DPP v O'Rourke

[2006] VSC 150

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 1486 of 2005

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
HEATHER KATHLEEN O’ROURKE	Respondent

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JUDGE:	BELL J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 February 2006
DATE OF JUDGMENT:	27 February 2006
CASE MAY BE CITED AS:	DPP v O’Rourke
MEDIUM NEUTRAL CITATION:	[2006] VSC 150

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Criminal law – road traffic offences – driving under the influence – “prescribed concentration of alcohol” – “any concentration of alcohol” – elements of offence – particulars of offence – appeal – error of law - Road Safety Act 1986, ss 3(1), 49(1)(b) and (f), 52(2).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr C. Beale	Stephen Carisbrooke, Acting Solicitor for Public Prosecutions
For the Respondent	Mr W. Walsh-Buckley	Andrianakis (Stephen) & Associates

HIS HONOUR:

1. On 19 May 2005 a magistrate dismissed drink driving charges brought by the police against Heather O'Rourke.  The basis of his Honour's decision was that there was no evidence upon which Ms O'Rourke could be convicted of the charges brought against her.  His Honour upheld a no case submission made by counsel for Ms O'Rourke to that effect.

1. Drink driving is a serious social evil as counsel for the Director of Public Prosecutions, Mr Beale, correctly submitted.  There was evidence before the magistrate that Ms O'Rourke had been driving with a blood alcohol content of 0.175 per cent.  In the case before the magistrate it was not contended that that reading was inaccurate.  I view with considerable cause for concern the fact that Ms O'Rourke may have been driving with a blood alcohol content of that level. Nonetheless it is my duty, as it was the magistrate’s, to determine whether or not, on the case brought by the prosecution, she was capable of being convicted of the charges brought against her.

1. The first charge brought against Ms O'Rourke was:

"The defendant at Malvern East on 20/12/05 did drive a motor vehicle while more than the prescribed concentration of alcohol was present in her blood being any concentration of alcohol whatever (alleged reading 0.175)."

1. The charge and summons described this offence to be an offence against s.49(1)(b) of the Road Safety Act 1986. The offence was further described in the charge and summons in these terms:

"Drive while exceeding P.C.A. (.00 per cent) 86/127 s.49(1)(b)."

1. The second charge brought against Ms O'Rourke was:

"The defendant at Malvern East on 20/12/03 did within three hours after driving a motor vehicle, furnish a sample of breath for analysis by breath analysing instrument pursuant to s.55 of the Road Safety Act 1986 and the result of the analysis recorded or shown by the breath analysing instrument indicated that more than prescribed concentration of alcohol being any concentration of alcohol was present in her blood and the concentration of alcohol indicated by the analysis to be present in her blood was not due solely to the consumption of alcohol after driving or being in charge of the motor vehicle (alleged reading 0.175 per cent)."

1. This offence was described to be an offence against s.49(1)(f) of the Road Safety Act.

1. The prosecution was presented to the magistrate upon the basis that the offence was committed by Ms O'Rourke because, being the holder of a Z Licence, she had in her blood “any concentration of alcohol”. The prosecution therefore assumed that the prescribed concentration of alcohol mentioned in both of the charges was that specified in s.52(2) of the Road Safety Act.

1. Because the concentration of alcohol in this case was any concentration of alcohol, it was necessary to establish by legitimate proof the licence status of the person charged. A Z Licence is a kind of licence that comes within s.52 of the Road Safety Act, being that kind of licence to which there is attached a condition that the person cannot drive a motor vehicle with any concentration of alcohol whatsoever in their blood. 

1. The prosecution did not, in the case before the magistrate, provide admissible proof of the status of the licence of Ms O'Rourke.  Upon this basis her counsel made a submission that she could not be convicted of either of the two offences. This is the submission that was upheld by his Honour.

1. The Director of Public Prosecutions brought this appeal under s.92(1) of the Magistrates' Court Act 1989 on four questions of law. The first was that the magistrate erred in deciding that the respondent's licence status was a necessary element of the offences with which she had been charged. Counsel for the DPP maintain this ground of appeal. The second was that the conclusion of the magistrate that Ms O’Rourke’s licence status had not been established beyond reasonable doubt or at all was an error of law. This ground has been abandoned. The third was that Ms O’Rourke’s licence status could only be established through the tender of a certificate pursuant to s.84 of the Road Safety Act.  This ground has also been abandoned. The fourth ground was that the magistrate erred in law in upholding the no case submission.  This ground has been maintained.

1. I am left with two grounds upon which this appeal is being brought.  The first is that the magistrate erred in law in deciding that Ms O’Rourke’s licence status was a necessary element of the offences with which she had been charged.  The second is that the learned magistrate erred when he ruled at the conclusion of the prosecution case that there was no case to answer.

