Carr v Downey (Ruling No. 1)
[2023] VCC 1273
•26 July 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. AP-19-2384
| BRADLEY CARR | Appellant |
| v | |
| SENIOR CONSTABLE JAMES DOWNEY | Respondent |
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JUDGE: | Kelly | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 July, 12 July, 13 July 2023 | |
DATE OF RULING: | 26 July 2023 | |
CASE MAY BE CITED AS: | Carr v Downey (Ruling No. 1) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1273 | |
RULING
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Subject:CRIMINAL LAW – EVIDENCE LAW
Catchwords: Appeal of Conviction - Admissibility – Expert Evidence – Unfairness Discretion – Permanent Stay of Proceedings.
Legislation Cited: Road Safety Act 1986; Motor Car Act 1958; Evidence Act 2008; Charter of Human Rights and Responsibilities Act 2006.
Cases Cited:Mills v Meeking (1990) 169 CLR 214; Thompson v Byrne (1999) 196 CLR 141; Beckworth v The Queen (1976) 135 CLR 569; Director of Public Prosecutions v Hore [2004] VSCA 192; Barker v R (1983) 153 CLR 338; Police v Dafov (2008) 102 SASR 8; Haddara v The Queen (2014) 43 VR 53; DPP v Foot [2010] VSCA 112; DPP v Mastwyk [2010] VSCA 111; DPP v Moore (2003) 6 VR 43; Bell v Dawson [2000] VSC 169; DPP v Loftus [2004] VSC 39; Emirhuissen v Radovanovic [2012] VSC 136; Barker v Bruce [1970] VR 884; Hubbard v Beck (1946) 64 WN (NSW) 20; Harding v Price [1948] 1 KB 695; Jiminez v The Queen (1992) 173 CLR 572; Kinsman v DPP (NSW) (1989) 9 MVR 347; Mullan v Berry [1964] SASR 8.
Ruling: S 48(1A) Road Safety Act Interpreted – Evidence of Dr Byron Collins inadmissible – Evidence of Results of Preliminary Breath Test Admissible – Application for Permanent Stay Refused – Charges found to be made out.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr W. Walsh-Buckley | ZD Legal |
| For the Respondent | Mr T. Fitzpatrick | Office of Public Prosecutions |
HIS HONOUR:
Introduction
1Bradley Carr (‘the Appellant’) has appealed the orders handed down in the Magistrates’ Court on the 28th of November 2019 convicting him of three charges against the Road Safety Act 1986 (Vic) (‘the RSA’), namely:
· Failure to provide name and address at the scene of an accident;[1]
· Failure to stop motor vehicle after an accident in which damage occurred;[2] and
· Exceeding the prescribed concentration of alcohol in his breath within three hours of driving a motor vehicle.[3]
[1] Contrary to s 61(1)(c) Road Safety Act 1986.
[2] Contrary to s 61(1)(a) Road Safety Act 1986.
[3] Contrary to s 49(1)(f) Road Safety Act 1986.
2In this appeal, the parties have sought Rulings on four evidentiary matters:
· The interpretation of sections 48 and 49 of the Road Safety Act 1986;
· An application by the Appellant to admit expert evidence of Dr Byron Collins;
· An application by the Appellant to exclude all evidence of the blood alcohol reading from being admitted in these proceedings on the ground of unfair prejudice; and
· An application by the Appellant for a permanent stay of proceedings on the basis of an abuse of process.
3The following ruling comprises my findings in relation to each of the abovementioned applications. In doing so I have also set out my reasons for my determination of the 3 charges the subject of this appeal.
Summary of Alleged Facts
4A brief summary of the events surrounding the alleged offending follows.
5On the night of the 26th of August 2017, police officers from the Werribee police station were called to two separate matters, a car collision involving a parked vehicle at Kelvin Grove, and a drunk driver at Eldan Drive.
6At 9:44 PM officers arrived at an address at Kelvin Grove and spoke with Mr Soliman, the owner of the damaged vehicle, a Toyota Corolla with registration ending 910. The officers were informed by Mr Soliman that he believed the person responsible for the accident lived down the street in Eldan Drive.
7Police then attended 10 Eldan Drive, and were met by Laura Mulcahy, who informed the officers that the Appellant had arrived at the property shortly beforehand and had been drinking. It is alleged that the Appellant had driven his vehicle home that night, and whilst driving had collided with Mr Soliman’s vehicle before continuing to Eldan Drive. This allegation forms the basis of charges 2 and 3.
8Constable Downey and First Constable Apps[4] met with the Appellant inside 10 Eldan Drive. The officers required the Appellant to undergo a preliminary breath test using a prescribed device, and on the basis of the results of the test then required the Appellant to accompany them to the Werribee Police Station for the purpose of conducting an evidentiary breath test. The Appellant was then placed in the back of a divisional van, and transported to thew Werribee police station.
[4] As they were at the time.
9At Werribee police station, Constable Elyce Lambrou conducted a breath analysis test using a prescribed device as an authorised breath analysing instrument operator. The results of the test indicated a breath alcohol concentration (‘BAC’) in excess of the prescribed limits. These results, in conjunction with the above alleged behaviour, forms the basis of charge 4.
