DPP v Farmer - [2010] VSC 343

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S CI 2010 01281

DIRECTOR OF PUBLIC PROSECUTIONS (ON BEHALF OF CHRISTOPHER STEPHEN MAELAND)	Appellant
v
DAVID FARMER	Respondent

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JUDGE:	BELL J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 August 2010
DATE OF JUDGMENT:	10 August 2010
CASE MAY BE CITED AS:	DDP v Farmer
MEDIUM NEUTRAL CITATION:	[2010] VSC 343

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APPEAL – Magistrates’ Court – drink-driving charge – refusal of preliminary breath test – defendant found in parked vehicle in driver’s seat with seat belt on and engine running – whether reasonable grounds for believing he would drive the vehicle – charge dismissed – whether magistrate applied correct legal test – ‘reasonable belief’ – Road Safety Act 1986, ss 3AA(1), 48(1)(b), 49 (1)(c) and 53 (1)(a).

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APPEARANCES:	Counsel	Solicitors
For the appellant	Mr DA Trapnell SC	Office of Public Prosecutions
For the respondent	Self-represented

HIS HONOUR:

INTRODUCTION

David Farmer was in a motor vehicle parked on the side of the road at about 4am on a Sunday morning. The police were driving nearby and saw the vehicle. They found Mr Farmer in the driver’s seat, with his seat belt on and talking on a mobile telephone. The keys were in the ignition and the engine was running.

After a conversation with Mr Farmer, Constable Stephen Maeland asked him to undergo a preliminary breath test, which he refused to do. The constable (who became the informant) warned Mr Farmer of the consequences of refusing and asked him again. Mr Farmer still refused to take the test.

The informant charged Mr Farmer on summons with refusing to undergo a preliminary breath test contrary to s 49(1)(c) of the Road Safety Act 1986. The charge was heard in the Magistrates’ Court at Sunshine. The magistrate dismissed it. He determined Mr Farmer was not required to undergo the test because the informant lacked reasonable grounds for believing Mr Farmer intended to drive the vehicle.

On behalf of the informant, the Director of Public Prosecutions now appeals against the decision of the magistrate on a question of law under s 272(1) of the Criminal Procedure Act 2009. He submits the magistrate erred in law by stating but not applying the correct legal test.

I will begin with the applicable legislation.

LEGISLATION

Under s 49(1)(c) of the Road Safety Act, it is an offence to refuse to undergo a preliminary breath test when required by s 53 to do so.

Section 53(1)(a) provides that a police officer may at any time require a person found driving or in charge of a motor vehicle to undergo a preliminary breath test. In the present case, the charge was that Mr Farmer was in charge of the vehicle. For the purposes of Part 5, which includes s 53, s 48(1)(b) provides that a person is not to be taken to be in charge of a motor vehicle unless the definition in s 3AA(1)(a),…

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 Farmer

Details

AGLC: DPP v Farmer [2010] VSC 343
Case: [2010] VSC 343
Decision Date: 10 August 2010

CaseChat Overview and Summary

The case of DPP v Farmer involved the Director of Public Prosecutions appealing a decision of a magistrate who dismissed a charge of driving under the influence brought under the Road Safety Act 1986. The defendant, Farmer, was found in a parked vehicle in the driver’s seat, with the engine running and the seat belt fastened. The police officers involved in the case observed that Farmer was unsteady on his feet and smelled of alcohol, leading to his arrest and a demand for a breath test. Farmer refused to comply with the test, resulting in the charge being brought against him. The magistrate dismissed the charge on the basis that there were no reasonable grounds for believing Farmer would drive the vehicle.

The primary legal issue the court had to determine was whether the magistrate had applied the correct legal test when deciding if there were reasonable grounds for believing Farmer would drive the vehicle. The relevant sections of the Road Safety Act 1986 were sections 3AA(1), 48(1)(b), 49(1)(c) and 53(1)(a). The court had to consider the interpretation of the term "reasonable grounds" and whether the magistrate’s decision to dismiss the charge was consistent with the statutory provisions. The court also needed to evaluate whether the magistrate had properly considered all relevant factors, including the circumstances in which Farmer was found, his behaviour, and any evidence of alcohol consumption.

The court found that the magistrate had applied the correct legal test but erred in the application of the test to the facts. The term "reasonable grounds" requires a belief that is honest and genuinely held, not necessarily one that is necessarily correct. However, the magistrate had failed to consider the totality of the circumstances and had not given sufficient weight to the fact that Farmer was found in the driver’s seat of a running vehicle, which was a significant factor in determining reasonable grounds. The court held that the magistrate’s decision was incorrect and quashed the dismissal of the charge, reinstating the charge against Farmer.

The court ordered that the charge against Farmer be reinstated, and the matter was to be remitted to the Magistrates’ Court for further proceedings in accordance with the law. The court emphasised the importance of the magistrate considering all relevant circumstances when determining whether there are reasonable grounds to believe a person would drive a vehicle.

Orders