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Furze v Nixon

Furze v Nixon

Case [2000] VSCA 149 21 August 2000

Drink Driving

Admissibility of Evidence

Certificate as Evidence

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No.7652 of 1998

WILLIAM ROBERT FURZE

Appellant

MELISSA ROBYN NIXON

Respondent

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JUDGES:	PHILLIPS, BATT and BUCHANAN, JJ.A.
WHERE HELD:	GEELONG
DATE OF HEARING:	10 April 2000
DATE OF JUDGMENT:	21 August 2000
MEDIUM NEUTRAL CITATION	[2000] VSCA 149

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Criminal law – Drink driving – Breathalyser indicates alcohol present beyond .05 – Proof by certificate – Conclusive evidence unless defendant gives notice – Effect of notice when given – Certificate as evidence only of its contents – Whether need to prove also that breathalyser “properly operated” or “compliance with s.55(4)” – Road Safety Act 1986 ss.49(1)(f), 55(4), 58(2) and (2D).

Practice and procedure – Case stated by County Court after conviction on appeal from Magistrates’ Court – Sufficiency of case stated – Form and content – Crimes Act 1958 s.446(1).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr. P.J. Billings	Hill Perkins & Co.
For the Respondent	Mr. D.A. Trapnell	P.C. Wood, Solicitor for Public Prosecutions

PHILLIPS, BATT and BUCHANAN, JJ.A.:

This is a case stated under ss.446 and 447 of the Crimes Act 1958. On 27 March 1997, William Robert Furze (to whom we shall refer as “the appellant”) was convicted after a defended hearing in the Magistrates' Court of an offence on 21 August 1996 against s.49(1)(f) of the Road Safety Act 1986 (“the Act”)[1]. He was fined $420 with statutory costs of $48.50, all licences and permits were cancelled and he was disqualified from obtaining a licence for 11 months. On the day of his conviction, the appellant appealed to the County Court under s.82 of the Magistrates’ Court Act 1986. That appeal was heard on 30 and 31 October 1997. On 5 December 1997 the appeal was dismissed and the sentence imposed below affirmed.
[1]See Reprint No.4 (to 19 June 1997).

On 12 December 1997 counsel for the appellant asked the judge to reserve for this Court certain questions of law which his Honour had determined adversely to the appellant. The judge was of opinion that, had such questions been determined in favour of the appellant, he would been entitled to an acquittal, and so his Honour acceded to counsel's request, stating this case on 12 October 1998. As will be seen, the questions at issue turn upon the evidentiary effect under the legislation of a certificate of analysis produced by a breath analysing instrument. That certificate showed a concentration of alcohol in the appellant's blood of 0.113 per cent, which was well above the prescribed limit. The appellant's contention, which the judge rejected, was that in the circumstances of this case that certificate was evidence of nothing: hence the case stated.

It is convenient to set out immediately - and before attempting to explain their significance any further - the questions which were reserved. They are to be found at the end of the case stated:-

"(i)In the circumstances where a notice is served pursuant to s.58(2) of the Road Safety Act 1986 and…

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 Furze v Nixon

Details

AGLC: Furze v Nixon [2000] VSCA 149
Case: [2000] VSCA 149
Decision Date: 21 August 2000

CaseChat Overview and Summary

In the case of Furze v Nixon, the appellant, Furze, was convicted in the Magistrates' Court of a drink driving offence. The conviction was based on a certificate issued under the Road Safety Act 1986, which indicated that a breathalyser test had detected alcohol present beyond the prescribed limit of 0.05. Furze appealed to the County Court, which subsequently referred certain questions of law to the Supreme Court. The central legal issues involved the admissibility and sufficiency of the certificate as evidence under the Road Safety Act, and whether additional proof was required to demonstrate that the breathalyser was properly operated or that the statutory requirements had been met.

The Supreme Court considered whether the certificate alone was sufficient evidence of the appellant's guilt or if there was a need to establish beyond the certificate that the breathalyser was properly operated. The court examined sections 49(1)(f), 55(4), 58(2), and 58(2D) of the Road Safety Act 1986, which establish the certificate's role as conclusive evidence unless notice is given by the defendant. The court also addressed whether the certificate could stand as the sole evidence or if there was an obligation to prove the breathalyser's proper operation or compliance with section 55(4). The court determined that the certificate is deemed conclusive evidence unless notice is given by the defendant and that its contents alone are sufficient to prove the offence.

The Supreme Court concluded that the certificate issued under the Road Safety Act, standing alone, constitutes sufficient evidence of the appellant's guilt, provided no notice had been given by the defendant. The court ruled that there was no need for additional proof that the breathalyser was properly operated or that the statutory requirements were met. This decision affirmed the conviction based solely on the contents of the certificate.

Orders