Giarrusso v Feltham

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2022 05149

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

BETWEEN

MICHAEL GIARRUSSO	Appellant
v
CAMERON FELTHAM	Respondent

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JUDGE:	Watson J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 February 2024
DATE OF JUDGMENT:	27 February 2024
CASE MAY BE CITED AS:	Giarrusso v Feltham
MEDIUM NEUTRAL CITATION:	[2024] VSC 56

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APPEAL – Criminal Procedure Act 2009 (Vic) s 272 – Question of law – Whether Magistrate found appellant guilty of refusing to provide a sample of oral fluid by a prescribed device or refusing to accompany police officer for the purpose of providing a sample of oral fluid – Whether there was evidence capable of establishing refusing to accompany – Whether the Magistrate conflated refusing to provide a sample and refusing to accompany – Appellant guilty of offence of refusing to accompany police officer – Appeal dismissed – Road Safety Act 1986 (Vic) s 49(1)(eb).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr S Hardy	The Law Offices of Barry Fried
For the Respondent	Ms E Ruddle KC	Solicitor for Public Prosecutions

HIS HONOUR:

This is an appeal on a question of law pursuant to s 272 of the Criminal Procedure Act 2009 (Vic) against Orders made on 16 November 2022 by the Magistrates’ Court of Victoria (‘Magistrates’ Court’).

On 16 November 2022 the Magistrate:

(a) found the appellant guilty of an offence under s 49(1)(eb) of the Road Safety Act 1986 (‘the Act’) but without recording a conviction;

(b) cancelled all licences issued under the Act; and

(c) disqualified the appellant from obtaining a licence for a period of 48 months without recording any conviction or financial penalty.

(collectively ‘the Orders’)

It is implicit in the previous paragraph, but for reasons which will become evident in resolving the controversy between the parties as to what happened in the Magistrates’ Court, it is important to observe that a finding of guilt of an offence without a conviction being recorded is, for the purposes of this appeal, to be treated as an order of the Magistrates’ Court.[1]
[1] Chu v Henham [1999] VSC 139, [9]–[21].

Section 49(1)(eb) of the Act creates a number of separate offences. There is a controversy between the appellant and the respondent as to the offence of which the appellant was found guilty. The appellant contends that he was found guilty of the offence of what might be described in a shorthand manner as refusing to provide a sample of oral fluid by a prescribed device (‘refusing to provide a sample’). The respondent contends that the appellant was found guilty of the offence with which he was charged, which may be described in shorthand terms as refusing to accompany a police officer to a place for the purpose of providing a sample of oral fluid for testing (‘refusing to accompany’).

The respondent accepts that if the appellant was found guilty of the offence of refusing to provide a sample, he was found guilty of an offence with which he was not charged and the Orders should be quashed. For the reasons which follow, I am satisfied that the appellant was found guilty of the offence of refusing to accompany – that is, the offence with which he was charged.

The appellant alleges that even if he was found guilty of the offence of refusing to accompany, the Orders should be quashed because:

(a) The evidence before the Magistrate was incapable of satisfying the requirements for the offence of refusing to accompany; and

(b) The Magistrate incorrectly conflated the elements of the offences refusing to accompany and refusing to provide a sample.

I have decided that the evidence before the Magistrate was capable of satisfying the requirements for the offence of refusing to accompany but that the Magistrate did in his reasons (‘Reasons’) conflate the requirements of refusing to accompany and refusing to provide a sample. The parties agreed that if I reached those conclusions I should consider for myself whether the evidence established the appellant’s guilt. I have done so and concluded that the appellant was guilty of the offence of refusing to accompany.

For the reasons which follow I would dismiss the appeal.

The offence provisions

Section 49(1)(eb) of the Act provides as follows:

(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; or

The requirements under s 55E of the Act are relevant in this proceeding. Section 55E(2) provides as follows:

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 present it is made, indicates that the person’s oral fluid contains a prescribed illicit drug; or
…
any police 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 … 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.

