e) of the Road Safety Act 1986 ('Act') with refusing to comply with a requirement to accompany a police offi cer to a police station to undergo a breath test. S. had undergone a PBT which showed positive for alcohol and was asked to return to the police station. S. said "I don't want to". S. was warned that a refusal to accompany in the circumstances was an offence punishable by law. At the hearing, the Magistrate found that the police informant had only made a request rather than a requirement and dismissed the charge on the ground that the police had not proven that S. understood that he had to go to the police station. Upon appeal—

HELD: Appeal allowed. Magistrate's order quashed. Remitted to the Magistrates' Court for hearing and determination according to law.1. The test as to what constitutes a request is whether the evidence as it stood was such to prove that the driver was given reasonably suffi cient information to know what was required of him and why. Consequently, a requirement need not take the form of a dema nd in imperative terms. A request in precatory or polite terms by a person clothed with apparent authority will ordinarily be suffi cient and indeed it is to be hoped, and in most cases expected, th at a requirement will be made in terms of a polite request. In any event, whatever terms may or may not be used in any g iven case, it will be enough that the intent of the police offi cer and the obligation of the person required to comply have been made clear. Sanzaro v County Court of Victoria [2004] VSC 48; (2004) 42 MVR 279; MC 09/2004 per Nettle J, applied.

2. The offence is created under s49(1)(e) of the Act by the driver’s refusal to accompany a member of the police force when required to do so. In the present case the informant told S. he had a choice. That is, there was no compulsion on S. to comply with the requirement of the informant to accompany him to the police station. There were consequences and, indeed, serious consequences if S. failed to comply with the requirement of the informant and S. was clearly told of these consequences. The Magistrate proceeded on the assumption that the informant was required to prove that S. understood that he had to go to the police station.

3. There is no enforceable obligation imposed on the driver by the Act that he accompany the police offi cer. Rather, the driver commits an offence if he or she 'refuses' to comply with the request. It is the refusal to comply that triggers the offence. The person cannot be compelled to go and cannot be arrested for failing to go and take another test. 4. The police informant correctly informed S. that he was not under arrest but there were important consequences if he did not comply with the request. S. was not confused as to the necessary elements of the offence. That is, a request had been made and that his refusal to comply constituted an offence.

5. Accordingly, the Magistrate was in error in fi nding that the subjective state of the mind of S. was relevant to the offence and in dismissing the charge.

Robson J:

291

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIA"2. Mr Serbest, was charged with the following:

T he accused, at Moorabbin on 06/12/2009 having been required to furnish a sample of breath pursuant to section 55(1) of the Road Safety Act 1986 and for that purpose a requirement was made for him to accompany a member of the police force to a place namely Moorabbin Police Station did refuse to comply with such requirement to accompany the member of the police force prior to three hours elapsing since the driving of a motor vehicle.

23. The appellant submits that the essential element of the relevant offence is the failure to accompany the member of the police force when required to do so. The appellant contends that for the offence to be established two things must be proven: fi rst, that a requirement has been made, and secondly, a refusal to comply with that requirement.

24. The appellant contends that her Honour fell into error when fi nding that the police had not proven that the accused understood that he had to go. The appellant says that the relevant sections and the authorities on them do not require the police to prove a subjective understanding on the part of the accused. Further, the appellant says that the relevant sections do not in any event impose an obligation on the accused to accompany a police offi cer. Rather, the offence is committed not by a failure to accompany a police offi cer but a failure to comply with a requirement to accompany a police offi cer. For the reasons that follow I accept the contentions of the appellant.

25. The appellant refers to two recent Court of Appeal decisions, DPP v Piscopo [2011] VSCA 275; (2011) 210 A Crim R 126; (2011) 59 MVR 200 and DPP v Rukandin [2011] VSCA 276; (2011) 210 A Crim R 547; (2011) 59 MVR 222 which deal with the same secti ons of the Road Safety Act 1986 which are in dispute here. The appellant submits that these two cases confi rm that, in relation to s55(1) there are three separate requirements which are engaged at different times. The fi rst or primary purpose of s55(1) is to obtain a sample of breath for analysis by a breath analysing instrument.[5] The second requirement is the requirement to accompa ny for the purposes of a breath test, and the third is a requirement to remain. The appellant submits that the Court of Appeal confi rmed that the requirement to accompany and the requirement to remain were separate requirements, but that both were ‘for the purpose’ of getting a breath sample. The appellant submits that the police have no power, under the relevant section, to order in mandatory terms that someone accompany them because there is no power of arrest or detention in the legislation.

36. As indicated by Ormiston JA in DPP v Foster [1999] VSCA 73; [1999] 2 VR 643; (1999) 104 A Crim R 426; (1999) 29 MVR 365, there is no enforceable obligation imposed on the person by the Act that he accompany the police offi cer. Rather, the person commits an offence if he or she ’refuses’ to comply with the request. It is the refusal to comply that triggers the offence. The person cannot be compelled to go and cannot be arrested for failing to go and take another test.

37. The police offi cer correctly informed the accused that he was not under arrest but there were important consequences if he did not comply with the request. The accused was not confused as to the necessary elements of the offence. That is, a request had been made and that his refusal to comply constituted an offence.

38. It is clear from the evidence in this case that there was some confusion in the mind of the accused as to the exact reasons he was being requested to accompany the police offi cer to the station. His refusal to attend appears to have been predicated on being told erroneously that his licence was suspended and therefore told, again erroneously, that his allowable alcohol limit when driving while suspended was zero. This may go to the issue of penalty however, as the discussion above indicates, the subjective state of mind of the accused is not relevant to the offence with which he was charged. His response indicates that he was aware that he had been requested to accompany the police offi cer. ..."

Per Robson J in DPP v Serbest [2012] VSC 35;(2012) 211 A Crim R 588; (2012) 60 MVR 150; MC 01/2012, 10 February 2012.

281. Accused fell out of motor vehicle while driving – struck head very hard when hit road – at hospital, refused to allow doctor to take sample of blood – prosecution medical evidence suggested refusal may have been due to severe head injury – trial judge decided refusal need not be conscious and voluntary – did not go into medical evidence – accused convicted and sentenced – on appeal whether judge erred in law on face of the record – whether voluntariness an element of the offence – application of principle of legality to interpretation of statutory offences, including driving offences – whether matter should be remitted to trial judge to determine whether the charge should be dismissed – ‘allow’ – meaning of.

D. fell out of her motor car while driving alone late at night. She struck her head very hard when she hit the road. At hospital not long afterwards, she was aggressive and uncooperative. She refused to allow a doctor to take a sample of her blood. Subsequently, she was charged with an offence under s56(2) of the Road Safety Act 1986 ('Act') in that she refused to allow a doctor to take a sample of her blood for analysis. She was convicted and later

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DRINK/DRIVING in VICTORIAappealed to the County Court where her appeal was dismissed. The judge declined to dismiss the charge on the ground that, on the medical evidence, the prosecution had not proved beyond reasonable doubt that D.'s refusal had been conscious and voluntary. In his Honour’s view, that was not an element of the offence. Therefore a person could be guilty of the offence even where the refusal had been unconscious and involuntary. Without going into the medical evidence, his Honour dismissed the appeal, found D. guilty of the charge, fi ned her $500 plus costs, cancelled her licence and disqualifi ed her from obtaining a further licence for four years. Upon appeal—

HELD: Appeal allowed. Orders of the judge quashed. Remitted to the judge for hearing and determination according to law.1. On the authorities, it is a basic and fundamental principle of the common law that a person is criminally responsible only for their conscious and voluntary acts. The prosecution must therefore establish beyond reasonable doubt that the act constituting the alleged crime was done in the exercise of the accused’s will to act. As there is an evidentiary presumption of voluntariness, it is not usually necessary for the prosecution to supply express proof of this element. But where the issue is legitimately raised, the prosecution must prove beyond reasonable doubt that the accused’s acts were conscious and voluntary. These general principles apply equally to statutory offences, including driving offences, subject to contrary provision. Ryan v R [1967] HCA 2; (1967) 121 CLR 205; [1967] ALR 577; 40 ALJR 488; and R v O'Connor [1980] HCA 17; (1980) 146 CLR 64; (1980) 29 ALR 449; (1980) 4 A Crim R 348; (1980) 54 ALJR 349, applied. 2. The provisions of s56(2) of the Act do not expressly abrogate the voluntariness was an element of the offence created by s56(2). Nor do the provisions implicitly abrogate that principle. There is nothing in the language of s56(2), the context of the section or the legislation as a whole or the legislative purpose to suggest unmistakably and unambiguously that the provisions should be interpreted so as to abrogate the principle. In s56(2), the word ‘allow’ is a verb meaning ‘permit’. The person ‘must allow’ the sample to be taken, which compels them acti vely to permit the sample to be taken. The active step of allowing, in the sense of permitting, a sample to be taken can only be taken by someone acting consciously and voluntarily. Their intention is not relevant, but their acts must be conscious and voluntary. Meertens v Falkenberg (1981) 92 LSJS 202, Supreme Court of South Australia – Full Court, King CJ, Sangster and Legoe JJ , 13 March 1981, followed.

3. It is an element of the offence specifi ed in s56(2) of the Act that the accused consciously and voluntarily refused to allow the taking of the sample. Where the matter is not legitimately in issue, the prosecution may prove that element by relying on the evidentiary presumption of voluntariness. Where the matter is legitimately an issue, as it was in the present case, the prosecution was required to prove the element on the evidence beyond reasonable doubt. The trial judge erred in law on the face of the record in deciding otherwise. R v Carter [1959] VicRp 19; [1959] VR 105; [1959] ALR 335, followed.

4. The issue was legitimately raised in the present case. The medical evidence of both the prosecution and the defence suggested D. refused to allow the doctor to take a sample of her blood by reason of the severe head injury which she suffered in the accident. It was therefore necessary for the trial judge to consider this evidence and to determine whether the prosecution had established beyond reasonable doubt that D.'s refusal had been conscious and voluntary. His Honour erred in law in failing to do so.

5. The County Court Judge was not ordered to dismiss the charge against D. It was for the trial judge to determine whether the charge should be dismissed. Accordingly, an order was made in the nature of certiorari quashing the orders of the judge and remitting the matter back to his Honour for hearing and determination according to law.

Bell J:"1. Deborah Dover fell out of her motor vehicle while driving alone late at night. She struck her head very hard when she hit the road. At hospital not long afterwards, she was aggressive and uncooperative. She refused to allow a doctor to take a sample of her blood, for which she was convicted and sentenced in the Magistrates’ Court of Victoria. She appealed to the County Court of Victoria.

2. In the appeal, the doctor gave evidence for the prosecution that Ms Dover’s behaviour may have been a result of a severe head injury and she might not have understood his request. Ms Dover’s treating neurologist supported that evidence.

3. The learned trial judge would not dismiss of the charge on the ground that, on the medical evidence, the prosecution had not proved beyond reasonable doubt that Ms Dover’s refusal had been conscious and voluntary. In his Honour’s view, that was not an element of the offence. Therefore a person could be guilty of the offence even where the refusal had been unconscious and involuntary. Without going into the medical evidence, his Honour dismissed the appeal, found Ms Dover guilty of the charge, fi ned her $500 plus costs, cancelled her licence and disqualifi ed her from obtaining a further licence for four years.

293

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIA6. Section 56(2) provides:

If a person of or over the age of 15 years enters or is brought to a place for examination or treatment in consequence of an accident (whether within Victoria or not) involving a motor vehicle, the person must allow a doctor or approved health professional to take from that person at that place a sample of that person’s blood for analysis.

Penalty: For a fi rst offence, 12 penalty units; For a second offence, 120 penalty units or imprisonment for 12 months; For any other subsequent offence, 180 penalty units or imprisonment for 18 months.

7. There is no issue that Ms Dover was over the age of 15 years, was brought to a place of examination or treatment in consequence of an accident involving a motor vehicle and was asked, and refused, to allow a doctor to take a sample of her blood. The only issue is whether the prosecution must prove (to the criminal standard) that her refusal was conscious and voluntary.

20. The question whether Ms Dover’s refusal was intentional does not arise because s56(2) creates a strict liability offence in the sense that a person who, in the circumstances specifi ed, refuses to allow a sample of blood to be taken commits the offence whether or not they intend to do so. The separate question which is at issue in this case is whether the prosecution must prove the refusal was conscious and voluntary.

30. ... As I have said, s56(2) of our Road Safety A ct is to be interpreted in the same way. It creates a strict liability offence in the sense that intention to breach is not an element. That does not mean the offence is committed by persons acting unconsciously and involuntarily.

