Constable v Armstrong
[2021] VSC 335
•10 June 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2020 01474
| Between: | |
| TIFFANY CONSTABLE | Appellant |
| -and- | |
| SENIOR CONSTABLE KATE ARMSTRONG | Respondent |
---
JUDGE: | Croucher J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 April 2021 |
DATE OF JUDGMENT: | 10 June 2021 |
CASE MAY BE CITED AS: | Constable v Armstrong |
MEDIUM NEUTRAL CITATION: | [2021] VSC 335 |
---
APPEAL — Motor traffic law — Appeal, on questions of law, from final orders of Magistrates’ Court — Appellant found guilty of refusing to accompany police to station for purposes of breathalyser test — Whether prosecution must prove preliminary breath test (“PBT”) conducted on “prescribed device” — Whether any evidence PBT conducted on “prescribed device” — Inferences — Whether presumption of regularity applicable — Appeal allowed — Finding of guilt on refusal to accompany offence and sentence thereon set aside — Finding of not guilty and dismissal of charge substituted — Appellant resentenced on careless driving offence — Road Safety Act 1986 (Vic), ss 3(1), 49(1)(e), 49(1A)(a) & (c), 53(1)(a), 55(1) & 65(1); Road Safety (General) Regulations 2009 (Vic), r 7; Criminal Procedure Act 2009 (Vic), s 272.
---
APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr S P Hardy | The Law Offices of Barry Fried |
| For the Respondent | Ms E Ruddle SC | Ms A Hogan, Solicitor for Public Prosecutions |
HIS HONOUR:
PART 1: OVERVIEW
Concerning driving leads to charges
In the very early hours of a spring morning in 2017, while waiting at an intersection near the front of a hotel in Frankston, two police officers performing divisional van duties saw a white BMW engage in a concerning manoeuvre. The BMW was stationary at a red light opposite the police van. Its headlights were off. As the traffic lights changed to green, instead of driving forwards, the car reversed quickly and rather inexpertly in an arc onto the left kerb. Next, the car lurched forwards across the road so as to end up somewhat askew and only partly in a parking space on the median strip. As if to confirm suspicion, the driver, Tiffany Constable, announced through an open window, “I’m only parking, I’m drunk.”
After taking Ms Constable’s details, Senior Constable Kate Armstrong conducted a preliminary breath test (“PBT”). Surprise, surprise, it was positive for alcohol. In response to two requests by S/C Armstrong to accompany police to Frankston Police Station for the purposes of breath analysis, Ms Constable repeated that she was only parking her car. After a third request to accompany police, Ms Constable declined. S/C Armstrong then advised Ms Constable that, if she refused this request, she may be charged with an offence and exposed to various penalties. Ms Constable maintained her refusal.
A month later, S/C Armstrong charged Ms Constable with refusing to accompany police to a police station for breath analysis, contrary to s 49(1)(e), read with ss 55(1) and 53(1)(a), of the Road Safety Act 1986 (Vic) (“the RSA”), as well as with five other offences.
Contested hearing results in finding of guilt and sentence
Following a contested hearing on 13 December 2019 in the Magistrates’ Court at Frankston, on 25 February 2020, a magistrate found Ms Constable guilty of the “refusal to accompany” offence charged under s 49(1)(e). Ms Constable had earlier pleaded guilty to careless driving.[1] Her Honour recorded convictions on each offence, imposed an aggregate fine of $700 and, on the offence against s 49(1)(e) alone, cancelled Ms Constable’s driver’s licence and disqualified her from driving for two years.
[1]Four other driving charges were withdrawn in exchange for the plea of guilty. See below.
Appeal to this Court
Ms Constable appealed to this Court against the final orders pertaining to the refusal to accompany offence on four questions of law.[2] The outcome of this appeal turned upon my resolution of the first of those questions. For reasons I shall give presently, I am persuaded that the magistrate erred in holding that, to secure a conviction for the offence against s 49(1)(e), the prosecution was not required to prove that Ms Constable had undergone a PBT “by a prescribed device” pursuant to s 53(1)(a) of the RSA. In my view, such proof was necessary.
[2]Pursuant to s 272 of the Criminal Procedure Act 2009 (Vic).
The consequence of the magistrate’s error is that the finding of guilt and sentence on the s 49(1)(e) charge must be quashed. Instead of remitting the matter to the Magistrates’ Court, the only course open is to substitute a finding of not guilty and a dismissal on the merits. This is because, as was conceded (properly, in my view) by Ms Ruddle SC, who appeared for the respondent in this Court, there was no evidence before the court below that the PBT was conducted by a prescribed device.
Other questions of law
Ms Constable’s success on the first question of law meant that, strictly speaking, it became unnecessary to deal with the other questions. Indeed, Ms Ruddle submitted that I should not needlessly pour obiter dicta into the already murky admixture that is drink-driving law. In this case, I agree. Despite the fact that the other questions were argued fully, and despite the potential utility (for the clarification of the law) of answering them, I think it is preferable that their resolution should await matters in which they are determinative.
PART 2: BACKGROUND
Introduction
Before turning to consider the question in issue more closely, it is necessary to set out the terms of the charge laid under s 49(1)(e) and the relevant provisions of the RSA; to point out briefly how those provisions relate to the question of law; and to summarise the evidence led in the court below.
The charges against Ms Constable, including the charge against s 49(1)(e) of the RSA
The incident giving rise to the charges occurred on 6 October 2017. Nearly six weeks later, on 15 November 2017, S/C Armstrong charged Ms Constable with various offences and summonsed her to appear at the Frankston Magistrates’ Court.
For reasons unknown, Ms Constable failed to answer the summons. Her matter was adjourned several times before it was heard by the magistrate on 13 December 2019.
The principal charge against her (Charge 1) was brought under s 49(1)(e) of the RSA and was framed in the following terms:[3]
The accused at Frankston on 06/10/2017 having been required to furnish a sample of breath pursuant to section 55(1) of the Road Safety Act 1986 and for that purpose a requirement was made for her to accompany a police officer to a place namely Frankston Police Station did refuse to comply with such requirement to accompany the police officer prior to three hours elapsing since being in charge of a motor vehicle.
[3]My emphasis.
