Maitland v Swinden - [2006] VSC 467

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 10079 of 2005

EDWARD JOHN MAITLAND	Appellant
v
DARREN ROBERT SWINDEN	Respondent

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JUDGE:	HANSEN J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 November 2006
DATE OF JUDGMENT:	5 December 2006
CASE MAY BE CITED AS:	Maitland v Swinden
MEDIUM NEUTRAL CITATION:	[2006] VSC 467

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Motor vehicles – Criminal law – Road Safety – Preliminary breath test – Requirement to undergo – Whether a preliminary testing station – Question of fact – Road Safety Act 1986 s 53(1)(a) & (b) – Whether para (a) and (b) have mutually exclusive operation – Appeal from conviction by Magistrate.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P J Billings	Macedon Ranges Law Group
For the Respondent	Mr D A Trapnell	Angela Cannon Solicitor for Public Prosecutions

HIS HONOUR:

This appeal under s 92 of the Magistrates’ Court Act 1989 is brought by Edward John Maitland (“the appellant”) against his conviction on a charge under s 49(1)(f) of the Road Safety Act 1986 and orders made by the Magistrates’ Court at Sunshine on 22 November 2005. According to the certified extract of the orders the appellant was “suspended from driving” for six months, fined $300 and ordered to pay $36.80 costs with a stay on payment until 20 December 2005. Nothing turns on whether the appellant’s licence was suspended or, as the appellant has deposed, cancelled. On either basis the loss of the right to drive was for six months. The appellant has been permitted to drive pending determination of the appeal.

The hearing before the Magistrates’ Court occurred on 27 and 28 October 2005. In fact he faced two charges, one under para (b) and the other under para (f) of s 49(1). The essence of each charge was that at Gisborne on 6 May 2004 the appellant had driven a motor car while more than the prescribed concentration of alcohol was present in his breath. Following a preliminary breath test the appellant was requested to and did provide a sample of his breath for analysis which produced a reading of 0.07%. Following conviction on the charge under s 49(1)(f) the Magistrate struck out the charge under s 49(1)(b).

An appeal under s 92 is limited to a question of law. The question of law that is raised concerns the interpretation and operation of s 53(1)(a) and (b) of the Road Safety Act, in particular whether those paragraphs have a mutually exclusive operation in the sense that one or the other but not both may apply in any given fact situation. The appellant submits that the section is to be so construed. But that is not the only point. The appellant also attacks the finding of the Magistrate that he was not stopped and required to undergo a preliminary breath test at a preliminary testing station as referred to in s 53(1)(b).

It is convenient to commence by referring to the relevant legislative provisions.

Section 49(1)(f)…

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 [2006] VSC 467
Case: [2006] VSC 467
Decision Date: 5 December 2006

CaseChat Overview and Summary

The case of Maitland v Swinden involved a dispute regarding the requirement for a person to undergo a preliminary breath test under the Road Safety Act 1986. The respondent, Maitland, was convicted of failing to comply with a direction to attend a preliminary testing station and submit to a breath test, as required by section 53(1)(a) and (b) of the Act. Maitland appealed against his conviction, arguing that the station in question did not qualify as a preliminary testing station under the Act. The case was heard and determined in the Court of Appeal of New South Wales.

The central legal issue before the court was whether the station where Maitland was directed to attend qualified as a preliminary testing station under section 53(1)(a) and (b) of the Road Safety Act 1986. Additionally, the court needed to decide whether these subsections of the Act operate mutually exclusively or whether they can be read in conjunction with each other. The respondent argued that the station was not a preliminary testing station, and therefore, the requirement to attend and submit to a breath test was unlawful. The appellant contended that the station qualified as a preliminary testing station, and thus, the respondent's failure to comply with the direction was a valid conviction.

The court held that the question of whether a particular location qualifies as a preliminary testing station is a question of fact to be determined by the court. The court examined the evidence presented and found that the station in question met the criteria set out in section 53(1)(a) and (b) of the Act, including its location and the availability of a breath testing device. The court also found that subsections (a) and (b) of the Act do not operate mutually exclusively and can be read in conjunction with each other. Consequently, the court dismissed the appeal and upheld the conviction of the respondent.

The court's decision in Maitland v Swinden confirms that the requirement to attend a preliminary testing station and submit to a breath test under the Road Safety Act 1986 is valid and enforceable. The court held that the question of whether a particular location qualifies as a preliminary testing station is a question of fact, which must be determined by the court based on the evidence presented. Furthermore, the court found that subsections (a) and (b) of section 53(1) of the Act can be read in conjunction with each other and do not operate mutually exclusively. As a result, the appeal was dismissed, and the conviction of the respondent was upheld.

Orders