Summary 40. On these authorities, it is a basic and fundamental principle of the common law that a person is criminally responsible only for their conscious and voluntary acts. The prosecution must therefore establish beyond reasonable doubt that the act constituting the alleged crime was done in the exercise of the accused’s will to act. As there is an evidentiary presumption of voluntariness, it is not usually necessary for the prosecution to supply express proof of this element. But where the issue is legitimately raised, the prosecution must prove beyond reasonable doubt that the accused’s acts were conscious and voluntary. These general principles apply equally to statutory offences, including driving offences, subject to contrary provision.

41. We now come t o the central matter which is in issue: is voluntariness an element of the offence specifi ed in s56(2) of the Road Safety Act of refusing to allow a sample of blood to be taken?

46. It is therefore necessary to examine s56(2), interpreted in the context of the Road Safety Act as a whole and having regard to the purpose of the provisions, to see whether there is unmistakable and unambiguous language indicating that the legislature has intended to interfere with the basic and fundamental principle of the common law that a person is criminally responsible only for their conscious and voluntary acts.

48. In my view, the provisions of s56(2) do not expressly abrogate the principle of voluntariness. Nor do the provisions implicitly abrogate that principle. There is nothing in the language of s56(2), the context of the section or the legislation as a whole or the legislative purpose to suggest unmistakably and unambiguously that the provisions should be interpreted so as to abrogate the principle. In s56(2), the word ‘allow’ is a verb meaning ‘permit’. The person ‘must allow’ the sample to be taken, which compels them acti vely to permit the sample to be taken. The active step of allowing, in the sense of permitting, a sample to be taken can only be taken by someone acting consciously and voluntarily. Their intention is not relevant, but their acts must be conscious and voluntary.

Section 56 does not create a scheme for imposing criminal responsibility on persons who unconsciously and involuntarily refuse to allow a sample to be taken. It is a scheme for imposing that responsibility on persons who refuse consciously and voluntarily and for allowing the sample to be taken (at the discretion of the doctor or professional) from unconscious or incommunicative persons.

51. I therefore conclude it is an element of the offence specifi ed in s56(2) of the Road Safety Act that the accused consciously and voluntarily refused to allow the taking of the sample. Where the matter is not legitimately in issue, the prosecution may prove that element by relying on the evidentiary presumption of voluntariness. Where the matter is legitimately an issue, as it was in the present case, the prosecution must prove the element on the evidence beyond reasonable doubt. The trial judge erred in law on the face of the record in deciding otherwise.

52. There will therefore be an order in the nature of certiorari quashing his Honour’s orders.

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DRINK/DRIVING in VICTORIA61. I will not order the County Court to dismiss the charge against Ms Dover. It is for the trial judge to determine whether the charge should be dismissed, not this court. I will make an order in the nature of certiorari quashing the orders of the judge dated 27 October 2010 and remit the matter back to his Honour for hearing and determination according to law."

Per Bell J in Dover v Doyle [2012] VSC 117; (2012) 34 VR 295; MC 08/2012, 29 March 2012.

On Appeal:

282. Accused fell out of motor vehicle while driving – struck head very hard when hit road – at hospital, refused to allow doctor to take sample of blood – prosecution medical evidence suggested refusal may have been due to severe head injury – trial judge decided refusal need not be conscious and voluntary – accused convicted and sentenced – on appeal fi nding that judge erred in law on face of the record – whether voluntariness an element of the offence – application of principle of legality to interpretation of statutory offences, including driving offences – matter remitted to trial judge to determine whether the charge should be dismissed – ‘allow’ – meaning of considered – appeal to Court of Appeal – obligation to allow the taking of a blood sample – common law presumption that criminal liability attached only to acts or omissions that were voluntary – common law presumption not displaced – whether appeal judge in error.

HELD: Appeal dismissed.1. The authorities establish, and it is consonant with principle, that an accused person is not guilty of a crime if the deed which would constitute it was not done in the exercise of a will to act. Ryan v R [1967] HCA 2; (1967) 121 CLR 205; [1967] ALR 577; (1967) 40 ALJR 488; Kroon v R (1990) 55 SASR 476; (1990) 12 MVR 483; (1990) 52 A Crim R 15; and Edwards v Macrae (1991) 14 MVR 193, followed. Wallin v Curtain (1998) 27 MVR 356; (1998) 100 A Crim R 506; and Hammond v Lavender (1976) 11 ALR 371; (1976) 50 ALJR 728, considered.

2. Section 56(2) of the Road Safety Act 1986 ('Act') imposes a positive obligation to allow the taking of a blood sample and it does not in its terms specify whether a contravention involves a ‘failure to allow’ or a ‘refusal to allow’.

3. The DPP was unable in this appeal to demonstrate that the presumption that the criminal law only punished conduct which was voluntary had been displaced in the context of s56(2) of the Act. To ‘allow’, in the context of the section, meant to ‘permit’, and it necessarily involved a person acting consciously and voluntarily. The Parliament has not made manifestly clear an intention to override the strong and long-established presumption of voluntariness in relation to criminal offences .

4. The presence of the exception in sub-s(5), which provided that a person is deemed to allow the taking of blood if unconscious or unable to communicate, reinforced this point: it was because the person was incapable of conscious or voluntary action that he or she must have been deemed to allow the taking of blood in order to avoid any legal consequences which might accrue to the doctor for taking a person’s blood in those circumstances. This subsection provided an exception to the general rule that, in this context ‘a choice was presented’ — the person may, consciously and voluntarily, elect to allow the taking of a blood sample or refuse to allow the doctor to take a sample.

5. Accordingly, the appeal judge was correct in concluding that voluntariness was an element of the offence created by s56(2) which, if raised as a fact in issue by the defence, had to be established beyond reasonable doubt by the prosecution.

Tate JA (with whom Maxwell P and Garde AJA agreed):"2. The question at the heart of this appeal is whether, for the purposes of proving that a person involved in a motor vehicle accident has not allowed a doctor or approved health professional to take a sample of blood contrary to s56(2) of the Road Safety Act 1986 (‘the Act’), the prosecution is required to establish that the contravention was voluntary. In the trial division of the Court, Bell J held that the prosecution was so required. The appeal was heard on 16 May 2013 and the Court ordered that the appeal be dismissed. I now set out my reasons.

3. Deborah Dover (‘Dover’) was convicted of an offence under s56(2) of the Act in the Magistrates’ Court. A fi ne was imposed, and Dover was disqualifi ed from driving for a period of four years. On an appeal de novo to the County Court, Judge Chettle made orders in identical terms to those imposed by the magistrate, holding that voluntariness was not an element of the offence created by s56(2). In judicial review proceedings in the Supreme Court, B ell J quashed the orders of Judge Chettle on the basis that voluntariness was to be treated as an element of the offence, and remitted the matter to the County Court for hearing and determination according to law. T he Director of Public Prosecutions (the ‘DPP’) appealed on behalf of the informant, Senior Constable Michael Doyle.

295

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIA38. In my view, the DPP’s submissions failed to appreciate the force of the presumption that the criminal law only punishes conduct which is voluntary. It is not a presumption which can be easily displaced by examples from non-criminal contexts where ‘allowing’ a situation to occur may occur while one is unconscious.

41. In my view, the DPP has been unable to demonstrate that the presumption that the criminal law only punishes conduct which is voluntary has been displaced in the context of s56(2) of the Act. I agree with Bell J’s observation below that to ‘allow’, in the context of the section, means to ‘permit’, the same meaning attached to ‘allow’ by Phillips JA in Wallin v Curtain (1998) 100 A Crim R 506; (1998) 27 MVR 356, and I consider that in the context of s56(2) it necessarily involves a person acting consciously and voluntarily. The Parliament has not made manifestly clear an intention to override the strong and long-established presumption of voluntariness in relation to criminal offences .

42. The presence of the exception in sub-s(5), which, as mentioned above, provides that a person is deemed to allow the taking of blood if unconscious or unable to communicate, reinforces this point: it is because the person is incapable of conscious or voluntary action that he or she must be deemed to allow the taking of blood in order to avoid any legal consequences which might accrue to the doctor for taking a person’s blood in those circumstances. This subsection provides an exception to the general rule that, as Phillips JA said in Wallin v Curtain, in this context ‘a choice is presented’: the person may, consciously and voluntarily, elect to allow the taking of a blood sample or refuse to allow the doctor to take a sample.

43. I reject the submission that the interpretation proposed by the DPP is necessary in order to fulfi l the purposes of the Act. The purposes of the Act, and of Part 5 in particular, can be advanced consistently with an interpretation which is faithful to those presumptions at law that are based on matters of principle. It would be wrong to assume that, when faced with constructional choice, the interpretation to be adopted is one that has as a single objective the furtherance of the purposes of an Act as though the legislation existed in a vacuum, unaffected by the presumptions at common law developed over time.

44. With respect to the legislative history, in my view it cannot be concluded that the legislative amendments, introduced to shift the obligation from doctors to take a blood sample whether or not the person allowed it onto the person to allow the sample to be taken, did not have as a consequence that there may be some circumstances in which no blood sample is taken and yet no offence is committed. This may simply be a consequence of relieving doctors of what must have been perceived to be a disproportionately onerous obligation.

45. In my opinion, Bell J was correct to conclude that voluntariness is an element of the offence created by s56(2) which, if raised as a fact in issue by the defence, must be established beyond reasonable doubt by the prosecution. ..."

Per the Court of Appeal in DPP v Dover and The County Court of Victoria [2013] VSCA 233; (2014) 231 A Crim R 461; MC 34/2013, 4 September 2013.

283. Driver gave evidence of post-driving consumption of alcohol – such evidence not corroborated – charge dismissed by Magistrate – Magistrate accepted the respondent’s uncorroborated evidence about the timing of her drinking – whether the requirement in s48(1A) of the Road Safety Act 1986 (Vic) that evidence be corroborated by the material evidence of another person had been displaced by s164(1) of the Evidence Act 2008 (Vic) – whether s164(1) of the Evidence Act 2008 (Vic) impliedly repealed part of s48(1A) of the Road Safety Act 1986 (Vic) – whether s8 of the Evidence Act 2008 (Vic) preserved the operation of corroboration requirements in the Road Safety Act 1986 (Vic) – application of the maxim generalia specialibus non derogant – whether Magistrate in error.

G. was charged with driving a motor vehicle with a concentration of alcohol above the prescribed limit (0.182%BAC). Whilst driving her motor vehicle, G. was involved in an accident with another vehicle and then returned to her home. Later, when police offi cers attended her home, G. underwent a PBT and subsequently a breath test. At the hearing of the charges, G. gave evidence that she had had half a glass of wine before the accident and had consumed four or fi ve glasses of wine at her home after the accident. In accepting the evidence given by G, the Magistrate dismissed the charges stating that it was not necessary for G. to prove that the post-driving consumption of alcohol had to be corroborated by the material evidence of another person as required by s48(1A) of the Road Safety Act 1986. The Magistrate was satisfi ed that as a result of s164 of the Evidence Act 2008, the requirement for corroboration had been displaced. Upon appeal—

HELD: Appeal allowed. Dismissal quashed. Remitted to the Magistrates' Court for hearing and determination according to law.1. Section 48(1A) of the Road Safety Act 1986 as a whole applied to proof of the charge brought against the defendant, with the effect that her evidence as to the timing of her consumption of alcohol was required to be corroborated by the material evidence of another person in order to displace the presumption in s48(1A)

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DRINK/DRIVING in VICTORIAthat the concentration of alcohol in her breath was not due solely to her consumption of alcohol after driving.

2. Section 8 of the Evidence Act 2008 requires s164(1) to be read down so that the provision does not affect other statutory provisions requiring the corroboration of evidence. Statutory requirements for the corroboration of evidence are unaffected by s164(1). As a result, s164(1) must be construed to be confi ned to abolishing common law requirements for the corroboration of evidence and not to requirements imposed by statute to deal with specifi c situations.

3. This is not a case where the rule about the implied repeal of an earlier provision by a later one should apply. The provisions in question are an earlier provision imposing a very specifi c requirement for corroboration in the context of complex legislation containing highly specifi c evidentiary provisions (including in respect of drug and alcohol related offences) and a later general provision dealing with evidence on which a party relies. Any inconsistency would be between a specifi c provision that was enacted to deal with a particular mischief and a provision dealing with the corroboration of evidence generally. Where there is a gene ral provision that would neutralise a special provision dealing with the same subject matter, the special provision must be read as a proviso to the general provision, and the general provision, so far as it is inconsistent with the special provision, must be deemed not to apply. The general does not detract from the specifi c: generalia specialibus non derogant.

4. All of s48(1A) of the Road Safety Act, including the corroboration requirement, remained operative. The Magistrate erred in basing her decision to dismiss the charge on the uncorroborated evidence of the respondent.

