Ball v Chargelegue
[2016] VSC 294
•2 JUNE 2016
| 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 must be commenced within 60 days and the Court shall not extend the time except in special circumstances.
By an affidavit sworn 20 August 2015, the plaintiff’s solicitors deposed to the circumstances that caused the delay, which were principally that the transcript of evidence was not received until 28 July 2015 and a medical condition suffered by the plaintiff during the relevant period.
These facts have not been challenged and the application for an extension of time has not been disputed. Accordingly, I am satisfied there are special circumstances and will extend the time for filing of the originating motion to 22 August 2015.
The offence
Section 53(1) of the Act relevantly provides as follows:
A police officer may at any time require –
…
(c)any person who he or she believes on reasonable grounds has within the last 3 hours driven or been in charge of a motor vehicle when it was involved in an accident;
…
to undergo a preliminary breath test by a prescribed device.
Section 49(1) of the Act relevantly provides:
(1) A person is guilty of an offence if he or she—
…
(c)refuses to undergo a preliminary breath test in accordance with section 53 when required under that section to do so …
All elements of the offence were admitted except that the plaintiff had been required to undergo a preliminary breath test.
The circumstances of the offence
On 16 November 2012, the first defendant, being a constable of police, attended the plaintiff’s home with Constable Antemes where the following relevant conversation (‘the relevant communications’) took place:
(a) The police constables told the plaintiff that there had been a collision that occurred with the plaintiff’s vehicle and they were there to ascertain if he was the driver of that vehicle.[2] Constable Antemes then said: ‘Before continuing I must inform you that you do not have to say or do anything but anything you say or do may be given in evidence, do you understand that?’ The plaintiff responded: ‘Yeah okay’.[3] (‘the Caution’).
(b)Constable Antemes said: ‘Do you agree you were the driver of this car [indicating the car in the driveway] this afternoon around 4.50 pm’. The plaintiff answered: ‘Yeah’.[4] (‘the 2nd Communication’).
(c)Constable Antemes then said: ‘Now because you have been involved in the collision, we have power to ask you to undergo a preliminary breath test, do you understand that?’ The plaintiff replied: ‘Well there is no way I’m blowing into this, I had drink since I got home’.[5] (‘the 3rd Communication’).
(d)Constable Antemes then said: ‘Well my off-sider … will make a request for you to undergo a preliminary breath test so listen carefully?’[6] The first defendant then produced a preliminary breath test machine and said: ‘I believe on reasonable grounds you were the driver of a motor vehicle involved in an accident within the last 3 hours and I require you to undergo a preliminary breath test on this prescribed device to my satisfaction’. The plaintiff replied: ‘I’m not – there’s no way I’m doing it, I’ve had drink since I got home and it’s obviously going to show’.[7] (‘the 4th Communication’).
(e)The first defendant then said: ‘You have been required to undergo a preliminary breath test on the prescribed device, you have refused to undergo the test and you may be charged with this offence and if found guilty you may be fined or imprisoned for up to 18 months and you will lose your licence for a minimum of 2 years, do you understand that?’ The plaintiff replied: ‘Why do I have to do it, I’ve had drink since I got home’.[8] (‘the 5th Communication’).
(f)The first defendant then said: ‘Once again because you have been involved in an accident we have the power to ask you to undergo a preliminary breath test, so for the last time are you sure you don’t want to undergo a preliminary breath test?’ The plaintiff replied: ‘Yes I don’t want to’. The first defendant responded ‘You therefore may be charged for refusal to undergo a preliminary breath test and you’ll be hearing from us soon.’[9] (‘the 6th Communication’).
[2]Transcript p.7 line 14.
[3]Transcript p.13 line 12.
[4]Transcript p.9 line 7.
[5]Transcript p.9 line 21.
[6]Transcript p.10 line 1.
[7]Transcript p.10 line 26.
[8]Transcript p.11 line 23.
[9]Transcript p.12 line 16.
The hearing in the County Court
At the hearing in the County Court, the plaintiff was not called to give evidence; but the plaintiff’s counsel submitted that the charge should be dismissed on the following grounds:
(a)The Caution that the plaintiff did not have to say or do anything prior to the purported later requirement to undergo a preliminary breath test meant that the evidence did not prove beyond reasonable doubt that the plaintiff was given reasonably sufficient information to know what was required of him and why.[10]
(b)The evidence of the requirement to undergo the breath test should be excluded under s 137 of the Evidence Act 2008 (Vic) (‘the Evidence Act’) which provides as follows:
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.
