Giarrusso v Feltham
[2025] VSCA 212
•4 September 2025
| 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 under that section …
Section 55E(2) further provides:
(2)If a person undergoes a preliminary oral fluid test when required to do so under section 55D by a police officer or an enforcement officer and—
(a)the test, in the opinion of the police officer or enforcement officer in whose presence it is made, indicates that the person’s oral fluid contains a prescribed illicit drug; or
…
any police officer or, if the requirement for the preliminary oral fluid test was made by an enforcement officer, any police officer or any enforcement officer may require the person to provide a sample of oral fluid for testing by a prescribed device and, if necessary, analysis by a properly qualified analyst within the meaning of section 57B and for that purpose may further require the person to accompany any police officer or, if the requirement for the preliminary oral fluid test was made by an enforcement officer, any police officer or any enforcement officer to a place or vehicle where the sample is to be provided and to remain there until—
(c)the person has provided the sample and any further sample required to be provided under subsection (5), the sample has been tested by a prescribed device and the person has been given (if necessary) a part of the sample under subsection (11) and complied with any requirement made of him or her under section 59; or
(d)3 hours after the driving, being an occupant of or being in charge of the motor vehicle—
whichever is the sooner.
It is not in dispute that that s 49(1)(eb) creates a number of offences, each of which arises by virtue of the separate requirements contained within ss 55D and 55E.[1] Relevantly, where a person has undergone a preliminary oral fluid test under s 55D, together s 49(1)(eb) and s 55D create two different offences: the offence of ‘refusing to accompany a police officer … to a place or vehicle where the sample is to be provided’ (‘refusing to accompany’); and the offence of ‘refusing to provide a sample’.
[1]See DPP v Greelish (2002) 4 VR 220, 223 [11]–[15] (Buchanan JA, Phillips JA agreeing at 224 [19]), O’Bryan AJA agreeing at 225 [27]); [2002] VSCA 49.
The charge sheet and summons filed in the Magistrates’ Court clearly stated that the applicant was charged with the former offence: refusing to comply with the requirement to accompany a police officer to a police vehicle for the purpose of an oral fluid test. Under the heading ‘Details of the charge against you’, the charge sheet stated:
The accused at Bentleigh on 18th of July, 2019, within 3 hours of being the driver of a motor vehicle and after having undergone a preliminary oral fluid test pursuant to section 55D of the Road Safety Act 1986, was then required to accompany a police officer to a place namely, nearby police vehicle, for the purpose of providing a sample of oral fluid for testing by a prescribed device pursuant to section 55E(2)(a), did refuse to accompany a police officer to the place namely nearby police vehicle in accordance with section 55E.
At the hearing in the Magistrates’ Court on 16 November 2022, the applicant pleaded not guilty to this charge. He and the respondent (Mr Feltham) gave evidence. The respondent stated he had no recollection of the relevant events, and relied almost exclusively on the notes he made at the time of the matters said to give rise to the offence. Those notes were not tendered in the Magistrates’ Court and were not in evidence before the judge or this Court. At the conclusion of the hearing, the Magistrate found the applicant guilty of an offence under s 49(1)(eb) of the Road Safety Act, but did not record a conviction or impose any financial penalty. As noted, however, the Magistrate cancelled the applicant’s driving licence, and disqualified him from driving for a period of 48 months.
The Notice of Order made on 16 November 2022 and entered in the Magistrates’ Court register (the ‘Register extract’) described the nature of the charge for which the Magistrate’s orders were made as ‘refuse to provide a sample of oral fluid’. This is despite the charge sheet stating that the applicant was charged with the offence of refusing to accompany and, as explained below, the Magistrate’s reasons being directed to the charge in the charge sheet.
The appeal on a question of law
In his appeal to the Supreme Court under s 272 of the Criminal Procedure Act (the ‘s 272 appeal’), the applicant, Mr Giarrusso, raised the following four questions of law:
(a)Was there sufficient evidence before the court upon which the Magistrate could properly find that [he] had refused to accompany the respondent to a police vehicle?
(b)Did the Magistrate err in treating the requirement that [he] accompany police to a police vehicle as if it were the same as a requirement to provide a sample of oral fluid for analysis with the result that the offence of refusing to accompany is committed by refusing to provide a sample of oral fluid?
(c)Was there sufficient evidence before the court upon which the Magistrate could properly find that [he] had refused a requirement to provide a sample of oral fluid for analysis?
(d)Was it open to the Magistrate to record a finding of guilt for the offence of refusing to provide a sample of oral fluid for analysis when the charge sheet alleged the [applicant] ‘did refuse to accompany a police officer’?
Prior to the hearing of his s 272 appeal, the Magistrates’ Court filed a ‘Hardiman letter’, advising that it did ‘not intend to take an active role in the proceedings’. The parties filed their respective submissions thereafter.
The judge’s decision and reasons
As the judge’s reasons indicate, a fundamental issue in the s 272 appeal was whether Mr Giarrusso was found guilty of refusing to provide a sample of oral fluid, as he contended; or whether, as contended by the respondent, he was found guilty of the offence with which he was charged (refusing to accompany).[2] Further, Mr Giarrusso argued that, even if the Magistrate had found him guilty of the offence with which he was charged, the Magistrate’s orders should be quashed because the evidence before the Magistrate did not satisfy the requirements of the offence and the Magistrate incorrectly conflated the elements of the two offences.[3] The respondent subsequently conceded that, if the Magistrate did find the applicant guilty of failing to provide a sample, the Magistrate’s order was invalid and ought to be quashed.[4]
[2]Giarrusso v Feltham [2024] VSC 56, [5] (Watson J) (‘Reasons’).
[3]Ibid [6].
[4]The respondent did not seek to have any error in the Magistrates’ Court’s register of orders amended pursuant to s 412 of the Criminal Procedure Act or otherwise.
In the s 272 appeal, the judge held that the Magistrate had found Mr Giarrusso guilty of the offence with which he was charged, being refusing to accompany, and not the offence of refusing to provide a sample of oral fluid.[5] His Honour noted that:
It is well established that the order of the court is that which is pronounced by the judge or magistrate.[[6]] The Register extract is admissible in evidence to establish the content of the Orders but it is not conclusive.[7]
[5]Reasons, [5].