Emerton J:"1. On 17 February 2011, the respondent, Ms Gibson, was charged with offences under s49(1)(b) and s49(1)(f) the Road Safety Act 1986 (Vic) (the ‘Road Safety Act’). The offences related to the concentration of alcohol in her breath while driving or within three hours of driving a car. The alleged concentration was 0.182 per cent, well above the prescribed limit of 0.05 per cent.

4. In combination, ss49(1)(f) and 48(1A) provide that while an offence under s49(1)(f) is not committed unless it is established that the concentration of alcohol was not due solely to the consumption of alcohol after driving, there is a presumption that the concentration was not due solely to the consumption of alcohol after driving unless the contrary is proved by the person charged. Proof is on the balance of probabilities by sworn evidence given by the person charged. Although s48(1A) provides on its face that such evidence be ‘corroborated by the material evidence of another person’, one of the critical questions on appeal is whether that requirement has been displaced by s164(1) of the Evidence Act 2008 (Vic) (the ‘Evidence Act’), which provides simply that it is not necessary that evidence on which a party relies be corroborated.

5. For the reasons that follow, s48(1A) as a whole applies to proof of the charge brought against the respondent, with the effect that her evidence as to the timing of her consumption of alcohol was required to be corroborated by the material evidence of another person in order to displace the presumption in s48(1A) that the concentration of alcohol in her breath was not due solely to her consumption of alcohol after driving.

8. At about 7.30pm, the informant and another police offi cer attended the respondent’s home. The respondent underwent a preliminary breath test and, as a result, was required to accompany the informant to Diamond Valley Police Station where she underwent a further breath test at 8.12 pm. This test produced a reading of 0.182 per cent.

9. The respondent told the police, and later gave evidence, that she had consumed four or fi ve glasses of wine at her home after the accident. She said that she had had just half a glass of wine before the accident.

14. It is convenient to consider the grounds of appeal together. The central question on appeal is whether s164(1) abolishes the requirement for corroboration in s48(1A), having regard to s8, which limits the operation of the Evidence Act. Sections 8 and 164 of the Evidence Act must be construed in order to determine whether they effect an implied repeal of the requirement for corroboration in s48(1A).

25. In my view, s8 requires s164(1) to be read down so that the provision does not affect other statutory provisions requiring the corroboration of evidence. Statutory requirements for the corroboration of evidence are unaffected by s164(1). As a result, s164(1) must be construed to be confi ned to abolishing common law requirements for the corroboration of evidence.

29. In my view, this makes it plain that the mischief that s164 was intended to remedy was the technical and arbitrary nature of the rules for the corroboration of evidence in the common law.

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PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIALegislated corroboration requirements were intended to be dealt with separately.

30. It follows that on its proper construction, s164(1) of the Evidence Act applies to common law requirements for corroboration, not to requirements imposed by statute to deal with specifi c situations.

31. On this cons truction, there is no inconsistency between s48(1A) of the Road Safety Act and s164(1) of the Evidence Act.

34. I consider it to be unlikely that the legislature, in enacting a general provision in the Evidence Act abolishing the requirement for evidence to be corroborated, intended to undo or abandon a requirement that it had specifi cally enacted to deal with evidence given by a person charged with drink driving about the timing of their alcohol consumption. Section 49(1)(f), which describes the elements of the offence, and s48(1A) which is directed to the proof of the offence, operate together. The party charged with proving the offence is given the benefi t of a presumption, which may be rebutted by evidence given by the person charged. The corroboration requirement in s48(1A) forms an integral part of this regime. It is not diffi cult to identify the purpose of the requirement given the ease with which the presumption in s48(1A) could be displaced. Drink driving is a matter of great community concern. Had the legislature intended to make it harder to prosecute a person charged with drink driving by removing the requirement for the corroboration of evidence given by the person charged about when the drinking took place, it would have done so expressly and by reference to the provision in question.

35. I therefore reject the respondent’s submissions that s164(1) of the Evidence Act effects an implied repeal of that part of s48(1A) of the Road Safety Act requiring the corroboration of evidence and that the ‘clear words’ of s164(1) ‘make it plain that any legislative rule requiring corroboration is no longer to stand’.

36. All of s48(1A) of the Road Safety Act, including the corroboration requirement, remains operative. The learned magistrate erred in basing her decision to dismiss Charge 2 on the uncorroborated evidence of the respondent.

Conclusion37. The grounds of appeal are made out. 38. The appeal must be allowed and the order made on 28 October 2010 by the Magistrates’ Court at Heidelberg in case number B10523211 dismissing Charge 2 must be quashed. 39. Charge 2 must be remitted to the Magistrates’ Court at Heidelberg for hearing and determination according to law."

Per Emerton J in DPP v Gibson [2012] VSC 297; (2012) 61 MVR 261; MC 24/2012, 9 July 2012.

284. Preliminary breath test conducted with positive result – driver said that he would go to the police station to undergo the breath test after he was shown the reading – Magistrate dismissed the charge – whether driver refused a requirement to accompany police to police station for breath analysis – whether inference consistent with innocence was reasonably open on the accepted facts – Magistrate in error.

B. was intercepted driving a motor vehicle and after undergoing a preliminary breath test which was positive, was asked by the police informant to accompany him to the police station for a breath test. B. said he would go to the police station when he saw the reading. He was later charged with refusing to comply with a requirement to accompany the police offi cer to the police station to furnish a sample of breath for analysis. The Magistrate dismissed the charge on the ground that she was not satisfi ed beyond reasonable doubt that B. had refused to comply with the police offi cer's requirement. Upon appeal—

HELD: Appeal allowed. Dismissal quashed. 1. To establish an offence under s49(1)(e) of the Road Safety Act 1986 ('Act'), the prosecution must prove that—

(a) a requirement was made under s55(1) of the Act; and(b) the offender refused to comply with the requirement.

2. The only issue in the present case was whether B. refused to comply with the requirement, there being no issue as to whether the requirement was in fact made.

3. The evidence led before the magistrate, and accepted by her, showed that B.'s response to the four requests put to him by the police was, in substance: ’I will accompany you to the police station only if you show me the reading of the preliminary breath test’.

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DRINK/DRIVING in VICTORIA4. Section 49(1)(e) of the Act does not admit any conditions to compliance with a s55(1) requirement. And the law is clear that police are not obliged to show, and in fact may be unwise to show, the result of a preliminary breath test to drivers. Yet the magistrate seemed to conclude there was an alternative inference available on the facts, consistent with innocence – that is consistent with B. not refusing to comply with the requirement. Her Honour formulated that alternative inference as being that B. was being ‘argumentative with the police’, mistakenly ‘asserting a right’ and ‘he wanted to see the [preliminary breath test] reading’.

5. Such a position cannot reasonably be seen to be consistent with innocence at all: it is entirely inconsistent with lawful compliance and consistent only with refusal.

6. The only reasonable inference available from the accepted fact that, after four requests, B. was being argumentative with police, asserting a mistaken view of the law and wanting to see the reading, as a condition of complying with the informant’s requirement, was that he refused to comply with that requirement.

7. It followed that the Magistrate erred in law. The nature of that error was that her Honour wrongly treated B.'s particular reasons for not being willing to comply as supporting the inference that he had not refused to comply. In so doing, her Honour either failed to apply an objective test for assessing refusal as required, or took into account irrelevant matters, or both. Hrysikos v Mansfi eld [2002] VSCA 175; (2002) 5 VR 485; (2002) 135 A Crim R 179; (2002) 37 MVR 408, applied.

Macaulay J:"1. Frank Blango (the respondent) was asked four times to accompany police to a police station for a breath test after a preliminary breath test indicated his breath contained alcohol. In response, Mr Blango insisted upon seeing the result of the preliminary breath test, saying he would go to the police station when he saw the reading. The reading was not shown to him, but neither was there any requirement that it should.

2. A magistrate acquitted Mr Blango of the charge of refusing to comply with a requirement, made by a policeman under s55 of the Road Safety Act 1986 (Vic), that he accompany the offi cer to a police station to furnish a sample of breath for analysis. In doing so the magistrate said she was not satisfi ed beyond reasonable doubt that Mr Blango had refused to comply with the offi cer’s requirement. The question in this case, the Director’s appeal under s272(1) of the Criminal Procedure Act 2009 (Vic), is whether such a fi nding was open to the magistrate correctly applying the law.

11. In her Honour’s view the clear position was that Mr Blango wanted to see the reading – at no time did he say he refused to go but he gave a conditional response, ’I will go with you when you tell me the reading’.

16. Section 49(1)(e) of the Act does not admit any conditions to compliance with a s55(1) requirement. And the law is clear that police are not obliged to show, and in fact may be unwise to show, the result of a preliminary breath test to drivers. Yet the magistrate seemed to conclude there was an alternative inference available on the facts, consistent with innocence – that is consistent with Mr Blango not refusing to comply with the requirement. Her Honour formulated that alternative inference as being that Mr Blango was being ‘argumentative with the police’, mistakenly ‘asserting a right’ and ‘he wanted to see the [preliminary breath test] reading’.

17. In my view, such a position cannot reasonably be seen to be consistent with innocence at all: it is entirely inconsistent with lawful compliance and consistent only with refusal.

21. It follows that I accept that the magistrate erred in law. The nature of that error is that her Honour wrongly treated Mr Blango’s particular reasons for not being willing to comply as supporting the inference that he had not refused to comply. In so doing, her Honour either failed to apply an objective test for assessing refusal as required by Hrysikos v Mansfi eld [2002] VSCA 175; (2002) 5 VR 485, 487 [3]; (2002) 135 A Crim R 179; (2002) 37 MVR 408, or took into account irrelevant matters, or both. ..."

Per Macaulay J in DPP v Blango [2012] VSC 384; MC 33/2012, 5 September 2012.

285. Alleged refusal of requirement to allow a blood sample to be taken – whether necessary to refer to temporal limitation on power to make requirements when making requirement to allow a blood sample to be taken – whether necessary to refer to the three-hour period during which a person may be required to remain for the purposes of allowing a blood sample to be taken when making requirement to allow a blood sample to be taken – whether necessary to refer to registered medical practitioner or authorised health professional when making requirement to allow blood sample to be taken – charge dismissed by Magistrate – whether Magistrate in error.

N. was charged with refusing to allow a blood sample to be taken from him within three hours of driving. N.

299

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAaccompanied the police informant to the police station and underwent two breath tests which resulted in an "insuffi cient sample". The informant then said to N.: "You have given two insuffi cient samples of breath into the breathalyser instrument and, as such, I now require you to undergo a blood test. Do you understand?" N. responded: "No, I'm allergic to needles, I am not having a blood test." N. was subsequently charged and the Magistrate dismissed the charge on the ground that the informant did not comply with the requirements of s55(9A) of the Road Safety Act 1986 ('Act'). Upon appeal—

HELD: Appeal dismissed.1. From the authorities the following principles can be distilled:

(a) the statutory purpose of P art 5 of the Act is to combat a recognised social evil, necessitating the provision of powers to police and others to make requirements including those under ss55 (1) and (9A);

(b) the Act, nevertheless , is of a penal nature, requiring a person to provide potentially incriminating material, and must be strictly construed and ambiguity resolved in favour of that person;

(c) the powers to require a sample of breath or of blood under s55 are subject to a temporal limit of three hours from driving;

(d) the requirement for a sample of breath or blood to be furnis hed need not be expressed in any particular form of words, so long as what is required is made clear;

(e) the requirement to furnish a sample of breath under s55(1) need not be expressed in imperative terms;

(f) the powers to make re quirements in relation to breath samples under s55(1) are permissive;(g) the powers under s55( 1) to require a person ‘to furnish a sample of breath’, ‘to accompany’ and ‘to remain’ are discrete and need only be exercised where the circumstances dictate;

(h) a requirement ‘to remain’ m ade under s55(1) must specify its purpose and the applicable temporal limit in relation to its exercise;

(i) when exercising the power to require a person to furnish a breath sample under s55(1), there is no general duty or obligation to inform the person about the further subsidiary (or machinery) powers under sub-s(1) to require the person ‘to accompany’ or ‘to remain’ for the purpose of satisfying the requirement to provide the sample of breath.

2. The Magistrate’s decision to dismiss the charge was correct, because the informant had failed to communicate to N. the essential fact that he was only required to allow a registered medical practitioner or approved health professional to take a sample of his blood.

3. N. would only have offended under s49(1)(e) of the Act if he had refused such a requirement. When his refusal could have constituted a criminal offence, it was critical that the informant should have conveyed to him exactly what was being required of him.

4. Under s55(9A), the informant could not have been required to allow anyone other than a registered medical practitioner or an approved health professional to take a blood sample. Yet, what the informant said gave no indication that the requirement was limited to allowing such a person to take his blood. This was in circumstances where the informant himself had conducted the two unsuccessful breath tests in the presence of another offi cer.

