Hannon v Norman - [2006] VSC 228

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 9093 of 2005

AARON HANNON	Appellant
v
JEREMY NORMAN	Respondent

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JUDGE:	GILLARD J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 June 2006
DATE OF JUDGMENT:	30 June 2006
CASE MAY BE CITED AS:	Hannon v Norman
MEDIUM NEUTRAL CITATION:	[2006] VSC 228

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APPEAL FROM MAGISTRATES’ COURT – Drink driving charge under s.48(1)(f) of Road Safety Act 1986 – Brief served pursuant to s.37 Magistrates’ Court Act 1989 – Notice given by defendant pursuant to s.58(2) of Road Safety Act – Defendant failed to appear – Direction given to proceed ex parte – Oral evidence called – Procedure in Schedule 2 of Magistrates’ Court Act not followed – Procedural and not jurisdictional error – Oral evidence deficient – Defendant convicted on inadequate proof – Appeal allowed – Charge dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr S.P. Hardy	The Law Offices of Barry Fried
For the Respondent	Mr C. Ryan, S.C.	Stephen Carisbrooke Acting Solicitor for Public Prosecutions

TABLE OF CONTENTS

Parties................................................................................................................................................... 2

Proceeding in Magistrates’ Court.................................................................................................... 2

Ex parte procedure in summary offence................................................................................... 9
Concessions by Respondent...................................................................................................... 12

Points of law and grounds of appeal............................................................................................ 15

First point of law......................................................................................................................... 16
Second point of law.................................................................................................................... 16
Third point of law....................................................................................................................... 16

Conclusion......................................................................................................................................... 17

HIS HONOUR:

This is an appeal from orders made by the Magistrates’ Court sitting at Broadmeadows pursuant to s.92 of the Magistrates’ Court Act 1989 (“Court Act”). The appellant was convicted of an offence against s.49(1)(f) of the Road Safety Act 1986 (“the Act”), namely, that being a driver of a motor vehicle, he furnished a sample of his breath for analysis and, upon analysis, the result showed that he had an excess concentration of alcohol in his breath. He was fined $550, his licence to drive a motor vehicle was cancelled and he was disqualified for a period of 10 months from driving in this State.

Parties

The appellant, Aaron Hannon (“the appellant”), is aged 35 years, and according to what he told the police, his occupation at the time of the offence was business analyst.

The respondent, Senior Constable Jeremy Norman (“the respondent”), is a member of the Victoria Police and was the informant in the proceeding brought against the appellant.

Proceeding in Magistrates’ Court

On 14 December 2004, the appellant was charged with two drink driving offences. On 25 May 2005, a summons was issued by the Broadmeadows Magistrates’ Court. The return date was 6 July 2005. Charge 1 was withdrawn at the hearing. The second charge, of which he was convicted, was expressed as follows:

“The defendant at Flemington on 02/09/04 did within three hours after driving a motor vehicle furnish a sample of breath for analysis by a breath analysing instrument pursuant to s.55 of the Road Safety Act 1986 and the result of the analysis recorded or shown by the breath analysing instrument indicated that more than the prescribed concentration of alcohol being .05…

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 Hannon v Norman

Details

AGLC: Hannon v Norman [2006] VSC 228
Case: [2006] VSC 228
Decision Date: 30 June 2006

CaseChat Overview and Summary

The appellant, Norman, was charged with a drink driving offence under section 48(1)(f) of the Road Safety Act 1986. The case was heard in the Magistrates’ Court, and the appellant was required to serve a brief under section 37 of the Magistrates’ Court Act 1989. The appellant did not appear in court, but had given notice of his intention to defend the charge under section 58(2) of the Road Safety Act. The court was directed to proceed ex parte, and oral evidence was called in the absence of the appellant. The appellant appealed the conviction, arguing that the court had not followed the procedures outlined in Schedule 2 of the Magistrates’ Court Act, and that the evidence provided was insufficient to convict him.

The court was required to determine whether the Magistrates’ Court had erred in its procedures, and whether the conviction was based on adequate evidence. The court found that the Magistrates’ Court had indeed made a procedural error by not following the procedures outlined in Schedule 2 of the Magistrates’ Court Act. However, the court found that this was not a jurisdictional error, and that the conviction could still stand if the evidence was sufficient. The court found that the oral evidence provided was deficient, and that the conviction was based on inadequate proof. As a result, the appeal was allowed, and the charge was dismissed.

The court found that the procedural error made by the Magistrates’ Court was not fatal to the proceedings, but that the evidence provided was insufficient to convict the appellant. The court emphasised the importance of following the correct procedures in court, and noted that the failure to do so could result in a conviction being overturned. The court also noted that the evidence provided in the case was not sufficient to prove the charge beyond reasonable doubt, and that the conviction was therefore based on inadequate proof.

The court dismissed the charge against the appellant, and allowed the appeal. The court emphasised the importance of following the correct procedures in court, and noted that the failure to do so could result in a conviction being overturned. The court also noted that the evidence provided in the case was not sufficient to prove the charge beyond reasonable doubt, and that the conviction was therefore based on inadequate proof. The appeal was allowed, and the charge was dismissed.

Orders