Section 49(1)(eb) of the Act creates as many separate offences as there are separate requirements in ss 55D and 55E.[2] Relevantly for present purposes where a person has undergone a preliminary oral fluid test under s 55D:
[2]See DPP v Greelish [2002] VSCA 49, [11]–[15] and [26] dealing with the analogous provisions in ss 49(1)(e) and 55 of the Act.

(a) refusing to accompany; and

(b) refusing to provide a sample

are separate offences.

The evidence on appeal

On the appeal the appellant tendered three affidavits:

(a) Affidavit of Barry Fried affirmed 1 February 2023 (‘first Fried affidavit’) which exhibits the Charge-Sheet and Summons (‘Charge Sheet’)[3] and a document headed “Notice of Order Made” (‘Register extract’);[4]

(b) Affidavit of Barry Fried affirmed 28 June 2023 (‘second Fried affidavit’) which exhibits the transcript of proceedings at the hearing before the Magistrate (‘Magistrates’ Court transcript’);[5] and

(c) Affidavit of Barry Fried affirmed 11 October 2023 (‘third Fried affidavit’).

[3]Court Book (‘CB’) 12; Exhibit BF 1 to the first Fried affidavit.

[4]CB 13; Exhibit BF 1 to the first Fried affidavit.

[5]CB 29–80; Exhibit BF 2 to the second Fried affidavit.

The respondent also tendered three affidavits:

(a) Affidavit of Megan Elizabeth Healey affirmed 20 September 2023 (‘first Healey affidavit’);

(b) Affidavit of Megan Elizabeth Healey affirmed 14 November 2023 (‘second Healey affidavit’) which exhibits an email dated 14 November 2023 from Ms Misty Summers, a registrar of the Magistrates’ Court, to Ms Healey (‘the Summers email’);[6] and

(c) Affidavit of James Brendan Gullaci affirmed 2 February 2024 (‘Gullaci affidavit’).

[6]CB 120–121; Exhibit MEH-2 to the second Healey affidavit.

All of the affidavits were admitted to evidence on the appeal. The appellant objected to the admission of the Summers email on the basis that it was new evidence which was not admissible on appeal and on the further basis that it contained inadmissible hearsay. I admitted the portions of the Summers email on which the respondent sought to rely for reasons which I discuss below.

The Charge Sheet shows, and the parties agreed, that the appellant was charged with refusing to accompany.

The Register extract is replicated below (omitting the appellant’s address).

CP258-1

NOTICE OF ORDER MADE

The Magistrates’ Court of Victoria at MOORABBIN made the following entries

in the register on the 16th day of November 2022

Case Number

Charge Number

K12719712

1

Informant, Plaintiff

Complainant or Applicant

FELTHAM, CAMERON DAVID

SAR TRAINING UNIT

Accused/Respondent GIARRUSSO, MICHAEL JOSEPH D.O.B. 23/03/1991

How before the Court CHARGE AND SUMMONS

Nature of Charge

or Civil Proceeding

Accused at BENTLEIGH

on 18/7/2019 did commit a breach of Act 86/127.49.1.EB

REFUSE TO PROVIDE A SAMPLE OF ORAL FLUID

COURT ORDER

Order that the offender’s license be cancelled. Offender is disqualified from driving in the State of Victoria for a period of 48 months.

Order on license effective from 16/11/2022
DISCHARGED

  SJ LEE

Pg 1  MAGISTRATE

Remarks Plea:    Exparte
  MR HARDY

__________________________________________________________________________________________
Dated at MOORABBIN             this 14^th day of December 2022

  MICHAEL GIARRUSSO

The appellant particularly relies upon that portion of the extract which describes the nature of the charge as ‘Refuse to provide a sample of oral fluid’.

The appellant relies on s 18(5) of the Magistrates’ Court Act 1989 (Vic) (‘the MCA') to prove that the offence of which the Magistrate found proven was the offence of refusing to provide a sample. Section 18(5) provides as follows:

(5)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.

