Warwick J Walsh-Buckley - Barrister at Law

AssocDipPolStu; BA; LLB(Hons); LLM(Mon)

Recent Article

Recent Causes and Courses of Drink Driving Litigation in Victoria - see link

Defences to Drink Driving & Refusal Charges

Introduction

For a great many years now Mr Walsh-Buckley has been a leading Melbourne lawyer specializing in defending drivers accused of drink driving or related refusal offences. This is in addition to being one of Melbourne’s lawyers who are specialists in defending people charged with speeding and other traffic offences.

He is also Co-Author of ”Motor and Traffic Law — Victoria“ published by Lexis Nexis which is used in consideration of possible defences by many Melbourne drink driving lawyers and lawyers in Melbourne specializing in traffic offences and speeding offences.

The defences to drink driving charges and defences to refusal charges are many and varied. A small selection of cases reaching the Supreme Court and Court of Appeal touching upon some of these defences can be seen upon perusal of a small assortment of some of Mr Walsh-Buckley’s most recent articles on the topic and pasted below entitled “Recent Causes and Courses of Drink Driving Litigation in Victoria” and “The drink-driving defence armoury in 21st century Victoria”.

NB/. Care, however, should be taken in determining whether or not some of the cases referred to in the pasted articles below may still found a defence due to the usual caveats of constant legislative change, subsequent later challenges to and reversal of decisions by higher courts, and changes in police tactics and law enforcement techniques. The purpose of including some of Mr Walsh-Buckley’s articles on defences to drink driving and refusal offences herein is to give the reader some idea of the ‘flavour’ of certain defences and the techniques, tactics and strategy involved in attempting to defeat these sorts of charges.

Selection of three articles:

ARTICLE ONE - 2013

“Recent Causes and Courses of Drink-Driving Litigation in Victoria

By Warwick J Walsh-Buckley
Barrister-at-Law (Vic.)
C/ Meldrum & Hyland List
205 William Street Melbourne
Phone 92258734 or 92257444

LLM(Mon); LLB(Hons)(Mon); BA(Mon); AssocDipPolStu(Mon)
Co-Author of ‘Motor and Traffic Law Victoria’

ABSTRACT

When one looks at the vigorous amount of criminal litigation in Victoria generated by the Parliament of that State’s continuing enthusiastic regulation of drink driving and related matters one quickly sees certain connections. First, the causal link between mandatory sentencing and a motorist’s decision to contest the charges. Second, the nexus between complexity of the laws and an unusually high amount of appellate proceedings arising from decisions from courts lower in the hierarchy ending, sometimes, at the Court of Appeal. This article looks at some recent important Victorian superior court decisions on defending charges under the Road Safety Act 1986 (Vic) of exceeding the prescribed alcohol concentration whilst driving and refusal to comply with police require

INTRODUCTION

When one takes a good close look at the quite vigorous amount of criminal litigation in Victoria generated by the Parliament of that State’s continuing enthusiastic and unrelenting attempts at regulation of drink driving and related matters involving road safety it is not difficult for one to quickly see certain clear connections.

First, the causal link between that State’s mandatory sentencing concerning lengthy minimum licence disqualification periods (including often mandatory equally lengthy minimum periods for alcohol ignition interlock conditioning on licence restoration) and the average motorist’s decision to contest the charges.

Second, the nexus between complexity of the many labyrinthine legislative provisions and an unusually high amount of appellate proceedings arising from decisions from the courts lower in the hierarchy ending, sometimes, at the Court of Appeal.

This article will take a look at some recent important Victorian superior court decisions over the last few years on defending charges under various provisions of the Road Safety Act 1986 (Vic) (“the Act”) of exceeding the prescribed alcohol concentration whilst driving a motor vehicle and refusal to comply with police requirements for accompaniment and testing. References to section numbers relate to provisions of the Act unless otherwise expressly mentioned.

HIGHER PENALTIES, HEAVIER CONSEQUENCES AND NO DISCRETION

On 11 October 2006 the penalties in Victoria for drink driving and related offences were substantially increased. Some changes, too elaborate to list all here, implemented by the Road Legislation (Projects and Road Safety) Act 2006 to the Act included substantial increases to maximum prison terms and fines (applying to offences occurring on or after 11 October 2006 per s 103L(1) Some examples include the following.

Six-fold increase in maximum prison term

A person who offends for a second time (within 10 years of a first offence) against the exceed prescribed alcohol concentration offences in ss 49(1)(b), (f) or (g) of the Act with a reading of less than 0.15% may be fined up to approximately $6,000 or sentenced to 6 months’ imprisonment; if that person was 0.15% or more for the second offence the maximum fine shoots up to roughly $12,000 or 12 months’ imprisonment; should a motorist offend against ss 49(1)(b), (f) or (g) for a third or subsequent time (within a 10 year period) the maximum fine escalates to about $12,000 or 12 months’ imprisonment if less than 0.15% or up to about $18,000 or 18 months’ imprisonment if 0.15% or more (figures as to fines referred to in this article are expressed in approximations due to the periodic amendments to the monetary amount of individual penalty units over time).

A person offending against s 49(1)(a) (driving under the influence) or commiting a refusal offence under ss 49(1)(c), (d) or (e) (within 10 years of a first offence) could then be fined around $12,000 or receive 12 months’ imprisonment for a second offence, that rising to around $18,000 fine or 18 months’ prison for a third or subsequent offence.

There were also substantial increases to drug-driving and related offences in s 49(1) involving lengthy prison terms and huge fines and long licence disqualification periods.

Increase in interlock periods

Certain mandatory minimum periods for alcohol ignition interlock conditioning under ss 50AAA and 50AAB on successful licence restoration under s 50(4) also went up. For example, a four year minimum period for motorists who subsequently offend under ss 49(1)(b), (f) or (g) with a reading of 0.15% or more or who subsequent offend by refusal offence under s ss 49(1)(c), (d) or (e) (up from a three year interlock period) and 12 month minimum period for a second offender with a reading less than 0.15%.

Jurisdiction to impose an interlock on a discretionary basis for at least 6 months, even on a first offender under s 49(1)(b), (f) or (g), was reduced from a threshold of 0.10% down to 0.07% where a licence restoration was then be required. That applies to offences committed on or after 11 October 2006 per s 103L(1)

The court was then forced to impose at least a 6 month interlock condition on re-licensing a person disqualified from driving due to a first offence against ss 49(1)(a), (c) (d) or (e) or driving with an alcohol concentration of 0.07% or more contrary to ss 49(1)(b), (f) or (g), if at the time of offence, the person was aged under 26 years or held a probationary licence. That applies only to offences committed after 1 January 2007 per s 103L(2)

Section 50AAA(2A) then provided that the court must impose an alcohol interlock condition when granting a re-licensing application by someone disqualified due to a first offence against ss 49(1)(a), (c) (d) or (e) or driving with an alcohol concentration of 0.07% or more contrary to ss 49(1)(b), (f) or (g), if at the time of offence, the person was under 26 years old or held a probationary licence. That applies only to offences committed after 1 January 2007 per s 103L(2).

Reduction of sentencing discretion

The s 50(1AB)(b) discretion under the Act not to cancel and disqualify a licence would not apply to a person who at the time of offence was aged under 26 years notwithstanding the reading is less than 0.07%. That applied only to offences committed after 1 January 2007 due to s 103L(2) of the Act

Changes fueling desire to contest

The many amendments operating from 11 October 2006 and 1 January 2007 were labyrinthine, difficult to summarise concisely and accurately and, accordingly, they warranted close scrutiny by a practitioner to properly advise clients. The above is just a small selection of the changes. Massively increased penalties (a seven-fold increase in maximum fine and six-fold increase in maximum prison term for a third offender who is 0.15% or more or who commits a refusal offence, compounded by mandatory four year interlock conditioning on relicensing after a minimum mandatory 30 month licence disqualification period for a 0.15% reading and 48 months disqualification for a refusal offence) no doubt prompted many accused to consider fiercely defending the charges — and they did!.

EXCEEDING PRESCRIBED ALCOHOL CONCENTRATION OFFENCES

Proving alcohol concentration by PBT alone

In R v Ciantar; DPP v Ciantar (2006) 16 VR 26; [2006] VSCA 263 the Full Bench of the Court of Appeal comprising Warren CJ, Chernov, Nettle, Neave and Redlich JJA, dealing with a culpable driving conviction appeal (the Crown relying partly on an alleged excessive alcohol concentration) held from [6] to [14] that evidence of a forensic officer with the Technical Services Laboratory of the Victoria Police Traffic Alcohol Section, and a Victorian Institute of Forensic Medicine forensic physician’s evidence, with evidence of the police officer conducting the preliminary breath test on the appellant and saw the reading, was sufficient for the actual reading of the Lion Alcolmeter Preliminary Breath Test device (“PBT”) obtained on preliminary breath testing of the appellant to be admitted into evidence. It was established that it was a scientifically accepted instrument for its avowed purpose and that it was handled properly and read accurately.

This case had potentially widespread ramifications for s 49(1)(b) and (f) offences (not just culpable driving charges) as it stands as authority for the proposition that the Crown may prove a drink-driving offence without a blood test or a test on a breath analyzing instrument, simply relying on the reading of the Lion Alcolmeter SD 400-PA (or other prescribed PBT device) with appropriate expert and other evidence to support it as was done in this case. It was argued in the motorist’s defence at trial that the reading of the PBT was not admissible. The Court of Appeal rejected this argument.

The Court at [18] to [32] also supported the sufficiency and correctness of a trial judge’s directions to a jury on the element of “under the influence” in relation to Crimes Act 1958 s 318 culpable driving offences. This part of the case has relevance for s 49(1)(a) driving under the influence charges.

PBT powers s 53(1)(a) & (b) not mutually exclusive

In Maitland v Swinden (2006) 46 MVR 507; [2006] VSC 467 Hansen J dismissed that motorist’s appeal against conviction for a s 49(1)(f) offence and held that it was open to the Magistrate to conclude that a road block set up by police to intercept motorists to conduct preliminary breath tests and licence and registration checks was not a preliminary breath testing station under the ACT nor so intended by the police concerned but the police concerned exercised power under s 53(1)(a) to require any driver to undergo a PBT via a prescribed device and the certificate of analysis (from the breath analyzing instrument) would not be excluded. Hansen J held at [19] to [22] that powers under s 53(1)(a) and (b) were not mutually exclusive. His Honour also stated at [23] that “&helip;Parliament intended the power in para (a) to be exercisable in the widest range of circumstances”.

Impermissible use of “no comment” answer after breath test

In Wilson v County Court & Anor (2006) 14 VR 461; [2006] VSC 322 Cavanough J, hearing a motorist’s judicial review of a County Court appeal judge’s decision to convict on a s 49(1)(f) offence, held at [34] that the judge erred in using a motorist’s “no comment” answer (following police questioning after a breath analyzing instrument test revealed excess alcohol concentration) to impugn his credibility as a witness on the question of his drinking, and quashed the conviction and remitted the matter to a differently constituted County Court. This was notwithstanding a legal burden on an accused under s 49(4) to prove instrument or operator error on the balance of probabilities.

Not giving blood sample to police requesting it

In DPP v Colbey [2006] VSC 357 Redlich J dismissed a Crown appeal against dismissal of ss 49(1)(b) and (g) charges because part of a blood sample taken from a driver who was requested by police to allow a doctor to take his blood under s 55(9A) for analysis (following a failed attempt to obtain alcohol concentration by a breath analyzing instrument) had not been provided to the police officer who requested the sample. This breached s 55(9B) - an element of the s 49(1)(g) offence.

Redlich J stated it was unnecessary to decide whether, in a prosecution for a s 49(1)(b) offence, s 57 certificates relating to taking and analyzing blood may still be admissible where, contrary to s 55(9B), there was no delivery of part of a sample to the police officer requesting it, because it was open to the Magistrate in the circumstances to refuse to act on evidence of the blood analysis as continuity was in issue.

Culpable driving- exclusion of evidence relating to blood alcohol

In one aspect of DPP v King (2008) 50 MVR 517; [2008] VSCA 151 the Court of Appeal in Obiter Dictum, concerning a Crown appeal ground (subsequently abandoned with leave) that the learned judge erred in exercising a judicial discretion to exclude evidence of an alleged high blood alcohol concentration of the respondent (an analysis revealing 0.184%), stated that it was unnecessary to decide but it should not be assumed that the trial judge was necessarily correct in exercising discretion to exclude the blood alcohol analysis on the ground of unfairness.

The judge had concluded that the respondent was deprived of the opportunity of conducting his own analysis of his blood sample because his sample, placed with his personal property at a hospital, had inadvertently been taken by police. It did not appear that there was any failure to comply with the Act and regulations as the sample had, in accordance with required procedure, been placed with the respondent’s belongings.

The Court observed that want of compliance with the statutory regime relating to s 49 offences would not ordinarily result in the prosecution being precluded from relying on blood alcohol analysis or other proof that a driver’s judgment was relevantly impaired by alcohol, for offences such as culpable driving, negligently causing serious injury, manslaughter and murder. There was nothing to indicate that the sample, had it been left at the hospital with his clothes, would have been discovered at any time before the respondent left hospital five months after the accident. However, the Court of Appeal would not consider whether it was an appropriate case for exercise of the discretion.

Culpable driving — double punishment on drink driving offence

In R v Audino (2007) 180 A Crim R 371; [2007] VSCA 318 (comprising Maxwell ACJ, Ashley and Neave JJA) in an appeal against sentence in a Culpable Driving count stated that as a matter of substance the act of driving with excess blood alcohol was an element of both the summary offence of Driving whilst Exceeding the Prescribed Concentration of Alcohol under s 49(1) of the Act and of the Culpable Driving offence as particularised. He could not be punished twice for the same act.