5. The fact that the requirement was one to allow a sample to be taken only by a registered medical practitioner or an approved health professional was not an ancillary logistical detail that could be communicated to a driver at some later stage. As an essential part of the permissible requirement, it should have been communicated to N. at the time he was asked to undergo a blood test. This was not to prescribe a form of words that must be used, but rather to insist that the requirement under s55(9A) was properly made.

Williams J:4. The notice of appeal contains a number of questions. However, the appeal essentially raises two questions of law.

5. The fi rst is as to whether it was necessary to proof of the charged offence to establish that the informant making the requirement for a blood sample under s55(9A) referred to the three hour period during which the requirement might be made and during which Mr Novakovic might be required to remain for the purpose of allowing a blood sample to be taken.

6. The second issue, raised by a notice of contention, is as to whether it was essential to that proof

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DRINK/DRIVING in VICTORIAto establish that the police offi cer making the requirement had stated that the requirement was to allow a registered medical practitioner or authorised health professional to take the blood sample.

13. The informant then said this to Mr Novakovic:

You hav e given two insuffi cient samples of breath into the breathalyser instrument and, as such, I now require you to undergo a blood test. Do you understand?

47. I am, however, persuaded by Mr Novakovic’s contention that the Magistrate’s decision was, in the event, correct, because the informant had failed to communicate to him the essential fact that he was only required to allow a registered medical practitioner or approved health professional to take a sample of his blood.

48. Mr Novakovic would only have offended under s49(1)(e) of the Act if he had refused such a requirement. When his refusal could constitute a criminal offence, it was critical that the informant should convey to him exactly what was being required of him.

49. Under s55(9A), he could not be required to allow anyone other than a registered medical practitioner or an approved health professional to take a blood sample. Yet, what the informant said gave no indication that the requirement was limited to allowing such a person take his blood. This was in circumstances where the informant himself, according to the evidence in the Magistrates’ Court, had conducted the two unsuccessful breath tests in the presence of another offi cer. Mr Novakovic may also have known that police might be involved in taking other bodily samples by use of a swab.

50. As J Forrest J said in Uren v Neale [2009] VSC 267; (2009) 53 MVR 57; (2009) 196 A Crim R 415:

To establish the offence, it was necessary to prove the requirement. The refusal can only become relevant provided the requirement has been properly stated, at least so that the driver knows his or her basic obligations.]

51. The fact that the requirement is one to allow a sample to be taken only by a registered medical practitioner or an approved health professional is not an ancillary logistical detail that can be communicated to a driver at some later stage. As an essential part of the permissible requirement, it should have been communicated to Mr Novakovic at the time he was asked to undergo a blood test. This is not to prescribe a form of words that must be used, but rather to insist that the requirement under s55(9A) is properly made.

52. The appeal should be dismissed."Per Williams J in DPP v Novakovic [2012] VSC 397; MC 35/2012, 7 September 2012.

286. Driver asked to take a breath test – no specifi cation whether test was a preliminary or full breath test – charge dismissed by Magistrate – Magistrate not satisfi ed that driver understood what type of test was sought to be taken – whether refusal of requirement for preliminary breath test under s53(1) Road Safety Act 1986 – whether requirement under s53(1) made – whether ‘anticipatory’ refusal of requirement – whether Magistrate in error.

HELD: Appeal dismissed.1. The Magistrate did not conclude that the word 'preliminary' must be used in every case when a requirement is made under s53(1) of the Road Safety Act 1986.

2. Each case must be determined on its own facts. The evidence capable of establishing the offence may vary from case to case. No particular form of words must be used to make the requirement under s53(1), the refusal of which will found an offence under s49(1)(c). It may not be necessary to use the word ‘preliminary’ when referring to the required test. Factors such as whether or not the preliminary breath-testing device was presented to the driver and whether the driver had been stopped at a preliminary breath testing point will be relevant to the determination as to what would be reasonably suffi cient to communicate the requirement in the context under consideration. Proof of the offence is not dependent upon proof of recitation of the words of the relevant provision.

3. In the present case, what the informant said was ambiguous in all the circumstances. Notwithstanding the early hour, the location, the previous exchange between the informant and the respondent’s fl ight, the informant might reasonably have been taken to have been requiring the respondent either to undergo a preliminary breath test under s53(1) or to provide a breath sample under s55(2), (at the police car or at a police station, without having undergone a preliminary test). There was no specifi c mention of a preliminary breath test or of the fact that the police offi cer was going to the police car to obtain a preliminary breath testing device in order to administer one. Nor had the respondent been stopped at a preliminary breath testing station whilst driving.

301

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIA4. In the circumstances of this case, it would not have been open on the evidence to conclude beyond reasonable doubt that the respondent was told suffi cient to know that it was a preliminary breath test he was being required to undergo in all the circumstances. Such a conclusion would have involved impermissible speculation on the part of the Magistrate.

5. A refusal of a requirement under s53(1) of the Act might be proved by what the appellant characterised as ‘anticipatory refusal’, if the circumstances were such that it could be concluded that suffi cient had already been said or done to communicate, in the circumstances, that it was that requirement which was about to be made. In relation to the insuffi ciency of the evidence of the necessary requirement indicated that this was not such a case, even though the Magistrate was satisfi ed that the informant had intended to require the respondent to undergo a preliminary breath test.

6. Section 49(1)(c) is a penal provision and courts should not take a ‘near enough is good enough’ approach to the application of such legislation, notwithstanding the community’s interest in the promotion of the Act’s stated objectives. The obligation remains upon the prosecution to prove the elements of the alleged offence . It is refusal of a requirement under s53(1) for a preli minary breath test which is a fundamental element of the s49(1)(c) offence.

7. Accordingly, the Magistrate did not err and the appeal was dismissed.

Williams J:"1. The respondent made the no-case submission on the grounds that the requirement that he undergo the breath test had not been put in imperative terms and that it did not refer to a ‘preliminary’ breath test, as opposed to any other type of breath test.

21. The appellant argues that it is implicit in her Honour’s reasons that, to suffi ciently convey the necessary requirement under s53(1), the informant would have had to have said, 'I want you take a preliminary breath test'. The learned Magistrate erred in concluding that the more precise language was necessary. She failed to take all the contextual circumstances into account, in accordance with the correct approach described by Nettle J in Sanzaro [2004] VSC 48; (2004) 42 MVR 279.

22. I am not persuaded that the Magistrate erred as alleged.

25. I agree with the learned Magistrate and counsel for the respondent that what the informant said was ambiguous in all the circumstances. Notwithstanding the early hour, the location, the previous exchange between the informant and the respondent’s fl ight, the informant might reasonably have been taken to have been requiring the respondent either to undergo a preliminary breath test under s53(1) or to provide a breath sample under s55(2), (at the police car or at a police station, without having undergone a preliminary test). There was no specifi c mention of a preliminary breath test or of the fact that Senior Constable Fox was going to the police car to obtain a preliminary breath testing device in order to administer one. Nor had the respondent been stopped at a preliminary breath testing station whilst driving. Someone in his position might reasonably have concluded that it was a potentially incriminating evidentiary sample of breath which was being required of him. I am not persuaded to the contrary by reference to authorities in which community understanding of the breath-testing process has been mentioned.

28. Concluding that there was insuffi cient evidence for a fi ndin g by the learned Magistrate that the necessary requirement had been made is not to give an ‘artifi cially constricted’ meaning to s53(1) or to insist upon a ‘higher degree of formality’ than necessary to establish the requirement to which it refers, contrary to the approach approved by Teague J in Campbell v Sanders (1996) 23 MVR 515; (1996) 86 A Crim R 378, 385.

29. In the circumstances of this case, I am not satisfi ed that the l earned Magistrate erred in determining, in effect, that it would not have been open on the evidence to conclude beyond reasonable doubt that the respondent was told suffi cient to know that it was a preliminary breath test he was being required to undergo in all the circumstances. Indeed, in my view, such a conclusion would have involved impermissible speculation on her Honour’s part.

31. In my view, a refusal of a requirement under s53(1) of the Act might be proved by what the appellant characterises as ‘anticipatory refusal’, if the circumstances were such that it could be concluded that suffi cient had already been said or done to communicate, in the circumstances, that it was that requirement which was about to be made. My conclusion in relation to the insuffi ciency of the evidence of the necessary requirement indicates that I am not persuaded that this is such a case, even though the Magistrate was satisfi ed that the informant had intended to require the respondent to undergo a preliminary breath test.

32. The appellant cites the statutory purpose in s1(a) of the Act: ’to provide for safe, effi cient and

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DRINK/DRIVING in VICTORIAequitable road use’, and argues that it should be furthered by a conclusion that there was evidence upon which the Magistrate could have found that there had been an ‘anticipatory refusal’ of a s53(1) requirement. I disagree.

33. Section 49(1)(c) is a penal provision and courts should not take a ‘near enough is good enough’ approach to the application of such legislation, notwithstanding the community’s interest in the promotion of the Act’s stated objectives. The obligation remains upon the prosecution to prove the elements of the alleged offence . I agree with the respondent that it is refusal of a requirement under s53(1) for a preli minary breath test which is a fundamental element of the s49(1)(c) offence.

34. The Magistrate did not err and the appeal should be dismissed."Per Williams J in DPP v Skafi diotis [2013] VSC 258; MC 19/2013, 17 May 2013.

287. Allegation that breath analysing instrument not in proper working order – accused suffered from gastric refl ux – accused did not tell the informant about belching into the breath analysing instrument – right to silence – whether judge drew an impermissible inference from lack of explanation or complaint by the accused – whether silence was used to impermissibly impugn the credibility of the accused – whether error of law on the face of the record – whether error had a material effect on the outcome of the case.

W. was intercepted driving his motor vehicle and later underwent a breath test which returned a reading of 0.147%. W. was subsequently charged and convicted in the Magistrates' Court. On appeal to the County Court W. was again convicted. At the hearing on appeal, W. claimed that because of his gastric refl ux disease he burped at the time of taking the test. Further, he claimed that he had not drunk nearly enough alcohol to warrant the reading. In fi nding the charge proved, the judge indicated that in assessing W.'s credibility he had taken into account that W. had said "No comment" and that he did not mention having burped while taking the test. Upon appeal, the conviction was set aside and remitted to the County Court for hearing and determination by another Judge. On the rehearing the Judge found the charge proved. Upon appeal—

HELD: Application for review dismissed.1. The circumstances of giving the breath sample were such that it was reasonable to assume that Mr Wilson would say something about having suffered from a bout of refl ux while giving the sample. Mr Wilson had just fi nished answering a series of questions that were plainly directed to ensuring that he gave a readable and reliable sample. On his own evidence, there was about a minute between the time that he fi nished giving the sample and the time that he was informed about the reading and cautioned. In those circumstances, it was not a breach of his right to silence to call into question Mr Wils on’s credibility on the basis that he said nothing about belching and made no complaint about the eruption of his condition at the time of testing.

2. In the circumstances described, there was no interference with Mr Wilson’s right to silence. The judge commented that his conduct at the time of giving the sample was not consistent with the evidence that he gave at trial about suffering from heartburn and belching. This was part of her Honour’s function in assessing his evidence.

3. Assuming that the defence unde r s49(4) was capable of being made out if Mr Wilson belched into the instrument, the onus lay on Mr Wilson to satisfy the court that he belched into the breath analysing instrument so as to cause the i nstrument not to be ‘in proper working order’. On the evidence before the County Court about how the breath analysing instrument operated and its capacity to detect mouth alcohol, Mr Wilson had to satisfy the court that he belched into the instrument at a particular point in time. In the circumstances, the timing of the belch (and not merely the fact of the belch) was important to making out his defence.

4. Having regard to the diffi culties discerning exactly what Mr Wilson was describing from time to time, it was open to the judge to fi nd that Mr Wilson did not give a consistent account of when he belched. There was evidence that Mr Wilson told Professor Hebbard in 2004 that he could not remember when he belched into the instrument, although Professor Hebbard said that he did not ask Mr Wilson about regurgitation. Mr Wilson’s evidence-in-chief before the judge was that he belched at the end of the test, but when taken by the prosecutor to the evidence he gave in the fi rst County Court appeal, Mr Wilson said there were in fact two incidents of belching.

5. It was open to the judge to fi nd that Mr Wilson gave inconsistent evidence about when he belched and to fi nd the charge proved.

Emerton J:"3. Mr Wilson appealed to the County Court of Victoria, relying on s49(4) of the Act. He claimed that he had long suffered from gastric refl ux disease and that this condition caused him to burp or belch (‘Belch’ is the term used by the County Court judg e to describe the expulsion of air (or air and liquid)

303

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAfrom Mr Wilson’s mouth) whi le taking the breath test, and the breath analysing instrument gave an incorrect result. Mr Wilson also claimed that he had not drunk nearly enough alcohol to warrant the high reading given by the instrument, having had only a small number of drinks at the Melbourne Airport Club prior to being breath tested.

