Jongsma v Bartels
[2023] VCC 1107
•22 June 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. AP-22-0088
| WILLIAM JONGSMA | Appellant |
| v | |
| SVEN BARTELS | Respondent |
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JUDGE: | HER HONOUR JUDGE BLAIR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 & 4 August 2022 | |
DATE OF JUDGMENT: | 22 June 2023 | |
CASE MAY BE CITED AS: | Jongsma v Bartels | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1107 | |
REASONS FOR JUDGMENT
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Subject:CRIMINAL LAW - Ruling
Catchwords: Appeal against conviction and sentence - refuse to provide sample of oral fluid – fail to keep work diary – fail to sign and date daily sheet in work diary – fail to keep records readily available at record location – prescribed procedure for preliminary oral fluid test – amendment of charges
Legislation Cited: Heavy Vehicle National Law (Queensland) ss. 301(g), (e)(i), 341(4); Road Safety Act 1986 (Vic) ss. 55D(1), (3),(6),(6A), 49(1)(eb), 47; Road Safety (General) Regulations 2009 (Vic) reg. 17; Criminal Procedure Act 2009 (Vic) Schedule 1, ss. 5, 6, 7, 8(3), 8(4), 84(4)(a)-(c); Interpretation of Legislation Act 1984 (Vic) s. 35.
Cases Cited:Reddy v Ross (1973) VR 462; Hrysikos v Mansfield (2002) 5 VR 485; Matthew Fox v Director of Public Prosecutions (2022) 66 VR 223.
Judgment: Charges 1,2,4 proven. Charge 3 not proven.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr P. Billings Mr A. Murdoch | Patten Robins Lawyers |
| For the Respondent | Mr S. Tan | Office of Public Prosecutions |
HER HONOUR:
1William Jongsma, “the appellant”, has appealed against a decision of the Melbourne Magistrates’ Court made on 31 January 2022. On this date he was found guilty of four charges, namely one charge of refusing to provide a sample of oral fluid and 3 charges of breaching the Heavy Vehicle National Law (Queensland).
2At the outset of the appeal de novo before this court, the Magistrates’ Court decision was set aside and the appellant pleaded not guilty to each of the four charges.
The charges
3The details of the charges are as follows:
1) The accused at West Melbourne on 8 July 2018 within 3 hours of being the driver of a motor vehicle was required to undergo a preliminary oral fluid test by a prescribed device in accordance with section 55D(1) of the Road Safety Act 1986 and did refuse to provide a sample of oral fluid in accordance with section 55D (s. 49(1)(eb) Road Safety Act 1986 (Vic)).
2) The accused at West Melbourne on 8 July 2018 was the driver of a fatigue- regulated heavy vehicle who was required to record information in his written work diary under Part 6.4 Division 2 subdivision 2 of this Law, and the accused failed to record information in the written work diary in the following way – (g) information recorded other than on a daily sheet must be written in the work diary in the way stated in the instructions in the work diary for the recording of the information (s.301(g) Heavy Vehicle National Law (Queensland)).
3) The accused at Silvan on Wednesday,27 June 2018 was the driver of a fatigue regulated heavy vehicle who was required to record information in his written work diary under Part 6.4 division 2 subdivision 2 of this Law, and the accused failed to record information in the written work diary in the following way – (i) each daily sheet must be signed and dated by the driver (s. 301(e)(i) Heavy Vehicle National Law (Queensland)).
4) The accused at Silvan on 19 June 2018, being a driver who is his or her own record keeper, failed to ensure a record or copy of a record described in Part 6.4 Division 6A, 8 or 8A of this Law was kept at the accused’s record location in a way that ensures it is readily available to an authorised officer at the record location by the end of the 21 day period after the day the record is made (s.341(4) Heavy Vehicle National Law (Queensland)).
The evidence
4The prosecution called two witnesses, Leading Senior Constable Sven Bartels and the corroborator, Acting Sergeant Heather Obuch. The evidence led by Officer Bartels was largely uncontested by the appellant. Counsel for the appellant tendered both witness statements during cross examination.
Evidence of Officer Bartels
5Officer Bartels gave evidence that on 8 July 2018, that he and officer Obuch were undertaking highway patrol policing duties. After eight o’clock in the morning, when they were in the Footscray Road area, he observed a white Kenworth W Class Prime Mover towing a three axle trailer. Officer Bartels identified this as a fatigue regulated heavy vehicle combination. This definition was not contested. Officer Bartels believed the windscreen was obscured by a sun visor and intercepted the vehicle for a check.
