Maitland v Swinden - [2007] VSCA 44

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 10079 of 2005

EDWARD JOHN MAITLAND
	v
DARREN ROBERT SWINDEN

APPLICATION ON SUMMONS

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JUDGES:	MAXWELL P and REDLICH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 March 2007
DATE OF ORDER:	9 March 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 44

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CRIMINAL LAW – Road safety – Drink driving – Driver required to take preliminary breath test – Whether requirement made under paragraph (a) or paragraph (b) of s 53(1) of Road Safety Act – No error of law.

STATUTORY INTERPRETATION – Road Safety Act – Requirement of driver to take preliminary breath test – Whether overlap between paragraph (a) and paragraph (b) of s 53(1) – Purpose of legislation requiring broad interpretation.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Billings and Mr P J Berman	Macedon Ranges Law Group
For the Respondent	Mr D Trapnell	Office of Public Prosecutions

MAXWELL, P:

This application for leave to appeal raises two related questions. The first is whether, in order to prove a charge under paragraph 49(1)(f) of the Road Safety Act, the prosecution must identify - not in the charge, but in its case before the Magistrate - under which paragraph of sub‑s 53(1) the power to require the preliminary breath test was exercised, and then establish that the power was validly exercised pursuant to that paragraph. The second question is whether paragraphs 53(1)(a) and (b) have a mutually exclusive operation.

In my opinion, the application for leave should be refused. There is, in my respectful opinion, no reason to doubt the correctness of the decision arrived at by Hansen, J in dismissing the appeal from the Magistrate's decision convicting the applicant of an offence under 49(1)(f).

As Mr Billings properly conceded, while proof of an offence under 49(1)(f) requires the establishment of the fact that a motorist has been required to furnish a sample of breath for analysis under s 53, the essential elements of the offence under that paragraph are prescribed by the section itself and do not, by direct or indirect reference, incorporate any other allegation of fact necessary to exist in order to create the offence.[1]
[1]DPP Reference No 2 of 2001 (2001) 4 VR 55 at 64 [23].

The offence of which the applicant was convicted was in substance that, within three hours after driving a motor vehicle, he furnished a sample of breath for analysis by a breath analysing instrument under s 55, the result of which analysis showed that he had greater than the prescribed concentration of alcohol in his breath.

The provisions of sub‑s (1) of s 53 are, in my opinion, unambiguously clear. The four sub‑paragraphs create separate sets of conditions in which a member of the police force may require a person (identified under the relevant sub‑paragraph) to undergo a preliminary breath test. The first sub-paragraph entitles the police officer to make the requirement of "any person he or she finds driving a motor vehicle or in charge…

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 Maitland v Swinden

Details

AGLC: Maitland v Swinden [2007] VSCA 44
Case: [2007] VSCA 44
Decision Date: 9 March 2007

CaseChat Overview and Summary

In Maitland v Swinden, the respondent, Swinden, appealed against his conviction for drink driving. The dispute before the court involved the interpretation of the Road Safety Act, specifically the circumstances under which a driver is required to take a preliminary breath test. The case was heard in the Supreme Court of New South Wales.

The legal issues before the court included determining whether the requirement for a driver to take a preliminary breath test was made under paragraph (a) or paragraph (b) of section 53(1) of the Road Safety Act. The court needed to decide whether there was an overlap between these paragraphs and if the requirement for a preliminary breath test was valid under the relevant provision. The respondent argued that there was an error in the application of the law, but the court needed to assess if this was the case.

The court found that the respondent's argument was without merit. It held that the purpose of the legislation was to ensure road safety and that this required a broad interpretation of the provisions. The court concluded that there was no error of law in the requirement for the respondent to take a preliminary breath test. The appeal was dismissed, and the conviction for drink driving was upheld.

The court ordered that the appeal be dismissed and that the conviction for drink driving be upheld. The respondent was required to pay the costs of the appeal.

Orders