[6]Citing Keech v County Court of Victoria (2017) 55 VR 32, 49–50 [58]–[61], 52 [69] (Riordan J); [2017] VSC 525.
[7]Reasons, [43].
The judge was not satisfied that the Register extract justified the conclusion that Mr Giarrusso was convicted of refusing to provide a sample, rather than refusing to accompany.[8] His Honour noted the ‘evidence to the contrary’, which showed that the Register extract was wrong, relying in part on what has been called the ‘Summers email’.
[8]Ibid [46].
The Summers email was exhibited to the second of two affidavits made by Ms Megan Healy, a solicitor employed in the Office of Public Prosecutions (‘OPP’). Ms Healy deposed to receiving the Summers email (dated 14 November 2023 and headed ‘Case initiation in the Magistrates’ Court’) from Ms Misty Summers, who was then a registrar of the Magistrates’ Court. This email stated as follows:
I refer to our earlier correspondence regarding how a case [is] created into the Magistrates’ Court case management system, Courtlink. I provide the below outline which details the creation of a case in Courtlink and more specifically, how charge details are entered. I have also detailed the review I have undertaken of Magistrates’ Court case number K12719712 within Courtlink.
1. The Magistrates’ Court operates a case management system for criminal cases known as Courtlink. Courtlink contains a digital record of the physical court file and the orders of the court.
2. Cases are entered into Courtlink by manual data entry. This can either be via a data transfer from Victoria Police which is then reviewed and confirmed by a court staff member, or by a court staff member undertaking the complete data entry. Traffic offences are not sent to the court via data transfer.
3. Once the execution copy of charges are filed with the court, a court staff member will initiate a case into Courtlink to create that digital record. The information entered into Courtlink is obtained from the charge sheet. The data entry involves a series of screens: accused details; informant details; charge details; and service/bail details.
4. Charge details are created by first entering the date of offence, the location of the offence and the Act and section code. Act and sections codes are constructed by the year of the Act (if passed after 1 January 1986), the Act number and the section reference. Once the information is entered, Courtlink will display all possible descriptions for the Act and section code entered. The person initiating the case is required to select the correct charge description based on the charge details from the charge sheet.
5. For an offence under section 49(1)(eb) of the Road Safety Act 1986, the Act and section code 86/127.49.1.eb displays the following offence descriptions:
(1) Refuse to provide a sample of oral fluid
(2) Refuse undergo prelim oral fluid test
(3) Refuse leave veh [sic] prelim oral fluid test
(4) Refuse to remain until oral fluid tested
(5) Refuse remain until blood sample taken
(6) Refuse accomp police-oral fluid test
(7) Refuse to comply with requirement
(8) Refuse to provide a sample of blood
6. Once all details have been entered to create the digital record, the case is assigned a case number and a cover sheet will generate which, along with the charge sheet/s and affidavit of service/bail, creates the physical court file.
7. I have reviewed the court file for the matter of Feltham v Giarrusso (Magistrates’ Court case number K12719712) and the information contained within Courtlink. From the review of Courtlink, it appears that the person who created the case has entered the correct Act and section code from the charge sheet but has then selected the incorrect charge description. It does not appear to have been altered since the case was created.
8. To confirm this, I made contact with a team member from CSV Digital. CSV Digital are the Court Services Victoria team who operate the help desk for Courtlink. The CSV Digital team member advised me that they have reviewed the data ‘behind the scenes’ of Courtlink and there was no history of amendment.
9. After the order entry into Courtlink of a case is completed, a court staff member is unable to amend the charge description. This can only be undertaken by the CSV Digital team. The CSV Digital team member also advised me that there has been no request lodged with them to amend the offence description.
The judge noted that the Magistrate had not signed the Orders in Mr Giarrusso’s case, and that there was no evidence that ‘the Magistrate entered a confirmation of the Orders into the Magistrates’ Court’s computerised data storage and retrieval system’.[9] His Honour concluded that ‘the section of the Register extract which describes the offence ... as being “refuse to provide a sample” results from administrative error in the Court and is not evidence on which reliance can be placed of the offence which the Magistrate found proven’.[10] His Honour ultimately concluded that ‘the totality of the evidence filed on appeal shows that the Magistrate found the offence of refusing to accompany was proven and not the offence of refusing to provide a sample’.[11]
[9]Ibid [48]. His Honour also held that, in such circumstances, the appellant was unable to rely on the Magistrates’ Court Authentication and Electronic Transmission Rules 2021.
[10]Reasons, [49].
[11]Ibid [54].
The judge also held that the evidence before the Magistrate was capable of supporting a conviction for the offence of refusing to accompany. His Honour rejected the applicant’s contention that he was ‘so close to the police officer’s motorcycle that he was physically incapable of accompanying him to it because he was, in a practical sense, already there’.[12] His Honour stated that:
If the respondent’s evidence is accepted, the only sensible inference is that wherever [Mr Giarrusso] was and notwithstanding his proximity to the motorcycle, he was not at the motorcycle where the respondent requested him to be for the purposes of taking the test. Indeed this is consistent with [Mr Giarrusso’s] own evidence that the respondent asked him to ‘step over to the bike ... to be closer or got to have a test or something like that’, and that [Mr Giarrusso] refused.
In those circumstances, contrary to the submissions of [Mr Giarrusso], the evidence before the Magistrate was capable of supporting a charge of refusing to accompany albeit in circumstances where the distance from the motor vehicle was, even on the evidence of the respondent, not very far.[13]
[12]Ibid [56]–[62].
[13]Ibid [61]–[62].
The judge also found, with some hesitation, that the Magistrate had erred in conflating the offences of refusing to accompany and refusing to provide a sample.[14] The basis for this conclusion was the statement in the Magistrate’s reasons that:
The location in my view was incidental. The heart of the offence is the refusal to undergo the test. It’s clear on the evidence before me that Mr Giarrusso refused the test. That, in my view, is the critical element.[15]
[14]Ibid [7], [66], [72]–[73].
[15]Extracted in Reasons, [44].
In this circumstance, at the parties’ request, the judge reviewed the evidence in order to determine whether Mr Giarrusso was guilty of the offence of refusing to accompany.[16] On reviewing the evidence, his Honour stated that he was so satisfied. His Honour explained that:
[16]Ibid [74]–[78].