Early in the hearing before the magistrate, the prosecutor successfully applied, over a defence objection, to amend that charge by deleting the words “being in charge of” and substituting the word “driving”.[4]
[4]While the challenge to this amendment was addressed in argument under the second question of law in this Court, for the reasons I have already given, I shall not determine that question on this appeal. The third question of law concerned, in part, whether, consistently with the words “having been required to furnish a sample of breath pursuant to [s] 55(1) of the [RSA]” pleaded in the charge, and the terms of s 55(1) itself, the magistrate erred failing to require proof that Ms Constable was indeed asked to furnish a sample of breath pursuant to s 55(1). As already indicated, however, it is unnecessary to determine that question on this appeal.
The charge-sheet contained five other charges, including one of careless driving (Charge 2). The other four charges[5] were withdrawn by the prosecution in response to Ms Constable’s guilty plea to the careless driving charge.
[5]The remaining four charges alleged offences against the Road Safety Road Rules 2017 (Vic): one against r 296 (driving a vehicle in reverse unsafely or further than is reasonable in the circumstances (Charge 3)); two against r 215(1)(a) (driving at night without the headlights operating effectively and being clearly visible (Charge 4) and driving in hazardous weather conditions causing reduced visibility without the tail lights operating effectively and being clearly visible (Charge 5)); and one against r 147 (crossing a continuous line on a multi-lane road (Charge 6)).
Refusal to accompany: The applicable provisions
At this point, it is convenient to set out the relevant provisions of the RSA as they relate to the refusal to accompany charge.
Section 49(1)(e), relevantly, is in these terms:
A person is guilty of an offence if he or she … refuses to comply with a requirement made under section 55(1), (2), (2AA), (2A) or (9A)[.]
This provision has been described as “ambulatory” — i.e., it creates offences by proscribing a refusal to comply with requirements made under other provisions of the RSA.[6]
[6]DPP v Kypri (2011) 33 VR 157 at 163[15] (per Nettle JA).
As is apparent from the terms of the charge, the applicable requirement in Ms Constable’s case was a requirement made under s 55(1). Relevantly, s 55(1) provides as follows:
If a person undergoes a preliminary breath test when required by a police officer … under section 53 to do so and—
(a) the test in the opinion of the police officer … in whose presence it is made indicates that the person’s breath contains alcohol; or
(b) …
any police officer … 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 police officer … for the purposes of section 53 to a place or vehicle where the sample of breath is to be furnished and to remain there until the person has furnished the sample of breath and any further sample required to be furnished under subsection (2A) and been given the certificate referred to in subsection (4) or until 3 hours after the driving, being an occupant of or being in charge of the motor vehicle, whichever is sooner.
It will be observed that the power to issue a requirement “under” s 55(1) is expressed to be contingent upon a PBT having been administered “under” s 53. While the relevant provision in this case is s 53(1)(a), it is instructive to set out s 53(1) in full:[7]
[7]My emphasis.
(1) A police officer may at any time require—
(a) any person he or she finds driving a motor vehicle or in charge of a motor vehicle; or
(b) the driver of a motor vehicle that has been required to stop, and remain stopped at a preliminary testing station under section 54(3); or
(c) any person who he or she believes on reasonable grounds has within the last 3 preceding hours driven or been in charge of a motor vehicle when it was involved in an accident; or
(d) any person who he or she believes on reasonable grounds was, within the last 3 preceding hours, an occupant of a motor vehicle when it was involved in an accident, if it has not been established to the satisfaction of the police officer which of the occupants was driving or in charge of the motor vehicle when it was involved in the accident—
to undergo a preliminary breath test by a prescribed device.
The question of law at issue on this appeal concerns, in part, the importance of the last four italicised words in s 53(1). In particular, it concerns whether it was incumbent on the prosecution to prove that the PBT was conducted “by a prescribed device”. If it was, the appeal must succeed on that account alone.
Summary of evidence before the Magistrates’ Court
I turn now to a summary of the evidence led before the magistrate.
S/C Armstrong
S/C Armstrong gave sworn viva voce evidence that, at about 3:40 a.m. on 6 October 2017, she and Senior Constable Stephen Snee were performing divisional van duties in the Frankston area when they stopped at traffic lights in Davey Street at its intersection with the Nepean Highway, at the opposite side of which Davey Street becomes Kananook Creek Boulevard South. S/C Snee was driving. S/C Armstrong saw a white BMW stationary on the opposite side of the intersection, just outside the Pier Hotel. The BMW’s headlights were off.
The traffic lights changed and S/C Snee drove through the intersection into Kananook Creek Boulevard South before turning right and coming to a stop in one of the parking bays in the boulevard’s median strip. As the divisional van crossed the Nepean Highway, the BMW quickly reversed in a leftward arc, mounting the kerb outside the hotel. It then drove forwards in the direction of the median strip, stopping to the right of the divisional van, half in and half out of one of the parking bays in the strip.
As the BMW pulled up beside the divisional van, Ms Constable announced, through an open window, “I’m only parking, I’m drunk.” S/C Armstrong got out of the van, approached the BMW and told Ms Constable to turn her car off and remain in it. Contrary, in part, to the latter request, Ms Constable got out of the car. But, compliant with the next request, she gave her name and address to police and produced her driver’s licence.
Ms Constable also complied with a request by S/C Armstrong to undergo a PBT, which returned a positive result for alcohol. (I pause to note that there was no evidence given by S/C Armstrong, or her colleague, that the PBT was conducted on a prescribed device. This absence of evidence is important in considering the first question of law and the consequential orders to be made.)
Following the PBT, S/C Armstrong required Ms Constable to attend Frankston Police Station for the purposes of breath analysis. She did so by reading verbatim from what was described in evidence as the “PBT requirements guide”. In particular, S/C Armstrong said this:
In my opinion, the result of the preliminary breath test indicates that your breath contains alcohol. I now require you to accompany me to the Frankston Police Station for the purpose of a breath test and to remain there until you receive a certificate of analysis or for a period of three hours from the time of driving or being in charge, whichever is sooner. Are you prepared to accompany me?