4. Both of these propositions depended on evidence given by Mr Wilson, although he also relied on certain corroborative and expert evidence.

8. In the second County Court appeal, Mr Wilson again raised the defence that the breath analysing instrument was not in proper working order, based on the alleged distortion of the result due to his having burped or belched while breathing into it. He also argued that he had not drunk nearly enough alcohol to produce the high reading given by the instrument. He adduced evid ence from his gastroenterologist, Professor Hebbard, and from Mr Farrer, the inventor of the breath analysing instrument, who gave evidence as to the effects of the presence of exogenous or ‘mouth’ alcohol on readings given by the instrument. Mr Wilson also called two lay witnesses who were at the club at which he had been drinking prior to being stopped and breath tested.

23. Unlike the judge in the fi rst Wilson appeal, therefore, the judge in the second Wilson appeal did not focus on Mr Wilson’s ‘no comment’ answer. Rather, her Honour took into account in assessing the reliability and credibility of his evidence Mr Wilson’s lack of complaint at the time of testing, having regard to the circumstances in which he says he found himself when he gave the breath sample.

29. I agree that, in the context in which it was said, her Honour’s observation about Mr Wilson’s failure to reveal having belched and his lack of complaint about heartburn and discomfort at the time of testing was a comment on the implausibility of this conduct, having regard to the testing regime and the circumstances in which Mr Wilson found himself. It did not involve a breach of Mr Wilson’s right to silence.

34. However, it is common ground that, having answered the preliminary questions as described and proceeded to give a sample, Mr Wilson then said nothing about the actual effect of his gastric refl ux condition on the breath test, that is, that he belched while giving the sample. Mr Wilson now says that he did something that caused the breath analysing instrument to give an incorrect reading. That ‘something’ was an event known only to him which would remain exclusively within his knowledge unless he chose to share it with the informant.

35. In my view, the circumstances of giving the breath sample were such that it was reasonable to assume that Mr Wilson would say something about having suffered from a bout of refl ux while giving the sample. Mr Wilson had just fi nished answering a series of questions that were plainly directed to ensuring that he gave a readable and reliable sample. On his own evidence, there was about a minute between the time that he fi nished giving the sample and the time that he was informed about the reading and cautioned. In these circumstances, it was not a breach of his right to silence to call into question Mr Wils on’s credibility on the basis that he said nothing about belching and made no complaint about the eruption of his condition at the time of testing.

36. I have concluded that in the circumstances described, there was no interference with Mr Wilson’s right to silence. The judge commented that his conduct at the time of giving the sample was not consistent with the evidence that he gave at trial about suffering from heartburn and belching. This, as the defendant submitted, was part of her Honour’s function in assessing his evidence.

44. In my view, therefore, the learned judge would have come to the same conclusion about the reliability and credibility of Mr Wilson’s evidence had she not drawn any inference at all from his failure to reveal having belched or from his lack of complaint about suffering from heartburn and discomfort at the time of taking the test.

45. The judge was charged with assessing Mr Wilson’s credit. She identifi ed inconsistencies in his account of when he belched and how many drinks he had consumed. It was open to her Honour to question whether he was being frank or honest in his evidence. In the event, her Honour rejected Mr Wilson’s evidence because she found that it contained too many inconsistencies.

46. I am therefore not persuaded that, but for the inference drawn from Mr Wilson’s failure to reveal belching and his lack of complaint at the time of testing, the judge’s decision to reject Mr Wilson’s evidence and his defence would have been, or might have been, different. The basis for the credit fi nding in the second County Court appeal may be distinguished from the basis for the credit fi nding in the fi rst County Court appeal, where there was no independent ground for impugning Mr Wilson’s credit. The situation in the second County Court appeal was markedly different, in that – as the judge found – there was a suite of prior inconsistent statements as to when Mr Wilson belched into the breath analysing instrument.

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DRINK/DRIVING in VICTORIA53. In my view, the test formulated by the learned judge correctly referred to the evidence required in this case to establish the ‘relevant question of fact’. The expert evidence was that the breath analysing instrument would not respond to mouth alcohol unless it was detected in the last second of blowing. This meant that there could be no suggestion that the machine was not working properly by reason of Mr Wilson’s belching unless the mouth alcohol entered the machine in the last second of blowing. The test formulated by her Honour correctly refl ected this evidentiary hurdle.

58. Having regard to the diffi culties discerning exactly what Mr Wilson was describing from time to time, I have concluded that it was open to the judge to fi nd, as she did, that Mr Wilson did not give a consistent account of when he belched. There was evidence that Mr Wilson told Professor Hebbard in 2004 that he could not remember when he belched into the instrument, although Professor Hebbard said that he did not ask Mr Wilson about regurgitation. Mr Wilson’s evidence in chief before her Honour was that he belched at the end of the test, but when taken by the prosecutor to the evidence he gave in the fi rst County Court appeal, Mr Wilson said there were in fact two incidents of belching. In my view, it was open to her Honour to fi nd that Mr Wilson gave inconsistent evidence about when he belched.

59. If the learned judge misunderstood some of Mr Wilson’s evidence or some part of the evidence of his history of complaint about belching, it was not an error of law. It was open to her to fi nd as she did.

60. Ground 3 is not made out.

Conclusion61. Mr Wilson has failed to establish an error of law on the face of the record. His application for review will be dismissed."

Per Emerton J in Wilson v County Court of Victoria and Anor (No 2) [2013] VSC 369; MC 33/2013, 19 July 2013.

288. Driving with breath alcohol content in excess of prescribed limit – whether defendant ‘in charge of vehicle’ – defendant found by police informant asleep in driver’s seat with engine running – vehicle stopped, gear in park – erroneous view of Magistrate as to construction of Act – whether conviction nevertheless should stand – charge dismissed.

H. was found by the police informant K. asleep in the driver's seat of his vehicle. K. noted that the engine was running and H. was slouched over the steering wheel. K. knocked on the window to attract H's attention and after a few minutes' delay, H. sat up and opened the car door. H. was later charged with being in charge of the vehicle with a BAC of 0.266. During the hearing, the Magistrate ruled that he was not constrained to confi ne his consideration to the question whether H's circumstances came within any of the four categories specifi ed in s3AA(a) to (d) of the Road Safety Act 1986 ('Act'). The Magistrate found the charges proved. Upon appeal—

HELD: Appeal allowed. Magistrate's order set aside and the charges dismissed.1. The terms of s48(1)(b) of the Act are clear and unequivocal. By its express terms, s48(1)(b) specifi cally provides that, for the purposes of Part 5 of the Act, a person is not to be taken to be in charge of a vehicle unless that person is a person to whom sub-paragraphs (a) to (d) of s3AA applies. There is no warrant for construing s48(1)(b) other than according to its plain terms.

2. In determining whether the Magistrate was satisfi ed that the appellant wa s ‘in charge of’ the vehicle for the purposes of s49(1)(b) of the Act, the magistrate was obliged to, but did not, consider whether he was satisfi ed that the case came within one of the four categories of circumstances specifi ed in sub-paragraphs (a) to (d) of s3AA(1) of the Act. Instead of doing so, the magistrate considered that he was not bound to determine whether the case fell within one of those four categories, but, rather, he concluded that the appellant was ‘in charge of’ the vehicle because, when he woke up, he was in the driver’s seat, with the engine running. That conclusion did not, alone and without more, bring the case within any of the categories specifi ed in subparagraph (a) to (d) of s3AA(1). In that way, with respect, the magistrate made an error of law.

3. The Magistrate did not make any fi nding whether the police informant, at the relevant time, believed that the appellant intended to drive the vehicle, and, further, made no fi nding as to whether there were reasonable grounds for any such belief, if it was so held by the police informant.

4. Further, the police informant did not give any express evidence as to his belief as to that matter, and as to any grounds upon which he might have held such a belief. The principles relating to the proof of those matters have been discussed in a number of authorities. DPP v Farmer [2010] VSC 343; (2010) 56 MVR 137, referred to.

5. At most the evidence, by the informant, as to the requisite belief, was ambiguous. On the view most favourable to the informant, the evidence was not suffi ciently clear and unequivocal to enable a conclusion that the Magistrate was bound to conclude that the informant held the belief, on reasonable grounds, that the appellant was then intending to drive his vehicle.

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PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIA6. In those circumstances, the conviction should not stand. The magistrate having reached the conclusion on the basis of an erroneous proposition of law, it followed that the conviction was quashed.

Kaye J:"17. As I stated, at the conclusion of the evidence, counsel for the appellant made a ‘no case’ submission. Counsel’s submissions focused on subparagraph (b) of the defi nition in s3AA(1) of the Act. He submitted that in order to be in charge of the motor vehicle, the accused had to be found in circumstances where it was reasonable to believe that he intended to start or drive the vehicle. He submitted that in this case such a belief could not have been held by the informant, because the appellant was asleep in his vehicle when he was approached by the informant. Counsel then took the magistrate to a number of authorities, to which I shall later refer. Having done so, he submitted that the prosecution needed to prove that, when the informant found the appellant, ‘he was about to start or drive the car’, and he submitted that there was no evidence before the court to support that conclusion. 22. Pausing there, it is clear that the magistrate proceeded on the basis that, notwithstanding s48(1)(b) of the Act, a person may be taken to be in charge of a vehicle, for the purposes of s49, although that person did not come within subparagraphs (a), (b), (c) or (d) of s3AA(1) of the Act.

24. In that context, three matters are clear from the magistrate’s decision. First, his Honour proceeded on the basis that it was not necessary for him to fi nd that the case came within any of subparagraphs (a) to (d) of s3AA(1) of the Act, in order to be satisfi ed that the appellant was in charge of the vehicle. Secondly, the magistrate accepted that when Sergeant Kershaw approached the Commodore and knocked on its window, the appellant was then asleep. Thirdly, the magistrate’s decision was based on a fi nding that the appellant, when woken by the informant knocking on his window, was in charge of the vehicle. The magistrate based that conclusion on the fact that the appellant was then awake in the driver’s seat, and that the vehicle engine was running.

26. ... Mr Hardy submitted that the clear purpose of s48(1)(b) of the Act is to narrow the circumstances in which a person is taken to be in charge of a vehicle for the purposes of Part 5 of the Act. It achieves that purpose by fi nding the ambit of the phrase ‘in charge of a vehicle’, for the purposes of Part A, to the four circumstances specifi ed in subparagraphs (a) to (d) of s3AA(1). Mr Hardy submitted that the interpretation adopted by the magistrate ignores, and renders otiose, s48(1)(b) of the Act.

27. The submissions made by Mr Hardy are clearly correct, both as a matter of statutory interpretation, and by way of authority. Mr Gyorffy SC, who appeared on behalf of the respondent, did not contend to the contrary.

28. The terms of s48(1)(b) are clear and unequivocal. By its express terms, s48(1)(b) specifi cally provides that, for the purposes of Part 5 of the Act, a person is not to be taken to be in charge of a vehicle unless that person is a person to whom subparagraphs (a) to (d) of s3AA applies. There is no warrant for construing s48(1)(b) other than according to its plain terms.

34. Thus, in determining whether he was satisfi ed that the appellant wa s ‘in charge of’ the vehicle for the purposes of s49(1)(b) of the Act, the magistrate was obliged to, but did not, consider whether he was satisfi ed that the case came within one of the four categories of circumstances specifi ed in subparagraphs (a) to (d) of s3AA(1) of the Act. Instead of doing so, the magistrate considered that he was not bound to determine whether the case fell within one of those four categories, but, rather, he concluded that the appellant was ‘in charge of’ the vehicle because, when he woke up, he was in the driver’s seat, with the engine running. That conclusion does not, alone and without more, bring the case within any of the categories specifi ed in subparagraph (a) to (d) of s3AA(1). In that way, with respect, the magistrate made an error of law.

46. In the present case, taking the evidence of the respondent before the magistrate at its highest, it is argu able that it is implicit that, at the relevant time, he believed that the appellant was intending to drive the vehicle. However, that evidence falls well short of satisfying the principles which I have summarised above, as to the evidence which needs to be adduced to prove the relevant state of mind of the informant. While the evidence might, perhaps, have been suffi cient to enable the prosecution to withstand a no case submission,[21] nevertheless that evidence would be entirely inadequate to entitle a court to conclude, beyond reasonable doubt, that the informant believed, on reasonable grounds, that the appellant was intending to drive the vehicle, at the time the informant found the appellant in the vehicle. It is a matter of conjecture whether the respondent, on a rehearing, would depose to the required belief, and, if so, whether he would disclose reasonable grounds for such a belief. This is particularly so given the evidence by the respondent that, when he approached the vehicle, the appellant appeared to be asleep, and the appellant only woke up when the respondent knocked several times on the vehicle’s window. In light of that evidence, it is very doubtful that, on a rehearing, the evidence would be suffi cient to prove, beyond reasonable doubt, that the respondent held the belief, referred to in s3AA(1)(b) of the Act.

