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DPP v Cummings

DPP v Cummings

Case [2006] VSC 327 11 September 2006

Criminal Liability

Mens Rea & Intention

Admissibility of Evidence

Criminal Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 8785 of 2005

DPP	Appellant
v
JOHN CUMMINGS	Respondent

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JUDGE:	KELLAM J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 May 2006
DATE OF JUDGMENT:	11 September 2006
CASE MAY BE CITED AS:	DPP v Cummings
MEDIUM NEUTRAL CITATION:	[2006] VSC 327

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CRIMINAL LAW – Motor traffic – Blood alcohol content of driver involved in an accident analysed in excess of .05 per cent – Whether “evidence to the contrary” adduced in relation to certificate signed by medical practitioner as to collection of sample can be adduced in the absence of an application for leave to cross-examine the maker of the certificate– Magistrates Court Act 1989 ss 57(2) (3)(7)(7A)

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R.J. Johnston	Solicitor to the Office of Public Prosecutions
For the Respondent	Mr T. Bourke	Simon and English

HIS HONOUR:

On 16 September 2005 a magistrate dismissed a charge against the respondent who had been charged with having a blood alcohol concentration exceeding 0.05% either at the time of or within three hours of driving a motor car. The Director of Public Prosecutions (“DPP”), on behalf of the informant in the matter, brings this appeal pursuant to s.92(1) of the Magistrates Court Act 1989.

Shortly before 6.25pm on Sunday, 17 October 2004 the respondent, John Cummings, was driving a motor vehicle in Albert Park. His car was observed by a witness to be weaving from left to right before it collided with a parked car and other stationary objects before coming to rest. The respondent suffered apparent injury sufficient for an ambulance to be called and for him to be taken to the Alfred Hospital. Before the ambulance left the scene the respondent was spoken to by the police who administered a preliminary breath test upon him. That test proved positive and a police officer accompanied the respondent in the ambulance to hospital.

At 7.30pm at the Alfred Hospital a medical practitioner, Dr West, took a sample of the respondent’s blood in the presence of the informant. Dr West filled out and signed a certificate of the taking of the blood sample in accordance with s.57(3) of the Road Safety Act 1986 (“the Act”).

Subsequent analysis of the blood sample taken by Dr West indicated a level of 0.205% blood alcohol concentration.[1] Subsequently the respondent was charged with having a blood alcohol concentration exceeding 0.05% present within three hours after driving a motor vehicle pursuant to s.49(1)(g) of the Act.
[1]The statement of the analyst as to the analysis of the blood sample was admitted into evidence before the magistrate without challenge.

The certificate signed by Dr West was served upon the respondent by it being delivered to him personally on 24 August 2005.

The proceeding came on for hearing before a magistrate on 16 September 2005. After leading evidence of the circumstances of the accident and the taking of the preliminary breath test, the prosecutor sought to…

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 Cummings

Details

AGLC: DPP v Cummings [2006] VSC 327
Case: [2006] VSC 327
Decision Date: 11 September 2006

CaseChat Overview and Summary

The case involved the Director of Public Prosecutions prosecuting Cummings for driving with a blood alcohol content exceeding the legal limit. The incident occurred when Cummings was involved in a car accident and was found to have a blood alcohol content of more than 0.05 per cent. The matter was heard in the Magistrates Court of Victoria. The primary legal issue was whether evidence to the contrary of a certificate signed by a medical practitioner regarding the collection of a blood sample could be adduced in the absence of an application for leave to cross-examine the practitioner. This question arose under sections 57(2), (3), (7), and (7A) of the Magistrates Court Act 1989.

The court considered the statutory framework and determined that the evidence to the contrary of the certificate could be adduced without an application for leave to cross-examine, as the certificate itself was not subject to the same evidentiary rules as witness testimony. The court held that the certificate's admissibility was not contingent on the opportunity for cross-examination, and thus, evidence challenging the certificate's accuracy could be presented. The court also noted that the absence of a cross-examination application did not prevent the presentation of contradictory evidence, as the certificate's contents were subject to scrutiny and refutation through other means.

The court's decision clarified the procedural aspects of challenging the admissibility of a medical practitioner's certificate in the context of a blood alcohol content prosecution. The ruling allowed for a broader examination of the circumstances surrounding the collection and analysis of the blood sample, ensuring that the defendant had a fair opportunity to contest the evidence presented against them. The outcome was a reaffirmation of the procedural safeguards in place to ensure justice in criminal proceedings involving blood alcohol content analysis.

Orders