Moir v Stokes
[2016] VSC 218
•11 May 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2014 05617
| SUZANNE MOIR | Plaintiff |
| v | |
| JOSHUA JAMES STOKES And COUNTY COURT OF VICTORIA | First defendant Second defendant |
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JUDGE: | Bell J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 March 2016 |
DATE OF JUDGMENT: | 11 May 2016 |
CASE MAY BE CITED AS: | Moir v Stokes |
MEDIUM NEUTRAL CITATION: | [2016] VSC 218 |
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JUDICIAL REVIEW – road traffic offences – order of County Court of Victoria convicting and penalising plaintiff in respect of drink-driving offences – plaintiff involved in collision and tested positive in preliminary breath test – without being cautioned, she made incriminating admissions to police officers after that test and before evidentiary test – counsel for plaintiff objected to evidence of admissions on ground of being illegally obtained – objection overruled by trial judge – whether breach of rules of natural justice – whether error of law – whether misconstruction of statutory provisions – whether positive preliminary breath test meant offices were of belief that sufficient evidence existing to establish plaintiff had committed offence – whether plaintiff thereby had to be cautioned before being questioned – ‘belief’ – Road Safety Act 1986 (Vic) ss 53, 55, Evidence Act 2008 (Vic) ss 138, 139(2).
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APPEARANCES: | Counsel | Solicitors |
| For the plaintiff | Mr P Billings | Pearce Webster Dugdales |
| For the first defendant | Mr P Pickering | Office of Public Prosecutions |
HIS HONOUR:
The Magistrates’ Court of Victoria made orders by way of conviction and sentence against Suzanne Moir in respect of drink-driving charges brought against her by Joshua Stokes, the informant. The County Court of Victoria dismissed the appeal brought by Ms Moir against those orders and confirmed the penalties imposed. She now seeks judicial review of the orders of the County Court under O 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic).
Proceeding in Magistrates’ Court of Victoria
Ms Moir was charged on summons that, on 17 March 2013, she:
(1)contravened s 49(1)(b) of the Road Safety Act 1986 (Vic) by driving a motor vehicle while more than the prescribed concentration of alcohol was present in her breath;
(2)contravened s 49(1)(f) of the Road Safety Act by, within three hours of driving a motor vehicle, furnishing a sample of breath for analysis by a breath analysing instrument which indicated that more than the prescribed concentration of alcohol was present in her breath; and
(3)contravened s 49(1)(a) of the Road Safety Act by driving a motor vehicle while under the influence of intoxicating liquor to such an extent as to be incapable of properly controlling the vehicle.
On 18 November 2013, the Magistrates’ Court struck out charge (1). In respect of charges (2) and (3), it convicted and fined Ms Moir an aggregate amount of $1,500. Her driver’s licence was cancelled and she was disqualified from driving for four years.
Proceeding in County Court of Victoria
On 19 August 2014, the County Court dismissed the appeal against conviction and sentence in respect of charges (2) and (3). Charge (2) was struck out and (in effect) the penalty imposed in respect of charge (3) was confirmed. Further, pursuant to s 49(7) of the Road Safety Act, the court recorded that the level of alcohol found to be present in Ms Moir’s sample of breath was 0.227 grams per 100 millilitres of blood.
During the hearing of the appeal, an issue arose as to the admissibility of evidence of the informant (and another witness) of admissions made by Ms Moir to him. Counsel for Ms Moir objected to that evidence upon the ground that it had been improperly obtained under s 139(2) of the Evidence Act 2008 (Vic). His Honour Judge Maidment ruled against this objection. The application for judicial review in this court concerns that ruling.
Application for judicial review
As finally pressed, the ground of the application for judicial review was that the trial judge had committed certain errors of law and jurisdiction[1] in ruling that evidence of statements made by the plaintiff to police in the absence of a caution was not in breach of s 138 (as informed by s 139) of the Evidence Act and was therefore admissible into evidence. This does not fairly describes the judge’s ruling, but I will come to that later.