The Register extract does not appear to be signed and certified by a Registrar, but both parties addressed me on the basis that it was such an extract and I proceed on that basis.

The appellant also relies on rule 5 of the Magistrates Court Authentication and Electronic Transmission Rules 2021 (‘the Authentication Rules’) which provides as follows:

5 Authentication of orders
For the purposes of section 18(2) of the Act, an order may be authenticated—
(a) if the order is entered in writing in the register, by the person who constituted the Court signing the entry; or
(b) if the order is entered into a computerised data storage and retrieval system, by the person who constituted the Court entering confirmation of the order into the system.
Note
The means by which the person who constituted the Court confirms the order may include the use of an electronic signature.

The respondent seeks to adduce the evidence in portions of the Summers email as evidence which establishes that the Register extract contains an error in its description of the offence charged.

The admissibility of the Summers email

The portions of the Summers email which the respondent seeks to adduce in evidence are set out below:

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 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.
…
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.

As I have indicated above, the appellant objected to the tender of the Summers email on the basis that it was an attempt to adduce new evidence on appeal. Counsel for the appellant referred me to the decision of Smith v Chalmers.[7] That case was an appeal under s 92 of the MCA (the predecessor provision of s 272 of the Criminal Procedure Act (2009) (Vic)) against an order of the Magistrates’ Court by which Mr Smith had been convicted. In his judgment Ashley J said:

…the appellant sought to rely upon evidence which was not before the magistrate to prove that the summons was not posted to his last known address; and because the respondent in reply sought to rely upon evidence which was not before the magistrate to prove the converse. Neither of counsel for the appellant or the respondent was able to point to any authority which would permit this Court to consider and adjudicate upon new factual material in an appeal under s 92 of [the MCA]. I know of no such authority. Receipt of such evidence would be contrary, in my opinion, to the concept of appeal on a question of law which derives from the language of the section and which appears from the many authorities that dwell upon what is meant by a question of law both generally and in the particular context. I took the view that such evidence could not be received.[8]

[7][2003] VSC 236.

[8]Ibid [21].

The decision in Smith v Chalmers is not relevant in this case. In that case what was sought to be adduced was new evidence going to factual matters which were required to be established in order for the Magistrate to convict the accused of an offence. However, the Summers email is not “new” evidence in the sense used by Ashley J – it is adduced for the purpose of establishing what actually occurred in the Magistrates’ Court in the hearing. Section 18(5) of the MCA 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. None of these documents were before the Magistrate. They are adduced on the appeal as evidence tending to establish what occurred in the hearing on that day. Each is a documentary representation of things which are said to have occurred in the Magistrates’ Court.

I note that r 3A.09 of the Supreme Court (Criminal Procedure Rules) 2017 provides:

The Court may call for a report from the court that made the order from which the appeal is brought, and, if the contents of that report have first been made available to the parties to the appeal, the Court may act upon the report.

Neither party contended that I should call for a report under r 3A.09 in this proceeding but for present purposes it is relevant because it shows that in ascertaining what occurred in the hearing, this Court is not limited to the matters which were before the Magistrate.

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.

The respondent also objected to the Summers email on the basis that it was hearsay. In the circumstances, I am satisfied that the portions of the Summers email on which the respondent relies were admissible under s 65(2)(c) of the Evidence Act 2008 (Vic) (‘Evidence Act’).

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.

For completeness, I note that in correspondence to the respondent the Principal Registrar of the Magistrates’ Court of Victoria asserted that the subpoena should not have been issued to Ms Summers as she was a Registrar and so effectively the subpoena was addressed to the Court. If the position is as asserted in that letter, then this would provide a further basis on which to find Ms Summers was unavailable. I have held that Ms Summers was not physically able to give evidence and it was not reasonably practical to overcome that inability and that all reasonable steps had been taken to secure her attendance, and so I do not need to rule on the veracity of the contention in correspondence from the Principal Registrar to the respondent.

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.