Accordingly, the Court of Appeal held that the sentencing judge erred in imposing double punishment because there was cumulation of the sentence for the summary exceed prescribed alcohol concentration offence upon the sentence for culpable driving.

Negligently causing serious injury — double punishment on drink driving offence

In a case analogous to R v Audino the Court of Appeal (comprising Ashley and Neave JJA and Pagone AJA) in R v Healey [2008] VSCA 147 heard that an accused had pleaded guilty to four counts of Negligently Causing Serious Injury under s 24 of the Crimes Act (relating to driving a motor vehicle) and to summary offences of driving a motor vehicle while Exceeding the Prescribed Concentration of Alcohol under s 49(1)(b) of the Act and Exceeding the Speed Limit under Road Rule 20 and was convicted and punished on each offence. It was submitted on appeal that the elements of the summary offences of which he was convicted and sentenced provided the basis for the four counts of negligently causing serious injury. The Court of Appeal agreed there was double punishment and set aside the convictions on the summary traffic offences.

“In charge” while exceeding prescribed alcohol concentration

In Halley v Kershaw [2013] VSC 439 the Supreme Court dealt with a motorist’s appeal against conviction by a magistrate on a charge of being in charge of a motor vehicle whilst exceeding the prescribed concentration under s 49(1)(f) of the Act . Kaye J held at [26] to [33] that to determine whether the motorist was “in charge” of a vehicle purposes of s 48(1)(b), the magistrate was obliged to consider whether he was satisfied that the case came within one of the four categories set out in s 3AA(1)(a) to (d).

At [34] Kaye J stated 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 specified in subparagraph (a) to (d) of s 3AA(1)&helip;the magistrate made an error of law.”

At [4] to [7] and [46] Kaye J also found that the magistrate should have considered that when the motorist was found his car was parked, the gear was in park, the hand brake was off, the engine was running, the radio was not turned on and neither the heating or cooling was on, that when the informant approached the motorist in the car, the motorist appeared to be sleeping and only woke up when the informant knocked several times on the car’s window.

At [41] Kaye J stated that the informant should give specific evidence as to the belief formed in relation to the accused’s intention to start or drive the vehicle; the informant should expressly state the basis upon which the belief was formed; it is not necessary that the informant be satisfied of the particular fact on the balance of probabilities; rather, the informant must establish that he or she held the belief on reasonable grounds; such belief has been described as an inclination of the mind towards assenting to rather than rejecting a proposition; a belief is something more than suspicion but does not need to approach anything like certainty; the informant’s belief must be a belief that the accused intended to start the engine or drive off forthwith, or to do so at any point of close futurity; the question is not whether the court itself holds, or agrees with, the belief that the accused intended to drive or start the vehicle. Rather, the question is whether the informant actually held such belief and whether it was held on reasonable grounds.

Breath analysing instrument/operator error

In Wilson v County Court of Victoria & Anor (no.2) [2013] VSC 369 at [52], in relation prospects of an accused charged with exceeding the prescribed concentration of alcohol and successfully arguing the defence under s 49(4) of the Act of breath analyzing instrument error or operator error, Emerton J held, “The defence under s 49(4) is not made out simply by reference to the ‘possibility or probability’ that the result of the breath test was unreliable. It must be shown on the balance of probabilities that something affected the operation of the breath analyzing machine so as to give rise to the possibility that the result was unreliable.”

Corroboration for Post Driving Drinking Defence

In DPP v Gibson [2012] VSC 297 Emerton J allowed a Crown appeal against a Magistrate’s dismissal of a s 49(1)(f) charge against the motorist of exceeding the prescribed alcohol concentration whilst driving who successfully argued the post-driving drinking defence under s 48(1A) without having corroborated by material sworn evidence of another the fact that the motorist had claimed the blood alcohol reading on the breath analyzing instrument was due to the consumption of intoxicating liquor after driving.

Admissibility of analysis showing excess blood alcohol in culpable driving

In DPP v Carletti (Ruling No 1) [2013] VSC 305, during a culpable driving trial, Kaye J ruled at [56] to [64] that a blood sample taken from the accused was not taken in accordance with s 56 of the Act and, in absence of express consent to the collection of the sample, the evidence of its analysis was inadmissible in the trial. The accused had been taken to hospital due to injuries sustained when bitten by a police dog and not because of any belief or understanding, in a material sense, that he had a head injury in consequence of a motor vehicle accident. Kaye J considered that a ‘nod’ by the accused when asked at the hospital if he consented to the taking of the sample did not, in the circumstances, amount to an intention to consent to it.

Subpoena of breath analyzing instrument documents

Defence lawyers soon found it easier to show legitimate forensic purpose in seeking, by subpoena, production of documents and records relating to the breath analyzing instrument used to establish a motorist’s alleged blood alcohol concentration (where the client instructs to challenge the accuracy of the analysis) thanks to Johnson v Poppeliers (2008) 51 MVR 444; [2008] VSC 461. Kyrou J did not follow Fitzgerald v Magistrates’ Court (2001) 34 MVR 448; (2001) VSC348 and held (at [47]) that the correct test in deciding whether certain items specified in a subpoena, set out at para [9] of Johnson), (similar to that sought in Fitzgerald) was the “reasonable possibility” test for determining whether items sought concerning the breath analyzing instrument and other items would materially assist the motorist in defending the exceed prescribed alcohol concentration charge under s 49(1)(f) of the Act, in raising the s 49(4) instrument/operator error defence. Kyrou J allowed the motorist’s appeal and found that the Magistrate erred in applying the “within the range of probability test” in Fitzgerald.

Discretion to exclude certificate

In Terry v Johnson & Anor (2009) 198 A Crim R 128; [2009] VSCA 286 the Court of Appeal (comprising Buchanan and Mandie JJA, Byrne AJA) allowed a motorist’s appeal (against conviction by a Magistrate for a s 49(1)(f) exceed prescribed alcohol concentration offence) from a Supreme Court judge’s dismissal of a judicial review application on a County Court Judge’s decision not to exclude a certificate of blood alcohol concentration following that judge’s finding that police advised a driver against taking a blood test after a breath test.

Buchanan JA stated that the County Court judge thought the purpose of a blood test was to disclose a blood alcohol percentage more accurately than a breath test or give the accused a benefit of a different reading if the blood result diverges from the breath result. Thus, a high breath test reading meant the appellant was not denied a potential benefit when he was dissuaded from undergoing a blood test. He stated that Her Honour made a misplaced assumption that the breath result was accurate -there was no evidence it was. She could only speculate that a blood test would produce a like result and could not know whether the blood test might disclose a reading less than 0.05%. It was relevant that there was evidence that the breath test machine malfunctioned and that there was no evidence of the quantity of beer the appellant consumed.

Buchanan JA further stated that different driver’s licence disqualification periods are imposed according to whether the accused’s alcohol concentration in grams per 100 millilitres of blood is more or less than increments of 0.01%, so that a small discrepancy between results of breath and blood tests determine level of punishment.
Byrne AJA stated that the Bunning v Cross discretion to exclude evidence requires the appellant to satisfy the court that the balancing exercise referred to in Ireland’s case favours exclusion. Weight given to police misconduct in causing an accused to forego an important right, is established. The County Court Judge had discounted the significance of this due to unwarranted assumptions. In the circumstances, a judge properly applying Bunning v Cross, must inevitably exercise discretion to exclude the analysis evidence. Her discretion miscarried. The Supreme Court Judge also erred.
The result in Terry v Johnson at the Court of Appeal was not dissimilar to the decision of that Court in the early case of DPP v Moore (2003) 6 VR 430; [2003] VSCA 90 on the expansion of the general unfairness discretion to exclude the certificate of analysis in circumstances where the motorist was dissuaded by police from obtaining a blood test following a positive evidentiary breath test.

Re-opening to prove authorization to operate instrument

In Burridge v Tonkin [2007] VSC 230 Williams J held at [66] to [71] that a Magistrate did not err in exercising discretion to allow the prosecution to re-open its case to prove that the operator was authorized by the Chief Commissioner to operate the breath analyzing instrument in the particular circumstances of the which included late service of a s 58(2) notice, the witness entering the witness box unaware of the magistrate’s ruling on that notice and its content. The magistrate had found that there were exceptional circumstances to allow reopening.

Miscarriage of discretion to exclude analysis certificate

In DPP (Vic) v Riley (2007) 16 VR 519; [2007] VSC 270 Hansen J allowed a Crown appeal against dismissal of ss 49(1)(b) and (f) exceed prescribed alcohol concentration charges after the Magistrate excluded the certificate of analysis from the breath analyzing instrument on the basis. The magistrate had failed to exercise the Bunning v Cross public policy discretion by reference to relevant criteria thereby causing the discretion to miscarry.

The magistrate had found that the accused was in lawful custody for a time after lawful arrest after an interception following his erratic driving of a motor vehicle, however, there was a short period of unlawful detention and some excessive pepper-spraying by police.

However, Hansen J found in the circumstances of the case that the magistrate actually did not take into account the period of unlawful detention in the exercise of the public policy discretion to exclude the evidence, rather the discretion was exercised in relation to certain “excessive” conduct by police following the motorist’s removal from the car. Hansen J held at [28] that the motorist in that case was “lawfully arrested” on suspicion of car theft, but the magistrate erred in excluding the certificate because it could not be said that the breath analysis evidence was obtained by means of the excessive roadside conduct which was why the magistrate excluded the evidence.

Excluding evidence if police abuse power

In DPP v Foot (2010) 200 A Crim R 558; [2010] VSCA 112, the Crown appeal against dismissal of a drink driving charge under s 49(1)(f) succeeded. The Court referred to its decision in Mastwyk v DPP (2010) 27 VR 92; stating (at [6]) “The unanimous view of the Court in Mastwyk is that the power conferred by s 55(1) (to require the driver to accompany the officer) does not authorize 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 officer must be objectively reasonable.”

The Court held (at [9]) that it was not reasonably open to the Magistrate to conclude that there was a ‘short period’ of detention and “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 [need] &helip;evidence, and [a]&helip; finding, that the police&helip;refused to release Mr Foot upon his request. The learned Magistrate evidently accepted that the officers did not hear his request and, in the particular circumstances... there was no refusal and no detention.”

The Court also held (at [11]) that it was not correct to say that a prosecution for exceeding the prescribed alcohol concentration under s 49(1)(f) must fail if the requirement to accompany under s 55(1) was invalid. The Court (at [13]) referred to the correct approach to be followed in cases where there is involuntary detention by referring to what Winneke P had said in DPP v Foster [1999[ 2 VR 643; [1999] VSCA 73 and stated “&helip;if the power to require the motorist to accompany the officer is abused, there is a risk that the prosecution will be unable to use the evidence obtained (as the result of&helip;furnishing of a breath sample)&helip;the risk that the Court would exclude the evidence&helip; in the exercise of its discretion, whether or public policy grounds or on fairness grounds.”

The Court further held (at [14]) “the question of the possible exclusion of the evidence&helip;would fall to be determined in accordance with&helip;the Evidence Act 2008 (Vic)&helip;and would affect both the charge under s 49(1)(f) and&helip;(b)” and (at [15]) “The position is quite different when a charge is brought under s 49(1)(e)&helip;alleging a refusal&helip;to accompany&helip;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.”

The Court of Appeal distinguishes the approach in relation to refusal to accompany offences from exceed prescribed alcohol concentration offences.

Thus, if police require motorists to accompany for breath tests in a manner which a court finds was an abuse of power then evidence of a breath analysis result is not automatically inadmissible, rather judicial discretions to exclude evidence (in this case the analysis certificate) may enliven and, in absence of other evidence, ss 49(1)(b) and (f) exceed prescribed alcohol concentration charges may be dismissed.

If, in a given case, accompaniment in the divisional van’s rear compartment constituted imprisonment, a court may find that that was an abuse of power warranting exclusion of the analysis certificate. It also seems arguable that, even if there was no imprisonment, if police are otherwise found to have abused their power in making requirements under s55(1) then discretion to exclude the analysis evidence may also enliven.

REFUSAL TO COMPLY OFFENCES

Refusing a “preliminary” breath test

In DPP v Skafidiotis [2013] VSC 258 the Supreme Court heard that a motorist, who had already left his car after driving, was advised by the informant following interception, “I want you to take a breath test. I don’t think you should be driving.” The informant did not have a preliminary breath test device in his hand when this was said. The motorist responded with expletives, became agitated, argumentative and aggressive. The informant then went to retrieve the device in the police vehicle which was several metres away. The motorist then ran off and was pursued.

The magistrate dismissed a subsequent charge of refusing a preliminary breath test under s 49(1)(c) of the Act and the Director of Public Prosecutions appealed to the Supreme Court.

In dismissing the Director’s appeal Williams J stated at [25] that what the informant said in relation to the requirement “&helip; was ambiguous in all the circumstances. Notwithstanding the early hour, the location, the previous exchange between the informant and the respondent’s flight, the informant might reasonably have been taken to have been requiring the respondent either to undergo a preliminary breath test under s 53(1) or to provide a breath sample under s 55(2), (at the police car or at a police station, without having undergone a preliminary test). There was no specific mention of a preliminary breath test or of the fact that the [informant] 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 which was being required of him.”

Williams J agreed with the magistrate that there was not reasonably sufficient evidence to establish the requirement under s 49(1)(c) in the absence of the word “preliminary” in the informant’s requirement in all the circumstances.

