Luff v DPP - [2003] VSCA 81

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 7065 of 2000

RORY EUAN LUFF
	Appellant
v.
DIRECTOR OF PUBLIC PROSECUTIONS (on behalf of JAMES MARTIN COLE)	Respondent

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JUDGES:	CALLAWAY, VINCENT and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 May 2003
DATE OF JUDGMENT:	24 June 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 81

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Driving offences - Appellant charged with having more than prescribed concentration of alcohol present in blood - Road Safety Act 1986, s.49(1)(b) and (f) - Whether prosecution obliged to prove breath analysing instrument properly operated - Charges dismissed and appeal brought by Director of Public Prosecutions - Magistrates' Court Act 1989, s.92 - Whether trial judge entitled to hold that informant "wishe[d] to appeal" - Furze v. Nixon (2000) 2 V.R. 503 applied - Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr G.A. Hardy	Wilmoth Field Warne
For the Respondent	Mr C.G. Hillman, S.C.	K. Robertson, Solicitor for Public Prosecutions

CALLAWAY, J.A.:

I have had the advantage of reading in draft the reasons for judgment prepared by Vincent, J.A. I agree with his Honour, for the reasons he gives, that the appeal should be dismissed. There are only three points that I wish to add.

Counsel for the appellant submitted that the statement from the joint judgment of this Court in Furze v. Nixon[1] set out below at [28] was obiter or that it was per incuriam on the footing that the Court may not have been referred to the regulations. In either event the Court as presently constituted could decline to follow it but, in my respectful opinion, the statement was clearly correct for the reasons given in the joint judgment and the reasons given by Vincent, J.A.[2]
[1](2000) 2 V.R. 503 at [22].
[2]I do not overlook the more explicit language of s.48(1AC) and (1A), inserted some years after s.49(4) was enacted. In England such questions are complicated by the European Convention for the Protection of Human Rights and Fundamental Freedoms. See, for example, Sheldrake v. D.P.P. [2003] 2 All E.R. 497 and Attorney-General's Reference No. 4 of 2002 [2003] EWCA Crim. 762. Counsel informed us that leave to appeal to the House of Lords has been granted in both those cases. Paragraphs [9]-[10] of the former and para. [23] of the latter strongly support the construction of s.49(4) adopted in Furze v. Nixon.

A number of affidavits were filed as to the proceedings in the Magistrates' Court, some of them based on the deponents' notes or recollection, but the passage set out at [9] below was tape-recorded. A little before, the learned magistrate described it as "the crux of this case". I agree with Vincent, J.A. that it clearly identifies the foundation for her decision, relieving us of the need to consider some of counsel's submissions and requiring us to affirm the order made in the Trial Division that the matter be remitted to the Magistrates' Court.

On remitter it will be for the Magistrates' Court to decide whether…

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 Luff v DPP

Details

AGLC: Luff v Director of Public Prosecutions [2003] VSCA 81
Case: [2003] VSCA 81
Decision Date: 24 June 2003

CaseChat Overview and Summary

The appellant was charged with driving with a blood alcohol concentration above the prescribed limit, under the Road Safety Act 1986. The Director of Public Prosecutions brought an appeal against the dismissal of these charges. The appeal raised the question of whether the prosecution must prove that a breath analysis instrument was properly operated to establish the offence under the statute. The matter was heard in the Supreme Court of Victoria.

The central issue before the court was whether the prosecution bears the burden of proving that a breath analysis instrument was properly operated when charging an individual with driving with an excessive blood alcohol concentration. This was in accordance with sections 49(1)(b) and (f) of the Road Safety Act 1986. The court had to determine if this was an essential element that the prosecution needed to prove beyond reasonable doubt, or if it was a matter to be assumed unless disproven by the defendant.

The court examined the relevant statutory provisions and legal precedents, concluding that the prosecution does not need to prove the proper operation of the breath analysis instrument. The court found that the onus lies on the defendant to raise and prove any issue concerning the instrument's operation if they wish to contest the charge. The court also held that the trial judge was entitled to consider that the informant wished to appeal, as per the decision in Furze v. Nixon (2000) 2 V.R. 503. Consequently, the appeal was dismissed, and the original decision of the Magistrates' Court was upheld.

No further orders were made, as the appeal was dismissed without any modification to the original decision.

Orders