Part A – Interpretation of s 48 Road Safety Act 1986: Defence Submissions
The defence under s 48
10In appealing his conviction for contravening s 49(1)(f), the Appellant sought to rely on s 48(1A) of the RSA which provides:
“For the purposes of an alleged offence against paragraph (f), (g) or (j) of section 49(1) it must be presumed that the concentration of alcohol indicated by an analysis to be present in the breath of the person charged or found by an analyst to be present in the sample of blood taken from the person charged (as the case requires) was not due solely to the consumption of alcohol after driving or being in charge of a motor vehicle unless the contrary is proved by the person charged on the balance of probabilities by sworn or affirmed evidence given by him or her which is corroborated by the material evidence of another person.”
Appellant Submissions
11It was submitted by Mr Walsh-Buckley on behalf of the Appellant in both written and oral submissions that s 48(1A) provides a defence to a charge under s 49(1)(f) insofar as it permits an accused to rebut the presumption by adducing evidence on the balance of probabilities that the results of the breath analysing instrument were not due “solely” to the consumption of alcohol prior to or during the driving of a motor vehicle.
12The Appellant submitted that the phrase “not due solely to the consumption of alcohol after driving” should be interpreted to mean that it is a defence to a charge under s 49(1)(f) to show that the inculpatory level of blood or breath alcohol was caused solely by the consumption of alcohol after the act of driving. He contends, moreover, that it permits an accused to demonstrate that if they only reached a level of intoxication beyond the legal limit after they had stopped driving, but within three hours of when they last drove, they will have a defence to the charge even where – as here – they have consumed alcohol prior to driving and their BAC at the time of testing is due to consumption both pre- and post-driving. When asked to point to any intermediate appellate or High Court authority for such a construction, Mr Walsh-Buckley could not take the court to any.
13It was submitted that as the Appellant was a full Motor Drivers Licence holder, he was not a driver required by s 52 of the RSA to have zero alcohol in his bloodstream when driving. According to this argument, s 48(1A) permits an accused to demonstrate that they had a legal blood alcohol concentration prior to, or during, the driving of a motor vehicle, (in this case, anything up to but not exceeding .05%) and only registered an impermissible concentration after they had ceased driving. If an accused can discharge this evidential burden, it was submitted that he will have a defence to the charge and should be acquitted. In support of this interpretation of the phrase “not due solely to the consumption of alcohol after driving”, Mr Walsh Buckley took me to the apparent legislative and judicial history of s 48(1A).
14It was submitted that the section was introduced following criticism by a number of Justices of the High Court in Mills v Meeking[5] that the language of s 49(1)(f) at the time criminalised motorists who had driven within the legal BAC limits and who then consumed alcohol after they had driven. The subsequent case of Thompson v Byrne[6] approved Mills v Meeking, and both decisions found that the s 49(1)(f) offence was not restricted solely to circumstances where an accident had occurred, and the motorist was apprehended in circumstances where they were not found driving or in charge of a motor vehicle.
[5] (1990) 169 CLR 214
[6] (1999) 196 CLR 141.
15It should be noted that s 49(1)(f) of the RSA, as framed at the time Mills v Meeking was considered[7], made it an offence to return a positive reading within 3 hours of driving notwithstanding that the alcohol producing the positive reading may have been consumed entirely after the driver had ceased driving. That section had been amended by the time Mills was decided. To the extent that the High Court was critical of that section’s operation, the section was redrafted to exculpate drivers who could demonstrate that the positive reading was attributable solely to consumption post-driving. Mr Walsh Buckley conceded that neither case considered the scenario we have here where a driver has consumed alcohol before driving, has caused a collision and has consumed more alcohol after returning home. When asked if he could find any support from Parliamentary debates, Hansard or second reading speeches for this construction of the redrafted s 49(1)(f), Mr Walsh-Buckley said he could not.
[7] Thompson v Byrne (1999) 196 CLR 141, 146 at [10].
16Instead, he highlighted the principle of statutory interpretation that provides that where penal legislation is ambiguous, or its interpretation doubtful, the legislation should be interpreted in a manner least injurious to an accused.[8]
[8] Citing Beckworth v The Queen (1976) 135 CLR 569, 576.
Respondent’s Submissions
17The Respondent submitted that the interpretation contended for by the Appellant involves a misconstruction of the interpretation provisions in s 48 and the offence provisions in s 49 of the RSA.
18It was submitted that s 48(1A) when applied to s 49(1)(f) does not require the Prosecution to prove what the BAC of an accused was when the accused actually drove, but rather only consider what the BAC of an accused was at the time of testing, provided he or she was tested within three hours of driving a motor vehicle.
19It is submitted that the legislative regime concerning the s 49(1)(f) offence is as follows:
· S 49(1)(f) prescribes the element of the offence;
· S 49(4) provides a defence to s 49(1)(f), namely that alcohol was only consumed after driving;
· S 48(1A) contains a rebuttable presumption that the BAC arose from consumption at least partially before driving; and
· S 49(6) concerns the admissibility of evidence in relation to both ss 49(1)(f) and 48(1A).
20The Respondent submitted that s 48(1A) applies to those circumstances where an accused can demonstrate that the existence of a BAC was solely due to alcohol consumption after driving had ceased.
