JUDGE:	Kyrou J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 October 2008
DATE OF JUDGMENT:	7 November 2008
CASE MAY BE CITED AS:	Johnson v Poppeliers
MEDIUM NEUTRAL CITATION:	[2008] VSC 461

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Criminal law – motor vehicle – appeal under s 92(1), Magistrates’ Court Act 1989 (Vic) – summons for production of documents relating to the service and maintenance of a breath analysing instrument – test for determining whether there is a legitimate forensic purpose – conviction for offence under s 49(1)(f), Road Safety Act 1986 (Vic) for furnishing a sample of breath within three hours after driving a motor vehicle which is recorded by a breath analysing instrument as being in excess of the prescribed concentration of alcohol – whether non-compliance with requirement in s 55(4), Road Safety Act to give a certificate of the reading of the breath analysing instrument to motorist is relevant to offence under s 49(1)(f) of that Act – Furze v Nixon (2000) 2 VR 503 – whether such a failure and the failure to inform motorist of the right to a blood test under s 49(10), Road Safety Act justifies rejection of the certificate in the exercise of the discretion to ensure the trial is not unfair.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P J Billings	Pearce Webster Dugdales
For the Respondent	Mr D A Trapnell	Solicitor for Public Prosecutions

HIS HONOUR:

Introduction and summary

This is an appeal under s 92(1) of the Magistrates’ Court Act 1989 (Vic) (“MCA”) from a final order made on 7 December 2007 by the Magistrates’ Court at Frankston, convicting the appellant, Leigh Johnson, of an offence under s 49(1)(f) of the Road Safety Act 1986 (Vic) (“RSA”) for furnishing a sample of breath within three hours after driving a motor vehicle which is recorded by a breath analysing instrument as being in excess of the prescribed concentration of alcohol. The respondent, Senior Constable Darren Poppeliers, was the informant.

There are two issues in the appeal proceeding. The first is whether the Magistrate erred in law in finding that certain documents relating to the service and maintenance of the breath analysing instrument used to analyse Mr Johnson’s breath were not required to be provided to Mr Johnson pursuant to a summons because Mr Johnson had not demonstrated a legitimate forensic purpose. The second is whether the Magistrate erred in law in convicting Mr Johnson under s 49(1)(f) of the RSA notwithstanding that he was not satisfied that Mr Johnson had been provided with a certificate containing the results of the breath analysing instrument, as required by s 55(4) of the RSA. The second issue involves consideration of whether the Magistrate failed to properly exercise his discretion to reject the certificate in order to ensure the trial was not unfair.

For the reasons set out…

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 Johnson v Poppeliers

Details

AGLC: Johnson v Poppeliers [2008] VSC 461
Case: [2008] VSC 461
Decision Date: 7 November 2008

CaseChat Overview and Summary

In Johnson v Poppeliers, the appeal centred on the conviction of Johnson for furnishing a sample of breath within three hours after driving, which was recorded by a breath analysing instrument as being in excess of the prescribed concentration of alcohol. The case was heard in the Magistrates' Court of Victoria, and subsequently appealed to a higher court. The central legal issues were whether the summons for production of documents relating to the service and maintenance of the breath analysing instrument was justified and whether the non-compliance with certain statutory requirements could result in the rejection of the instrument's certificate.

The court examined the legal test for determining whether there is a legitimate forensic purpose behind the summons. It considered the relevance of the failure to provide a certificate of the reading of the breath analysing instrument to the motorist and the failure to inform the motorist of their right to a blood test. These issues were evaluated in light of the precedent set by Furze v Nixon (2000) 2 VR 503. The court also assessed whether such failures and the omission to inform the motorist of their right to a blood test justified the rejection of the certificate to ensure the trial was not unfair.

The court held that the summons for the production of documents was justified as it served a legitimate forensic purpose. It found that the failure to provide the certificate of the reading of the breath analysing instrument to the motorist and the failure to inform the motorist of their right to a blood test were relevant to the offence under s 49(1)(f) of the Road Safety Act 1986 (Vic). However, the court concluded that these factors did not justify the rejection of the certificate in the exercise of the discretion to ensure the trial was not unfair. Consequently, the conviction of Johnson was upheld.

The final orders of the court maintained the conviction of Johnson for the offence under s 49(1)(f) of the Road Safety Act 1986 (Vic). The appeal was dismissed, and the conviction remained in place.

Orders