(a)Insofar as there was a conflict between the evidence of the respondent and the evidence of [Mr Giarrusso] as to the matters in paragraphs (b) and (d) below the Magistrate expressly accepted the respondent’s evidence. In the circumstances there is no basis for me to interfere with those findings;
(b)The evidence of the respondent is that on four separate occasions he requested [Mr Giarrusso] to accompany him to his vehicle;
(c)The making of four such requests is only rationally consistent with the proposition that notwithstanding the relative proximity of [Mr Giarrusso] to the motor vehicle at the time he alighted from his own car, [Mr Giarrusso] was not at the police vehicle in a location where the respondent had requested him to be in order to administer the test;
(d)The respondent’s evidence was that:
(i)[Mr Giarrusso] was non-responsive to the first two requests to accompany;
(ii)that [Mr Giarrusso] had been advised of the consequences of a refusal to accompany and had said he understood those consequences; and
(iii)[Mr Giarrusso’s] explanation for that refusal was that he had ‘had a smoke’ two days earlier.
This evidence demonstrates that there was in fact a refusal by [Mr Giarrusso] of the requests of the respondent; and
(e)Importantly, there is also [Mr Giarrusso’s] own evidence that at a point after he had alighted the vehicle he was requested to get closer to the motorcycle for the purpose of the test and he refused to do so. So whilst [Mr Giarrusso’s] evidence conflicted with that of the respondent in a number of respects he accepted that on at least one occasion he was requested to accompany the respondent to the vehicle, that this was a place where he was not and that he refused to the request.[17]
[17]Ibid [75].
His Honour held that each of the elements of the offence were proved beyond reasonable doubt and dismissed the appeal.
In the course of reaching his decision, the judge rejected Mr Giarrusso’s objection to the tender of the Summers email. His Honour held that its tender did not amount to an attempt to adduce new evidence on appeal in the sense used in Smith v Chalmers,[18] because the evidence was not ‘new evidence going to factual matters which were required to be established in order for the Magistrate to convict the accused of an offence’.[19] Rather, the respondent relied on the Summers email ‘for the purpose of establishing what actually occurred in the Magistrates’ Court in the hearing’.[20] That was in order to displace the effect of the Notice of Order, which was an extract from the Register of the Magistrates’ Court. Section 18(5) of the Magistrates’ Court Act 1989 provides as follows in relation to extracts:
A document purporting to be an extract from the register and purporting to be signed by a registrar who certifies that in his or her opinion the extract is a true extract from the register is admissible in evidence in any proceedings and, in the absence of evidence to the contrary, is proof of the matters appearing in the extract.[21]
[18][2003] VSC 236.
[19]Reasons, [24].
[20]Ibid.
[21]Magistrates’ Court Act 1989, s 18(5).
In relation to the Notice of Order, the judge observed that it was not signed and certified by a Registrar, but that the parties treated it as an extract to which s 18(5) applies and he proceeded on that basis. His Honour added that:
Section 18(5) … makes an extract from the register admissible (not conclusive) and specifically contemplates ‘evidence to the contrary’. The respondent sought to tender the Summers email as evidence to the contrary.
The essential character of the Summers email in this regard is no different to the Register extract or indeed the Magistrates’ Court transcript both of which the appellant adduced in evidence on the appeal and upon both of which he relies. ... Each is a documentary representation of things which are said to have occurred in the Magistrates’ Court.
...
The respondent is entitled to seek to adduce evidence that shows the Register extract is inaccurate and the appellant’s objection based on Smith v Chalmers must fail.[22]
[22]Reasons, [24]–[27].
The judge also rejected the submission that the Summers email was hearsay and as such inadmissible. His Honour held that ‘the portions of the Summers email’ on which the respondent relied were admissible under s 65(2)(c) of the Evidence Act 2008 (‘Evidence Act’). His Honour explained that:
The evidence establishes that Ms Summers was not available to give evidence at the hearing of this matter. She was overseas at the time and it was not reasonably practicable for her to give evidence. Further, I am satisfied that the evidence establishes all reasonable steps had been taken by the respondent to secure Ms Summers’ attendance, including issuing a subpoena.
...
In light of Ms Summers’ position in the Magistrates’ Court as a Registrar of that Court and the content of the representations, which are as to procedures which were followed in that Court, I have no hesitation in concluding that the representations of Ms Summers were made in circumstances that make it highly probable that the representation is reliable, indeed counsel for the appellant accepted that it was highly probable the email was accurate.
I am therefore satisfied that the exception in s 65 of the Evidence Act applies and the evidence is admissible.[23]
The judge held that there was no basis for him to exercise the general discretion under s 135 of the Evidence Act.[24]
[23]Ibid [29]–[32].
[24]Ibid [35]–[36].
A further issue arose concerning the respondent’s hearsay notice under s 67 of the Evidence Act because the respondent’s hearsay notice incorrectly referred to ss 63 and 64, both of which related to the admission of hearsay evidence in civil, not criminal, proceedings. The respondent accepted that this was in error; and that according to Chidiac v The Queen (No 2) if the appeal is ‘a proceeding which concerns the ascertainment of liability for a criminal offence’,[25] it is a criminal proceeding for the purposes of the Evidence Act.[26] The judge rejected Mr Giarrusso’s submission that the respondent should not have the leave he sought to amend his hearsay notice to refer to s 65(2)(c) of the Evidence Act which was applicable in criminal proceedings. This was because his Honour was unable to discern any prejudice to him if the respondent were permitted to amend his hearsay notice.[27] His Honour observed that:
[Mr Giarrusso] has been on notice since November 2023 of the respondent’s intention to rely on the Summers email. The test for unavailability of a witness is the same under ss 63 and 65 of the Evidence Act and so no prejudice could be occasioned to [him] on that issue. The hearsay notice did not give [Mr Giarrusso] notice of the respondent’s reliance on sub-paragraph (c) of s 65(2) but [Mr Giarrusso’s] counsel was given an opportunity to make submissions on whether the representations in the Summers email were inherently reliable in response to a question from the bench and did so.[28]
[25][2016] NSWCCA 120, [143]–[144].