Ms Constable’s response to S/C Armstrong’s recitation was that she had only been parking the BMW. A second request elicited the same response. The third time Ms Constable was asked whether she would accompany police to the station, she answered that she would not.
It was at this point that S/C Armstrong had recourse for a second time to the PBT requirements guide, this time to explain the consequences of a refusal. In terms, she read the following passage from the guide to Ms Constable:
If you refuse to accompany me to the Frankston Police Station for the purpose of a breath test, you may be charged with this offence and, if you’re found guilty, you may be fined or imprisoned for 18 months and you will lose your licence for a minimum of two years. Are you prepared to accompany me?
She still said, “No.” S/C Armstrong then seized her car keys. Ms Constable’s friends indicated to S/C Armstrong that they would take her home in an Uber.
S/C Snee
Instead of calling S/C Snee to give viva voce evidence, the prosecutor applied to tender his written statement as an exhibit and read it to the court. The prosecutor advised that S/C Snee had recently undergone cardiac surgery. Mr Hardy, who appeared for Ms Constable in the Magistrates’ Court and in this Court, objected. The magistrate accepted that the witness was unavailable to give evidence within the meaning of clause 4(1)(c) of Part 2 of the Dictionary to the Evidence Act 2008 (Vic). Her Honour went on to hold that his statement was admissible under the exception to the hearsay rule found in s 65(2)(a) of the same Act. No point was taken on this appeal about that ruling.
The version of events in S/C Snee’s statement was very similar to the account given in evidence by S/C Armstrong. The only notable differences between their accounts were as follows. First, it appeared that S/C Snee had the divisional van still stationary when Ms Constable performed her reversing manoeuvre, and then had it moving through the intersection as Ms Constable drove forwards and came to a rest beside the van.
Second, S/C Snee added that the PBT reading was “0.140”.
Third, after S/C Armstrong’s first request to accompany, Ms Constable said, “I wasn’t even driving, I was only going from there to there.”
Fourth, after the second refusal to accompany police, S/C Armstrong told Ms Constable that she would be charged and summonsed to court.
Finally, S/C Armstrong told Ms Constable that she could collect her car keys from the Frankston Police Station when she was safe to drive.
Ms Constable
In her sworn viva voce evidence, Ms Constable said that, at the relevant time, she was in the course of moving her car from one car parking spot to another one under cover for the night, because she thought it would be safer to do so given that her car was a “soft top” (i.e., a convertible).
As for her headlights being off, Ms Constable said she could not remember whether or how that came to be so, but that she usually had them set to come on automatically.
When asked about her parking manoeuvre, she said that, before she drove forwards, the police officer had already parked the van in a way that prevented her from parking fully in the parking bay.
Ms Constable said that she did not understand what would happen if she did not go with police to the station.
Finally, in cross-examination, she agreed that police asked her to go back to the police station for a “second breath test”, but she could not remember the exact wording of the request.
PART 3: APPEAL TO THE SUPREME COURT
Questions of law and grounds of appeal
That brings me to the appeal to this Court. On 24 March 2020, Ms Constable filed a notice of appeal. The notice raised four questions of law:
1) Did the magistrate err in finding the respondent did not need to prove that the appellant had undergone a PBT in accordance with s 53(1) of the Act?
2) Did the magistrate err in ordering that the charge be amended after 12 months had passed since the date of the alleged offence?
3) Did the magistrate err in finding the charge proved when there was no evidence before the court that the appellant had been required to furnish a sample of breath pursuant to s 55(1) of the RSA?
4) Did the magistrate err in finding the appellant guilty of the charge?
While the notice also listed four grounds of appeal, the matter was argued as if the questions of law, mutatis mutandis, were, in substance, the grounds. In those circumstances, and given that only the first question of law is to be determined on this appeal, it is unnecessary to detail the terms of the grounds as listed in the notice.
Must prosecution prove PBT conducted by prescribed device under s 53(1)?
Introduction
As we have seen, the first question of law asks whether the magistrate erred in holding that the prosecution was not required to prove that Ms Constable had undergone a PBT “by a prescribed device” in accordance with s 53(1)(a) of the RSA. For reasons that follow, that question must be decided in favour of Ms Constable.
Submissions and reasons in the Magistrates’ Court
Ms Constable’s submissions
At the close of the evidence before the magistrate, Mr Hardy submitted, inter alia, that a requirement to accompany under s 55(1) of the RSA could only be made in circumstances where a lawful PBT had been conducted — i.e., one conducted on a device prescribed under the Act or regulations.
In support of that submission, Mr Hardy relied on Sirajuddin v Ziino (“Sirajuddin”).[8] That matter concerned an appeal against a magistrate’s orders convicting a motorist of an offence against s 49(1)(f) of the RSA. That provision is in the following terms:
[8]Sirajuddin v Ziino (2005) 14 VR 689.
(1)A person is guilty of an offence if he or she—
…
(f)within 3 hours after driving or being in charge of a motor vehicle furnishes a sample of breath for analysis by a breath analysing instrument under section 55 and—
(i)the result of the analysis recorded or shown by the breath analysing instrument indicates that the prescribed concentration of alcohol or more than the prescribed concentration of alcohol is present in his or her breath; and
(ii)the concentration of alcohol indicated by the analysis to be present in his or her breath was not due solely to the consumption of alcohol after driving or being in charge of the motor vehicle[.]
Justice Hargrave held that proof of an offence under s 49(1)(f) required the prosecution to lead evidence that the PBT conducted under s 53 was conducted using a prescribed device.[9] Mr Hardy submitted that this principle applied equally to offences under s 49(1)(e).
The prosecution’s submissions
[9]Sirajuddin v Ziino (2005) 14 VR 689 at 698[50] (per Hargrave J).
The prosecutor made two submissions in response. First, he submitted that proof of the offence with which Ms Constable was charged did not require proof that a prescribed device had been used in the conduct of the PBT. He contended that Sirajuddin was distinguishable because it concerned an offence against s 49(1)(f), and not against s 49(1)(e).