[10]Rankin v O’Brien [1986] VR 67, 73 (Southwell J) adopted by Sanzaro v County Court of Victoria (2004) 42 MVR 279, 284 [11] (Nettle J) (‘Sanzaro’).
Following submissions, his Honour Judge Montgomery gave the following ruling with respect to the application under s 137 of the Evidence Act:
On behalf of the appellant Mr Stevens submits that the evidence of the conversation in relation to the refused PBT should be excluded under s 137 of the Evidence Act. That section reads: ‘In a criminal proceeding the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.’
There is no submission that the evidence does not have great probative value in that it constitutes the prosecution case against the accused in that he refuses on the evidence to undergo a preliminary breath test. The submission rather is that such probative value is outweighed by the danger of unfair prejudice to the accused.
The onus lies on the defence. I refer to Mr Odgers' book at p.802, he says, ‘The court is required to balance the probative value of the evidence against “the danger of unfair prejudice to the accused”. … [T]here is no requirement like that in s 135 that this danger must “substantially” outweigh the probative value of the evidence. In addition the use of the word “must” mandates exclusion if probative value is outweighed by the specified danger and it also emphasises the importance of ensuring a fair trial for a defendant.’[11]
[11]The passage as quoted corrects the transcript to accord with the quoted text: Stephen Odgers, Uniform Evidence in Victoria (Thomson Reuters, 2nd ed, 2013) 802 [1.3.14740].
Mr Odgers goes on to quote a case of Blick (2000) NSWCCA 61 at paragraphs 19-20. ‘The correct approach is to perform the weighing process mandated. If the probative value of the evidence adduced by the prosecutor is outweighed by the danger of unfair prejudice to the defendant, there is no residual discretion. The evidence must be rejected. As to the meaning of danger and unfair prejudice, unfair prejudice does not mean evidence that makes it more likely that the appellant will be convicted.’[12]
[12]A reference to R v Blick (2000) 111 A Crim R 326, 333 [20] (Sheller JA with whom James and Dowd JJ agreed).
Again quoting from Odgers at p.810, quoting from the Law Reform Commission’s report on this. ‘By risk of unfair prejudice is meant the danger that the fact finder may use the evidence to make a decision on an improper, perhaps emotional, basis, ie on a basis logically unconnected with the issues in the case. Thus evidence that appeals to the fact-finder's sympathies, arouses a sense of horror, provokes an instinct to punish, or triggers other mainsprings of human action may cause the fact-finder to base his decision on something other than the established propositions in the case. Similarly, on hearing the evidence the fact-finder may be satisfied with a low degree of probability than would otherwise be required.’[13]
[13]The passage as quoted corrects the transcript to accord with the quoted text: Stephen Odgers, Uniform Evidence in Victoria (Thomson Reuters, 2nd ed, 2013) 810 [1.3.14780].
The author quotes a case of Yates on the same page (2002) NSWCCA at paragraph 252, ‘Prejudice argues for the exclusion only if there is a real danger of it being unfair. … This may arise in a variety of ways, a typical example being where it may lead a jury to adopt an illegitimate form of reasoning, or to give the evidence undue weight.’[14]
[14]A reference to R v Yates [2002] NSWCCA 520, [252] (Wood CJ at CL, Hulme and Buddin JJ). The passage as quoted corrects the transcript to accord with the quoted text: Stephen Odgers, Uniform Evidence in Victoria (Thomson Reuters, 2nd ed, 2013) 810 [1.3.14780].
As I understand the submission here, it is that I as the fact finder would give the evidence undue weight because of the admission made when it was taken in circumstances that produce little weight because of the conflict between the caution and the requirement to undergo a preliminary breath test.
Mr Stephens'[15] submission in effect is that the evidence has so little weight as I could place little reliance on it because of the conflict he submits between the initial caution and the subsequent requirement to undergo the preliminary breath test. He submitted that after the caution was given and then the requirement was asked, that produced a confusion or uncertainty in the appellant's mind in that he has been given two contrary propositions. That is, you are not required to say or do anything and then later on he is being told that he is required to undertake a preliminary breath test.
[15]Transcript spelling error corrected.
