DPP v Luff - [2006] VSC 195

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6938 of 2005

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
(ON BEHALF OF JAMES MARTIN COLE)
v
RORY EUAN LUFF	Respondent

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JUDGE:	OSBORN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18, 19 May 2006
DATE OF JUDGMENT:	29 May 2006
CASE MAY BE CITED AS:	DPP v Luff
MEDIUM NEUTRAL CITATION:	[2006] VSC 195

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Appellant charged with having more than prescribed concentration of alcohol present in blood— Road Safety Act 1986, s49(1)(b) and s49(1)(f) – when driving or as shown by analysis within three hours after driving– whether machine operated correctly – did magistrate properly consider onus of proof under s.49(4) – Appeal allowed in part– whether matter should be remitted to same magistrate.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr. A. Tinney	Office of Public Prosecutions
For the Respondent	Mr. P. Billings	Wilmoth Field Warne

HIS HONOUR:

At approximately 12.30 a.m. on 5 December 1997 the respondent ("Luff") drove into a gate post in Osborne Street, South Yarra. Thereafter he was observed to be affected by alcohol. Following a preliminary breath test, a breath analysis was conducted at 3.07 a.m. at Prahran Police Station. The breath analysis produced certificates showing a blood alcohol concentration of 0.189%, being substantially in excess of the prescribed concentration.

Luff was charged with a number of offences including offences under s.49(1)(b) or (f) of the Road Safety Act 1986 ("the Act"). These sections then provided:

"49. Offences involving alcohol or other drugs
(1) A person is guilty of an offence if he or she -
…
(b)drives a motor vehicle or is in charge of a motor vehicle while more than the prescribed concentration of alcohol is present in his or her blood; or

…
(f)within 3 hours after driving or being in charge of a motor vehicle furnishes a sample of breath for analysis by a breath analysing instrument under section 55(1) and -
(i)the result of the analysis as recorded or shown by the breath analysing instrument indicates that more than the prescribed concentration of alcohol is present in his or her blood; and
(ii)the concentration of alcohol indicated by the analysis to be present in his or her blood was not due solely to the consumption of alcohol after driving or being in charge of the motor vehicle;

…"

When the matter came before the Magistrates' Court these latter charges were dismissed, although Luff was convicted of four other offences arising out of the incident.

On appeal to this Court, Balmford J set aside the orders of the Magistrates' Court[1] and on further appeal the Court of Appeal affirmed the decision of Balmford J.[2]
[1]DPP v Luff 34 MVR 78.
[2]Luff v DPP 39 MVR 277.

The matter came back to the Magistrate who had originally considered the matter for reconsideration in accordance with law on the basis of the evidence originally heard by her. She again dismissed the charges. The Director now appeals…

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 Luff

Details

AGLC: Director of Public Prosecutions v Luff [2006] VSC 195
Case: [2006] VSC 195
Decision Date: 29 May 2006

CaseChat Overview and Summary

In the case of the Director of Public Prosecutions versus Luff, the appellant was charged with having an alcohol concentration in his blood that exceeded the prescribed limit under sections 49(1)(b) and 49(1)(f) of the Road Safety Act 1986. The charges arose from an incident where the appellant's blood alcohol concentration was tested within three hours of him driving. The central dispute in this case was whether the machine used for the alcohol analysis was operated correctly and if the magistrate properly considered the onus of proof under section 49(4) of the Act.

The primary legal issues before the court were the correctness of the alcohol analysis machine's operation and the magistrate's handling of the burden of proof as per section 49(4). The court had to determine if the magistrate adequately assessed the evidence and the onus of proof in the context of the statutory provisions. Specifically, the court needed to examine whether the magistrate's decision was influenced by any errors in the operation of the alcohol analysis machine and if the legal standards for burden of proof were correctly applied.

The court found that there were procedural errors in the operation of the alcohol analysis machine, which led to an improper consideration of the evidence. Furthermore, the court determined that the magistrate did not correctly apply the onus of proof as required by section 49(4). As a result, the appeal was allowed in part. The court concluded that the matter should be remitted to the same magistrate for reconsideration, given the procedural errors identified and the need for a proper application of the burden of proof.

In conclusion, the court's decision in DPP v Luff highlights the importance of correctly operating alcohol analysis machines and properly applying the burden of proof in road safety cases. The appeal was allowed, and the matter was remitted to the same magistrate for re-evaluation, ensuring that all legal standards are correctly applied.

Orders