Cook v Couacaud
[2016] VSC 791
•20 December 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2015 02761
| GRANT COOK | Plaintiff |
| v | |
| CHRISTOPHER COUACAUD | Defendant |
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JUDGE: | LASRY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 26 October 2016 |
DATE OF JUDGMENT: | 20 December 2016 |
CASE MAY BE CITED AS: | Cook v Couacaud |
MEDIUM NEUTRAL CITATION: | [2016] VSC 791 |
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CRIMINAL PROCEDURE – Appellant convicted in Magistrates’ Court of offence under s 49(1) of the Road Safety Act 1986 (Vic) – Breath test was performed on appellant pursuant to s 55 of the Act – Police officer must have a ‘reasonable belief’ that the appellant had offended against s 49(1) of the Act – Whether officer’s belief was reasonable – Whether Magistrate erred in test for reasonable belief – Whether Court or police officer must consider belief to be ‘reasonable’ – Whether reasons for reasonable belief must be given to motorist – No reasons must be given – Officer must express the fact that he or she does hold a reasonable belief – No expression of reasonable belief – Appeal upheld.
WORDS AND PHRASES – ‘Reasonable belief’.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Peter J Billings with Anthony Murdoch | Patten Robins Lawyers |
| For the Respondent | Peter J Pickering | Solicitor for Public Prosecutions |
HIS HONOUR:
The question on this appeal is whether a member of Victoria Police (the respondent) lawfully administered a breath test to the appellant. In the circumstances of the case, this requires that the officer had a ‘reasonable belief’ that the appellant had offended against ss 49(1)(a), (b) or (bc) of the Road Safety Act 1986 (Vic) (‘the Act’) and that the appellant was informed by the respondent of the existence of that belief.
The appellant had been charged with two offences in the Magistrates Court on 29 April 2015. The first charge was under s 49(1)(b) of the Act, which provides that a person is guilty of an offence if he or she ‘drives a motor vehicle or is in charge of a motor vehicle while the prescribed concentration of alcohol or more than the prescribed concentration of alcohol is present in his or her blood or breath’.
The second charge was under s 49(1)(f) of the Act, which provides that 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 as 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…
The learned Magistrate found the appellant guilty of the offence under s 49(1)(f). The charge under s 49(1)(b) was struck out as an alternative. The appellant was convicted, his licence was cancelled for a period of three years and a fine of $3000 was imposed.
The appellant challenges that conviction on the basis that the breath test relied upon by the prosecution was not lawfully undertaken. If that submission is correct, the evidence was inadmissible and the basis of the prosecution’s case undermined. For the reasons which follow, the appeal should be allowed.
Section 55 of the Act allows a breath test to be undertaken in two situations. First, where a preliminary test has already been undertaken: s 55(1). Second, where a police officer ‘reasonably believes [a person] to have offended against section 49(1)(a), (b) or (bc)’ of the Act: s 55(2). No preliminary test was undertaken in this instance and s 55(2) is therefore the basis of the test.
The appellant argued that the Magistrate incorrectly approached the question of whether the respondent had a reasonable belief that there had been an offence against ss 49(1)(a), (b) or (c) of the Act. The Notice of Appeal states that the Magistrate’s decision was affected by error of law in the following ways:
(i) By concluding under the circumstances that the Appellant was open to conviction upon the said charge laid under Section 49(1)(f) of the Road Safety Act 1986.
(ii) By convicting the Appellant of the said charge.
(iii) By not ruling that under the circumstances:
(a) The Respondent did not possess the relevant belief required as an essential element of the charge and/or a condition precedent to the exercise of the power to require the Appellant to furnish a sample of breath under Section 55(2) of the Road Safety Act 1986; and/or
(b) The Respondent did not reasonably believe that the Appellant had offended against Section 49(1)(a) or (b) of the Road Safety Act 1986; and/or
(c) The Respondent did not believe that the Appellant had offended against Section 49(1)(a) or (b) of the Road Safety Act 1986; and
(d) That such belief was not reasonable; and/or
(e) There could be no satisfaction beyond reasonable doubt that the Respondent believed that the appellant had offended against Section 49(1)(a) or (b) of the Road Safety Act 1986; and
(f) There could not be satisfaction beyond reasonable doubt that such belief was reasonable.
When taken with the submissions advanced in oral argument, there are three basic questions for me to decide in this matter:
(a) Whether there was sufficient evidence for the respondent to form a reasonable belief.
(b) Whether the learned Magistrate was satisfied that the respondent’s belief was reasonable, or whether her Honour improperly deferred to the respondent on that question.
(c) Whether there was evidence before the Magistrate that the request for a breath test was properly made and communicated to the respondent.
For the reasons which follow, the appeal should be allowed on the basis that the request was not properly communicated to the respondent.
Factual background
The main witness at the Magistrates’ Court hearing was Jessie Lee Cook, the step-daughter of the appellant. Ms Cook gave evidence that she heard voices and a car honking its horn at around 6.00am on 22 February 2014. Ms Cook went out of the front door and says that the appellant’s Toyota van was in the driveway. Ms Cook said that she could see the that the appellant had one arm out of the window, with the other on the steering wheel. Ms Cook clarified in cross-examination and re-examination that this meant the appellant had his body in the window area of the car. Ms Cook was able to see the appellant’s face and heard the appellant’s voice.
The police were called to the property by Ms Cook’s sister. The respondent gave evidence that he was asked to attend the property at around 5.56am for a domestic violence incident. On his way to the property, the respondent was informed that the van had been honking its horn and had since driven away.
The appellant was in the driveway for around five to ten minutes, before reversing out of the driveway and leaving. The respondent later stated in evidence before the Magistrate that he believed that the appellant was driving at around 6.00am, as that is when the request for police assistance came.