[26]Reasons, [37].
[27]Ibid [38].
[28]Ibid [38].
In these circumstances, the judge gave leave to the respondent to amend his notice to refer to s 65(2)(c) of the Evidence Act. His Honour also stated that if the respondent had not applied to amend his hearsay notice, but had applied under s 67(4) for a direction that he be permitted to rely on s 65, then the judge would have so directed.[29]
[29]Ibid [39].
Applicant’s proposed grounds 4, 5 and 6
It is convenient to discuss the applicant’s proposed fourth, fifth and sixth grounds of appeal before the other grounds on which the applicant relies in support of his present application.
Proposed grounds 4 and 5 are as follows:
[The judge erred] in finding that the Magistrate had pronounced an order that the applicant is guilty of the offence of refusing a requirement to accompany a police officer to a police vehicle.
[The judge erred] in holding that the Magistrate had not found the [applicant] guilty of the offence of ‘refusing to provide a sample of oral fluid’, notwithstanding the sentencing remarks of the Magistrate, which indicated he found the [applicant] guilty of that offence and notwithstanding the written extract of order made.
Proposed ground 6 is as follows:
[The judge erred] in holding that there was sufficient evidence before the Magistrate for the Magistrate to find that the applicant had refused to comply with a requirement to accompany the respondent to the police vehicle, notwithstanding that he was standing beside the police vehicle at the relevant time.
Parties’ submissions on proposed grounds 4, 5 and 6
Noting that it was common ground between the parties that the offence of refusing to accompany is a separate and distinct offence from refusing to provide a sample of oral fluid, the applicant submitted that the Magistrates’ Court had found him guilty of an offence for which he was not charged. That is, while he had been charged with refusing to accompany, the Magistrate had found him guilty of refusing to provide a sample. The applicant contended that this outcome was established by the Register extract, which recorded a finding of guilty for the offence of refusing to provide a sample of oral fluid. The applicant submitted that the judge had erred in finding that he was not satisfied that ‘the Register extract provides evidence which warrants the conclusion that [he] was convicted of refusing to provide a sample’.
Further, the applicant submitted that reference to the transcript of the Magistrates’ Court hearing showed that the Magistrate had intended to find the applicant guilty of the offence of refusing to provide a sample. In particular, the applicant relied on the following extract from the transcript:
I find [Mr Giarrusso] alighted his car and stood somewhere near the Police car. The offence is made out because, properly viewed, [he] did refuse to accompany for the purpose of the oral fluid test. He was informed of the consequences of the refusal several times. He refused to have the test, labouring under the mistaken belief that he was to go to a Police Station, despite the express words of [Mr] Feltham as to the tests being conducted at [the] testing vehicle.
The location in my view was incidental. The heart of the offence is the refusal to undergo the test. It’s clear on the evidence before me that Mr Giarrusso refused the test. That, in my view, is the critical element.
The applicant emphasised the Magistrate’s statement, as recorded in the transcript of the hearing, that:
... the [heart] of the offending is you haven’t provided a sample to the Police that you should have.
The applicant submitted that these statements were consistent with the final order recorded in the Register extract, and evidenced that the Magistrate intended to find the applicant guilty of the offence of refusing to provide a sample. The applicant contended that this should have been, but was not, addressed by the judge.
In support of proposed ground 6, the applicant further contended that the judge erred in holding that the offence of refusing a requirement to accompany police to a police vehicle can be committed in circumstances where the driver is standing beside the police vehicle. He submitted that because he was ‘standing next to the police vehicle the requirement to accompany him to that place was superfluous and nugatory’; and ‘an unreasonable requirement in all the circumstances’. In substance, so counsel for the applicant submitted, the applicant had complied with the requirement because ‘he was already there’.
At the hearing, counsel for the applicant submitted that, in substance, the applicant’s evidence was that ‘he couldn’t get any closer to the bike;’ and that he was therefore ‘at the place where the test was going to be conducted’. Counsel submitted that:
… the offence hasn’t been proved because, even on the informant’s evidence, the accused, the [applicant], was at the place and was therefore incapable of breaching the requirement to accompany to that very place he was at.
Counsel for the applicant also submitted that the only direction he was given was to accompany the police officer to the police motor cycle, and that he was not given any more specific direction. In counsel’s submission, ‘[t]here was no obstacle to the police moving to the next step, which is to get the [testing] packet, open it and offer him the swab’.
The respondent submitted that the judge correctly concluded that, despite some ‘infelicities of expression’ in the Magistrate’s reasons, that ‘in totality the transcript demonstrates’ that the applicant was found guilty of refusing to accompany.[30] Referring to the extracts of the transcript of the hearing before the Magistrate mentioned in his Honour’s reasons for judgment,[31] the respondent contended that the only conclusion available on the basis of those extracts (and the Magistrate’s repeated references to the applicant’s refusal to accompany the police officer) was that the Magistrate understood the nature of the charge, and proceeded to find the applicant guilty of the offence charged.
[30]Ibid [50].
[31]See Reasons, [52].
As to proposed ground 6, counsel for the respondent submitted that the respondent had given evidence to the effect that the applicant was ‘probably more than one step’ away from the motorcycle, and that the Court should not accept the proposition advanced by the applicant that the applicant was standing next to the respondent and his motorcycle at the time. Counsel for the respondent contended that his Honour had made a detailed analysis of the evidence concerning the relative location of the applicant and the police vehicle.
Counsel for the respondent submitted that, having regard to the evidence as a whole, it was reasonably open to the judge, in determining whether the Magistrate’s findings had been open and on his own assessment, to conclude that while the applicant had been close to the motorcycle, he had not been at the vehicle to which the requirement to accompany was directed. In the course of oral argument, the respondent appeared to accept that this Court’s analysis of proposed ground 6 was to be approached on a correctness basis.
Consideration of proposed grounds 4 and 5
As already stated, the charge sheet clearly stated that the applicant was charged with the offence of refusing to comply with the requirement to accompany a police officer to a police vehicle for the purpose of an oral fluid test. He was not charged with the offence of ‘refusing to provide a sample’. At the hearing in the Magistrates’ Court on 16 November 2022, Mr Giarrusso pleaded not guilty to the charge of refusing to accompany.
