DPP v Jamieson - [2001] VSC 366

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5594 of 2001

DIRECTOR OF PUBLIC PROSECUTIONS (On behalf of Timothy Joseph Lambourne)	Appellant
v
JAMES REID JAMIESON	Respondent

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JUDGE:	Balmford J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 September 2001
DATE OF JUDGMENT:	5 October 2001
CASE MAY BE CITED AS:	DPP v Jamieson
MEDIUM NEUTRAL CITATION:	[2001] VSC 366

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Appeal by the Director of Public Prosecutions under section 92 Magistrates’ Court Act 1989 against an order of the Magistrates’ Court which dismissed two charges against the respondent under the Road Safety Act 1986 – the certificate of medical practitioner of the taking of a blood sample – the content of certificates under section 57(3) Road Safety Act - whether the certificate complied with provisions under the Road Safety (General) Regulations 1999 and the Road Safety Act.

PROCEDURE – Amending the term of a question of law formulated by a previous court.

Interpretation of Legislation Act 1984– section 35
Magistrates’ Court Act 1989 – section 92
Road Safety (General) Regulations 1999 – regulations 103, 105, 204 - 206
Road Safety Act 1986 – sections 47©, 49(1)(b)(g), 55(9A)(b), 57(2)(3)

Bregazzi v Kilby (unreported, decided on 18 October 1996)
Novacic v Cooper (1973) 1 ACTR 99
Pettet v Readiskill [1999] VSC 195
Popovski v Ericsson Australia Pty Ltd [1998] VSC 61
Sher v DPP (unreported, decided on 2 August 2001)

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms G Cannon	Solicitor for Public Prosecutions
For the Respondent	Mr P Reynolds	Voitin Walker Davis

HER HONOUR:

This is an appeal under section 92 of the Magistrates’ Court Act 1989 (“the Magistrates’ Court Act”) from a final order made on 3 April 2001 in the Magistrates’ Court at Melbourne dismissing two charges against the respondent under section 49(1)(b) and (g) respectively of the Road Safety Act 1986 (“the Act”).

On 1 June 2001 Master Wheeler ordered that the questions of law raised by this appeal are:

Did the Magistrate err in holding that the Certificate of Medical Practitioner of the taking of a blood sample (Exhibit AMC4 and TMcG-10 in these proceedings) (“the certificate”):
(a)did not comply with Regulation 206 of the Road Safety (General) Regulations 1999 (“the Regulations”)?
(b)did not by its terms, inter alia, state that the medical practitioner who signed that document had complied with the requirements of [the Regulations]?
(c)was not admissible pursuant to section 57(3) of [the Act]?

The certificate bears an exhibit note from the Magistrates’ Court and it is clear from the transcript of the proceeding in that Court that the Magistrate did in fact admit the certificate into evidence. Ms Cannon, for the appellant, submitted, and Mr Reynolds, for the respondent accepted, that question (c) should be read with the insertion of the underlined words:
(c)was not admissible as a certificate pursuant to section 57(3) of [the Act]?

In Pettet v Readiskill [1999] VSC 195 I adopted a passage from the judgment of Ashley J in Popovski…

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 Jamieson

Details

AGLC: Director of Public Prosecutions v Jamieson [2001] VSC 366
Case: [2001] VSC 366
Decision Date: 5 October 2001

CaseChat Overview and Summary

The Director of Public Prosecutions (DPP) appealed against a Magistrates’ Court order that dismissed two charges against the respondent, Jamieson, under the Road Safety Act 1986. The appeal focused on the validity of the certificate of a medical practitioner related to a blood sample taken from the respondent, questioning whether the certificate complied with the provisions of the Road Safety (General) Regulations 1999 and the Road Safety Act. The Magistrates' Court had ruled that the certificate did not meet the legal requirements, leading to the dismissal of the charges.

The central legal issue was the interpretation and application of the Road Safety Act 1986 and the Road Safety (General) Regulations 1999, particularly the requirements for the content of a medical practitioner’s certificate regarding the taking of a blood sample. The court needed to determine whether the certificate provided by the medical practitioner satisfied the statutory and regulatory conditions necessary to sustain the charges against the respondent.

In addressing the appeal, the court reviewed the legislative provisions and relevant case law, including Bregazzi v Kilby, Novacic v Cooper, Pettet v Readiskill, Popovski v Ericsson Australia Pty Ltd, and Sher v DPP. The court found that the content of the certificate did not align with the requirements set out in the legislation and regulations. Consequently, the Magistrates' Court's decision to dismiss the charges was affirmed. The court upheld the dismissal, concluding that the statutory and regulatory provisions were not satisfied by the certificate in question.

The appeal was dismissed, and the original order of the Magistrates' Court remained in place. The charges against Jamieson were upheld as not valid due to the non-compliance of the medical practitioner’s certificate with the statutory requirements.

Orders