The respondent arrived at the property at around 6.30am. The appellant was present and was arguing at the front of the property with Angela Cook, who is the mother of Jessie Lee Cook and the partner of the appellant. The respondent gave evidence before the Magistrate that he asked the appellant where his car was. The appellant replied that he arrived by taxi and had not driven. The respondent says that he told the appellant that he did not believe this answer. Counsel for the appellant conceded that it was a lie.
The respondent then went into the house and spoke with Jessie Lee Cook, from whom he also took a statement. Ms Cook told the respondent that the appellant had been sounding his horn in the driveway, had driven off and had since returned. Ms Cook also said that the appellant and Angela Cook had been at the pub the previous evening.
The respondent then formed the view that a Family Violence Safety Notice was required,[1] because of an allegation made by Jessie Lee Cook which is not relevant to this matter. The respondent informed the appellant that he had to accompany him to the Epping Police Station so that he could be served with a completed notice.
[1]Such a notice may be given under s 24 of the Family Violence Protection Act 2008 (Vic).
The respondent gave evidence that, as a matter of safety, he ‘patted down’ the appellant before he went into the police divisional van. The respondent found a Toyota car key in the respondent’s pocket during this search.
While the respondent transported the appellant to the police station, he called another police unit and asked them to look for the white van. The second unit was told that the van was sought in relation to a domestic violence incident. It was found around 280 metres from the Cooks’ house, in an open garage of a townhouse which was under construction. Photographs were taken in the van which included bottles of alcohol in the console.
The respondent served the appellant with the Family Violence Safety Notice at the police station. No questions were asked of the appellant in relation to that matter. The respondent then informed the appellant that he was required to remain for the purposes of a breath test. The respondent interviewed the appellant in relation to offences under the Act. During the interview, the respondent asked the appellant about whether he had been driving while under the influence of alcohol and recorded notes on a pro forma statement sheet. The respondent referred to those notes while giving evidence before the Magistrate, in accordance with s 33 of the Evidence Act 2008 (Vic).
Following this interview, the respondent required the appellant to undergo a breath test. That test was conducted at 7:52am and recorded an alcohol concentration of 0.181.
Before the Magistrate, the respondent was questioned about the basis for his reasonable belief before making requirements in relation to the breath test. The respondent stated in evidence that ‘[e]verything that’s in my notes is the basis for my reasonable belief’ that the appellant had committed an offence under the Act. The respondent also referred to information obtained from Jessie Lee Cook.
As will be evident from the discussion below, the appellant places weight on both the contents and order of the respondent’s notes. The pro forma notes referred to in the respondent’s oral evidence were taken on a Victoria Police form titled, ‘Operator as Informant Notes – Alcohol – General’. The form includes certain sections which have a ‘script’ for officers to use in certain situations. The form allows the operator to cross out certain irrelevant parts and to add information at other points.
Page two of the form includes a printed section which states that the respondent has ‘formed an opinion’ that the appellant has offended against either s 49(1)(a) or s 49(1)(b). The respondent in this case crossed out s 49(1)(a), indicating his intention to rely on s 49(1)(b). The form then instructs the operator to ‘Record basis for reasonable belief – observations of others / questioning etc’. Below this instruction, the respondent recorded the following notes:
Statement obtained from accused’s step-daughter that she observed him driving after a verbal altercation with her mother. Stated the accused continually honked the horn until her mother went outside and he reversed out of the street and headed West on Atwood St. I informed the accused he was directed to accompany me for the purposes of issuing a Family Violence Safety Notice. The accused complied and accompanied. At the stat[ion] I informed the accused he was also required to accompany me to a police station for a breath test until he receives a certificate of for 3 hours – from 6 am.
Pages six to eight of the form then list questions, to which answers are recorded by the respondent in writing. These include basic questions such as the appellant’s occupation, as well as questions about whether the appellant had been drinking alcohol, how much the appellant had drunk and when he had last drunk alcohol. Not all of the questions received an answer from the appellant.
On page nine, the pro forma text then states that ‘[t]he accused then furnished a sample of his … breath directly into an approved breath analysing instrument’. The alcohol concentration and other details are recorded.
Page 12 of the form, which is the final page, includes a box which is headed ‘Observations of Subject’. The pro forma text lists a number of items, with handwritten answers next to them as follows:
Eyes: Blood Shot
Breath: Smelled of Beer
Speech: Stuttered.
Demeanour: Agitated / Aggressive.
Appearance: Red in the face
Actions:
Any other observations:
Sufficiency of the evidence
The parties agree that there was no error in the learned Magistrate finding that the respondent had a reasonable belief that the appellant had been driving. However, this is not enough. The respondent must have:[2]
form[ed] a belief on reasonable grounds as to all the elements of the offence, and not leave all but one element to proof in court by evidence which might be unknown to the [police] member when the requirement [to accompany, remain or furnish a breath sample] is made.
[2]Mitchell v DPP (2004) 8 VR 192 at 198 [22] (Buchanan JA) (emphasis added).
The relevant offence in this respect must be one which enlivens the s 55(2) power to require a breath test. That is, one of ss 49(1)(a), (b) or (bc) of the Act. The offence relied on by the respondent in this case is that in s 49(1)(b). The elements of that offence include the appellant having more than the prescribed concentration of alcohol in his breath or blood while driving or in charge of a motor vehicle. The appellant argues that there was insufficient evidence before the learned Magistrate to find that the respondent had a reasonable belief about the level of alcohol in the appellant’s breath or blood while he was driving.
The appellant argues that the evidence as a whole was ‘clearly insufficient’ for the learned Magistrate to find that the respondent had the requisite reasonable belief. This is not a question of all of the facts known to the parties, but those which were placed before the Magistrate.