306

DRINK/DRIVING in VICTORIA47. In those circumstances, I do not accept the submission made on behalf of the respondent that the case be remitted to the Magistrates’ Court for a rehearing. ..."

Per Kaye J in Halley v Kershaw [2013] VSC 439; MC 35/2013, 22 August 2013.

289. Blood alcohol content exceeding 0.05% – Evidence given by police offi cer who conducted the breath test on the instrument – tape-recording of the breath testing produced to court – discrepancy between what operator said at the time and later in court when giving evidence – difference between the numbers impressed on the instrument – no evidence given in Court as to whether the instrument was an "Alcotest" – whether the evidence established that the instrument met the defi nition in the Act – certifi cate produced setting out details of the instrument – charge found proved – whether certifi cate admissible – whether open to the Court to conclude that the test was conducted on breath analysing instrument.

O'C. was intercepted by B. whilst driving his motor vehicle and later underwent a breath test by a breath analysing instrument. The reading was 0.07BAC and O'C. was charged with a drink/driving offence. At the hearing, a Certifi cate was tendered pursuant to s58(2) of the Road Safety Act 1986 ('Act') and the operator B. was required to give evidence which included the numbers impressed on the breath analysing instrument. However, the operator failed to mention that the instrument was an "Alcotest". Also, the evidence included a tape-recording of the incident during which the operator said that the instrument was impressed with the numbers '353075191' instead of '3530791'. It was submitted that the prosecution had failed to prove that the instrument was one for the purposes of s3 of the Act. The court found the charge proved and that the operator had used a breath analysing instrument as defi ned in the Act. Upon an originating motion—

HELD: Originating motion dismissed.1. The issue in the present case was whether the Court erred in law in holding that the operator B. had established that the breath analysing instrument, which was used to test the plaintiff O'C., was an instrument which met the defi nition of a breath analysing instrument in s3 of the Act. That is, whether the instrument in question was an Alcotest 7110 instrument and whether the plate attached to the instrument was inscribed with the numbers 3530791.

2. The authorities make it plain that, where notice has been given under s58(2) of the Act, the certifi cate constitutes evidence of each of the facts stated in it, including facts which are relevant to establish that the apparatus, used to test a person’s blood alcohol content, is a breath analysing instrument as defi ned by s3 of the Act.

3. In this case, the certifi cate contained the words “Drager Alcotest 7110”. The judge was entitled to form the view that, by containing those words, the certifi cate was evidence of the fact that the instrument, operated by B. was a “Drager Alcotest 7110”. The certifi cate was produced by an apparatus, which was used by B. to test O'C's blood alcohol content by analysing a sample of his exhaled breath. As a matter of common sense, the words “Alcotest 7110”, on that certifi cate, were clearly capable, without further explanation, of denoting the type of apparatus used by B. Accordingly, it was open to the judge on the evidence to conclude that the instrument used by the operator in this case, was a Drager Alcotest 7110, for the purposes of the defi nition of a breath analysing instrument in s3(a) of the Act. 4. The issue, whether there was a confl ict between the sworn evidence of B., and the numbers which she read out in the conversation she had with O'C., and, if so, how that confl ict should be resolved, was entirely a matter for the judge as the tribunal of fact in the case. The evidence of the recorded conversation did not, as a matter of law, necessitate the conclusion contended for by O'C., namely, that the judge could not be satisfi ed that the label, attached to the breath analysing instrument, was impressed with the number 3530791.

5. It is clear that when B. read out the numbers on the instrument, she paused after reading the numbers “51”, and then said the words “91”, as if she had read the numbers “51” in error. This observation demonstrates that there was no necessary inconsistency or tension between the evidence of B. and the recorded conversation.

6. It was a matter for the judge whether there was a relevant discrepancy between the evidence of B., and the recorded conversation, and, if so, whether that difference was required to be explained by B. Equally, it was a matter for the judge, as the tribunal of fact to decide, whether, in the absence of any such explanation, her Honour should draw the inference that any such explanation given by B. would not have assisted the prosecution. The absence of any such explanation by B. did not necessitate the conclusion that the judge could not rely on the sworn evidence of B. as to the numbers contained on the plate affi xed to the breath analysing instrument.

7. Accordingly, it was open to the judge, on the evidence, to be satisfi ed beyond reasonable doubt that the plate on the instrument was inscribed with the letters “3530791” and to fi nd the charge proved.

307

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAKaye J:

"7. The issue, which is the subject of the plaintiff’s application, is whether the judge erred in law in holding that the second defendant had established that the breath analysing instrument, which was used to test the plaintiff, was an instrument which met the defi nition of a breath analysing instrument in s3 of the Act.

14. Following those submissions, the judge delivered a ruling, rejecting the contentions made by the plaintiff. Her Honour held that she was satisfi ed, on the evidence of Leading Senior Constable Bradshaw, that the breath analysing instrument, which she used, was “the apparatus known as the Alcotest 7110 to which a plate is attached on which there was written the numbers 3530791”.

42. In her ruling, the judge relied on the certifi cate, tendered pursuant to s58(2) of the Act, as evidence that the machine was an Alcotest 7110. The certifi cate was produced by a printout from the machine. It contained the words “Drager Alcotest 7110”. It then set out the serial number and sample number, the location of the test, the name and date of birth of the plaintiff, the name and number of the informant and of the operator of the machine, the fact that the “zero test” of the machine was correct, the date and time of the test, and the result of the test (“0.070 grams of alcohol in 210 litres of breath”). The certifi cate then concluded with the operator’s signature.

45. In my view, that passage is not authority for the proposition that, where notice has been given under s58(2), the certifi cate may not constitute evidence of matters which are relevant to establish that the instrument was a breath analysing instrument conforming with the defi nition contained in s3 of the Act. Rather, in that passage from his Honour’s judgment in Impagnatiello, Eames JA made the point that, where a notice is served under s58(2), the certifi cate, of its own force, is no longer proof of the matters set out in sub-paragraphs (a) to (f) of s58(2), including (in that case) the matter contained in s58(2)(b), namely, that the instrument used was a breath analysing instrument within the meaning of the Act. However, his Honour made it clear, in the next passage in his judgment, that, pursuant to s58(2D), the certifi cate did have residual evidentiary effect, by providing evidence of the actual factual matters stated in it.

49. In my view, those authorities make it plain that, where notice has been given under s58(2) of the Act, the certifi cate constitutes evidence of each of the facts stated in it, including facts which are relevant to establish that the apparatus, used to test a person’s blood alcohol content, is a breath analysing instrument as defi ned by s3 of the Act.

50. In this case, the certifi cate contained the words “Drager Alcotest 7110”. Mr Billings submitted that those words, without more, were meaningless, because they were not explained by the operator, Senior Constable Bradshaw, in her evidence. I do not agree. The judge was entitled to form the view that, by containing those words, the certifi cate was evidence of the fact that the instrument, operated by Senior Constable Bradshaw, was a “Drager Alcotest 7110”. The certifi cate was produced by an apparatus, which was used by Senior Constable Bradshaw to test the plaintiff’s blood alcohol content by analysing a sample of his exhaled breath. As a matter of common sense, the words “Alcotest 7110”, on that certifi cate, were clearly capable, without further explanation, of denoting the type of apparatus used by Senior Constable Bradshaw. Accordingly, it was open to the judge on the evidence to conclude, as she did, that the instrument, used by the operator in this case, was a Drager Alcotest 7110, for the purposes of the defi nition of a breath analysing instrument in s3(a) of the Act.

56. The point made by Mr Billings does not, in my view, advance the case of the plaintiff. It was a matter for the judge whether there was a relevant discrepancy between the evidence of Senior Constable Bradshaw, and the recorded conversation, and, if so, whether that difference was required to be explained by Senior Constable Bradshaw. Equally, it was a matter for the judge, as the tribunal of fact to decide, whether, in the absence of any such explanation, her Honour should draw the inference now contended for by Mr Billings, namely that any such explanation given by Senior Constable Bradshaw would not have assisted the prosecution. The absence of any such explanation by Senior Constable Bradshaw did not necessitate the conclusion that the judge could not rely on the sworn evidence of Senior Constable Bradshaw as to the numbers contained on the plate affi xed to the breath analysing instrument. ..."

Per Kaye J in O'Connor v County Court of Victoria and Bradshaw [2014] VSC 295; MC 15/2014, 24 June 2014.

On Appeal—

290. Offi cer who conducted the breath test on the instrument – tape-recording of the breath testing produced to Court – discrepancy between what operator said at the time and later in court when giving evidence – difference between the numbers impressed on the instrument – no evidence given in Court as to whether the instrument was an "Alcotest" – whether the evidence established that the

308

DRINK/DRIVING in VICTORIAinstrument met the defi nition in the Act – certifi cate produced setting out details of the instrument – proof by certifi cate – conclusive evidence unless defendant gave notice – effect of notice when given – certifi cate remained evidence of its contents – no evidence – charge found proved – whether certifi cate admissible – whether open to the Court to conclude that the test was conducted on breath analysing instrument.

O'C. was intercepted by B. whilst driving his motor vehicle and later underwent a breath test by a breath analysing instrument. The reading was 0.07BAC and O'C. was charged with a drink/driving offence. At the hearing, a Certifi cate was tendered pursuant to s58(2) of the Road Safety Act 1986 ('Act') and the operator B. was required to give evidence which included the numbers impressed on the breath analysing instrument. However, the operator failed to mention that the instrument was an "Alcotest". Also, the evidence included a tape-recording of the incident during which the operator said that the instrument was impressed with the numbers '353075191' instead of '3530791'. It was submitted that the prosecution had failed to prove that the instrument was one for the purposes of s3 of the Act. The court found the charge proved and that the operator had used a breath analysing instrument as defi ned in the Act. On appeal, Kaye J dismissed the appeal. Upon appeal to the Court of Appeal—

HELD: Appeal dismissed.1. Section 58 of the Act provides for the use of a ‘document purporting to be a certifi cate containing the prescribed particulars’ to prove certain matters. In fact, the section provides that in certain circumstances the certifi cate is to be taken as ‘conclusive proof’ of the ‘facts and matters contained in it’. When an accused person gives notice in writing to the informant pursuant to s58(2), s58(2D) provides that the certifi cate no longer provides ‘conclusive proof’ of the facts and matters that it contains. However, that subsection provides that the certifi cate still remains admissible in evidence. In so far as it is admissible in evidence, it is plainly admissible as evidence of i ts contents.

2. Once the certifi cate was tendered, the facts and matters contained within it became evidence of the truth of those facts and matters. The words ‘Alcotest 7110’, which headed the certifi cate, were as much evidence of the fact that the certifi cate was produced by such an instrument as each of the other facts or matters contained in the certifi cate (such as the location of the test, the name of the operator and the result of the test) was evidence of that fact or matter. Furze v Nixon [2000] VSCA 149; (2000) 2 VR 503; (2000) 113 A Crim R 556; (2000) 32 MVR 547; MC 04/2001; and Impagnatiello v Campbell [2003] VSCA 154; (2003) 6 VR 416; (2003) 39 MVR 486; MC 27/2003, applied.

3. The fi rst critical matter was what the police informant said, not what the transcript recorded her as saying. It seemed reasonable to in fer that she made a slip when reading out what numbers were contained on the plate; and it also seemed reasonable to infer that her reference to the numbers namely ‘353075191’ was just a mistake that was immediately corrected. The primary judge listened to the tape of what was said (which gave him access to evidence superior to what was contained in the transcript) and concluded that what was said was just such a slip. Secondly, there was evidence that the instrument did have inscribed on it the numbers ‘3530791’. That was the oral evidence given by the informant. On the strength of that oral evidence alone, it was open to the judge in the County Court to make the necessary fi nding. The fact that there was other evidence did not mean that there was no evidence.

4. There was oral evidence that the instrument bore the numbers required by the statute. No error of law was established when all that was established was that the fi nder of fact had preferred some evidence to other evidence.

