Menelaou v Petrou (No. 1)
[2017] VCC 935
•22 May 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. AP-15-1998
| Peter Menelaou | Appellant |
| v | |
| Senior Constable Robert Petrou | Respondent |
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JUDGE: | Campton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 February 2017 | |
DATE OF RULING: | 22 May 2017 | |
CASE MAY BE CITED AS: | Menelaou v Petrou (No. 1) | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 935 | |
REASONS FOR RULING
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Subject:Refuse breath test; request to accompany to testing facility for evidentiary breath test
Catchwords:
Legislation Cited: The Road Safety Act 1986; Evidence Act
Cases Cited:DPP vFoster (1999) 29 MVR 365; Sanzaro v County Court of Victoria (2004) 42 MVR 279; Hryskios v Mansfield [2002] VSC A 175; R Ball v Florent Chargelegue v the County Court of Victoria [2016] VSC 295; Clark (a pseudonym) v The Queen [2016] VSCA 96; Jago v District Court NSW (1989) 168 CLR 23; DPP v Piscopo (2011) 59 MVR 200; DPP v Serbest [2012] VSC 35; DPP v Vaa [2004] VSC 444;
Ruling: Conviction upheld
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Warwick Walsh-Buckley | |
| For the Respondent | Peter Pickering |
HER HONOUR:
The Appeal
1 On 20 August 2015 at the Heidelberg magistrates Court the appellant was convicted of refusing to undergo a breath test and it was ordered that his license be cancelled and that he be disqualified from driving in the State of Victoria for a period of four years. In addition he was fined the amount of $500. On a charge of exceed the speed limit being 50 km he was convicted and fined $250.
2 This decision deals with his appeal against conviction and sentence with respect to the charge of refusing to undergo a breath test. The appeal against the charge of exceed the speed limit is against sentence only and will be dealt with at a later date.
The Road Safety Act 1986
3 The relevant provisions in the Road Safety Act (the Act) provide:
·
Section 49 (1)(e) A person is guilty of an offence if he or she –
(e) refuses to comply with a requirement made under section 55 (1)
· Section 55 (1) If a person undergoes a preliminary breath test when required by member of the police force to do so, and:
o the test, in the opinion of the police officer - in whose presence it is made indicates that the person’s breath contains alcohol; or
o the person, in the opinion of the police officer - refuses or fails to carry out the test in the manner specified in section 53(3)
· any police officer may require the person to furnish a sample of breath for analysis by breath analysing instrument and for that purpose may further require the person to accompany a member of the police force for the purpose of section 53 to place or vehicle where a sample of breath is to be furnished and to remain there until the person has furnished the sample of breath.
The circumstances of the offence
4 SC Petrou gave evidence that on Monday, 2 June 2014 he was performing traffic patrol duties in the Epping area in a marked traffic patrol vehicle when he observed a vehicle travelling at a fast speed east along Lyndarum Drive, Epping. The applicable speed limit in this area is 50 kilometres an hour. SC Petrou used a radar device to estimate the rate of speed of the vehicle as being 73 km an hour.
5 As a result he took up a position behind the vehicle and performed an intercept. A short time later SC Petrou approached the appellant and obtained his name, address, and date of birth. After noticing a smell of intoxicating liquor he administered a preliminary breath test. He had a conversation with the appellant as follows:
SC Petrou: “Have you consumed any intoxicating liquor today.”
The appellant: “No, why have I been pulled over.”
SC Petrou: “Because you were speeding”.
6 As the prescribed preliminary breath test device indicated the presence of alcohol on the accused’s breath SC Petrou then said:
“Okay Peter firstly I must inform you that you are not obliged to say or do anything but anything you do say or do may be given as evidence in court. Do you understand that”
The appellant replied “Yeah”
SC Petrou: “Okay Peter the result of the preliminary breath test indicates your breath contains alcohol. I now require you to accompany me to a testing facility for the purpose of an evidentiary breath test. Are you willing to accompany me”.
The appellant replied “Um, yeah, but I want to call my wife. Okay please I’m begging you, can you please help me, I won’t do it again please.”
SC Petrou: “I’m sorry Peter unfortunately there is nothing I can do. I require you to accompany me to a testing facility for the purpose of an evidentiary breath test. Are you willing to accompany me.”
The appellant: “what are my options”.
SC Petrou: “Okay firstly I must let you know that you are not under arrest. However I do require you to accompany me for an evidentiary breath test. If you are not willing to accompany me, you may lose your license for a period of 2 years, may face a fine, or term of imprisonment. Do you understand this information?”
