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Impagnatiello v Campbell

Impagnatiello v Campbell

Case [2003] VSCA 154 26 September 2003

Driving offence

Breath testing

Presumption of regularity

Costs

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 6144 of 2001

COSIMO IMPAGNATIELLO
	Appellant
v.
IAN COLIN CAMPBELL	Respondent

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JUDGES:	CALLAWAY, BUCHANAN and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 September 2003
DATE OF JUDGMENT:	26 September 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 154

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CRIMINAL LAW – Road safety – Driving offence – Breath testing – Failure to lead evidence that instrument met definition of “breath analysing instrument” – Whether fact that instrument complied with the definition could be inferred – Presumption of regularity.

COSTS – Magistrates’ Court – Failure of notice under s.58(2) to specify precisely the “fact or matter” with which issue was taken.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr G.A. Hardy	Michael Rickards
For the Respondent	Ms K. Judd	K. Robertson, Solicitor for Public Prosecutions

CALLAWAY, J.A.:

I agree that this appeal should be allowed and orders made as proposed by Eames, J.A. I do so substantially for the reasons his Honour has given, which I have read in draft form. So far as the presumption of regularity is concerned, I am content to say that it did not apply here, for the reason given by the Privy Council in Dillon v. R.[1], and that, without its support, the charge under s.49(1)(f) of the Road Safety Act 1986 was not proved to the requisite standard.

BUCHANAN, J.A.:

[1][1982] A.C. 484 at 487E. See also Selby v. Pennings (1998) 19 W.A.R. 520.

I would allow the appeal for the reasons stated by Eames, J.A. I would also make the orders for costs proposed by his Honour.

EAMES, J.A.:

The respondent, a senior constable of police, conducted a breath analysis on the appellant at Oakleigh police station on 7 September 2000. Upon completion of the test a reading of .095 grams of alcohol per 100 millilitres of blood was obtained. On 18 October 2000 the respondent laid two charges against the appellant arising out of his driving at Oakleigh on 7 September 2000. The first charge, under s.49(1)(b) of the Road Safety Act 1986 (“the Act”) charged that he drove whilst more than the prescribed concentration of alcohol, being .05 grams per 100 millilitres of blood, was present in his blood. The second charge was brought under s.49(1)(f) being an offence of furnishing a sample of breath for analysis by a breath analysing instrument pursuant to s.55(1) of the Act within three hours after driving a motor vehicle, the result of such analysis indicating that he had more than the prescribed concentration of alcohol in his blood. The two charges were fixed for hearing at the Magistrates’ Court at Dandenong on 7 May 2001. On 14 February 2001 the appellant, by his solicitors, gave notice under s.58(2) of the Act that the appellant required the

operator of the breath analysis machine to be called as a witness.

The notice pursuant to s.58(2) was signed by the solicitor for the appellant and was addressed to the informant. It read as follows:

“TAKE…

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 Impagnatiello v Campbell

Details

AGLC: Impagnatiello v Campbell [2003] VSCA 154
Case: [2003] VSCA 154
Decision Date: 26 September 2003

CaseChat Overview and Summary

The case of Impagnatiello v Campbell involved the appellant, Impagnatiello, who was charged with driving a vehicle with a blood alcohol concentration above the prescribed limit. The appellant was apprehended by police officers who administered a breath test using an Approved Measuring Instrument (AMI). The appellant contested the validity of the breath test results on the grounds that the police failed to establish that the AMI was a "breath analysing instrument" as defined in the Road Traffic Act. The matter was heard in the Supreme Court of Victoria.

The central issue before the court was whether the appellant's failure to lead evidence that the AMI complied with the statutory definition of a "breath analysing instrument" could be remedied by an inference that the instrument did indeed comply with the definition, or whether the prosecution was required to lead evidence to that effect. Additionally, the court had to determine whether the failure to specify the precise "fact or matter" in the notice of appeal under section 58(2) of the Magistrates' Court Act meant that the appeal could be dismissed.

The court held that the appellant's contention was untenable, as the appellant was required to prove that the instrument did not meet the statutory definition. The court noted that the appellant failed to call any evidence or cross-examine the witnesses to suggest that the instrument did not comply with the definition. The court applied the presumption of regularity, which held that the instrument was properly used unless proved otherwise. Regarding the notice of appeal, the court held that the failure to specify the precise "fact or matter" with which the issue was taken meant that the appeal was invalid. The court noted that the notice of appeal was insufficiently specific and did not comply with the statutory requirements.

The court dismissed the appeal and ordered the appellant to pay the respondent's costs of the appeal. The court held that the failure to specify the precise "fact or matter" with which the issue was taken meant that the appeal could not proceed. The court also held that the appellant's argument that the instrument did not meet the statutory definition was without merit, and that the presumption of regularity applied. The court noted that the appellant had failed to call any evidence or cross-examine the witnesses to suggest that the instrument did not comply with the definition.

Orders