[1]More specifically, Ms Moir relied upon the grounds that the judge had: (i) denied her procedural fairness; (ii) denied her natural justice; (iii) refused to exercise the jurisdiction that he had; (iv) exercised a jurisdiction that he did not have; (v) erred in law; and (vi) erred in law on the face of the record.
Section 138(1)(a) of the Evidence Act confers a discretion upon a court to exclude evidence that was obtained improperly. Section 139(2) provides:
For the purposes of section 138(1)(a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if—
(a)the questioning was conducted by an investigating official who did not have the power to arrest the person; and
(b)the statement was made, or the act was done, after the investigating official formed a belief that there was sufficient evidence to establish that the person has committed an offence; and
(c)the investigating official did not, before the statement was made or the act was done, caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.
Ms Moir’s contention is that the informant (and the other witness) was proposing to give evidence of admissions made by her where he did not have power to arrest her, after he had formed the belief that there was sufficient evidence to establish that she had committed a drink-driving offence and without cautioning her.
It was common ground in the appeal that the informant (and the other witness) was an investigating official[2] and that he had not cautioned Ms Moir before she made the admissions. On the basis put by counsel for Ms Moir, the judge rejected Ms Moir’s contention that the informant had formed the belief that there was sufficient evidence to establish that she had committed an offence and was thereby obliged to caution her.
[2]The definition of ‘investigating official’ in the Dictionary of the Evidence Act includes ‘a police officer’, which the informant (and the other witness) was at the material time.
It is convenient to determine Ms Moir’s application for judicial review by reference to her contentions that the judge in the County Court, first, breached the rules of natural justice in relation to the ruling and, second, erred in law when interpreting and applying s 139(2)(b) of the Evidence Act.
Breach of rules of natural justice
Counsel for Ms Moir submitted that he had sought to cross-examine the informant (and the other witness) to test whether he had formed the belief specified in s 39(2)(b) of the Evidence Act. It was submitted that the judge stopped him from doing so and cut him off, thereby breaching the rules of natural justice. On careful examination of the transcript of the hearing before the judge, I reject this submission.
By pre-arrangement between counsel for the informant and counsel for Ms Moir, during examination in chief counsel for the informant stopped leading evidence from the informant at the point at which he was about to give evidence of the admissions. As expected, counsel for Ms Moir objected to that evidence upon the ground that ‘[t]here [was] no caution as to the questioning, and in that regard the statements made by the appellant are inadmissible’.
Importantly, counsel for Ms Moir did not seek to question the informant to test whether he had, in fact, formed the relevant belief. At no point did he request a voir dire in relation to that issue. His ground of objection was the purely legal one that I consider below. The judge ruled against the objection by determining that legal ground and applied the same reasoning in respect of the objection made with respect to the evidence of the other witness.
The judge did not breach the rules of natural justice in relation to the submissions made by Ms Moir’s counsel on the objection. In ruling against those submissions, his Honour did say: ‘I’m against you, I think that’s rubbish’. But he immediately gave counsel a further opportunity to make submissions and rely upon any supporting authority. Only when counsel for Ms Moir could not provide any such authority did the judge finally rule upon the matter. At that point it was clear that counsel had nothing further to submit.
In the hearing of the application for judicial review, counsel for Ms Moir did not accurately characterise the course of the hearing before the trial judge. I think it is clear from the transcript of the hearing that Ms Moir deliberately elected to place her submissions upon a foundation of law, not upon a foundation of fact. The judge rejected the objection by addressing the legal foundation relied upon. His Honour committed no breach of the rules of natural justice or other error of law in the manner in which he did so.
Interpretation of s 139(2)(b) of the Evidence Act
The submissions made on this ground, both in writing and orally, have a certain protean quality. It is therefore not easy to identify the proper interpretation of s 139(2)(b) of the Evidence Act for which counsel for Ms Moir contends. Doing the best I can, I think the submission is that, properly interpreted, s 139(2)(b) (and s 53, s 55 and other sections of the Road Safety Act) must have applied in the case before the judge because the preliminary breath test administered to Ms Moir established the presence of alcohol in her blood. To determine this submission, it is necessary to go somewhat deeper into the factual circumstances.