The appellant: “yeah”
SC Petrou: “Are you willing to accompany me to a testing facility for the purpose of an evidentiary breath tests” to which the appellant replied “No”
7 SC Petrou then wrote down this request in his day book and asked the appellant to circle yes or no as to whether he wanted to accompany him. The appellant circled no.
8 SC Petrou then informed the appellant that he was going to his vehicle to perform vehicle and license checks and asked the appellant if he wanted to look at the speed reading of his vehicle. He also gave the appellant an opportunity to call his partner.
9 SC Petrou then asked the appellant what his reason was for failing to accompany him for an evidentiary breath test to which the appellant replied “I’m over it man”.
10 He asked the appellant what his reason was for exceeding the speed limit and the appellant replied “stupid.”
11 After performing all relevant vehicle and license checks and photographing the primary breath testing device and mobile radar speed detector, SC Petrou cleared the intercept and parked outside 52 Lyndarum Drive, Epping. At this time he completed all relevant notes in relation to the intercept.
12 A short time later he was approached by the appellant and a further conversation took place
13 The appellant: “You expected me to drive didn’t you?”
14 SC Petrou: “No Peter I must write up my notes immediately while it is all fresh in my mind.”
15 The appellant: “You could have let it go and given me a warning.
16 SC Petrou: “No I can’t, I would then be perverting the course of justice, dereliction of duties, and I would lose my job. Sorry, I was not going to give you a warning”.
17 The appellant: “okay.”
18 When he was cross-examined SC Petrou said that he had firstly given the appellant a caution to be fair so that he would not incriminate himself. At that stage the breath test device was still initialising the reading and SC Petrou did not know whether he would be requiring the appellant to accompany him to a testing facility for a breath test.
19 SC Petrou denied that that the appellant may have been confused because he had asked him to accompany him to a testing facility straight after the caution had been given. The appellant had not said he was confused at any stage during their conversation nor he asked for any further information about his options.
20 SC Petrou agreed that he did not inform the appellant that he would be committing an offence and would be charged if he refused to accompany him. However, his explanation was that it was not his decision as to whether or not the appellant would be charged with an offence.
21 SC Petrou was challenged about his use of the word “may” when informing the appellant of the penalties for not being willing to accompany him for an evidentiary breath test. While he agreed that a loss of license was mandatory for such an offence, his explanation for using “may” was that it was a matter for the court to determine whether or not the appellant was guilty of the offence. In addition, as to whether the mandatory license cancellation/disqualification applied.
22 It was also put to SC Petrou that the information he gave to the appellant with respect to the penalty of losing his license for a period of two years was incorrect. This was because the appellant had a relevant prior so that the mandatory disqualification period was four years not two. SC Petrou explanation for this was that at the time he gave the information he was not aware of the appellant’s prior offence. He not did recall seeing anything on the appellants licence with respect to ‘0 blood alcohol.’
23 However, SC Petrou agreed that he became aware of the appellants prior offence after conducting the relevant checks. In addition, that he did not inform the appellant that given his prior offence the licence disqualification period was 4 years and not 2.
The Appellants Evidence
24 The appellant gave evidence that prior to driving he had been at home and had consumed one or two beers. He thought they were stubbies and that it was light beer. As his 3 year old son was crying he went out in the car to get some milk. Due to a prior offence of exceed .05 blood alcohol content in 2012 it was a condition of his driver’s license that he consume zero alcohol. However, in the haste of the moment he gave this no thought.
25 In essence his reasons for failing to accompany SC Petrou to a testing facility for an evidentiary breath test were as follows:
· he just wanted to get home to his son with the milk. He did not want to go back to the testing facility as it would have taken more time;
· he had not been told that he would be charged with an offence if he refused to accompany SC Petrou to a testing facility for an evidentiary breath test;
· SC Petrou told him that he may lose his license for a period of two years, or face a fine or term of imprisonment if he refused to accompany him;
· if he had been told that he would lose his license for a period of four years if he was not willing to accompany SC Petrou to a testing facility, he would have accompanied him;
· he was stressed and confused regarding his options and was told that he may go home;
· in 2012 he had gone to a police station to fill out the necessary forms regarding a motor car accident and he had been tested there.
Appellants Submissions
26 It was submitted for the appellant that that there were four grounds on which the prosecution had failed to satisfy the court beyond reasonable doubt that the elements of the offence had been made out.