Counsel for the appellant further contended that the Summers email should not be admitted because the respondent had not demonstrated that there was someone else from the Magistrates’ Court who could not have given the evidence in Ms Summers’ stead. That submission should also be rejected.

First, in terms of whether s 65 of the Evidence Act applies the central question is whether the maker of the representation is unavailable, not whether some other person is available who could make the same representation.

Secondly, insofar as such a submission might be relied upon as a basis for me to exercise the general discretion under s 135 of the Evidence Act to exclude the relevant portions of the Summers email, there is in my view no basis for the exercise of that discretion. Counsel for the appellant could point to no real prejudice arising from the admission of the relevant portions of the Summers email. He conceded it was unlikely to be inaccurate in any way, but said that it may not have given a complete picture regarding how the Magistrates’ Court system worked.

The Summers email is tendered for the limited purpose of demonstrating that the details of the offence with which the appellant was charged were incorrectly entered in the Magistrates’ Court system when the charge was filed and that those details had not been altered since. In those circumstances, I am not persuaded there is any “incompleteness” which could give rise to any prejudice to the appellant from the admission of the portions of the Summers email on which the respondent relied and so there is no basis to reject its tender under s 135 of the Evidence Act.

Finally, in this respect I note that the respondent’s notice under s 67 of the Evidence Act (‘hearsay notice’) as filed, incorrectly refers to s 63 and s 64 which relate to the admission of hearsay evidence in civil proceedings. That error occurred primarily because the respondent’s legal advisors regarded the appeal as not being “a proceeding for the prosecution of an offence” nor a committal or bail application and therefore not a “criminal proceeding” within the meaning of the Evidence Act. The decision in Chidiac v R (No 2) (‘Chidiac’) establishes that an appeal is ‘a proceeding which concerns the ascertainment of liability for a criminal offence’ and so for the purposes of the Evidence Act is a criminal proceeding.[9] The nature of the appeal in Chidiac was different to the nature of the appeal here but the respondent accepts, and it is my view, that that difference does not alter the proper characterisation of the nature of the proceeding under the Evidence Act.
[9][2016] NSWCCA 120, [143]–[144].

In submissions filed at the request of the Court after the hearing of the appeal, the respondent seeks leave to amend his hearsay notice to refer to s 65(2)(c) of the Evidence Act. The appellant says the respondent should be bound by the conduct of his case and should not be permitted to amend the notice. I can discern no prejudice to the appellant if the respondent is permitted to amend the hearsay notice. The appellant 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 the appellant on that issue. The hearsay notice did not give the appellant notice of the respondent’s reliance on sub-paragraph (c) of s 65(2) but the appellant’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.

In the circumstances, I am prepared to give leave to the respondent to amend his notice to refer to s 65(2)(c) of the Evidence Act instead of the references to ss 63 and 64. Though no application was made by the respondent, I should also indicate that had the respondent not sought to amend his hearsay notice and instead made an application under s 67(4) for a direction that he be permitted to rely on s 65 of the Evidence Act, I would have made such a direction. In light of the matters outlined above and having regard to the matters required by s 192 of the Evidence Act, a direction under s 67(4) would have been appropriate to allow the Summers email to be admitted in the absence of a complying notice under s 67 of the Evidence Act.

Found guilty of which offence?

The appellant contends that he was found guilty of the offence of refusing to provide a sample. In support of that contention he points to the following evidence:

(a) The Register extract; and

(b) Portions of the Reasons as recorded in the Magistrates’ Court transcript.

The respondent contends that the evidence establishes that the offence the Magistrate found proven was the offence of refusing to accompany. In this regard he:

(a) Emphasises that the Orders are those which were pronounced by the Magistrate on 16 November 2022;

(b) Says a proper reading of the Magistrates’ Court transcript and the Reasons shows that the Magistrate appreciated the nature of the offence with which the appellant was charged, being refusing to accompany, and found that offence proven; and

(c) Relies on portions of the Summers email which he says establish that the Register extract incorrectly describes the offence with which the appellant was charged.

The Respondent’s submissions in this regard should be accepted.