In an email sent in the afternoon following the hearing, the prosecutor referred the magistrate to DPP v Alliston (“Alliston”),[10] where it was held that proof of an offence against s 49(1)(c) — which provision criminalises a refusal to undergo a PBT when required to under s 53 — did not require the prosecution to prove that a prescribed device had been presented to the motorist. The basis of the Court’s decision was the introduction into the RSA of s 49(1A)(a), which provides as follows:
(1A)A person may be convicted or found guilty of an offence under paragraph (c), (ca), (e), (ea) or (eb) of subsection (1) even if—
(a)in the case of an offence under paragraph (c), a prescribed device was not presented to the person at the time of the making of the requirement[.]
[10]DPP v Alliston (2006) 46 MVR 401 at 409[37]-[38] (per Osborn J).
Justice Osborn made it clear that, prior to the insertion of s 49(1A)(a), he understood the authorities to support the view that, in order to establish an offence of refusal to undertake a breath test (whether a PBT or a full breath test), it was necessary for the prosecution to prove that the relevant device (a prescribed device or a breath analysing instrument, respectively) was present and, in the case of a PBT, was presented to the motorist at the time the request to take the test was made.[11] But s 49(1A)(a) changed this, so that an offence against s 49(1)(c) could be committed whether or not a prescribed device was proved to have been presented to the motorist at the time he or she was required to undergo a PBT.[12]
[11]DPP v Alliston (2006) 46 MVR 401 at 404[17]-408[34] (per Osborn J), citing, for example, Scott v Dunstone [1963] VR 579 at 581-582 (per Scholl J); and DPP v Foster [1999] 2 VR 643 at 657[48] (per Winneke P, with whom Batt JA agreed); DPP v Greelish (2002) 4 VR 220 at 223[12] (per Buchanan JA, Phillips JA agreeing) & 226[30] (per O’Bryan AJA); and Halepovic v Sangston (2003) 40 MVR 203 at 207[20]-[21] (per Bongiorno J).
[12]DPP v Alliston (2006) 46 MVR 401 at 408[35]-409[39] (per Osborn J).
It will be immediately apparent that the decision in Alliston turned on s 49(1A)(a) of the RSA, which is expressed to apply to s 49(1)(c). The prosecutor did not endeavour to explain why the decision was relevant to an offence against s 49(1)(e).
Secondly, and to my mind somewhat inconsistently (but perhaps the point was put only alternatively), the prosecutor contended that the prosecution could call in aid the presumption of regularity. In his email sent after the hearing, the prosecutor argued that the decision of Hayne J in Chisholm v Matthews (“Chisholm”)[13] stood as authority for the proposition that, where the defence did not cross-examine on the issue of what device was used to administer the PBT (which, in the present case, Mr Hardy did not), it would be presumed that the device was a prescribed device.
The magistrate’s decision — No evidence of prescribed device needed
[13]Chisholm v Matthews (1992) 16 MVR 447.
In finding Ms Constable guilty, the magistrate noted that Sirajuddin concerned s 49(1)(f) of the RSA. Her Honour accepted that, in relation to offences against s 49(1)(f), it was well-established that the prosecution was required to prove that a PBT had been conducted in accordance with s 53.[14]
[14]Her Honour cited DPP v Webb [1993] 2 VR 403, DPP v Foster [1999] 2 VR 643 and DPP Reference No 2 of 2001 (2001) 4 VR 55. But note that none of those cases concerned the specific question of whether, in establishing whether a motorist had validly undergone a PBT under s 53, the prosecution was required to adduce evidence about the type of device used to conduct the test (see Sirajuddin v Ziino (2005) 14 VR 689 at 697[43]-[46] (per Hargrave J)).
The question, however, was whether the same was true of offences against s 49(1)(e). Her Honour considered that it was not, for the reason that s 49(1A) “also applies to offences under s 49(1)(e) by virtue of s 49(1A)(c)”; and, as a consequence, an offence under paragraph (e) could be established even where a prescribed device was not present at the time the requirement to undergo a PBT was made.
Submissions in this Court
Introduction
It was accepted by both parties to the appeal that the basis on which the magistrate held that the prosecution need not prove that a PBT was conducted using a prescribed device in order to secure a conviction for a s 49(1)(e) offence — namely, because of s 49(1A)(c) — was misconceived. Shortly, I shall explain why this aspect of her Honour’s reasoning was in error. But the question whether proof that a PBT was conducted “by a prescribed device” remained a live issue on the appeal.
Appellant’s submissions
Mr Hardy submitted that proof that a PBT was conducted using a prescribed device was an element of the offence with which Ms Constable was charged. He reiterated that, in his submission, the ratio in Sirajuddin was applicable to s 49(1)(e) offences.
Addressing himself to the magistrate’s finding that Sirajuddin was distinguishable because it concerned the interpretation of s 49(1)(f), Mr Hardy made two points. First, he drew this Court’s attention to the case of Saric v Elliott (“Saric”).[15] In a footnote in his Honour’s reasons, T Forrest J set out the elements of the offence charged against s 49(1)(e) in that case as including an element that the motorist “had undergone a [PBT] by a prescribed device pursuant to s 53(1) of the Act”.[16]
[15]Saric v Elliott [2013] VSC 509.
[16]Saric v Elliott [2013] VSC 509 at [27], footnote 32 (per T Forrest J).
Second, Mr Hardy pointed out that Ms Constable might have acquiesced to the request that she accompany police to Frankston Police Station and furnished a sample of breath for analysis, and been charged with an offence against s 49(1)(f). Had that occurred, the prosecution would have been required to prove that the PBT was conducted on a prescribed device. He questioned why the prosecution should be relieved from the requirement to prove the legitimacy of the PBT merely because Ms Constable refused to accompany the officers to the police station.
Respondent’s submissions
Ms Ruddle argued that the prosecution need not prove that a PBT was conducted using a prescribed device in the context of a prosecution for an offence against s 49(1)(e). She did so on the basis that compliance with s 53 is not an element of the offences that that paragraph creates.[17] The elements of the offences s 49(1)(e) creates are contained in s 55, the applicable subsections of which are referred to in s 49(1)(e). In Ms Ruddle’s submission, those provisions are ambulatory, but one need not “ambulate back” to s 53 in order to collect elements. The “key behaviour” at which s 49(1)(e) is aimed is the refusal to comply with a particular requirement made under s 55. That requirement, and not that which precedes it, is in each case the focus of the provision.