The evidence led on behalf of the informant was that the plaintiff was the driver of a motor vehicle involved in a collision with a parked vehicle near her home. The informant attended at her home shortly afterwards. Pursuant to s 53(1)(c) of the Road Safety Act, he administered a preliminary breath test to Ms Moir. That test proved positive (indicated the presence of alcohol in her breath). Pursuant to s 55(1)(a), the informant required Ms Moir to accompany him to Prahran police station for the purpose of supplying a sample of breath for analysis by a breath analysing instrument, which she did.
At the police station, the informant asked Ms Moir the following questions and she gave the following answers:
I said, ‘What is your occupation?’ The accused said, ‘Home duties’. I said, ‘Have you consumed or taken anything by mouth in the last 15 minutes?’ and the accused stated, ‘No’. I said, ‘Have you consumed intoxicating liquor today?’ The accused stated, ‘Yes’. I asked, ‘What type of intoxicating liquor have you consumed today?’ The accused stated, ‘White wine’. I asked, ‘What size glasses, cans, bottles were you drinking from?’ She’s told me, ‘Glasses’. I asked, ‘How much intoxicating liquor have you consumed today?’ The accused stated, ‘Four glasses’. I said, ‘Where was the last place that you consumed liquor today?’ The accused stated, ‘At home’. I asked, ‘With whom were you drinking?’ The accused stated, ‘By herself’. I asked, ‘Have you consumed liquor elsewhere today?’ The accused stated, ‘No’. I asked, ‘What time did you have your first drink today?’ The accused stated, ‘Don’t know’. I said, ‘What time did you have your last drink today?’ The accused said, ‘I don’t know’. I asked, ‘Are you sure of the amount of liquor you have consumed today?’ The accused stated, ‘Yes’. I asked, ‘What time do you say you were involved in the accident?’ The accused stated, ‘Don’t know’. I asked, ‘When you drove the vehicle, did you think you may be over the legal limit?’ The accused stated, ‘No’. I said, ‘Did you consider the possibility?’ The accused stated, ‘No’. I said, ‘How far have you driven since consuming your last drink and until you were intercepted or located?’ The accused stated, ‘Two kilometres’.
Those are the admissions that counsel for Ms Moir objected to being received into evidence. It is obvious from these questions and answers and the factual circumstances generally that, during the questioning process, the informant was in a position of advantage vis-à-vis Ms Moir (as was the other witness). But, putting aside the possible application of s 139(2)(b) of the Evidence Act, he was exercising a lawful power of ordinary questioning.[3] Ms Moir was not compelled to answer but she did. Situations such as this can give rise to issues of abuse of power and breach of human rights. The ground of objection relied upon by counsel for Ms Moir was not that the informant had abused that power to obtain those answers or breached Ms Moir’s human rights but that s 139(2)(b) applied to require a pre-questioning caution.
[3]See generally Director of Public Prosecutions v Kaba (2014) 44 VR 526, 548 [69] (Bell J).
After the questioning by the informant, a sample of breath was taken from Ms Moir by Michael Free, a sergeant of police. He was the other witness. He gave evidence of conversing with Ms Moir before taking and analysing a sample of her breath. The breath analysing machine produced a positive reading of 0.227 grams per 100 millilitres of blood. Audio evidence of admissions made by Ms Moir to Sergeant Free was given to the judge over the objection (upon the same grounds) of her counsel.
The questioning of Ms Moir by the informant and Sergeant Free was carried out pursuant to a standard procedure. According to that procedure, she was not cautioned before the preliminary breath test was conducted under s 53(1) of the Road Safety Act by the informant nor before the evidentiary test was conducted under s 55(1) of that Act by Sergeant Free. Yet she was questioned by, and made incriminating admissions to, both of those officers. That there was systemic unfairness in those procedures was inherent in the submissions made by counsel for Ms Moir, but he did not explore those issues at the hearing before the judge. He put his submissions on a much narrower basis.
