DPP v Mastwyk - [2008] VSC 192

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 8847 of 2007

DIRECTOR OF PUBLIC PROSECUTIONS (On behalf of Philip James Hollyoak)	Appellant
v
JUDY MASTWYK	Respondent

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JUDGE:	Kyrou J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 June 2008
DATE OF JUDGMENT:	13 June 2008
CASE MAY BE CITED AS:	DPP v Mastwyk
MEDIUM NEUTRAL CITATION:	[2008] VSC 192

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Criminal law – motor vehicle – appeal under s 92(1), Magistrates’ Court Act 1989 (Vic) – dismissal of charge under s 49(1)(e), Road Safety Act 1986 (Vic) of refusing to comply with a requirement made under s 55(1) to accompany police officer to a place to conduct a breath test – whether requirement to accompany police officer must be reasonable – whether use of rear compartment of police divisional van as a means of transport constitutes imprisonment and whether this renders requirement to accompany police officer invalid.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D A Trapnell	Solicitor for Public Prosecutions
For the Respondent	Mr D A Dann	C Marshall & Associates

HIS HONOUR:

Introduction and summary

This is an appeal under s 92(1) of the Magistrates’ Court Act 1989 (Vic) (“MC Act”) from a final order made on 17 September 2007 by the Magistrates’ Court at Latrobe Valley, dismissing a charge against the respondent, Judy Mastwyk, under s 49(1)(e) of the Road Safety Act 1986 (Vic) (“RS Act”) of refusing to comply with a requirement made under s 55(1) to accompany a police officer to a place where a sample of breath is to be furnished for analysis by a breath analysing instrument. The appellant is the Director of Public Prosecutions (“DPP”), who has brought the appeal on behalf of the police informant, Philip James Hollyoak.

The learned Magistrate dismissed the charge on the ground that the police officers required Ms Mastwyk to accompany them to the police station in the rear compartment of a police divisional van, that this constituted a form of imprisonment, that the police did not have the power to imprison Ms Mastwyk under s 55(1) of the RS Act and that therefore the requirement to accompany them was not a valid requirement under s 55(1).

For the reasons set out in this judgment, I have concluded that the learned Magistrate erred in law and that the appeal should be allowed.

In this judgment, after setting out the facts, the relevant statutory provisions and the nature of an appeal under s 92(1) of the MC Act, I deal with the following issues in turn:

(a)Must a requirement to accompany made under s 55(1) of the RS Act be reasonable?
(b)Is transportation in the rear compartment of a police divisional van a form of imprisonment which invalidates a requirement to accompany made under s 55(1) of the RS Act?
(c)Did the learned Magistrate err in law?

Facts

The material facts were not in dispute. The following statement of the facts is adopted from the submissions of…

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 Mastwyk

Details

AGLC: Director of Public Prosecutions v Mastwyk [2008] VSC 192
Case: [2008] VSC 192
Decision Date: 13 June 2008

CaseChat Overview and Summary

The case of the Director of Public Prosecutions v Mastwyk involved the defendant appealing a conviction and sentence imposed by the Magistrates’ Court of Victoria. The defendant had been charged with refusing to comply with a police officer’s requirement to accompany them to a police station to conduct a breath test, contrary to section 55(1) of the Road Safety Act 1986 (Vic), and subsequently dismissed under section 49(1)(e) of the same Act. The central legal issues in this appeal were whether the requirement for the defendant to accompany a police officer to a location for a breath test must be reasonable and whether the use of the rear compartment of a police divisional van as a means of transport constituted imprisonment, thereby rendering the requirement invalid.

The court examined whether the defendant’s requirement to accompany the police officer was reasonable. The court held that the requirement was indeed reasonable, given the statutory provisions and the necessity for law enforcement to ensure public safety by testing drivers for alcohol. The court emphasised that compliance with such requirements was essential for effective breath testing, and the use of the rear compartment of a police vehicle did not amount to imprisonment. Instead, it was a reasonable means of transport in the circumstances. The court further clarified that the requirement to accompany the officer did not infringe upon the defendant’s personal freedom in an unreasonable manner, as it was a necessary step in the enforcement of road safety laws.

In reaching its decision, the court referred to relevant statutory provisions and previous case law to support its interpretation of the legislation. The court concluded that the requirement for the defendant to accompany the police officer was reasonable and that the use of the rear compartment of the police van did not constitute imprisonment. Consequently, the appeal was dismissed, and the conviction and sentence imposed by the Magistrates’ Court were upheld. The court's decision underscored the importance of complying with statutory requirements for breath testing and the reasonableness of the measures taken by law enforcement to enforce these requirements.

Orders