It is well established that the order of the court is that which is pronounced by the judge or magistrate.[10] The Register extract is admissible in evidence to establish the content of the Orders but it is not conclusive.
[10]Keech v County Court of Victoria (2017) 55 VR 32, 49–52 [58]–[61], [69].

The appellant points in particular to the following passages in the Reasons as indicating that the Magistrate found the appellant guilty of refusing to provide a sample:

As to the refusal in this case the Accused, in evidence, admitted to the refusal to provide the oral fluid test, that refusal being because he had a belief that the testing was to be done at a Police station. Yet the evidence of Feltham was very explicit, as to the demand made four times for an oral fluid sample, at no stage, did he mention a Police Station.

Again, I note that Mr. Giarrusso refused.

…

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 that this meant he would go to a Police Station. He was unfortunately wrong in this belief, accordingly I find the charge proven.[11]

[11]CB 75; Transcript of Magistrates’ Court Proceeding on 16/11/2022 (‘Magistrates’ Court Transcript’) 47/20–44.

The appellant says these passages indicate the Magistrate found the appellant guilty of the charge of refusing to provide a sample and that the Register extract confirms that this is the charge which the Magistrate found proven.

There is an inherent tension in the appellant’s reliance on the Register extract. His argument relies on having been found guilty of an offence with which he was not charged but the Register extract records him as having been charged with an offence which he was not. The Register extract does not record a finding of guilt in the section dealing headed ‘Court Order’, the only reference to the ‘wrong offence’ is in the section of the extract which records the nature of the charge. So the appellant relies on a document which does not record the order of which he complains (the finding of guilt) to impugn that order on the basis of a section of that document which he accepts inaccurately records the offence with which he was charged. Even without the Summers email I am not satisfied that the Register extract provides evidence which warrants the conclusion that the appellant was convicted of refusing to provide a sample.

Further, within the meaning of s 18(5) of the MCA the respondent has adduced ‘evidence to the contrary’ demonstrating the Register extract is wrong. The Summers email establishes that the misdescription of the charge in the register occurred when details of the charge were entered into the system, prior to the Magistrate’s hearing of the matter and that there is no evidence that any alteration was made to that record at any time.

The Magistrate has not signed the Orders and there is no evidence before me as to whether the Magistrate entered confirmation of the Orders into the Magistrates’ Court’s computerised data storage and retrieval system. In those circumstances, the appellant cannot rely on the provisions of rule 5 of the Authentication Rules as indicating that the Magistrate has in effect post facto ratified the incorrect description of the charge which appears elsewhere in the Register extract.

I am satisfied that the section of the Register extract which describes the offence which has been charged as being ‘refuse to provide a sample’ results from an administrative error in the Court and is not evidence on which reliance can be placed of the offence which the Magistrate found proven. In those circumstances, the question of the offence which the Magistrate found the appellant had committed can only properly be determined by a review of the transcript of proceedings before the Magistrate.

I accept the respondent’s submission that, notwithstanding some infelicities of expression in the Reasons, viewed in totality the transcript demonstrates that the Magistrate found the appellant had committed the offence of refusing to accompany.

In this regard it is significant that the submissions of counsel for the appellant were squarely directed at whether the charge of refusing to accompany could be made out in the circumstances. In the course of those submissions, counsel for the appellant said:

My submission is that the Informant has alleged the wrong offence. That the proper course for … the Informant was to charge him with refusing to supply an oral fluid sample. That the requirement to accompany being obsolete at that point he could have and should have prosecuted him with a different offence and … in cross-examination, he admitted as much himself that that is a different offence.[12]

[12]CB 62–63; Magistrates’ Court Transcript 34/40–35/2.