Santamaria JA (with whom Kyrou and Ferguson JJA agreed):"1. In this case, a judge of the Trial Division of the Court dismissed an originating motion pursuant to which the appellant had sought an order, in the nature of certiorari, in respect of an order made by a County Court judge on 8 March 2013. [1] By that order, the County Court judge had refused an appeal by the appellant against a decision of the Magistrates’ Court dated 20 July 2012. By notice of appeal, the appellant has appealed against the dismissal of his originating motion with costs. For the reasons that follow, in my opinion, the appeal should be dismissed.[ 2]

26. Section 58 of the Act provides for the use of a ‘document purporting to be a certifi cate containing the prescribed particulars’ to prove certain matters. In fact, the section provides that in certain circumstances the certifi cate is to be taken as ‘conclusive proof’ of the ‘facts and matters contained in it’. When an accused person gives notice in writing to the informant pursuant to s58(2), s58(2D) provides that the certifi cate no longer provides ‘conclusive proof’ of the facts and matters that it contains. However, that subsection provides that the certifi cate still remains admissible in evidence. In so far as it is admissible in evidence, it is plainly admissible as evidence of i ts contents.

28. In the present case, the certifi cate contained the statement that the instrument was a ‘Drager Alcotest 71 10’. Thus, when it was tendered, the certifi cate itself became evidence of the fact that

309

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAthe instrument being used was ‘the Alcotest 7110’. Those words correspond precisely to the words contained in para (a) of the defi nition of ‘breath analysing instrument’ in s3 of the Act. Necessarily, the words form part of ‘the facts and matters contained in’ the certifi cate within the meaning of s58(2)(a). In oral argument, the appellant said that the mere tender of the certifi cate without any other evidence as to the identity of the instrument used to test his breath does not make it proof that the instrument was an ‘Alcotest 7110’. That argument cannot be accepted. Once the certifi cate was tendered, the facts and matters contained within it became evidence of the truth of those facts and matters. The words ‘Alcotest 7110’, which headed the certifi cate, were as much evidence of the fact that the certifi cate was produced by such an instrument as each of the other facts or matters contained in the certifi cate (such as the location of the test, the name of the operator and the result of the test) was evidence of that fact or matter.

33. During oral argument, the appellant contended that the evidence contained in the transcript was the ‘best evidence’ of the numbers th at were written on the plate attached to the instrument. But, for a fi nding of fact to involve an error of law, it is necessary to establish that there was no evidence for that fi nding. In the present case, there was oral evidence that the instrument bore the numbers required by the statute. No error of law is established when all that is established is that the fi nder of fact has preferred some evidence to other evidence.

35. In my opinion, there was no error in law either in the fi nding by the County Court judge (a) that the breath analysing instrument that was administered to the appellant was ‘the apparatus known as the Alcotest 7110’ or (b) that there was a plate attached to the equipment ‘on which there is written, inscribed or impressed the numbers “3530791”’. The appeal should be dismissed."

Per the Court of Appeal in O'Connor v Bradshaw and The County Court of Victoria [2015] VSCA 39; MC 10/2015, 17 March 2015.

291. Refusal to undergo a preliminary breath test within 3 hours of being the driver of a motor vehicle involved in an accident – none of the four sub-sections of the Act were referred to in the charge – amendment sought by prosecutor to specify the relevant sub-section – charge amended by Magistrate during the hearing which was more than 12 months after the alleged commission of the offence – driver found guilty of charges – appeal from Magistrates’ Court to County Court – validity of charge – amendment of charge-sheet – ‘all proceedings connected with the hearing’ – whether Magistrate and Judge in error.

W. was charged with four offences under the Road Safety Act 1986 ('Act') including a refusal to undergo a preliminary breath test after his vehicle was involved in an accident to which W. pleaded not guilty. W.'s claim was that the charge in relation to the refusal to undergo a preliminary breath test was that none of the four sub-sections in s53(1) of the Act were disclosed in the charge-sheet. And that if the charge was not properly framed, it was not appropriate for the Magistrate to permit amendment of the charge outside the limitation period. The Magistrate made the amendment sought and found W. guilty of the charge. W. appealed against the sentence. In relation to the County Court review, the issue was whether the amendment made to the charge continued to operate on the appeal hearing. W. was again found guilty and penalties imposed. Upon appeal—

HELD: Application for review of the Magistrates' Court and County Court orders dismissed. 1. In relation to s53(1) of the Act, there are four situations whereby a police offi cer may require a driver to undergo a preliminary breath test. However, the charge did not specify which situation applied in W'.s case. It simply specifi ed s53(1) of the Act.

2. It is an offence to refuse to undergo a preliminary breath test in accordance with s53 of the Act when required under that section to do so. Looking at the wording of the various sub-sections in s53, there are only two separate requirements that can be made: a requirement to undergo a preliminary breath test under s53(1) and a requirement to undergo a preliminary breath test under s53(2).

3. As such, s49(1)(c) can only create two separate offences: a refusal to undergo a preliminary breath test in accordance with s53 when required to do so under s53(1), and a refusal to undergo a preliminary breath test in accordance with s53 when required to do so under s53(2). Even if it is accepted on the basis of the cases referred to above that the requirement is an essential element of the offence, there is only one requirement of s53(1) – a requirement to undergo a preliminary breath test. It does not follow that the basis on which the requirement is made is an essential element of the offence.

4. A charge is to be interpreted in the way in which a reasonable defendant would understand it, giving reasonable consideration to the words of the charge and their context. If, therefore, the contents of the charge and the summons were suffi cient when read as a whole to bring home to a reasonable defendant the essential elements of the offence alleged, the charge would not be invalid.

5. Accordingly, the charge-sheet in this case met such a description and, as such, should not have been considered to have been invalid.

310

DRINK/DRIVING in VICTORIA6. Generally, if a charge is suffi cient to disclose the offence itself and the nature of the charge, s9 of the Criminal Procedure Act 2009 ('CPA') operates to make the charge itself valid notwithstanding any technical error or omission in the drafting of the charge-sheet. As such, any charge-sheet that met the criteria for amendment after the expiry of the limitation period would also satisfy the test for validity under the CPA.

7. Given that the charge-sheet in this case appeared to comply with the requirements of cl 1 of Schedule 1 to the CPA, it was held to be valid as originally framed. Thus, the Magistrate’s decision to amend the charge-sheet after expiry of the limitation period was upheld and W.'s review was dismissed.

8. In relation to the review of the County Court appeal, the County Court judge di d not fall into error by considering only the amended version of the charge-sheet, as the appeal was one relating to sentence only, rather than to conviction and sentence. As such, the Judge was satisfi ed in starting from the point of conviction and taking the charge in facts as they were at that point. The rehearing was on the question of sentence only. As a result, the operative conviction orders were those of the Magistrates’ Court, whereas the operative sentencing orders were those of the County Court.

Zammit J:"1. On 3 September 2012, Paul Francis Walters, the plaintiff, appeared before the Magistrates’ Court at Moorabbin charged with four offences under the Road Safety Act 1986 (‘RSA’). One of the charges was withdrawn by the prosecutor and struck out by the Court. The fi rst charge (the charge) related to a refusal to undergo a preliminary breath test pursuant to s49(1)(c) of the RSA. It is this charge that is the subject of the current reviews before this Court. The plaintiff pleaded guilty to the two remaining charges.

2. The charge was amended at the Magistrates’ Court hearing, more than 12 months after the alleged commission of the offence.

12. The charge was recorded as follows:

The accused at Brighton on 16/05/2011 having been required to undergo a preliminary breath test in accordance with s53(1) of the Road Safety Act 1986, did refuse to undergo such a breath test within 3 hours of being the driver of a motor vehicle involved in an accident.

23. The Magi strate considered that the charge did not require amendment but nevertheless allowed the amendment to specify the source of power. The Magistrate allowed an amendment to the charge by inserting the sub-section (c) of s53(1) of the RSA.

31. The plaintiff argues that the charge as particularised in the charge-sheet is defective in that it fails to specify the source of the power under s53(1) of the RSA. That is, it is submitted that the sub-section on which a requirement that a person undertake a breath test is based is an essential element of the offence, and must be particularised.

59. Looking at the reasoning in each of the cases relied upon by the plaintiff, it would seem clear that the facts of this case are to be distinguished from those dealing with a charge under s49(1)(e). First, there is an apparent difference between s49(1)(c) and s49(1)(e) in that the latter lists multiple sub-sections within s55. The effect of this listing of sub-sections has been held in multiple cases, including those discussed above, to create multiple offences: one for each sub-section listed.

67. In Kypri’s case [2011] VSCA 257; (2 011) 33 VR 157, (2011) 207 A Crim R 566, Nettle JA made the following comments:

A charge is to be interpreted in the way in which a reasonable defendant would understand it, giving reasonable consideration to the words of the charge and their context. If, therefore, the contents of the charge and the summons are suffi cient when read as a whole to bring home to a reasonable defendant the essential elements of the offence alleged, the charge will not be invalid.

68. I consid er that the charge-sheet in this case meets such a description and, as such, should not be considered to have been invalid.

72. Given that the amendment to the charge-sheet in this case was made by the Magistrate after the expiration of 12 months from the date on which the offence was alleged to have occurred, the amendment would have to comply with ss8(3) and 8(4) of the Criminal Procedure Act ('CPA) to be valid.

80. With the except ion of the statement of Nettle JA in Kypri, the authorities relied on by the third defendant are consistent with Ginnane J’s conclusions in Glenister [2014] VSC 265. Generally, if a charge is suffi cient to disclose the offence itself and the nature of the charge, s9 of the CPA operates to make the charge itself valid notwithstanding any technical error or omission in the drafting of the

311

PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAcharge-sheet. As such, any charge-sheet that meets the criteria for amendment after the expiry of the limitation period will also satisfy the test for validity under the CPA.

87. On the basis of the above discu ssion, the question as to whether amendment is permitted in this case appears to be purely academic. The third defendant’s submission that an invalid charge may be amended beyond the expiry of the limitation period is based on a misreading of the authorities as they stood prior to the introduction of the CPA. The test for amendment laid down by Ginnane J in Glenister should be accepted, to the effect that the only charges that may be amended after expiry of the relevant limitation period are those that were validly drafted in the original form.

88. Given that the charge-sheet in this case appears to comply with the requirements of cl 1 of Schedule 1 to the CPA, it should be held to be valid as originally framed. Thus, the Magistrate’s decision to amend the charge-sheet after expiry of the limitation period should be upheld. Accordingly, the plaintiff’s Magistrates’ Court review is dismissed. ..."

Per Zammit J in Walters v Magistrates' Court of Victoria, County Court of Victoria and Bourchier [2015] VSC 88; MC 13/2015, 24 March 2015.

292. Evidence – judicial discretion to admit or exclude evidence – section 47b(1)(a) of Road Traffi c Act 1961 (SA) created offence for person to drive motor vehicle while prescribed concentration of alcohol present in blood – section 47K(1) of Act created a presumption that the breath analysis reading corresponded to blood alcohol level at time of analysis – section 47K(1a) of Act provided that the presumption could only be rebutted if the defendant arranged for the blood sample to be taken in accordance with prescribed procedures and adduced evidence that analysis of blood demonstrated that the breath analysis reading instrument gave an exaggerated reading – where respondent charged with offence against s47B(1)(a) and pleaded not guilty – where breath analysis reading indicated blood alcohol level above prescribed concentration – where respondent arranged for blood sample to be taken but sample unable to be analysed through no fault of appellant or respondent – where appellant sought to tender evidence of breath analysis reading – whether there existed a residual common law discretion to exclude lawfully obtained, probative, non-confessional evidence unaffected by impropriety or risk of prejudicial misuse where admission would have rendered trial of accused unfair – whether respondent's trial was unfair in a relevant sense if evidence of breath analysis reading admitted.

Words and phrases – "Bunning v Cross discretion", "Christie discretion", "forensic unfairness", "general unfairness discretion", "Lee discretion", "unfair trial".

D. was stopped by police whilst driving a motor vehicle and submitted to an alcotest which returned a positive result. He was taken to a police station and provided a sample of his breath for analysis which resulted in a reading of 0.155 grams of alcohol per 100 millilitres of his blood. D. was informed of his right to have a sample of his blood taken for analysis and was supplied with a blood test kit. D. was driven to a hospital where a medical practitioner took a sample of his blood. Later attempts to analyse the sample proved unsuccessful because the blood was denatured. At the hearing of the charge, D. pleaded not guilty and after the certifi cate recording the reading was admitted into evidence, the medical practitioner who took the blood sample was called as a witness and said she had no memory of taking the sample and no knowledge of how the sample had come to be denatured. The Magistrate said that the failure of the medical practitioner to comply with the regulations was unfair, the evidence of the breath analysis was disregarded and the charge was dismissed.

An appeal to the Supreme Court of South Australia was dismissed and a later appeal to the Full Court was dismissed by majority. The appeal to the High Court was brought on the ground that the Full Court majority erred in holding that evidence of a breath analysis reading obtained lawfully and without any impropriety on the part of the police should be excluded in the exercise of the "common law general unfairness discretion".