6Upon interception Officer Bartels asked the driver, who was identified as the appellant, his full name and to produce his Victorian driver’s licence. The appellant produced his licence as requested and his identity was confirmed. S/C Obuch conducted a licence check at around this time. Officer Bartels asked the appellant to produce his work diary and inspected the same. He gave evidence that he believed the appellant had been on a journey greater than 100km from his driver base in the preceding 28 days. Officer Bartels detected several anomalies or what he considered were incorrect or illegal entries and took a number of photographs of the appellant’s work diary.
7Four pages from the appellant’s work diary were tendered. Exhibit A was described as “National Driver Work Diary Daily Sheet dated 26 June 2018”. The prosecution relies on this exhibit as the basis of charge 3 and alleges the appellant did not sign the page as required.
8Exhibit B was described as the “Front Page of National Driver Work Diary Application page”.
9Exhibit C was described as “Page Headed – Base, record location and accreditation number”. Officer Bartels relies on this exhibit as the basis of charge 2 as the entry for “Address of base” recorded “Silvan” which he alleged was too general. The “Address where records are kept” was recorded as “in door behind seat” which was clearly not a location separate to the truck, as required.
10Exhibit D was described as “Example pages of the Work Diary”.
11Exhibit E was described as “three pages of National Driver Work Diary Daily Sheet original with 2 copies” The prosecution relies on Exhibit E as the basis of charge 4 and alleges the appellant did not remove three of the duplicate pages as required.
12During cross examination on the topic of the work diary, Officer Bartels gave evidence that he was not aware of an exemption in the Government Gazette. The exemption extended the distance of a journey requiring record keeping from 100km to 160km for fatigue related heavy vehicles when carting primary produce. He conceded he did not know what load the appellant had on board on the day of the interception. He agreed the Government Gazette appeared to relate to the relevant time period of the charges and that primary produce encompasses grain, fruit, fungi and vegetables. He agreed that if he had known of the exemption and if the appellant did, in fact, fit within the exemption, then he would not have laid charges 2, 3 and 4.
13During his evidence in chief, Officer Bartels said that after he inspected the work diary he then conducted a preliminary breath test on the appellant. The appellant complied with this test and the result indicated there was no indication of alcohol on the appellant’s breath.
14Officer Bartels then gave evidence that he said to the appellant “I have observed you drive a motor vehicle. I now require you to undergo a preliminary oral fluid test on a prescribed device to my satisfaction”. The appellant replied, “can you do it, I’m not qualified”. Officer Bartels replied “no” and that the appellant needed to lick the stick. The appellant asked Officer Bartels if he was qualified and he said “yes” and produced his certificate of authority to the appellant. A copy of this certificate was tendered and marked Exhibit F.
15Officer Bartels again asked the appellant to lick the stick and the appellant responded that he did not want to give his DNA. The officer explained that the sample was not tested for DNA, only illicit drugs such as methamphetamine and cannabis.
16Officer Bartels gave evidence that he spent in the order of 20 minutes trying to explain to the appellant how to conduct the oral fluid test. The appellant maintained that he was not qualified to conduct the test and asked the officer to insert the stick into his mouth which was something Officer Bartels said he was not authorised to do. Given the amount of time Officer Bartels had spent discussing the oral fluid test with the appellant, he obtained a new oral fluid tester. He showed the appellant it was sealed and untouched by anyone. He opened the test and again tried to get the appellant to do the test. Officer Bartels explained to the appellant that he needed to lick, rub or stick the two pink prongs at the end of the tester on his tongue and hand it back.
17According to Officer Bartels, he asked the appellant to undertake the oral fluid test at least 10 times. On each of these occasions the appellant said he was not qualified to do the test. Officer Bartels gave evidence that he explained to the appellant there were no qualifications necessary to do the test, all that he needed to do was lick the stick like a lolly. He then explained to the appellant that his behaviour was amounting to a refusal to undergo the preliminary oral fluid test and gave a formal warning advising the appellant of the consequences of his refusal. Officer Bartels told the appellant he could be charged with refusing the preliminary oral fluid test and if found guilty he would incur a heavy fine and a loss of licence for a minimum of 2 years. In addition to saying that he was not qualified to do the test, the appellant told him “I’m not doing it” and also consistently said “I’m not refusing to do the test”.