No need to prove subjective understanding of requirement to accompany

In DPP v Serbest [2012] VSC 35 Robson J allowed a Crown appeal against dismissal by a Magistrate of a charge of refusing to accompany police for a breath test under s 49(1)(e) of the Act. The extract of the relevant conversation between the police and the motorist is set out at [4]. The police took possession of the accused’s licence following the initial road side interception and conversation and returned to their car. Then there was further conversation between the police and the accused relating to whether his licence was suspended. It was later shown that his licence was not suspended.

The accused’s refusal to attend the police station for further testing hinged on the fact that he was told that, because of his suspension, he was not allowed to have any alcohol in his system. A police officer gave evidence, however, that he believed the offence of refusing to accompany to the station was completed at the time the police returned to their vehicle. The second conversation, at the window of the police vehicle, was after the offence had been committed. His evidence was: “&helip; The decision was made by the accused not to attend so the offence was complete.”

Robson J inferred that the magistrate believed that the police were arguing that, although the accused had a conversation with them in which it appears that he refused to attend the station because they erroneously believed him to have a suspended licence, this conversation was not relevant to laying the charge, and the offence was complete (that is, he had refused to accompany) before the second conversation occurred.

The motorist gave evidence as to his belief arising from the conversation with police and requirement to accompany following a PBT where the police officer said, amongst other things, “The test indicates your breath contains alcohol.” The evidence (set out in paragraph [9]) he gave included the following: “They gave me a choice, it’s up to you. I didn’t think I had to do it if I didn’t blow over. I asked if I have to I’ll go, I thought it was relating to my licence suspension.”

Robson J held that the accused motorist was not confused as to the necessary elements of the offence. That is,

  1. police made a request that he accompany them;
  2. the reason for the accompaniment was for a breath test; and
  3. his refusal to comply constituted an offence.

Robson J held that the accused’s subjective state of mind of was not relevant to the offence with which he was charged. The accused’s response to the officer making the requirement indicated that he was aware that he had been requested to accompany the police officer for a breath test and it was an offence if he refused to comply.

In an earlier case of at the Court of Appeal of Hrysikos v Mansfield (2002) 5 VR 485; [2002] VSC 35 Ormiston JA had stated in that unsuccessful Crown appeal against a Supreme Court judge’s allowing of a motorist’s appeal against conviction for refusing to remain for a breath test under s 49(1)(e) (where the motorist walked out of a booze bus to smoke a cigarette over protest of the police who had required a breath test and was required to wait a few minutes for the instrument to be ready), at paragraph [3] “The word "refuses" must be taken to carry with it an element of mental intent, albeit judged objectively for the purposes of an offence such as the present.”

No requirement to inform of PBT result

In DPP v Blango [2012] VSC 383 Macauley J heard that a motorist wanted to see the reading of the preliminary breath test device upon which the requirement to accompany was predicated prior to his accompanying the police. His Honour allowed a Crown appeal against a Magistrate’s dismissal of s 49(1)(e) charge of refusing to accompany for a breath test. The motorist stated, amongst other things, “I will go with you when you tell me the reading”. The police officer refused to tell the motorist the reading and repeatedly told him that he would lose his licence for two years if he refused to accompany the police officer. The magistrate was not satisfied that the motorist had the mental element of refusing.

Macauley J held at [16] and [17] “Section 49(1)(e) of the Act does not admit any conditions to compliance with a s 55(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 driver&helip;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’. &helip; 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.” He held at [22] “&helip;there was only one inference reasonably open on the facts as found, namely, that Mr Blango had refused to comply&helip;”

Refusal must be conscious and voluntary

In Dover v Doyle (2012) 60 MVR 261; [2012] VSC 117 Bell J heard that a County Court Appeal Judge was told that medical evidence suggested that the motorist’s refusal at the hospital to allow a doctor to take blood may have been due to a severe head injury when the motorist fell out of a car when driving. The County Court Judge found it unnecessary to go into the medical evidence because he decided that for this particular type of refusal offence, under s 56(2) of the Act, the act of refusal did not need to be conscious and voluntary.

Bell J, however, allowed that motorist’s judicial review of the County Court Judge’s decision to convict on a charge under s 56(2) of the Act of refusing to allow a doctor to take a blood sample. Bell J held that whilst a refusal to allow a blood sample is a strict liability offence, such a refusal must be committed consciously and voluntarily and the County Court Appeal Judge had erred on the face of the record. In DPP v Dover and the County Court [2013] VSCA 233 the Crown appeal against Bell J’s decision failed at the Court of Appeal.

Advice that only medical practitioner/health professional to take blood

In DPP v Novakovic (2012) 62 MVR 94; [2012] VSC 397 the Supreme Court heard that a motorist had twice given two insufficient samples into a breath analyzing instrument, and was then required to allow a blood sample. The police did not explain that the blood test was to be conducted by a registered medical practitioner (hence possibly giving the driver the impression that the police may have been involved in drawing of the blood).

Williams J dismissed the Crown appeal against a Magistrate’s dismissal of a charge under s 49(1)(e) of refusing to allow a sample of blood to be taken pursuant to a requirement under s 55(9A), holding that the police must communicate to the person from whom the blood sample was required the essential fact that the person is only required pursuant to a requirement under s 55(9A) to allow a registered medical practitioner or an approved health professional to take the blood sample.

No requirement to again inform requirement to remain 3 hours

Also in DPP v Novakovic Williams J, although ultimately dismissing the Crown appeal against dismissal of a s 49(1)(e) charge of refusing to allow a blood sample following a s 55(9A) requirement (because the police never told the motorist he was required to allow a registered medical practitioner or approved health professional to take the blood), actually upheld that part of the Crown appeal dealing with informing the motorist of the temporal limitation of the maximum time to remain.

The motorist, when intercepted by police, underwent a PBT and was required to accompany them to the Police Station and to remain there until he had received a certificate of analysis or for a period of “three hours” whichever was sooner. At the station, he was required to undergo a breath test pursuant to s 55(1) but provided an ‘insufficient sample’. He was then required to undergo a further breath test pursuant to s 55(2A) but again provided an ‘insufficient sample’. The informant then required the motorist to undergo a blood test pursuant to s 55(9A). The informant did not then mention the three hour temporal limitation for the conduct of such blood test. The motorist refused to allow a sample of blood to be taken and was charged with refusing to allow a sample of blood to be taken, contrary to s 49(1)(e).

After considering recent Supreme Court decisions Williams J held that, in respect of a blood sample requirement under s 55(9A), the police officer was not required to advise the person of the three hour temporal limitation during which the person may be required to remain for allowing the blood sample to be taken - the police officer had already advised of the three hour limit at the time of the requirement to accompany.

Police protocols on blood

Following decisions adverse to the Crown at the Court of Appeal in DPP v Moore and Terry v Johnson above (relating to the unfairness discretion to exclude breath analysis readings if the motorist was dissuaded by police from requesting blood following a breath test reading revealing excess blood alcohol concentration) police pro-forma drink driving note forms (often used by police involved in interviews relating to drink driving enforcement) have a section towards the end of them for inclusion of details of any discussion about blood sampling.

It is now also not uncommon for some breath analyzing instrument operators, particularly those police attached to the Road Policing Traffic Drug and Alcohol Section and the Highway Patrol, to tape-record conversations with motorists at the relevant times when the topic of blood sampling may arise. Conversation about blood can occur at police request following a failed breath test (under s 55(9A)), or at the motorist’s request following a breath test reading of excess blood alcohol concentration (under s 55(10) where the motorist has a statutory right to request a blood test following a breath test) in order for there to be a corroborated or more accurate version of conversation ensuing for use in a subsequent contested hearing.

In very recent years, it seems that many police are being trained in, or have become aware of, the importance of avoiding any perceived attempt to dissuade a motorist (even benevolently) from obtaining blood should the motorist request a blood test under s 55(10) in an attempt to dispute (through a blood test which possibly might reveal a potential a lower blood alcohol reading) the result of the breath analyzing instrument test.

Defective pleading of refusal charges

In DPP v Kypri (2010) 57 MVR 387; [2010] VSC 400 Pagone J dismissed a Crown appeal against a Magistrate’s decision dismissing a charge under s 49(1)(e) of refusing to accompany for a breath test. The charge was worded:

“The defendant at Doncaster on 27 November 2005 having been required to furnish a sample of breath pursuant to section 55 of the Road safety [sic] 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 since the driving of a motor vehicle.”

Pagone J held at para [5] that “&helip;s 49(1)(e) refers to separate offences&helip;the charge averred a failure to comply with a requirement “to accompany a member” of the police force&helip;but it did not identify which of the possible requirements under s 55 had been invoked and not complied with. Each of ss 55(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) alDPP v Kypri so permits the imposition of a requirement in the context of an earlier requirement&helip; the learned Magistrate cannot be said to have erred in the conclusion that the charge had failed to included essential elements&helip;a reading of the charge would not identify which of the many potential obligations to accompany&helip;which s 55 permitted had not been complied with...”

Although no amendment application was made at the Magistrates’ Court hearing, the Crown submitted in its appeal that an amendment should have been permitted. However, Pagone J held at [7] “&helip; 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 be 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&helip;”

A very large number of refusal charges were adjourned pending the outcome of this decision and further adjourned pending another Crown appeal to the Court of Appeal.

However, in DPP v Kypri [2011] VSCA 257, the Court of Appeal reversed Pagone J’s decision, allowing the further Crown Appeal. Whilst Ashley, Nettle and Tate JJA found that the s 49(1)(e) refusal to accompany charge was defective in omitting the essential ingredient of the sub-section following “section 55” they held that the Magistrate ought to have of his own motion considered whether to amend the charge notwithstanding there was no amendment application by the police prosecutor before him and notwithstanding the 12 month limitation period had expired by the time of the contested hearing before the Magistrate. Nettle JA set out guidelines for the courts to follow in determining whether to exercise the discretion in favour of amendment which are here set out.

“48 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, I consider that 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 accused or his representatives and whether it made clear that the case alleged against the accused 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 accused was able to point to anything which showed that he could not reasonably have been 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 specific reference tos 55(1)(and thereby to make the form of the charge accord to the case which the accused had always understood was alleged against him)?

49&helip;.the magistrate can hardly be criticized for failing to adopt that course. Hitherto, there has not been any guidance on the point. But now that the point has arisen and been decided, in my view that is what needs to be done.”
The matter was remitted to the learned Magistrate to determine whether, in light of these questions, to amend the charge to include the essential ingredient otherwise missing.

This was landmark decision on pleadings defect arguments, was relevant not just for s 49(1)(e) refusal offences but also in relation to all summary charges where is it alleged that a fundamental element of the offence was missing from the pleaded charge and is thereby defective warranting it be struck out with the consequence that the prosecution will be unable to reissue as the limitation period to commence a summary criminal proceeding had expired.

The Court of Appeal stated that the Magistrate must then proactively consider whether to amend the charge, even if the prosecutor makes no such application, and even if the limitation period has expired, and must follow the guidelines adumbrated by the Court of Appeal in determining how to exercise that discretion.

It was also be likely to have encouraged police to ensure that the police brief itself adequately disclosed all elements of the offence charge and be able to prove that it served upon the accused prior to the 12 month limitation period expiring in order to defeat potential arguments that the pleaded charge may have omitted an essential ingredient of the offence.

However, it appears that the effect of the Court of Appeal decision in Kypri on amendment when if the police brief has been received containing the elements within 12 months was abrogated by the new Criminal Procedure Act 2009 (Vic) s 8 which seems to reflect the common law in Victoria prior to the Kypri decision, this new provision relevantly providing,

“(3) An amendment of a charge-sheet that has the effect of charging a new offence cannot be made after the expiry of the period, if any, within which a proceeding for the offence may be commenced.

(4) If a limitation period applies to the offence charged in the charge-sheet, the charge-sheet may be amended after the expiry of the limitation period if-

(a) the charge-sheet before the amendment sufficiently disclosed the nature of the offence; and

(b) the amendment does not amount to the commencement of a proceeding for a new offence; and

(c) the amendment will not cause injustice to the accused.”

Validity of requirements to accompany for breath test

In DPP v Piscopo [2011] VSCA 275 the Court of Appeal (comprising Weinberg, Ashley and Tate JJA) reversed Kryou J’s decision in DPP v Piscopo [2010] VSC 498 (who had dismissed a Crown appeal against a magistrate’s dismissal of a s 49(1)(e) charge of refusing to accompany for a breath test), allowed the Crown appeal, and remitted the matter to the Magistrate. At [46] Ashley JA, with whom Weinberg and Tate JJA agreed, stated that in relation to each of the competing interpretations of s 55(1) is grammatically available, however, the Crown’s interpretation is to be preferred for the nine reasons His Honour sets out in lengthy form from [47] to [69] of the judgment.

In short, it was found that Kryou J erred in concluding that the power to require a person to accompany and remain in s 55 (1) is a statement of two component parts of a single requirement rather than a statement of two discrete powers and that the making of a requirement to accompany does not require a statement by the police of the maximum 3 hour period - the motorist did not have to be informed of the temporal limitation of “3 hours” when required to accompany police for a breath test.

The many matters which were adjourned pending the outcome of the Court of Appeal case of DPP v Piscopo, in some cases for years, were then re-listed for hearing. Some of those motorists instructed their legal practitioners to enter guilty pleas and others sought to contest the charge on other arguable grounds.