If one goes to the actual evidence. Constable Antemes gave after asking the person who answered the door his name, date and birth, which the appellant gave, he was then told by Constable Antemes, ‘Before continuing I must inform you that you do not have to say or do anything but anything you say or do may be given in evidence, do you understand that?’ Answer, ‘Yeah okay.’
He was told that they were there to discuss the involvement of the vehicle parked in his driveway in a collision that had occurred earlier in Hawthorn East. And it was explained to him that another driver had reported the same vehicle colliding with her vehicle while turning from Camberwell Road into Council Street.
A series of questions were then asked about where was he on that afternoon, was he driving, had he been drinking etc, and that is given in the evidence. He agreed that he was the driver of the car and answered questions that he had had two glasses of wine, white wine, about 16 per cent proof after he got home about an hour ago.
There is no evidence that the appellant in answering those questions did not understand the caution and acted to answer the questions in circumstances where if he had exercised his right to silence, the police clearly would have been in some difficulty proving he was the driver of the car, hence they could not have asked him to undertake the preliminary breath test.
If that had been the case that if he had said either, ‘No I wasn't the driver’ or ‘I don’t want to answer your questions, I exercise my right to silence’, that would have been the end of the matter. But because he did admit he was the driver of the vehicle that they had information was involved in this collision, the police proceeded to the second phase of the investigation by Constable Antemes saying, ‘Now because you have been involved in a collision we have the power to ask you to undergo a preliminary breath test, do you understand that?’
Now that is clearly telling the appellant that because of the admission he had made that he had been involved in the collision, the police now have a power to ask him to undergo a PBT. He is asked, ‘Do you understand that?’ Well he does not actually answer the question but implicit in it is that he does because he says, ‘There is no way I'm blowing into this, I've had drink since I got home.’
He is then told by Constable Antemes that a formal request will be made and told to listen carefully. He is then told by the informant, ‘I believe on reasonable grounds you were the driver of a motor vehicle involved in an accident within the last three hours. I now require you to undergo a preliminary breath test on this prescribed device to my satisfaction.’ He said he is not, ‘There is no way I'm doing it.’ He is then told, ‘Do you understand the consequences of refusing to undergo a preliminary breath test?’ Answer, ‘I don't want to.’
He is then told that he is being required to do such and the consequences of refusing to do it. He says, ‘Why do I have to do it, I've had drink since I got home, I don't drink and drive.’ He is then told, ‘Once again because you were involved in an accident’, that is it is being explained to him why he has to do it. And that is because as the informant says, ‘Because you were involved in an accident we have the power to ask you to undergo a PBT. So for the last time are you sure you don't want to undergo the PBT?’ ‘Yes I don’t want to.’
There is no evidence before me that in any way the appellant was confused or did not understand the sequence of the questioning, that is questions about the scene of the collision and questions about whether he was the driver. And then the second phase of the questions, that because he had made that admission, the police now had the power to ask him to undergo a PBT and he is asked in the formal way as a requirement as I have set out in the evidence.
In those circumstances in my view I cannot actually see any unfair prejudice to the accused in that factual scenario as I have outlined it and in the submission made by his counsel. The probative value of the evidence obviously is very strong and in my view the appellant does not even get to first base by establishing that there is an unfair prejudice in the way it has been put by his counsel.
So for the reasons that I have just stated, I reject the submission the evidence under s 137 for those reasons.
His Honour then rejected the primary submission that the evidence did not establish that the plaintiff had been required to undergo a preliminary breath test and gave the following reasons:
The evidence is admissible and for the same reasons I do not accept that the submission that because as set out in paragraph 10 of the submission, the police deviated from the terms of the legislation by combining a caution and a requirement to do a PBT and failed to alert Mr Ball as to the compulsory nature of the proceeding. In my view that is exactly what they have done. After the conversation about the collision the police and Constable Antemes specifically says, ‘Now because you've been involved in a collision we have the power to ask you to undergo a preliminary breath test.’ It is clearly explained in my view to the appellant that because he had made those admissions, that then gave the police the power to move the investigation a stage further in the manner that has been set out in the evidence and it is done so as a requirement on two occasions. It is explained to him the consequences of refusing to undergo a PBT and he still decided not to. So I am satisfied beyond reasonable doubt that a lawful request was made of the appellant to undergo a preliminary breath test.
