Donegan v Jordan

Case [2014] ACTSC 274


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Donegan v Jordan

Citation:

[2014] ACTSC 274

Hearing Date:

11 November 2013

DecisionDate:

24 October 2014

Before:

Penfold ACJ

Decision:

The appeal is dismissed.

Category:

Principal Judgment

Catchwords:

APPEAL AND NEW TRIAL – APPEAL – GENERAL  PRINCIPLES – Appeal against conviction – appellant prosecuted for failing to provide sample of breath for breath analysis – evidence led by prosecution did not include full description of device used to conduct preliminary alcohol screening test – proper conduct of alcohol screening test an element of the offence – no case submission – whether  Magistrate erred in allowing prosecution to re-open case to lead further evidence identifying device – no error by Magistrate – appeal dismissed.

CRIMINAL LAW – EVIDENCE – Miscellaneous Matters – whether, before defence goes into evidence, prosecution may be permitted to re-open case to lead evidence of formal matters omitted from case by inadvertence.

Legislation Cited:

Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 7, 8(1)(a)(i), 11,12(1), 22, 22(b), 22(d)

Road Transport (Alcohol and Drugs) Regulation 2000 (ACT), reg 2

Criminal Code (Queensland), s 29(2)

Cases Cited:

CDR (R) (1995) 78 A Crim R 572

Doney v The Queen (1990) 171 CLR 207
Henning v Lynch [1974] 2 NSWLR 254
Hiscox v Guildersleeve [2011] WASC 229
Killick v The Queen (1981) 147 CLR 565
Manyam v The State of Western Australia [2010] WASCA 107
O’Meara v The State of Western Australia [2013] WASCA 228
R v Chin (1985) 157 CLR 671
R v Soma (2003) 212 CLR 299
R v White (No. 6) [2012] NSWSC 470
R v Wilson (2005) 62 NSWLR 346

Wasow (1985)18 A Crim R 348

Texts Cited:

Cross on Evidence, (9th Aust ed, 2013), Heydon JD

Parties:

Wayne Donegan (Appellant)

Peter Jordan (Respondent)

Representation:

Counsel

Mr T Sharman (Appellant)

Ms S Gul (Respondent)

Solicitors

Sharman Lynch (Appellant)

ACT Director of Public Prosecutions (Respondent)

File Number:

SCA 57 of 2013

Decision under appeal: 

Court:  ACT Magistrates Court

Before:  Magistrate Morrison

Date of Decision:         29 July 2013

Case Title:  Jordan v Donegan

Court File Number:      CC12/6418

Introduction

  1. Wayne Donegan has appealed against a conviction for an offence contrary to s 22(d) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (the Act). The offence is committed if a person who has been the driver of a motor vehicle on a road or road related area is, in accordance with the Act, required to provide a sample of breath for breath analysis, and the person fails or refuses to provide a sample of breath in accordance with the reasonable directions of the police officer who made the requirement.

  1. The conviction was recorded on 29 July 2013 in the Magistrates Court, and on 30 July 2013 a notice of appeal was filed. The original notice specified two grounds of appeal, but only one is pursued, being that:

His Honour erred in allowing the prosecution to reopen its case.

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Donegan v Jordan [2014] ACTSC 274
Case
[2014] ACTSC 274
Decision Date

CaseChat Overview and Summary

Donegan v Jordan was an appeal against a conviction in the Magistrates' Court of Victoria. The appellant was prosecuted for failing to provide a sample of breath for breath analysis, an offence under the Road Safety Act 1986 (Vic). The central issue in this case was whether the Magistrate erred in allowing the prosecution to reopen the case to lead further evidence identifying the device used to conduct the preliminary alcohol screening test. The prosecution's case initially did not include a full description of the device, which was an element of the offence.

The court had to determine whether, before the defence presented its evidence, the prosecution could be permitted to reopen its case to provide evidence of formal matters omitted from its case by inadvertence. The court examined the principles governing the admission of further evidence in such circumstances and considered whether the Magistrate's decision to allow the reopening of the case was an error of law. The court concluded that the Magistrate did not err in permitting the prosecution to provide the omitted evidence, as it was necessary to establish a fundamental aspect of the offence. The appeal was dismissed, and the conviction was upheld.

The court's reasoning was based on the understanding that the proper conduct of the alcohol screening test was an integral part of the offence. Without a full description of the device used, the prosecution's case was incomplete. Allowing the prosecution to reopen its case to include this evidence was a permissible exercise of the court's discretion, as it was necessary for the completeness of the evidence. The court found that the Magistrate's decision did not constitute an error of law, and therefore, the appeal was dismissed. The conviction of the appellant was affirmed, and no further orders were made.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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