Li v Sandhu
[2024] VCC 1242
•10 July 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. AP-23-0733
| XIAORUI LI | Appellant |
| v | |
| JASWINDER SANDHU (POLICE) | Respondent |
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JUDGE: | His Honour Judge Rozen | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 March 2024; 19 March 2024. | |
DATE OF JUDGMENT: | 10 July 2024 | |
CASE MAY BE CITED AS: | Li v Sandhu | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1242 | |
REASONS FOR SENTENCE
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Subject:Appeal – Conviction and Sentence.
Catchwords: Exceeding the prescribed concentration of alcohol in his breath within 3 hours of driving a vehicle – Re-hearing – Change of Plea – Prescribed Device-proven - Hearsay – Valid Requirement-proven – Authorised person-proven – Delegate power of authorisation - Appeal Dismissed – Sentence Upheld.
Legislation Cited: Road Safety Act 1986 (Vic.); Criminal Procedure Act 2009 (Vic.); Road Safety (General) Regulations 2019; Evidence Act 2008 (Vic); Interpretation of Legislation Act 1984 (Vic.); Victoria Police Act 2013 (Vic.)
Cases Cited:Impagniatello v Campbell (2003) 6 VR 416; Cook v Couacaud (2016) 263 A Crim R 527; DPP v Piscopo (2011) 33 VR 182; Rugolino v Howard [2010] VSC 590; Sirajuddin v Ziino (2005) 14 VR 689
Judgment: Disqualified from driving in the State of Victoria for a period of 22 months. Fined $1,200 without conviction.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Kyle McDonald | Balot Reilly Criminal Lawyers Pty Ltd |
| For the Respondent | Chris Kaias | Office of Public Prosecutions |
HIS HONOUR:
Introduction
1Mr Li appeals against orders made by the Magistrates Court on 23 May 2023. On that day, he had pleaded guilty to a single charge of exceeding the prescribed concentration of alcohol in his breath within 3 hours of driving a vehicle contrary to s 49(1)(f) of the Road Safety Act 1986 (‘RSA’). The Magistrate fined Mr Li $1,200 without conviction. His drivers’ licence was cancelled and he was disqualified from driving for 22 months effective from 1 April 2023.
2The appeal to this court was commenced on 14 June 2023, which is within the time limit imposed by the Criminal Procedure Act 2009 (‘CPA’).[1] The appellant was granted permission to drive while his appeal was heard and determined.
[1] S 255.
3The appeal proceeds as a re-hearing and Mr Li is not bound by his plea in the Magistrates’ Court.[2]
[2] CPA s 256(1).
4As it transpired, Mr Li changed his plea and the respondent was put to his proof.
5The appeal came before me on 18 March 2024. Mr Kaias of counsel, who appeared for the respondent police officer, sought to reinstate charge 1 on the summons. There was no opposition to this course and I permitted him to do so. Minor amendments were made to the charge without opposition.[3]
[3] The charge was amended by replacing ‘Melbourne’ by ‘Carlton’ and changing the alleged reading from ‘0.108’ to 0.117’.
6At the commencement of the hearing, Mr McDonald, who appeared on the appellant’s behalf, raised a preliminary point going to the court’s jurisdiction. It concerned the question of whether an infringement notice had been issued to the appellant and, if so, this prevented a charge being brought against him.
7After hearing arguments and being referred to the relevant statutory provisions and authorities I determined, having regard to the prosecution concession that only charge 2 would be pursued, that that charge was properly brought and the appeal was properly before the court.[4]
[4] Transcript of Proceedings, Xiaorui Li v Jaswinder Sandhu (County of Victoria, AP-23-0733, Judge Rozen, 18-19 March 2024) 38-39 (‘Transcript’).
8The charge before this court is:
The accused at Melbourne on 1 April 2023 did within 3 hours after driving a motor vehicle furnish a sample of breath for analysis by a breath analysing instrument pursuant to s 55 of the RSA and the result of the analysis recorded or shown by the breath analysing instrument indicated that more than the prescribed concentration of alcohol being .05 grams per 210 litres of exhaled air was present in his breath and the concentration of alcohol indicated by the analysis to be present in his breath was not due solely to the consumption of alcohol after driving or being in charge of the motor vehicle (alleged reading 0.117).
9At the hearing of the appeal, the respondent himself gave evidence and called the following additional witnesses:
a)Leading Senior Constable David Wagner; and
b)Senior Constable Michael O’Dea.