It was the common submission of the parties that, for the purposes of determining the adequacy of the communication of the requirement to undergo a preliminary breath test, the Court was entitled to take into account not only the ruling of the County Court, but also the transcript of the evidence of the relevant communications. Although evidence and exhibits before a lower court are not ordinarily considered to be part of the record of the court on an application such as this, the evidence and the exhibits may form part of the record pursuant to s 10 of the Administrative Law Act 1978 (Vic) if:
(a)the material is specifically incorporated by reference in the reasons for decision; or
(b)reference to the material is necessary in order to understand the reasons for decision given by the lower court.[16]
[16]O’Connor v County Court (2014) 67 MVR 66, 74 (Kaye J).
The plaintiff’s submissions
The plaintiff’s amended originating motion identified eight grounds on which it was contended the County Court had erred at law. However, in the submission before the Court, counsel for the plaintiff pressed the application on the ground that, from the relevant communications, it could not be concluded beyond reasonable doubt that the plaintiff was ‘given reasonably sufficient information in a request to know what [was] required of him and why’.[17] Counsel for the plaintiff contended that if the Court accepted that proposition, the plaintiff must succeed in this application; but he conceded (in my opinion, rightly) that if the relevant communications did give sufficient information then the plaintiff’s application could not succeed.
[17]Rankin v O’Brien [1986] VR 67, 73 (Southwell J) adopted by Sanzaro (2004) 42 MVR 279, 284 [11] (Nettle J).
In particular, the plaintiff’s counsel accepted that the application under s 137 of the Evidence Act could not advance the plaintiff’s case because, if the principal submission is not accepted, the evidence of the relevant communications could not be said to be unfairly prejudicial to the accused; and therefore the application under s 137 could not succeed. On the other hand, if the principal submission was accepted, reliance on s 137 was not necessary. Accordingly, I do not need to deal with this submission; but, in my opinion, a reading of the trial judge’s reasons for rejecting the submission under s 137 does not reveal any error.
The plaintiff’s principal submission was that the prosecution had not satisfied the relevant test because the constable had said to the plaintiff: ‘I must tell you that you are not required to say or do anything’; and nothing that was said after that statement had the effect of overriding the fact that the plaintiff was told that he was not required to do anything. In support of that proposition, counsel for the plaintiff submitted that the Court should have regard to the following:
(a)There was no obligation on the police officers to give a caution to the plaintiff because he was not under arrest.[18] The inconsistency in giving a caution and then requiring the person to do something was recognised in s 139(4) of the Evidence Act which provided, in substance, that the obligation to give a caution to a person under arrest did not apply ‘so far as any Australian law requires the person to answer questions put by, or do things required by, the investigating official’.
(b)The argument that the communications, after the Caution, superseded the Caution required an inference to be drawn from those words. Because of the express words of the Caution, it could not be inferred from the later communications that the requirement to undergo a preliminary breath test prevailed over the Caution. It was submitted that this would impermissibly allow an inference to be drawn contrary to direct evidence.[19]
(c)The responses of the plaintiff were consistent with him believing that he was still at liberty to refuse to do anything, in accordance with the Caution.
(d)The fact that in later communications the police constables say that they have ‘power to ask you to undergo a preliminary breath test’ reinforces the proposition that the true thrust of the relevant communications is a request, which can be refused, rather than a requirement.
(e)A comparison with other decided cases demonstrated that clearer requirements than the one given in this case had been found to be inadequate. In particular the plaintiff’s counsel referred to the decisions of Williams J in DPP v Skafidiotis[20] and DPP v Novakovic[21] and the decision of J Forrest J in Uren v Neale.[22]
(f)Section 49(1)(c) is a penal provision and therefore the Court must be wary of taking an approach, with respect to the requirement, that ‘near enough is good enough’.[23]
[18]It was common ground that, in fact, it was not necessary for the police officers to caution the plaintiff prior to asking him questions.
[19]Sanzaro (2004) 42 MVR 279, 285 [17].
[20](2013) 63 MVR 489.
[21](2012) 62 MVR 94.
[22](2009) 53 MVR 57 (‘Uren’).
[23]Rankin v O’Brien [1986] VR 67, 72 (Southwell J).
The plaintiff submitted that this was an error of law rather than fact and relied upon the decision of the High Court in Hope v Bathurst City Council.[24]
[24](1980) 144 CLR 1.
Accordingly, the plaintiff submitted that the relevant communications to the plaintiff had not been sufficient to clearly convey to him that he had an obligation to undertake a preliminary breath test.