Relevant extracts from the Reasons in this regard are set out below:

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 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.
…
… in final submissions, it emerged that the main issue was whether there’d been a refusal to accompany to a testing vehicle because the Accused was already at or near the testing vehicle.
On the issue of refusal to accompany, the evidence of Feltham was … [the Magistrate then set out a summary of the evidence of the respondent including that there had been four separate requests to the appellant to accompany the police office to his vehicle for testing].
…
… [Counsel for the appellant] submitted that it was a physical impossibility to accompany [the respondent] to a place he’s already at and the requirement to accompany is obsolete in circumstances where the Accused is already at the place he’s being asked to attend. And he’d been charged, therefore, with the wrong offence. His client was standing, at all times relevant, near the Police vehicle. The Police case is that it’s a refusal to conduct the oral fluid test, which is the essence of the offence, the conscious refusal, rather than the accompaniment to the location.
I turn to my findings. On the defence case, there is no refusal to accompany because the Accused 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, not just one or two, but four demands. Secondly, the evidence is that each demand was not merely to accompany but to accompany for the purposes of a breath test. So it’s not merely a request to go to a designated physical location, but to go to that location for a very specific purpose. Third, the Accused was informed at least twice of the legal consequences of 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.
…
The offence is made out because, properly viewed, the Accused 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 Feltham as to the tests being conducted at [a] testing vehicle.
…
Accordingly, I find the charge proven.[13]
(emphasis added)

[13]CB 72–75; Magistrates’ Court Transcript 44–47.

Viewed against the backdrop of counsel for the appellant’s submissions and considering the totality of the Reasons, it is apparent that:

(a) the Magistrate understood that the appellant had been charged with refusing to accompany;

(b) he referred to the evidence of the respondent’s requests for the appellant to accompany him;

(c) he dealt at length with counsel for the appellant’s submissions that the offence of refusal to accompany could not be made out; and

(d) ultimately his decision was that he found the charge, which can only refer to the charge of refusing to accompany, proven.

In the circumstances, despite the infelicities of expression in the passages on which the appellant relies, it is plain that the Magistrate knew that the charge was a charge of refusing to accompany, specifically considered the argument of counsel for the appellant that the appellant had been charged with the wrong offence and found the charge proven. Notwithstanding the contents of the Register extract and those aspects of the transcript on which the appellant relies, 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.

Was the evidence capable of establishing refusing to accompany?

The appellant further contends that the evidence before the Magistrate was such that it was incapable of supporting a conviction for a refusal to accompany. In this regard, the appellant relied on DPP v Foster[14] where Winneke P stated:

In any event, as the case of Webb (Supra) demonstrates, there will be occasions where the preliminary breath test itself is lawfully administered at the police station. In such a case it would be pointless for the officer to exercise the power of requiring the motorist to accompany an officer to the place where he already is. The fact that circumstances will exist where the exercise of the power will be unnecessary only serves, in my view, to demonstrate that proof of its exercise is not an essential pre-condition to the establishment of the offence described by s 49(1)(f).

[14][1999] 2 VR 643, 658 [50].

The appellant contended that the evidence demonstrated that he was already at the place where he was being requested to accompany the respondent. This argument rested on the proposition that at the time of the relevant requests the appellant was standing 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.

The evidence of the respondent was that he made four separate requests to the appellant to accompany him to the testing vehicle for the purpose of administering the oral fluid test. The appellant made no response to the first two requests. The respondent then informs the appellant of the potential consequences of a refusal to accompany and asks him if he understands. The appellant says he does. The respondent then gives evidence of two further requests where the appellant indicates he does not want to accompany the respondent because he had “a smoke” two days previously. All of this evidence was accepted by the Magistrate.

The respondent accepted in cross-examination that the appellant would have been less than two metres from the motorcycle but is emphatic that the appellant was not where he had requested him to be for the purpose of conducting the test.

HARDY: I put it to you that the Accused refused to provide an evidentiary oral fluid sample rather than refusing to accompany?
FELTHAM: No. There is a specific charge in relation to refusing a -- oral fluid sample. And if the Accused hasn't actually stepped forward up to the motorcycle or the Police vehicle where I could conduct that test, then there's a reason of charging specifically with that offence.
…
HARDY: So he was -- I put it to you that he was -- might have been possible to him to take one more step closer to the motorcycle where he was, when he did that interview?
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.
HARDY: 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.
FELTHAM: No.
HARDY: 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 refused to accompany.
FELTHAM: No. I'm confident of charging with a correct offence in the circumstances.
HARDY: Did you ask him to get out of your -- out of his car?
FELTHAM: 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.
HARDY: 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.
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.[15]

[15]CB 47–48; Magistrates’ Court Transcript 19–20.

