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Mastwyk v DPP

Mastwyk v DPP

Case [2010] VSCA 111 11 May 2010

Road Safety

Refusal to Comply

Breath Test

Blood Alcohol Content

Statutory Interpretation

Criminal Law

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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…

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 Mastwyk v DPP

Details

AGLC: Mastwyk v DPP [2010] VSCA 111
Case: [2010] VSCA 111
Decision Date: 11 May 2010

CaseChat Overview and Summary

The case of Mastwyk v DPP involved the appellant, who was charged with driving a motor vehicle with a blood alcohol content exceeding 0.05%. The dispute centred on the appellant's refusal to accompany a police officer to a police station for a breath test, as required by the Road Safety Act 1986 (Vic). The appellant argued that the requirement to accompany the officer was unreasonable, as was the proposed mode of transport. The matter was remitted to the Magistrates' Court for a rehearing, following a finding that the magistrate had misdirected himself in law.

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