21I was taken to the Second Reading Speech of the amending legislation which introduced s 48(1A), wherein the Minister for Transport stated:
“Evidence of drinking alcohol after an accident will be admissible in cases where the court is satisfied there was no blood alcohol present at the time of driving. However, the onus will be on the defendant to satisfy the court of this”.[9]
[9] Victoria, Parliamentary Debates, Legislative Assembly, 3 November 1988, 508 (Jim Kennan, Minister for Transport). See also Director of Public Prosecutions v Hore [2004] VSCA 192 at [36]-[37].
22In response to the Appellant’s submission as to the interpretation of penal statutes, the Respondent highlighted the dicta of Chief Justice Mason and Justice Toohey in relation to s 49(1) from Mills v Meeking that:[10]
“…if the language [of a statute] is not ambiguous or uncertain, a court will apply its ordinary and grammatical meaning unless to do so will give the statute an operation which obviously was not intended. This legislation is not relevantly ambiguous or uncertain.”
[10] Mills v Meeking (1990) 169 CLR 214, 223.
23The Respondent submits that, applying the ordinary grammatical meaning of the phrases “contrary” and “not due solely’’ in ss 48(1A) and 49(1)(f) respectively, the “contrary” in s 48(1A) refers to the opposite of “not due solely” in s 49(1)(f). Therefore, what s 48(1A) provides for is a defence where an accused can prove their BAC reading was solely caused by post-driving consumption of alcohol.
24To the extent that the Appellant submits it is a defence to prove an accused’s blood alcohol reading was under the legal limit prior to or at the time of driving a motor vehicle, the Respondent submitted that the legislation does not provide for this defence. It was submitted that s 48(1A) creates a rebuttable presumption that the amount of alcohol in an accused’s sample is attributable to the consumption of alcohol prior to or at the time of driving unless evidence is adduced demonstrating that the presence of alcohol in the sample of breath or blood is solely attributable to consumption post-driving.
Analysis
25A sample of Mr Carr’s breath was taken within three hours of his involvement in a collision with his neighbour’s parked car. He returned a reading of .157. There is no dispute that he had been drinking alcohol before getting behind the wheel. He then consumed more alcohol once he got home.
26There is no support for the interpretation of section 49(1)(f) of the RSA advanced by the Appellant in the extrinsic materials or in the sub-section itself or in other sections of the Act.
27It is plain from the extrinsic materials that Parliament intended to create a defence if, and only if, the alcohol in a sample of breath taken within three hours of driving was solely due to the consumption of alcohol after driving or being in control of a motor car. That comports with a plain reading of the section creating the offence. There is nothing in the authorities to which I was referred which gainsays that interpretation and no cases have been cited in argument which support the Appellant’s interpretation.
28Accordingly, I am satisfied that where a positive blood alcohol reading is returned by a prescribed instrument within 3 hours of driving and that reading is a result of consumption prior to driving together with consumption afterwards, the offence will have been made out, subject to the regularity of the instrument. The language of the section is not ambiguous or uncertain.
Part B – Admissibility of the evidence of Dr Byron Collins
The evidence of Dr Collins
29An issue arose at the start of the contest relating to the admissibility of Dr Byron Collins’ evidence. Dr Collins conducted a purported reconstruction of the Appellant’s alcohol consumption by administering to the Appellant the quantities which the Appellant says he consumed on 26 August 2017. Dr Collins then took samples of the Appellant’s blood alcohol content at various stages in an endeavour to calculate what the Appellant’s BAC reading would have been at the time of driving.
30From this reconstruction, Dr Collins opines that, at the time of driving the car the Appellant’s BAC would likely have been 0.047%. Inferentially therefore, the BAC reading obtained by officers Downey and Apps of 0.157% was due largely to the Appellant’s post driving consumption of alcohol. It is said that this conclusion enlivens the s 48(1A) defence to the charge under s 49(1)(f).
31In cross-examination, Dr Collins agreed that his reconstruction was predicated exclusively on an acceptance of what the Appellant told him about his consumption of alcohol pre- and post-driving. The appellant gave evidence and provided estimates to the court of how much he had consumed pre- and post-driving different from the estimates he gave to Dr Collins. I do not accept the Appellant’s account of his drinking given these discrepancies.
32Dr Collins conceded in cross-examination that the reading the Appellant returned was due to a combination of the alcohol he consumed both before and after driving. As a consequence, given my conclusion in relation to the construction of section 49(1)(f) of the RSA, taking Dr Collins’ evidence at its highest would not furnish the Appellant with a defence to the s 49(1)(f) charge. Moreover, as a consequence of my ruling in regards to s 49(1)(f), Dr Collins’ evidence is irrelevant to a determination of whether the section 49(1)(f) charge has been made out.
33The Respondent further submitted that the admissibility of the evidence of Dr Collins is limited by s 49(6), which restricts the admission of evidence as to the effect of the consumption of alcohol on the accused solely to rebut the s48(1A) presumption.
34The Respondent submitted that Dr Collins’ report, and therefore his evidence more broadly, is based on the self-serving account of the Appellant as to his pre-driving consumption of alcohol.
35It was therefore submitted that the evidence of Dr Byron Collins is inadmissible on three grounds:
· As the evidence of Dr Byron does not go to rebutting the s 48(1A) presumption, the evidence is inadmissible pursuant to s 49(6);
· The evidence ought to be excluded under the court’s general discretion on the basis that the evidence is likely to cause or result in an undue waste of time; or
· The evidence is inadmissible due to a lack of relevance, insofar as it is inadmissible for anything other than a moot purpose.
