Ball v Chargelegue - [2016] VSC 294

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S CI 2015 04518

RONALD BALL	Plaintiff
v
FLORENT CHARGELEGUE	First Defendant
THE COUNTY COURT OF VICTORIA	Second Defendant

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JUDGE:	RIORDAN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 APRIL 2016
DATE OF JUDGMENT:	2 JUNE 2016
CASE MAY BE CITED AS:	BALL v CHARGELEGUE & ANOR
MEDIUM NEUTRAL CITATION:	[2016] VSC 294

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OFFENCES—Drink-driving—Breath analysis (Vic) — Whether a purported requirement to undertake preliminary breath test rendered ineffective by an earlier caution — Refusal to undertake preliminary breath test — Road Safety Act 1986 (Vic) ss 49(1)(e), 53(1).
ADMINISTRATIVE LAW — Judicial review — Application in nature of certiorari — Where plaintiff convicted before a magistrate —Where plaintiff appealed unsuccessfully to the County Court —Where judicial review sought of the decision made by the County Court —Whether the conclusion of the primary judge was a question of fact or law? — Whether the conclusions of the primary judge were open on the evidence? – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	K D Stephens	Zervos Lawyers
For the First Defendant	P J Doyle	Solicitor for Public Prosecutions

HIS HONOUR:

By an originating motion filed on 27 August 2015 and amended on 1 October 2015,[1] the plaintiff applies for an extension of time pursuant to Rule 56.02 of the Supreme Court (Civil Procedure) Rules 2015 (Vic) to commence this proceeding and an order in the nature of certiorari to quash the order made by the County Court of Victoria on 27 May 2015. The order was that the plaintiff be convicted of refusing a preliminary breath test under s 49(1)(e) of the Road Safety Act 1986 (Vic) (‘the Act’) and be fined $1,000; and that all his Victorian licences be cancelled and he be disqualified from obtaining any such licence for 2 years from 27 May 2015.
[1]Pursuant to orders made by Associate Justice Ierodiaconou on 16 September 2015.

Background

The relevant background facts are as follows:

(a)On 16 November 2012, the plaintiff was charged with refusing to undergo a breath test as required by s 53(1) of the Act. The circumstances of the charge are referred to below.
(b)At the hearing before the Magistrates’ Court at Ringwood on 6 January 2015, the plaintiff was found guilty, fined $2,000 and ordered to be disqualified from driving for 3 years.
(c)By notice of appeal dated 8 February 2015, the plaintiff appealed to the County Court. On 27 May 2015, the appeal was heard by the County Court. The charges were again found to be proven and the plaintiff was convicted of refusing a preliminary breath test. However, the fine was reduced to $1,000 and the order of disqualification was reduced to 2 years.

Application for leave to appeal out of time

The plaintiff filed the originating motion on 22 August 2015, being 86 days after the order of the County Court. Rule 56.02 provides that a proceeding under this rule…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ball v Chargelegue

Details

AGLC: Ball v Chargelegue [2016] VSC 294
Case: [2016] VSC 294
Decision Date: 2 JUNE 2016

CaseChat Overview and Summary

Ball v Chargeleugue involved a dispute over a drink-driving conviction under the Road Safety Act 1986 (Vic). The plaintiff, Ball, was convicted of driving with a prohibited level of alcohol after refusing to undertake a preliminary breath test. Ball challenged the conviction, arguing that the requirement to take the test was rendered ineffective by an earlier caution. The case was heard in the County Court and subsequently appealed to the Supreme Court of Victoria.

The legal issues in the case centred on the interpretation and application of sections 49(1)(e) and 53(1) of the Road Safety Act 1986 (Vic). Specifically, the court had to determine whether the requirement to undertake a preliminary breath test remained valid after an earlier caution, and whether Ball's refusal to take the test was lawful. The appeal also questioned whether the primary judge's conclusions were questions of fact or law and whether those conclusions were open on the evidence presented.

The court found that the primary judge's determination that the requirement to undertake the breath test was still valid was a question of fact, and the findings were open on the evidence. The court held that the caution did not render the requirement ineffective, and Ball's refusal to take the test was lawful. The appeal was dismissed, upholding the conviction and the decisions made by the County Court.

The final orders of the court were that the application for judicial review was dismissed, and the conviction of the plaintiff was upheld. The court did not find merit in the arguments presented by Ball and confirmed that the decisions made by the lower courts were correct and based on the evidence.

Orders