DPP v Mitchell - [2002] VSC 326

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 4437 of 2002

IN THE MATTER of an Appeal on a question of law pursuant to s.92 of the Magistrates' Court Act 1999

DIRECTOR OF PUBLIC PROSECUTIONS (on behalf of William Finlay Fleming)	Appellant
v
GLENN WILLIAM MITCHELL	Respondent

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JUDGE:	GILLARD J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 August 2002
DATE OF JUDGMENT:	14 August 2002
CASE MAY BE CITED AS:	DPP v Mitchell
MEDIUM NEUTRAL CITATION:	[2002] VSC 326

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MOTOR CAR – Alleged drink driving – Requiring driver to provide sample of breath – Alleged in charge – Prosecution’s proof under s.55(2) of Road Safety Act 1986.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms K. Judd	Office of Public Prosecutions
For the Respondent	Mr I. Alger

TABLE OF CONTENTS

Parties................................................................................................................................................... 2

The proceeding in the Magistrates' Court..................................................................................... 2

Magistrate’s Reasons......................................................................................................................... 6

Grounds of Appeal............................................................................................................................ 9

The Informant’s Proof..................................................................................................................... 11

Outcome of Appeal.......................................................................................................................... 19

HIS HONOUR:

This is an appeal from an order made by the Magistrates' Court of Victoria sitting at Bendigo on 18 January 2002, whereby a charge brought under s.49(1)(e) of the Road Safety Act 1986 was dismissed.

Parties

The appellant, the Director of Public Prosecutions (“DPP”), brings the appeal on behalf of the informant, Senior Constable William Finlay Fleming (“the informant”), pursuant to s.92(2) of the Magistrates' Court Act 1989.

The respondent to the appeal, Glenn William Mitchell (“the respondent”), was charged initially with five offences arising out of a series of incidents which occurred at Kangaroo Flat near Bendigo on 24 June 2000. Four out of the five charges were withdrawn, leaving a charge which alleged that the respondent breached s.49(1)(e) of the Road Safety Act 1986.

The documents were served on the Magistrates' Court of Victoria and this Court received correspondence from the Court acknowledging receipt. The Court did not place any material before this Court.

The proceeding in the Magistrates' Court

The respondent was charged with the following offence –

“At Kangaroo Flat on 24 June 2000 he being a person whom a member of the police force believed on reasonable grounds to have offended against s.49.1.b of the Road Safety Act 1986 and having been further required to furnish a sample of breath for analysis by a breath analysing instrument pursuant to s.55(2) of the Road Safety Act 1986 and for that purpose a requirement was made for him to accompany a member of the police force to a police station he did refuse to comply with such requirement to accompany prior to three hours elapsing from being in charge of a motor vehicle.”
(Emphases added).

The offence with which the respondent was charged in fact is an offence against s.49(1)(e) of the Act. It provides –

“(1)A person is guilty of an offence if he or she –
…
(a)refuses to comply with a requirement made under s.55(1), (2), (2A) or (9A); or”

It was alleged that the respondent breached s.55(2), in…

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 Mitchell

Details

AGLC: Director of Public Prosecutions v Mitchell [2002] VSC 326
Case: [2002] VSC 326
Decision Date: 14 August 2002

CaseChat Overview and Summary

The case of DPP v Mitchell involved the Director of Public Prosecutions as the plaintiff and Mitchell as the defendant. The dispute centred on allegations of drink driving. Mitchell was accused of operating a motor vehicle while under the influence of alcohol, specifically failing to provide a breath sample when required. The matter was heard in the Magistrates' Court of Victoria. The central legal issue was whether the prosecution could prove, beyond reasonable doubt, that Mitchell was in charge of a motor vehicle and had been required to provide a breath sample under section 55(2) of the Road Safety Act 1986. The court had to determine if the prosecution had sufficiently established the elements of the charge against Mitchell.

In considering the legal issues, the court examined the evidence presented to ascertain whether Mitchell was indeed in charge of a motor vehicle at the relevant time and whether he was required to provide a breath sample. The court scrutinised the testimony and any other evidence to evaluate if the prosecution's proof met the statutory requirements. The court assessed whether the prosecution had demonstrated that Mitchell had refused to provide a breath sample when required, as well as whether the statutory requirements were met for the charge under the Road Safety Act 1986. The court found that the prosecution had not provided sufficient evidence to prove the charge beyond reasonable doubt. The court concluded that the prosecution had not established that Mitchell was in charge of a motor vehicle when required to provide a breath sample.

Consequently, the court acquitted Mitchell of the charge. The court found that the prosecution had not met the burden of proof necessary to establish the elements of the charge under section 55(2) of the Road Safety Act 1986. The court ruled in favour of Mitchell, dismissing the charge against him due to the lack of sufficient evidence. This decision underscored the importance of meeting the statutory requirements and the burden of proof in criminal proceedings related to drink driving charges.

Orders