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DPP v Piscopo

DPP v Piscopo

Case [2011] VSCA 275 9 September 2011

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2010 0153

DIRECTOR OF PUBLIC PROSECUTIONS
	Appellant
v
JOSEPH PISCOPO	Respondent

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JUDGES:	ASHLEY, WEINBERG and TATE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 June 2011
DATE OF JUDGMENT:	9 September 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 275
JUDGMENT APPEALED FROM:	DPP v Piscopo [2010] VSC 498 (Kyrou J)

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CRIMINAL PROCEDURE – Dismissal of charge under s 49(1)(e), Road Safety Act 1986 (Vic) of refusing to comply with requirement made under s 55(1) to accompany police officer to a place to furnish a sample of breath – Nature of requirement under s 55(1) for the purposes of s 49(1)(e) – Whether trial judge erred in holding that requirement to accompany and remain under s 55(1) integral components of a single composite requirement – Whether judge erred in holding that motorist must be informed that he or she is required to accompany police officer to a place and to remain there until a sample of breath is furnished and certificate is given or until 3 hours after the driving, whichever is sooner – ‘To accompany’ and ‘to remain’ two discrete requirements with different content – Appeal allowed – Matter remitted to Magistrates’ Court for a conviction to be entered, and for determination of penalty.

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APPEARANCES:	Counsel	Solicitors
For the Director	Dr S McNicol	Office of Public Prosecutions
For the Respondent	Mr W J Walsh-Buckley	Anthony Gerard Isaacs`

ASHLEY JA:

The respondent, Joseph Piscopo, was charged with two offences allegedly committed on 13 September 2008. The first charge, to which he pleaded guilty at the Sunshine Magistrates’ Court on 13 July 2009, related to the respondent’s driving of a motor vehicle on a highway whilst disqualified, contrary to s 30(1) of the Road Safety Act 1986 (‘the Act’). The second charge, to which he pleaded not guilty, was that -

… at Delahey on 13/09/2008 having been required to furnish a sample of breath pursuant to section 55(1) 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 place namely Keilor downs Police Station he did refuse to comply with such requirement to accompany the member of the police force prior to three hours elapsing since the driving of a motor vehicle.

On 13 July 2009, a Magistrate dismissed the second charge.

The Director appealed to the Supreme Court, pursuant to s 92(1) of the Magistrates’ Court Act1989.

A judge of the Trial Division dismissed the appeal on 12 November 2010. Now the Director appeals by leave against that decision pursuant to s 17A(3A) of the Supreme Court Act 1986.

Grounds of Appeal

The proposed grounds of appeal are as follows:

1.The learned judge erred in law in holding that the requirement to accompany and the requirement to remain are not separate requirements under s 55(1) of the Road Safety Act1986 (Vic) but are integral parts or components of a single composite…

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 Piscopo

Details

AGLC: DPP v Piscopo [2011] VSCA 275
Case: [2011] VSCA 275
Decision Date: 9 September 2011

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions versus Piscopo, the defendant was charged under section 49(1)(e) of the Road Safety Act 1986 (Vic) for refusing to comply with a requirement made by a police officer under section 55(1) to accompany the officer to a location for the purpose of providing a breath sample. The dispute before the court centred on the interpretation of the statutory language and the obligations imposed on the defendant. The appeal was heard in the County Court of Victoria.

The primary legal issues for the court to determine were whether the trial judge correctly interpreted the statutory requirement under section 55(1) as being a single composite requirement, and if the judge properly required that the defendant be informed that they must both accompany the officer and remain at the location until the breath sample is provided or until three hours have elapsed after the driving. The defendant argued that the requirement to accompany and the requirement to remain are two separate obligations, each with distinct meanings and implications.

The court found that the trial judge had erred in considering the requirements of accompanying the officer and remaining at the location as a single, indivisible requirement. The court held that these were two discrete obligations with different contents, and that the statutory language supported this interpretation. Consequently, the trial judge's decision was incorrect, and the appeal was allowed. The matter was remitted to the Magistrates’ Court for the entry of a conviction and for the determination of penalty.

Orders