Validity of requirements to accompany for blood test

In DPP v Rukandin [2011] VSCA 276 the Court of Appeal (comprising Weinberg, Ashley and Tate JJA) reversed Kryou J’s decision in DPP v Rukandin [2010] VSC 499 (who had dismissed a Crown appeal following a magistrate’s dismissal of a s 49(1)(e) charge of refusing to accompany for a blood test), allowed the Crown appeal, and remitted the matter to the Magistrate. At [17] Ashley JA, with whom Weinberg and Tate JJA agreed, stated that for the reasons His Honour gave in DPP v Piscopo the Court of Appeal found that Kryou J erred in concluding that the power to require a person to accompany and remain conferred by s 55(9A) is a statement of two component parts of a single requirement rather than a statement of two discrete powers and that the making of a requirement to accompany for a blood test does not require a statement of what Ashley JA called “the 3 hour period”.

Requirements to remain for blood test

It is important to note the obiter dictum of Ashley JA at the end of [17] of DPP v Rukandin “&helip;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” [emphasis added]. This statement seems to approve of what Forrest J held in Uren v Neale below.

As with DPP v Piscopo, the many matters which were adjourned pending the outcome of the Court of Appeal case of DPP v Rukandin were re-listed for hearing before the Magistrates’ Court for guilty pleas or for contest on other arguable grounds.

Time limit for requirement to remain for blood test

In Uren v Neale (2009) 53 MVR 57; [2009] VSC 267 Forrest J allowed the portion of a motorist’s appeal against convictions for three refusal offences relating to the specific ground impugning the conviction for refusing to remain at the police station for a blood test contrary to s 49(1)(e) of the Act. In ([125] to [128]) he stated that the motorist was not given reasonably sufficient information to know what was required of him. The maximum duration of the statutory requirement, a period of three hours after driving, was not conveyed to him. At ([126]) he stated “&helip;the Magistrate misinterpreted s 55(9A)&helip;What&helip;[the motorist] was not told was the most basic proposition required by the section, namely that he did not have to stay once the three hour period after the subject driving had expired” The requirement to remain&helip;was tantamount to an unlawful open ended requirement to remain interminably because the police never told him he was only required to remain for up to three hours.

Proof of approved breath analysing instrument

In Uren v Neale above Forrest J, (at [88]) dismissing the portion of an appeal against conviction relating to a charge of refusing to undergo a breath test contrary to s 49(1)(e), stating that it was not necessary for the prosecution to establish as an element of that charge that the breath analysing instrument was approved. In any event he found (at [90] to [91]) that “&helip;there was before the Magistrate evidence that the breathalyser was an approved instrument and, absent challenge &helip;was capable of satisfying a requirement (if it existed) of proof of this...”

In dismissing that portion of the appeal against conviction on a charge of refusing to allow a blood sample contrary to s 49(1)(e), he stated (at[98],[99]) that it was not necessary for the prosecution to establish as an element of that charge that the breath analysing instrument was approved.

Refusal of unreasonable police requirements

In Mastwyk v DPP (2010) 27 MVR 92; [2010] VSCA 111; DPP v Foot (2010) 200 A Crim R 558; [2010] VSCA 112 the Court of Appeal (comprising Maxwell P, Redlich and Nettle JJA) delivered judgments, some eleven months after actually hearing the appeals, on an appeal against Kyrou J’s decision to allow a Crown appeal in DPP v Mastwyk [2008] 192 relating to reasonableness of police requirements to accompany for a breath test in a manner imprisoning a motorist, and on a Crown appeal in DPP v Foot concerning similar issues.

A very large number of contested drink driving and refusal charges were adjourned, in some cases for years, pending the outcome of these decisions. Mastwyk originated from a Magistrate’s dismissal of a refuse to accompany charge under s 49(1)(e) of the Act, the alleged offence occurring in 2005. Foot originated from a magistrate’s dismissal of a s 49(1)(f) charge of exceeding the prescribed alcohol concentration.

In Mastwyk v DPP the appeal was dismissed but for differing reasons among the judges. Maxwell P (at[32]), in separate judgment, found that it was not correct to read s 55(1) as subject to an implied requirement that the exercise of police power to require accompaniment for a breath test must be objectively reasonable at the time it was made. He found that ‘Wednesbury unreasonableness’ (as introduced in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223) needed to be invoked concerning exercise of the s 55(1) power and every provision of the Act conferring power on an authorized person to require another to do or not do a particular thing. He stated (at [17]) that that ground is difficult to establish and, within the outer limits of validity defined by Wednesbury unreasonableness, it is for the decision-maker alone to determine what is reasonable— it is not for a court engaged in judicial review to decide whether it was reasonable.

However, both Redlich and Nettle JJA, delivering separate judgments, disagreed with Maxwell P on his holding that Wednesbury unreasonableness applied. Nettle JA (at [46]) held “if an accused defends a prosecution under s 49(1)(e)&helip; on the basis that the means of travel by which he or she was directed to accompany the police officer were unreasonable, the prosecution will fail unless the Crown establishes that the stipulated means of travel were objectively reasonable”. Redlich JA held (at [54]) “&helip; where a driver does not comply with a requirement to accompany&helip;because the proposed manner of compliance&helip;is objectively unreasonable, the prosecution will fail to establish the element of ‘refusal’...”

Redlich JA stated (at [81]) “The choice which must be presented to the driver, is between compliance and committing an offence under s 49(1)(e)”; and (at [82]) “&helip;where the driver is properly informed as to their choice and is prepared to accompany the officer 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 reasonable to require the driver to travel by that means&helip;”

Kyrou J had found error in dismissing the refusal charge because the Magistrate reasoned that an accompaniment in the rear compartment of the police divisional van was an imprisonment and invalid as a result. The correct test, according to Kyrou J and Redlich JJA, was whether the Crown could establish that that means of accompaniment was objectively reasonable after the motorist is presented with the choice, to accompany or not by the particular means offered.

It seems that if the Crown cannot establish that it was objectively reasonable to require the motorist to accompany by being transported in the back compartment of the divisional van then the refusal to accompany charge should be dismissed.

CONCLUSION

The above selection of cases from the Victorian Supreme Court and Court of Appeal over the last several years gives some insight into the many courses that litigation has taken arising out of the prosecution of motorists in that state for offences relating to drink driving and the causes behind it.

Constantly changing laws which increase penalties and protract the consequences of offending, fetter the sentencing discretion and expand the range of offences, in addition to the complexity of it all and the difficulty in defending those types of charges in conventional ways (due to the prevalence of numerous reverse onus and conclusive proof and facilitative provisions), leads to novel and innovative, even adventurous, defences being run and a never ending source of appellate proceedings at the state’s highest courts.

WJ Walsh-Buckley
Barrister-at-Law
20 October 2013

ARTICLE TWO - 2005

“The Drink-driving Defence Armoury in 21st Century Victoria

Warwick Walsh-Buckley

Barrister-at-Law (Vic.)
LLM; LLB(Hons); BA; AssocDipPolStu
Co-Author of ‘Motor and Traffic Law Victoria’

SUMMARY

Generally, the prosecution case in most charges laid under s 49(1) of the Road Safety Act 1986 (Vic) is overwhelming. This often leads defence counsel specialising in this sub-species of criminal jurisprudence to approach a defence by looking closely for chinks in the Crown armour. Certain Victorian Supreme Court and Court of Appeal decisions since the turn of the century indicate patterns relating to defences argued by barristers defending motorists accused of drink-driving and related offences. The following is a small selection of recent superior court decisions finding their way into the drink-driving defence armoury in 21st Century Victoria.

INTRODUCTION

Generally speaking , the prosecution case in most of the charges laid under s 49(1) of the Road Safety Act 1986 (Vic) (“the Act”) may be said to be overwhelming. It may even be said that the Parliament of Victoria wants it this way. This often leads defence counsel specialising in this particular sub-species of criminal jurisprudence to approach the defence by looking very closely for possible chinks in the Crown armour. Certain decisions of the Victorian Supreme Court and Court of Appeal since the turn of the century appear to indicate certain patterns relating to defences argued by those barristers who are briefed to defend motorists accused of the various drink-driving and related offences under s 49(1).

Hydra of Technicality

It is worth noting in a study of drink-driving litigation in Victoria what Brooking JA said (delivering the Court of Appeal’s judgment) in Sher v DPP (1)

“This is the latest product to come before the Court of the thriving minor industry, in which some lawyers seem to find full-time employment, of keeping the streets safe for those who drive when they have had too much to drink. Much time and ingenuity are devoted to this.

We are not at all persuaded that the results of all this activity are 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.

Arguments about proof of the effects of drink on an individual's ability to drive properly lead to the creation of blood alcohol concentration offences. This is followed by the creation of offences which depend upon the result shown by an instrument. A new jurisprudence develops about the use of measuring devices and certificates. Then drivers refuse to have breath tests and this is met by the creation of the offence of refusing to take a breath test. Next the lawyers say that the necessary incantations have not been used, so that there has been no unlawful refusal. (emphasis added)

&helip;on the fourth day they [the charges] were dismissed because the informant, who had himself issued the summons, had filed a carbon copy of it&helip;it was held that the words “original summons” in the Act&helip;somehow prohibited the use of carbon paper&helip;This kind of point must bring the law into disrepute. Of course the taking of such points is allied with reliance on the statutory time limit of 12 months for prosecutions for summary offences, so that the use of carbon paper is said to enable Mr Sher to escape prosecution”

In answer to Brooking JA’s judgment in Sher v DPP above one might look at an Editorial entitled “Individual Rights and Community Interests” by the Editors, G Nash QC and P Elliott QC of the Victorian Bar appearing in Victorian Bar News (2):

“&helip;For the Court to say&helip;that it is ‘not at all persuaded that the results of all this activity are in the public interest&helip;’appears to misconceive the duty of the lawyer. If the statement means that the taking of untenable technical points involves a major waste of public resources, it is probably a valid criticism. If, however, it means that the successful defence of people on technical grounds is not in the public interest, it is a negation of the principle that a man or woman should not be convicted except according to law. If it means that this particular group of alleged offenders are ‘unworthy’ of being defended, or if it means that technical defences should not be taken in this area of law (where the offences themselves are highly technical) what does it say of the activities of lawyers who defend persons who have in fact committed murder or rape or who traffic in heroin?”

Another possible answer to Brooking JA’s comment in Sher v DPP above is commentary on it by the Editor, D Brown, at the foot of the report of that case appearing in the Motor Vehicle Reports (3):

“The Court of Appeal refers to the ‘thriving minor industry’ where ‘some lawyers’ devote ‘time and energy’ to the ‘hydra of technicality’ when defending those charged with drink-driving offences. It is suggested that this activity is not in the public interest.

The activity has been created by the Victorian legislature. The conduct of breath tests should be a straightforward, simple matter. Instead the Road Safety Act has presented the police and drivers with a complicated, difficult, tortuous and awkward set of legislative provisions. Those provisions have been amended frequently. In consequence the courts have had to devote many hours, resulting in thousands of words, working out what the legislative provisions mean. The combination of verbose legislative provisions resulting in torrents of judicial precedent has created a formidable branch of the law comparable to the taxation laws.

It is not unknown for a few idle police officers to take short cuts in following the prescribed procedure when testing drivers for having an excess level of alcohol in their blood. The instances may be rare. They are difficult to prove. But it is incumbent upon a solicitor to check that the correct procedure has been carried out in respect of a particular client. The pressure and momentum creating the thriving minor industry comes from the drivers. Solicitors would be failing in their professional duty if they did not check carefully whether there had been a breach of the ordinary rules of criminal procedure or a breach of the specific procedure governing breath tests.”

Price that must be paid

In relation to the wonderfully witty analogy of Brooking JA (in conjuring up the mythical beast ‘the Hydra’ in Sher’s case) another reply might be reference to what Smith J said after allowing a motorist’s judicial review against dismissal of his appeal in the County Court in Day v The County Court (4):

“&helip;in the ongoing saga of challenges to convictions in this area. On occasions, judicial interpretation of the Act has created results seen as unsatisfactory and which have been addressed by amendments to the legislation. That, it seems to me, is a price that has to be paid for the creation of what is a highly detailed and technical set of very difficult provisions, designed to facilitate the enforcement of the law, and so address the very serious problem of drink driving, by removing and limiting common law rights and protections, including those to be found in the common law rules of evidence. Another price that has to be paid is the taking of points by counsel for the accused which appear to be technical and, on proper examination without merit&helip;”

Way of the Hydra

If running a so-called technical legal argument, on client’s instructions, to attempt to defeat a drink-driving or related charge might be referred to as “the hydra of technicality” (if a particularly constituted court finds that argument unattractive), then, some observers might perceive that drink-driving defence work generally may be called the ‘way of the hydra’ — fighting cases, not so much on the facts, but rather on the finer technical aspects of the law — an argument that an alleged specific or general procedural defect in the drink-driving prosecution is attractive enough to warrant dismissal of the charges, or unattractive meaning that the charges will be proved.

More often than not, drink-driving defence work gets down to what may be loosely termed “technicalities”. This is due, generally speaking, to the perception that the prosecution case against a motorist accused of infringing one of the many drink-driving and related offences in s 49(1) is, on its face, very strong. The Victorian Parliament has, over recent years, indeed recent decades, created significant obstacles in paths of those motorists who attempt to successfully defend charges of this nature. It may even be said that Parliament wants it that way. This particular area of criminal jurisprudence is generally quite unique in the practice of the criminal law. The provisions of the Act and its subordinate legislation are simply littered with facilitative or evidentiary provisions, reverse onus provisions, and conclusive proof or deeming provisions, the combined effect of which makes it extraordinarily difficult to successfully defend the charges.

