DPP v Serbest - [2012] VSC 35

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
JUDICIAL REVIEWS & APPEALS LIST

No. SCI 2010 06181

IN THE MATTER OF an appeal on a question of law pursuant to s 272 Criminal Procedure Act 2009

DIRECTOR OF PUBLIC PROSECUTIONS (on behalf of Michael James HOWARD)	Appellant
v
ERHAN SERBEST	Respondent

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JUDGE:	ROBSON J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 November 2011
DATE OF JUDGMENT:	10 February 2012
CASE MAY BE CITED AS:	DPP v Serbest
MEDIUM NEUTRAL CITATION:	[2012] VSC 35

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JUDICIAL REVIEW – Preliminary breath test - Appeal from the Magistrates’ Court – Magistrate dismissed charges pursuant to s 55(1) and s 49(1)(e) of the Road Safety Act 1986 - Whether the Magistrate erred in finding that there was a requirement to prove a subjective understanding of the relevant section of the Act – Whether the relevant sections impose an obligation to accompany police officer for further breath test – Appeal allowed – Section 272 Criminal Procedure Act 2009; ss 55(1) and 49(1)(e) of the Road Safety Act 1986 referred to.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Dr S B McNicol	Solicitor for Public Prosecutions
No appearance for the Respondent

HIS HONOUR:

The appellant appeals to this Court under s 272(1) of the Criminal Procedure Act 2009 against final orders made on 19 October 2010 by a Magistrate, in the Magistrates’ Court at Dandenong, whereby her Honour dismissed a charge for the offence of refusing to comply with a requirement to accompany a police officer to a police station pursuant to s 55(1) of the Road Safety Act 1986 (the Act), and contrary to s 49(1)(e) of the same Act. The Magistrate also ordered that the Chief Commissioner of Police pay costs of the respondent, Erhan Serbest.

The incident

Mr Serbest, was charged with the following:

The accused, at Moorabbin on 06/12/2009 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 Moorabbin Police Station 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.

The evidence before the Magistrate was as follows. Constable Howard gave sworn evidence that on 6 December 2009, he was in a marked police car driven by Sergeant Bell when, at 3.40 am, he intercepted the accused in Nepean Highway, Moorabbin. There were two other male occupants in the accused’s car. Constable Howard had a conversation with the accused in the presence of Sergeant Bell and the two other occupants of the vehicle. The accused underwent a breath test, which was positive for alcohol. Constable Howard told the accused he had tested positive for alcohol. Constable Howard returned to the police vehicle to do some checks and then went back to the accused and asked him to return…

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 Serbest

Details

AGLC: DPP v Serbest [2012] VSC 35
Case: [2012] VSC 35
Decision Date: 10 February 2012

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions versus Serbest, the High Court was called upon to consider an appeal from the Magistrates' Court. The appellant, the Director of Public Prosecutions, sought to overturn a decision made by a Magistrate, who dismissed charges against the respondent, Serbest, pursuant to section 55(1) and section 49(1)(e) of the Road Safety Act 1986. The central issue in this case was whether the Magistrate had erred in their interpretation of the law, specifically concerning the requirement to prove that the respondent had a subjective understanding of the relevant sections of the Act. Furthermore, the court needed to determine whether these sections impose an obligation on the respondent to accompany a police officer for a further breath test.

The court considered the interpretation of sections 55(1) and 49(1)(e) of the Road Safety Act 1986, as well as section 272 of the Criminal Procedure Act 2009. The High Court found that the Magistrate had erred in their interpretation of the law, as the relevant sections do not require the prosecution to prove a subjective understanding of the Act on the part of the respondent. The court held that the relevant sections impose an objective obligation on the respondent to accompany a police officer for a further breath test, rather than requiring proof of a subjective understanding of the Act. Consequently, the High Court allowed the appeal, quashed the decision of the Magistrates' Court, and remitted the matter back to the Magistrates' Court for further consideration.

The final orders of the court were that the appeal be allowed, the decision of the Magistrates' Court be quashed, and the matter be remitted back to the Magistrates' Court for reconsideration in light of the High Court's findings. The court did not make any orders as to costs.

Orders