DPP v Skinner - [2004] VSC 32

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5592 of 2003

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
LINCOLN JAMES SKINNER	Respondent

---

JUDGE:	NETTLE J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 February 2004
DATE OF JUDGMENT:	17 February 2004
CASE MAY BE CITED AS:	DPP v Skinner
MEDIUM NEUTRAL CITATION:	[2004] VSC 32

---

Criminal law – driving offence – failure to comply with requirement to provide sample of blood for analysis – validity of requirement – requirement dependent upon opinion that breath analysing instrument incapable of measuring concentration of alcohol in grams per 100 millilitres – whether opinion must be based on reasonable grounds – Road Safety Act 1986, ss.49(1)(e) and 55(9A)

Statutes – Interpretation – Expressio unius est exclusio alterius – Road Safety Act 1986, ss.3AA(1)(b), 53(1)(c), 55(2) and 55(9E)

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M.G. Perry	Solicitor for Public Prosecutions
For the Respondent	Mr W.J. Walsh-Buckley

HIS HONOUR:

This is an appeal from a final order made by the Magistrates’ Court at Melbourne on 3 April 2003, dismissing a charge under s.49(1)(e) of the Road Safety Act 1986 that the respondent had refused a requirement pursuant to s.55(9A)(b) of the Act to allow a registered medical practitioner to take a sample of the respondent’s blood for analysis.

Section 55(9A) provides that:

“(9A)The person who required a sample of breath under sub-section (1), (2), (2AA) or (2A) from a person may require that person to allow a registered medical practitioner or an approved health professional nominated by the person requiring the sample to take from him or her a sample of that person's blood for analysis if it appears to him or her that -
(a) …; or
(b)the breath analysing instrument is incapable of measuring in grams per 100 millilitres of blood or 210 litres of exhausted air the concentration of alcohol present in any sample of breath furnished by that person for any reason whatsoever -

and for that purpose may further require that person to accompany a member of the police force to a place where the sample is to be taken and to remain there until the sample has been taken or until 3 hours after the driving, being an occupant of or being in charge of the motor vehicle, whichever is sooner.”

The Magistrate based his decision on the judgment of Hedigan J in Director of Public Prosecutions v Holden[1]. Consistently with that decision, his Worship held that in order to succeed it was incumbent upon the prosecution to adduce evidence sufficient to establish beyond reasonable doubt that the person requiring the accused to provide a blood sample believed on reasonable grounds that the breath analysing instrument was incapable of measuring the accused’s blood alcohol concentration in gms per 100 ml. In the Magistrate’s view, the evidence adduced was insufficient to establish beyond reasonable doubt that the informant had such reasonable grounds.
[1][1999] VSC 14; (1999) 28 MVR 315

The…

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 Skinner

Details

AGLC: Director of Public Prosecutions v Skinner [2004] VSC 32
Case: [2004] VSC 32
Decision Date: 17 February 2004

CaseChat Overview and Summary

The case of the Director of Public Prosecutions versus Skinner was heard in the Supreme Court of Victoria. The defendant, Skinner, was charged with a driving offence, specifically the failure to comply with a requirement to provide a sample of blood for analysis. The central issue was the validity of the requirement to provide the blood sample, which depended on the opinion that the breath analysing instrument was incapable of measuring the concentration of alcohol in grams per 100 millilitres. The court had to determine whether this opinion had to be based on reasonable grounds, as per sections 49(1)(e) and 55(9A) of the Road Safety Act 1986.

The court examined whether the requirement for a blood sample was valid under the legislation, particularly focusing on whether the opinion that the breath analyser could not measure alcohol concentration in the specified units must be based on reasonable grounds. The interpretation of the Road Safety Act 1986, specifically sections 3AA(1)(b), 53(1)(c), 55(2) and 55(9E), was crucial in this determination. The court needed to decide if the express mention of certain conditions in some sections excluded other conditions not explicitly mentioned.

The Supreme Court concluded that the requirement for a blood sample was valid as it did not necessitate a specific opinion based on reasonable grounds. The court applied the principle of expressio unius est exclusio alterius, determining that the explicit mention of certain conditions in the statute did not exclude other conditions not explicitly mentioned. The defendant's argument that the requirement was invalid due to the lack of a reasonable opinion was rejected. The court found in favour of the prosecution, affirming the validity of the requirement to provide a blood sample.

The final orders of the court upheld the validity of the requirement to provide a blood sample for alcohol concentration analysis. The defendant's charge of failing to comply with the requirement was upheld, and the conviction was maintained. The decision clarified the interpretation of the Road Safety Act 1986 in this context, providing guidance for future cases involving similar issues.

Orders