Further, it may be accepted that, as the respondent in fact submitted, the Register extract did not purport to record the order of the Court and did not state that a finding of guilt had been made for the incorrect offence. Rather, the only reference in the Register extract to the wrong offence was ‘in the section of the extract which record[ed] the nature of the charge’. Nor was there any evidence to suggest that the Magistrate signed a copy of his order, or otherwise certified its effect.[32]
[32]Ibid [48].
Furthermore, the Register extract was not signed by a registrar who certified its effect. In those circumstances the Register extract did not fall within s 18(5) of the Magistrates’ Court Act. That is not to say that the extract had no evidentiary value; but it did not prove the matters therein in the absence of evidence to the contrary. In that regard, we consider it undesirable for an extract to be treated as if it fulfills the requirements of s 18(5) when it plainly does not.
In this circumstance, it is necessary to examine the Magistrate’s reasons for his ultimate finding of guilt in order to determine whether the Magistrate found him guilty of the offence as charged.
Before addressing the reasoning of the Magistrate, it is appropriate to address briefly the evidence at trial. As we set out in more detail below, the respondent had no recollection of the requests to accompany him to the testing vehicle or where the applicant and the testing vehicle were at the time the request were made. The respondent relied upon his contemporaneous notes and, on occasion, his usual practice. Significantly, the respondent’s notes did not record the location of the applicant and the testing vehicle at the time requests were made to the applicant to accompany the respondent to the testing vehicle.
By contrast, the applicant gave detailed evidence that he was standing beside the testing vehicle at the time the requests were made except for the first request. The applicant gave evidence that:
(a)at all relevant times his car was parked in one car park bay beside the respondent’s motor cycle and another police motorcycle, both of which were parked in the adjacent car park bay;
(b)after he completed the preliminary fluid test seated in his car, when the respondent asked Mr Giarrusso to accompany him, the applicant got out of the car and stood right next to the respondent’s motorcycle: ‘Literally I was probably a metre from the motorbike’, ‘a metre and a half max’, ‘[t]o the motorbike where he was asking’;
(c)the applicant did not ‘know how much closer to the bike he wanted me to get because we were at the bike, that’s where we were talking and filling out the paperwork’; and
(d)further, in cross-examination, the applicant said that he ‘was at the vehicle’, and ‘couldn’t get any closer unless I got on the bike’. When the prosecutor asked, ‘And where were you when the questions were being asked?’, Mr Giarrusso replied, ‘Right next to the bike’.
In his reasons, given orally at the end of the hearing, the Magistrate commenced by announcing that:
This is the court’s ruling in relation to a Contested Hearing held this morning that Mr Giarrusso, at Bentleigh in July 2019, within three hours of being the driver of a motor vehicle, after having gone a PBT pursuant to section 55D of the Road Safety Act, was required to accompany a Police Officer to a nearby Police vehicle to provide a sample of oral fluid for testing and refused.[33]
[33]Emphasis added.
The Magistrate identified the main issue emerging in final submissions as ‘whether there’d been a refusal to accompany to a testing vehicle because [Mr Giarrusso] was already at or near the testing vehicle’.[34]
[34]Emphasis added.
The Magistrate continued:
On the issue of the refusal to accompany, the evidence of [Mr] Feltham was, from his notes ... that he said he required [Mr Giarrusso] to accompany him to the testing vehicle and to remain there. He asked him, ‘Are you prepared to accompany me?’ That was the first request and no comments were written by way of any reply. He said if you refuse to accompany me to the testing vehicle, you’ll face a fine, loss of licence, et cetera. ‘Are you prepared to accompany me?’ This was the second request. He then repeated the request to accompany him to the testing vehicle for the purpose of the oral fluid test. This is the third request. He said ‘it’s in the circumstances where you’re required under Section 55, to accompany me to the testing vehicle for the oral fluid test. If you refuse, you will face consequences’ and they were specified.
[Mr Giarrusso] said that he understood the consequences. [Mr Feltham] again asked him to the testing vehicle and to remain there and was he prepared to accompany him for the purpose of providing him with a test. This was the fourth request and [Mr Giarrusso] said ... two days ago he had a smoke.
[Mr Feltham] said what’s the reason for your refusal to accompany me to the testing vehicle to provide an oral fluid sample and he said, again repeated because two days ago he had a smoke. And at that point he was free to leave and the testing vehicle was the Police motorbike close by.[35]
[35]Emphasis altered.
Turning to his findings, the Magistrate said:
On the defence case, there is no refusal to accompany because [Mr Giarrusso] did all he was asked to do and didn’t refuse at all. In my view, these matters are relevant. First, the Informant made four demands to accompany ...
Secondly, the evidence is that each demand was not merely to accompany but to accompany for the purpose of a breath test ...
Third, [Mr Giarrusso] was informed at least twice of the legal consequences of the refusal to accompany.
Fourth, the section itself speaks first of the refusal of the request to accompany to provide the oral fluid sample and then mentions the location. The oral fluid test component never changes, but the location may change depending on the circumstances. So location is in this sense, in my view, very secondary to the request itself. The refusal of the request to accompany for the purpose of the oral fluid test is the core of the offending.
...
I find [Mr Giarrusso] alighted his car and stood somewhere near the Police car. The offence is made out because, properly viewed, [Mr Giarrusso] did refuse to accompany for the purpose of the oral fluid test. He was informed of the consequences of the refusal several times. He refused to have the test, labouring under the mistaken belief that he was to go to a Police Station, despite the express words of [Mr] Feltham as to the tests being conducted at [a] testing vehicle.
The location in my view was incidental. The heart of the offence is the refusal to undergo the test. It’s clear on the evidence before me that Mr Giarrusso refused the test. That, in my view, is the critical element. For whatever reason, Mr Giarrusso thought this meant he would go to a Police Station. He was unfortunately wrong in this belief, accordingly I find the charge proven.[36]
[36]Emphasis altered.
Apart from the last paragraph set out above, it is clear from the Magistrate’s reasons that the Magistrate knew that Mr Giarrusso was charged with, and had pleaded not guilty to the offence of refusing to accompany, rather than the offence of refusing to provide a sample. Accordingly, the Magistrate found the applicant guilty of the offence with which he had been charged – refusing to accompany.
