Bolden v Director of Public Prosecutions
[2024] VCC 1668
•18 October 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. AP-24-0549
| DIRECTOR OF PUBLIC PROSECUTIONS |
| Respondent |
| V |
| CHRISTOPHER BOLDEN Appellant |
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JUDGE: | His Honour Judge Moglia | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 September 2024, 1 October 2024, 4 October 2024 | |
DATE OF RULING: | 18 October 2024 | |
CASE MAY BE CITED AS: | Bolden v DPP | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1668 | |
REASONS FOR DECISION
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Subject:Conviction Appeal – Impropriety – Exclusion of evidence
Catchwords: Road Safety Act 1986 – Not Guilty – Improper conduct – Unlawful conduct – Evidence Act, s138 – Police Conduct
Legislation Cited: Road Safety Act 1986, s49(1)(f), s49(1)(b), s55 – Evidence Act, s138
Cases Cited:Bell v Dawson [2000] VSC 169 – DPP v Foot [2010] VSCA 112 - Mastwyk v DPP [2010] VSCA 111 – DPP vFoster [1999] 2 VR 643.
Ruling: Orders of Magistrate set aside – Not Guilty – Application for costs granted
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APPEARANCES: | Counsel | Solicitors |
| For the Respondent | P. Pickering | OPP |
| For the Appellant | D. Hannan | Josh Smith Legal |
HIS HONOUR:
Introduction
1The Appellant, Christopher Bolden, was charged with offences contrary to s49(1)(f) (charge1) and, in the alternative, s 49(1)(b) of the RSA 1986 (the Act) (charge 2), relating to his driving on the evening of 21 April 2022.
2He pleaded not guilty in the Magistrates’ Court at Heidelberg on 1 May 2024, but was found guilty of Charge 1. The alternative was struck out.
3The Appellant appeals to this Court against this finding of guilt, by way of hearing de novo.
4There was no dispute that, at the alleged time and place, police conducted a roadside preliminary breath test on the Appellant, which indicated he had alcohol on his breath.
5The Appellant contends, however, firstly, due to improper or unlawful police conduct, the evidence of an Evidentiary Breath Test (EBT) should be excluded under s 138 of the Evidence Act 2008, and secondly, that the EBT equipment was not in proper working order such that the defence in s49(4) of the Act is made out.
Was police conduct prior to the EBT improper or unlawful?
6The prosecutor called evidence from officers Edmonds and Finlayson who dealt with the appellant roadside and took him to Heidelberg police station for the EBT. The roadside interaction was captured by body worn camera footage (Exhibit 1 and 2). The conduct of the EBT was similarly captured (Exhibit 4) and the three EBT test results were tendered (Exhibit 3). Sgt Waite also gave evidence of relevant procedures at the station.
7Based on the evidence adduced, I make the following findings of fact.
(a) Edmonds and Finlayson pulled the appellant over on a Road in Heidelberg at about 9.55 PM on 21 April 2022, parking their divisional van behind his vehicle in such a way as to prevent other traffic passing too close to the Appellant’s car.
(b) The Appellant got out of his vehicle to speak with police in a calm and cooperative manner but was directed by Finlayson to get back into his car, which he did.
(c) Edmonds and Finlayson stood alongside Bolden’s driver-side window as Edmonds administered a preliminary breath test on him.
(d) Based on the results of the PBT, Edmonds informed Bolden she required him to accompany police for the purposes of an EBT, to which he agreed.
(e) Police did not inform Mr Bolden that he had a choice to refuse or any liability for other events that might thereby arise.
(f) There was no discussion with the Appellant about the manner in which he would be required to accompany police.
(g) Edmonds or Finlayson directed Mr Bolden to exit his vehicle and stand on the footpath away from the car, which he did.
(h) Edmonds required the cavcar keys of Bolden, with which he complied.
(i) While waiting on the footpath Mr Bolden asked police for permission to approach his car to speak with his teenage child in the back seat and to use his telephone to call his wife to pick them up, both of which requests were granted.
(j) Upon the arrival of his wife, there was no discussion of any substance between police and Mr Bolden’s wife as she collected the children and drove them away.