Defendants’ submissions
On behalf of the first defendant it was submitted as follows:
(a)The finding of the County Court was a finding of fact and not law. The relevant finding in this case fell within the category of a finding of fact similar to Brutus v Cozens[25] as noted by Mason J in Hope v Bathurst City Council.[26] In similar circumstances in Sanzaro, Nettle J had held that the question of whether or not the words constituted a requirement for the purposes of the section was a question of fact.[27] Accordingly, it was incumbent upon the plaintiff to demonstrate that there was no evidence to support the finding.[28]
[25][1973] AC 854.
[26](1980) 144 CLR 1, 7.
[27](2004) 42 MVR 279, 284-285 [13].
[28]O’Connor v County Court (2014) 67 MVR 66, 76 [39] (Kaye J); approved on this point on appeal in O’Connor v Bradshaw (2015) 70 MVR 31, 39 [24], 43 [33] (Santamaria JA, with whom Kyrou and Ferguson JJA agreed).
(b)The references by the police constable to having the ‘power to ask [the plaintiff] to undergo a preliminary breath test’ accurately reflects the fact that the police do not have power to force a person to have such a test. The power of the police is to ask a person to have such a test; and the refusal to comply results in certain penalties. The evidence that the police ‘required’ the plaintiff to undergo a preliminary breath test was powerful and included two specific requests and the explanation as to the penal consequences of refusing the request. These requirements took place after the Caution.
(c)The test as stated by Nettle J in Sanzaro was:
In any event, whatever terms may or may not be used in any given case, it will be enough that the intent of the police officer and the obligation of the person required to comply have been made clear. [29]
The trial judge, in the course of argument, specifically acknowledged that he understood the test as submitted by counsel for the plaintiff, and applied it.
(d)The judge did not draw any inference but acted on the uncontested direct evidence of what was said by the police.
(e)The evidence does not disclose whether or not the plaintiff was confused and, in any event, such evidence would be irrelevant because it goes only to the subjective understanding of the plaintiff.
Was the determination of the County Court, that the relevant communications did not constitute the requirement, a finding of fact or law?
[29](2004) 42 MVR 279, 284-285 [11].
The issue between the parties in the County Court was whether the relevant communications constituted a requirement to undergo a preliminary breath test within the meaning of s 49(c) of the Act.
An issue before this Court was whether the County Court determination, that the relevant communications did constitute a valid requirement, was a finding of fact or law.
In my opinion, the proper approach to whether specified facts fall within an expression in a provision of an Act is as follows:
(a)The proper construction of the statutory description in a relevant provision is a matter of law.[30]
(b)If the words are used in some special sense; or, although used in their natural and ordinary sense, the context or other matters affect their meaning, the resolution of that issue is a question of law.[31] For example, the context of the term may indicate that it should be read as broadly as possible or alternatively as restrictively as possible to enable it to give effect to the statutory purpose.[32]
(c)If the words are clear as to their meaning but import some legal criterion (for example master and servant) the resolution of the criterion is a question of law.[33]
(d)If the Court determines that the words are used in their natural and ordinary sense, that decision completely resolves the question of law.[34]
(e)If, as a matter of statutory construction, the Court resolves that the word is used in its natural and ordinary meaning, the question of whether the particular circumstances fall within that statutory description is a question of fact.[35]
(f)The determination of the events consequent on the acceptance or rejection of evidence and the assessment of credibility are questions of fact (‘the primary facts’).[36]
(g)The application of the primary facts to the established meaning of the statute, which involves elements of value judgment and degree, are questions of fact (‘the secondary facts’). Accordingly, ‘if the question whether the claimant’s circumstances fall within the statutory definition is one on which minds can legitimately differ, involving a value judgment on the evidence (or other material), it is a matter [of fact] for the tribunal’.[37] Examples of such evaluative decisions include questions of causation, whether the claimant has suffered a total or partial incapacity for work; and whether a person’s behaviour was ‘insulting’.[38]
(i)Whether a finding of a fact, either primary or secondary, was not open, is a question of law.[39] A finding of a secondary fact can be attacked on the basis that it was not open to infer that fact from the primary facts.[40] However, ‘If there are primary facts upon which a secondary fact might be inferred, there is no error of law. It is not sufficient that this Court would have drawn a different inference from those facts. The question is, whether there were facts upon which the inference might be drawn’.[41]
[30]S v Crimes Compensation Tribunal (1998) 1 VR 83, 86 (Phillips JA, with whom Callaway JA and Hedigan AJA agreed).