10The appellant gave evidence with the assistance of an interpreter.
11All of the witnesses struck me as honestly trying to recall events that occurred more than a year ago.
12A number of exhibits were tendered and reference will be made to some of these in due course.
13In broad summary, the following is common ground:
a)On the night of 1 April 2023, the respondent and Leading Senior Constable Wagner were on routine patrol in the CBD, when they noticed a white Lamborghini driven by the appellant driving quite fast as it took off from a traffic light towards Lygon St Carlton. They pulled Mr Li over and asked to see his licence and sought his name and address.
b)At approximately 9.40 pm Leading Senior Constable Wagner asked Mr Li to conduct a preliminary breath test using what he described as ‘the Alkaline SV400’.[5]
c)The test result indicated the presence of alcohol and Leading Senior Constable Wagner formed the belief that the appellant had alcohol in his system.[6]
d)Leading Senior Constable Wagner received a phone call and handed the conduct of the matter to his colleague Senior Constable Sandhu, the respondent.
e)Senior Constable Sandhu formed the opinion that alcohol was present in the appellant’s breath and conveyed him to the Melbourne East Police station for formal testing.
f)At the police station, Senior Constable O’Dea conducted a breath analysis of the appellant using an approved instrument.
g)At 11.29 pm, the instrument displayed that the appellant had a breath alcohol concentration in excess of the prescribed limit being 0.117g/210l of exhaled air.
h)The appellant did not consume alcohol after he ceased driving his vehicle.
[5] Ibid 85.10.
[6] Ibid 86.7 - The Certificates of the Analysis (‘Exhibit P3’).
14At the conclusion of the evidence, counsel made submissions. As those submissions raised a factual dispute about what had occurred at the police station on the night in question, I ordered a transcript of the hearing to be produced. It was also clear that there were two other disputed issues in relation to which the transcript would be of assistance.
15After discussion with counsel, I directed that they file written submissions concerning the three disputed matters once the transcript was available and adjourned the hearing for a date to be fixed.
16In compliance with these directions, the court received:
a)Outline of closing submissions for the respondent dated 18 April 2024; and
b)Outline of closing submissions for the appellant dated 6 May 2024.
17The submissions disclose that there are three disputed matters:
a)Was the breath test conducted using a prescribed device?
b)Was a valid requirement made of Mr Li under s 55(1) of the RSA?; and
c)Was the breath analysing instrument operated by an ‘authorised person’?
18I will address each in turn.
Was the breath test conducted using a prescribed device?
19The first disputed element concerned whether the device used by Senior Constable Wagner to conduct the test was one prescribed by the Regulations.[7]
[7] Regulation 10(1) of the Road Safety (General) Regulations 2019 prescribed four different devices for the purposes of s 53 of the RSA, one of which is the lion alcolmeter SD-400 Touch.
20It is common ground that to establish an offence against s 49(1)(f) of the RSA the prosecution must prove to the criminal standard that the PBT was conducted using a prescribed device pursuant to s 53(1) of the RSA.[8]
[8] Sirajuddin v Ziino (2005) 14 VR 689, 12 [42] and 14 [50].
21Regulation 10(1) of the Road Safety (General) Regulations 2019 prescribes four different devices for the purposes of s 53 of the RSA:
a) the lion alcolmeter SD-400 Touch; and
b) the Lion Alcolmeter, also known as the lion alcolmeter S-D2; and
c) the lion alcolmeter SD-400PA; and
d) the Alcolizer LE.
22Senior Constable Sandhu described the device used as ‘SD400’.[9] He explained that it had been given to him by the Road Policing Department and was the device he had used for ten years.[10]
[9] Transcript (n 4) 44.18.
[10] Ibid 44.19-24.
23This evidence alone in my view falls short of what is required to prove ‘this essential element of the offence’.[11]
[11] Impagniatello v Campbell (2003) 6 VR 416, 15-6 [32].
24However, the respondent places considerable reliance on some notes completed by Senior Constable Sandhu in proof of this element. During the hearing, the respondent originally sought to tender the notes but withdrew the application when it was objected to.[12] It was the appellant who tendered the document seemingly to impeach Senior Constable Sandhu’s credit, having first established that the document contains some errors.[13]
[12] Transcript (n 4) 49.13.
[13] Ibid 67.