[17]Ms Ruddle’s predecessor, Ms Parkes, who settled the respondent’s written submissions, conceded that compliance with s 53 was an element of the offence with which Ms Constable was charged. But Mr Hardy did not object to Ms Ruddle’s change of tack on behalf of the respondent.
Instead, in Ms Ruddle’s submission, s 53 acts merely as a “triggering mechanism”. A PBT must be conducted in order for a request under s 55(1) to be made, but compliance with s 53 is not an element of the offence. In response to a suggestion that, were the respondent’s position accepted, a motorist could be found guilty of an offence against s 49(1)(e) for refusing to accompany officers to a police station after having been required to blow into an ordinary piece of pipe, Ms Ruddle responded that he or she could not. That is because in “no real terms” could one argue that blowing into a piece of pipe constitutes a PBT. The triggering mechanism must be proved, then; but not, in Ms Ruddle’s submission, beyond reasonable doubt. Instead, in her submission, the finder of fact must feel “a level of satisfaction” that the dictates of s 53 have been observed.
In support of the submission that compliance with s 53 does not constitute an element of the offence with which Ms Constable was charged, Ms Ruddle made two points. First, she observed that both s 49(1)(c) and s 49(1)(f) make specific reference to s 53, whereas s 49(1)(e) does not. That observation, however, was, in part, incorrect: s 49(1)(f) does not refer to s 53.
Second, Ms Ruddle pointed out that s 49(1A)(c) does not contain a provision which, like s 49(1A)(a), relieves the prosecution of a requirement to prove that a prescribed device was presented to the motorist at the time the requirement to undergo a PBT was made. In her submission, the reason for that omission is that such a provision would be otiose, because the fact that a motorist was required to undergo a PBT is not an element of the offence.
Ms Ruddle conceded, however, that there was no evidence that a prescribed device was used to conduct Ms Constable’s PBT and therefore that, were I to hold that compliance with s 53 was an element of the offence, the appeal would succeed. Further, Ms Ruddle did not argue that it was open to the magistrate to infer that s 53 had been satisfied. Nor did she seek to call in aid the presumption of regularity.[18] In my view, she was correct in conceding each of those three issues.
[18]As will be seen, Ms Ruddle’s submissions differed from those of her predecessor, Ms Parkes.
Consideration
The effect of s 49(1A)(c)
I am persuaded that the magistrate was in error in holding that s 49(1A)(c) of the RSA has the effect that the prosecution need not prove that a PBT was conducted by use of a prescribed device in order to make out an offence against s 49(1)(e).
Earlier, I extracted s 49(1A)(a). It is convenient to extract the same provision again now, along with s 49(1A)(c), so that the two paragraphs may be compared and contrasted more readily:[19]
[19]My emphasis.
(1A)A person may be convicted or found guilty of an offence under paragraph (c), (ca), (e), (ea) or (eb) of subsection (1) even if—
(a)in the case of an offence under paragraph (c), a prescribed device was not presented to the person at the time of the making of the requirement; and
…
(c)in the case of an offence under paragraph (e)—
(i)a breath analysing instrument was not available at the place or vehicle where the requirement was made at the time it was made; and
(ii)a person authorised to operate a breath analysing instrument was not present at the place where the requirement was made at the time it was made; and
(iii)the person requiring a sample of blood had not nominated a registered medical practitioner or approved health professional to take the sample; and
(iv)a registered medical practitioner or approved health professional was not present at the place where the requirement was made at the time it was made[.]
It appears that the magistrate drew two related conclusions about s 49(1A)(c)(i). The first was that the expression “the requirement” in that subparagraph refers to a requirement made under s 53. The second was that the terms “prescribed device” and “breath analysing instrument” are synonymous. Both conclusions are incorrect. Let me explain why.
As to the first of those conclusions, s 49(1A)(c)(i), in clear terms, is expressed to apply to an offence against s 49(1)(e) (as are ss 49(1A)(c)(ii), (iii) and (iv)). Section 49(1A)(a), considered in Alliston, in equally clear terms, is expressed to apply to an offence against s 49(1)(c). Section 49(1)(e) criminalises the refusal to comply with a requirement made under nominated subsections of s 55. Section 49(1)(c) creates the offence of refusing to comply with a requirement made under s 53. It would seem natural to assume, then, that the expression “the requirement”[20] in each of paragraphs (a) and (c) of s 49(1A) refers to a requirement made under the section to which that paragraph is expressed to apply. Indeed, in the case of s 49(1A)(a), it must be so. That is because “the requirement” to which s 49(1A)(a) refers can only be a requirement made under s 53, for a person charged with an offence against s 49(1)(c) has been subjected to only that one requirement. However, when regard is had to the terms of both s 49(1A)(c) and s 55, it is plain that “the requirement” set out in s 49(1A)(c)(i) is not a reference to a requirement made under s 53; rather, it can only be a reference to a requirement made vis-à-vis the furnishing of a sample of breath by a breath analysing instrument under s 55.
[20]My emphasis.
As to the second conclusion, s 55(1) refers to a “breath analysing instrument” being used to conduct a “breath … analysis” at a “place or vehicle” after a preliminary process — in the case of s 55(1)(a), a PBT under s 53 which indicates that a person’s breath contains alcohol — has run its course. Section 3(1) defines “breath analysing instrument” in terms of the types of apparatus that may be used under s 55. By contrast, s 53 refers to a the power of a member of a class of authorised persons to require a motorist to undergo a PBT “at any time”. Regulation 7 of the Road Safety (General) Regulations 2009 (Vic) prescribes which devices constitute prescribed devices for the purposes of s 53 of the RSA. Regulation 7, on the one hand, and s 3(1), on the other, specify different devices.
It seems clear, then, that s 49(1A)(c)(i) absolves the prosecution of the duty it would otherwise have to prove, in order to win a conviction for a s 49(1)(e) offence, that a “breath analysing instrument” — as opposed to a “prescribed device” — was available at the place or vehicle where the requirement under s 55 to undergo breath analysis was made. But, importantly for this case, it has nothing to say about whether it must be proved that a prescribed device was used to conduct the PBT following which the requirement under s 55(1) was made.
