Cook v Couacaud - [2016] VSC 791

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…

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 Cook v Couacaud

Details

AGLC: Cook v Couacaud [2016] VSC 791
Case: [2016] VSC 791
Decision Date: 20 December 2016

CaseChat Overview and Summary

In Cook v Couacaud, the appellant, Cook, was convicted in the Magistrates’ Court of Victoria for an offence under section 49(1) of the Road Safety Act 1986 (Vic), which prohibits driving a vehicle when the concentration of alcohol in the person's breath is 0.05 or above. The conviction was based on a breath test performed on Cook pursuant to section 55 of the Act. The central issue in the appeal was whether the police officer who required Cook to take the breath test had a 'reasonable belief' that Cook had offended against section 49(1) of the Act. This was crucial, as the Act stipulates that a police officer must have such a belief before requiring a breath test.

The legal issue before the court was whether the Magistrate correctly assessed the test for a reasonable belief and whether the Court or the police officer must consider the belief to be 'reasonable'. Additionally, the court examined whether the reasons for the reasonable belief must be given to the motorist. The court concluded that while the officer must express the fact that they hold a reasonable belief, no specific reasons need be given to the motorist. The court found that in this case, the officer failed to express that they held a reasonable belief, which was a critical error.

The court held that the Magistrate erred in assessing the test for a reasonable belief. The officer's failure to express that they held a reasonable belief meant that the test was not properly applied. Consequently, the appeal was upheld, and the conviction was quashed. The court emphasised that while no specific reasons need be given to the motorist, the officer must clearly express the reasonable belief to satisfy the statutory requirements.

Orders