Marijancevic v Yu - [2020] VSC 70

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2018 02321

JOSEPH MARIJANCEVIC	Plaintiff
v
KWOK YU, VICTORIA POLICE	First Defendant
and
COUNTY COURT OF VICTORIA	Second Defendant

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JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	31 January, 3 February 2020
DATE OF JUDGMENT:	28 February 2020
CASE MAY BE CITED AS:	Marijancevic v Yu
MEDIUM NEUTRAL CITATION:	[2020] VSC 70

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ADMINISTRATIVE LAW – Judicial review – Plaintiff convicted in Magistrates’ Court of offence of driving a motor vehicle while more than the prescribed content of alcohol was in his breath – Appeal to County Court from conviction and sentence – Appeal judge ruled admissible a certificate under s 55(4), Road Safety Act 1986 (Vic) – Whether ruling reasonably open – Whether relevant matters considered – No error – Proceeding dismissed – Road Safety Act 1986 (Vic), s 55.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr DJ Carolan	Simon Legal
For the First Defendant	Mr BL Sonnet	Abbey Hogan, Solicitor for Public Prosecutions

HER HONOUR:

Joseph Marijancevic was driving along Harvester Road in Sunshine on the evening of 21 April 2014 when he was intercepted by police. He was given a preliminary breath test, which indicated the presence of alcohol on his breath. Police arrested Mr Marijancevic and took him to the Sunshine police station, where he underwent an evidentiary breath test. The result of that test was that he had a breath alcohol concentration of 0.085%. This result was recorded in a certificate, as required by s 55(4) of the Road Safety Act 1986 (Vic).

Mr Marijancevic disputed the accuracy of the evidentiary breath test result, and asked for a blood sample to be taken. At 9:54 pm, police requested the attendance of a nurse to take the sample. A nurse, Sarah Long, was despatched and left Balwyn at 10:12 pm to drive to Sunshine. At 10:41 pm, while she was still en route, Constable Kwok Yu contacted Ms Long and cancelled the request.

There was a dispute about the circumstances in which the request was cancelled. Constable Yu said that he did so because he could not find Mr Marijancevic in the foyer or outside the Sunshine police station, and was told by a civilian in the foyer that a person had left, saying that he could not be bothered waiting for a blood test. Mr Marijancevic maintained that he had waited at the police station, mainly in the foyer, until about 11:30 pm. He said that he did not leave until after he was told by a police officer that the blood test had been cancelled.

Constable Yu charged Mr Marijancevic with two offences involving driving a motor vehicle while more than the prescribed content of alcohol was in his breath, contrary to s 49(1)(b) and (f) of the Road Safety Act. The charges were heard by Magistrate Jones on 16 June 2017. The magistrate found Mr Marijancevic guilty of one 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 Marijancevic v Yu

Details

AGLC: Marijancevic v Yu [2020] VSC 70
Case: [2020] VSC 70
Decision Date: 28 February 2020

CaseChat Overview and Summary

The plaintiff, Marijancevic, brought a case against Yu, seeking judicial review of a decision made by an appeal judge in the County Court. The plaintiff was convicted in the Magistrates’ Court of driving a motor vehicle while over the prescribed alcohol limit. The conviction and sentence were subsequently appealed to the County Court. The appeal judge admitted a certificate under section 55(4) of the Road Safety Act 1986 (Vic), which pertains to the admissibility of evidence in such proceedings. The central issue before the court was whether the appeal judge's ruling on the admissibility of the certificate was reasonably open and if all relevant considerations were taken into account.

The court examined whether the appeal judge's decision to admit the certificate was within the scope of reasonable outcomes and whether the relevant factors were appropriately considered. The court found that the appeal judge had correctly interpreted and applied the statutory provisions and had considered all pertinent factors in making the ruling. Consequently, the court concluded that the appeal judge's decision was not only reasonably open but also legally sound.

Based on the findings, the court dismissed the plaintiff's proceeding. The decision affirmed that the appeal judge's actions were within the bounds of legal propriety and that the certificate was correctly admitted under section 55(4) of the Road Safety Act 1986 (Vic). The ruling upheld the conviction and sentence as determined by the County Court.

Orders