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Hrysikos v Mansfield

Hrysikos v Mansfield

Case [2002] VSCA 175 1 November 2002

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 6441 of 2000

JOHN HRYSIKOS
	v.
DEBRA ELAINE MANSFIELD

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JUDGES:	ORMISTON, CHERNOV and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 September 2002
DATE OF JUDGMENT:	1 November 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 175	1^st Revision – 29 November 2002

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MOTOR VEHICLES – Criminal law – Road safety – Breath test and blood alcohol – Driver required to accompany police officer to a “booze bus” and to remain at that place for purpose of completing a breath test and obtaining certificate – No result produced from first test and driver asked to wait in booze bus until second test conducted – Driver departs van for purpose of smoking cigarette but remaining in close proximity to van – No evidence that driver was refusing to take part in second test – Whether departure from van a refusal to comply with requirement to remain at the place – Whether reasonableness of request to remain relevant – Road Safety Act 1986, ss.49(1)(e), 55(1).

EVIDENCE – Witness’ statement placed in his hands – Cross-examination on document – Tender of document – Whether only used for purpose of refreshing memory – Evidence Act 1958, s.36.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J.D. McArdle Q.C. and Ms K.E. Judd	Ms K. Robertson Solicitor for Public Prosecutions
For the Respondent	Mr P.J. Billings and Mr W.J. Walsh-Buckley	Jack Sher & Assoc.

ORMISTON, J.A.:

In this appeal brought by the Director of Public Prosecutions in the name of the informant I agree, subject to what appears below, with the conclusions and reasons for dismissing the appeal expressed in the judgment of Eames, J.A. Having regard to the nature of the charge and the minute infraction of s.49(1)(e) of the Road Safety Act 1986 (“the Act”) here alleged, little further should have to be said, for his Honour’s reasons ought to be more than sufficient to dispose of the appeal. I will, nevertheless, venture the following further views because I should like to express my own opinion upon the appeal which, I confess, I expressed forcefully during the hearing.

Although it carried and still carries quite significant penalties, an offence under s.49(1)(e) would perhaps be seen at the lower end of the scale of seriousness of road traffic offences of this kind; certainly that would be so if the appellant were correct. The offence of refusing to comply with a requirement made under certain provisions in Part 5 of the Act concerning the taking of breath tests was and is designed[1] to ensure that people will not escape from the consequences of driving under the influence of liquor because they cannot be forced to undergo the relevant tests. In order to ensure that certain requirements under s.55 were and are complied with, which in turn would lead to the obtaining of evidence of a kind which would ensure effective prosecution of offenders for the more serious offences under s.49(1) of the Act, para.(e) makes…

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.

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Details

AGLC: Hrysikos v Mansfield [2002] VSCA 175
Case: [2002] VSCA 175
Decision Date: 1 November 2002

CaseChat Overview and Summary

In the case of Hrysikos v Mansfield, the defendant appealed against his conviction for driving with a prohibited alcohol concentration. The dispute centred on whether the defendant refused to comply with a requirement under the Road Safety Act 1986 to remain at a designated location for a second breath test after the initial test failed to produce a result. The Court of Appeal was tasked with determining whether the defendant's brief departure from the "booze bus" to smoke a cigarette constituted a refusal to comply with the requirement to remain at that location, and if the reasonableness of the request to remain was relevant to this determination.

The court examined the statutory provisions under s.49(1)(e) and s.55(1) of the Road Safety Act 1986, focusing on the interpretation of the phrase "refusal to comply with a requirement to remain" at the designated location. The court considered whether the defendant's actions constituted a refusal and whether the reasonableness of the police officer's request to remain at the location was a factor to be considered. Additionally, the court addressed an issue regarding the admissibility of a witness statement under s.36 of the Evidence Act 1958, specifically whether the document was tendered for the sole purpose of refreshing the witness's memory during cross-examination.

The Court of Appeal concluded that the defendant's departure from the van to smoke a cigarette did not amount to a refusal to comply with the requirement to remain at the location for a second breath test. The court found that the defendant remained in close proximity to the van and there was no evidence that he was refusing to take part in the second test. The court also held that the reasonableness of the request to remain was not relevant to determining whether there was a refusal to comply. Consequently, the appeal was upheld, and the conviction was quashed. As a result, the defendant was acquitted of the charge of driving with a prohibited alcohol concentration.

Orders