Giarrusso v Feltham - [2024] VSC 56

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Giarrusso v Feltham

Details

AGLC: Giarrusso v Feltham [2024] VSC 56
Case: [2024] VSC 56
Decision Date: 27 February 2024

CaseChat Overview and Summary

The appeal in Giarrusso v Feltham involved the appellant, Giarrusso, contesting a conviction for refusing to provide a sample of oral fluid as required by the Road Safety Act 1986 (Vic). The case was heard in the County Court of Victoria, which sat as the Court of Appeal. Giarrusso argued that the Magistrate had not properly found him guilty of the specific offence of refusing to accompany a police officer to provide the sample, as opposed to merely refusing to provide the sample itself. The central issue was whether the Magistrate had correctly identified the offence based on the evidence presented.

The court needed to determine whether the evidence was sufficient to establish that Giarrusso refused to accompany the police officer, as opposed to simply refusing to provide the sample. The appellant contended that the Magistrate had conflated the two distinct offences, which would render the conviction invalid. The court had to carefully examine the Magistrate's findings and the evidence to ascertain whether Giarrusso's refusal to accompany the police officer was clearly established. The appeal hinged on whether the distinction between the two refusals was preserved in the Magistrate's decision.

The Court of Appeal found that the evidence was adequate to establish that Giarrusso refused to accompany the police officer, separate from merely refusing to provide the sample. The court held that the Magistrate had not conflated the two offences but had correctly identified the offence of refusing to accompany the police officer. The appeal was dismissed, as the evidence supported the Magistrate's findings. The court was satisfied that Giarrusso was guilty of the offence under the Road Safety Act 1986 (Vic) s 49(1)(eb). The conviction stood as affirmed.

Orders