The appellant’s evidence in chief was that he got out of his car because the police officer asked him to accompany him and that he did accompany the police officer to the motorcycle. In cross examination he says he presumed the police officer wanted him to go to the police station and accepts that at a point when he was out of the car he was asked to be closer to the bike and he refused.

PROSECUTOR: So what was said to you and where were you when that was said?
GIARRUSSO: Nothing was said to me. I just asked to do an extra test and I presumed that I’d be going to the Police Station and I said no. But I was still there engaging with the Officer, answering the rest of the questions that he had in his handful of paper. Yes. And then he was reading out to me and asking me. Like...
PROSECUTOR: So he was making his notes. And he says…
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.[16]

[16]CB 54; Magistrates’ Court Transcript 26/11–24.

The evidence of the appellant was that he was close to the respondent’s motorcycle, at one point he says: ‘I was at the vehicle. I couldn’t get any closer unless I got on the bike.’[17]
[17]CB 57; Magistrates’ Court Transcript 29/9–10.

The Magistrate was impressed by the evidence of the respondent and expressly accepted that he had made four separate requests of the appellant to accompany him and twice informed the appellant of the consequences of refusing to accompany. The Magistrate accepted that the appellant had alighted his car and was standing somewhere near the police motorcycle (he incorrectly refers to this as the police car in the Reasons). If the respondent’s evidence is accepted, the only sensible inference is that wherever the appellant 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 the appellant’s own evidence that at a point when he was outside his own vehicle the respondent asked him to ‘step over to the bike, … to be closer or got to have a test or something like that’[18] and that the appellant refused.
[18]CB 54; Magistrates’ Court Transcript 26/22–23.

In those circumstances, contrary to the submissions of the appellant, the evidence before the Magistrate was capable of supporting a charge of refusing to accompany albeit in circumstances where the distance of the appellant from the motor vehicle was, even on the evidence of the respondent, not very far.

Before the Magistrate counsel for the appellant sought to argue that the appellant’s refusal was a refusal to provide a sample rather than a refusal to accompany. Whilst this argument was not really pressed on appeal for completeness I state my views. First, I do not accept that that is an appropriate characterisation of the evidence of what the appellant did. Even on the appellant’s own evidence on at least one occasion he refused to get closer to the motorcycle for the purpose of the test. Secondly, the precise words of the accused are not, in my view, determinative of the nature of the refusal. In the circumstances, and as counsel for the appellant conceded, the critical issues in characterising the refusal are the nature of the request (which the Magistrate has accepted was in each instance a request to accompany) and the proper characterisation of whether the appellant was complying with that request.

Nor in these circumstances does anything turn on the appellant’s belief that he was being requested to accompany the police officer to the police station as opposed to the motorcycle which was some short distance away. The appellant’s belief in that regard does not alter the fact that there was a request to accompany and a refusal of that request.

Did the Magistrate conflate refusing to provide a sample and refusing to accompany?

The appellant contends that if the Magistrate did find him guilty of the offence of refusing to accompany that there is nonetheless an error of law because the reasons of the Magistrate demonstrate that the Magistrate impermissibly conflated the requirements of the offence of refusing to provide a sample with the requirements of refusing to accompany. For this aspect of his submissions the appellant relies on the same portions of transcript as he does for the proposition that the Magistrate found the appellant had committed the offence of refusing to provide a sample.

Not without some hesitation, I find that in the Reasons the Magistrate did conflate the elements of the offences of refusing to accompany and refusing to provide a sample.