36To those grounds might be added a fourth: section 49(1)(f) does not concern itself with an accused’s blood alcohol concentration at the time of driving. It is not incumbent on the prosecution to demonstrate what BAC the accused had at the time of the collision with Mr Soliman’s car. Nor is it obliged to rebut evidence that an accused’s BAC at the time of driving was, or may have been, below .05%. It concerns itself with his BAC reading within 3 hours of his having driven. Dr Collins’ evidence does not address itself to that question. It is therefore irrelevant.
37In summary, I accept the Respondent’s arguments relating to the relevance of Dr Collins’ evidence. I have been taken to no authority which supports the Appellant’s construction of section 49(1)(f) of the RSA. Dr Collins’ evidence does not direct itself to a challenge to the evidentiary breath test reading obtained at Werribee police station. It is irrelevant.
Part C – Exclusion of Blood Alcohol Content Reading
38The Appellant seeks to have the BAC reading results obtained on the night of 26 August 2017 excluded as evidence, either under this court’s common law unfairness discretion or pursuant to s 137 or 138 of the Evidence Act 2008. A number of bases for the exclusion of this evidence were identified.
Was there a Trespass?
39First, it was argued that officers Downey and Apps remained in the Appellant’s home after he told them to leave and thus they became trespassers at that point. They were trespassers at the time they administered the preliminary breath test to Mr Carr and thus that test was the product of impropriety or illegality on the part of these two officers. Accordingly, so the argument runs, the subsequent test performed at the Werribee police station and the reading it generated ought to be excluded by operation of section 138 or 137 of the Evidence Act 2008.
Appellant Submissions
40The Appellant relied on the evidence he gave of telling both officers to leave when they approached him in the lounge room of his house. The officers gave evidence that they were invited in by Ms Mulcahy. Ms Mulcahy supported their accounts. When asked about this aspect of the Appellant’s account, Ms Mulcahy could not confirm it. Neither officer conceded that the Appellant had asked them to leave. There is therefore a conflict in the evidence that needs to be resolved.
41Section 53(1) (c) of the RSA permits a police officer at any time to require any person who he 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. The evidence led was that three “000” calls were made to police, two of which were made by Ms Mulcahy complaining that the Appellant had been driving whilst intoxicated and one by Mr Soliman complaining that his car had been damaged. Upon arrival at the Appellant’s house, the police officers identified damage to the Appellant’s car consistent with the damage to Mr Soliman’s. Photographs taken by the officers illustrating the damage to both cars were tendered. There was therefore a more than sufficient basis for a belief on reasonable grounds that Mr Carr had been in charge of a car in the preceding 3 hours which had been involved in an accident.
42As to trespass, it cannot be maintained that either officer entered Mr Carr’s home without any right or authority to enter.[11] Ms Mulcahy, who owned the house and who maintained it, expressly permitted them to enter.
[11] Barker v R (1983) 153 CLR 338
43The Appellant, in his written submissions, argued the case of Police v Dafov[12] is analogous. In that case, two police officers followed the defendant home and confronted him out the front of his house, demanding that he provide his name and address. He refused, resorted liberally to expletives and told the police to depart.
[12] (2008) 102 SASR 8.
44In contradistinction, Ms Mulcahy was the owner of the house and invited police in. Mr Carr says, effectively, that he withdrew their permission to remain when he told them to leave. Neither officer could recall being asked by the Appellant to leave and Ms Mulcahy did not hear the Appellant tell the officers to leave. Sergeant Apps in cross-examination said he could not recall being told to leave by the Appellant but did not seek to argue otherwise. Both officers gave evidence that the Appellant complied with the request to furnish a sample of breath and they remained in the house whilst that exercise was undertaken. Therefore, taking it at its highest, the Appellant may have initially told the officers to leave (something neither of them could recall him doing and something Ms Mulcahy did not witness) but when he was asked to submit to a PBT he did so whilst remaining on his couch. The officers were obliged to remain for as long as that testing took to complete, and it is not asserted that the Appellant remonstrated with them or renewed his demands to them to leave. Once the result of the testing was known, Mr Carr was asked to accompany the officers to the Werribee police station, and they left the house together.
45Mr Carr gave evidence that the officers stayed after he told them to leave and administered the Preliminary Breath Test (‘PBT’). I have no reason to doubt the accounts given by officers Downey and Apps whose evidence was materially supported by Ms Mulcahy. It was put to both officers in cross-examination that Ms Mulcahy had not invited them in, but her evidence was firm and unambiguous that she did.
46Accordingly, I am not satisfied that there was a trespass. I accept the evidence of Downey, Apps and Mulcahy that the officers were invited into the house by the owner/occupier.
47Even if that permission was withdrawn by the Appellant, the desirability of admitting the evidence of the subsequent PBT and resultant evidentiary breath test outweighs the undesirability of admitting evidence that has been obtained in the way in which this evidence has been obtained. I also take into account the fact that the probative value of the breath test administered at Werribee Station is high and the gravity of the impropriety or contravention is low given Ms Mulcahy’s invitation to enter the home together with the reasonable suspicion each officer held at the time they approached Mr Carr in his living room that he had recently been involved in a collision and had been driving after an episode of drinking. In assessing the gravity of the purported contravention, I also have regard to the fact that the Appellant remained on his couch when the request was made, obliging the officers to remain in the house to administer the PBT, thereby at least tacitly consenting to their presence in the house.