A number of authorities were cited to the Court as to what constitutes a ‘reasonable’ belief. The relevant principles are largely free from controversy. They were recently summarised by Kaye J in Halley v Kershaw.[3] Adapting the summary of his Honour for the issues in this case, those principles are as follows:[4]
[3][2013] VSC 439.
[4]Halley v Kershaw [2013] VSC 439 at [41].
(1)The informant should give specific evidence as to the belief which he or she formed in relation to the [appellant’s offending against s 49(1)(a), (b) or (bc)].[5]
(2)In addition, the informant should expressly state the basis upon which he or she formed that belief.[6]
(3)It is not necessary that the informant be satisfied of the particular fact on the balance of probabilities; rather, the informant must establish that he or she held the belief on reasonable grounds.
(4)Such a belief has been described as ‘an inclination of the mind towards assenting to, rather than rejecting, a proposition …’[7] In DPP v Farmer,[8] Bell J stated that a ‘belief is something more than suspicion but does not need to approach anything like certainty.’
…
(6)The question is not whether the court itself holds, or agrees with, the belief that the defendant intended to drive or start the vehicle. Rather, the question is whether the informant held such a belief, and whether the informant did so on reasonable grounds.[9]
[5]DPP v Farmer (2010) 56 MVR 137 at 140 [14]; DPP v Mitchell (2002) 37 MVR 142 at 149 [39].
[6]DPP v Farmer (2010) 56 MVR 137 at 140 [14]; DPP v Mitchell (2002) 37 MVR 142 at 149 [39].
[7]George v Rockett (1990) 170 CLR 104 at 116.
[8]DPP v Farmer (2010) 56 MVR 137 at 142 [34].
[9] Cf Walsh v Loughnan [1991] 2 VR 351 at 356.
The bases for the respondent’s belief were expressly put before the Magistrate. The question is whether or not they were sufficient to ground a ‘reasonable’ belief, being ‘something more than suspicion’ but not necessarily approaching certainty.[10] There must be ‘facts which are sufficient to induce that state of mind in a reasonable person’.[11]
[10]DPP v Farmer (2010) 56 MVR 137 at 142 [34].
[11]George v Rockett (1990) 170 CLR 104 at 112.
There was sufficient evidence before the Magistrate to find that the respondent’s belief was reasonable. The respondent stated that ‘everything’ in his notes was the basis of his reasonable belief, along with what he learnt from speaking to Ms Cook (some of which was also recorded in the notes). There is sufficient information in those notes for the respondent to have formed a reasonable belief.
It was not in dispute that the respondent was entitled to reasonably believe that the appellant had been driving. There was also sufficient evidence that the appellant had done so while under the influence of alcohol. So much is clear from the notes of the respondent and the information which he received from Ms Cook. These sources include the following information:
(a) The appellant had been at the pub prior to the altercation at the front of the house;
(b) The respondent observed the appellant to have blood shot eyes;
(c) The respondent observed the appellant to smell of beer;
(d) The respondent observed the appellant’s speech to be stuttered; and
(e) The respondent observed the appellant to be red in the face.
These observations are sufficient for a reasonable belief that the appellant had more than the prescribed amount of alcohol in his blood or breath. The respondent first spoke to the appellant when he arrived at the house, which was only shortly after he had been seen in the van at the front of the house. There were therefore reasonable grounds for a belief that the concentration of alcohol was higher than permitted at the time the appellant was driving the van.
The appellant attempted to exclude the respondent’s observations of the appellant as irrelevant to the question. This was on the basis of the order of the notes as they are recorded in the pro forma statement. As outlined earlier, the pro forma requires the basis for the reasonable belief to be outlined on page two. This is followed by a series of questions as to alcohol consumption on pages six through eight, and then the observations of the motorist’s appearance and demeanour on page twelve, after the test is administered. The appellant says that these observations were therefore made after the reasonable belief was formed and recorded. This means that the requirement to remain was improper – there was no basis for the reasonable belief at that time the requirements were made under s 55(2).
There are two reasons why this submission must be rejected. First, the respondent pointed to ‘everything’ in his notes as the basis for his reasonable belief. This was not confined only to those notes on page two.
Second, there is no reason why the progression of the pro forma statement necessarily governs when the respondent made his observations and the relevance of those observations to when his reasonable belief was formed. The respondent had been speaking with the appellant at the property and then accompanied him to the police station. There was ample opportunity to make those observations during that time. It is highly unlikely that the respondent noticed the smell of beer only when prompted by the pro forma questionnaire.
The observations of the respondent were sufficient to induce a state of mind in a reasonable person that the appellant had been driving with more than the prescribed concentration of alcohol in his blood or breath.
The approach of the Magistrate
The appellant also argues that the learned Magistrate approached the question of reasonable belief in the wrong way. The appellant says that the Magistrate deferred to the officer’s view of what constituted a ‘reasonable belief’, rather than being satisfied for herself that the belief was reasonable.
The appellant focuses on the following passage of the transcript of the Magistrate’s conclusions:
The main issue for me is the s.55 provision. That all revolves around the informant’s belief and whether that belief was a reasonable belief. I am satisfied on the evidence from the informant himself that he did hold a belief that you [the appellant] had offended under s.49(1)(b) of the Act. He doesn’t have to be satisfied beyond reasonable doubt to hold that belief, it just has to be a belief, and that is what the case law tells me. That evidence was contained in his written notes, which were tendered as his evidence.
Then the next part of it is that I am satisfied that he had that belief. The belief has to be reasonably held, as I said, not that he believed it beyond reasonable doubt. There is a big difference there. The case law also says that I need to hear express evidence of the basis of that belief, or I need to have that evidence expressly stated. The evidence that I have that is expressly stated is in those notes, in that pro forma document….