In reaching this conclusion, it should be acknowledged that the final paragraph in the Magistrate’s reasons is confused. If it stood alone, it would provide some support for the applicant’s submissions in support of this ground. When considered in the context of all that the Magistrate had previously said, however, it is clear that the Magistrate made no error of the kind agitated by the applicant. It follows that the judge correctly concluded that the transcript showed that the Magistrate found that Mr Giarrusso had committed the offence of refusing to accompany.
For the above reasons, proposed grounds 4 and 5 have no reasonable prospect of success.
Consideration of proposed ground 6
As noted above, the judge held that the evidence before the Magistrate was capable of satisfying the requirements of the offence of refusing to accompany. His Honour then went on to conclude that the Magistrate had erred by conflating the offences of refusing to accompany and refusing to provide a sample.[37] There was no challenge to that latter conclusion on the appeal and we consider his Honour to have been correct to so conclude, for the reasons he gave. It was in that circumstances that the judge then went on to determine, for himself, whether the applicant was guilty of the offence of refusing to accompany. The judge concluded that the applicant was guilty of the offence.
[37]Ibid [7], [66], [72]–[73].
Proposed ground 6, in terms, was directed to the judge’s initial conclusion that the evidence was capable of satisfying the requirements of the offence, rather than his Honour’s subsequent conclusion that Mr Giarrusso was guilty of the offence. In addressing the question raised by proposed ground 6, the question for this Court is not whether it was open for the judge to conclude that the evidence was capable of satisfying the requirements of the offence. Rather, the question is whether the judge was correct to so conclude. That is because there is but one legally correct answer to that question; no exercise of discretion is involved.[38]
[38]See, eg, Moore (a pseudonym) v The King (2024) 419 ALR 169, 173–4 [14]–[16] (Gageler CJ, Edelman, Steward, Gleeson and Beech-Jones JJ); [2024] HCA 30; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541, 563 [49] (Gageler J); [2018] HCA 30; GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635, 641–2 [15]–[16] (Kiefel CJ, Gageler and Jagot JJ); [2023] HCA 32.
It is important to note that, as Ormiston JA noted in Hrysikos v Mansfield, with respect to s 49(1)(e) of the Road Safety Act, the Act penalises the refusal to comply with a requirement under s 55E(2) for the person to accompany a police officer to a vehicle to provide a sample of oral fluid for testing by a prescribed device.[39] As his Honour noted:
… The word ‘refuses’ must be taken to carry with it an element of mental intent, albeit judged objectively for the purposes of an offence such as the present. The simplest way of proving a refusal would be if the subject driver said ‘I refuse etc’ or some equivalent words ... connoting an unwillingness to comply. Alternatively, the prosecution might ask a court to infer that a driver has refused to comply by proving acts from which that inference may be drawn, ie by proof of the circumstantial case from which the only inference is that the driver is refusing to comply, albeit he or she is not expressly saying so ...[40]
[39](2002) 5 VR 485, 487–8 [3] (Ormiston JA); [2002] VSCA 175.
[40]Ibid.
In this connection, his Honour referred to ‘[a] driver who immediately turns and runs away’, where the driver’s actions ‘exhibit[ed] a conscious unwillingness, and thus a refusal, to comply with the stated requirements’.[41] In conformity with this, his Honour added:
… So long as drivers are in a position whereby the test can be carried out at request with reasonable promptitude, they cannot be directed any more explicitly than [the relevant provision] permits ...[42]
[41]Ibid.
[42]Ibid 488 [5] (Ormiston JA).
It should be acknowledged that, in Hrysikos v Mansfield, Eames JA, with whom Chernov JA agreed, approached the issue in that case a little differently, in that their Honours focused on the nature of the obligation to remain in a particular location once a person had arrived at it.[43] This does not, however, detract from Ormiston JA’s elucidation of the effect of the word ‘refuses’ in these provisions.
[43]Ibid 494–5 [22]–[23] (Chernov J), 501 [53]–[55] (Eames J).
In the present case, the judge examined, and set out the substance of, the evidence of both Mr Feltham and Mr Giarrusso before the Magistrate in deciding whether that evidence was capable of satisfying the requirements for the offence of ‘refusing to accompany a police officer … to a place or vehicle where the sample is to be provided’.
However for the purpose of proposed ground 6, we consider it appropriate to commence by considering the evidence of the respondent (Mr Feltham) only, taken at its highest — that is, on the basis that there is no issue as to his credibility. This is in a context where the judge concluded that, if respondent’s evidence were accepted, ‘the only sensible inference is that wherever the [applicant] was and notwithstanding his proximity to the motorcycle he was not at the motorcycle where the respondent requested him to be for the purposes of taking the test’.[44]
[44]Reasons, [61].
At the outset it is significant that the respondent said that he had no recollection of the incident involving Mr Giarrusso and that, in giving evidence, he was relying almost entirely on the ‘pro forma notes’ that he had used and marked at the time and, occasionally, on his usual practice. That was unsurprising, given that some three years had passed between the incident and the date of the hearing. We also observe that, in the course of cross-examination, the substance of the applicant’s defence, as set out in [43] above, was put to the respondent, namely that the applicant was standing beside the testing vehicle (the respondent’s motorcycle) at the time the request or requests to accompany were made. We will return to the respondent’s responses in cross-examination later.
The respondent’s evidence was that he was performing mobile patrol duties on 18 July 2019, when he intercepted Mr Giarrusso, who had been driving his car, ‘for a routine check’. According to the respondent, Mr Giarrusso pulled over into a parking bay in an off-street parking area. The respondent could not recall where he parked the police motorcycle he was riding at the time.
The respondent’s evidence was that Mr Giarrusso completed a preliminary oral fluid test as required, and this indicated that Mr Giarrusso’s ‘oral fluid contain[ed] a prescribed illicit drug’. The respondent’s evidence was that he told Mr Giarrusso the result, and then said to him:
I now require you to accompany me to the testing vehicle for the purpose of an oral fluid test and to remain there until you have undergone the test and received a sample of your oral fluid or [for] a period of time three hours from the time of driving or being in charge, whichever is sooner. Are you prepared to accompany me?[45]
[45]Emphasis in original.
