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DPP v Greelish

DPP v Greelish

Case [2002] VSCA 49 27 March 2002

Road Safety Act 1986 ss.49(1)(e), 55(1), 55(9)

Criminal Liability

Refusal to provide breath sample

Requirement to accompany a member of the police force

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No.5720 of 2000

DIRECTOR OF PUBLIC PROSECUTIONS
	Appellant
v.
PETER EDWARD GREELISH	Respondent

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JUDGES:	PHILLIPS and BUCHANAN, JJ.A. and O'BRYAN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 March 2002
DATE OF JUDGMENT:	27 March 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 49

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Motor vehicles – Criminal Law – Road safety – Breath test and blood alcohol – Requirement to accompany a member of the police force to obtain a sample of breath – Whether a refusal of the requirement for a reason of substantial character is a defence - Road Safety Act 1986 ss.49(1)(e), 55(1), 55(9).

D.P.P. v. Foster [1999] 2 V.R. 643, applied.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P.A. Coghlan, Q.C. with Mr C.J. Ryan	K. Robertson, Solicitor for Public Prosecutions
For the Respondent	Mr O.P. Holdenson, Q.C.	Mahonys

PHILLIPS, J.A.:

I will ask Mr. Justice Buchanan to deliver the first judgment.

BUCHANAN, J.A.:

On the first day of spring 1999, police officers saw the respondent drive away from an RSL club. He was accompanied by his 8-year-old daughter whom he intended to take to his parents' house. When he was 500 yards from his destination, the respondent was intercepted by the police. The respondent underwent a preliminary breath test. The policeman who administered the test said to the respondent in the stilted manner of one following a statutory formula:

"In my opinion the result of the preliminary breath test indicates that your blood contains alcohol. I now require you to accompany me to the Altona North police station for the purpose of a breath test and to remain there until you have furnished a sample of your breath or have been given a certificate or until three hours after the time you were driving and in charge of this motor vehicle, whichever is the sooner. Are you prepared to accompany me?"

The respondent told the police that he would not allow anyone else to take his daughter to his parents' house. He refused an offer by the police to take the child to his parents' house in a police vehicle while the respondent followed in a divisional van. The respondent walked with his daughter to his parents' house and returned to the police officers, who informed him that he was too late and he would be charged.

Section 49(1)(e) of the Road Safety Act 1986 ("the Act") provides:

"A person is guilty of an offence if he or she .... refuses to comply with a requirement made under section 55(1), (2), (2A) or (9A) ... "

Section 55(1) provides, so far as is presently relevant:

"If a person undergoes a preliminary breath test when required by a member of the police force ... to do so and -
(a)the test in the opinion of the member ... in whose presence it is made indicates that the person's blood contains alcohol; ...

any member of the police force ... may require the person to furnish a sample…

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 Greelish

Details

AGLC: DPP v Greelish [2002] VSCA 49
Case: [2002] VSCA 49
Decision Date: 27 March 2002

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions versus Greelish, the Supreme Court of Victoria was tasked with examining the legalities surrounding the refusal of a breath test by the defendant under the provisions of the Road Safety Act 1986. The defendant, Greelish, was alleged to have driven under the influence of alcohol, leading to a police officer requesting a breath sample as part of the investigation. Greelish declined to provide a breath sample, citing reasons which he deemed substantial, thus prompting a challenge to the admissibility of the refusal as evidence of guilt.

The central legal issue before the court was whether a refusal to accompany a police officer to obtain a sample of breath, on the grounds that the defendant considered the request to be of substantial character, could be considered a defence under the statute. This issue required the court to interpret and apply sections 49(1)(e), 55(1), and 55(9) of the Road Safety Act 1986 in light of the facts presented and previous judicial precedents.

The court, in its reasoning, found that the statutory framework did not provide for a defence based on the subjective substantiality of the reasons for refusal. The court emphasised that the legislative intent was to ensure road safety by compelling drivers suspected of alcohol-related offences to comply with breath testing. The substantiality of the reasons for refusal was not a factor recognised by the legislation, and thus, the refusal itself constituted an offence under the Act. The court relied on the decision in D.P.P. v. Foster to support its interpretation of the statute, affirming that the defendant's reasons for refusal were irrelevant to the legal assessment of the offence.

The final orders of the court were that the defendant's refusal to accompany the police officer to provide a breath sample was deemed an offence under the Road Safety Act 1986, and the defendant was found guilty as charged.

Orders