48Turning to section 137 now, the probative value of the test administered at the station is high and the only prejudice to the accused is the entirely conventional use of the reading to ground the charge against him. Accordingly, I refuse to exclude the evidence pursuant to section 137 of the Evidence Act 2008. I refuse to exclude the results of the evidentiary breath test on the basis of the Haddara[13] discretion for the same reasons.
[13] Haddara v The Queen (2014) 43 VR 53 (‘Haddara’).
Was the preliminary breath test unlawful?
49The Appellant gave evidence that he consumed 8 or more full-strength beers after driving his car. He told the court that he was drinking at the time the police requested he undergo a preliminary breath test. It was argued that the police should have waited 15 minutes from the time he last consumed alcohol before they administered a preliminary breath test to him. When pressed, Mr Walsh-Buckley conceded that there is no legislative requirement or regulatory requirement for police officers to wait 15 minutes before administering such a test. It was nonetheless contended that “best practice” and common sense dictated that they wait.
50Again, section 138 of the Evidence Act was invoked to exclude the test at the Werribee police station. In the absence of an identified impropriety or contravention, however, section 138 is not enlivened as a consequence of Senior Constable Downey’s failure to wait 15 minutes before administering the PBT. Even if failing to wait 15 minutes amounted to an impropriety, it is an impropriety of such modesty when set against the probative value of the evidentiary breath test that the desirability of admitting the evidence outstrips by some distance the undesirability of admitting evidence obtained in consequence of taking a PBT in such circumstances. That argument fails. Section 137 of the Evidence Act 2008 is not engaged.
Was the requirement to accompany unreasonable?
51The Appellant gave evidence that he suffered from claustrophobia and he did not want to be conveyed in the back of a police divisional van. Both officers were cross-examined extensively about the dimensions of the pod and the availability or non-availability of alternative means of conveying the Appellant.
52Sergeant Apps told the court that their attendance on Mr Carr took place on a busy Saturday evening, and he was monitoring the police radio through an ear piece and concluded that no alternative vehicles were available.
53The appellant’s evidence that he protested initially about being taken in the back of a van was supported by the two officers who candidly agreed that he was initially reluctant. Both officers gave evidence that he did not tell them that he suffered from claustrophobia. The officers told the court that the Appellant could communicate with them from the pod whilst they were conveying him to the Werribee police station and that the trip took 10-15 minutes. Their evidence was that after expressing reluctance initially, the Appellant agreed to get in the rear of the divisional van and he did not protest once inside and did not ask to be let out at any stage of the journey to the police station. They warned him that if he refused to accompany them to the Werribee police station for the purposes of taking a sample of his breath he may be charged with an offence. He was not under arrest.
54The Appellant argues that the requirement to accompany officers Downey and Apps in the pod of a divisional van was an unreasonable one amounting to an impropriety or illegality enlivening the discretion to exclude the evidentiary breath test reading.
55In support of this argument, Mr Walsh-Buckley relied on DPP v Foot.[14] This case can be distinguished from Foot to the extent that the Appellant made no request to be released once he climbed into the pod. I note that in Foot, the argument that an invalid requirement to accompany must lead to the s 49(1)(f) charge failing because a valid ‘requirement to accompany’ was a 'necessary precondition of proof’ of the offence was forcefully rejected by the court.[15]
[14] [2010] VSCA 112 at [6], [13] and [14] (‘Foot’).
[15] Ibid at [11]-[12].
56In DPP vMastwyk[16], the Court of Appeal held that the power conferred by section 55(1) of the RSA does not authorise the arrest or detention of a driver. The majority in that case determined that the mode of travel by which the driver is required to accompany the officer must be objectively reasonable.
[16] [2010] VSCA 111.
57Neither Foot nor Mastwyk is authority for the proposition that the use of a police divisional van to convey an individual to a police station for the purposes of an evidentiary breath test is unreasonable. In assessing that question, I am mindful of what Nettle J said at paragraph 51 of Mastwyk:
“Finally, a fair amount was made in the course of argument of the difficulty which police would face if they had to provide reasonable means of transport in all cases of requiring a driver to accompany them to a designated place for testing. In my view that is not persuasive. Practical difficulties of the kind to which reference were made are the product of executive budgetary decisions. Absent an express or otherwise clear statutory indication that they were regarded by Parliament as informing the scope of a power, they are irrelevant to the amplitude of the power.”
58The Appellant also took me to the case of DPP v Moore.[17] In that case the Court of Appeal upheld the ruling of a magistrate to dismiss charges brought under s 49(1)(b) of the RSA after finding that the accused had been advised against having a blood test to discern their BAC by a breath analysing instrument operator. The facts in that case can be readily distinguished. In that case, the Appellant was denied the opportunity afforded to him by legislation to elect to undergo a blood test, which may have yielded a BAC result different or lesser than the breath test that was administered to him.
[17] (2003) 6 VR 43 (‘Moore’).