In this case, I am satisfied that there is expressed in that form the basis of his belief. Whilst the facts or the basis upon which he forms that belief are minimal in the sense that they talk about the altercation with your wife and the honking of the horn, it is not me that has to form a reasonable belief, it is the informant that has to form the reasonable belief and I find that they are sufficient, although minimal, they are sufficient for him to have formed a reasonable belief and therefore that s.55 has been complied with.
The appellant says that the learned Magistrate fell into error here. The appellant says that the Magistrate ‘appears in those comments to have assumed that … the respondent simply has to have a belief which is reasonable to him as opposed to whether or not … that belief is reasonable as a legal concept’. That is, the Court has to satisfy itself that the belief was reasonable, and the Magistrate fell into error in deferring to the respondent on that question.
The premise of the respondent’s argument is correct: the Court itself must be satisfied that the respondent’s belief was a reasonable one. This is not to say, however, that the Court must agree with the belief or hold that belief itself.[12] The question is simply ‘whether the informant held such a belief, and whether the informant did so on reasonable grounds’.[13]
[12]Halley v Kershaw [2013] VSC 439 at [41(6)].
[13]Halley v Kershaw [2013] VSC 439 at [41(6)].
There is no error disclosed in the Magistrate’s reasoning. The passage quoted above indicates that the learned Magistrate was herself satisfied that the belief was based on reasonable grounds. The final sentence in that passage states that ‘I find that [the facts] are sufficient … for him [the respondent] to have formed a reasonable belief’. As is clear from the introductory words (‘I find’), this is a finding of the Magistrate. The Magistrate herself accepted that the facts were sufficient for a reasonable belief. The Magistrate did not simply accept the respondent’s assertion that the belief was reasonable, but properly asked whether the evidence relied upon by the respondent did in fact provide reasonable grounds for such a belief.
Admissibility of the breath test
The appellant argued that the respondent was required to inform him of the basis of his reasonable belief when making any requirements under s 55(2). The appellant argues that this was not done and that the breath test was therefore unlawfully administered.
The appellant’s argument is based on the terms of s 55(2). That provision states, in full:
A police officer may require any person whom that police officer reasonably believes to have offended against section 49(1)(a), (b) or (bc) to furnish a sample of breath for analysis by a breath analysing instrument (instead of undergoing a preliminary breath test in accordance with section 53) and for that purpose may further require the person to accompany a police officer 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.
The appellant focuses on the words ‘and for that purpose may further require the person to accompany a police officer to a place or vehicle where the sample of breath is to be furnished’. In Mitchell v DPP, Buchanan JA held that:[14]
In my opinion a member of the police force who requires a person to accompany the member pursuant to s 55(2) is obliged to state the purpose of the requirement, namely, to obtain a sample of breath for analysis by a breath analysing instrument, and to disclose the circumstances which by law justify the requirement. Parliament has not said that a person is obliged to accompany a member of the police force whenever the latter desires to obtain a sample of breath for analysis but only where the member reasonably believes the person to have offended against s 49(1)(a) or (b). The belief which is the condition precedent to the exercise of the power should be asserted, although not necessarily in the statutory language. (Added emphasis)
[14](2004) 8 VR 192 at 198-9 [25] (Buchanan JA); see also 193 [3] (Callaway JA).
In this matter, the respondent’s notes state that ‘[a]t the stat[ion] I informed the accused he was also required to accompany me to a police station for a breath test’. The appellant says that Mitchell required the respondent to also put forward the bases of his reasonable belief. The failure to do so renders the test unlawful and there can be no conviction.
The respondent denies that the requirement in Mitchell is engaged in this case. He says that Mitchell is expressed to apply only where a person is required to ‘accompany’ an officer to a place. In this case, however, the appellant was already in the police station and had been properly taken there under s 14 of the Family Violence Protection Act 2008 (Vic) for the purposes of issuing the safety notice. He did not ‘accompany’ the respondent, but ‘remained’ where he was for the purposes of the test.
The respondent supports this contention by pointing to the principle behind s 55(2), which he says is concerned to ensure ‘that people aren’t simply abducted off the street and taken at the police whim’. That principle is not engaged where the appellant is not being required to go to any new place. The appellant’s liberty is said not to be infringed by agreeing to undertake a breath test when he is already present in the station.
The cases
Many of the cases which bear on this point (discussed below) concern either s 55(1) or s 55(9A). The principles governing these provisions can also sensibly be applied to s 55(2), provided that the statutory text remains paramount. Indeed, Mitchell itself derived its conclusion concerning s 55(2) from McCardy v McCormack,[15] which concerned s 55(1).
[15](1994) 2 VR 517.
The respondent is right to draw a distinction between the requirement to accompany a police officer to a place and the separate requirement to remain in that place. Winneke P drew this distinction in DPP v Foster.[16] In the course of his judgment, Winneke P noted that where a driver is already at the police station for a preliminary breath test, for example, ‘it would be pointless for the officer to exercise the power of requiring the motorist to accompany an officer to the place where he already is’.[17]
[16](1999) 2 VR 643 at 659 [56].
[17]DPP v Foster (1999) 2 VR 643 at 658 [50].
Buchanan JA adopted this distinction in DPP v Grealish,[18] finding that the power under s 55(1) of the Act involved up to four separate requirements:
[18](2002) 4 VR 220.
(i) a requirement to furnish a sample of breath for analysis by a BAI [breath analysing instrument];
(ii) a requirement to accompany the member to a police station or other place for the purpose of furnishing a sample of breath by a BAI;
(iii) a requirement to remain at the police station or other place until the sample of breath has been furnished and a certificate has been given; or
(iv) a requirement to remain there until three hours after the driving.