(k) As the Appellant’s wife was arriving, police were in the process of requiring Mr Bolden to empty his pockets and, at that time, took his property from him, including his phone.
(l) As that was occurring, the following interchange occurred:
FIRST CONSTABLE EDMONDS: I'll just chuck my gloves on and
we'll just .......... .
MR BOLDEN: As in, I've gotta give these to you now?
FIRST CONSTABLE FINLAYSON: 'Cause you're coming into -
technically you're not under arrest, so we probably
won't even need to, but - - -
FIRST CONSTABLE EDMONDS: Just in the back of the pod.
FIRST CONSTABLE FINLAYSON: When - yeah, yeah. We just – our
policy is to - there's no property in there.
(m) As his family were departing, police then took Bolden to the rear of the Divisional van, making it clear that he would be getting into the ‘pod’ not the rear passenger seats, with Finlayson saying:
FIRST CONSTABLE FINLAYSON: There you go, mate. All right.
Just sit on your butt here and then just slide back.
I'm not gunna put handcuffs on 'cause you're good with
us.
(n) Police closed the pod door, locking it with padlocks.
(o) Inside the pod there were no seats or seat belts; the lights went off when the door was closed; while the pod is equipped with a camera, speaker and microphone, they were not activated and in any case Bolden was not informed of them or that he may communicate with police during the trip.
(p) Police made no enquiries about the availability of other means of getting the Appellant to the location of EBT equipment (such as a sedan), or of getting such a device to the roadside location (such as a Highway Patrol car or booze bus).
(q) Upon arriving at Heidelberg police station, the van did not park in the street, rather it entered the custodial part of the station via the secure sallyport, a process taking a further 5-10 minutes, without any further engagement or communication with Mr Bolden.
(r) After the van was secured inside the watch house and Mr Bolden released from the pod, Sgt Waite spoke with him in accordance with the need to record information in the police ‘attendance module’ used for ‘every person who comes into custody’.
(s) As a part of that discussion, Sgt Waite ‘explained that he was not under arrest and free to leave the police station anytime if he chose to, that we would inform him of consequences.’
(t) At 10.43pm, the first attempted EBT failed, with an error said to relate to the ability of the machine to provide a stable reading.
(u) At 10.53pm, the second attempted EBT failed for the same reason.
(v) At 11.19pm, the third attempted EBT provided results showing Mr Bolden had a BAC reading of 0.11.
8The appellant contended that in accordance with section 138 of the EA, the evidence of the EBTs and their results should be excluded from evidence on the following four grounds:
(a) The ‘requirement to accompany’ purportedly made by Police under s 55(1) was improper and/or invalid because Police intended to convey the Appellant to a police station, where the EBT could be administered, in a way that was ‘objectively unreasonable’;
(b) Police conduct amounted to an improper and/or unlawful arrest or detention of the Appellant when taking him to the police station;
(c) Police conduct amounted to breaches of the Appellant’s human rights; and
(d) The Police officer who administered the preliminary breath test was not the same officer who later administered the EBT.
9In response to the issues raised by the Appellant, the prosecutor contended as follows.
(a) The use of the divisional van was quite appropriate in the circumstances, including the lack of other police resources available at Heidelberg on the night and that it does not become improper because the nature of the transport was not orally conveyed to the appellant at the time of the demand. It is important to note that the appellant made no comment at any stage of the night about the use of the van being inappropriate.
(b) The appellant was never told he was under arrest and whether he was or was not is not simply a matter of his subjective perception. In any case, Sgt Waite told him in no uncertain terms that he was not and the time taken to convey the appellant to the police station was short.
(c) Any impact on the appellant’s enjoyment of his human rights should be considered under the umbrella of the first two grounds.
(d) The law in Victoria does not require the same officer to administer both the PBT and the subsequent EBT.
10The Appellant’s first ground seems to me to be directed to the intention of police at the time they made the requirement to accompany. I am not satisfied that, strictly speaking, the intention of police at that time is really to point. While I accept that in a refusal case, the mode of transport available and offered to a driver may be objectively unreasonable such that the driver’s refusal to accompany will not be an offence. The intention of the police involved in such a case may well reflect the circumstances of the proposed mode of accompaniment, but the enquiry is focused on the objective unreasonableness in the circumstances, not the subjective state of mind of the police.