59The Appellant also relies on breaches of the Charter of Human Rights & Responsibilities Act 2006,[18] namely sections 10, 21, 22 & 38. The Charter was not considered in either Mastwyk or Foot.
[18] ‘The Charter’.
60Section 38 imposes an obligation on public authorities to not act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right. Section 7(2) provides that a human right may be subject to reasonable limitations as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom taking into account all relevant factors.
61There is no sound basis for rejecting Sergeant Apps’ evidence that he concluded from monitoring the police radio that no alternative means of transporting the Appellant were then available to him. After initial reluctance, the Appellant let himself into the rear of the van. He was not under arrest. He did not protest once inside the van and he did not demand to be released. The mode of transport was one routinely used by police. The trip to the police station was a short one. In the absence of alternatives, it was objectively reasonable. There was no contravention or impropriety in the use of such means of transport and the discretion to exclude the evidence subsequently obtained pursuant to section 138 of the Evidence Act is not enlivened. Neither is section 137 engaged and I would refuse to exclude the evidence pursuant to the residual Haddara discretion.
62If I am wrong about that and the decision to convey Mr Carr to Werribee Station in order to conduct the evidentiary breath test amounts to a contravention of section 38 of the Charter or amounts to an impropriety because it is unreasonable in the sense discussed in Mastwyk, the desirability of admitting the evidence outweighs the undesirability of admitting the evidence obtained in the way in which it has been obtained.
Did the wrong person request the sample?
63Mr Walsh-Buckley in his written submissions argued that because Senior Constable Downey was the officer who requested that the Appellant accompany him to the police station, Senior Constable Downey was the officer who was obliged to request the Appellant to furnish a sample of breath. Officer Downey said in evidence that he thought he had made the request for a sample of breath at the station. Officer Lambrou said that she thought she had made the request. Given there is doubt about whether Downey or Lambrou made the request for the evidentiary sample at the police station, the fruits of that exercise should be excluded, according to the Appellant.
64Bell v Dawson[19] was cited as authority for the proposition that, “the requirement to accompany must be made specifically by the member of the police force who required the person to furnish a sample of breath.” Against that, the prosecution in its written submissions relied on DPP v Loftus[20] where Cummins J said:
“Analytically, the most relevant decision in my view is DPP v Foster, DPP v Bajram. In the judgment of Winneke P (in whose judgment Ormiston JA substantially agreed) at [29],[48],[50] and [56] it is established that the various requirements set forth in section 55(1) are discrete and need not be communicated holistically. The court in DPP v Greelish held likewise. In my view the circumstance that it is authoritatively stated that the requirements under s. 55(1) are discrete significantly supports the interpretation of s. 55(1) for which the Appellant ultimately contended in this case, namely that it is not necessary for the same officer to make the requirements.”[21]
[19] [2000] VSC 169.
[20] [2004] VSC 39 (‘Loftus’).
[21] Ibid at [38].
65The judgment in Loftus was delivered four years after the decision relied upon by the Appellant. I was not taken by the Appellant to any more recent authority which supports the argument that if the request to accompany is made by one officer and the request for a sample of breath is made by another, the fruits of that testing are invalid or ought to be excluded as the product of a contravention or impropriety enlivening section 138 of the Evidence Act 2008.
66In his written submissions, the Appellant suggests that although Bell v Dawson was considered by the Court of Appeal on the question of adequacy of particulars, there is some tacit approval of Balmford J’s ruling given the fact that this aspect of Her Honour’s ruling was not challenged by the Court of Appeal. The better view is that this aspect of Her Honour’s ruling was not considered by the Court of Appeal.
67Again, I am not persuaded that even if Lambrou requested the sample of breath at the station, to do so involves a relevant impropriety or contravention enlivening section 138.
68Assuming that the officer who made the demand to accompany should also make the request for a sample of breath and the fact that another officer has done so amounts to an impropriety or a contravention of section 55(1)(b) of the RSA, the desirability of admitting the evidence outstrips the undesirability of admitting evidence which has been obtained in the way in which the evidence of the evidentiary sample here was obtained. It is not contended that there was any material irregularity in the way Lambrou obtained the Appellant’s sample of breath at the Werribee police station. It is not contended that the reading obtained is compromised, tainted or otherwise unreliable. The integrity of the instrument used has not been challenged. The evidence of the Appellant’s BAC is highly probative. The evidence is important to the proceedings. The gravity of the asserted contravention or impropriety is exceedingly modest. It was not deliberate. No court proceedings in relation to Lambrou’s actions are likely. No inconsistency with a right recognised by the International Covenant on Civil and Political Rights has been identified. The evidence was capable of being obtained with ease.
69Section 137 is not engaged either. There is no danger of unfair prejudice. The prejudice of admitting the fruits of the testing conducted at Werribee Station is the use of the BAC reading to ground the section 49(1)(f) charge against the Appellant. It renders his conviction of that charge more likely, indeed inevitable, but that is a conventional prejudice, not an unfair one. The probative value of the testing is not outweighed by any unfair prejudice.
70For completeness, the Haddara discretion is not enlivened either. The evidence is relevant and admissible.
Application to Dismiss s 61(1) (c) RSA charge
71The Appellant argues in relation to the s 61(1) (c) offence that the expression, “as soon as possible” must be interpreted and understood as a reasonable defendant would and in the context of the surrounding circumstances.[22] If there is a reasonable doubt that the accused had enough time to exchange names and addresses following the accident then the charge ought to be dismissed.