I say it appears that her Honour came to those conclusions about s 49(1A)(c)(i) because she did not explain how it was that particular provision had the effect she held it did. Supposing I am wrong in making that assumption and the magistrate was instead referring to any of subparagraphs (ii) through (iv), I cannot see how it is possible that any of those subparagraphs could have the effect of relieving the prosecution from its duty to prove that the PBT was conducted using a prescribed device.
The reasoning in the s 49(1)(f) cases applies to s 49(1)(e)
Central to Mr Hardy’s argument was the claim that the reasoning in Sirajuddin applies to offences under s 49(1)(e). That decision, however, stands for the proposition that the principle that the prosecution must prove that a PBT was conducted pursuant to s 53 in order to establish an offence against s 49(1)(f) has the upshot that the prosecution must lead evidence about the type of device used to administer the PBT.[21] The extant principle — namely, that the prosecution must prove that a PBT was conducted pursuant to s 53 in order to secure a conviction under s 49(1)(f) — was established prior to Sirajuddin, in Smith v Van Maanen (“Van Maanen”)[22] and DPP v Webb (“Webb”).[23] The real question, then, is whether the reasoning in those two decisions is applicable to s 49(1)(e) as well.
[21]See Sirajuddin v Ziino (2005) 14 VR 689 at 697[46] (per Hargrave J).
[22]Smith v Van Maanen (1991) 14 MVR 365.
[23]DPP v Webb [1993] 2 VR 403. Those decisions have subsequently been approved of (see, for example, DPP v Foster [1999] 2 VR 643 at 653-654[34]-[35] (per Winneke P, with whom Ormiston JA and Batt JA agreed)).
In Van Maanen, Tadgell J held that proof that a PBT was conducted “pursuant to” s 53 is a “necessary [ingredient]” of an offence against s 49(1)(f).[24] That is because:[25]
It is obviously the breath analysis contemplated by s 55 that is referred to in s 49(1)(f), and the furnishing of a sample of breath for analysis referred to in s 49(1)(f) is that furnishing which is referred to in subs (1) of s 55. It follows, because the undergoing of a preliminary breath test under s 53 is a prerequisite to breath analysis under s 55, that it is necessary, in order to prove an offence under s 49(1)(f), that a preliminary breath test has been undergone as well as the furnishing of a sample of breath under s 55.
[24]Smith v Van Maanen (1991) 14 MVR 365 at 371 (per Tadgell J).
[25]Smith v Van Maanen (1991) 14 MVR 365 at 367 (per Tadgell J).
In Webb, after setting out the parts of ss 49, 53 and 55 relevant to the case before him, Ormiston J said the following:[26]
It is apparent from the juxtaposition of these provisions that compliance with both s 53 and s 55(1) is a necessary pre-condition for a conviction under s 49(1)(f) in that the prosecution must have validly required each of the breath tests permitted under s 53(1) or (2) and under s 55(1) …
Consequently compliance with these sub-sections is not merely a question as to the admissibility of the evidence of the tests which may be rejected on a discretionary basis if they have been illegally required: it is an essential part of the case which the prosecution must make out. By s 49(1)(f) the first element of the offence to be established is whether the accused has furnished a sample of breath “under” s 55(1).
[26]DPP v Webb [1993] 2 VR 403 at 407 (per Ormiston J) (emphasis in original). See also DPP v Foster [1999] 2 VR 643 at 662[71] (per Ormiston JA).
It will be seen that their Honours’ reasoning is equally applicable to s 49(1)(e) offences. To adapt the language of Tadgell J in Van Maanen, it is obviously a requirement made under s 55 that is referred to in s 49(1)(e); and it follows, because undergoing a PBT under s 53 is a prerequisite to such a requirement being made, that it is necessary, in order to prove an offence under s 49(1)(e), that a PBT has been administered under s 53. Sections 49(1)(e) and (f) are cognate in that they both refer to actions being taken “under [s] 55”. In Webb, Ormiston J appeared to attribute to the words “under [s] 55” in s 49(1)(f) the effect that compliance with s 55 becomes an element of the offence. His Honour would later state, in DPP v Foster, that, in the context of s 49(1)(f), the word “under” had a meaning akin to the expression “in accordance with”.[27] Section 55(1) in turn makes reference to a PBT being conducted “under [s] 53”. I see no reason why that reasoning is not equally applicable to offences charged against s 49(1)(e).
[27]DPP v Foster [1999] 2 VR 643 at 663[72] (per Ormiston JA).
Two factors reassure me that I have arrived at the correct conclusion on this point. The first is that there is authority from this Court supporting the same conclusion. For example, there are the remarks of T Forrest J in Saric in 2013. His Honour declared (albeit in a footnote) that “[t]he essential elements of a charge under s 49(1)(e)” (at least in that case) were as follows:[28]
[28]See Saric v Elliott [2013] VSC 509 at [27], footnote 32 (my emphasis). At the end of the list of elements, his Honour referred to DPP Reference No 2 of 2001 (2001) 4 VR 55.
1. That the defendant has been found driving a motor vehicle;
2. That the defendant had undergone a preliminary breath test by a prescribed device pursuant to s 53(1) of the Act;
3. That a member of the police force had formed an opinion that the test made in his presence indicated that the defendant’s blood contains alcohol;
4. That the defendant has been required to furnish a sample of breath for analysis by a breath analysing instrument; and
5. That the defendant has refused to comply with that requirement.
Similarly, thirteen years earlier, in DPP v Collicoat (“Collicoat”), O’Bryan J said that the “five necessary ingredients of s 49(1)(e) to be proved by the prosecution” were these:[29]
[1] that the defendant had been found driving a motor vehicle or in charge of a motor vehicle; [2] that a preliminary breath test by a prescribed device has been undergone pursuant to subs (1) of s 53; [3] that a member of the police force has formed an opinion the test made in his presence indicates that the defendant’s blood contains alcohol; [4] that the defendant has been required to furnish a sample of breath for analysis by a breath analysing instrument and for that purpose required to accompany a member of the police force to a police station; and [5] that the defendant has refused to comply with the requirement.
[29]DPP v Collicoat (2000) 32 MVR 113 at 116[21] (per O’Bryan J) (my emphasis).