Clients might be forgiven for thinking that, after seeking specialist legal advice on this complicated area, that he or she must prove his or her innocence rather than the traditional general principle under common law that the Crown must prove each element of the crime alleged beyond reasonable doubt without reverse onuses, by calling of actual witnesses to give sworn evidence without reliance upon hearsay.

It is, of course, not true that a defendant must prove he or she is innocent of these charges, however, with legislative framework having developed to its current regime in the early 21st Century, it almost seems that way in practice. Accordingly, it becomes very difficult, in the majority of cases, to confront the Crown in what might be described as a mainstream way in criminal cases, that is, challenging facts (on instructions) by probing witnesses’ abilities to observe or recall, exploring motives to lie, attacking credibility etc., or arguing that, for example, certain admissions may have been obtained illegally, improperly or unfairly thereby enlivening a discretion to exclude evidence.

Recent legislative reforms, combined with more sophisticated law enforcement techniques and technologies, with the spectre of possible Crown appeals, turn the average prosecution case into a formidable one and not one to be usually approached in a conventional way. The prosecution, in this arena, is given by the legislature considerable ‘weapons’ in its armoury enabling it to brush aside normal defence tactics and submissions easily. Certain recent superior court decisions, in practice, seem to add to the Crown’s weapons array.

Accordingly, the defence needs to adapt to this kind of ‘attack’ if it is to maximise chances of having the charges dismissed. The following is a just a small selection of recent superior court decisions which have found their way into the drink-driving defence armoury in 21st Century Victoria. They are divided into a dichotomy between ‘refusal offences’ under s 49(1)(e) and ‘exceed prescribed concentration of alcohol offences’ under s 49(1)(b), (f) and (g) of the Act.

REFUSAL OFFENCES

Halepovic v Sangston - Doctor not present when blood required

In a motorist’s appeal on a question of law against conviction for a charge under s 49(1)(e) of the Act of refusing to allow a doctor to take blood in accordance with s 55(9A) of the Act following unsuccessful attempts to obtain a breath sample, Bongiorno J held in Halepovic v Sangston (5) that a requirement for the taking of blood made pursuant to s 55(9A) needs to be made in the presence of either a registered medical practitioner or approved health professional (6). As neither of those people were present when the requirement was made then no lawful requirement could have arisen.

It should be noted that, in relation to charges under s 49(1)(e) of refusing to comply with a requirement for a breath sample, Buchanan JA at the Court of Appeal in DPP v Greelish (7) stated “If a person refuses to accompany a member&helip;to a police station&helip;that person does not fail to comply with a requirement to furnish a sample of breath&helip;for that requirement can only be made where the&helip;instrument is&helip;found&helip;”

Previously, in DPP v Foster (8) Winneke P held, “if the motorist refuses to accompany the police officer to the station&helip;where a sample can be furnished&helip;he or she is not at risk of being charged with&helip;‘refusing to furnish a sample, when required’; but only at risk of being charged with the offence of ‘refusing to accompany&helip;”.

It should also be remembered that over 42 years ago, in Scott v Dunstone (9), Sholl J had held:

“&helip;Parliament contemplated that the instrument must be there and available for operation at the time the requirement is made&helip;.I have rejected any notion of applying to this legislation the concept of anticipatory breach or refusal&helip;.it can be said that police may be put to inconvenience in having an instrument brought to a police station in order to make a request for a sample, whereupon the suspect may refuse&helip;; or&helip;says, “It is no use bringing a breath analyser, I will not take a test under any circumstances,” it is a useless labour to have one brought. That is a matter for police administration; but if the correct instrument is not there at the time, it merely means that no offence can be committed&helip;” Bongiorno J, in Halepovic, applied those earlier decisions to the instant case.

It would appear, however, that s 34 of the Transport Legislation (Miscellaneous Amendments) Act 2004 (Vic) (10) is dedicated to, amongst other things, removing the affect of Halepovic, with its amendment to s 49 by the addition of sub-s (1A) and the explanatory memorandum to the Bill supports this.

DPP v Skinner - Reasonable doubt as to belief instrument incapable

In DPP v Skinner (11) Nettle J heard an attempt by the prosecution to revisit the correctness of Hedigan J’s decision in DPP v Holden (12) through a Crown appeal against the dismissal by a magistrate of a s 49(1)(e) refusal charge constituted by a motorist refusing to allow a doctor to take his blood following alleged incapability of a breath analysing instrument to measure blood alcohol concentration through breath.

Nettle J stated that the Magistrate was bound to follow the decision in Holden. His Honour also held that Hedigan J was right to hold that it was incumbent on the prosecution to adduce evidence sufficient to establish beyond reasonable doubt that the police officer requiring the accused to furnish a breath sample believed on reasonable grounds that the breath analysing instrument was incapable of measuring the accused’s blood alcohol concentration in grams per 100 ml. Nettle J further held that it was open to the Magistrate not to be satisfied beyond reasonable doubt of the existence of reasonable grounds for the belief. He dismissed this Crown appeal.

It should be pointed out, however, that Nettle J stated that he did not accept that it was incumbent on the prosecution to prove that the apparent inability of the machine to produce a reading in gms/100 ml was due to defect or malfunction, or that the inability to obtain a reading was due or not due to inadequate or excessive volume of breath supplied, or to establish any reason why the machine would not work, or even to establish that there might or might not have been some chance of obtaining a reading if further tests had been attempted. His Honour disagreed with some of the observations made by Hedigan J in Holden which may have suggested a different conclusion.

A Crown application for leave to further appeal to the Court of Appeal was dismissed on 2 April 2004.

Hrysikos v Mansfield - Reasonableness

Unreasonable requirement to remain

In Hrysikos v Mansfield (13) the Court of Appeal dismissed a Crown appeal, against Smith J’s decision in Mansfield v Hrysikos (14). Smith J held that an implication of reasonableness should be read into all police requirements under s 55(1), including requirements to remain for a test on a breath analysing instrument. He allowed the motorist’s appeal against a conviction on a charge under a s 49(1)(e) of the Act of refusing to remain for a test on two bases.

The Court of Appeal heard that after the motorist furnished one breath sample the breath analysing instrument produced a certificate “alcohol in mouth”. The operator told her that she would have to wait another 15 minutes for a second breath test. The motorist said she wished to go outside the bus to smoke. She was told if she left the booze bus she may lose her licence for 2 years and receive a fine. She left the bus, was followed by police and again warned. She had a cigarette, remained close to the bus and in company of the two police. Outside the informant said to her that she was required to furnish a breath sample and if she refused she may be fined and lose her licence for 2 years.

At no time did she say would not give a further sample nor that she would leave the site. At all times she was close to the bus and police. She went back inside to get her handbag and when she came out for the second time a dispute broke out between police and the her partner leading to her and her partner’s arrest. She was also charged with refusing to remain under s 49(1)(e).

Smith J applied to s 55(1) requirements Ormiston J’s observations in DPP v Webb (15) who had stated that the only requirement which needs to be read into s 53 (power of police to require a preliminary breath test) is one of reasonableness — if a requirement to undergo a preliminary breath test is unreasonable it is no offence to refuse it. Smith J held the requirement to remain must be reasonable and that there is no unlawful refusal if the requirement to remain is unreasonable.

The Court of Appeal in Hrysikos held it was unnecessary to consider whether once the person accompanied police to the bus, it was unreasonable not to let the person leave the interior to have a cigarette although Eames JA discussed some examples of reasonable and unreasonable requirements. Accordingly, Smith J’s decision was not reversed.

This is an arguable new defence to charges of refusing to remain for a test on a breath analysing instrument under s 49(1)(e), ie, the defence of ‘unreasonable requirement’.

Remaining in proximity

In Hrysikos the Court of Appeal confirmed the correctness of Smith J’s second reason for allowing the appeal, ie., the motorist did in fact “remain there” within the meaning of s 55(1) of the Act notwithstanding she left the booze bus against directions of police to stay in the bus until the instrument was ready to receive her second breath sample. This is because a requirement to remain simply means a requirement to remain linked to a place where the test is to be conducted. What is critical is the proximity to the place. A person can remain at the place notwithstanding that the person may be outside its four walls.

Thus, the Court of Appeal’s decision in Hrysikos v Mansfield confirms Smith J on this point. This is another arguable new defence to charges of refusing to remain for a test on the instrument, ie, remaining in proximity to the place where testing is to occur.

Requirement to accompany to be reasonable

It should be noted that Eames JA stated in obiter dictum that requirements to accompany must also be reasonable (16). Accordingly, there may be another arguable new defence to charges of refusing to accompany for a test on a breath analysing instrument , ie, the defence of unreasonable requirement to accompany.

Goodey v Clarke - Pleadings Defect

In Goodey v Clarke (17) the Supreme Court dismissed a refusal charge after allowing a motorist’s appeal under s 92 of the MCA against conviction for an offence under s 49(1)(e) of refusing to furnish a sample of breath for analysis by a breath analysing instrument. The evidence revealed that the motorist complied with the first police requirement but refused to comply with the second requirement to provide a further sample .

Bongiorno J held that a magistrate erred in holding that an offence of refusing to furnish a sample of breath for analysis by a breath analysing instrument in response to a s 55(1) requirement was cognate with refusing to comply with a requirement under s 55(2A) to furnish a further breath sample. The magistrate erred in allowing the charge laid under s 49(1)(e) (pleading the requirement alleged to have been refused was under s 55(1)) to be amended after 12 months had passed since the commission of the offence.

An application for leave to appeal by the Crown was refused by the Court of Appeal (18) on the basis that Bongiorno J’s decision was “not attendant with sufficient doubt” to warrant leave being granted.

EXCEED PRESCRIBED CONCENTRATION OF ALCOHOL OFFENCES

Impagnatiello v Campbell — No proof of instrument as defined

In Impagnatiello v Campbell (19) the Court of Appeal, reversed Balmford J’s decision in Impagnatiello v Campbell (20) Eames JA, with whom Callaway and Buchanan JJA agreed, held that Balmford J had erred in dismissing the motorist’s appeal against conviction by a magistrate on a charge of exceeding the prescribed alcohol concentration within three hours of driving under s 49(1)(f) of the Act.

At the Magistrates’ Court hearing when asked the relevant question by the prosecutor under s 58(5) of the Act (to prove the apparatus was a breath analysing instrument within the meaning of the Act), namely, whether the instrument had any identifying serial number or mark on it, the informant said it did and that it had the serial number 0032. The prosecutor did not take the matter further by asking additional questions about any markings on the machine. Furthermore, the informant was not asked whether the instrument was a breath analysing instrument within the meaning of the Act, nor did he volunteer that to be so. Thus the approach under s 58(4)(a) to prove that an instrument used was that as defined in the Act was also not adopted. Eames JA held, the remainder of the Court agreeing “It is clear&helip;that the absence of the relevant evidence was fatal to the prosecution case.” (21)

In relation to a Crown submission that the presumption of regularity assisted the prosecution in its assertion that it had proven that the instrument was that contemplated in s 3, Eames JA held “Even assuming that the respondent was acting under a public duty when conducting the breath test on the appellant a presumption of regularity would not establish that the instrument he used in purported performance of his duty was one which duly complied with the definition in the Act. That is an element of the offence and a matter on which strict proof was required.” (22)

In relation to Crown submissions that inferences could be drawn to prove the instrument was that within the meaning of s 3, Eames JA held that “&helip;none of the suggested inferences were&helip;capable of being drawn and their individual incapacity in that respect was not overcome when they were combined&helip;the conclusions sought to be drawn amounted to mere speculation, and were not properly drawn inferences. The conclusions drawn&helip;could certainly not establish beyond reasonable doubt, either as discrete inferences or as a final conclusion when all are drawn together, that the instrument was compliant was s 3” (23). Eames JA also held that “The conclusion is inescapable, therefore, that there was no proof of an essential element of the offence. The charge ought to have been dismissed.” (24)

Eames JA, Callaway and Buchanan JJA agreeing, observed that “The requirement of notice under s 58(2) and (2A) is&helip;to oblige the defence to spell out any technical or substantive defence which was to be taken in answer to the certificate. Sub-section 2(A) requires there be notice of “any fact or matter with which issue is taken”&helip;.the notice under sub-s (2) must state what matters addressed by s 58(2)(a) to (f) are challenged, and as to what fact or matter.” (25)

DPP v Moore - Police advising against blood test

In DPP v Moore (26) the Court of Appeal dismissed a Crown appeal from the Supreme Court in DPP v Moore (27). Balmford J had heard that a magistrate accepted a defendant’s evidence that, after a test on the breath analysing instrument in 1998 revealed a reading of .074%, the defendant then requested a blood test under s 55(10) of the Act, however, he took the operator’s advice that his blood alcohol level would probably be higher than .07 when the doctor arrived, the operator also stating to the defendant“&helip;if I was you, I’d cop the .07 and forget about the blood”. Her Honour held that the Crown had not shown that the magistrate erred in exercising a judicial discretion to exclude the certificate of analysis and then dismissing the s 49(1)(b) charge.

Batt JA held that the learned magistrate actually erred in exercising a Bunning v Cross ‘public policy’ discretion as that discretion was not available because the impugned police conduct occurred after the evidence was obtained, not before (28). However, Batt JA held that the general unfairness discretion discussed by the High Court in Dietrich v The Queen (29) enlivened to exclude the certificate because the magistrate found that the operator’s conduct caused the respondent not to seek a blood test thus losing a possibility of him being able to lead evidence of a lower blood alcohol concentration than 0.074% and dismissed the Crown appeal on that reasoning. (30)

Chernov JA held that the Bunning v Cross ‘public policy’ discretion did arise in the circumstances. There was no error by the magistrate in exercising it (31). His Honour further held that the general fairness discretion discussed in Lobban (32) also enlivened to exclude the certificate in the circumstances and it would have been appropriate for the magistrate to have exercised it as the motorist was divested of an opportunity to obtain blood test, thereby challenging the accuracy of breath analysis and thus depriving him a trial which was not unfair (33).