18Officer Bartels then advised the appellant that he would be charged with the refusal of the preliminary oral fluid test and the work diary offences and he also issued a defect notice in relation to the obscured primary vision area. The appellant responded by saying he’d like to remain silent.
19During cross examination, video evidence of some parts of the actual exchange between the appellant and the police was played by the appellant’s counsel and then tendered and marked as Exhibits 1 to 4. Officer Bartels was asked about ss. 55D(6) and 55D(6A), he gave evidence that sub-section 6 was very specific in its terms and it was very clear to him that it was incumbent upon the driver to take the oral fluid testing collection unit place it into his mouth and carry out the action of licking the tip. Further, he stated he could not run the stick down a person’s tongue as this involved the introduction of an item into someone’s body cavity. This was an intrusive medical procedure which, as a matter of general policy, he was not authorised to do. He accepted that if he had conducted the test in this manner the accuracy of the test would likely not have been impacted.
Evidence of the corroborator
20The corroborator, Acting Sgt. Obuch, gave evidence that she observed the exchanges between Officer Bartels and the appellant. It was her evidence that the appellant confirmed his identity, completed a preliminary breath test and was then asked to participate in a preliminary oral fluid test. The appellant’s response to this request was that he was not trained to do so. He didn’t refuse, he just wasn’t trained to do so. The conversation went forward and back a fair few times and the requirements of the Act were explained to the appellant. Again, Acting Sgt. Obuch said that the appellant didn’t refuse he just said “I’m not refusing, I’m not trained”. At one point Acting Sgt. Obuch observed the appellant to open his mouth and stick out his tongue. The appellant did not comply with the request made by Officer Bartels.
Evidence of the appellant
21The appellant elected to give evidence. In relation to the work diary, the appellant gave evidence he was carting kiwifruit and private produce on the 8th of July 2018. The truck that he was driving was refrigerated to allow food to be kept in appropriate conditions. Further, the appellant gave evidence that he was aware of the general 100km radius obligations and the extra 160km radius that applied to primary produce as he carts primary produce. The appellant said he was aware he was not required to keep records if the trip was not over 160km and he calculates his distances on Google Maps. Further, he said he had been delivering from Glen Road in Silvan to Jade Packaging which was on the Melbourne side of the Shepparton bypass. It was his evidence that his journey commenced from Glen Road, Silvan as the goods he had to cart were delivered to this address.
22When cross examined in relation to his work diary, the appellant said he owned and operated his freight company. In terms of the Silvan address, the appellant gave evidence that the precise address was recorded in other parts of the diary as well as with VicRoads. Further it was his evidence that the address where records are kept was entered as “in book behind seat” and although this was not an address, it was where the records were kept. When asked about whether his address in Glen Road was a primary production facility. he said that it was a registered farm transport yard as it had a permit as a packing shed. The appellant also said that although he did not grow kiwi fruit at that address, he grew other produce at that location. Further, it was the appellant’s evidence that he had put some entries in his work diary as he had travelled over 160km and he agreed that the duplicate pages were still in the work diary.
23In relation to the oral fluid test, the appellant gave evidence that he had not consumed any drugs or alcohol. He agreed that the police officer Bartels had said to him “I now require you to undergo a preliminary oral fluid test on a prescribed device to my satisfaction” and that he responded by saying “can you do it, I’m not qualified.” The appellant explained, to his mind, as the police officer had done a course and had proper training on the subject, he was appropriately qualified to administer the test.
24The appellant agreed that Officer Bartels said to him “No, you need to lick this stick” as he held up a device. In response, the appellant said he offered his tongue up and said he was not qualified. The appellant said he gave Officer Bartels permission to do the test and presented his tongue on two occasions to Officer Bartels so that he could run the stick on his tongue. Officer Bartels told him “No, you’ve got to do it.” The appellant said he did not refuse the test. When asked if he intended to refuse the test, he said “No, not at all. That’s why I offered me tongue up”.
25In cross examination, the appellant agreed that Officer Bartels told him to lick the stick a number of times and had presented a fresh test at one point. Further, the appellant agreed the officer had explained he was testing for the presence of cannabis or methamphetamine and Officer Bartels had showed him the test was sealed and that it had an expiry of January 2020. The appellant also agreed Officer Bartels had shown him the device and given him directions about how to undergo the test by asking him to run the pink prongs up and down on his tongue and then hand it back to him. The appellant admitted he did not carry out the physical actions that Senior Constable Bartels requested of him, however, he did not admit that he had failed to provide the oral fluid test.