That the appellant had not been properly informed
27 The first ground is that the appellant had not been told by the informant that it was an offence if he refused to accompany him.
28 With respect to this ground the appellant relied on the case of DPP v Serbest[1], where after the accused’s breath tested positive for alcohol the informant asked him to return to the police station to undergo a breath test. The informant told the accused:
“You are not under arrest but the decision is yours. There is important information I need to give to you if you don’t”.
[1] [2012] VSC 35
29 When the accused replied that he did not want to accompany him the informant said:
“if you fail to accompany me for breath test you will commit an offence which if you are found guilty carries a fine and imprisonment and two years loss of license.”
30 In that case at paragraph 37 Robson J said:
“the police officer correctly informed the accused that he was not under arrest but there were important consequences if he did not comply with the request. The accused was not confused as to the necessary elements of the offence. That is, a request had been made and his refusal to comply, constituted an offence” (emphasis added).
31 It was submitted that as SC Petrou had not informed the appellant that he would commit an offence if he refused to accompany him to a testing facility, an element of the offence had not been proved beyond reasonable doubt. Serbest does not support the proposition that it is an element of the offence to inform the accused that a refusal to comply will constitute an offence. The appellants submission that it does contradicts Sanzaro, Vaa, Foster, and Piscopo[2].
[2] (2004) 42 MVR 279; [2004] VSC 444; (1999) 29 MVR 365; (2011) 59 MVR 200
32 I accept the submission for the prosecution that there is no requirement for the police to advise a person as an element of the offence in section 49(1)(e) of the Act, that a refusal to comply with the request constitutes an offence.
33 As SC Petrou said in his evidence, it is not for him to determine whether or not the appellant would be charged with any offence. This decision would be taken by his superiors at the police station.
34 The authorities[3] establish that the offence is created under paragraph (e) of section 49 (1) of the Act by the appellants refusal to accompany a member of the police force when required to do so. The refusal to comply with the request is what triggers the offence.
[3]DPP v Serbest [2012] VSC 35; Sanzaro v County of Victoria (2004) 42 MVR 279
35 For the offence to be established there are two things which must be proven by the prosecution. These are firstly that a requirement has been made and secondly that there has been a refusal to comply with that requirement. It will be enough that the intent of the police officer and the obligations of the person required to comply have been made clear.
36 The real issue in this case is whether SC Petrou’s requirement provided reasonably sufficient information for the appellant to know that he was required to accompany him to a testing facility for the purpose of an evidentiary breath test. I will return to this issue after considering the appellant’s other submissions as to why the grounds of the offence have not been made out.
The appellant was not told the correct penalty
37 The second ground relied upon by the appellant was that it was an element of the offence that SC Petrou correctly informed him of the consequences of a refusal to accompany him. It was submitted that SC Petrou had incorrectly informed the appellant that he may lose his license for two years. However, due to his prior conviction for a 49 (1)(f) offence on 8 December 2012, the correct penalty with respect to his license was not less than four years license disqualification. The Informant could have ascertained this by Leap or roads check conducted at the scene
38 In support of this submission the appellant relied on Serbest where Robson J said at para 37: “The police officer correctly informed the accused that he was not under arrest but there were important consequences if he did not comply with the request.” On the basis of this paragraph it was submitted that Robson J had held that it is an element of the offence that the police officer correctly informs the accused of the consequences of a refusal to accompany him to the police station.
39 In rejecting the submission for the appellant I do not accept that in Serbest Robson J held at paragraph 37 that it is an element of the offence for refusing to accompany under section 49(1)(e) that the police officer correctly informs the accused of the consequence of refusal. The word correctly in paragraph 37 clearly relates to the fact that the accused had been informed correctly by the police officer that he was not under arrest. Robson J does not state that there is an obligation on the informant to advise the accused of the correct/actual penalty which would apply in his particular case if he refused to comply with a requirement to accompany the police officer.
40 The penalty information given to the appellant by SC Petrou was incorrect due to his prior matter. However, I accept SC Petrous evidence that he was unaware of the appellants prior when he informed him of the penalty. I find further that there was no obligation on SC Petrou after he had performed the license checks to inform the appellant that the penalty may be four years loss of license. What is important is that SC Petrou informed the appellant on three occasions that he was required to accompany him for an evidentiary breath test and that there were penalties if he failed to accompany him.