1. In essence there is one ground of appeal because the appeal turns entirely on whether the magistrate's conclusion that Ms O’Rourke’s licence status was a necessary element of the offences with which she had been charged was correct. 

1. The offences were brought under the combined operation of ss.49(1) and 52(2) of the Road Safety Act. Section 49(1) provides that a person is guilty of an offence if he or she does certain things specified in the various paragraphs of that sub-section. Section.49(1)(b) provides:

"A person is guilty of an offence if he or she drives a vehicle or is in charge of a motor vehicle while the prescribed concentration of alcohol or more than the prescribed concentration of alcohol is present in his or her breath."

Section 49(1)(f) provides:

"A person is guilty of an offence if he or she within three hours after driving or being in charge of a motor vehicle furnishes a sample of breathe for analysis by a breath analysing instrument under s.55 and the result of the analysis is recorded or shown by the breath analysing instrument indicates that the prescribed concentration of alcohol or more than the prescribed concentration of alcohol is present in his or her breath and the concentration of alcohol indicated by the analysis to be present in his or her breath was not due solely to the consumption of alcohol after driving or being in charge of a motor vehicle."

1. We can see that both s.49(1)(b) and s.49(1)(f) make mention of "the prescribed concentration of alcohol". The expression "prescribed concentration of alcohol" is defined in s.3(1) of the Road Safety Act to mean:

"(a)in the case of a person to whom s.52 applies, the concentration of alcohol specified in that section; and

(b)in the case of any other person, (i) a concentration of alcohol present in the blood of that person of 0.05 grams per 100 millilitres of blood ... "

1. Section 52 makes particular provision for what the prescribed concentration of alcohol is in the case of holders of Z licences. Section 52(2) provides that the “prescribed concentration of alcohol in the case of a person to whom this section applies is any concentration of alcohol present in the blood or breath of that person."

1. In the present case the police had available to them the option of charging Ms O'Rourke with an offence upon the basis that the prescribed concentration of alcohol was an amount in excess of 0.05 grams per 100 millilitre of blood as mentioned in paragraph (b)(i) of the definition of "prescribed concentration of alcohol" in s.3(1) of the Road Safety Act or upon the basis that the prescribed concentration of alcohol was "any concentration of alcohol" as mentioned in s.52(2) of that Act.

1. The prosecution was brought in the charge and summons, and conducted in the hearing before the magistrate, upon the basis that the prosecution was brought under the second of these two options.  This is quite clear from the terms of the charge and summons.  The words in the first charge are:  "… more than the prescribed concentration of alcohol was present in her blood being any concentration of alcohol whatsoever."  In the second charge the words are the same.

1. It is impossible to read the description of the charge in the charge and the summons in any other way. In the case of the first charge, that is the charge against s.49(1)(b), the nature of the charge is further clarified by the added words: "drive whilst exceeding BCA (.00 per cent) 86/127 s.49(1)(a)."

1. The question that has been agitated before me by Mr Beale on behalf of the Director of Public Prosecutions is whether or not the inclusion of the words "being any concentration of alcohol whatever" have been included merely by way of particulars rather than by way of elements of the offence.  Mr Walsh-Buckley, counsel for Ms O'Rourke, contends that the words that I have just mentioned constitute elements of the offence and not just particulars.

1. The question whether or not the fact that Ms O'Rourke was alleged to have "any concentration of alcohol whatsoever" in her blood is an element of the offences with which she was charged is to be ascertained by reference to the legislation creating the offences. It is necessary to read s.49(1)(b) and (f) together with s.3(1), which defines "prescribed concentration of alcohol", and s.52(2), which deals with offences of the category with which Ms O'Rourke was charged. It is not possible to ascertain from s.49(1)(b) and (f) alone what are the elements of the offences that may be applicable in circumstances such as the present. The words "prescribed concentration of alcohol" in s.49(1)(b) and (f) have to be understood in the context of the meaning that the definition of "prescribed concentration of alcohol" in s.3(1) and the words "the prescribed concentration of alcohol" in s.52(2) give to that expression.

1. So construed it is clear that, where the prosecution specifies in a charge and summons that the nature of the charge is that the prescribed concentration of alcohol is as mentioned in s.52(2) of the Road Safety Act, namely "any concentration of alcohol", it is an offence of that nature that is being brought against the defendant.

1. For these reasons I must reject the contention that the inclusion of the words "being any concentration of alcohol whatsoever" was a matter of mere particulars.

1. In my view, the magistrate was correct to uphold the no-case submission for the reason that the prosecution had been brought upon the basis that it was an element of the offence that the accused had driven, whilst in possession of a licence with a Z condition attached, with "any concentration of alcohol" present in her blood.  Therefore, I dismiss the appeal.

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