The submissions on behalf of the appellant
26Mr Billings on behalf of the appellant submitted that the charge of refusing to undergo a preliminary oral fluid test (also referred to as a “POFT”) had not been made out. He submitted that whether there had been a refusal was a question of fact to be inferred from all of the circumstances.[1] Further, he referred to the case of Hrysikos v Mansfield where Justice Ormiston said:
“The word refuses must be taken to carry with it an element of mental intent, albeit judged objectively for the purposes of an offence such as the present. The simplest was of proving a refusal would be if the subject diver said “I refuse etc” or some equivalent words with or without expletives, connoting an unwillingness to comply. Alternatively the prosecution might ask a court to infer that a driver has refused to comply by proving acts from which that inference may be drawn i.e. by proof of the circumstantial case from which the only inference is that the driver is refusing to comply albeit he or she is not expressly saying so. A driver who immediately turns and runs away a driver who jumps the back fence of a police station a driver who forcibly pushes open the door of a mobile testing station and runs off without explanation would each be persons against whom the necessary inference could be drawn. It would not be the performance of an act exhibiting ‘consciousness of guilt’ so much as an act exhibiting a conscious unwillingness and thus a refusal to comply with the stated requirements.”[2]
[1] Reddy v Ross (1973) VR 462.
[2] Hrysikos v Mansfield (2002) 5 VR 485, 487-488 [3].
27He contended that the evidence in this case did not suggest a refusal by the appellant from the totality of the evidence. Rather, the evidence revealed there was a dispute between the appellant and Officer Bartels as to how the test was to be undergone in circumstances where there was no fundamental prescriptive manner in how the test was to be carried out in either s. 55D or the Regulations. Although s. 55D(6A) spoke of reasonable directions as to physical actions, it did not specify what they are.
28Mr Billings argued that the appellant clearly said numerous times he was not refusing, he maintained he was not qualified to do the test and so offered his tongue to Officer Bartels thereby granting permission for him to run the stick along his tongue and complete the test. Officer Bartels agreed this would not have affected the accuracy of the test. Mr Billings submitted that the direction by the officer to lick the stick was not a reasonable direction because there was no requirement as to the prescribed manner of for carrying out a test.
29In relation to s. 55D(6), Mr Billings said this would not be breached by having the police officer put the device in the driver’s mouth. He submitted this sub-section was ambiguous as “placing the prescribed device” could include “causing the prescribed device to be placed”. Further, Mr Billings submitted that the appellant was insisting upon a prescribed device being placed in his mouth by poking out his tongue so the device could be put down his tongue, in conformity with s. 55D(6).
30In the alternative, Mr Billings submitted that s. 49(1)(eb) contemplated at least two separate offences. The first was a refusal to undergo an oral fluid test per se and the second was a refusal to carry out “any other requirement made under that section”. On the evidence presented in this case where Officer Bartels had given the appellant the direction to “lick the stick” and he had refused to do so, this was in fact the real complaint. The correct charge therefore was one that particularised a refusal of “any other requirement made under that section” as opposed to a refusal to undergo an oral fluid test per se. In these circumstances, Mr Billings submitted that the prosecution had brought a charge that had not been made out on the particulars upon which it was brought. Further, he submitted the charge could not be amended as it would offend ss. 8(3) and (4) of the Criminal Procedure Act 2009 (Vic) (“CPA”).
31Mr Billings referred to the process by which a criminal proceeding is commenced as set out in ss. 5 and 6 and Schedule 1 of the CPA. Schedule 1 provides that it is sufficient if a statement of a statutory offence identifies the provision creating the offence and describes the offence in the words of the provision creating it or in similar words. He contended it was clear from the charge-sheet that the alleged offence had not been described in the words of the regulation creating it and as a result it offended Schedule 1.