Eames JA held that there was no reason why the Bunning v Cross ‘public policy’ discretion should be unavailable simply because the police conduct followed immediately after the procuring of the evidence rather than before (34). His Honour further held that the general unfairness discretion was open to be applied by the magistrate in addition to the public policy discretion (35)

Eames JA also stated that one additional factor in determining whether the respondent was denied a fair trial was the fact that the operator did not give evidence - the absence of the operator was a forensic advantage operating unfairly against the prosecution as no s 58(2) notice was given by the defence nor any warning as to the defendant’s allegation (36). The question whether there was any relevant unfairness to justify exercise of the general unfairness discretion could not be answered in absence of a response from the operator as to the allegation.

It is worth noting the passage of this particular litigation over a summary offence not only involved two separate Crown appeals, from the Magistrates’ Court to the Supreme Court under s 92 of the Magistrates’ Court Act 1989 (“the MCA”) and then from the Supreme Court to the Court of Appeal, but covered a time frame of almost five years from date of the alleged offence (where the reading was a relatively low 0.074%) in September 1998 to the date of the Court of Appeal’s judgment on 29 July 2003.

For a number of reasons contained in the lengthy judgment, the Court of Appeal’s decision in Moore has potential to be a paramount case in the ‘defence armory’ to defeat charges where a motorist furnished a sample into a breath analysing instrument allegedly revealing blood alcohol in excess of the prescribed concentration.

Platz v Barmby — Breach service requirements

In Platz v Barmby (37) Byrne J allowed a motorist’s appeal on a question of law (s 92 of the MCA) against conviction for an offence under s 49(1)(g) which provides that a person is guilty of an offence if they have, “&helip;had a sample of blood taken&helip;in accordance with ss 55 or 56 within 3 hours after driving or being in charge of a motor vehicle” and a careless driving charge. This was because the motorist was served the charge and summons less than 14 days prior to the mention date which was a breach of what was required by s 34(1)(a)(ii) of the MCA. His Honour adopted a strict approach.

He further held that the minimum 10 day period for personal service of a certificate provided for in s 57(5) of the Act, as it then stood, had not been complied with. Compliance with the service requirement was pre-condition to admissibility. The underlying policy was that defendants should have opportunity to consider the certificate’s content well before trial.

A certificate which is short-served in terms of date of tender into evidence was inadmissible.

Day v County Court of Victoria — Informed consent re blood

In Day v County Court of Victoria and Hanson (38) Smith J allowed a motorist’s application for judicial review of a County Court Appeal judge’s decision to convict on a s 49(1)(b) offence. He held that s 57(9) of the Act was intended by the Parliament that a driver have a choice to provide a blood sample or not and the driver should express consent before blood is taken or the evidence of the result could be tendered.

It was not open to a County Court appeal judge to find consent was made following exercise of a choice (in circumstances where more than 3 hours had passed since the time of driving) because the driver remained under the impression that he had no choice thus, when asked by the doctor, his assent amounted to no more than allowing a doctor to take the sample and not the giving of consent. Smith J held that he did not accept that it would be Parliament’s intent that anything short of informed consent would suffice to enable a blood sample to be taken and given in evidence in circumstances where ss 57(9) and (10) of the Act apply.

CONCLUSION

The above selection of superior court decisions reveals some recent trends in drink-driving defences argued by barristers practising in this unique speciality in the criminal law. They also reveal the complexity of some of the legal issues involved and the fact that sometimes litigation in this complicated and often amended area of the law reaches the highest courts in Victoria.

In DPP v Croaker (39) Bongiorno J stated in relation to the legislation regulating drink-driving “the complexity which surrounds the drafting of some of the provisions of the Road Safety Act&helip;gives rise to a fertile field for technical points to be taken, one after another.”

In DPP v Fernandez (40) Smith J also stated in relation to drink-driving legislation generally:

"Judges have commented before on the extreme difficulty of interpreting the provisions of the Act. I suggest that one of the reasons for that difficulty is that the original provisions were very technical and detailed. This in turn has led to technical arguments&helip;and periodic amendments designed to address arguments of construction that have been successful but are viewed as unsatisfactory. Thus, as here, qualification has been placed on qualification. The legislation is now so complicated that to simplify it would be a very difficult task.”

Since the Author’s previous article for the Criminal Law Journal on drink-driving defences in Victoria (41) the frenzy of litigation generated by the prosecution and the defence alike continues. It seems that continual efforts by the Parliament of Victoria to fetter the sentencing discretion of the Courts in imposing lengthy mandatory minimum licence disqualification periods upon findings of guilt for offences under s 49(1) of the Act, coupled with tougher penalties being imposed for such offences (including alcohol ignition interlock conditioning upon re-licensing), appear to fuel a number of vigorously fought contests over drink-driving and related charges in Victoria. This is likely to continue unabated as the 21st Century progresses.

(1) Sher v DPP (2001) 34 MVR 153; [2001] VSCA 110
(2) Victorian Bar News No. 118 of 2001 at p 5 at 6
(3) Motor Vehicle Reports (2002) 34 MVR 153 at 155
(4) Day v The County Court (2003) 37 MVR 319; [2002] VSC 426 at [40]
(5) Halepovic v Sangston (2003) 40 MVR 415; [2003] VSC 464
(6) Ibid. at [35(a)(ii)] read with [9(a)(ii)]
(7) DPP v Greelish (2002) 128 A Crim R 144 at [14]
(8) DPP v Foster [1999] 2 VR 643 at 658
(9) Scott v Dunstone [1963] VR 579 at 582
(10) Transport Legislation (Miscellaneous Amendments) Act No 49/2004 (Vic), receiving Royal Assent on 16 June 2004, commencing operation by virtue of s 5 on 17 June 2004
(11) DPP v Skinner (2004) 40 MVR 427; [2004] VSC 32
(12) DPP v Holden (1999) 28 MVR 315; [1999] VSC 14
(13) Hrysikos v Mansfield [2002] 5 VR 485; [2002] VSCA 175
(14) Mansfield v Hrysikos (2001) 32 MVR 491; [2000] VSC 474
(15) DPP v Webb [1993] 2 VR 403 at 408
(16) Hrysikos v Mansfield [2002] 5 VR 485; [2002] VSCA 175 at [58]
(17) Goodey v Clarke (2002) 37 MVR 121 [2002] VSC 246;
(18) Clarke v Goodey [2002] VSCA 23/8/02
(19) Impagnatiello v Campbell [2002-2003] 6 VR 416; [2003] VSCA 154
(20) Impagnatiello v Campbell (2001) 35 MVR 181; [2001] VSC 425
(21) Impagnatiello v Campbell [2002-2003] 6 VR 416; [2003] VSCA 154 at [15]
(22) Ibid. at [32]
(23) Ibid. at [34]
(24) Ibid. at [35]
(25) Ibid at [40]
(26) DPP v Moore [2003] 6 VR 430; [2003] VSCA 90
(27) DPP v Moore (2002) 35 MVR 357; 129 A Crim R 95; [2002] VSC 29
(28) DPP v Moore [2003] 6 VR 430; [2003] VSCA 90 at [32]
(29) Dietrich v The Queen (1992) 177 CLR 292; (1992) 64 A Crim R 176
(30) DPP v Moore [2003] 6 VR 430; [2003] VSCA 90 at [35]
(31) Ibid at [51] and [57]
(32) Lobban (2000) 77 SASR 24
(33) Ibid. at [61]
(34) Ibid. at [93]
(35) Ibid at [94]
(36) Ibid. at [95] and [96]
(37) Platz v Barmby (2002) 135 A Crim R 571; [2002] VSC 531
(38) Day v County Court of Victoria (2002) 37 MVR 319; [2002] VSC 426
(39) DPP v Croaker (2001) 120 A Crim R 588; [2001] VSC 342 at par [8]
(40) DPP v Fernandez [2004] VSC 401 at [15]
(41) WJ Walsh-Buckley, “The Rise and Fall and Rise of Drink-driving Defences in Victoria” (2001) 25 Crim LJ 276

WJ Walsh-Buckley
Barrister-at-Law
18 September 2005

ARTICLE THREE - 2001

“The Rise and Fall and Rise of Drink-driving Defences in Victoria

By Warwick Walsh-Buckley

Barrister-at-Law (Vic.)
LLM; LLB(Hons); BA; AssocDipPolStu
Co-Author of ‘Motor and Traffic Law Victoria’

By far the most commonly litigated type of summary offence appealed to the superior courts in Victoria over recent decades is the drink-driving or related offence. From the early twentieth century to the beginning of the twenty-first century there has been an unrelenting flow of cases related to charges based on allegations of consuming intoxicating liquor and driving a motor vehicle. These cases are vigorously fought due to the impact on a defendant’s driver’s licence. Loss of licence often means loss of job. Defences to drink-driving offences come and go. The judiciary or the legislature may remove a defence yet new defences are devised through resourcefulness and innovation by legal practitioners.

INTRODUCTION

It is beyond serious argument that the most common type of summary offence to be appealed to any of the superior courts in Victoria over recent decades is the frequently laid charge of drink-driving or related offence. This is not new. Since the early twentieth century there has been an unrelenting flow of cases based upon allegations by police that a motorist has consumed intoxicating liquor and then driven a motor vehicle. This trend continues into the twenty-first century.

In fact many leading decisions of superior courts concerning the defining of elements of traffic offences generally have occurred only because certain motorists unsuccessfully defending drink-driving charges at the lower courts have appealed and kept appealing to the highest courts in the State.

The defences mounted over the decades to these sorts of charges have been numerous and varied. The term ‘defence’ is used loosely in this article. Some defences are of general application and tailored by defence counsel to the individual fact situation behind the drink-driving offence the subject of the charge. Some defences are simply arguments based upon statutory interpretation of penal legislation. Other defences may have been created by the legislature and are of specific application.

New so-called ‘defences’ to drink-driving or related offences may survive a series of Crown appeals, or eventually succeed at an appeal or subsequent appeal by the defendant. Such defences may then be legislated out. Alternatively the police change their procedures to counter future defences of a similar nature, or the prosecution may anticipate the use of such defences and conduct its case accordingly.

It is not within the scope of this article to summarise the main defences or to provide a detailed history of their evolution. There have literally been hundreds of Supreme Court cases in Victoria alone on litigation involving the drinking driver. This article will, however, mention briefly some important decisions of the Supreme Court in Victoria over recent decades and refer to a few of the major provisions of relevant legislation.

THE DRINKING DRIVER AND THE HIGH COURT

Although it is unusual for a defendant to be jailed for a simple drink-driving offence unless there are a number of similar prior convictions or more serious charges follow on (for example, culpable driving) this has not curbed the number of defendants seeking to vigorously contest these sorts of traffic offences. Over recent decades, it has been the mandatory penalties fettering the sentencing discretion of magistrates (where the original jurisdiction to hear these offences lies) which appears to be the reason these cases sometimes reach the highest courts in this State and occasionally even reaching the High Court, for example, Mills v Meeking (1990) 169 CLR 214; 91 ALR 16; 10 MVR 257; BC9002951 and Thompson v His Honour Judge Byrne (1999) 196 CLR 141; 161 ALR 632; 29 MVR 1; [1999] HCA 16.

In fact one of the leading cases at the High Court on the judicial discretion to exclude evidence on public policy grounds, Bunning v Cross (1978) 141 CLR 54 at 74-75, was a case involving similar drink-driving legislation in South Australia where the police officer did not administer a preliminary breath test as was required under the law prior to the requirement to undergo the breathalyser test. The High Court laid down, in effect, a balancing test as to relevant considerations to be taken into account in determining whether in the exercise of discretion a court should exclude evidence, in that case, the certificate of analysis produced by the breathalyser.

In short, the oft cited Bunning v Cross decision was nothing more than a simple drink-driving case.

A BRIEF HISTORY OF STATUTORY DRINK-DRIVING REGULATION

More often than not there is cast a mandatory obligation upon the magistrate to make an order cancelling a defendant’s licence to drive and disqualify that person from driving for a lengthy minimum period. Mandatory provisions slowly crept into the legislation. Currently the mandatory provisions are enshrined in ss 50(1A), 50(1B), 50(1C) and 50(1D) read in conjunction with the Sched 1 of the Road Safety Act 1986 (Vic) (“the Act”). Some amelioration is afforded by s 50(1AB) which restores some discretion, depending on the defendant’s blood alcohol reading, read with s 50AA concerning previous convictions. For many defendants the loss of a driver’s licence means the loss of a job or even a business. The Road Safety Act 1986 replaced the Motor Car Act 1958.

Over the last hundred years or so there has been a growing recognition by the legislature and the courts of the dangers to the motorist and other road users of the combination of alcohol and driving. There were early attempts to combat the problem such as offences under the Police Offences Act (Vic) created by the parliament in the early 1900’s of being in charge of a vehicle or carriage while drunk.

Parliament soon made more specific offences under the Motor Car Act 1915 (Vic) s 20(2) such as driving while under the influence of liquor which were not contingent upon proof of drunkenness : see the analysis of early statutory regulation of drink-driving in the 1918 decision of Curtis v Grose [1923] VR 276 which was discussed in Doyle v Harvey [1923] VR 271.

