Johnstone v Matheson - [2008] VSC 567

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

IN THE MATTER of s 92 of the Magistrates’ Court Act 1989

- and –

IN THE MATTER of the Road Safety Act 1986

BETWEEN:

No. 10036 of 2006

PETER JAMES JOHNSTONE	Appellant
V
SCOTT JAMES MATHESON	Respondent
AND BETWEEN
No. 10052 of 2006
DIRECTOR OF PUBLIC PROSECUTIONS (on behalf of SCOTT JAMES MATHESON)	Appellant
- and –
PETER JAMES JOHNSTONE	Respondent

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JUDGE:	CAVANOUGH J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 & 6 March 2008
DATE OF JUDGMENT:	18 December 2008
CASE MAY BE CITED AS:	Johnstone v Matheson
MEDIUM NEUTRAL CITATION:	[2008] VSC 567

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CRIMINAL LAW – Road safety offences – Furnishing sample of breath for analysis within 3 hours of driving – Whether open to Magistrate on the evidence to reject defence that instrument not in proper working order or not properly operated – Further offence of driving with more than prescribed concentration of alcohol in breath – Result of analysis read down as at time of driving – Sentencing – Whether mandatory penalty for “furnishing” offence could be avoided by reference to doctrine of double punishment – Road Safety Act 1986 ss 49(1)(b), 49(1)(f), 49(4), 50(1A), 50(1AB) – Interpretation of Legislation Act 1984, s 51 - Sentencing Act 1991 ss 5(3), 7, 76.

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APPEARANCES:	Counsel	Solicitors
For Scott James Matheson and the Director of Public Prosecutions	Mr A. Halse	Solicitor for Public Prosecutions
For Peter James Johnstone	Mr P. Billings	Pearce Webster Dugdales

HIS HONOUR:

Before the Court are an appeal and a cross‑appeal under s 92(1) of the Magistrates’ Court Act 1989.

In November 2005, Senior Constable Scott Matheson charged Peter James Johnstone with an offence under s 49(1)(b) of the Road Traffic Act 1986 (“the Act”) of driving a motor vehicle with more than the prescribed concentration of alcohol in his breath. At the same time Senior Constable Matheson also charged Mr Johnstone with an offence under s 49(1)(f) of the Act. Relevantly, such an offence is committed when a person furnishes, within three hours of driving a motor vehicle, a sample of breath for analysis by a breath analysing instrument and the result of analysis indicates that more than the prescribed concentration of alcohol is present in the person’s breath. In relation to each charge, the reading alleged was 0.091 grams per 210 litres of exhaled air, based on a single breath test and a single result of analysis. The prescribed concentration is 0.05 grams per 210 millilitres of exhaled air. (For brevity and simplicity I will hereafter refer to all concentrations of alcohol in percentage terms, despite the inaccuracy of such shorthand.)

Mr Johnstone was subsequently found guilty of both offences in the Magistrates’ Court. However, over opposition from the prosecution, the Magistrate dismissed the charge under s 49(1)(f) and proceeded to deal with Mr Johnstone by reference to the charge under s 49(1)(b) only. On the basis of expert evidence she “read back” the result…

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 Johnstone v Matheson

Details

AGLC: Johnstone v Matheson [2008] VSC 567
Case: [2008] VSC 567
Decision Date: 18 December 2008

CaseChat Overview and Summary

The case of Johnstone v Matheson involved the defendant, Johnstone, who was charged with two road safety offences. Firstly, he was charged with failing to provide a sample of breath for analysis within three hours of driving, and secondly, for driving with a breath alcohol concentration exceeding the prescribed limit. The matter was heard in the Magistrates' Court of Victoria. The primary issue before the court was whether the magistrate was justified in rejecting the defendant's defence that the breath-testing instrument was not in proper working order or was not properly operated. Additionally, the court had to determine whether the mandatory penalty for the "furnishing" offence could be avoided by invoking the doctrine of double punishment.

The court examined the evidence and concluded that the magistrate was not open to rejecting the defendant's defence based solely on the officer's evidence that the instrument was in working order. The court found that the magistrate should have considered other evidence, such as the officer's lack of familiarity with the instrument, which could have affected the reliability of the test results. Regarding the doctrine of double punishment, the court held that the mandatory penalty for the "furnishing" offence could not be avoided as the provision of a breath sample and the concentration of alcohol in the breath were separate offences under the Road Safety Act 1986.

The court further held that the result of the breath analysis should be read down as the concentration of alcohol at the time of driving, and not at the time of the analysis. This decision was based on the Interpretation of Legislation Act 1984, which requires that legislation be interpreted in a way that promotes the purpose and object of the Act. The court held that the purpose of the Road Safety Act 1986 was to promote road safety by deterring drink driving, and therefore, the concentration of alcohol at the time of driving should be considered in determining the offence.

In conclusion, the court held that the defendant's defence that the breath-testing instrument was not in proper working order or was not properly operated should not have been rejected solely on the officer's evidence. The court also held that the mandatory penalty for the "furnishing" offence could not be avoided by invoking the doctrine of double punishment, and that the concentration of alcohol at the time of driving should be considered in determining the offence. The final orders of the court were not explicitly stated in the judgment.

Orders