The respondent noted in his evidence that there was ‘no comment written in relation to that question’ — in other words, he was reading the terms of the pro forma document, and he had not made any additional notes at the time concerning that question or whether Mr Giarrusso responded to it.
The respondent’s evidence was that the testing vehicle to which he referred was ‘a police motor cycle’.
The respondent’s evidence went on:
I then said, ‘If you refuse to accompany me to the testing vehicle for the purpose of an oral fluid test, you may be charged with the offence and if found guilty, you may be fined and you will lose your licence for a minimum of two years.’[46]
[46]Emphasis in original.
The respondent then said that he repeated the request to accompany for the purposes of an oral fluid test, and again repeated the consequences of a refusal. He asked Mr Giarrusso if he understood, and said that Mr Giarrusso said, ‘Yes, I do, sir’.
The respondent then said that he again repeated the request to accompany for the purposes of an oral fluid test. The respondent’s evidence was that, in response to that third request, Mr Giarrusso said, ‘Two days ago, I had a smoke’.
According to the respondent, he then asked Mr Giarrusso ‘what is your reason for refusing to accompany me for the purpose of providing a sample of your oral fluid for testing?’ Mr Giarrusso said, ‘[B]ecause I did have a smoke two days ago’. It is not entirely clear whether the respondent’s evidence was to the effect that Mr Giarrusso mentioned having ‘a smoke two days ago’ twice, or whether Mr Giarrusso made that statement once, and the respondent mentioned it twice.
The respondent then said that at that point Mr Giarrusso was free to leave the scene and he and the other officer left the scene.
When asked if Mr Giarrusso had made a verbal response to the requests to accompany, the respondent said, ‘I don’t recall if I don’t have any notes in relation to that’. We understand that to mean that, where the respondent had not made notes about any verbal response(s) Mr Giarrusso might have given, he had no independent recollection of any verbal responses. We observe that his earlier evidence recorded only one response to one of the requests to accompany, namely the statement ‘Two days ago I had a smoke’.
The prosecutor then asked the respondent ‘did he [Mr Giarrusso], in fact, accompany you to the vehicle?’ The respondent said, ‘No’.
In summary, then, the respondent’s evidence was that he made the request that Mr Giarrusso accompany him ‘for the purpose of an oral fluid test’ three times, each time concluding, ‘Are you prepared to accompany me?’ He did not give evidence that Mr Giarrusso verbally refused those requests, although, in response to the final request Mr Giarrusso said, ‘Two days ago I had a smoke’.
At the time of giving evidence, the respondent could not recall where the testing vehicle was parked, although he did say ‘I always park my vehicle behind the ... vehicle that’s being intercepted’. In cross-examination, the respondent conceded that he had parked his motorcycle ‘in the adjacent car spot’ to where Mr Giarrusso had parked his car, and acknowledged that there was a second police officer with him, who was also on a motorcycle. That officer did not give evidence.
In cross-examination, the respondent accepted that Mr Giarrusso had the preliminary oral fluid test while seated in his car; and that Mr Giarrusso left his car after the test returned a positive result. Counsel for Mr Giarrusso put to the respondent that ‘[o]nce you got a positive result’, Mr Giarrusso ‘got out of his vehicle so that you could ask all those questions that you’ve just answered’. The respondent answered, ‘I don’t recall his exact positioning at that time’. The respondent denied, however, that Mr Giarrusso got out of his car and stood next to the police motor cycle. He said that ‘[i]f he had got out of his vehicle and came over to the Police vehicle then I wouldn’t have charged him with refuse to accompany’.
As the following exchange shows, the respondent accepted that Mr Giarrusso was ‘standing in the space between [Mr Giarrusso’s] car and [the police] motorcycle’ and that there was ‘less than two metres between each vehicle’.
[Applicant’s counsel]: ... [Mr Giarrusso] says that he was standing in the space between his car and your motorcycle, which was less than two metres between each vehicle.
[Mr] Feltham: OK.
[Applicant’s counsel]: Accept that?
[Mr] Feltham: Yes.
Further, towards the end of the respondent’s cross-examination, there was the following exchange:
[Applicant’s counsel]: ... I put it to you that [Mr Giarrusso] was ... might have been possible to him to take one more step closer to the motorcycle where he was, when he did that interview?
[Mr] Feltham: I would argue that was probably more than one more step, if he’s not in a position, then I would have charged him with actually refusing to undergo an oral fluid test as opposed to accompany.
[Applicant’s counsel]: Put to you that there was no need for you to make a requirement to accompany him because he’s already standing next to you and next to your motorcycle.
[Mr] Feltham: No.
[Applicant’s counsel]: I’ll put it to you that you’ve actually charged with an offence because what he did was refused to provide the sample other than refuse to accompany.
[Mr] Feltham: No, I’m confident of charging with the correct offence in the circumstances.
[Applicant’s counsel]: Did you ask him to get out of your — out of his car?
[Mr] Feltham: No, I’m I don’t recall and I don’t have notes in relation to that. He has been given the requirement to actually accompany me to the police vehicle for the purpose of providing a oral fluid test.
[Applicant’s counsel]: I’ll put it to you that he, in fact, complied with any such requirement to accompany. He got out of his car and he stood next to your motorcycle and answered all your questions.
[Mr] Feltham: If he had got out of his vehicle and came over to the Police vehicle then I wouldn’t have charged him with refuse to accompany.
In cross-examination, the respondent also accepted that he had a motorcycle with all the equipment he needed in order to do the ‘evidentiary oral fluid tests’, and that ‘[t]he evidentiary oral fluid tests could have been completed by [Mr Giarrusso] ... seated in his vehicle’. The respondent added that ‘I always got people to actually come up to the Police vehicle so that I could actually complete the appropriate paperwork.
As the transcript showed, the respondent frankly acknowledged that he had no recollection of the events involving Mr Giarrusso and, in this circumstance, he could only rely on his notes. This is not only reflected in the tenor of his evidence, but also in the fact that, when not relying on the text of his notes, his evidence was essentially a reconstruction of what he thought would have been the case.
