Halepovic v Sangston - [2003] VSC 464

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6401 of 2003

MAID HALEPOVIC	Appellant
V
DANNI SANGSTON	Respondent

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JUDGE:	BONGIORNO J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 October 2003
DATE OF JUDGMENT:	24 October 2003
CASE MAY BE CITED AS:	Halepovic v Sangston
MEDIUM NEUTRAL CITATION:	[2003] VSC 464	First Revision 18 November 2003

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TRAFFIC OFFENCE - failing to provide a sample of blood for analysis - whether blood taker needs to be nominated and present - Road Safety Act 1986 s.49(e), 55(9A)

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr S.P. Hardy	Patrick W Dwyer & Associates
For the Respondent	Mr J.D. McArdle QC	Solicitor for Public Prosecutions

HIS HONOUR:

On 17 March 2002 the respondent, Constable Danni Sangston, was on duty in the Frankston area with two other police officers in a marked police sedan. He observed the appellant Maid Halepovic approach a white Ford sedan. He seemed to stagger as he walked. He was spoken to by the police who advised him to take a taxi home, but a short time later the respondent again saw the appellant approach the white Ford sedan. This time he was also staggering. He leant against the car when putting the key in the driver's door to unlock the car, got in and commenced to drive the vehicle.

Halepovic drove about 20 to 30 metres along Wells Street and was then intercepted by the same police officers who had earlier observed him going towards his car. The respondent asked him to undergo a preliminary breath test but he failed to perform that test to the satisfaction of the respondent in that he did not produce an adequate breath sample and was asked to perform another. Again he failed to produce a breath sample adequate for analysis.

The appellant was then asked to accompany the respondent to the Frankston Police Station for the purposes of a formal breath test. He agreed and he did so. At the police station an authorised breath test machine operator, Senior Constable Hunter, operated an approved breath testing machine on three occasions but on no occasion was he able to obtain a sample such that it could be analysed. In the course of these attempts the machine produced three certificates, each of them showing that no sample had been provided.

After these three failed attempts to produce a breath sample, Constable Sangston formed the view that there was some medical or physical reason for the appellant's inability to supply a sufficient breath sample, so he said to the appellant (via an interpreter who had been contacted on the telephone interpreting service):-

"It appears to me that you are unable to provide a sufficient sample of breath on medical grounds or because of some physical disability. I now require you to allow a registered medical practitioner or approved health professional to take a sample of your blood for analysis pursuant to s.55(9A) of the Road Safety Act 1986".

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 Halepovic v Sangston

Details

AGLC: Halepovic v Sangston [2003] VSC 464
Case: [2003] VSC 464
Decision Date: 24 October 2003

CaseChat Overview and Summary

The decision of the Supreme Court of Victoria in Halepovic v Sangston involves the defendant, Sangston, contesting a traffic offence charge of failing to provide a sample of blood for analysis. The court was tasked with determining whether the officer taking the blood sample needed to be nominated and present at the time of the test. The case hinged on the interpretation of sections 49(e) and 55(9A) of the Road Safety Act 1986. The defendant argued that the statutory provisions did not mandate the presence of the nominated blood taker at the time of the test, while the prosecution contended that the absence of the nominated officer invalidated the test results.

The central issue before the court was the requirement, if any, for the nominated blood taker to be present during the blood test. The defendant submitted that the statutory framework did not necessitate the presence of the blood taker, and that the requirement could only be imposed by regulation. The prosecution argued that the absence of the nominated officer rendered the test results inadmissible, as it contravened the legislative intent and purpose of ensuring the accuracy and integrity of the testing process. The court needed to discern whether the statutory provisions implicitly or explicitly required the presence of the nominated officer, and if so, whether this requirement was a matter of law or regulation.

The court, in its reasoning, concluded that the statutory provisions did not explicitly require the presence of the nominated blood taker at the time of the blood test. It found that the legislation imposed a duty on the person conducting the test to ensure the sample was provided to the nominated officer. However, the court held that the presence of the nominated officer was a regulatory requirement, not a legislative one. Therefore, the absence of the nominated officer did not invalidate the test results. The court emphasised that the legislative intent was to ensure the accuracy and integrity of the testing process, which could be achieved without mandating the presence of the nominated officer. Consequently, the charge against the defendant was dismissed due to the prosecution's failure to comply with the regulatory requirement.

The final orders of the court were that the charge against the defendant was dismissed. The court found that the absence of the nominated officer during the blood test did not render the test results inadmissible, as this requirement was not explicitly stated in the legislation but rather a matter of regulation. The defendant's argument was upheld, and the prosecution's case was dismissed due to non-compliance with the regulatory requirement.

Orders