Constable v Armstrong - [2021] VSC 335

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

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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

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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.

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Constable v Armstrong

Details

AGLC: Constable v Armstrong [2021] VSC 335
Case: [2021] VSC 335
Decision Date: 10 June 2021

CaseChat Overview and Summary

The appeal before the court was brought by Constable, the appellant, against Armstrong, the respondent. The dispute arose from a conviction in the Magistrates' Court of Victoria, where Armstrong was found guilty of refusing to accompany police to a station for a breathalyser test. The appeal was on questions of law, specifically addressing the conditions under which a preliminary breath test (PBT) must be conducted and whether there was sufficient evidence to prove that the PBT was conducted on a "prescribed device." Additionally, the appeal questioned the applicability of the presumption of regularity to the conduct of the PBT and the inferences that could be drawn from the evidence.

The legal issues before the court involved the interpretation of sections of the Road Safety Act 1986 (Vic) and the Road Safety (General) Regulations 2009 (Vic), as well as the application of the presumption of regularity and the burden of proof. The court had to determine whether the prosecution was required to prove that the PBT was conducted on a "prescribed device" and whether there was any evidence to support that the PBT was indeed conducted on such a device. The court also needed to consider the impact of the presumption of regularity on the evidence and the inferences that could be drawn from the circumstances of the case.

The court found that the prosecution did not meet its burden of proving that the PBT was conducted on a "prescribed device." The presumption of regularity did not shift the burden of proof to the respondent, and the evidence did not establish that the PBT was conducted on a prescribed device. Consequently, the court set aside the finding of guilt on the refusal to accompany offence and the sentence imposed thereon. Instead, the court substituted a finding of not guilty and dismissed the charge. The appellant was, however, resentenced on the careless driving offence, which was upheld by the Magistrates' Court. This decision highlights the importance of procedural correctness in the conduct of preliminary breath tests and the need for clear evidence to support the validity of such tests.

Orders