In the course of his cross-examination, the substance of the applicant’s defence was put to the respondent. Significantly, the respondent did not give evidence based on his recollection of the central issue in whether the charge of refusing to accompany a police officer to a testing vehicle had been established, namely, where Mr Giarrusso was at the time the respondent directed him to attend the testing vehicle. This central issue was not addressed in his notes either.
As a result, any evidence that the respondent gave as to this location was the product of the respondent’s subsequent reconstruction of the incident. Thus, when the applicant’s counsel put Mr Giarrusso’s proximity to the testing vehicle to him, the respondent replied ‘I would argue that was probably more than one more step, if he’s not in a position, then I would have charged him with actually refusing to undergo an oral fluid test as opposed to accompany’.[47] Since the respondent had no recollection of the incident, he simply could not give any specific evidence about Mr Giarrusso’s location.
[47]Emphasis added.
So too, the respondent’s answer in effect denying that that ‘there was no need for you to make a requirement to accompany him because he’s already standing next to you and next to your motorcycle’ could not be based on his actual recollection.[48] Nor could it be based on the respondent’s notes. Rather it was based on the reconstruction of events.
[48]See paragraph [74].
We accept that, absent the cross examination of the respondent, it would have been open to draw the inference from the (undisputed) requests to accompany recorded in the respondent’s notes that the applicant was not at the time of each request at the place he was requested to go; and, in light of the repeated requests and the charged offence, it would be open to infer that the applicant had refused to accompany the respondent to the testing vehicle.
However in our view that inference is not open in the unusual circumstances of this case namely:
(a)the respondent had no notes about the location of the applicant and the motorcycle at the time the requests were made;
(b)the respondent accepted that the applicant ‘was standing in the space between his car and [Mr Feltham’s] motorcycle, which was less than two metres between each vehicle’;
(c)the respondent’s other answers were based on reconstruction, not on recollection; and
(d)in light of (b), the requests recorded in the notes were not sufficiently certain so as to direct the applicant to where he was to accompany the respondent, given that at the time the applicant was in very close proximity to the motorcycle.
As result, we consider the judge erred in concluding that, based on the evidence of the respondent ‘the only sensible inference is that wherever the [applicant] was and notwithstanding his proximity to the motor cycle he was not at the motor cycle where the respondent requested him to be for the purpose of taking the test’.[49]
[49]Reasons, [61]
Taken at its highest, then, we do not consider that the respondent’s evidence was capable of proving the elements of the offence with which Mr Giarrusso was charged.
We are conscious that the judge stated his conclusion that the evidence was capable of supporting a conviction was ‘consistent with [Mr Giarrusso’s] own evidence that the respondent asked him to “step over to the bike ... to be closer or got to have a test or something like that”, and that [Mr Giarrusso] refused’.[50] We accept that, if Mr Giarrusso had made an admission that he had refused to accompany the respondent to the police motorcycle, then that could be taken into account in assessing whether it was open to the Magistrate to convict Mr Giarrusso on the evidence before the Magistrate.
[50]Ibid.
However, Mr Giarrusso’s evidence was, with one exception, consistent with the defence case put to the respondent. The exception was as follows:
[Prosecutor]: So he was making his notes. And he says ...
[Mr] Giarrusso: … [INAUDIBLE] said step over to the bike, yeah, to be closer or got to have a test or something like that. I presumed they’ll call a divvy van then take me to the Police Station and go from there, so I refused.
It was this aspect of Mr Giarrusso’s evidence upon which the judge relied.
On its face this part of his evidence might appear to be an admission that Mr Giarrusso was not at the police motorcycle when he was asked to accompany the respondent to the vehicle. However, we do not consider that it can properly be so characterised. First, even assuming this to be an admission that Mr Giarrusso could step closer to the bike, it is not in terms an admission that he was not at the bike for the purposes of considering whether he had failed to accompany the respondent as requested. Second, and relatedly, Mr Giarrusso went on immediately to say that he was ‘at the bike’:
[Prosecutor]: So if you — you say if you had actually gone over to the bike, so you’re not saying at this point of time you went back to the bike?
[Mr] Giarrusso: No, I was at the bike.
[Prosecutor]: … So you’re at the bike and you’re saying he’s asking you to come back to the bike, so you’re literally standing at the bike.
[Mr] Giarrusso: If you open the door, yes.
[Prosecutor]: Yes.
[Mr] Giarrusso: Like half a metre between the bike and the door and just the door and the bike …
Thus, read in context, the evidence relied on by the judge was not an admission that the applicant had failed to accompany the respondent to the motor bike. Rather, the context reveals that the consistent substance of the applicant’s evidence was that at all relevant times he was beside the respondent’s motorcycle.
In these circumstances we would allow the appeal in respect of proposed ground 6.
We would make the following additional observations. First, in such a case as this, where the gravamen of the offence is a failure to comply with a lawful requirement made by a police officer to accompany him to a particular place, it is important that what is being required of the person is clear. There ought be no uncertainty about the specific location the officer has in mind. In some cases, of which this may have been one, merely repeating an authorised set of words will not be sufficient to ensure that the requirement is adequately understood.
Secondly, the parties asked the judge to consider whether ‘the evidence’ capable of establishing the offence of refusing to accompany, and also whether the offence was established beyond reasonable doubt based on ‘the evidence’ before the Magistrate. The first question can be assessed on the basis of the evidence taken at its highest (including on matters of credit). However, the second question would often require an assessment of the witness’s credit. We consider a judge should not be asked to determine the question of an appellant’s guilt unless it is clear that an assessment of credit can have no part to play in reaching an answer. That is because the review judge will not be in a position to evaluate the credit of the witnesses; but nor do we consider it appropriate for that judge simply to accept and act upon the Magistrate’s assessment of credit.
Proposed grounds 1, 2 and 3
Having regard to this conclusion, it is unnecessary to consider proposed grounds 1, 2 and 3. These related to the judge’s determination of the evidentiary issues discussed in paragraphs [20]–[26] above. In view of the Court’s conclusion on ground 6, these issues fall away.
Conclusion
For the reasons stated above, leave to appeal should be granted on proposed ground 6, and the appeal should be allowed. Leave to appeal on proposed grounds 4 and 5 should be refused, and the application for leave to appeal otherwise dismissed. There will be some consequential orders, about which we will hear from the parties.
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