[22] Emirhuissen v Radovanovic [2012] VSC 136 at [22] (‘Emirhuissen’).
72The Appellant gave evidence that he was unaware of having been in an accident because he was playing loud music in his car and did not hear the collision. There was substantial damage to the driver’s side front of his vehicle and the front driver’s side tyre is depicted in the photographs as significantly deflated. The damage to Mr Soliman’s car was extensive. His entire driver’s side seems to have been impacted and the rear bumper bar was torn off.
73CCTV footage culled from a neighbouring property depicts the Appellant driving on the wrong side of the road and mounting the curb. The Appellant gave evidence that his driving had been compliant with the road rules and unremarkable. That depiction is contradicted by the performance recorded in the tendered CCTV footage. It is also contradicted by the nature of the collision his vehicle had with Mr Soliman’s parked car. The nature of the damage to both vehicles indicates that the Appellant approached Mr Soliman’s vehicle whilst the Appellant was driving on the wrong side of the road and the front of the Appellant’s driver’s side scraped the entire length of Mr Soliman’s car. It is incomprehensible that the Appellant could have been behind the wheel of his car during this episode but oblivious to the collision.
74Ms Mulcahy gave evidence that she could hear the collision from inside her house which was four houses from Mr Soliman’s, the site of the collision. Mr Soliman gave evidence that he rushed outside immediately and could see the Appellant’s car driving away. The noise had also drawn neighbours to the scene. And yet, Mr Carr says he heard and saw nothing.
75The Appellant gave evidence that upon returning home he consumed 8 cans of full-strength beer. He estimated that this exercise engaged him for an hour or so until the police arrived. In assessing whether a doubt attends whether the Appellant had the time to give his name and address to Mr Soliman, I note that s 61 (1) (c) is expressed in mandatory terms; “the driver must at the scene of the accident as soon as possible give his or her name and address...” There is no doubt in my mind that the Appellant had ample time to park alongside Mr Soliman’s damaged Corolla, walk to Mr Soliman’s front door and proffer the information obliged of him as the driver of a vehicle involved in an accident. Instead, he drove home, parked his damaged car, went inside and spent, by his reckoning, an hour drinking heavy beers. He had ample time before consuming his first post-collision beer, ample time between the first and the second, ample time between the second and the third and ample time between crushing the third and draining the eighth to walk four house-lengths to Mr Soliman's to provide him with his name and address. He could even have taken a traveller with him.
76This argument fails.
77The Appellant also argues that this offence has a mens rea component. Barker v Bruce[23] and Emirhuissen v Radovanovic[24] are cited as authorities for this proposition. From my reading of these authorities I can discern no discussion about the mental element of a charge laid pursuant to s 61 (1) (c) of the RSA. Emirhuissen does refer to the offence created by s 61 (1), (3) as having a mental element, but that offence is directed to accidents involving death or serious injury and sub-section (b) of s 61(3) says relevantly:
“(b) the driver knows or ought reasonably to have known that the accident had occurred and had resulted in a person being killed or suffering serious injury”.
[23] [1970] VR 884.
[24] [2012] VSC 136.
78Barker v Bruce was a case brought under the Motor Car Act 1958 involving involuntary intoxication and the defence of automatism.[25] It was argued before the magistrate that Burke had no intention of getting drunk or driving whilst intoxicated but had been deceived into consuming brandy which had been slipped into his beer by mischievous friends. The magistrate dismissed the three information's on the basis that Burke had been deceived into consuming brandy.
[25] [1970] VR 884.
79Mr Burke had also been charged with an offence under s 80(1) of the Motor Car Act 1958 which said:
“Where owing to the presence of a motor car on any highway an accident occurs.... whereby any property, including any vehicle … is damaged.... the person driving the motor car shall immediately stop the motor car.”
80Newton J found that s 80 (1) does involve an element of mens rea in that the driver must have been aware that his vehicle was involved in the accident and he cited Hubbard v Beck[26] and Harding v Price[27] as authorities for that proposition.
[26] (1946) 64 WN (NSW) 20.
[27] [1948] 1 KB 695.
81In Emirhussein v Radovanovic,[28] Bell J considered offences laid under s 61 (1) (e) and (f) of the RSA, but not s 61 (1) (c).
[28] [2012] VSC 136.
82At paragraph 25, Bell J noted:
“The second ground on which the application for judicial review has been made is that the trial judge erred in deciding the offences in s 61(1)(e) and (f) were absolute in nature. Although His Honour used those words to describe the offences, I do not think he was meaning to say that the offences were committed whatever the circumstances, as in Kearen v Grant. After so describing the offences, His Honour went on to refer, correctly, with respect, to the need “to take into account the surrounding circumstances, including time and the driver’s physical and mental capacity” when considering the phrase ‘as soon as possible.’ (citations omitted).
83For our purposes, the next sentence is important:
“I think His Honour was meaning to say that a person who consciously and voluntarily failed to report as soon as possible having regard to those considerations could be guilty of the offence without having any intention to breach the obligation to report, with which I respectfully agree. Taken as a whole, I think His Honour’s reasoning is consistent with the correct legal position, which is that s 61 (1)(e) and (f) create strict liability offences of which intention to offend is not an element but to which the defence of honest and reasonable mistake of fact is applicable.”