11The third ground, relating to limitations placed on the appellant’s enjoyment of certain human rights, is not compelling on it’s own. Limitations on human rights do not of themselves make police conduct unlawful or improper. Parliament has clearly determined that there be limitations placed on a driver’s freedom when enacting the provisions that empower police to make a requirement to accompany. Other provisions of the Act and other acts provide appropriate protections.
12The factual matters raised by the appellant under this ground, namely the human rights ground, however, remain relevant when determining the question of improper or unlawful detention underground two.
13The fourth ground relates to a purported limitation on the powers of police to make a requirement to accompany and to administer an EBT. That is, it was submitted that those powers must be exercised by the same person. Such a limitation is not found in the words of the Act.
14The Appellant relied on the obiter comments in Bell v Dawson [2000] VSC 169, to this effect. I note that this issue was not a ground of appeal in that case and neither was it considered on appeal. As the prosecutor submitted, I do not regard it as reflecting the law and I do not accept the Appellant’s submission on this point.
15The second ground, however, gives rise to considerable concern.
16Police do not have a power to arrest or detain a driver on these charges. So much is reflected in the provision of a power to make a requirement to accompany, with different consequences to flow from a refusal. The authorities recognise that this provides a driver a choice to be made by them.
17The authorities, including Foot [2010] VSCA 112, also make clear that the use of a divisional van or pod to transport a driver to an EBT venue does not necessarily amount to improper or unlawful detention. What is important is a consideration of the objective reasonableness of doing so in the circumstances. The driver’s consent may also save what would otherwise be an improper arrest or detention.
18For reasons discussed in Mastwyk v DPP [2010] VSCA 111, I find the driver’s consent to a particular means of accompanying police to be an important matter. As was said in that and other cases, the legislation provides a driver with a choice between accompanying police and facing the offence of refusing to do so. It is not police who make the decision unilaterally, to take a driver in any fashion to any place, for example, based on their own reasonable suspicion that the driver has committed an offence.
19Here, police at the roadside told Mr Boldon nothing about any choice. Their conduct in directing him to stay in his vehicle or stand at a location on the side of the road are perhaps consistent with them exercising a police power of arrest, but would not on their own give rise to any concern with respect to consent or objective unreasonableness.
20The combination of all those circumstances, alongside the requiring of property and the ushering the Appellant into the locked pod with comments about handcuffs, in my view, however, when combined crosses the line.
21Having said that, I accept that where that line is will change from case to case and it is a highly fact-specific determination.
22I find that the use of the pod in the circumstances outlined above, without proper consent, amounted to a detention or pseudo arrest, which the powers granted to police under the Act does not permit.
23I find the conduct in this case, as set out above, to be improper, if not unlawful.
Was the EBT evidence obtained in consequence of any improper or unlawful conduct?
24The appellant submitted that in light of the regime introduced by s49 of the Act and related provisions, the EBT was conducted as a direct consequence of the conduct of police at the roadside and during the transport of Mr Bolden to the police station.
25The prosecutor did not submit otherwise.
26I accept that the evidence relating to the EBT and its results arose as a direct consequence of what occurred at the roadside and what followed.
27I am comforted in this view by the comments of Winneke J in Foster [1999] 2 VR 643 that any abuse of relevant police power in these circumstances runs the risk of the evidence being lost, that is, being excluded. .
Should the EBT evidence be excluded under section 138 of the Evidence Act 2008?
28The prosecutor submitted that the probative value of the EBT was clear and undiminished. The appellant submits that in light of the 1st 2 failed attempts to obtain results, calling into question as it does whether the device was in good working order, and the lack of any blood test results, at its highest the evidence is not of high probative value.
29I find the probative value of the EBT results to be moderate. Its value is undermined by the device being unable to provide results on the 1st 2 attempts when all directions of a trained operator were followed.
30The prosecutor submitted that the importance of this evidence cannot be overstated and that it was obtained in precisely the way the Act contemplated.
31The appellant submits that its importance is undermined by the lack of any blood test, that lack being brought about by police not informing the appellant of his right to request one, as provided by s49(10).
32I find the evidence to be of central importance in the case being careful not to confuse the question of importance to the case, and probative value .