On an appeal to the Court of Appeal against O’Bryan J’s decision, in DPP Reference No 2 of 2001,[30] Charles JA (with whom Winneke P and Chernov JA agreed) extracted, without criticism (or, arguably, with express endorsement), this very statement of “the five ingredients necessary to be proved” in a charge under s 49(1)(e).
[30]DPP Reference No 2 of 2001 (2001) 4 VR 55 at 66[29] (per Charles JA).
Significantly, all three iterations of the elements of an offence under s 49(1)(e) — by T Forrest J, O’Bryan J and Charles JA respectively — state that there must be proof that the PBT was undergone “by a prescribed device pursuant to [s 53(1)]”.
The second consideration is that, as Mr Hardy pointed out, it would defy common sense if the prosecution were required to prove that a PBT had been conducted on a prescribed device in a situation where the accused complied with police, but not where the accused refused to do so. In fact, if it must be proved that a prescribed device was used to administer a PBT on a s 49(1)(f) charge, then a fortiori such proof ought to be required on a s 49(1)(e) charge. The mischief at which Part 5 of the RSA — the part of the Act in which ss 49, 53 and 55 feature — is “drink-driving” and “drug-driving”.[31] In the case of a s 49(1)(f) charge, there will be no finding of guilt, and no punitive consequences will follow, unless a motorist furnishes a sample of breath for analysis by means of a breath analysing instrument within the meaning of the RSA and that analysis returns a proscribed result. But in the case of a charge under s 49(1)(e), it is the motorist’s refusal to co-operate for the purposes of a breath analysis — whether by refusing to accompany police or otherwise — that is criminalised. A construction of s 49(1)(e) whereby the prosecution were not required to prove that a prescribed device was used, where necessary, would pose an increased risk of the conviction of perfectly sober motorists.
Respondent’s submissions cannot be accepted
[31]See s 47 of the Road Safety Act 1986 (Vic).
Though I have concluded that the reasoning in Van Maanen and Webb applies to the offence with which Ms Constable was charged, I will deal with Ms Ruddle’s submissions anyway.
As I see it, the fundamental problem with those submissions is that they fail satisfactorily to explain why the reasoning in the s 49(1)(f) cases should not be applicable to s 49(1)(e). If compliance with s 53 is an element of the offence where offences against s 49(1)(f) are concerned, why does the section act only as a “triggering mechanism” in the case of s 49(1)(e) offences? No plausible reason was given. Had the observation that s 49(1)(f) made specific reference to s 53 been accurate, there may have been an argument to be had that s 49(1)(e) was somehow relevantly different from s 49(1)(f). But it was not accurate.
Contrary to Ms Ruddle’s submission, it is neither here nor there that s 49(1A)(c) contains no provision relieving the prosecution of a requirement to prove that a prescribed device was presented to the motorist at the time the requirement to undergo a PBT was made. The inferential reasoning on which the submission rests is unsound. To argue from the fact that the hypothetical cognate provision would be otiose because the prosecution is not required to prove that a prescribed device was used, to the conclusion that the prosecution is therefore not required to prove that a prescribed device was used, is simply to presuppose that the prosecution is not required to prove that fact. One might just as validly argue that the reason for the omission of such a provision is that proof that a PBT was conducted on a prescribed device is an element of the offence, and that Parliament did not want to remove the duty to prove it that would otherwise obtain.
Finally, the idea that the prosecution must prove that s 53 was complied with (at least in the sense that it must adduce evidence sufficient to induce in the finder of fact “a level of satisfaction” to that effect), but need not do so beyond reasonable doubt, is troubling. Ms Ruddle did not point to any precedent for an offence with a triggering mechanism compliance with which must be proved to some lesser standard than that commonly applicable to criminal proceedings. It seems to me that compliance with s 53 is either an element of the offence, or it is not. And, if it is, it must be proved beyond reasonable doubt.[32] For the reasons given above, compliance with that section is an element of the offence with which Ms Constable was charged.
Prosecution failed to prove that prescribed device used
[32]Woolmington v DPP [1935] AC 462 at 481 (per Viscount Sankey LC).
If the reasoning in Van Maanen and Webb applies equally to s 49(1)(e), then the prosecution must prove that a PBT was conducted pursuant to s 53 in order to secure a conviction under s 49(1)(e). And if, following Sirajuddin, a PBT conducted pursuant to s 53 is a PBT “by a prescribed device”, then the prosecution must lead evidence that a prescribed device was used in order to show that the test was conducted pursuant to s 53.
Because there was no evidence before the Magistrates’ Court that the PBT was conducted using a prescribed device, the prosecution failed to prove the offence. It follows that Ms Constable’s appeal must succeed.
The presumption of regularity and inferential reasoning
It will be recalled that the prosecutor submitted to the magistrate that she should follow the decision in Chisholm and hold that, because the defence did not cross-examine on the issue of what device was used to administer the PBT, she was entitled to presume that the device was a prescribed device.
Ms Ruddle’s predecessor in this matter, Ms Parkes, who settled the respondent’s written submissions in this Court, made a similar — but not identical — argument. She submitted that a party wishing to establish appealable error in relation to a factual finding must demonstrate that there was “no evidence” to support the finding.[33] Justice Hayne’s decision in Chisholm had the result, Ms Parkes submitted, that, because Ms Hardy did not cross-examine S/C Armstrong about the device used to conduct the PBT, it was open for the magistrate to infer that, when S/C Armstrong used the expression “preliminary breath test”, she meant a PBT of the sort prescribed by the legislation.[34] Accordingly, in her submission, it was open, on the evidence before the court below, to find that a lawful PBT had been conducted.
[33]Ms Parkes relied upon O’Connor v County Court of Victoria (2014) 67 MVR 66 at 76[39] (per Kaye J).
[34]Ms Parkes relied upon Chisholm v Matthews (1992) 16 MVR 447 at 451 (per Hayne J).
Because Ms Ruddle abandoned her predecessor’s argument on the hearing of the appeal, it is, strictly speaking, unnecessary to consider these submissions. However, had I been required to consider arguments based on the presumption of regularity or Chisholm-type inferential reasoning, I would have rejected them.
