DPP v Luff - [2001] VSC 260

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7065 of 2000

DIRECTOR OF PUBLIC PROSECUTIONS (on behalf of JAMES MARTIN COLE)	Appellant
v
RORY EUAN LUFF	Respondent

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JUDGE:	Balmford J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 and 17 July 2001
DATE OF JUDGMENT:	2 August 2001
CASE MAY BE CITED AS:	DPP v Luff
MEDIUM NEUTRAL CITATION:	[2001] VSC 260

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Appeal by an informant under section 92 Magistrates’ Court Act 1989 - Offences under the Road Safety Act 1986 – driving with more than the prescribed concentration of alcohol – defence that breath analysing instrument was not properly operated – which party bears the onus of proof as to the operation of, and result obtained from, the breath analysing instrument - reading of blood alcohol level – proof by certificate under section 55 Road Safety Act 1986 – compliance with regulations.

Jurisdictional issues – determining whether the informant “wishes to appeal” pursuant to section 92(2) Magistrates’ Court Act 1989.

Justices Act 1958 – section 155.
Magistrates’ Court Act 1989 – section 92.
Road Safety Act 1986 – sections 49, 53, 55, 58.
Road Safety (Procedures) Regulations 1988 – Regulations 303, 304, 314.

Binting v Wilson (unreported, decided on 19 December 1989).
Dalzotto v Lowell (unreported, decided on 18 December 1992).
Day v Hunter [1964] VR 845
DPP v Hart (1992) 16 MVR 433
Furze v Nixon (2000) 32 MVR 547
Hess v Clarebrough (unreported, decided on 3 November 1982).
Matosic v Hamilton (1991) 13 MVR 171
Taylor v Armour [1962] VR 346

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms S Pullen	Solicitor for Public Prosecutions
For the Respondent	Mr P Billings	Wilmoth Field & Warne

HER HONOUR:

Introduction

This is an appeal under section 92 of the Magistrates’ Court Act 1989 (“the Magistrates’ Court Act”) from an order made on 6 September 2000 in the Magistrates’ Court at Melbourne dismissing two charges against the respondent under paragraphs 49(1)(b) and (f) respectively of the Road Safety Act 1986 (“the Act”).

The relevant provisions of the Act are sections 49, 53, 55 and 58, all of which appear in Part 5 of the Act, and the relevant portions of which read as follows at the time of the events giving rise to this proceeding:

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…

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 [2001] VSC 260
Case: [2001] VSC 260
Decision Date: 2 August 2001

CaseChat Overview and Summary

The case of the Director of Public Prosecutions (DPP) versus Luff was heard by the Magistrates’ Court of Victoria. The dispute concerned an offence under the Road Safety Act 1986, specifically the charge of driving with a blood alcohol level exceeding the prescribed limit. The defendant argued that the breath analysing instrument used to measure the blood alcohol level was not properly operated, which could have affected the result. The legal issues before the court included determining the burden of proof concerning the operation of the breath analysing instrument and the validity of the blood alcohol level reading. It was also necessary to establish whether the requirements of section 55 of the Road Safety Act 1986, which allows for proof of blood alcohol levels through a certificate, had been met in compliance with relevant regulations.

The court considered the jurisdictional matter of whether the informant had genuinely wished to appeal under section 92(2) of the Magistrates’ Court Act 1989. The court reviewed the relevant case law, including Day v Hunter, Taylor v Armour, and Matosic v Hamilton, among others, to understand the applicable legal principles. The court also examined the Road Safety (Procedures) Regulations 1988 to ensure the breath analysing instrument's operation met regulatory standards. The onus of proof was placed on the prosecution to demonstrate that the instrument was operated correctly and that the result obtained was accurate. The court found that the prosecution had failed to provide sufficient evidence to satisfy this burden, leading to the dismissal of the charge against the defendant.

In conclusion, the court determined that the prosecution had not met the required standard of proof concerning the operation and result of the breath analysing instrument. Consequently, the charge against Luff was dismissed, and the court ruled in favour of the defendant. The final order was that the charge of driving with more than the prescribed concentration of alcohol was dismissed due to insufficient evidence to prove the proper operation of the breath analysing instrument and the accuracy of the blood alcohol level reading.

Orders