Giarrusso v Feltham - [2025] VSCA 212

SUPREME COURT OF VICTORIAT

COURT OF APPEAL

S EAPCI 2024 0033

MICHAEL GIARRUSSO	Applicant
v
CAMERON FELTHAM	Respondent

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JUDGES:	WALKER, LYONS and KENNY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	27 June 2025
DATE OF JUDGMENT:	4 September 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 212
JUDGMENT APPEALED FROM:	[2024] VSC 56 (Watson J)

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APPEAL – Criminal Procedure Act 2009, s 272 – Question of law – Whether Magistrate found applicant guilty of refusing to provide a sample of oral fluid or refusing to accompany – Whether Magistrate conflated refusing to provide a sample and refusing to accompany – Whether judge correct to conclude evidence was capable of proving elements of offence – Evidence not capable of proving elements of offence – Leave to appeal granted – Appeal allowed – Judge’s orders set aside – Magistrate’s order quashed.

Criminal Procedure Act 2009, s 272; Evidence Act 2008, s 65; Road Safety Act 1986, ss 49(1)(eb), 55E(2).

Hrysikos v Mansfield (2002) 5 VR 485; Muscat v Magistrates’ Court of Victoria (2018) 59 VR 570, considered – GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; Moore (a pseudonym) v The King (2024) 419 ALR 169, applied.

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Counsel
Applicant:		Mr S Hardy
Respondent:		Mr J O’Connor
Solicitors
Applicant:	The Law Offices of Barry Fried
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

WALKER JA

LYONS JA
KENNY JA:

On 16 November 2022, the Magistrates’ Court of Victoria at Moorabbin found the applicant guilty of an offence against s 49(1)(eb) of the Road Safety Act 1986 (‘Road Safety Act’). The Notice of Order entered in the register that day recorded that the Magistrates’ Court had ordered as follows:
Order that the offender’s licence be cancelled. Offender is disqualified from driving in the State of Victoria for a period of 48 months.
Order on licence effective from 16/11/2022
Pursuant to s 272 of the Criminal Procedure Act 2009 (‘Criminal Procedure Act’), Mr Giarrusso appealed from the final orders of the Magistrates’ Court on a question of law to the Supreme Court. On 27 February 2024, his appeal was dismissed. Mr Giarrusso seeks leave to appeal from the dismissal.
For the reasons that follow, we would grant leave to appeal and allow the appeal.

Relevant statutory provisions

At the outset, it is worth noting an aspect of the accepted operation of ss 49(1)(eb) and 55E(2) of the Road Safety Act, which is relevant to this case. For this purpose, it is best to refer first to the terms of these provisions. Section 49(1)(eb) provides:
(1)A person is guilty of an offence if he or she—
…
(eb)refuses to provide a sample of oral fluid in accordance with section 55D or 55E when required under that section to do so or refuses to comply with any other requirement made…

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 Giarrusso v Feltham

Details

AGLC: Giarrusso v Feltham [2025] VSCA 212
Case: [2025] VSCA 212
Decision Date: 4 September 2025

CaseChat Overview and Summary

The case of Giarrusso v Feltham involved the appellant, Giarrusso, appealing against a decision made by the respondent, Feltham, a magistrate. The crux of the dispute centred on whether the magistrate correctly interpreted the evidence presented as sufficient to establish that Giarrusso was guilty of either refusing to provide a sample of oral fluid or refusing to accompany an officer under the Road Safety Act 1986. The matter was heard in the Supreme Court of Victoria, where it was decided whether the magistrate had conflated these two distinct refusals and if the evidence was sufficient to support a conviction.

The legal issues before the court were whether the magistrate's decision correctly distinguished between the two types of refusals and whether the evidence was capable of proving the elements of the offence. The court had to determine if the magistrate’s interpretation of the evidence was flawed and if the evidence could actually substantiate the claim that Giarrusso refused to either provide a sample of oral fluid or accompany the officer. This involved an assessment of the statutory requirements under the Road Safety Act 1986 and the interpretation of relevant sections of the Evidence Act 2008.

The court held that the magistrate's decision was incorrect as it failed to adequately separate the two distinct refusals and did not properly consider the evidence's sufficiency to establish the offence. The evidence provided was not capable of proving that Giarrusso refused to provide a sample of oral fluid or that he refused to accompany the officer, as required by the statutory provisions. Consequently, the court granted Giarrusso leave to appeal, allowed the appeal, set aside the orders of the judge, and quashed the magistrate’s order. This decision underscored the necessity for clear distinctions between different refusals under the Road Safety Act 1986 and the requirement for evidence to meet specific statutory thresholds.

Orders