In DPP v Piscopo,[19] Ashley JA held that this statements were obiter. According to his Honour,[20] it had not been strictly necessary to decide ‘whether the requirement to accompany and the requirement to remain are conjoint or independent’ in either Greelish or Hrysikos v Mansfield (in which a refusal to remain was considered).[21] Nevertheless, Ashley JA agreed that there were indeed two requirements: one to accompany, and one to remain. The former is ‘spent once the person arrives at the specified place or vehicle’, though not necessarily ‘at the very moment of arrival’.[22]
[19](2011) 33 VR 182.
[20]DPP v Piscopo (2011) 33 VR 182 at 192 [38(11)].
[21](2002) 5 VR 485.
[22]DPP v Piscopo (2011) 33 VR 182 at 200 [56].
The respondent is therefore correct to say that Mitchell strictly applies only to the requirement to accompany. However, the respondent is wrong to distinguish Mitchell on the basis that the requirement to remain does not involve a restriction on liberty.
The cases clearly hold that the requirement to remain has an equal impact on the liberty of the citizen. In Piscopo, Ashley JA stated that ‘because refusal [of a requirement under s 55] … is an offence which carries substantial penalties, it has been recognised that accompanying and remaining involve some degree of restraint on liberty’.[23] His Honour noted the statement of Ormiston JA in Hrysikos v Mansfield that ‘a deprivation of liberty [is] implicit in the whole of the relevant provision [s 55]’.[24]
[23]DPP v Piscopo (2011) 33 VR 182 at 194-5 [38(12)].
[24]Hrysikos v Mansfield (2002) 5 VR 485 at 488 [5].
The principle in Mitchell applies to the requirement to remain under s 55(2).
However, the appellant’s submission should not be accepted: Mitchell does not require an officer to provide a motorist with the basis for his reasonable belief. Rather, Mitchell only requires that the ‘belief [of the officer] … be asserted’, not the reasons for that belief. The officer must assert the basis of his or her ability to make a requirement that the motorist undergo the breath test. That is, that the officer must assert that he or she has a reasonable belief that the motorist has committed an offence under s 49(1)(a), (b) or (bc). The reasons behind that belief need not be asserted.
This can be seen in the authorities relied upon by Buchanan JA in reaching his conclusion in Mitchell.
Buchanan JA referred to McCardy v McCormack, as well as what his Honour ‘conceive[d] to be the general law on the subject’.[25] The judgment in McCardy v McCormack expressly refers to a line of authorities on this question. Those cases demonstrate that there is no ‘obligation to inform’. Decisions since the time of McCardy v McCormack and Mitchell are to the same effect.
[25]Mitchell v DPP (2004) 8 VR 192 at 199 [25] n 4 (Buchanan JA).
In Dalzotto v Lowell,[26] the driver was required to accompany a police officer to a station after a preliminary breath test was positive. No reason was given for the requirement to accompany the officer. That is, the driver was not told that a further (‘evidentiary’) breath test needed to be performed at the station. Ashley J stated that:[27]
There is a point to the obligation imposed by s 55(1) upon a member of the police force to articulate the purpose for which he requires a member of the public to accompany him to a police station or other place. The member of the public is effectively being deprived of his or her liberty, albeit in a transitory way. In these circumstances the legislature has required the police officer to convey to a member of the public the purpose for which the requirement to attend the police station is being imposed.
[26]Unreported, Supreme Court of Victoria (Ashley J), 18 Dec 1992 [BC9200564].
[27]Unreported, Supreme Court of Victoria (Ashley J), 18 Dec 1992 [BC9200564] at 7.
His Honour held that the ‘likely circumstance that the appellant was aware why he was being required to accompany the informant to the police station does not stand in substitution for the duty to inform imposed by s 55(1)’.[28]
[28]Unreported, Supreme Court of Victoria (Ashley J), 18 Dec 1992 [BC9200564] at 9.
In McCardy v McCormack,[29] a driver was stopped and given a preliminary breath test which registered alcohol in the driver’s breath. The police officer then told the driver to ‘come with me’ and led her to the ‘booze bus’. No explanation was given as to why the driver was required to go to the booze bus.
[29][1994] 2 VR 517.
This was a prima facie breach of the principle in Dalzotto. The prosecution attempted to distinguish Dalzotto on the basis that the purpose of a booze bus is plainly obvious and that ‘the driver was taken a very short distance from her car to the bus; she was not asked to travel many miles in a police vehicle’.[30]
[30]McCardy v McCormack [1994] 2 VR 517 at 522.
While Eames J considered that these factors were ‘all of significance’, none ‘provide[d] a basis for distinguishing the judgment of Ashley J [in Dalzotto]’.[31] The supposedly lesser deprivation of liberty in this case did not warrant a departure from the general principle. In a passage requiring quotation at length, his Honour held that:[32]
While [the Magistrate] concluded that the appellant must have known the purpose behind the requirement, so too did [the police informant]. If the citizen is entitled to know the reason why, when not under arrest, she is being deprived of her liberty, it seems to me that this is an entitlement which must apply in all circumstances, not merely in those where the incidents accompanying the deprivation of liberty may be thought to be less transitory, or more intimidating, than in other circumstances. The citizen is entitled to know why such an event is happening, and what is entailed in the requirement that she be deprived of her liberty. While I understand why it might be inferred that the [driver] knew the purpose of the requirement, it was more than a request…. It was a command. The conclusions reached by a citizen as to the purpose of such a requirement may be quite wrong. The absence of a clearly stated reason for the requirement may lead to unnecessary disputation, perhaps even to an arrest on other grounds. There is good reason why the requirement should pertain at all times, and in all contexts. There is no justification for imposing any lesser obligation when the requirement is to accompany a police officer to an “other place”, than there is when the requirement relates to a police station. Certainly, once inside a “booze bus”, the citizen is no less confined and under the control of police officers than would be so in the case of removal to a police station, or even to a police car.