32In circumstances where s. 7 of the CPA imposes a 12-month limitation for the filing of a charge and s. 8 places restrictions on what amendments can be made to a charge-sheet, Mr Billings submitted that the charge could not be amended as that would be tantamount to the laying of a new charge outside the charge period. This was prohibited by s. 8(3) of the CPA. Mr Billings further argued that s. 84(4)(a)-(c) did not apply as the amendment was not clarifying the particulars of an otherwise valid charge. In support of his contentions, he referred to the recent Court of Appeal decision in Fox v DPP which held that a charge may only be amended outside the limitation period if it contained sufficient information to enable a reasonable defendant to determine the true nature of the offence alleged.[3] In relation to this case Mr Billings maintained that the charge identified had not been particularised at all so any attempt to particularise would offend the prohibition of creating a new charge outside the charge period.
[3] Matthew Fox v Director of Public Prosecutions (2022) 66 VR 223.
33In relation to the work diary charges, Mr Billings submitted that the appellant is not required to keep records if he is not the driver of a fatigue-regulated heavy vehicle undertaking 100km work. The exemption notice created by the Commonwealth Government Gazette 2015 (No 2) extends the distance to 160km.[4] The prosecution is required to prove that the appellant does not fit within the exemption by way of distance travelled or produce carted and they have failed to do so.
[4]‘National Primary Production Work Diary Exemption (Notice) 2015 (No. 2)’ in Commonwealth Gazette, 7 September 2015.
34For these reasons Mr Billings submitted I should find the appellant not guilty of each of the charges.
35In reply, Mr Tan for Officer Bartels the respondent submitted that even though the appellant was saying he was not refusing, his actions amounted to a refusal. Officer Bartels was an authorised officer and the authorisation allowed him to request the appellant to undergo the test, it did not authorise him to physically administer the test. Officer Bartels gave the appellant details of how to complete the test and tried to give the device to the appellant telling him to lick the stick and run the pink prongs up and down his tongue. An explanation in relation to the ramifications if the appellant did not undergo the procedure was also provided. The appellant refused multiple times to complete the test as requested by Officer Bartels.
36In relation to the issue of how the test is to be conducted, Mr Tan submitted that the legislation was very clear. He submitted the obligations upon the person required to perform the test were detailed in s. 55D(6). The section made clear the appellant’s obligation as a person required to undergo a POFT was that he must do the test by placing the prescribed device into his mouth and carry out the physical actions necessary to ensure a sufficient sample of oral fluid has been captured. Mr Tan submitted this was consistent with regulation 17 which provides the prescribed procedure for carrying out a POFT is that the police officer who conducts the test (a) provides a fresh oral fluid collection unit for use by a person required to prove a preliminary oral fluid sample; and so forth. Mr Tan emphasized the legislation stipulated the person who is required to do the sample is the one who administers the collection of the oral fluid.
37Mr Tan contended the legislation detailed a requirement for the person giving the sample (the appellant) to place the device in their mouth and then carry out the physical actions that are necessary. In this case Officer Bartels described the physical actions necessary as “lick the stick” or “run the prongs up and down your tongue”. At no point did the appellant comply with this direction.
38Mr Tan agreed that the refusal is to be inferred from the totality of the circumstances as the Court of Appeal said in Hrysikos v Mansfield. He submitted the appellant in this case had refused on every level. He had been given multiple directions to take the device and he had been given instruction on how to administer the test, all of which he refused.
39In relation to the work diary, Mr Tan submitted that the Bunbartha trips were outside the 160km radius and as a result the appellant was required to keep a work diary and make the appropriate entries for those trips. In relation to these trips, he submitted the appellant is in breach of what is required because he has not written in a proper base and a proper address for records.
40Further, Mr Tan submitted that the address in Glen Road was the appellant’s residential address and was not a primary production facility as defined in the Government Gazette. The appellant was not embarking on a direct return journey back to a primary production facility when he travelled to Shepparton and in any event, it was very likely those journeys were outside the 160km radius allowed by the exemption. Mr Tan submitted that if I were to find that the exemption of 160km did not apply then the appellant should have signed the entry tendered in evidence. Mr Tan invited the court to perform its own investigations as to the distance travelled by the appellant.
41For these reasons, Mr Tan submitted I should find the appellant guilty of each of the charges.
The legislation that applies
42In relation to charge 1 of refusing the preliminary oral fluid test, the Road Safety Act as it applied at the date of the offence, contained the following relevant provisions:
S. 49(1)(eb)A person is guilty of an offence if he or she refuses to provide a sample of oral fluid in accordance with section 55D or 55E when required under that section to do so or refuses to comply with any other requirement made under that section;
55D(1) A police officer may at any time require any person he or she finds driving a motor vehicle or in charge of a motor vehicle
To undergo a POFT by a prescribed evidence and, for that purpose, may further require the person, if inside a motor vehicle, to leave the motor vehicle for the purpose of undergoing the test.