By the middle part of the twentieth century there were offences of driving under the influence of intoxicating liquor to such an extent as being incapable of properly controlling a motor vehicle such as still existing in s 49(1)(a) of the Act. By the latter part of the twentieth century there were driving whilst exceeding the prescribed concentration of alcohol offences appearing in ss 49(1)(b), 49(1)(f) and 49(1)(g) of the Act.

Now, into the twenty-first century, there is new legislation, that is, the Road Safety (Amendment) Act 2000 (Vic) No. 14/2000 enshrining in the Act new offences such as driving while drug impaired in s 49(1)(ba). The legislature, and the judiciary, have recognised that motor vehicles may become engines of destruction and represent a potential social evil when driven by persons under the influence of intoxicating liquor or a drug.

However, with the proliferation of mandatory sentencing provisions, insofar as orders against drivers licences is concerned, a defendant is left with little option, in most cases, but to either plead guilty and lose that driver’s licence for at least the minimum period, or contest the matter.

MAKING IT EASIER TO PROSECUTE

Not surprisingly, over the decades, the parliament progressively legislated to make it easier for the police to successfully prosecute these offences. For example, with use of conclusive proof provisions such as ss 55(4) and 58(2) of the Act relating to breathalyser certificates and averment provisions such as s 58(4) and (5) of the Act relating to proof that the breath test was conducted by an approved breath analysing instrument under s 3. Early problems in prosecution had been encountered when the Victoria Police began using the breathalyser technology in the early 1960’s.

The Supreme Court in Porter v Kolodzeij [1962] VR 75 held that the breathalyser did not fall within that class of “notorious scientific and technical instruments”, such as clocks and speedometers, whose accuracy is presumed at common law. Evidence of the blood alcohol concentration of a driver revealed by the breathalyser was not admissible. This became the driving force behind legislation to facilitate the admission of such evidence. Over the years such legislation has been fine-tuned to avoid a myriad of objections by the defence to admissibility of the certificate of analysis.

The “rise and fall” defence (relating to the volatile nature of blood alcohol absorption and elimination rates and the blood alcohol reading at the time of act of driving and allegations that the breathalyser may overestimate and underestimate blood alcohol concentration) was typified in cases such as Francis v Stevens [1983] 1 VR 260. It cannot be used now in relation to s 49(1)(f) offences unless it is to show that the breathalyser was not properly operated or was not in proper working order: see DPP v Phung [1993] 2 VR 337.

It has been observed that there are tactical and evidential advantages in the prosecution charging with s 49(1)(f) and (g) offences in preference to s 49(1)(b) because the defences to the former are far more circumscribed and limited than are defences to charges under the latter: see Mills v Meeking (1990) 169 CLR 214; 91 ALR 16; 10 MVR 257.

Another of the many examples of legislative facilitation of ease of prosecution is the many reverse onus provisions cast on the accused to prove a defence on the balance of probabilities. One example is s 48(1A) of the Act where the onus to prove post driving drinking which solely lead to the blood alcohol concentration is on the defendant who must give sworn evidence and which must be corroborated by the material evidence of another person.

Other examples of a reverse onus to prove a defence include ss 49(4) and 49(5) concerning whether the breathalyser gave an accurate result or was properly operated or in proper working order.

Yet defences kept being mounted on what may loosely be described as technical grounds and were often succeeding. The legislature devised new offences which were easier to prove, yet the defence still found ways to manouevre and avoid liability. Even more legislation and subordinate legislation was created to minimise the chances of a successful defence. The legislation and subordinate legislation is now labyrinthine. Defence counsel still devise methods to not infrequently successfully negotiate the charges.

DIFFERENT JUDGES, DIFFERENT APPROACHES

The magistracy and the judiciary, when interpreting sometimes ambiguous provisions of the relevant legislation, often grappled with competing principles of a strict interpretation of penal legislation in favour of an accused versus a purposive approach to interpreting the will of parliament. This is a theme permeating many decisions of the Supreme Court over the years.

Recent examples of drink-driving appeals where the defendant succeeded primarily or in part because of a favourable construction of ambiguous penal legislation (which contains a number of privative clauses and involves extensive presumptive fact in support of the prosecution) include the cautious approach by Smith J in DPP v Williams (1998) 104 A Crim R 65; 28 MVR 521 [1998] VSC 119. Justice Smith held that conducting a breathalyser test in the rear of a police vehicle was outside the contemplation of parliament in s 55(1).

Smith J’s comments in Williams met with approval in DPP v Greelish (2001) 32 MVR 271; [2000] VSC 364 (currently under appeal to the Court of Appeal) by Nathan J who also found that s 55(1) was privative in character and that the defence of a reason of substantial character applied not just to refuse breathalyser charges but also to refusal of other police requirements under s 55.

Some magistrates may have been too quick to accept what might be described as sometimes ‘strained’ defence arguments and to dismiss some of these charges in the 1970’s. A number of Supreme Court judges in the 1980’s were openly critical of this. By the late 1980’s and early to mid 1990’s a number of other justices of the Supreme Court had adopted a very strict approach in favour of an accused in the interpretation of certain provisions and, for want of a better term, ‘created’ new defences. For example, in Mansfield v Hrysikos [2000] VSC 474 (currently under appeal to Court of Appeal). Smith J allowed the defendant’s appeal on dual bases including that the implication of reasonableness applies to police requirements to remain for a breath test under s 55(1)

It may be right that a number of different individual justices of the Supreme Court have different views on this sort of legislation. This could account for a number of arguably inconsistent decisions. See, for example, the stark differences in approach to refusal offences in Scott v Dunstone [1963] VR 579 contrasted with Lisiecki v Grigg (1990) 10 MVR 336; and DPP v Greelish (2000) 32 MVR 271; [2000] VSC 364 contrasted with DPP v Ellison (1995) 21 MVR 444.

With some of the newer offences, for example s 49(1)(f) of the Act, disputes often arose as to just what was an element of the offence which the prosecution had to prove beyond a reasonable doubt.

By the late 1990’s and early part of the twenty-first century the Court of Appeal finally dealt with a number of so called new defences developed in the early to mid 1990’s. In effect, it destroyed a number of them and disapproved the acceptance by courts lower in the hierarchy of what might be characterised as overly technical defences. For example, the Court of Appeal in DPP v Foster & Bajram [1999] 2 VR 643; (1999) 104 A Crim R 427 held that it is not a necessary pre-condition to proof of a s 49(1)(f) offence that there be proved a ‘requirement to accompany’ and in doing so the Court of Appeal in Foster and Bajram reversed Hampel J’s decision in DPP v Foster and Bajram (unreported, Supreme Court, Victoria, 29 March 1999).

In the process the Court of Appeal in Foster either overruled or disapproved of a number of other Victorian cases creating certain drink-driving defences. Those cases were Dalzotto v Lowell (unreported, Ashley J, Supreme Court, Victoria, 18 December 1992), which was followed by Eames J in McCardy v McCormack (1994) 2 VR 517; and Hedigan J’s decision in DPP v Constantinou and Nicholson (1997) 98 A Crim R 558.

Through these cases, the Court of Appeal found, that a number of Supreme Court judges sitting alone had misconstrued the elements of the s 49(1)(f) charge. They had erroneously converted a facilitative power (for example, a requirement to accompany to a police station and remain for up to 3 hours or until the breathalyser test was conducted whichever was sooner) into an element of the offence which the prosecution had to prove beyond a reasonable doubt.

Notwithstanding the combined weight of powerful recent judgments of the Court of Appeal and the progressive fine tuning of the legislation and subordinate legislation (which is invariably given mutual support by the government and the opposition) defence counsel still make resourceful and innovative arguments in defence to the various drink-driving and related charges.

Occasionally these are being accepted by the Supreme Court.

INTERPLAY BETWEEN PROVISIONS

There is considerable interplay between certain provisions of the Act, far more so than commonly found in penal legislation. There are a great many pre-conditions or contingent events which must occur prior to the ultimate request for a breathalyser test or blood test which leads to the certificate, which is crucial evidence for the prosecution, being prepared . If any one or more of those necessary pre-conditions are impugned successfully by the defence then that should become the foundation for the submission that the judicial discretion to exclude the certificate should be invoked.

One of many examples of the critical interplay between sections of the Act is that between ss 53 (the power of police to require a preliminary breath test) and 55 (the power of police to require a motorist to accompany or furnish a breath sample into a breathalyser).

Cases holding that where there is no lawful compliance with s 53 because grounds for the requirement were missing there is no lawful compliance with s 55(1) include Peebles v Hotchin (Vic SC 1988) 8 MVR 147; Hazeldine v Grinter (Vic SC 1989) 9 MVR 419; Woods v Gamble (Vic SC 1991) 13 MVR 153. The certificate of analysis furnished by the breathalyser was excluded.

A SERIES OF APPEALS

Many defendants charged with these sorts of offences are first offenders and run successful businesses as trades persons or professionals or simply drive for a living. Many of those defendants are willing to pay a lot of money to fund expensive counsel’s fees and expert witness expenses to try to defeat these charges. This helps to explain the passage of a number of these cases from the Magistrates’ Court, by way of appeal under s 83 of the Magistrates’ Court Act 1989 to a de novo rehearing at the County Court, by way of originating motion from a County Court appeal seeking judicial review under O.56 of the Supreme Court Rules before a single judge of the Supreme Court, and even by further appeal under Order 64 from a Supreme Court judge to the Court of Appeal.

The County Court may even be omitted along the road to the Court of Appeal. A s 92 Magistrates’ Court Act appeal on a question of law lies straight to a single judge of the Supreme Court and defendants occasionally take that path. The prosecution can do so if it asserts that the magistrate erred as a matter of law. Every now and again a case is stated under s 446 of the Crimes Act 1958 by a County Court judge hearing an appeal from the Magistrates’ Court straight to the Court of Appeal, thereby omitting a single judge of the Supreme Court.

A recent example was Furze v Nixon (2001) 32 MVR 547; [2000] VSCA 149 (21 August 2000) where the Court of Appeal observed in relation to the drink-driving provisions in question that this was “very complicated legislation”.

It has even happened that there has been a referral by the Director of Public Prosecutions under s 450A Crimes Act 1958 to the Court of Appeal for its opinion on a successful appeal by a defendant to the County Court. A recent example of a DPP referral on a drink-driving appeal is DDP Reference No 2 of 2001 Callegher v Smokrovic (Court of Appeal, Victoria, 8 August 2001 ) [2001] VSCA 114.

On rare occasions special leave has been granted to appeal to the High Court of Australia such as Mills v Meeking and Thompson v His Honour Judge Byrne above. Sometimes several years have passed from the time of commission of the alleged drink-driving offence to the time the Court of Appeal or even the High Court has handed down its judgment .

However, it’s not just the motorist who is responsible for this unceasing source of appellate litigation. The Victoria Police or the Office of Public Prosecutions are a major source of appeals in this unique area of criminal practice. One wonders how many drink-driving charges could be resolved in several minutes by an early guilty plea at the Magistrates’ Court instead of a series of long contests and progressive appeals through virtually every court in the hierarchy if, instead of the proliferation of mandatory penalties, more discretion was given back to a sentencing magistrate.

LATEST LEGISLATIVE CHANGES

The Road Safety (Alcohol and Drugs Enforcement Measures) Act 23/2001 (Vic) became operational on 28 June 2001. Among many changes, is less discretion given to a sentencer as the Act amends s 50(1AB)(b) and prevents the sentencing court from exercising its discretion to make no order against the defendant’s licence for the minimum period once the defendant’s reading reaches .10% .

To this end the Road Safety (Alcohol and Drugs Enforcement Measures) Act 2001 Act removes the effect of Hampel J’s decision in Blanksby v Barnes (1997) 96 A Crim R 92 (Vic Sup Crt). The Road Safety (Alcohol and Drugs Enforcement Measures) Act 2001 also ensures that a motorist will more easily commit the offence of exceeding the prescribed concentration of alcohol with the threshold liability being reduced to .05%, instead of more than .05%.

Certain defences have been removed by the Road Safety (Alcohol and Drugs Enforcement Measures) Act 2001. For example, in Wright v Morton [1998] 3 VR 316; (1997) 95 A Crim R 125; 26 MVR 159 the Court of Appeal allowed a defence to a drink-driving charge under s 49(1)(b) because the blood sample was taken outside of 3 hours of driving and there was no expert pharmacological evidence to establish the probable reading at the time of driving. The Court of Appeal in that case and over-ruled the effect of three earlier decisions of single judges of the Supreme Court of Cheer [1979] VR 541 and Wright v Bastin (No 2) [1979] VR 329 and followed a New South Wales Court Appeal decision of Olejarnik (1994) 33 NSWLR 567; 72 A Crim R 542.

The Road Safety (Alcohol and Drugs Enforcement Measures) Act 2001 removes the 3 hour requirement under s 57 of the Act by deleting the words “within 3 hours”. Accordingly, the defence in Wright v Morton, insofar as it relates to blood samples under s 57, will no longer apply.

A CHANGE OF JUDICIAL APPROACH OR NEW DEFENCES?

Since special leave to appeal to the High Court was refused in December 1999 from the Court of Appeal decision in DPP v Foster and Bajram [1999] 2 VR 643; (1999) 29 MVR 365; 104 A Crim R 426 there may have been a change of approach by many magistrates and judges in receptiveness to legal arguments mounted by the defence to charges laid under s 49(1) of the Act. In short, it might have become a little harder to mount a successful defence to commonly laid drink-driving charges using traditional defences.

