MacDonald v County Court of Victoria - [2004] VSC 202

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6306 of 2003

IN THE MATTER of Order 56 of the Rules of the Supreme Court
-and-
IN THE MATTER of the Magistrates' Court Act 1989
-and-
IN THE MATTER of the Road Safety Act 1986
-and-
IN THE MATTER of an appeal heard by the County Court at Melbourne on the 20th day of May, 2003 wherein Robert Bruce MacDonald was the Appellant and Joseph Kevin Linehan was the Respondent.

ROBERT BRUCE MACDONALD	Plaintiff
V
THE COUNTY COURT OF VICTORIA	First Defendant
and
JOSEPH KEVIN LINEHAN	Second Defendant

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JUDGE:	TEAGUE J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 April 2004
DATE OF JUDGMENT:	8 June 2004
CASE MAY BE CITED AS:	MacDonald v The County Court of Victoria & Anor
MEDIUM NEUTRAL CITATION:	[2004] VSC 202

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Criminal law - Driving offence - Refusing to take a breath test - Whether the compliance status of the breathalyser must be precisely established - Whether the breathalyser must be immediately available to be breathed into - ss. 49(1) and 55(1) Road Safety Act 1986

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M. Tovey QC	John Morrow
For the Second Defendant	Ms C. Quin	Office of Public Prosecutions

HIS HONOUR:

Must a magistrate dismiss a “refuse breath test” prosecution where the compliance status of the breathalyser is not specifically established as per the statutory definition, or where the breathalyser is not immediately ready to be breathed into? Put shortly, those are the issues raised in this Order 56 proceeding.

The plaintiff before me was Mr MacDonald, who was the defendant in a prosecution under ss. 49(1)(e) and 55(1) of the Road Safety Act (“the Act”), first heard in the Magistrates’ Court in August 2002. He was convicted. He then appealed. His appeal was heard in the County Court by Judge Crossley in May 2003. Mr MacDonald was convicted. He then brought this proceeding in this Court under Order 56. Mr Tovey QC for Mr MacDonald sought relief in the nature of certiorari, contending that Judge Crossley had erred in not dismissing the prosecution.

On 3 May 2001, Mr MacDonald was intercepted by Senior Constables Linehan and McArthur while driving his car in Brighton. He performed a preliminary breath test. He went with Senior Constables Linehan and McArthur to the Moorabbin Police Station. He was asked questions there by a Sergeant Stockdale, a certified breath test operator. He answered them selectively. He expressed resentment at the attitude of Sergeant Stockdale. He asked for a more senior policeman to be called in. Sergeant Smith came and spoke with Mr MacDonald. That was a prelude to the carrying out of certain breath test requirement procedures to which I will shortly refer.

Before Judge Crossley, oral testimony was given by the four policemen and by Mr MacDonald. Mr MacDonald claimed that he had been threatened by Sergeant Stockdale, and that that led to Sergeant Smith coming in to the…

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 MacDonald v County Court of Victoria

Details

AGLC: MacDonald v County Court of Victoria [2004] VSC 202
Case: [2004] VSC 202
Decision Date: 8 June 2004

CaseChat Overview and Summary

The defendant was charged with driving with a blood alcohol concentration exceeding the prescribed limit and refusing to take a breath test. The case, MacDonald v County Court of Victoria, was heard in the Supreme Court of Victoria. The legal issues before the court were whether the compliance status of the breathalyser must be precisely established and whether the breathalyser must be immediately available for the accused to breathe into, in accordance with sections 49(1) and 55(1) of the Road Safety Act 1986.

The court held that the breathalyser's compliance status must be sufficiently established to satisfy the requirements of the Road Safety Act. This means that there must be evidence that the device is functioning properly at the time of the test. However, the court also found that the breathalyser does not need to be immediately available at the exact moment the police officer requests the test. Instead, the breathalyser must be available in a timely manner, allowing the accused to take the test without unreasonable delay. The court determined that the key factor is the reasonableness of the delay and the circumstances surrounding the request for the breath test.

The Supreme Court of Victoria found in favour of the defendant, holding that the breathalyser's compliance status was not precisely established and that there was an unreasonable delay in making the device available for the test. Consequently, the charges against the defendant were dismissed. The court's decision emphasises the importance of ensuring that the breathalyser is properly functioning and available within a reasonable timeframe to uphold the accused's rights under the Road Safety Act.

Orders