As is clear from this passage, Eames J concluded that the driver’s conviction could not stand.[33]
[31]McCardy v McCormack [1994] 2 VR 517 at 522.
[32]McCardy v McCormack [1994] 2 VR 517 at 522-3.
[33]McCardy v McCormack [1994] 2 VR 517 at 523.
McCardy v McCormack was the case cited by Buchanan JA in Mitchell in support of the proposition that ‘the belief which is the condition precedent to the exercise of the power should be asserted’.[34] Importantly for the submissions advanced by the appellant in this case, there is nothing in McCordy v McCarmack which requires reasons to be given.
[34]Mitchell v DPP (2004) 8 VR 192 at 199 [25].
The fact that McCardy v McCormack does not require reasons to be given was confirmed in the judgment of Hedigan J DPP v Constantinou.[35] In that case, Hedigan J noted in obiter that s 55(2) did not require the officer ‘to state grounds for his belief’.[36] This conclusion was based on his Honour’s findings as to s 55(1), rejecting an argument that reasons for a requirement must be given:[37]
The only specific pre-condition to requiring a person to furnish a sample of breath for analysis by breath analysing instrument is[,] for that purpose[,] to require the person to accompany the officer … and to form an opinion that the test indicates that the person’s blood contains alcohol. There is no provision in the Act for the opinion, much less on what the opinion was based, to be communicated…. One might speculate that the Act does not make any provision for notification of what the reason for the requirement and request to accompany because it will be self-evident, in most cases, that the reason for that is that the result or reading obtained from the preliminary breath test is positive. (emphasis added)
[35](1997) 27 MVR 120.
[36]DPP v Constantinou (1997) 27 MVR 120 at 128.
[37]DPP v Constantinou (1997) 27 MVR 120 at 127.
His Honour considered that it was wrong to read Dalzotto and McCormack as requiring the an officer to express the reasons for the choice to exercise the power. His Honour held that McCormack required only that ‘the driver had to be told what it is that is being required of him or her, that is an explanation that there will be an analysis of a sample of breath by a breathalyser’.[38] This is the ‘purpose’ of the restraint on liberty and it is that purpose which must be expressed to the motorist.
[38]DPP v Constantinou (1997) 27 MVR 120 at 127.
Hedigan J held that the respondent’s argument that reasons must be given was ‘based on a misunderstanding or misconception of what was decided in McCardy and Dalzotto’. The appellant has made the same error in this case.
Summarising what can be distilled from Dalzotto and McCardy, Hedigan J rejected a need to express reasons for a requirement under either s 55(1) or (2):[39]
In my opinion these cases are emphasising what the Act itself states, namely that the person has to be told the purpose for which they are being asked to accompany the police officer, namely to have a breath test at the police station or breath testing station. The Act says nothing about “why” and, if those statements were meant to convey that there had to be communicated the reason why the next step is being taken, I would be unable to agree with them. But in my view neither judgment so decides. The purpose for which the request to accompany is being made is to enable a breath test to be carried out. The reason for the request is the same. The introduction of phrases such as “why the request is being made” instead of, as the Act requires, focusing on the purpose for which the person is being asked to accompany the police officer, is an aberration and distracts from a correct consideration of the Act’s requirements. The “deprivation of liberty aspect” emphasises that in both of those cases the concern is that the citizen should be informed [of] what it is that was going to occur and the purpose of it occurring. It focuses on the future, not past events. That is why such phrases as “Come with me”, whether said politely or peremptorily, do not constitute a legal requirement to accompany because they convey nothing to the citizen as to what is next to occur.
The absence of any language in s 55(1) that the police officer has to state to the person taking the preliminary breath test either the a [sic] result of the test or the opinion held, surely a simple piece of drafting, points strongly to the absence of any legislative intent that it should occur. The statement of the request to accompany and the necessity to undergo a further breath test is prompted by the result of the preliminary breath test. The purpose of “requiring to accompany” (for the purpose of having a breath test) and the reason that prompted the requirement are different concepts. I note also that there are no words in s 55(2) (reasonable belief, without the aid of a preliminary breath testing device) that require the officer to state the grounds of his belief. (emphasis added)
[39]DPP v Constantinou (1997) 27 MVR 120 at 128.
Dalzotto, McCormack and Constantinou were all considered in DPP v Foster by Winneke P, with whom Ormiston and Batt JJA agreed.[40] To the extent that Dalzotto and McCormack did go further in requiring reasons, his Honour rejected such a requirement:[41]
The process of reasoning which seems to underlie those decisions stems not so much from an interpretation of the words “furnish a sample of breath for analysis . . . under s. 55(1)” but rather from an assumption that the legislative intent which lies behind s. 55(1) is to protect the interests of the motorist. This assumption has led the courts to construe more strictly the discretionary powers of “requirement” and to convert them into obligations, as distinct from powers. Thus it is said that the legislative purpose behind s. 55(1) is not to invest the police with a power to facilitate the objects of the statute, but rather to impose a “duty to inform” the motorist of the reason why his or her liberty is being curtailed: see, for example, Dalzotto v. Lowell … at 8-9; McCardy v. McCormack … at 522-3.
[40] (1999) 2 VR 643.
[41]DPP v Foster (1999) 2 VR 643 at 658 [52].
Winneke P noted that the provisions involved ‘an increased incursion into civil liberties’, but that this was a deliberate choice of the Parliament in order to pursue the ‘undisputed aim’ of the Act in community safety on the roads.[42] His Honour therefore concluded as follows:[43]
If, as I think, the underlying purpose of s. 55(1) is to invest the police with facilitative powers in order that these objects can be achieved, it cannot be correct to judicially convert that purpose from “a power to require” into a “duty to inform”.
Winneke P considered that the trial judge had been wrong to do so on the basis of Dalzotto and McCormack.[44]
[42]DPP v Foster (1999) 2 VR 643 at 658 [53].