First, resort to the presumption of regularity was misconceived. Justice Hayne in Chisholm expressly disclaimed any reliance on a presumption of regularity, and appeared to doubt whether such a presumption could apply in criminal proceedings.[35] Instead, his Honour’s reasoning depended upon an inference drawn from the evidence of the informant in that case. The informant gave evidence that he had said to the motorist, “I will require you to undergo a preliminary breath test,” and that the motorist “subsequently underwent a preliminary breath test”. His Honour considered that it was open for the magistrate to conclude — as he had in fact concluded — that the informant had used a prescribed device, because it was possible to find that the informant had been using the expression “preliminary breath test” as a “term of art” (i.e., that it meant something akin to “preliminary breath test under s 53”).[36]
[35]Chisholm v Matthews (1992) 16 MVR 447 at 451 (per Hayne J), citing Dillon v R [1982] AC 484 at 486-487; Mallock v Tabak [1977] VR 78 at 82-82; and Robertson v Smith (Nicholson J, 27 July 1983, unreported). The Court of Appeal has since held that the presumption of regularity has no role to play in proof of the fact that the breath analysing instrument used was a breath analysing instrument within the meaning of s 3(1) of the Road Safety Act 1986 (Vic) (see Impagnatiello v Campbell (2003) 6 VR 416 at 426[26]-[29] (per Eames JA, with whom Callaway JA and Buchanan JA agreed); see also McCardy v McCormack [1994] 2 VR 517 at 520-521 (per Eames J)).
[36]Chisholm v Matthews (1992) 16 MVR 447 at 451 (per Hayne J), citing Reeves v Beaman [1992] ACL Rep 425 Vic 13.
Secondly, since Chisholm was decided, the Court of Appeal has held that inferences of the kind upon which the reasoning in that case relied may not permissibly be drawn, on the basis that a process of reasoning which takes as its premise oral evidence to the effect that a test was carried out under a particular legislative provision, and concludes that the requirements in that provision were therefore complied with, is circular and/or amounts to mere speculation.[37]
[37]Impagnatiello v Campbell (2003) 6 VR 416 at 426[30]-428[31] (per Eames JA, Callaway JA and Buchanan JA agreeing).
Thirdly, as it happens, there was no evidence that the PBT was conducted on a prescribed device, as Ms Ruddle conceded.
Finally, the magistrate did not, in any event, make a factual finding to the effect that a PBT had been conducted using a prescribed device. Her Honour had no need to do so, for she considered that proof that a PBT was conducted on a prescribed device was not necessary in order to secure a conviction.
Conclusion
For these reasons, the appeal must be allowed on the first question of law. The upshot is that the finding of guilt recorded and the sentence imposed in respect of the offence charged in Charge 1 must be quashed and a finding of not guilty on that charge and a dismissal (on the merits) substituted.
An avoidable result
Evidence concerning the identity of a device used to conduct a PBT is technical or formal in nature.[38] Eliciting such evidence requires only one question and one answer. It is as easy as falling off a log. It is regrettable that a failure to adduce such evidence has led to the quashing of a finding of guilt that (subject to the undetermined questions of law) may otherwise have been perfectly safe.
Proposed orders
[38]See, for example, Daly v Karamoshos [2020] VSC 506 at [319].
Orders concerning appeal, s 49(1)(e) offence and sentence
Accordingly, as indicated earlier, I propose the following orders:
1) The appeal is allowed.
2) The finding of guilt recorded and the sentence imposed below on Charge 1 (refusal to accompany police to a station for a breathalyser test) are quashed.
3) Instead, Ms Constable is found not guilty on Charge 1 and that charge is therefore dismissed on the merits.
Orders concerning careless driving sentence
While the finding of guilt on careless driving was not challenged and must stand, it was accepted by both Mr Hardy and Ms Ruddle that, if it came to this point, there must be a resentencing on that offence. This is because, first, the sentence upon the careless driving was part of the aggregate fine for both offences; and, second, my second proposed order has the effect of quashing that part of the sentence as it applied to that particular offence as well.
While the conviction recorded on the careless driving may be regarded as a separate sentencing order that is unaffected by that second proposed order, I think that the better view is that the setting aside of the fine has the effect of reopening the sentencing discretion afresh on that offence. Lest I am wrong about that, I shall order separately that the sentence (and therefore the recording of a conviction) on that offence be set aside anyway, as I think that is the preferable course.
As troubling as Ms Constable’s driving was, it was hardly the worst example of careless driving. It was committed at relatively low speed. No-one’s safety appears to have been put at risk (perhaps apart from her own, at a low level).[39] And there was no dispute that Ms Constable was, in fact, doing no more than trying to move her car to a safer location for the night, albeit in a way that would make Lewis Hamilton and Max Verstappen feel quite unchallenged at the pinnacle of the world’s most capable drivers.
[39]While S/C Snee in his statement said that there were some people sitting on the footpath very near to where Ms Constable’s BMW struck the kerb, it was not suggested, and I am not prepared to infer, that any of those people were at risk of any harm.
In all the circumstances, having regard also to the personal matters put on behalf of Ms Constable in the Magistrates’ Court and reiterated by Mr Hardy in this Court (which I need not repeat here), on the careless driving charge, I think parsimony dictates a fine of $300, without conviction, and no interference with her licence to drive. I would fix a stay of two months in respect of payment of that fine.
Thus, the relevant additional orders will read in this way:
4) The sentence imposed below on Charge 2 (careless driving) is quashed.
5) Instead, Ms Constable is sentenced on the offence in Charge 2 to a fine of $300, without conviction.
6) Payment of the fine of $300 is stayed for two months from the date of this order.
Orders concerning costs
As for costs, I would be inclined to accept that they should follow the event. Accordingly, I propose the following further order:
7) The Chief Commissioner of Victoria Police is to pay Ms Constable’s costs, on a standard basis, in respect of:
a) the appeal to this Court; and
b) the hearing in the Magistrates’ Court (less any part of those costs in that court attributable to the plea of guilty to the charge of careless driving).
Timing of orders
I intend to make these orders seven days after publishing this judgment. Should either party wish to make submissions to the contrary, or as to the precise form of the orders, contact should be made with my chambers before that period expires.
---
0
12
0