[31]Ibid 88.
[32]Coleman v Power (2004) 220 CLR 1, 38-39 [59] (McHugh J).
[33]S v Crimes Compensation Tribunal (1998) 1 VR 83, 88 (Phillips JA).
[34]Ibid 88.
[35]Ibid 89.
[36]Ibid.
[37]Ibid.
[38]Brutus v Cozens [1973] AC 854, 861 (Lord Reid), 863 (Lord Morris of Borth-y-Gest), 865 (Viscount Dilhorne), 866 (Lord Kilbrandon and Lord Diplock agreeing).
[39]The words ‘not reasonably open’ is a distraction because the test is the same for primary and secondary facts: S v Crimes Compensation Tribunal (1998) 1 VR 83, 90-91.
[40]Ibid 91.
[41]Tracy Village Sports and Social Club v Walker (1992) 111 FLR 32, 37 (Mildren J) (emphasis in the original); adopted by Phillips JA in S v Crimes Compensation Tribunal (1998) 1 VR 83, 91.
The plaintiff relied upon the High Court decision in Hope v Bathurst City Council.[42] The appellant was the owner of land which he used for the agistment of cattle and horses for profit. He sought to be levied at the lower municipal rate applicable to rural land, which was defined by s 118 of the Local Government Act 1919 (NSW) as applying to, among other things, land being mainly used for carrying on of the business of grazing. Mason J[43] upheld the appeal on the basis that, on the evidence, there was ‘no other conclusion … reasonably open’ than that the appellant’s grazing activities amounted to a business.[44]
[42](1980) 144 CLR 1.
[43](with whom Gibbs CJ, Stephen J, Murphy J and Aitkin J agreed).
[44]Ibid 9.
The plaintiff relied upon the following comment of Mason J:
Many authorities can be found to sustain the proposition that the question whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law.[45]
[45]Ibid 7.
However, Mason J specifically distinguished cases where the words of the statute were to be accorded their common understanding and said that, in those cases, the question of whether the Acts fall within the words was a question of fact.[46]
[46]Ibid citing Brutus v Cozens [1973] AC 854.
In obiter, Mason J did discuss whether by incorporating a requirement of significance, in determining whether the appellant was carrying on a business, the trial judge ‘may have erred in arriving at the common understanding of the word “business”’.[47] He concluded:
However, if this was an error, it was associated with an omission to relate the word to the expression with which it was associated, this being an error in construction and accordingly of law.[48]
[47]Ibid 10.
[48]Ibid.
Accordingly, if, as in that case, there were a number of ordinary meanings[49] then the identification of the correct meaning, for the purpose of furthering the statutory intent or otherwise, may be a question of law. I do not consider that there is an issue of construction about the meaning of ‘required’ in this case.
[49]Ibid 8; Mason J identified the popular meaning as the 19th variant in the Shorter Oxford Dictionary.
In my opinion, the word ‘required’ when used in s 49(1)(c)[50] of the Act is used in its ordinary sense. Accordingly, whether the undisputed primary facts constituted a ‘requirement’ to undergo a preliminary breath test was a question of fact.
[50]Or the word ‘require’ in s 53(1) of the Act.
The question of law that then arises is whether the finding of the County Court that the plaintiff had been ‘required’ to undergo a preliminary breath test within the meaning of s 49(1)(c) was open on the basis of the undisputed primary facts.
I consider that my conclusion, that the trial judge’s determination was a question of fact, is supported by the following authorities:
(a)In Sanzaro, Nettle J considered an application for judicial review from the decision of the County Court that a police officer had made a valid requirement to furnish a sample of breath for analysis under s 55(1) of the Act. In similar circumstances, his Honour considered that ‘the question of whether what is spoken constitutes a requirement for the purposes of the section is necessarily a question of fact and degree’.[51]
(b)In O’Connor v County Court[52] Kaye J considered an application for judicial review from the decision of the County Court alleging that the prosecution had failed to establish that a breath analysing instrument met the definition in s 3(a) of the Act. His Honour found that the review was of a factual conclusion and it was therefore necessary for the plaintiff to demonstrate that the finding was not open. He said:
In order to establish that a finding of fact was not open to a lower court, it must be demonstrated that there was no evidence to support that finding. It is not sufficient that this Court would not have drawn the conclusion made by the lower court from the evidence before it. Nor is it sufficient that the conclusion of fact, by the lower court, was against the weight of the evidence, or was a conclusion which, in the circumstances, might seem surprising. Rather, as I stated, the critical question is whether the plaintiff has made out that there was no evidence before the lower court, for the conclusion of fact by that court.[53]
[51](2004) 42 MVR 279, 284-285 [13].
