SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2008 3815
| JUDY MASTWYK | Appellant |
| v | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
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| JUDGES | MAXWELL P, NETTLE and REDLICH JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 10 June 2009 |
| DATE OF JUDGMENT | 11 May 2010 |
| MEDIUM NEUTRAL CITATION | [2010] VSCA 111 |
| JUDGMENT APPEALED FROM | DPP v Mastwyk [2008] VSC 192 (Kyrou J) |
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MOTOR VEHICLES – Criminal law – Road safety – Breath test and blood alcohol – Blood alcohol content exceeding 0.05% – Refusal of driver to comply with ’requirement to accompany’ officer to police station – Whether requirement shown to be reasonable – Whether proposed mode of transport shown to be reasonable – Whether driver’s refusal unreasonable – Magistrate misdirected himself – Matter remitted for rehearing – Road Safety Act 1986 (Vic) ss 49(1)(e), 55(1).
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr D A Dann | C Marshall & Associates |
| For the Respondent | Mr D A Trapnell SC with Mr C B Boyce | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL P:
This appeal concerns a particular provision of the Road Safety Act 1986 (Vic) (the ‘RSA’), but the point at issue is one of general importance in statutory interpretation. The question which arises is: how does the law give effect to Parliament’s presumed – but unstated – intention that statutory powers will be exercised reasonably?
The particular provision of the RSA is s 55(1), which empowers any member of the police force to require a person to provide a sample of breath for analysis. For that purpose, the officer ‘may further require the person to accompany a member of the police force … to a place or vehicle where the sample of breath is to be furnished …’ (The full statutory framework, as set out in the reasons of the primary judge, appears as an appendix to these reasons.)
The present appellant, having been required to furnish a sample of breath, was then required to accompany the relevant officer by travelling in the lockable rear section of a police divisional van. She refused and was subsequently charged with an offence under s 49(1)(e) of the RSA, in that she ‘refused to comply with a requirement made under s 55(1).’ The Magistrate dismissed the charge on the ground that to require Ms Mastwyk to travel in the rear of the van was ‘really … an imprisonment’, and the statutory power to ‘require the person to accompany’ did not authorise imprisonment.
The Director of Public Prosecutions (the ‘Director’) appealed under s 92(1) of the Magistrates’ Courts Act 1989 (Vic) against the dismissal of the charge. Kyrou J allowed the appeal, holding that the Magistrate had misdirected himself. His Honour upheld a submission made on behalf of Ms Mastwyk, that a ‘requirement to accompany … must be objectively reasonable at the time that it is made.’[1] In other words, a refusal to comply with a requirement to accompany would only constitute an offence if the requirement were shown to have been reasonable…
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- AGLC
- Mastwyk v DPP [2010] VSCA 111
- Case
- [2010] VSCA 111
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether the requirement for the driver to accompany the police officer to a police station for a breath test was reasonable, and whether the proposed mode of transport was reasonable. Additionally, the court had to determine whether the appellant's refusal to comply with the requirement was unreasonable. The appellant argued that the requirement to accompany the officer to a police station was unreasonable due to the distance, the time of night, and the potential risk to public safety. The appellant also contended that the proposed mode of transport, a police car, was unreasonable due to the lack of space and the risk of injury during the journey.
The court held that the magistrate had misdirected himself in law by not considering whether the requirement to accompany the officer to a police station was reasonable. The court found that the requirement was not per se unreasonable, but rather the reasonableness of the requirement depended on the specific circumstances of the case. The court also held that the reasonableness of the proposed mode of transport should have been considered, and that the magistrate had failed to do so. The court further held that the appellant's refusal to comply with the requirement was unreasonable, as the appellant had not provided a reasonable alternative means of providing a breath test.
The court remitted the matter to the Magistrates' Court for a rehearing, with directions that the magistrate consider the reasonableness of the requirement to accompany the officer to a police station and the reasonableness of the proposed mode of transport. The court found that the appellant's refusal to comply with the requirement was unreasonable, and that the appellant's conviction should stand. The court did not make any further orders.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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