33The nature of the offence in question is determined by the fact that it is a summary offence, carries a maximum penalty of a fine only for a first offence, which this is, and is not an offence for which police have been granted a power to arrest.
34While the nature of the offence does seek to combat a recognised social evil, as the prosecutor submitted, this must be kept in perspective in the context of the matters I have just set out.
35The gravity of the conduct incorporates a consideration of the conduct itself, that is what police did or did not do, the seriousness of the consequences of the conduct, whether those consequences are important, and the position of trust that police enjoy in the Community.
36The prosecutor submitted that the police in this case were solicitous, patient and far from neglectful of the appellant’s interests. The appellant submits, however, that the officers concerned failed to pay proper regard to the fact that the appellant was not under arrest. In particular, he relied on the confiscation of his property and the implied threat of being placed in handcuffs if he did not comply or ‘be good’. Overall, he submitted that police effectively treated the appellant in the same if not similar manner as they would have treated a person under arrest.
37The courts have expressed concern about the unintended effect of police conduct when procuring the compliance of citizens in situations such as this. The so called effect the uniform on law-abiding members of the public, cannot be ignored.
38I do not accept that the conduct of police on this occasion was deliberately improper or unlawful. That said, the taking of the appellant’s property and ushering him into the locked pod while making comments about him not ‘technically’ being under arrest and not placing the appellant in handcuffs because he was ‘good’ demonstrate a degree of awareness that those actions were the very kind of actions taken against a person who is under arrest. In that setting, if the conduct was not reckless, in my view, it comes close.
39When considering these last two factors, the Conduct itself of the police on this occasion, whilst in many respects perhaps aptly described as ‘omissions’, though not in all respects, gives rise to a real concern about their awareness of the effects of their conduct.
40The seriousness of the consequences of the conduct is moderately high. It effected the liberty of the subject, a person in relation to whom there was no power to arrest. Those consequences, in my view, are important in the community and the undermining of the observation of those rights and freedoms, in turn, undermines the trust that police enjoy in the Community and so those matters are of significance.
41Clearly, without consent, locking a person into a divisional van pod and removing their property from them involve limitations on their recognised freedoms to enjoy liberty and their property. Incursions upon these recognised rights are serious, as recognised in this context, by section 138.
42As Finlayson candidly conceded, there is no disciplinary action or similar that has been taken or is expected in relation to the conduct of the appellant’s attendance on this night. This tends to underscore the importance of there being a consequence in accordance with section 138.
43By saying so, I am not making any comment about whether or not the conduct of Edmonds and Finlayson, together or individually, are deserving of discipline or any other action personally. It may be that their conduct simply reflects common practice. If so, it is a common practice that creates a risk of evidence being excluded from a given case.
44Finally, I have had regard to the difficulty of obtaining the evidence of a driver’s blood alcohol content, in circumstances such as this, without the impropriety that I have identified. In my mind there are other options open to police, some of which were suggested in cross examination, namely transporting a person in the passenger seat of the four-door vehicle such as was used here, calling for another vehicle, requesting the attendance of a mobile EBT, or even just obtaining properly informed consent to the manner of transport and limitations on freedoms it would involve, such that a person could give consent or consider their options in refusing.
45Having considered all of those matters, in my opinion, the desirability of admitting the evidence of the EBT in this case is outweighed by the undesirability of admitting it, given the way it was obtained.
46On the second contention by defence, namely, was the breath analysing instrument in proper working order or properly operated, it was contended that the failure of the first two instances of testing means that its was not in proper working order.
47I accept that this defence may be made out on the prosecution evidence alone without the calling of an expert or an independent assessment of the equipment. However, in this case I am not convinced, on the evidence that I have heard, that there is enough to find that the equipment was not in proper working order or properly operated.
48Of course, I have made findings about the probative value of the results when considering the question under s 138. Given the rulings I have made, I find that the evidence of the EBT result is inadmissible in the case and as was discussed at the beginning of the hearing, if such a finding was to be made, both charges fall.
49I find Mr Bolden not guilty of the offences.
50I Order the Respondent to pay the costs of the Appellant in an amount to be agreed by the parties and in lieu of agreement as determined by the Court.
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