(3) A POFT test must be carried out in accordance with the prescribed procedure
(5) A prescribed device may be comprised of a collection unit and a testing unit and one or more other parts.
(6) A person required to undergo a POFT must do so by placing the prescribed device, or the collection unit of the device, into his or her mouth and carrying out the physical actions that are necessary to ensure that, in the opinion of the person who, under this section, is requiring the test to be undergone, a sufficient sample of oral fluid has been captured by the device or unit.
(6A) A person who, under this section, is requiring another person to undergo a POFT may give any reasonable direction as to the physical actions that are necessary for the person to undergo the test.
(7) Without limiting section 54(3), a person required to undergo a POFT is required to remain at the place at which test is being carried out until the sample of oral fluid provided has been tested by a prescribed device.
Regulation 17 Road Safety (General) Regulations 2009 (Vic)
For the purposes of section 55D of the Act, the prescribed procedure for carrying out a POFT is that the police officer or person authorised under section 55D(2) of the Act who conducts the test—
(a)provides a fresh oral fluid collection unit for use by a person required to provide a POF sample; and
(b) uses only an oral fluid collection unit that, until required for taking the oral fluid sample, has been kept in a sealed container; and
(c) tests the oral fluid sample by using the device, or the oral fluid testing unit that is part of the device, that was used to obtain the sample.[5]
[5] Road Safety (General) Regulations 2009 (Vic).
43Given the arguments of the parties, the issues for determination are as follows;
(a) What is the prescribed procedure for the taking of Preliminary Oral Fluid Tests?
(b) Was the appellant given a separate requirement by Officer Bartels which constitutes a different offence to the one charged?
(c) If the charge is incorrect, can it be amended?
(d) Can it be inferred from the totality of the circumstances that judged objectively, the appellant had the necessary mental intent to refuse to undertake the Preliminary Oral Fluid test?
What is the prescribed procedure for the taking of Preliminary Oral Fluid Tests?
44S. 55D provides that a police officer can require a person found driving to undergo a preliminary oral test. To require a preliminary oral fluid test, the police officer does not need any special authorisation. S. 55D(3) states that the POFT must be carried out in accordance with the prescribed procedure. The prescribed procedure is set out in both regulation 17 and s. 55D(6) and (6A).
45Amongst other things, regulation 17 states that the police officer who conducts the test – (a) provides a fresh oral fluid collection unit for use by a person[6] required to provide a preliminary oral fluid sample. As such it contemplates that it is the person required to provide the sample that will use the fresh oral fluid collection unit.
[6] Emphasis added
46S. 55D(6) clearly states a person required to undergo a preliminary oral fluid test must do so by placing the prescribed device, into his mouth and carrying out the physical actions that are necessary to ensure that in the opinion of the person requiring the test a sufficient sample of oral fluid has been captured. Again, the language of the section contemplates that it is the person required to provide the sample that must take the necessary physical actions to undertake the test.
47S. 55D(6A) allows the person requiring the test to give any reasonable direction as to the physical actions that are necessary for the person to undergo the test. This sub-section further reinforces the position that it is the person who is required to provide the sample that must take the necessary physical actions to undertake the test.
48In my view s. 55D(6) is clear, there is no requirement or provision in the legislation that the police officer must cause the device to be placed in the mouth of the driver or that the police officer must carry out any other physical actions to undertake the collection of the oral fluid. What is contemplated is that the police officer provides a fresh collection unit to the person required to take the POFT. The person required to take the POFT takes the unit or device and puts it in their mouth and performs the physical actions as reasonably directed by the police officer so that a sufficient sample of oral fluid has been captured by the device or unit. This is then tested by the police officer.
49In coming to this conclusion, I have had regard to s. 35 of the Interpretation of Legislation Act (Vic) which provides that a construction that would promote the purpose or object underlying the Act or subordinate instrument shall be preferred to a construction that would not promote that purpose or object.