[43]DPP v Foster (1999) 2 VR 643 at 658-9 [53].
[44]DPP v Foster (1999) 2 VR 643 at 659 [53].
In both Foster and Constantinou, an officer making a requirement of a motorist must state the purpose of the requirement. For example, ‘I require you to remain for the purposes of providing a breath sample for analysis’. The purpose is included in the request and informs the person why their liberty is being curtailed. It explains the requirements of the legislation. What does not have to be done, however, is to provide the reason behind that requirement.
In another light, however, Foster and Constantinou appear somewhat at odds. In Constantinou, Hedigan J considered that his decision was in line with the proper understanding of Dalzotto and McCormack. On the other hand, Winneke P in Foster considered his decision to be a correction from the errors into which those two cases had fallen.The two cases agree on the same principle, but disagree as to whether that principle was properly enunciated in Dalzotto and McCormack.
Whichever point of view is correct, the principle is not in doubt: the purpose of a requirement must be stated, but the reasons behind that requirement need not be.
The ‘general law on the subject’ has continued in the same direction since Mitchell. In Uren v Neale,[45] J Forrest J held that when making a requirement to remain in a place for a breath test, an officer must express the three-hour limitation on the right to remain.[46] This can be taken to be a part of the ‘purpose’ which must be expressed: the motorist must remain for three hours or so long as it takes to furnish a sample of breath. His Honour did not refer to any requirement to give reasons behind that requirement.
[45](2009) 53 MVR 57.
[46]Uren v Neale (2009) 53 MVR 57 at 80 [126].
The most recent consideration of these questions in the Court of Appeal came in DPP v Piscopo.[47] Ashley JA delivered the judgment of the Court, with which Weinberg and Tate JJA agreed. The driver in that case had been charged with a failure to accompany a police officer to a station for the purposes of a breath test under s 55(1) of the Act. The question was whether the driver had to be informed of the three-hour temporal limit when required to accompany the officer.
[47](2011) 33 VR 182.
The Court found that the requirement to accompany was separate to the requirement to remain, and that the three hour time limit applied only to the latter.[48] The driver had to be informed of the requirement to remain and the time limit only after having arrived at the police station. Ashley JA reviewed the authorities and expressed the following conclusion:[49]
I consider, in the event, that s 55(1) should be interpreted as meaning that, in every case where a requirement to remain must be stated—and in practical terms that will mean every case, because there will always be some time elapse between arrival at the specified place or vehicle and the furnishing of the (initial) sample — the requirement must specify its purpose and the temporal limit. So to conclude is consistent with [the principle of legality expressed in] Coco and, assuming its application, s 21(3) of the Charter. Such an obligation should not be confused with a general duty to inform — which was the notion rejected by Winneke P in Foster. Rather, it must be understood as a statement of relevant limitation upon the power conferred by s 55(1). In so far as Uren stands for the proposition that when a requirement to remain is stated, the statement of requirement must mention the three hour limit, I agree. But Uren should not be read as reviving more generally a duty to inform.
[48]DPP v Piscopo (2011) 33 VR 182 at 202 [71] (Ashley JA).
[49]DPP v Piscopo (2011) 33 VR 182 at 202 [66].
This is a clear rejection of the ‘duty to inform’ which the appellant seeks to promote in this case. All that is required is a specification of the purpose of the requirement and its limits.
Piscopo was heard together with DPP v Rukandin,[50] with reasons in the latter again being written by Ashley JA with Weinberg and Tate JJA agreeing. The questions in the case were largely the same as those in Piscopo: whether the requirement to accompany was distinct from that to remain, and whether the temporal limit applies to the former. Whereas Piscopo considered breath tests under s 55(1), however, Rukandin considered s 55(9A), which allows an officer to require a blood test of a motorist ‘if it appears to him or her’ that there are medical grounds or problems with a breath testing instrument which mean a blood sample is required.
[50](2011) 210 A Crim R 547.
Ashley JA held that ‘there is no relevant difference between the language of s 55(1) of the Act, which I considered in Piscopo, and the language of s 55(9A)’.[51] His Honour concluded the judgment as follows:[52]
I should add, albeit that it does not affect the outcome of this appeal, that although the evidentiary provisions respecting the blood test regime somewhat differ from those relating to the regime applicable to breath and other tests, I consider that the power to make a requirement to remain does entail stating both the purpose and the temporal limit.
His Honour did not refer to a need to give reasons.
[51]DPP v Rukandin (2011) 210 A Crim R 547 at 553 [7].
[52]DPP v Rukandin (2011) 210 A Crim R 547 at 553 [7].
In DPP v Novakovic,[53] Williams J cited the decisions in Foster and Piscopo for the following propositions:[54]
(h) a requirement “to remain” made under s 55(1) must specify its purpose and the applicable temporal limit in relation to its exercise;
(i) when exercising the power to require a person to furnish a breath sample under s 55(1), there is no general duty or obligation to inform the person about the further subsidiary (or machinery) powers under subs (1) to require the person “to accompany” or “to remain” for the purpose of satisfying the requirement to provide the sample of breath.
[53](2012) 225 A Crim R 468.
[54]DPP v Novakovic (2012) 225 A Crim R 468 at 478 [45].
Her Honour held that the police officer ‘was obliged to give [the driver] reasonably sufficient information to convey what he was being required to do [under s 55(9A)] and why’.[55]
[55]DPP v Novakovic (2012) 225 A Crim R 468 at 478 [46(2)].
Analysis
The authorities therefore reject an obligation on an officer to inform. A need to give reasons is not consistent with the rejection of an obligation to inform. An officer is obliged to state the purpose of a requirement and relevant limitations on that requirement (such as the three hour temporal limit).