[52](2014) 67 MVR 66, 76.
[53]Ibid 76 [38]-[39], approved by the Court of Appeal in O’Connor v Bradshaw (2015) 70 MVR 31, 39 [24] (Santamaria JA, with whom Kyrou and Ferguson JJA agreed).
There are a number of considerations, about which there is no dispute, which must be taken into account in approaching the question of whether the decision of the County Court was open on the evidence:
(a)The statutory purpose of giving compulsory testing powers to police is to combat a recognised social evil.[54]
(b)Section 49(1)(c) is a penal provision and therefore the Court should not take a ‘near enough is good enough’ approach.[55] It requires a person to provide potentially incriminating material and must be strictly construed.[56]
(c)The requirement for a person to undergo a breath test does not require any particular form of words. The test is whether the evidence is such as to prove that the plaintiff was given reasonably sufficient information to know what was required of him and why.[57]
(d)The requirement to undergo a breath test need not be expressed in imperative terms: ‘A request in precatory or polite terms by a person clothed with apparent authority will ordinarily be sufficient’.[58]
[54]DPP v Foster [1999] 2 VR 643, 658-659 [53] (Winneke P, Ormiston and Batt JJA agreeing); DPP v Greelish (2002) 4 VR 220, 227 [39] (O’Bryan AJA).
[55]Rankin v O’Brien [1986] VR 67, 72 (Southwell J).
[56]DPP vGreelish (2002) 4 VR 220, 224 [17] (Buchanan JA, Phillips JA and O’Bryan AJA agreeing).
[57]Rankin v O’Brien [1986] VR 67, 73 (Southwell J); DPP v Foster [1999] 2 VR 643, 664 [75] (Ormiston JA); Sanzaro (2004) 42 MVR 279, 283-284 [11] (Nettle J); Uren (2009) 53 MVR 57, 80 [126] (J Forrest J).
[58]Sanzaro (2004) 42 MVR 279, 284 [11] (Nettle J); DPP v Foster [1999] 2 VR 643, 656-657 [47] (Winneke P, Batt JA agreeing), 662 [71] (Ormiston JA).
In determining whether the finding of the County Court that there was a valid requirement to undergo a preliminary breath test communicated by the police officers, it was common ground that the latter communications, if spoken without the preceding Caution, would have been sufficient to constitute a valid requirement under s 49(1)(c) of the Act. Accordingly, the question is: Whether the entirety of the relevant communications was so confused by the Caution that it was not open to the County Court to conclude that the requirement was clearly communicated?
In my opinion, looking at the entirety of the relevant communications, it was open to the County Court to conclude that the plaintiff was given sufficient information to know what was required of him and why. In particular, I note the following:
(a)The 3rd Communication made it plain that ‘because [the plaintiff had] been involved in a collision’, the police were asserting their power to ask the plaintiff to undergo a preliminary breath test. The admission that the plaintiff had driven the car was made after the Caution was given and, in my opinion, it would have been clear that the liberty communicated by the Caution no longer prevailed because of this change.
(b)The 4th Communication included the standard form requirement which expressly required the plaintiff to undergo a preliminary breath test.
(c)The 5th and 6th Communications included clear statements that the refusal to undergo the breath test would result in legal consequences. In my opinion, it left no room for doubt that the plaintiff was no longer at liberty to refuse to act without legal consequences. In fact, the appellant acknowledged that he was being required to take the preliminary breath test because he said, as part of the 5th Communication, ‘Why do I have to do it’.[59] It was then again, as part of the 6th Communication, explained to him that the police had the power because he had been involved in an accident.
(d)It was not submitted, and in my opinion could not be contended, that the power of the police to require a person, who has been involved in an accident, to undertake a breath test is a power that is little known in the community and therefore was likely to cause confusion.
[59]Emphasis added.
Accordingly, the conclusion of the County Court that the police had validly required the plaintiff to undergo a preliminary breath test was plainly open on the undisputed evidence. In fact, if it was appropriate for me to do so, I would have come to the same conclusion.
Accordingly, I propose to dismiss the application with costs.
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