I am conscious that the starting point in any consideration of the Reasons is the proposition that reasons for decision should not be scrutinised as though they were statute. This is all the more the case in a busy Magistrates’ Court.

As noted above, the appellant places particular reliance on the following paragraph from the transcript:

As to the refusal in this case the Accused, in evidence, admitted to the refusal to provide the oral fluid test, that refusal being because he had a belief that the testing was to be done at a Police Station. Yet the evidence of Feltham was very explicit, as to the demand made four times for an oral fluid sample, at no stage did he mention a Police Station.[19]

[19]CB 75; Magistrates’ Court Transcript 47/21–25.

I am satisfied that read in context these sentences do not indicate a conflation of the offence of refusing to accompany with the offence of refusing to provide a sample. The first sentence in the paragraph quoted is an accurate summary of part of the appellant’s evidence. The second sentence is simply an error of expression, the evidence of the respondent was of a demand made four times for the appellant to accompany him and the Magistrate was plainly aware that this was so because earlier in the Reasons, he summarises the evidence of the respondent[20] and then expressly refers to the respondent having made four demands to accompany.[21]
[20]CB 73-74; Magistrates’ Court Transcript 45/29–46/4.
[21]CB 74-75; Magistrates’ Court Transcript 46/40–47/6.

In addition, the appellant relies on the following portion of the Reasons:

I find the Accused alighted his car and stood somewhere near the Police car. The offence is made out because, properly viewed, the Accused 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 Feltham as to the tests being conducted at 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 that this meant he would go to a police station.[22]
(emphasis added)

[22]CB 75; Magistrates’ Court Transcript 47/31–41.

I accept, as the respondent submitted, that a refusal to accompany can occur even if the words used by the accused are a refusal to take a test. As I discussed above, whether there is a refusal to accompany is not dependent on the precise words of the accused but on the nature of the request and whether the words (if any) and conduct of the accused can properly be regarded as a refusal to accompany in all the circumstances. As a result, the first paragraph of the portion of the Reasons quoted in the preceding paragraph reveals no error of law.

On balance and, as I say with some hesitation, it is my view that the highlighted portion of the Reasons extracted above demonstrates that the Magistrate has made an error of law in conflating the elements of refusing to accompany with those of refusing to provide a sample.

The reference to the location being “incidental” might be referrable only to the question of the appellant’s belief as to whether he was being asked to accompany the respondent to the motorcycle or the police station and the references to the refusal to take the test might possibly be construed as dealing simply with the nature of the appellant’s refusal in this case. However, on balance, I do not think this is so. On the face of it, those sentences do not merely characterise the evidence of the appellant for the purposes of ascertaining whether there was in fact a refusal to accompany in this case but describe what the Magistrate regards as critical and non-critical (or incidental) elements of the offence of refusing to accompany.

Disposition

Both parties agreed that in the event that:

(a) I found that the evidence was capable of sustaining a conviction; but

(b) I found that the Magistrate had made an error of law by virtue of conflating the requirements of refusing to accompany with the requirements of refusing to provide a sample;

then rather than remit the matter to the Magistrates’ Court, I should review the evidence and determine whether the appellant was guilty of the offence.

In the circumstances, I am satisfied to the relevant standard that the appellant was guilty of the offence of refusing to accompany. In this regard, my conclusions can be stated as follows:

(a) Insofar as there was a conflict between the evidence of the respondent and the evidence of the appellant 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 the appellant 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 the appellant to the motor vehicle at the time he alighted from his own car, the appellant 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) the appellant was non-responsive to the first two requests to accompany;

(ii) that the appellant had been advised of the consequences of a refusal to accompany and had said he understood those consequences; and

(iii) the appellant’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 the appellant of the requests of the respondent; and

(e) Importantly, there is also the appellant’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 the appellant’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 the request.

In short, each of the elements of the offence which were in contest are proved beyond reasonable doubt and the appeal should be dismissed.

---

Citations

Giarrusso v Feltham [2024] VSC 56

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DPP v Greelish [2002] VSCA 49

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[2024] VSC 56

27 February 2024