Impagnatiello v Campbell - [2001] VSC 425

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6144 of 2001

COSIMO IMPAGNATIELLO	Appellant
v
IAN COLIN CAMPBELL	Respondent

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JUDGE:	Balmford J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 October 2001
DATE OF JUDGMENT:	8 November 2001
CASE MAY BE CITED AS:	Impagnatiello v Campbell
MEDIUM NEUTRAL CITATION:	[2001] VSC 425

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Appeal against conviction of a charge under section 49(1)(f) Road Safety Act 1986 – where breath sample indicates more than the prescribed concentration of alcohol in blood – notice given under section 58(2) - whether the apparatus used for the breath test was a “breath analysing instrument” within the meaning of section 3 – whether the instrument bore the numbers required by the definition under section 3 - the admissibility of certificates under section 58(1) as evidence of blood alcohol concentration

PROCEDURE - Changing the terms of a question of law in an order of a Master where the question does not accord with the manner in which the appeal was argued.

Interpretation of Legislation Act 1984 – section 35
Magistrates’ Court Act 1989 – section 92
Road Safety Act 1986 – sections 3, 47, 49(1)(f), 55, 58

Bogdanovski v Buckingham [1989] VR 897
Cummins v Dalton (unreported, decided on 10 February 1982)
DPP v Foster [1999] 2 VR 643
Furze v Nixon (2000) 2 VR 503
Lisiecki v Grigg (1990) 10 MVR 336
Pettet v Readiskill [1999] VSC 195
Popovski v Ericsson Australia Pty Ltd [1998] VSC 61
Sher v DPP (unreported, decided on 2 August 2001)
Spurling v Development Underwriting (Vic) Pty Ltd [1973} VR 1

Thompson v Judge Byrne (1999) 196 CLR 141

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr GA Hardy	Michael Rickards
For the Respondent	Mr D Trapnell	Solicitor for Public Prosecutions

HER HONOUR:

This is an appeal under section 92 of the Magistrates’ Court Act 1989 from a final order made on 7 May 2001 in the Magistrates’ Court at Dandenong, constituted by Mr Clifford, Magistrate, convicting the appellant of a charge laid under section 49(1)(f) of the Road Safety Act 1986 (“the Act”), ordering him to pay a fine of $800.00 and $33.00 Court costs, cancelling all licences held by him under the Act and disqualifying him from obtaining any such licence for a period of 18 months commencing on 7 May 2001.

On 5 June 2001 Master Wheeler stayed all of those orders until the hearing and determination of this appeal, and ordered that the question of law raised by this appeal is:

Whether there was any evidence before the learned Magistrate that the apparatus sworn to have been used by the Respondent, Ian Colin Campbell, was a breath analysing instrument within the meaning of the Act, section 3 and/or part 5 thereof.

This question does not accord with the manner in which the appeal was, without objection, argued, as appears from the opening paragraph of the written submissions of counsel for the appellant and the submissions of counsel for the respondent.…

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 [2001] VSC 425
Case: [2001] VSC 425
Decision Date: 8 November 2001

CaseChat Overview and Summary

The appellant, Impagnatiello, was convicted under section 49(1)(f) of the Road Safety Act 1986 for driving with a blood alcohol concentration exceeding the prescribed limit. The conviction arose from a breath test administered by a police officer, who used a breath analysing instrument to measure the alcohol content in the appellant's breath. Impagnatiello appealed against the conviction, contending that the breath analysing instrument used was not a "breath analysing instrument" within the meaning of section 3 of the Act because it did not bear the required numbers. Additionally, the appellant argued that certificates under section 58(1) of the Act were inadmissible as evidence of the blood alcohol concentration. The appeal was heard in the Supreme Court of Victoria.

The central legal issues before the court were whether the breath analysing instrument used by the police officer qualified as a "breath analysing instrument" under section 3 of the Road Safety Act 1986 and whether the certificates produced under section 58(1) were admissible as evidence of the blood alcohol concentration. Furthermore, the court had to consider whether the appellant's appeal was properly framed given the discrepancy between the question of law as initially stated in the Master's order and the arguments presented during the appeal.

The court, in delivering its judgment, found that the breath analysing instrument used by the police officer did indeed qualify as a "breath analysing instrument" under section 3 of the Act, as it met the definition despite not bearing the required numbers. The court also determined that the certificates under section 58(1) were admissible as evidence of the blood alcohol concentration. The court concluded that the appellant's appeal was valid despite the discrepancy in the framing of the question of law in the Master's order, as the arguments presented during the appeal effectively addressed the legal issues at hand. Consequently, the appeal was dismissed, and the conviction was upheld.

The court did not issue any specific orders beyond dismissing the appeal and upholding the conviction.

Orders