| 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…
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- AGLC
- Hannon v Norman [2006] VSC 228
- Case
- [2006] VSC 228
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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