41 It was also submitted that SC Petrou incorrectly informed the appellant that he “may lose his license for a period of two years, may face a fine or term of imprisonment. The use of the word “may” was submitted to be incorrect because on a finding of guilt on a charge of refusing to comply with a requirement to accompany a police officer for an evidentiary breath test (s55(1) and 49(1)(e) of the Act) even a first offender must face a two years mandatory license disqualification.
42 However, I accept that it was sufficient for SC Petrou to advise the appellant of the penalties which may apply if he refused to accompany him for an evidentiary breath test. While the licence loss penalty is a mandatory one, there must first be a finding of guilt. When providing the appellant with information about the penalty for refusing to accompany him for a breath test SC Petrou does not know and cannot speculate as to whether the appellant will be found guilty of the offence. In addition even if the appellant is found guilty it is a matter for the judicial officer sentencing him to determine the appropriate penalty.
The appellant did not have the necessary mens rea for the offence
43 The third ground relied upon by the appellant was that a refusal to accompany under 49(1)(e) is a mens rea offence. In support of this submission the appellant relied on Hryskios v Mansfield[4] where Ormiston JA at [3] said: “The word ‘refuses’ must be taken to carry with it an element of mental intent, albeit judged objectively for the purposes of an offence such as the present.”
[4] [2002] VSC A 175
44 In addition the appellant relied on Sanzaro where in applying Foster at [75] Nettle J held in relation to a refusal to accompany charge that the “intent of the police officer and the obligation of the person required to comply must have been made clear.”
45 Relying on these cases it was submitted that if anything that SC Petrou said or did surrounding or during the requirement to accompany tended to make it not clear to the appellant then the mens rea is not made out.
46 In particular it was submitted for the appellant that:
“When the informant stated to the accused, prior to the requirement to accompany, ‘you are not obliged to say or do anything but anything you say or do may be given in evidence’ and then immediately told him ‘he was not under arrest’ followed by the use of ‘may’ on several occasions this became objectively confusing to the reasonable person as well as subjectively confusing to the accused. Unless the prosecution could satisfy the court beyond reasonable doubt that the accused possessed men’s rea for the section 49(1)(e) offence in these circumstances and was not confused the charge must be dismissed.”
47 The recent decision of R Ball v Florent Chargelegue v the County Court of Victoria[5] was of assistance to the court on this issue. In that case at a the hearing before the Magistrates’ Court at Ringwood the plaintiff was convicted of refusing to undergo a breath test under section 49(1)(e) of the Act. He was fined $2000 and ordered to be disqualified from driving for a period of three years.
[5] [2016] VSC 295
48 The plaintiff appealed to the County Court where the charges were found proven and the plaintiff was convicted of refusing the breath test. However, the fine was reduced to $1000 and the order of disqualification was reduced two years.
49 On appeal to the Supreme Court the primary submission was that it could not be concluded beyond reasonable doubt that the plaintiff was given reasonably sufficient information in a request to know what was required of him and why.
50 The plaintiff’s car had been involved in a collision. On speaking to the plaintiff at his house prior to informing the plaintiff that he had the power to ask him to undergo a preliminary breath test the police constable had given the plaintiff the standard caution. On confirming that the plaintiff was the driver of the car the police officer then informed him that he had the power to ask him to undergo a preliminary breath test.
51 The plaintiff refused to undergo a preliminary breath test and a request was made that he do so. In the course of that making that request the police officer informed the plaintiff that if he refused he may be charged with an offence and if found guilty he may be fined or imprisoned up to 18 months and would lose his license for a minimum of two years.
52 In essence the argument for the plaintiff was that there was an inconsistency in giving him a caution where he was told that he was not required to say or do anything and then shortly afterwards requiring him to do something.
53 Riordan J accepted that the relevant authorities establish that the requirement for a person to undergo a breath test does not require any particular form of words.[6] The test is whether the evidence is such as to prove that the person was given reasonably sufficient information to know what was required of him and why.
[6]Foster, Sanzaro
54 After considering the entirety of the relevant communications Riordan J was satisfied that it was open to the County Court to conclude that the plaintiff was given sufficient information to know what was required of him and why. In particular, because the caution was given to the plaintiff prior to his admission that he had driven the car. It would have been clear to the plaintiff that the liberty communicated by the caution no longer prevailed once he had admitted that he was the driver of the car which had been involved in a collision. As he had been involved in the collision the police had the power to ask him to undergo a preliminary breath test
55 After considering the entirety of the communications between SC Petrou and the appellant I have reached the same conclusion as Riordan J. In this case the caution was given to the appellant because he had been apprehended exceeding the speed limit and the police officer smelled intoxicating liquor on his breath. It was only after the result of the preliminary breath test was obtained that SC Pertrou required the appellant to accompany him to a testing facility for the purpose of an evidentiary breath test.
