Director of Public Prosecutions v Riley - [2007] VSC 270

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5953 of 2006

DIRECTOR OF PUBLIC PROSECUTIONS (On behalf of Peter David McGuffie)	Appellant
v
ADAM STUART RILEY	Respondent

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JUDGE:	HANSEN J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 June 2007
DATE OF JUDGMENT:	26 July 2007
CASE MAY BE CITED AS:	DPP(Vic) v Riley
MEDIUM NEUTRAL CITATION:	[2007] VSC 270

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Motor vehicles – Criminal law – Road Safety Act 1986 s 49(1)(b) & (f) - Magistrate dismissed charges after exercising Bunning v Cross discretion to exclude evidence of breath analysis – Magistrate found that informant had acted excessively towards respondent – Whether other factors were, or were open to be, relied on as enlivening discretion to exclude evidence – Whether discretion enlivened on the facts – Whether open to exclude evidence – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr C J Ryan SC	Angela Cannon Solicitor for Public Prosecutions
For the Respondent	Mr R O’Neill	Robert Stary & Associates

HIS HONOUR:

This is an appeal on a question of law pursuant to s 92 of the Magistrates’ Court Act 1989 brought by the Director of Public Prosecutions (“the appellant”) on behalf of the informant, Detective Senior Constable Peter David McGuffie, against orders of the Magistrates’ Court at Sunshine made on 27 March 2006 dismissing two charges against Adam Stuart Riley (“the respondent”) under s 49(1)(b) and s 49(1)(f) of the Road Safety Act 1986 (“the Act”). The orders were made in consequence of the decision of the Magistrate to exclude evidence of the respondent’s breath test showing the concentration of alcohol in the respondent’s breath, on the basis that the informant had acted “excessively”. The Magistrate also made orders disposing of a further 13 charges, and from which there is no appeal.

The notice of appeal raises two questions of law, namely:

(a) whether the Magistrate erred when she excluded the evidence of the concentration of alcohol in the respondent’s breath on the ground that that evidence had been obtained unfairly or unlawfully; and

(b) whether the Magistrate erred when she invoked the Bunning v Cross[1] discretion to exclude the evidence of the concentration of alcohol in the respondent’s breath.

[1](1978) 141 CLR 54.

In seeking to uphold the Magistrate’s orders counsel for the respondent contended that there were several aspects of unlawful and/or improper behaviour by the police which attracted the discretion to exclude the subject evidence and that, in the circumstances of the case, it was open to the Magistrate to exercise the discretion so as to exclude the evidence and dismiss the charges.

Before referring to the submissions of counsel in greater detail, it is convenient to set out the background facts, as to which counsel were essentially agreed. I note that while the evidence and submissions were transcribed, there is no transcript of the Magistrate’s reasons for decision. However the appellant’s solicitor and the prosecuting police officer, Sergeant Jim Currell, swore affidavits in which…

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 Director of Public Prosecutions v Riley

Details

AGLC: Director of Public Prosecutions v Riley [2007] VSC 270
Case: [2007] VSC 270
Decision Date: 26 July 2007

CaseChat Overview and Summary

The matter involved the Director of Public Prosecutions prosecuting Riley for driving a motor vehicle with a concentration of alcohol in his breath exceeding the prescribed limit, contrary to the Road Safety Act 1986. The magistrate dismissed the charges after exercising the discretion under Bunning v Cross to exclude evidence of breath analysis, finding that the informant had acted excessively towards Riley. The prosecution appealed the magistrate’s decision to dismiss the charges, arguing that the discretion to exclude evidence was not enlivened on the facts and that it was not open to exclude the evidence.

The legal issues before the court were whether the magistrate correctly identified factors that could enliven the discretion to exclude evidence under Bunning v Cross, and whether it was open to the magistrate to exclude the evidence. The court had to consider the conduct of the informant and whether it was so oppressive as to enliven the discretion, as well as whether there were other factors that could have been relied upon to justify the exclusion of the evidence. The court also had to consider whether the magistrate’s decision to exclude the evidence was open to them, given the circumstances of the case.

The court found that the magistrate had not correctly identified the factors that could enliven the discretion to exclude evidence. While the informant’s conduct was excessive, the court found that it was not so oppressive as to enliven the discretion. The court also found that there were other factors that could have been relied upon to justify the exclusion of the evidence, such as the lack of proper identification of the informant and the failure to provide Riley with an opportunity to consult a lawyer before the breath test. The court held that the magistrate’s decision to exclude the evidence was open to them, given the circumstances of the case. However, the court found that the magistrate had not correctly exercised the discretion, as they had not properly considered all of the relevant factors.

The appeal was allowed, and the matter was remitted to the magistrate’s court for rehearing. The court held that the magistrate had not correctly identified the factors that could enliven the discretion to exclude evidence, and that they had not properly considered all of the relevant factors in exercising the discretion. The court found that the magistrate’s decision to exclude the evidence was open to them, but that it was not correctly exercised. The matter was remitted to the magistrate’s court for rehearing, with directions to consider the factors that could enliven the discretion and to properly exercise the discretion in light of those factors.

Orders