O'Connor v County Court - [2014] VSC 295

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2013 02274

JOHN JAMES O’CONNOR	Plaintiff
v
THE COUNTY COURT OF VICTORIA	First Defendant
and
SUSAN BRADSHAW	Second Defendant

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JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 June 2014
DATE OF JUDGMENT:	24 June 2014
CASE MAY BE CITED AS:	O’Connor v County Court & Anor
MEDIUM NEUTRAL CITATION:	[2014] VSC 295

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ADMINISTRATIVE LAW ‑ Judicial review ‑ Certiorari ‑ County Court ‑ Appeal to County Court from Magistrates’ Court ‑ Driving offence ‑ Breath test ‑ Blood alcohol content exceeding 0.05% ‑ Whether error on the face of the record – Contents of the record of the court - Whether open to judge to conclude that test conducted on breath analysing instrument ‑ Road Safety Act 1986 (Vic) ss 3, 49, 58(2), 58(2D).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Billings with Ms B Armatys	M K Steele & Giammario
For the Second Defendant	Mr C Carr	Solicitor for Public Prosecutions

HIS HONOUR:

The plaintiff, by originating motion, seeks an order, in the nature of certiorari, in respect of an order by a County Court judge made on 8 March 2013. By that order, the judge refused an appeal by the plaintiff against a decision of the Magistrates’ Court dated 20 July 2012.

Background

On 4 December 2009, the plaintiff was intercepted by Leading Senior Constable Susan Bradshaw while driving a vehicle on Weidlich Road, Greensborough. A preliminary breath test, administered by Senior Constable Bradshaw, proved positive. Accordingly, the plaintiff was required to accompany Senior Constable Bradshaw to the Diamond Creek Police Station. There, Senior Constable Bradshaw had a conversation with the plaintiff, which she tape recorded. The plaintiff underwent a breath test by a breath analysing instrument. That test revealed that the plaintiff had a concentration of alcohol present in his breath of .07 grams per 210 litres of exhaled air. Senior Constable Bradshaw provided to the plaintiff a certificate, containing that reading, pursuant to s 58(2) of the Road Safety Act 1986 (“the Act”).

The plaintiff was charged by summons alleging offences under s 49(1)(b) and s 49(1)(f) of the Act. In response to the certificate served under s 58(2) of the Act, the plaintiff gave notice, under that section, requiring Leading Senior Constable Bradshaw to give evidence.

The charges came for hearing before the Magistrates’ Court at Heidelberg on 20 July 2012. The plaintiff pleaded not guilty to both charges. The charge under s 49(1)(b) of the Act was dismissed. He was convicted of the charge under s 49(1)(f) of the Act, and fined $500. All licences and permits held by the plaintiff under the Act were cancelled, and he was disqualified from obtaining any such licence for a period of twelve months.

The County Court proceeding

The plaintiff appealed that decision of the Magistrates’ Court to the County Court. The hearing came before a judge of the County Court on 7 March 2013. The…

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.

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Details

Case: [2014] VSC 295
Decision Date: 24 June 2014

CaseChat Overview and Summary

In the case of O'Connor v County Court, the appellant contested the decision of the County Court to dismiss his application for judicial review, which had sought to quash the conviction by the Magistrates’ Court for a driving offence. The appeal centred on the interpretation and application of the Road Safety Act 1986 (Vic) in relation to the breath test result, specifically the blood alcohol content exceeding the legal limit of 0.05%. The appellant argued that there was an error apparent on the record that precluded the County Court judge from concluding that the breath test was conducted on a breath analysing instrument as required by law.

The central legal issue before the court was whether the County Court judge had jurisdiction to conclude that the breath test was conducted on a breath analysing instrument based on the contents of the record. The appellant contended that the record did not explicitly state that the test was conducted on such an instrument, and therefore, the judge had no basis to make this conclusion. The court had to determine if this constituted an error on the face of the record that warranted quashing the conviction.

The court examined the statutory framework provided by the Road Safety Act 1986 (Vic) and the procedural requirements for breath tests in the context of driving offences. It was noted that while the record did not explicitly state that the breath test was conducted on a breath analysing instrument, the statutory provisions implied that such a conclusion was permissible based on the broader context and legislative intent. The court held that the judge was within his jurisdiction to make this conclusion and that there was no error on the face of the record that necessitated quashing the conviction. Consequently, the appeal was dismissed, and the conviction remained in place.

The final orders of the court were that the appeal be dismissed with costs to be paid by the appellant. The conviction by the Magistrates’ Court for the driving offence was upheld, and the appellant's application for judicial review was denied.

Orders