84If the same mens rea applies to an offence under s 61 (1) (c) of the RSA it would be a defence to demonstrate that the driver did not know he had been involved in an accident, provided such ignorance was reasonably held. Mr Carr gave evidence that he had been listening to loud music whilst in his car and was unaware he had struck Mr Soliman’s parked car.
85Even if the Appellant was honestly oblivious that he had been in an accident, it is not a belief reasonably held. The Appellant’s car was damaged in such a way that its handling must have been affected due to the deflation of the front driver’s side tyre. Mr Soliman’s car was extensively damaged and to inflict that damage on it, the Appellant’s car had to scrape the entire length of Mr Soliman’s car. The Appellant, as driver, approached Mr Soliman’s car on the wrong side of the road and, occupying the driver’s seat, he would have been less than a metre from Mr Soliman’s car as it was being noisily buffeted by his car. Neighbours rushed to the site, Mr Soliman rushed out to his car and Ms Mulcahy heard the impact from four houses away whilst inside hers.
86In Jiminez v The Queen the majority of the court said:[29]
“If honest and reasonable mistake is not excluded in the case of a statutory offence, it will afford an excuse for what would otherwise be an offence, although the burden of establishing the excuse will in the first place be on the defendant. The burden on the defendant is evidentiary only and the prosecution retains the burden of proving guilt by establishing beyond reasonable doubt that the defendant did not honestly believe on reasonable grounds in the existence of facts, which, in the circumstances, would take his act outside the operation of the statute.”
[29] (1992) 173 CLR 572, 582.
87I do not accept the Appellant’s evidence that he was unaware that he had been involved in an accident. However, even if I were to accept his inherently implausible evidence, his explanation of being unaware of his car’s collision with Mr Soliman’s was not held on reasonable grounds and the defence of honest and reasonable mistake of fact is not made out in relation to this charge. Where raised by the Appellant in his evidence, in other words, it has been established by the Prosecution that he did not honestly believe on reasonable grounds that he had not been involved in an accident.
88The Appellant was also charged with an offence under s 61(1)(a) of the RSA which obliges a driver who has been involved in an accident to immediately stop his motor vehicle. It was contended by the Appellant that he stopped four doors down from the scene of the accident, namely in the vicinity of the collision albeit outside his own home. A number of cases were cited in support of the proposition that continuing on after an accident and parking in your own driveway may equate to stopping immediately for the purposes of s 61(1)(a) of the RSA.[30]
[30] Kinsman v DPP (NSW) (1989) 9 MVR 347; Mullan v Berry [1964] SASR 8.
89I do not accept that the Appellant stopped immediately. Again, to the extent that a defence of honest and reasonable mistake of fact is available to the Appellant, I do not accept his evidence that he was unaware of having been involved in an accident, but even if that evidence was truthful, his belief that he had not been involved in an accident was not reasonably held for the reasons identified above. Again, where raised by Mr Carr in his evidence, the Prosecution has established that he did not honestly believe on reasonable grounds that he had not been involved in a collision with Mr Soliman’s Corolla.
Part D – Application for Permanent Stay of Proceedings
90At the start of this appeal, it was foreshadowed that an application for a permanent stay of the charges would be made. The basis of the application was explained by reference to the fact that the Appellant, as an innocent man when one has regard to the reconstruction performed by Dr Collins, was susceptible to being found guilty of the s49(1)(f) charge notwithstanding that his BAC at the time of driving was below .05%.
91Given the Rulings I have made elsewhere, there is no scope to uphold such an application. I note it was not renewed in the submissions made at the close of the evidence.
Part E – Conclusions
92I have concluded that the interpretation of s 49(1)(f) of the RSA advanced by the Appellant is not open. I have also concluded that the means by which the evidentiary sample of the Appellant’s breath was obtained involved no relevant impropriety, unlawfulness or contravention triggering the discretion to exclude this evidence. On the evidence before the court, the Appellant within 3 hours of driving or being in charge of a motor vehicle furnished a sample of breath for analysis by a breath analysing instrument under section 55 and the result of the analysis as recorded indicates that more than the prescribed concentration of alcohol was present in his breath and the concentration of alcohol indicated by the analysis was not due solely to the consumption of alcohol after driving or being in charge of a motor vehicle. Accordingly, that charge is made out.
93I have also concluded that owing to the presence of a motor vehicle an accident occurred whereby property was damaged, and the Appellant was the driver of the motor vehicle which caused that damage. I have found that he has not discharged the evidentiary burden required to raise a defence of honest and reasonable mistake of fact in relation to his awareness of whether he had been involved in a collision. Alternatively, where raised, I have determined that his purported ignorance of having been in an accident was not reasonably held. Accordingly, he had an obligation to immediately stop his motor vehicle. He did not immediately stop his motor vehicle. In failing to stop, he has breached s 61(1)(a) of the RSA. That charge is also made out.
94For the same reasons, the Appellant was obliged as soon as possible at the scene of the accident to give his name and address as the owner of the vehicle together with the identifying number of the motor vehicle to the owner of the damaged red Corolla, Mr Soliman. He failed to do so. In failing to do so, the Appellant has breached s 61(1)( c) of the RSA. That charge is also made out.
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