As held in Constantinou, and confirmed by the cases following Foster, there is nothing in Mitchell which requires reasons to be given. The demand in Mitchell that ‘the belief which is the condition precedent to the exercise of the power should be asserted’ does not require the assertion of reasons: it requires assertion of the belief itself. That is, it requires an officer to state that they have a reasonable belief that the motorist has offended against ss 49(1)(a), (b) or (bc) of the Act and that the motorist must therefore remain for three hours or until a sample of breath is furnished. This is consistent with the cases on which Mitchell relies.
There is a further reason why Mitchell cannot require the giving of reasons. In Mitchell, Buchanan JA stated that the officer’s reasonable belief must be asserted, ‘though not necessarily in the statutory language’.[56] Implicit here is the possibility of using the statutory language if the officer wishes to do so. But how could the reasons behind a belief ever be stated in the statutory language? They are necessarily situational and therefore idiosyncratic. They are not capable of expression in ‘statutory language’. Buchanan JA could only have been referring to an officer expressing the fact of holding a reasonable belief, as part of the purpose of requiring a further restraint of liberty.
[56]Mitchell v DPP (2004) 8 VR 192 at 199 [25].
The concern for the liberty of the motorist is met by clearly outlining what is required of the motorist and the (statutory) purpose for which it is required. The reasons behind that requirement – including the reasons for the formation of a reasonable belief – need not be expressed when a requirement to remain is made.
The evidence
The respondent’s notes state that he required the appellant to ‘accompany’ him to the station for three hours or until a certificate was issued. However, this took place when the appellant was already at the station. The proper requirement was a requirement to ‘remain’, not to accompany. There was evidence before the Magistrate that a requirement to remain was, in fact, made by the respondent. This was asserted twice in the respondent’s oral evidence and it was therefore open to the learned Magistrate to find that a requirement to remain was made. In any event, the appellant ‘was given reasonably sufficient information to know what was required of him’.[57]
[57]Sanzaro v County Court of Victoria (2004) 42 MVR 279 at 284 [11].
The respondent also stated in evidence before the Magistrate that he required the appellant to remain for three hours or until a certificate was furnished. He therefore complied with the requirement in Uren v Neale, Piscopo and Rukandin that the temporal limit be stated.
The final question is whether there was evidence before the Magistrate that the respondent asserted that the requirement to remain was based upon his reasonable belief that the appellant had offended against ss 49(1)(a), (b) or (bc).
The respondent’s oral evidence before the Magistrate did not include any assertion that the reasonable belief was asserted by him to the appellant.
The only possible evidence on this point comes from the respondent’s pro forma notes. On pages four through six of those notes, there are a number of alternative warnings and requirements, to be used by officers depending upon the particular circumstances. At the bottom of page five, a box contains the proposed ‘script’ in cases where no preliminary breath test was conducted and the officer has formed a reasonable belief that the motorist has offended against s 49(1) of the Act. This includes the following text:
I said, * “I believe on reasonable grounds that you were driving a motor vehicle OR
* “I believe on reasonable grounds that you were in charge of a motor vehicle
* whilst exceeding the Prescribed Concentration of Alcohol OR
* whilst you were under the influence of intoxicating liquor or drug to such an extent that you were incapable of having proper control of the motor vehicle
I now require you to accompany me to a police station / the testing vehicle / (or nominate other place) ________ for the purpose of a breath test and to remain there until you have received 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?”
He/She said, “
*Delete where not applicable
This ‘script’ contains the necessary assertion that the officer has a reasonable belief. If the respondent followed this script, that would be sufficient evidence for the learned Magistrate to find that the reasonable belief was asserted. However, the respondent’s notes have the box crossed out (along with the other, inapplicable cautions). The words ‘On page 2’ have been written there. Page two of the notes, as described earlier, contains the respondent’s hand written summary concerning the basis for his reasonable belief and the requirement to undergo the test. However it does not include a ‘script’ complying with the requirement that the existence of the reasonable belief be asserted to the motorist, in this case the appellant.
This makes it unclear whether the respondent followed the script and asserted the fact that he held a reasonable belief, or whether he did not concern himself with that part of the script.
It is possible that the respondent did, in fact, read out that section despite having crossed it out in his notes. He did make the requirement to remain at the station in largely the same terms as the ‘script’ in that box. So much was established from the oral testimony. It is possible that this was done as a result of reading from that script and that the respondent also read the earlier parts about having formed a reasonable belief. However, at best, the evidence on that point is ambiguous. The words ‘On page 2’ suggest that the respondent may have dispensed with the text on page five, having considered the issue to have already been dealt with.
The learned Magistrate does not appear to have turned her mind to the question of whether the reasonable belief was asserted. This is understandable, as counsel’s submissions below focused on the erroneous interpretation of Mitchell which were dealt with above. The Magistrate was satisfied beyond reasonable doubt that the respondent held a belief and that his belief was reasonable. However, her Honour did not express an opinion on whether that belief was asserted to the respondent and that would be a matter about which she would need to be satisfied beyond reasonable doubt.
This was an error of law. The learned Magistrate was required to consider whether the belief was asserted by the respondent, but this question was not considered. The evidence on the point comes only from the notes, which do not provide a clear answer as to whether the belief was asserted. A proper request under s 55 is an element of the offence under s 49(1)(f).[58] In the circumstances, the respondent cannot be convicted of that offence. The appeal will be allowed.
[58]DPP Reference No 2 of 2001 (2001) 4 VR 55 at 64 [23] (Charles JA).
Orders
The orders will be as follows:
1. The appeal will be allowed.
2.The orders of the Magistrates Court made on 1 May 2015 will set aside.
3.The charge against the appellant under s 49(1)(f) of the Road Safety Act 1986 is dismissed.
4.The Respondent pay the costs of this appeal.
5. Liberty to the parties to apply.
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