50The purpose of Part 5 of the Road Safety Act is stated in s. 47 of the Act. It provides the purposes of this Part are to (a) reduce the number of motor vehicle collisions of which alcohol or other drugs are a cause; and (b) reduce the number of drivers whose driving is impaired by alcohol or other drugs; and (d) provide a simple and effective means of establishing the presence of a drug in the blood, urine or oral fluid of a driver.[7]
[7] Emphasis added
51The second reading speech for the Road Safety (Drug Driving) Bill on 30 October 2003 under the heading of “Testing and analysis procedures” included the following;
“The bill contains provisions to allow roadside drug screening to be undertaken using oral fluid screening technology. It will enable a member of the Victoria Police or an authorised officer of VicRoads or of the Department of Infrastructure, to require oral fluid samples from drivers of motor vehicles for the purposes of preliminary testing. Procedures will closely follow the established random breath-testing model, as do the proposed legislative requirements. The preliminary screening test will be conducted by requiring a person to suck or chew an absorbent pad or other oral fluid receptacle.[8] The oral fluid sample will then be tested using a prescribed oral fluid screening device, which will provide a result within a few minutes”.[9]
[8] Emphasis added
[9] Victoria, Parliamentary Debates, Legislative Assembly, 30 October 2003, 1419, (Mr Batchelor, Minister for Transport) (‘Road Safety (Drug Driving) Bill’).
52The Explanatory memorandum to the 2003 Act provided amongst other things that, “Section 55D(6) specifies what a person who is required to undergo a preliminary oral fluid test must do”.[10]
[10] Explanatory Memorandum, Road Safety (Drug Driving) Bill 2003 (Vic), 6 [13].
53Contrary to the submission of counsel for the appellant it is my view that the Road Safety Act and its Regulations set down a prescribed procedure for the undertaking of POFT.
Was the appellant given a separate requirement by Officer Bartels which constitutes a different offence to the one charged?
54I agree with the submission made by Mr Billings that s. 49(1)(eb) creates at least two offences. The first could be described as the refusal of the POFT per se and the second, a refusal to comply with any other requirement made under that section, that section being 55D for the purposes of a POFT. S. 55D sub-section (1) allows any police officer to require a driver to leave their vehicle for the purpose of undergoing a POFT. Under sub- section (7) a police officer can require a person to remain at the place where the test was carried out until the sample of oral fluid has been tested by a prescribed device. Thus, there are at least two requirements that could be given by a police officer to a person required to undergo a POFT that, in my view, would warrant particularisation if such requirement was made and refused.
55I do not accept that the “reasonable direction” referred to in sub-section (6A) amounts to a requirement that would give rise to a separate offence. I am of this view because of the terminology used, that is, the sub-section refers to a “reasonable direction” as opposed to a “requirement”. Further there is a direct link between sub-sections (6) and (6A) with the latter sub-section referring to any reasonable direction as to the physical actions that are necessary for the person to undergo the test. In these circumstances, (6A) enables a police officer to give further direction as to what is physically required to complete the POFT to the necessary standard.
56I therefore consider charge 1 to be the appropriate charge in this case.
If the charge is incorrect, can it be amended?
57I find the charge is not incorrect. For completeness, I indicate that even if charge 1 had been charged or particularised incorrectly, pursuant to s. 8(4) of the CPA the charge sheet could be amended. This is because the charge sheet prior to amendment sufficiently discloses the nature of the offence and the amendment does not amount to the commencement of a proceeding for a new offence and the amendment would not in my view, cause injustice to the appellant.
58I have come to that conclusion given the connection between sub-section (6) and subsection (6A) as described above, it is not the same as a separate requirement to leave a vehicle or a direction to remain at a place while testing is carried out.
Can it be inferred from the totality of the circumstances that, judged objectively, the appellant had the necessary mental intent to refuse to undertake the Preliminary Oral Fluid test?
59As I have mentioned previously, the evidence of what occurred on the roadside between Officer Bartels and appellant is largely uncontested. The officer explained to the appellant that he was required to undertake a POFT. He stated to the appellant that he needed to take the device and place it in his mouth and rub the prongs up and down on his tongue. At other times he directed the appellant to lick the stick. In my view, Officer Bartels acted in accordance with regulation 17, and both ss. 55D(6) and (6A).