I accept that the admissions made by Ms Moir were damaging to her defence. The admissions undermined the capacity of her counsel to advance arguments on her behalf. Without the admissions, the informant may not have been in a position to prove some important matters beyond reasonable doubt, such as whether Ms Moir was the driver of the vehicle and, if she was, whether she was so under the influence of intoxicating liquor that she was incapable of having proper control of the vehicle. Admissions made by Ms Moir in the conversations with the informant and Sergeant Free were taken into account by the judge in dismissing the appeal.
I further accept aspects of the submissions made by counsel for Ms Moir. Whether an investigating official had or did not have the belief specified in s 139(2)(b) of the Evidence Act is an issue of fact. An accused or other relevant party may test this issue in the usual ways, including cross-examination of the investigating official and leading evidence on the subject. As counsel for Ms Moir submitted and counsel for the informant properly conceded, it may be that, having regard to the totality of the evidence, a court would be satisfied that the investigating official had in fact formed a belief even though he or she had denied doing so. The positive result of a (properly conducted) preliminary breath test, and the reading recorded, may be relevant to whether a person is guilty of the offence of driving under the influence in s 49(1)(a) of the Road Safety Act as going to the level of control that the person would have when driving a motor vehicle.[4] Such a result may therefore be relevant to whether the official did or did not have the belief.
[4]See R v Ciantar (2006) 16 VR 26 (Warren CJ, Chernov, Nettle, Neave and Redlich JJA) where evidence of the positive result of such a test was admitted at trial of an analogous charge.
However, it is equally clear that s 139(2)(b) specifies a condition that relates to the state of the mind of the investigating official and not the state of the actual evidence. The applicability of s 139(2)(b) turns on whether the investigating official (subjectively) had formed the belief that, not on whether the court might (objectively) find that, there was sufficient evidence to establish that the person had committed an offence. Therefore, a positive result in a preliminary breath test, and the reading recorded, may be a relevant, but would not be a determinative, consideration.
In the present case, the submission of counsel for Ms Moir to the judge in the County Court proceeding, and his real submission to me in this proceeding, was that the informant and Sergeant Free must (subjectively) have been of the belief specified in s 139(2)(b) of the Evidence Act because Ms Moir had tested positive to the preliminary breath test. Stripped of obfuscation, this is a submission that a police officer who administers a preliminary breath test to a person under s 53(1) of the Road Safety Act with a positive result, or an evidentiary test under s 55(1) of that Act to that person after that result, must necessarily be of the belief that there is sufficient evidence to establish that the person has committed a drink-driving offence. At the level of fact, this submission seems hard to sustain, but it was not really counsel’s submission here or below. At the level of statutory interpretation, which was his submission, it can only be based on s 139(2)(b) of the Evidence Act and/or s 53, s 55 or some other section of the Road Safety Act. There is simply nothing in those provisions to justify this interpretation. Something in the nature of a statutory deeming would be needed and there is none. The question whether the officer holds the belief is a particular question of fact and cannot be answered by reference to general propositions of the kind advanced by counsel for Ms Moir.
In this court, but not in the County Court, counsel for Ms Moir tried to place reliance upon evidence (other than the positive preliminary breath test) which could be relevant to any belief formed under s 139(2)(b), such as Ms Moir’s manifest lack of sobriety. It certainly would have been open to counsel for Ms Moir to rely upon such evidence in submissions to the judge to the effect that, on the totality of the evidence, the informant and Sergeant Free actually had (subjectively) the relevant belief. In this regard, the very high reading recorded in the test would have been a relevant consideration. But counsel did not so conduct Ms Moir’s defence in the proceeding before the judge and this court will not allow the application for judicial review to be conducted on a wider basis.
Conclusion
The application for judicial review will be dismissed. I will hear the parties on the question of costs.
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