25A pro-forma section of the notes completed by Senior Constable Sandhu describes the device he used as a ‘lion alcometer SD-400 Touch’.[14]
[14] General Informant Document dated 2 April 2023 (‘Exhibit D1’), 4.
26While the appellant concedes that the notes may now be used for a hearsay purpose,[15] he contends that the representation in exhibit D1 that the device used was a lion alcometer SD-400 Touch (and therefore a ‘prescribed device’) is unreliable as a basis for establishing disputed element 1.
[15] Balot Reilly Criminal Lawyers, ‘Outline of closing submissions for the appellant’, Submissions in Li v Sandhu, AP-23-0733, 6 May 2024, 2 [12] (‘Appellant Closing Submissions’) citing the Evidence Act 2008 (Vic) s 60.
27Mr McDonald submitted that the court must consider the document closely.[16] He submitted that the fact that it is represented in the document that a prescribed device was used, should not satisfy the court of that fact.[17]
[16] Appellant Closing Submissions (n 15) 2 [11]-[13].
[17] Ibid 4 [19].
28Exhibit ‘D1’ is clearly a pro-forma document prepared to simplify the task of police officers in complying with the various requirements of the RSA. The 14 pages consist of 44 questions which require the officer to chose between answers. It is apparent that it is a chronological narrative of Senior Constable Sandhu’s and Senior Constable O’Dea’s interactions with the appellant on 1 and 2 April 2023 after the initial interception at approximately 9.40 pm.
29Senior Constable Sandhu’s evidence was that the pro-forma is ‘prepared by RPDAS, the Road Policing Department Brunswick… which we need to fill and ask questions specific to the drink driving offences which I have asked Mr Li and filled that form…’.[18]
[18] Transcript (n 4) 46.9-15.
30Senior Constable Sandhu agreed in cross examination that this document was his ‘running sheet’ which combined automatically generated information and information entered by hand by him.[19]
[19] Ibid 53.16-25.
31On page 14 of exhibit D1, Senior Constable Sandhu filled in that the notes were made by him ‘at 5.35’ am on 2/4/23 at Docklands. He signed the document.
32In his evidence, he confirmed that the signature is his. He disputed that, despite what the notes say, they were made at about 5.30 am. His evidence was that ‘they were made before that… at the time we were taking [sic.] evidentiary breath test’.[20]
[20] Ibid 51.13-17.
33I accept Senior Constable Sandhu’s evidence that he made the various handwritten entries in exhibit D1 through the course of the evening. While there are some errors in the document[21] and there were some minor conflicts between Senior Constable Sandhu’s evidence and what he recorded in his notes, Senior Constable Sandhu struck me as an honest witness for whom English is not his first language.[22]
[21] Ibid 61.29.
[22] Ibid 70.16.
34The other record of the events of the night prepared by Senior Constable Sandhu is a ‘Statement of Alleged Facts’ prepared 7 days later.[23] This is included in exhibit D2, ‘Preliminary Brief’.
[23] Ibid 69.15-16.
35On page 2 of that document, Senior Constable Sandhu recorded that the test of the appellant was conducted using a ‘Lion Alcometer SD-400 Touch, a prescribed device pursuant to the Road Safety (General) Regulations 2019’. I accept that it is likely, as Mr McDonald submits, that this reference was copied from exhibit D1.
36On the balance, taking into account all of the evidence summarised above, I accept that the respondent has established beyond reasonable doubt that the PBT of Mr Li was conducted using the device specified in exhibit D1. As Mr McDonald concedes,[24] it is clearly open for me to infer, based on the evidence as a whole that Senior Constable Sandhu’s reference to a ‘SD-400’, understood in light of exhibit D2 and his evidence that the device was given to him by the same part of Victoria Police that prepared the pro-forma, that he used a prescribed device to conduct the PBT.
[24] Appellant Closing Submissions (n 15) 2 [13].
37Mr McDonald submits that this is not the only inference reasonably open, but fails to identify another other than suggesting that there may be versions of exhibit D1 referring to other devices.[25] I consider this to be mere speculation.
[25] Ibid.
38Contested element one is satisfied.
Was a valid requirement made of Mr Li under s 55(1) of the RSA?
39Section 55(1) of the RSA relevantly provides:
If a person undergoes a preliminary breath test when required by a police officer … to do so and—
(a) the test in the opinion of the police officer … in whose presence it is made indicates that the person's breath contains alcohol;
any police officer … may require the person to furnish a sample of breath for analysis by a breath analysing instrument.
