Blair v The County Court of Victoria & Anor

[2005] VSCA 237

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 8713 of 2004

IAN BLAIR

Appellant

v.

THE COUNTY COURT OF VICTORIA

and MICHAEL JOHN FREE

Respondents

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JUDGES:	ORMISTON and CHERNOV, JJ.A. and HARPER, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 September 2005
DATE OF JUDGMENT:	20 September 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 237	1st Revision 29 September 2005

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MOTOR VEHICLES – Criminal law – Road safety – Appeal from exercise by a judge of the Trial Division of the power of judicial review of decision of the County Court – Challenge to charge arising out of a preliminary breath test – Refusal by the applicant to comply with a request that he attend a police station for further test – Offence against Road Safety Act 1986, s.55(1) – Formulation of charge – Judgment of Mandie, J. [2005] VSC 313 affirmed – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P.J. Billings	C.D. Traill Lawyers
For the Second Respondent	Mr M.G. Perry	S. Carisbrooke, Acting Solicitor for Public Prosecutions

ORMISTON, J.A.: 

1  I will ask Harper, A.J.A. to deliver the judgment of the Court. 

HARPER, A.J.A. (for the Court consisting of Ormiston, J.A., Chernov, J.A. and Harper, A.J.A.): 

2  This is an appeal from a judgment of Mandie, J. delivered on 21 June 2005[1].  It has its origins in an incident that occurred on 9 November 1998 when the second respondent, then a Senior Constable of Police, intercepted a vehicle driven by the appellant.

[1][2005] VSC 213.

3  A preliminary breath test was conducted.  It indicated that the appellant's blood contained alcohol.  According to the relevant portion of the second respondent's evidence-in-chief in the County Court at Bendigo on 5 August 2004 the second respondent then required the appellant "to accompany me to the police station for the purposes of a breath test."  It was after that, again according to the second respondent's evidence-in-chief, that the appellant "ran off … down a driveway."

4 The requirement that the appellant attend at the police station was one which the second respondent was lawfully entitled to impose. At that time s.55(1) of the Road Safety Act 1986 provided, so far as is presently relevant, that if a person underwent a preliminary breath test which indicated that the person's blood contained alcohol, then:

"any member of the Police Force … may require the person to furnish a sample of breath for analysis by a breath analysing instrument and for that purpose may further require the person to accompany a member of the Police Force … to a police station."

5 Penalties for disobedience were (and are) set out in the Act. By s.49(1)(e) a person is guilty of an offence if he or she refuses to comply with a requirement made under, inter alia, s.55(1).

6  The appellant was charged with such an offence.  By summons issued on 30 December 1998 the second respondent alleged that the appellant:

"At Charlton on 9 November 1998, being the driver of a motor vehicle and after having been required to have a preliminary breath test, he was then further required to furnish a sample of breath for analysis by a breath analysing instrument pursuant to s.55(1) of the Road Safety Act 1986 and for that purpose a requirement was made for him to accompany a member of the Police Force to a police station, such requirement he did refuse to comply with."

7  The appellant was convicted on 5 August 2004 by the County Court sitting at Bendigo of this charge.  By originating motion he then sought judicial review of that conviction.

8 The matter came before Mandie, J. on 9 June 2005. The first and primary ground then relied upon was that there was a lack or excess of jurisdiction or an error of law on the face of the record in the evidence, in that the evidence did not support the element of the charge which alleged that "he was then further required to furnish a sample of breath for analysis by a breath analysing instrument pursuant to s.55(1) of the … Act."

9 It is true, as the second respondent conceded under cross-examination in the County Court, that he "did not make a requirement upon the appellant to furnish a sample of breath for analysis by a breath analysing instrument pursuant to s.55(1)." He simply required the appellant to accompany him to the police station for the purposes of a breath test. It is also true that the charge itself alleges that the appellant "was … further required to furnish a sample of breath for analysis by a breath analysing instrument pursuant to s.55(1) of the Road Safety Act 1986". But as Mandie, J. correctly observed:

"It was not a necessary part of the charge, nor was there any reason to think that it was understood, that the member of the Police Force should have required the [appellant] to furnish a sample of breath for analysis at the time of requiring the [appellant] to accompany him to a police station."

10 The evidence before the County Court, if accepted (as it was) by the County Court judge, clearly established that the appellant had undergone a preliminary breath test; that in the opinion of the second respondent, a police officer, the test indicated that the appellant's blood contained alcohol; and that the second respondent then required the appellant to accompany the second respondent to the police station for the purposes of a breath test. The evidence also clearly established that the appellant refused to comply with that requirement. Accordingly, the evidence demonstrated that all the elements of an offence under s.49(1) of the Road Safety Act had been established.

11  The charge on which the appellant was subsequently convicted referred unequivocally to the appellant's refusal to comply with the requirement that he accompany a member of the Police Force to a police station for the purpose of a breath test.  There was, therefore, a coincidence between the elements of the offence, the charge and the evidence.  In our opinion Mandie, J. was clearly correct to conclude that:

"Although the charge was inelegantly drafted, it was not so confusing or obscure that it did not amount to a charge of the offence with which it was intended to deal."

12  Moreover, we agree with the reasons His Honour gave for reaching that conclusion and for dismissing the proceeding.  All five grounds of appeal attack his Honour's finding.  In our opinion, none of them have any substance.  The appeal must, therefore, be dismissed.

ORMISTON, J.A.: 

13  That being the judgment of the Court, the order of the Court, therefore, is that the appeal be dismissed.

(Discussion ensued re costs.)

14  There will be a further order that the appellant pay the respondent's costs fixed in the sum of $1,925.

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