60I accept Officer Bartels’ evidence that he did the following; he produced a fresh collection unit to the appellant on two separate occasions; he showed the appellant the testing device was sealed and then offered it to the appellant; he explained the test was not to take DNA but rather to see if methamphetamine or cannabis were present; he explained to the appellant that the appellant did not have to be qualified to do the test; he gave a reasonable direction as to the physical actions that were necessary for the appellant to undergo the test; he told the appellant all he needed to do was lick the stick like a lolly; he advised the appellant that his behaviour was amounting to a refusal to undergo the POFT and gave a formal warning to the appellant and explained the consequences of refusal including that the appellant could be charged and if found guilty he could incur a heavy fine and two year loss of licence.
61I accept the appellant consistently told Officer Bartels that he was not doing the test, that he was not qualified to do the test and he was not refusing to do the test. In addition, I accept the appellant’s evidence that he offered up his tongue and asked the officer to perform the test.
62I find in these circumstances that the appellant was dictating the terms upon which he would undertake the test. Officer Bartels explained he was not able to perform the procedure as dictated by the appellant. I find that had he performed the test as requested by the appellant, he would have performed a test that was not in compliance with the relevant sections of the Road Safety Act, even though the accuracy of the test itself may not have been affected. In addition, Officer Bartels would have performed an intimate procedure breaching the bodily integrity of the appellant. This could not have been contemplated by the legislature in setting out a “simple and effective” preliminary roadside oral fluid test to be conducted by any police officer who found a person driving.
63Officer Bartels explained the prescribed procedure required to complete the test to the appellant on numerous occasions. The appellant made repeated protestations that he was not refusing the test. However, in circumstances where the appellant was willing to complete the test on his terms and not in the prescribed manner to the satisfaction of the officer, it is my view the only reasonable inference open on the totality of the evidence is that judged objectively, the appellant had the requisite mental intent and has refused to undertake the POFT. The appellant was informed of the procedure required and made the decision to dictate his own terms which were not compliant with the legislation and the requirement made by Officer Bartels. In these circumstances I am satisfied beyond reasonable doubt that the appellant refused to undergo the POFT and it therefore follows I find charge 1 proven.
Work diary offences
64The basis of charge 2 is Exhibit C. The offence is alleged to have occurred on 8 July 2018. The allegation is that the appellant had not recorded his base address and where his records are kept appropriately. The prosecution submission is that the address of “Silvan” is not precise and the location “in door behind seat” is incorrect as the records must be kept separately to the truck and the work diary.
65Having regard to the instructions contained on Exhibit B, this is an entry that needs to be made accurately and updated if those details were to change. Exhibit C depicts an entry on 06/05/16. The appellant admitted that on occasion he travelled in excess of a 160km radius from his base. The Bunbartha trips provide evidence on this fact. I find therefore, he is required to keep a work diary which is in compliance with the requirements. The appellant has failed to fill in these sections appropriately.
66In the circumstances, I find this charge proven.
67The basis of charge 3 is Exhibit A. The date of the offence is alleged to be 27 June 2018. The allegation is that the appellant has not signed the entry for this day. I accept the appellant’s evidence about the following matters; the relevant trip was made from the appellant’s address in Glen Road, Silvan to Jade Packaging which is located on the Melbourne side of the Shepparton bypass; that he was carting kiwi fruit which is primary produce on the relevant day; and the address in Glen Road, Silvan is a farm transport yard and packing shed. In these circumstances I find that this location fits within the definition of a primary production facility for the purpose of the Government Gazette. Further, I find that the exemption relating to record keeping requirements provided in the Government Gazette extending the radius from 100km to 160km applied to the appellant.
68Given my findings on the evidence, I would dismiss charge 3.
69The basis of charge 4 is Exhibit E. The offence date is alleged as 19 June 2018. This date was chosen as it is twenty-one days after the last entry relevant to the charge. The prosecution alleges that the appellant travelled in excess of 160km from Silvan to Bunbartha on three occasions, being 28/05/18, 22/05/18 and 25/05/17. On each of these occasions the appellant was required to remove the copies of the entry and store them appropriately. The work diary contained the original and two copies and as such provided evidence that the appellant had not removed the copies and had not stored them as he was required to do.
70Mr Billings argued that this offence was duplicitous. In circumstances where the offence is alleged to be made out in the same way and Officer Bartels relies on all three entries in my view the charge is not bad for duplicity. Rather, if I were not satisfied in relation to one date the entire offence would fail. Given the clear evidence in this case, I am satisfied beyond reasonable doubt that the appellant has not removed and stored the copies as required.
71I find this charge proven.
72The net result is that I find charges 1, 2 and 4 proven and I dismiss charge 3.
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