40The second disputed matter in this appeal is whether the appellant was ‘required’ to furnish a sample of his breath in accordance with s 55(1). The authorities establish that it is a matter that must be proved.[26]
[26] Cook v Couacaud (2016) 263 A Crim R 527.
41What is need to comply with s 55(1) is that the police officer must communicate unambiguously that the person must furnish a sample of their breath for analysis. A particular form of words is not required.[27]
[27] DPP v Piscopo (2011) 33 VR 182, 11-23 [38].
42The respondent’s case is that the s 55(1) requirement was made by Senior Constable Sandhu at the East Melbourne Police Station immediately prior to his colleague, Senior Constable O’Dea, conducting the test.[28]
[28] The Office of Public Prosecutions, ‘Outline of closing submissions for the respondent’, Submissions in Li v Sandhu, AP-23-0733, 18 April 2024, 5 [20] (‘Respondent Closing Submissions’).
43Senior Constable Sandhu’s evidence was that he communicated the requirement to the appellant. His evidence was that he said to Mr Li: ‘I now require you to undergo a breath test to s.55’ (sic.).[29]
[29] Transcript (n 4) 65.12.
44Senior Constable O’Dea’s evidence was that, in accordance with his usual practice, he asked Senior Constable Sandhu as the informant to convey the requirement before conducting the test. He said he remembers this happening on the night and it’s what he always does when he is the operator and there is a separate informant.[30]
[30] Ibid 104.28.
45Both Senior Constable Sandhu and Senior Constable O’Dea were largely unshaken in this evidence by persistent cross examination.
46The respondent also relies on Senior Constable Sandhu’s notes in the form of exhibit D1. At page 8 of the notes, it is recorded that Senior Constable Sandhu said to the appellant: ‘I now require you to undergo a breath test pursuant to Section 55 of the Road Safety Act 1986’.[31]
[31] Exhibit D1, Q 27 (emphasis in the original).
47The pro-forma provides for an alternative requirement to be made when the officer asks question 27 and the document before the court does not indicate which question was actually conveyed on the night. It is therefore of minimal weight.
48The appellant’s evidence was that Senior Constable Sandhu did not make the requirement because he was not in the room at the time.[32] Mr Li acknowledged that he had been drinking on the night and that the lighting in the room was dim.[33]
[32] Transcript (n 4) 111.9-19, 120.13-21.
[33] Ibid 112.18-19, 109.16.
49While I accept that Mr Li was doing his best to recall events that occurred more than a year earlier, I prefer the evidence of the police officers. I note that their evidence conforms with the pro forma and what each described as their usual practice.
50I accept that Mr Li was required to undergo the test in accordance with s 55(1) of the RSA. The second contested element is proved.
Was the breath analysing instrument operated by an ‘authorised person’?
51There is no dispute that the test was conducted by Senior Constable O’Dea.
52Section 55(3) of the RSA provides that a breath analysing instrument must be operated by a person ‘authorised to do so by the Chief Commissioner of Police’.
53Section 58(3) of the RSA provides:
In any proceeding under this Act—
(a) the statement of any person that on a particular date he or she was authorised by the Chief Commissioner of Police under section 55 to operate breath analysing instruments; or
(b) a certificate purporting to be signed by the Chief Commissioner of Police that a person named in it is authorised by the Chief Commissioner under section 55 to operate breath analysing instruments—
is admissible in evidence and, in the absence of evidence to the contrary, is proof of the authority of that person.
54The respondent relies on the following evidence to satisfy s 55(3):
a)The statement by Senior Constable O’Dea that he was authorised which engages s 58(3)(a);
b)Senior Constable O’Dea’s statement that he complied with all regulations one of which was that he be authorised; and
c)The certificate of authorisation produced by Senior Constable O’Dea.[34]
[34] Respondent Closing Submissions (n 28) 11-12 [44].
55The appellant contends that the respondent has not proved that Senior Constable O’Dea was authorised by the Chief Commissioner on any of these bases.
56The evidence of Senior Constable O’Dea was that ‘essentially’, he was authorised by the Chief Commissioner of Police.[35] Mr McDonald submits that this is not the same thing as saying that he was so authorised.
[35] Transcript (n 4) 91.16-17.
