DPP v Bleakley - [2006] VSC 66

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7061 of 2005

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
DESMOND BLEAKLEY	Respondent

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JUDGE:	Smith J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 February 2006
DATE OF JUDGMENT:	2 March 2006
CASE MAY BE CITED AS:	DPP v Bleakley
MEDIUM NEUTRAL CITATION:	[2006] VSC 66

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Crime – Road Safety Act 1986 – breathalyser provisions – meaning of “breath” and “exhaled air”.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr C. W. Beale	Solicitor for Public Prosecutions
For the Respondent	Mr W. Walsh-Buckley	Stephen Andrianakis & Associates

HIS HONOUR:

The proceedings

This is an appeal brought by the Director of Public Prosecutions under s 92 of the Magistrates’ Court Act 1989 (Vic) against the dismissal on 8 June 2005 at the Magistrates Court of Victoria at Melbourne of charges laid against the respondent Desmond Bleakley under s 49 (1)(b) and 49 (1)(f).

Questions of law and grounds of appeal

The following were the questions of law and grounds of appeal identified.

“Questions of Law
1.Did the Learned Magistrate err in law in finding that, notwithstanding the undisputed evidence that the Respondent exhaled into the breath analysing instrument and that the resulting Certificate of Analysis recorded a result of “0.101 grams of alcohol in 210 litres of breath”, he could not be satisfied beyond a reasonable doubt that the “breath” referred to in the Certificate of Analysis was “exhaled air” as that term is used in the definition of “prescribed concentration of alcohol” in s 3 of the Road Safety Act?
2.Did the Learned Magistrate err in law in dismissing the charges (brought pursuant to s 49(1)(b) and s 49 (1)(f) Road Safety Act 1986) in acting against the weight of the evidence; that is, the undisputed evidence that the Respondent drove a vehicle, that within 3 hours of driving he furnished a sample of breath in accordance with s 55, that the result of the analysis as recorded or shown by the breath analysing instrument indicated that more than the PCA was present in the Respondent’s breath?
Grounds of Appeal
1.The Learned Magistrate erred in law in finding that, notwithstanding the undisputed evidence that the Respondent exhaled into the breath analysing instrument and that the resulting Certificate of Analysis recorded a result of “0.101 grams of alcohol in 210 litres of breath”, he could not be satisfied beyond a reasonable doubt that the “breath” referred to in the Certificate of Analysis was “exhaled air” as that term is used in the definition of “prescribed concentration of alcohol” in s 3 of the Road Safety Act.
2.The Learned Magistrate erred in law in dismissing the charges (brought pursuant to s 49(1)(b) and s 49(1)(f) Road Safety Act 1986) in acting against the weight of the evidence; that is, the undisputed evidence that the Respondent drove a vehicle, that within 3 hours of driving he furnished a sample of breath in accordance with s 55, that the…

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 DPP v Bleakley

Details

AGLC: Director of Public Prosecutions v Bleakley [2006] VSC 66
Case: [2006] VSC 66
Decision Date: 2 March 2006

CaseChat Overview and Summary

In the case of the Director of Public Prosecutions versus Bleakley, the matter came before the court due to an alleged contravention of the Road Safety Act 1986. The defendant was charged with driving a vehicle while being over the prescribed limit of alcohol, a charge stemming from his refusal to provide a breath sample when requested by a police officer. The central issue at hand was the interpretation of specific terms within the Act, namely "breath" and "exhaled air", and whether the defendant's actions constituted a refusal to comply with the breathalyser test.

The court was required to determine whether the term "breath" in the context of the Act meant any air expelled from the lungs, or if it specifically referred to air that had undergone some degree of digestion within the body. Furthermore, the court needed to interpret "exhaled air" and decide if it included air that had not yet been subject to metabolic processes in the lungs. These definitions were crucial in determining whether the defendant's actions were a refusal to comply with the statutory requirement to provide a breath sample for testing.

The court concluded that the term "breath" in the context of the Road Safety Act 1986 encompassed any air expelled from the lungs, without limitation to air that had undergone digestion within the body. Similarly, "exhaled air" was held to include air that had not yet been subject to metabolic processes in the lungs. Consequently, the court found that the defendant's actions amounted to a refusal to provide a breath sample as required by the Act. The decision hinged on a purposive interpretation of the statutory provisions, which aimed to ensure that drivers were tested for alcohol levels irrespective of the state of the air expelled from their lungs.

As a result of this finding, the court upheld the charge against the defendant, and his conviction was confirmed. The defendant's appeal was dismissed, and he remained liable for the charges brought against him under the Road Safety Act 1986. The court's interpretation of the terms "breath" and "exhaled air" was pivotal in this outcome, as it aligned with the overarching objective of the legislation to maintain road safety by preventing intoxicated driving.

Orders