DPP v Loftus - [2004] VSC 39

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 4961 of 2003

DIRECTOR OF PUBLIC PROSECUTIONS (On behalf of Kelly Leanne Ramsey)	Appellant
v
MICHAEL DAVID PETER LOFTUS	Respondent

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JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 June 2003
DATE OF JUDGMENT:	18 February 2004
CASE MAY BE CITED AS:	DPP v Loftus
MEDIUM NEUTRAL CITATION:	[2004] VSC 39

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Motor Vehicles – criminal law – road safety – breath test and blood alcohol – s.55(1) Road Safety Act 1986 – whether requirement to person to remain at breath testing vehicle need be made by the same police officer who required the person to furnish a sample of breath for analysis by a breath analysing instrument and by the same officer who required the person to accompany a police officer to the place or vehicle where the sample is to be furnished.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J. D. McArdle QC	K. Robertson, Solicitor for Public Prosecutions
For the Respondent	Mr G. Nash QC with Mr J. Lavery	Tony Danos and solicitors

HIS HONOUR:

This is an appeal pursuant to s.92 Magistrates' Court Act 1989 from a decision of a Magistrate at the Heidelberg Magistrates' Court on 17 February 2003 concerning the application of s.55(1) Road Safety Act 1986. The question of law for consideration, as stated in the Order of a Master of 19 March 2003, is:

"Following a preliminary breath test, can a Police Officer, other than the one who conducted same (and formed the opinion that it indicated that a person's blood contained alcohol) require the driver to remain for further testing under section 55(1) of the Road Safety Act 1986?"

The respondent, Michael David Peter Loftus, on 15 November 2001 was charged on summons as follows:

"The defendant at South Morang on the 19/08/2001, after having been required to have a preliminary breath test under Section 53 of the Road Safety Act 1986, and the test in the opinion of the member of the police force, in whose presence it was made indicated that his blood contained alcohol, he was then further required to furnish a sample of breath for analysis by a breath analysing instrument pursuant to section 55(1) of the said Act, and for that purpose he accompanied a member of the police force to the on-site booze bus, where the sample of breath is to be furnished he did refuse to remain there until he had furnished a sample of breath for analysis and been given a certificate in the prescribed form or until 3 hours had elapsed after driving."

The Informant was Constable Kelly Leanne Ramsey. The summons stated that the charge was laid under s.49(1)(e) Road Safety Act 1986. In essence that provision relevantly proscribes a driver refusing to comply with a requirement made under s.55(1).[1]

[1]Hrysikos v Mansfield [2002] VSCA 175 per Ormiston J.A. at [3].

Section 55(1) Road Safety Act 1986, the provision the subject of this…

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 Loftus

Details

AGLC: Director of Public Prosecutions v Loftus [2004] VSC 39
Case: [2004] VSC 39
Decision Date: 18 February 2004

CaseChat Overview and Summary

In the case of DPP v Loftus, the defendant, Mr. Loftus, was prosecuted for an offence under section 55(1) of the Road Safety Act 1986. The prosecution arose from Mr. Loftus' refusal to provide a breath sample for testing and his subsequent arrest and detention for the purpose of obtaining a blood sample. The case was heard and determined in the Supreme Court of Victoria.

The central legal issue before the court was whether the statutory requirement for a person to remain at a breath testing vehicle and for that person to accompany a police officer to the place or vehicle where the breath sample is to be furnished must be made by the same police officer who required the person to provide a sample of breath for analysis. The court had to interpret the language of the statute and consider the implications of the statutory provisions in terms of police procedure and the rights of the accused.

The court examined the statutory language and considered the purpose of the legislative provisions, which was to ensure a chain of custody and reliability of the evidence obtained. The court concluded that the requirement for the person to remain at the breath testing vehicle and to accompany the police officer to the place or vehicle where the sample is to be furnished could be made by a police officer other than the one who required the person to provide a sample of breath. The court held that the plain language of the statute did not mandate that the same officer must perform both tasks, and that the statutory purpose would be better served by permitting different officers to undertake these distinct functions. The court found in favour of the defendant, and the charges against him were dismissed.

The court did not make any further orders in the case, as the primary issue of the admissibility of the evidence obtained was resolved in favour of the defendant.

Orders