57The context in which the evidence was given is significant. It immediately followed a series of questions in which the witness explained his understanding that the Chief Commissioner could delegate his power of authorisation.[36] I take Senior Constable O’Dea’s evidence that he was ‘essentially’ authorised by the Chief Commissioner to be, that he had been authorised by a person to whom the Chief Commissioner had delegated the power to authorise.
[36] Ibid 91.4-15.
58I therefore consider that Senior Constable O’Dea gave evidence of his authorisation and this enlivens the operation of s 58(3)(a) of the RSA. There being no evidence to the contrary, Senior Constable O’Dea’s evidence is proof of his authorisation.
59The case is similar to that of Rugolino v Howard.[37] Bell J concluded that the following evidence in combination proved the authorisation of the operator of a breath analysis instrument:
a)His statement that he was authorised;
b)His description of administering the test ‘in a way which was consistent with him having the necessary experience and authority to do so’;[38]
c)His statement that he operated the instrument properly under the applicable regulations; and
d)His evidence about the nature of his duties on booze buses.[39]
[37] [2010] VSC 590.
[38] Ibid [27].
[39] Ibid [31].
60In this appeal, Senior Constable O’Dea gave evidence about:
a)His training to operate breath analysing instruments;[40]
b)Receiving an authorisation in the mail after completing the training;[41]
c)His experience operating such machines;[42] and
d)His compliance with the applicable regulations being the Road Safety (General) Regulation 2019.[43]
[40] Transcript (n 4) 91.4-9.
[41] Ibid 91.9.
[42] Ibid 92.8-93.18.
[43] Ibid 95.19-31; see also Exhibit P3; Regulation 11 is the applicable regulation.
61In addition, Senior Constable O’Dea produced a certificate dated 28 February 2022 and signed by Inspector Damien Madden of Victoria Police stating that:
a)Inspector Madden had been the subject of a delegation ‘under s 19(1) of the Victoria Police Act 2013 and pursuant to s 58(3)(b) of the Road Safety Act’; and
b)Senior Constable O’Dea is authorised under s 55 of the Road Safety Act 1986 to operate breath analysing instruments.[44]
[44] Exhibit P5.
62The appellant submits that the presumption in s 58(3) of the RSA has no application to this certificate because it is not a statement of authorisation by the Chief Commissioner, but rather by Inspector Madden as delegate of the Chief Commissioner.[45]
[45] Respondent Closing Submissions (n 28), 13 [53].
63In my view, the answer to that submission is provided by s 42A(1)(c) of the Interpretation of Legislation Act 1984 (Vic). Under that provision, the authorisation of Senior Constable O’Dea is taken to have been made by the Chief Commissioner in the absence of any contrary intention. There being no contrary intention, the section has effect in its terms.
64I am unpersuaded by Mr McDonald’s argument that Inspector Madden’s statement on the certificate that he has been delegated the power to authorise officers amounts to an impermissible contravention of the rule against sub-delegation in s 19(1)(f) of the Victoria Police Act 2013.[46] In my view, all that the certificate does is state that the power has been delegated to Inspector Madden.
[46] Ibid [57].
65In summary, just as Bell J did in Rugolino,[47] I consider that the combined force of the evidence taken as a whole together with the statutory evidentiary provisions establishes beyond reasonable doubt that Senior Constable O’Dea was appropriately authorised when he administered the test to Mr Li.
[47] Rugolino v Howard [2010] VSC 590.
66I have found it unnecessary to consider Mr Kaias’s alternative argument that words should be read into s 58(3)(b) of the RSA, so that it would apply where the certificate purports to be signed by the Chief Commissioner’s delegate.[48]
[48] Respondent Closing Submissions (n 28), 17-8 [68]-[72].
Conclusion and Orders
67I am satisfied that the three disputed elements are proved. As there is no dispute about the other requirements to make out the charge against s 49(1)(f) of the RSA, I find the charge proved. I dismiss Mr Li’s appeal.
68The appellant was fined $350 on 13 April 2018 for driving while disqualified and received an infringement notice on 18 May 2015 for exceeding the prescribed concentration of alcohol (reading between .050% and .069%). He otherwise has no relevant prior convictions.
69I will reimpose the sentence imposed by the Magistrates’ Court.
70The orders of the Court are:
a)The appeal is dismissed.
b)The charge is proved.
c)The appellant’s licence to drive is cancelled forthwith.
d)The appellant is disqualified from driving in the State of Victoria for a period of 22 months commencing 27 April 2024.
e)The appellant is fined $1,200 without conviction.
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