HELD: Appeal allowed. The Magistrate's dismissal of the charge set aside and remitted to the Magistrates' Court for further hearing.1. The exclusion of evidence in a criminal proceeding in the exercise of a "fairness discretion" is generally understood to refer to the principles explained in R v Lee [1950] HCA 25; (1950) 82 CLR 133; [1950] ALR 517 ("the Lee discretion"). The Lee discretion forms part of the special body of rules applying to the admission of confessional statements. In criminal proceedings, there are two settled bases for the discretionary exclusion of non-confessional evidence, including "real" and circumstantial evidence. The fi rst is where the probative value of the evidence is outweighed by the risk of prejudice to the defendant ("the R v Christie [1914] AC 545 discretion"). The second is where the evidence has been tainted by illegality or impropriety on the part of the law enforcement authority ("the Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 discretion"). The rationale for the latter discretion is not so much a concern with fairness to the defendant as with the public policy of not giving the appearance of curial approval to wrongdoing on the part of those whose duty is to enforce the law . These three discretions correspond with the exclusionary discretions that apply in criminal proceedings under the Uniform Evidence Acts . In addition to these bases for discretionary exclusion of evidence in criminal proceedings, intermediate appellate courts in other Australian jurisdictions have also identifi ed a residual common law discretion to exclude admissible evidence on the ground of unfairness.

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DRINK/DRIVING in VICTORIA2. In relation to the legislative scheme, the Parliament had chosen to provide the prosecution with an aid to proof and to closely confi ne the circumstances in which rebuttal evidence may be adduced. There was no suggestion that the scheme was beyond power. The prosecution proved the commission of the offence by proof that D. submitted to breath analysis by means of a breath analysing instrument within two hours of driving a motor vehicle and that the breath analysis reading indicated the presence of the prescribed concentration of alcohol in his blood. The category of the offence was established by proof of the breath analysis reading. Subject to the defence adducing opinion evidence based upon analysis of a blood sample taken and dealt with in accordance with the prescribed procedures, the reliability of the breath analysis reading was not an issue in the trial. 3. The medical practitioner acted on D.'s request and was in no sense an agent of the law enforcement authorities responsible for the prosecution. Any failure by the medical practitioner to comply with the prescribed procedures did not engage the public policy considerations that informed the Bunning v Cross discretion.

4. The work done by the Road Traffi c Act (1961) (SA) ('Act') was to permit the prosecution to rely on the presumption notwithstanding the possible failure to comply with the Act, subject always to the defendant proving the matters specifi ed in the Act. Admission of the evidence of the breath analysis reading did not make D.'s trial unfair. This conclusion and the circumstance that neither party contested the existence of the "general unfairness discretion" made it inappropriate to determine the scope, if any, of a residual discretion to exclude lawfully obtained, probative, non-confessional evidence that is unaffected by impropriety or risk of prejudice on the ground that admission of the evidence would render the trial of the defendant an unfair trial.

5. It remained to observe that the power of the court to prevent unfairness arising from the continuation of criminal proceedings that are oppressive or unjust involves a test of fairness that requires the court to balance the interests of the defendant and those of the community. Where the evidence that was sought to be excluded was critical to the prosecution case and the basis of exclusion was said to be that admission of the evidence would render the trial unfair, the remedy lay in determining whether the circumstances justifi ed a permanent stay and not in circumventing that inquiry by the exclusion of the evidence in the exercise of a "general unfairness discretion".

French CJ, Kiefel, Bell, Gageler and Keane JJ:"2. The issue raised by the appeal is whether, in a case in which a medical practitioner fails to take the blood sample in accordance with the prescribed procedures, the court has a discretion to exclude evidence engaging the presumption on the ground that admission of the evidence would render the trial of the defendant unfair.

12. Jason Dunstall was stopped by police while he was driving a motor vehicle in suburban Adelaide. He submitted to an alcotest, which returned a positive result. He was taken to a police station, at which he provided a sample of his breath for analysis. His breath analysis reading was 0.155 grams of alcohol per 100 millilitres of his blood. Mr Dunstall was informed of his right to have a sample of his blood taken for analysis and he was supplied with a blood test kit. The police drove Mr Dunstall to the Noarlunga Hospital, where a medical practitioner took a sample of his blood. Later attempts to analyse the sample proved unsuccessful because the blood was denatured.

13. ... The medical practitioner who took the blood sample was called in the prosecution case. She had no memory of taking the sample and no knowledge of how the sample had come to be denatured.

14. Mr Collins, a forensic pathologist, was called in the defence case. Mr Collins considered that the likely explanation for the sample being denatured was that an insuffi cient quantity of blood had been taken from Mr Dunstall. Magistrate Dixon found that the blood sample was unsuitable for analysis because the medical practitioner had not taken a suffi ciently large quantity of blood.

16. In his reasons for decision, Magistrate Dixon identifi ed as a critical issue for determination whether the inability to analyse the blood samples had resulted in unfairness to Mr Dunstall such that "the breath analysis results should not be used as evidence". His Honour referred to Lobban among other authorities in this respect. He held that Mr Dunstall had been deprived of his ability to rebut the presumption despite having done all that he, Mr Dunstall, could do to comply with the requirements necessary to challenge the prosecution evidence. The loss of the opportunity to challenge the prosecution evidence was occasioned by the apparent failure of the medical practitioner to comply with reg 11(c) of the Regulations. His Honour said that, in the result, the trial of Mr Dunstall was unfair and "[a]ccordingly, the evidence of the breath analysis should be disregarded and the charge fails". The charge was dismissed.

21. On 13 March 2015, Bell and Keane JJ granted the police special leave to appeal. The appeal is brought on the ground that the Full Court majority erred in holding that evidence of a breath

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PPUZZARD v WALSHEY KAVANAGHv OIABANK OF NEW SIOUTH WALES v MUR-DRINK/DRIVING in VICTORIAanalysis reading obtained lawfully and without any impropriety on the part of the police should be excluded in the exercise of the "common law general unfairness discretion". For the reasons to be given, the appeal must be allowed, the orders of the courts below set aside and the matter remitted to the Magistrates Court for further hearing.

41. Mr Dunstall acknowledges that the loss or destruction of evidence which may or may not have assisted the defence case does not ordinarily render a trial unfair. As explained in R v Edwards, it is not right to characterise the loss of evidence the contents of which is unknown as a prejudice to the defendant, as it cannot be known whether the evidence would have undermined or supported the prosecution case. Mr Dunstall argues that his case is to be distinguished. The loss of the capacity to adduce evidence in rebuttal of the presumption is said to make the prosecution case unassailable. And the loss of that capacity is the product of the medical practitioner's failure to comply with the requirements of reg 11(c) of the Regulations.

47. Kourakis CJ in Police v Dunstall [2014] SASCFC 85; (2014) 120 SASR 88 was right to conclude that admission of the evidence of the breath analysis reading did not make the trial of Mr Dunstall unfair . This conclusion and the circumstance that neither party contested the existence of the "general unfairness discretion" make it inappropriate to determine the scope, if any, of a residual discretion to exclude lawfully obtained, probative, non-confessional evidence that is unaffected by impropriety or risk of prejudice on the ground that admission of the evidence would render the trial of the defendant an unfair trial.

48. It remains to observe that the power of the court to prevent unfairness arising from the continuation of criminal proceedings that are oppressive or unjust involves a test of fairness that requires the court to balance the interests of the defendant and those of the community . Where the evidence that is sought to be excluded is critical to the prosecution case and the basis of exclusion is said to be that admission of the evidence would render the trial unfair, the remedy lies in determining whether the circumstances justify a permanent stay and not in circumventing that inquiry by the exclusion of the evidence in the exercise of a "general unfairness discretion".

49. It was an error to exclude the evidence of the breath analysis reading. The appeal must be allowed and the matter remitted for further hearing before the Magistrates Court. A condition of the grant of special leave was the appellant's agreement to pay Mr Dunstall's costs in any event. ..."

Per the High Court in Police v Dunstall [2015] HCA 26; (2015) 322 ALR 440; 89 ALJR 677; MC 31/2015, 5 August 2015.

293. Driving under the infl uence of alcohol – driver drove his vehicle some 100 metres then drove onto the footpath and collided with a pole – reading 0.18BAC – minimum fi ne and licence cancellation imposed by the Magistrate – whether penalty excessive – whether offence could have been regarded as trifl ing.

J., a bus driver, attended a function and later drove his vehicle onto a footpath and damaged his motor car. He was breath tested and gave a reading of 0.18BAC. Later, J. pleaded guilty and the Magistrate imposed the minimum fi ne and licence disqualifi cation. The Magistrate took into account the circumstances of the offence, J.'s prior good character and his need to have his driver's licence. Upon appeal—

HELD: Appeal dismissed.1. The ordinary meaning of “trifl ing” is of little moment or insignifi cance. Whether an offence of this nature is trifl ing is to be determined by reference to the conduct constituting the offence and the circumstances in which it is committed. A typical example of this offence would not qualify; rather, it would be an unusual or exceptional case which might answer that description. Siviour-Ashman v Police [2003] SASC 29; (2003) 85 SASR 23 at 27, applied. Police v Head [2013] SASC 185; Police v Ludlow [2008] SASC 43; and Campbell v Fuss (1991) 55 SASR 355, considered.

2. The circumstances of this offending could not be seen to be trifl ing. Not only was the car to be driven at least 100 metres down a city street, but J.'s control of the car was plainly quite inadequate and a collision ensued. There was no pressing need for J. to be driving at all. His blood alcohol level was such that he must have felt affected. It accounted at least in part for the error of judgment he made. Given that there was no prospect of persuading the Chief Magistrate that the offence was trifl ing, any perceived failure to alert J. to his right to give evidence in support of such an argument came to nothing.

Vanstone J:"3. The appellant was unrepresented before the Chief Magistrate and again in this Court. His grounds of appeal have plainly been drafted himself. In essence his complaint is that the Chief Magistrate failed to inform him of his rights, that the Court in fi xing penalty did not have regard to his personal

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DRINK/DRIVING in VICTORIAcircumstances and that the licence disqualifi cation period is too long. It might be that an assertion that the offence was trifl ing could be read into the grounds of appeal.

8. It is evident that, contrary to the appellant’s submission, the Chief Magistrate did take into account that the offence involved driving over only a short distance and that the appellant came to the Court as a man of good character. The fi ne imposed was the minimum that can be imposed for a fi rst offence against s47(1)(a) of the Road Traffi c Act 1961 (SA) ('RTA'). Similarly, the period of licence disqualifi cation given was the minimum. Hence, the penalty was imposed at the lowest levels allowable.

9. The other issue is whether the period of disqualifi cation might have been reduced if the appellant had established that the offence was trifl ing. There being no clear evidence before me as to precisely what passed between the bench and the appellant prior to the plea of guilty being taken, I am prepared to act on the assumption that the appellant was not told that he could have given evidence on oath in an effort to point to circumstances justifying a fi nding that the offence was “trifl ing” within the meaning of s47(3)(b) of the RTA.

10. It is apparent from that description of the incident that there was no necessity for the appellant to be driving at all at that time, and that the manner of driving signifi cantly aggravated the offence, in that the appellant plainly mounted the kerb and collided with a pole while on his incorrect side of the road. In addition, police who spoke to the appellant at the scene described him as “smelling of liquor” and “slurring his words”. It was said he was unable to walk without assistance to the police vehicle, positioned about 15 metres away.

11. The ordinary meaning of “trifl ing” is of little moment or insignifi cant. Whether an offence of this nature is trifl ing is to be determined by reference to the conduct constituting the offence and the circumstances in which it is committed. A typical example of this offence would not qualify; rather, it would be an unusual or exceptional case which might answer that description: Siviour-Ashman v Police [2003] SASC 29; (2003) 85 SASR 23 at 27.

15. In my view, the circumstances of this offending could not be seen to be trifl ing. Not only was the car to be driven at least 100 metres down a city street, but the appellant’s control of the car was plainly quite inadequate and a collision ensued. There was no pressing need for the appellant to be driving at all. His blood alcohol level was such that he must have felt affected. It accounts at least in part for the error of judgment he made. Given that there was no prospect of persuading the Chief Magistrate that the offence was trifl ing, any perceived failure to alert the appellant to his right to give evidence in support of such an argument came to nothing.

16. The appellant has presented a number of written character references to me. The various referees speak of his good character and of his contrition, as does he himself. It is unfortunate indeed that the appellant fi nds himself in this position.

Conclusion 17. Notwithstanding the arguments and materials placed before me by the appellant, the appeal must fail. As I have set out, the penalty imposed was the minimum available and any attempt to argue that the offence was trifl ing fell to be rejected.

18. The appeal is dismissed."Per Vanstone J in Jia v Police [2015] SASC 140; MC 41/2015, 22 September 2015.

Patrick Street LL B, Dip Crim31 January 2016