56 At this stage the appellant should have been aware that as the preliminary test had been positive he was required to accompany SC Petrou to a testing facility for the purpose of an evidentiary breath test. On being informed of the requirement to accompany, the appellant did not indicate to SC Petrou that he was confused because of the caution he had just received. On the contrary his response to SC Petrou: “Um yeah but I want to call my wife. Okay please I’m begging you, can you please help me, I won’t do it again please.”
57 Even if there was some momentary confusion on the behalf of the appellant because the first request was made close to the giving of the caution SC Petrou informed him that he was required to accompany him to a testing facility for the purpose of an evidentiary breath test on two more occasions. On the third occasion he informed the appellant of the penalties for not doing so. When the appellant was asked if he understood this information he replied “Yeah”. At no stage in the conversation did the appellant say that he was confused or that he did not understand the requirement.
58 There was a further opportunity where the appellant could have voiced his confusion. This was when SC Petrou wrote down the requirement to accompany him in his day book and asked the appellant to circle yes or no in red and the appellant circled no.
59 In so far as it was also submitted that the appellant may have been confused due to SC Petrou using the word “may” when he referred to the penalties I reject this submission. The appellant would have been aware that any penalty imposed was subject to there being a finding of guilt. It was also suggested that the alcohol he had consumed could have led to confusion. However, I consider that this would be unlikely after two stubbies of light beer.
60 In looking at the entirety of the communication between SC Petrou and the appellant I am satisfied beyond reasonable doubt that when the Appellant refused to accompany SC Petrou he had received reasonably sufficient information to know what was required of him and why. In addition that he had been informed that there were legal penalties for non-compliance. I reject his evidence that he was confused.
Unfairness discretion or permanent stay of prosecution as abuse of process
61 It was submitted for the appellant that if the court rejected the above submissions owing to the confusing and contradictory information conveyed to the appellant by the informant on his obligation to accompany and what may happen if he did not, including the misstatement on penalties, section 137 of the Evidence Act should apply to exclude all evidence of the refusal.
62 Alternatively, if the court would not invoke section 137 then it ought to exercise the exceptional discretionary power vested in the court to grant a permanent stay of the prosecution as an abuse of process. This was on the grounds of a fundamental defect which goes to the root the trial of such a nature that nothing that the trial judge could do in the conduct of the trial could relieve it against unfair consequences.
63 Section 137 of the Evidence Act provides that in a criminal proceeding, the court must refuse to admit evidence produced by the prosecution if its probative value is outweighed by the danger of unfair prejudice to the accused.
64 The appellants submission regarding section 137 presumes that the court has accepted the appellant’s case that the information conveyed to him by SC Petrou was confusing and contradictory. For the reasons I have already referred to herein, I do not accept that this was the case. I have accepted that SC Petrou provided the appellant with sufficient information to know what was required of him and why. The appellant refused the request to accompany SC Petrou both verbally and in writing. At no stage did he indicate that he was confused. This is not a case where the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused.
65 With respect to the appellant submission that the court should grant permanent stay of proceedings as an abuse of process; the circumstances which will lead the court to exercise this power have been described as “exceptional” or “rare.” In Jago v District Court NSW[7] at 70, Gorgon J said:
“It is power which is not concerned with the manner of a person’s trial, but is concerned with the question whether the person should be tried at all. There are no set categories of cases. While instances of exercises of the power will be rare, it will certainly be invoked where the evidence indicates that it would be unacceptably oppressive or unfair to and accused or an affront to the public conscious to permit the prosecution to proceed.”
[7] (1989) 168 CLR 23
66 More recently the case of Clark (a pseudonym) v The Queen[8] at 16-19:
“It is only in an extreme case that a permanent stay of proceedings will be ordered… such cases will be rare. It follows that an applicant for a permanent stay must discharge a heavy onus if a court is to be persuaded to grant that remedy… It must be shown that the continuation of the proceedings would be so unfairly and unjustifiably oppressive as to itself constitute an abuse of process.”
[8] [2016] VSCA 96
67 Given the findings I have made in this case there is no basis for consideration of permanent stay of the prosecution.
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