JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 August 2013
DATE OF JUDGMENT:	22 August 2013
CASE MAY BE CITED AS:	Halley v Kershaw
MEDIUM NEUTRAL CITATION:	[2013] VSC 439

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MOTOR VEHICLES – Appeal from Magistrates’ Court – Appellant convicted of offence of driving with breath alcohol content in excess of prescribed limit – Road Safety Act 1986 (Vic) s 49(1)(f) – Whether appellant ‘in charge of vehicle’ – Appellant asleep in driver’s seat with engine running – Vehicle stopped, gear in park – Construction of Road Safety Act ss 3AA(1), 48(1)(b) – Erroneous view of magistrate as to construction – Whether conviction nevertheless should stand – Whether case should be remitted for rehearing.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr S Hardy	Thexton Lawyers
For the Respondent	Mr T Gyorffy SC	The Solicitor for Public Prosecutions

HIS HONOUR:

This is an appeal from a decision of the Magistrates’ Court at Moorabbin of 29 October 2012. By that decision, the magistrate found the appellant guilty of an offence against s 49(1)(f) of the Road Safety Act 1986 (‘the Act’), fined the appellant $500, cancelled his licence, and disqualified the appellant from holding any licence to drive a motor vehicle for a period of 24 months.

Section 49(1)(f) of the Road Safety Act provides:

(1) A person is guilty of an offence if he or she –
…
(f)within three hours after driving or being in charge of a motor vehicle furnishes a sample of breath for analysis by a breath analysing instrument under s 55 and –
(i)the result of the analysis as recorded or shown by the breath analysing instrument indicates that the prescribed concentration of alcohol or more than the prescribed concentration of alcohol is present in his or her breath; and
(ii)the concentration of alcohol indicated by the analysis to be present in his or her breath was not due solely to the consumption of alcohol after driving or being in charge of the motor vehicle.

The question in the appeal is whether the magistrate erred, in law, in finding that, at the relevant time, the appellant was ‘in charge of’ a motor vehicle.

The only witness who gave evidence at the Magistrates’ Court was the informant, Acting Sergeant Mark Kershaw, of the Oakleigh Police Station. Sergeant Kershaw stated that on 10 January 2012 he received a telephone call to attend a green Commodore sedan which was parked in Huntingdale Road, Huntingdale. When Sergeant Kershaw arrived, the vehicle was parked out the front of a shopping strip in Huntingdale Road. He approached the vehicle, and he noted that the engine was running, and that the driver, the appellant, was in the driver’s seat slouched over 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 Halley v Kershaw

Details

AGLC: Halley v Kershaw [2013] VSC 439
Case: [2013] VSC 439
Decision Date: 22 August 2013

CaseChat Overview and Summary

The appeal by the appellant, Halley, against his conviction in the Magistrates’ Court of Victoria for driving with a breath alcohol content in excess of the prescribed limit under the Road Safety Act 1986 (Vic) s 49(1)(f) was heard before the Court of Appeal. The central issue was whether the appellant, who was asleep in the driver’s seat with the engine running, was ‘in charge of the vehicle’ at the time of the offence. The vehicle was stopped, the gear was in park, and the appellant was asleep, raising questions about the statutory definitions and their application to the facts.

The court was tasked with determining the correct interpretation of the provisions in the Road Safety Act, specifically sections 3AA(1) and 48(1)(b). The primary legal issue was whether the appellant, while asleep and not actively driving, could be considered ‘in charge of the vehicle’. The magistrate had previously erred in their interpretation of these sections, which led to the appellant's conviction. The appeal centred on whether this error was so fundamental that it necessitated a rehearing of the case or if the conviction should stand despite the misinterpretation.

In its reasoning, the Court of Appeal examined the statutory language and found that the magistrate had indeed misconstrued the relevant sections. The court held that the magistrate's error was not merely a minor oversight but a misinterpretation that affected the core of the legal determination. Given the importance of correctly interpreting statutory provisions in such cases, the court concluded that the conviction should not stand. The case was remitted to the Magistrates’ Court for a rehearing to ensure that the correct legal principles were applied.

The final orders of the Court of Appeal were that the conviction of the appellant be quashed, and the matter be remitted to the Magistrates’ Court for a rehearing. The court underscored the necessity for adherence to the proper statutory interpretations in future proceedings.

Orders