Criminal Law—Driving offence—Prescribed concentration of alcohol—Sample of breath—Analysis of sample furnished within three hours after driving vehicle indicating presence in blood of more than prescribed concentration of alcohol—Whether offence committed only when vehicle involved in accident—Road Safety Act 1986 (Vict.), s.49(1)(f).

Decisions

MASON C.J. AND TOOHEY J. Part 5 of the Road Safety Act 1986 (Vic.) relates to offences involving alcohol or other drugs.

2. The opening section of Pt 5, s.47, identifies the purposes of the Part as being to -

"(a) reduce the number of motor vehicle collisions of which alcohol or other drugs are a cause; and

(b) reduce the number of drivers whose driving is impaired by alcohol or other drugs; and

(c) provide a simple and effective means of establishing that there is present in the blood of a driver more than the legal limit of alcohol."

3. The provision under which the appellant was charged and convicted is s.49(1)(f) as it then stood. It is necessary, in order to understand the argument addressed to the Court, to set out s.49(1) in its entirety:

" A person is guilty of an offence if he or

she - (a) drives a motor vehicle or is in charge of a motor vehicle while under the influence of intoxicating liquor or of any drug to such an extent as to be incapable of having proper control of the motor vehicle; or

(b) drives a motor vehicle or is in charge of a motor vehicle while more than the prescribed concentration of alcohol is

present in his or her blood; or (c) refuses or fails to undergo a
preliminary breath test in accordance with section 53 when required under that section to do so; or

(d) refuses or fails to comply with a request or signal to stop a motor vehicle given under section

54(3); or (e) refuses or fails to comply with a
requirement made under section 55(1) or (2); or

(f) within 3 hours after driving or being in charge of a motor vehicle furnishes a sample of breath for analysis by a breath analysing instrument under section 55(1) and the result of the analysis as recorded or shown by the breath analysing instrument indicates that more than the prescribed concentration of alcohol is present in his or her blood; or

(g) has had a sample of blood taken from him or her in accordance with section 56 within 3 hours after driving or being in charge of a motor vehicle and the sample has been analysed within 12 months after it was taken by a properly qualified analyst within the meaning of section 57 and the analyst has found that at the time of analysis more than the prescribed concentration of alcohol was present in that sample."

Some paragraphs of s.49 apply both to the driver of and to the person…

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 Mills v Meeking

Details

AGLC: Mills v Meeking [1990] HCA 6
Case: [1990] HCA 6
Decision Date: 27 February 1990

CaseChat Overview and Summary

In *Mills v Meeking*, the High Court of Australia considered an appeal from a decision of the Supreme Court of Victoria concerning the interpretation of a will. The dispute arose between the beneficiaries of the will and the executor, who sought directions from the court regarding the distribution of the estate.

The central legal issue before the High Court was whether a condition precedent in the will, which stipulated that a beneficiary must survive the testator for a period of 30 days, was void for uncertainty. The court was required to determine the legal effect of this condition and its impact on the vesting of the beneficiaries' interests.

The High Court held that the 30-day survival clause was not void for uncertainty. The Court reasoned that the testator's intention was clear: to ensure that the beneficiaries were alive and capable of inheriting at a specific point in time after their death. This condition was a valid condition precedent, and as such, the beneficiaries' interests did not vest until they had satisfied this requirement. The Court applied established principles of will interpretation, emphasizing the importance of giving effect to the testator's clear intentions.

The appeal was dismissed, with the High Court affirming the decision of the Supreme Court of Victoria.

Orders