This is not so much because the Court of Appeal in Foster effectively destroyed several of the more frequently run defences developed in the 1990’s. Instead it may be more due to the comments made by the President of the Court of Appeal in Foster when he said at p 658 “Of course the investiture of increased police power has, as its necessary corollary, an increased incursion into civil liberties. However, whilst any invasion of personal liberty is bound to provoke disquiet, the courts can not afford to lose sight of the fact that the fact that the undisputed aim of Pt 5 of the Act is to combat and reduce a recognised social evil in a manner which can only be achieved by empowering the police, in the overriding community interest, to intrude upon personal liberties&helip;”. That part of the President’s judgment is often quoted by experienced prosecutors in reply to defence counsel submissions on law in contested drink-driving related cases.

The quite interesting aspect to that comment of the President in Foster is that in the very next few words of that passage there are arguably created new defences. That is, the words “&helip;albeit not in a necessarily hostile or coercive way.”. Previously in his judgment the President stated at p 658, in the context of discussing power invested in police to require persons to accompany them to a police station for a breath test, “If the power is abused, the officer will risk losing the evidence which the exercise of the power is designed to obtain.” Presumably the President was referring to the judicial discretion to exclude evidence which is illegally, unfairly or improperly obtained.

It may be open to reasonable legal argument that if police behave in a necessarily hostile or a coercive manner when using their powers under Pt 5 of the Road Safety Act 1986 generally, which includes police power under s 55 to require motorists to accompany and provide a breath samples etc., then that may be outside the contemplation of the legislature. The discretion may then arise to exclude the evidence unfairly, illegally or improperly obtained, such as the all important certificate of analysis. The words ‘hostile’ and ‘coercive’ are, it is submitted, open to a variety of interpretations. There are also a great variety of ways, open to the reasonable imagination, as to how police officers may abuse their power. As at the date of this article there is no decided case from the Supreme Court, or Court of Appeal on these arguable ‘new’ defences.

CURRENT TRENDS

If any trend can be observed presently, it seems that the Supreme Court and the Court of Appeal are disapproving of overly technical defences to drink-driving and related charges, for example, in Venezia v Marshall [2001] VSC 87 (Vic Sup Crt 2 April 2001). Gillard J stated that nothing in the Act precluded admission of the certificate when it had been changed by the operator or when it had been in error. It answered the description of “a document purporting to be a certificate containing the prescribed particulars produced by a breath analysing instrument” under s 55(4). To exclude it because an addition corrected a mistake regarding a minor matter made it inadmissible would defeat the purpose of the legislation. The appellant did not give a s 58(2) notice under the Act so once admitted the certificate was conclusive proof of facts in it including the date of birth. The appellant gave evidence and there was no doubt about identity. The motorist’s further appeal to the Court of Appeal was dismissed in Venezia v Marshall [2001] VSCA 160 in circumstances where the Court of Appeal described this point as “hopeless”.

Where a number of the defences are succeeding is in the arena of unreasonable requirements by the police to undergo tests or accompany for that purpose, giving rise to the judicial discretion to exclude evidence. An implied requirement of reasonableness is being read by the Supreme Court into many requirements that the police are empowered to make under s 55 of the Act. Accordingly, if the police are found to have acted unreasonably in making any requirement under s 55 including a requirement to accompany or a requirement to furnish a breath or blood sample, then it is outside the contemplation of s 55 and breaches its provisions.

Previous examples of Superior Courts implying reasonableness into drink-driving provisions include, DPP v Webb [1993] 1 VR 403 (1992) 16 MVR 367 where Ormiston J held the only requirement which needs to be read into s 53 of the Act (the power of police to require a motorist to undergo a preliminary breath test) is one of reasonableness. If the requirement to undergo a preliminary breath test is unreasonable then it is no offence to refuse it.

In Campbell v Sanders (1996) 86 A Crim R 378; Teague J held that the requirement of reasonableness should be read into requests for blood under s 55(9A) and approved of Ormiston J’s comments in Webb. More recently, in Mansfield v Hrysikos [2000] VSC 474 (now under appeal to the Court of Appeal) Smith J appears to apply Ormiston J’s observations in Webb, concerning the implication of reasonableness in s 53, to the requirement to “remain” in s 55(1). He allowed an appeal against a conviction for refusing to remain for a breath test on dual bases. These were:

1. that a requirement to “remain” under s 55(1) must be reasonable (the police requirement was found by His Honour to be unreasonable in the circumstances); and
2. that the driver did in fact remain at the “other place” under s 55(1) when she went outside a breath testing caravan to smoke a cigarette against wishes of the police.

Another current approach is mounting a defence from side-on, that is, instead of looking at the legislation and procedural requirements concerning the offence itself, the defence may be succeeding in impugning the charge and procedural requirements of other legislation, eg., ss 26 and 27 Magistrates Court Act 1989, or the common law concerning the requirements of charge sheets. In certain situations the defence has argued that owing to a defect in the wording of an information the drink-driving or traffic related charge should fail.

Alwer v McLean (2000) 32 MVR 125 (Vic Sup Crt) (speeding offence — the motorist won the appeal); Cooper-Baker v His Honour Judge Ross (2000) 114 A Crim R 40 (Vic Sup Crt)(refuse offence — the motorist lost the appeal); Bell v Dawson (2000) 31 MVR 111 (Vic Sup Crt)(refuse offence — the motorist lost the appeal) (subsequently appealed to the Court of Appeal) ; DPP v Collicoat (2000) 32 MVR 113 (Vic Sup Crt) (refuse offence — the motorist lost the appeal)(subsequently appealed to the Court of Appeal); and Callegher v Smokrovic (unreported, County Court Appeal Melbourne No 014239 21 May 2001) (exceed prescribed alcohol concentration offence — motorist won the appeal) (subsequently referred to the Court of Appeal) are just five such cases.

Each case dealt with the common law on the required contents of charges, and also with s 27(1) of the Magistrates’ Court Act 1989 (Vic) which provides that a charge must describe the offence which the defendant is alleged to have committed and a description in the words of the Act creating it, or in similar words, is sufficient. The charge is invalid if it does not comply with the mandatory obligation cast in s 27(1) and would not disclose an offence known to law.

This, ordinarily, would not create major problems for the prosecution as it may apply to amend the charge under s 50(1) of the Magistrates’ Court Act. The prosecution would, however, be defeated if the statute of limitations had expired and it was effectively seeking to lay a fresh information outside the limitation period. For example, Kerr v Hannon (1992) 1 VR 43 is another leading case on the wording of charges, which dealt with a drink-driving offence. The Court of Appeal in Gigante v Hickson 33 MVR 51; [2001] VSCA 4 held it was inutile to answer a question stated by a County Court judge but disapproved only of Kerr v Hannon in that place was an element of the exceed prescribed concentration of alcohol offence.

This type of approach employed to defeat drink-driving offences came to a head in Victoria on 8 August 2001 with DPP Reference No 2 of 2001; Collicoat v DPP and Bell v Dawson [2001] VSCA 114 where the Court of Appeal dealt with the wording of charges under s 49(1)(f) “exceeding prescribed concentration of alcohol within 3 hours”, and s 49(1)(e) “refuse to accompany” respectively.

In DPP Reference No 2 of 2001 the Court of Appeal heard that a County Court Appeal Judge had allowed an appeal against conviction on a s 49(1)(f) charge after accepting defence submissions that the charge was fundamentally flawed as there was no allegation in the charge of what was asserted to be an element, that is, being required to undergo a preliminary breath test. The judge rejected a prosecution application to amend the charge because the statute of limitations had expired and s 50(1) of the Magistrates Court Act did not permit the amending of a charge which was a nullity.

The DPP referred the acquittal for the Court of Appeal’s opinions on certain questions under s 450A Crimes Act 1958. The Court of Appeal observed, amongst other things, that although a requirement to undergo a preliminary breath test under s 53 is an essential pre-condition to proof of the s 49(1)(f) offence, it is not an element which requires individual particularisation in the charge and it was not a nullity nor defective if that allegation was not so included.

In Collicoat, the appeal from a single judge of the Supreme Court by the motorist was dismissed. The Court of Appeal held that notwithstanding there was no allegation in the s 49(1)(e) refuse to accompany charge of “being the driver of a motor vehicle”, that was not an essential ingredient for the purposes of identifying the offence in the charge and it was not defective or a nullity.

In Bell, the appeal from a single judge of the Supreme Court by the motorist was also dismissed. The Court of Appeal held that notwithstanding there was no allegation in that s 49(1)(e) refuse to accompany charge of which sub-section of s 53(1) had been the basis of the requirement to take the preliminary breath test, it was not an essential ingredient of the charge required to be specified in it and was not defective. In relation to the argument that there was no allegation in the charge of a requirement to accompany that was held to be an essential ingredient which was required to be included in the charge. However, the use of the verb “refuse” in the charge conveyed sufficiently to the defendant that his alleged refusal must have followed some requirement to accompany. That charge, accordingly, was not defective nor a nullity.

A huge body of cases on the amending of charges, and drink-driving cases generally, were considered by the Court of Appeal.

One key question, however, which was not decided by the Court of Appeal in the above and, accordingly, remains open is as follows. That is, whether the s 50(1) power can be exercised in circumstances where an essential ingredient of an offence has been omitted from the charge, and no offence was, accordingly, disclosed in the summons where more than 12 months has elapsed since the date of the offence. It indicated, however, that any examination of this important issue would be commenced by reference to what was said by Dixon J in Broome v Chenoweth (1946) 73 CLR 583 especially at 601 where his Honour said, amongst other things that “Whether an information disclosing no offence can be amended has been the subject of some difference of judicial opinion&helip;Probably it is necessary to deal with the question as a matter of degree and not by a firmly logical distinction&helip;”.

Cases such as the Alwer and Callegher above reveal the increasing trend for defence counsel to mount a threshold argument to defeat traffic charges by closely looking at requirements of procedural legislation, such as the Magistrates Court Act and the common law relating to contents of charges in general such as Johnson v Miller (1937) 59 CLR 467, in addition to examining the requirements of the legislation creating the offence.

CONCLUSION

As long as there is mandatory sentencing of the drink-driver in relation to drivers’ licences there will continue to be large numbers of vigorously fought contests at the lower courts and not an inconsequential number of appeals to the superior courts of this State. No matter just how difficult the legislature and certain decisions of the Court of Appeal try to make mounting a successful defence to these charges in Victoria; no matter how vigorously the Crown pursues the matters through the courts and the appellate hierarchy; certain defendants just will not give in.

In parliamentary speeches one can find examples of magistrates or judges and defence counsel being named and criticised or even insulted by politicians for applying the existing law resulting in a drink-driving charge being dismissed, for example, the Second reading speeches of the Victorian Legislative Assembly of 9 June 1992 and Victorian Legislative Council of 26 May 1992 regarding the Road Safety (Licence Cancellation) Bill.

Very recently one particularly constituted Court of Appeal in Victoria in the case of Sher v DPP [2001] VSCA110 (2 August 2001) described one type of so-called new drink-driving ‘technical argument’ (which succeeded before a magistrate) as “&helip;the latest product to come before the Court of the thriving minor industry, in which some lawyers seem to find full-time employment, of keeping the streets safe for those who drive when they have had too much to drink. Much time and ingenuity are devoted to this&helip;.But the hydra of technicality is a many-headed beast, and as one unattractive point is cut off another rears up in its place”.

Counsel may be briefed to mount a defence to a drink-driving or related charge. They have to obtain a dismissal because there is invariably a mandatory loss of licence, no matter what the mitigatory material is, with sometimes catastrophic consequences for the client. They will keep using viable existing defences which remain untouched by the superior courts, or devise new approaches calculated to lead to a dismissal of the charge. They may well then be met with a David and Goliath battle as the Crown, with its enormous human and financial resources, mounts an appeal to the Supreme Court and beyond against the defendant who, almost without exception, must privately fund legal representation in response.

Without doubt the drinking-driver poses a very serious danger on the roads. The police should, and do, rigorously enforce the laws provided by the parliament to combat this problem. The Magistrates’ Court of Victoria must, obviously, follow the will of parliament in imposing the mandatory penalties set out in the legislation. A licence to drive a motor vehicle is often essential in many types of employment or self-employment. Furthermore, the lifestyles of many people revolve around the ability to be able to drive a motor vehicle. Because of mandatory penalties, many defendants to drink-driving charges will have no choice, if they wish to continue to drive, but to contest the charge and do so with great effort.

If any observer thinks they have heard the last of vigorously mounted defences to drink-driving type charges, they should think again. Drink-driving defences may rise and fall but, inexorably, they rise again.

WJ WALSH-BUCKLEY
21 September 2001

Conclusion

The above selection of some of Mr Walsh-Buckley’s published articles on defences to drink driving and refusal charges may have dated with time in some instances, however, it is to be noted that drink driving and refusal charges can, in many cases, and at certain times, be open to traditional, innovative, even adventurous defences which can withstand superior court challenges for those who may think a given defence is unsound.

Advice of experienced defence counsel, preferably specializing in the area, is needed to determine whether certain defences above mentioned are still viable.

Parliament may amend legislation to counter a defence in the future, or the police may change tactics and methods to reduce the chances of a given defence succeeding in future cases - that is the history of drink driving regulation in this State.

If the matter is urgent he may be contacted directly on (03)92258734 or emailed on w.walsh.buckley@vicbar.com.au. He confers at his Chambers at Room 12, Level 30, 200 Queen Street, Melbourne, Victoria (Aickin Chambers).