Platz v Barmby - [2002] VSC 531

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

In the Matter of the Magistrates Court Act 1989 and
In the Matter of an Appeal under s. 92 of the Act

No. 6442 of 2002

PATRICIA PLATZ	Appellant
v
SHANE BARMBY	Respondent

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JUDGE:	Byrne J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 November 2002
DATE OF JUDGMENT:	26 November 2002
CASE MAY BE CITED AS:	Platz v Barmby
MEDIUM NEUTRAL CITATION:	[2002] VSC 531

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Magistrates Courts – Short service of criminal process – Whether Court might proceed ex parte

Magistrates’ Court Act 1989 ss.34, 41(2).

Criminal Law – Driver’s blood test – Certificate of Analysis – Certificate short served – Whether admissible in evidence.

Road Safety Act 1986 s.57(5).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P. Reynolds	Keogh & Co
For the Respondent	Mr K. Armstrong	Solicitor for Public Prosecutions

HIS HONOUR:

At 9.15 pm on Sunday 23 December 2001, the appellant, Patricia Platz, sometimes called Patricia Davis, was driving her car in a southerly direction along Brighton Road, Elwood. It was, according to the witnesses, a dry clear night and traffic was light. Ms Platz's car for some reason struck the tram safety zone and overturned. Later that night, at about 10.20 pm at the Alfred Hospital, a sample of her blood was taken which upon analysis was found to contain .155 grams of alcohol per 100 millilitres of blood.

On 14 May 2002, the respondent, Senior Constable Shayne Barmby, as informant, filed three charges against her:

"1.Driving with a blood alcohol content in excess of .05 grams per 100 millilitres, contrary to s. 49(1)(b) of the Road Safety Act 1986.
2.Having a blood alcohol content in excess of .05 grams per 100 millilitres within three hours after driving, contrary to s. 49(1)(g) of the Road Safety Act 1986.
3.Careless driving, contrary to s. 65 of the Road Safety Act 1986."

He caused to be issued a summons for her attendance to answer these charges at 10.00 am on 21 June 2002 at the Melbourne Magistrates' Court. The informant sought to serve this process on the 2nd and again on 3 June 2002. On each occasion the Ms Platz declined to accept service saying that she would do so only through her solicitors. A remarkable feature of this case is that the informant appears to have accepted this.

The solicitor to whom she was referring appears to have been Mr Sean P Hardy of counsel who wrote to the informant a letter dated 6 June 2002 but which, according to the fax header, was not sent until 12.28 pm on the following day. Mr Hardy observed on the letter, apparently incorrectly, that no attempt had been made to serve his client and invited the informant to effect service upon him, Hardy. He enclosed his client's authority for this.

Meantime, time was passing. Pursuant to s. 34(1)(a)(ii) of the Magistrates’ Court Act, service of the process had to be effected "at least…

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 Platz v Barmby

Details

AGLC: Platz v Barmby [2002] VSC 531
Case: [2002] VSC 531
Decision Date: 26 November 2002

CaseChat Overview and Summary

Platz v Barmby was a matter before the Magistrates’ Court of Victoria, involving a dispute regarding the admissibility of a certificate of analysis from a driver’s blood test in a criminal proceeding. The respondent, Platz, was charged with an offence under the Road Safety Act 1986. The prosecution's case relied on the blood test result, but the certificate of analysis had been served on the respondent shortly before the scheduled hearing, raising questions about its admissibility.

The legal issues before the court involved whether the Magistrates’ Court could proceed ex parte and whether the certificate of analysis, which was short served, could be admitted as evidence. The respondent argued that the short service of the certificate violated their right to a fair hearing, as per the Magistrates’ Court Act 1989, and that it should be excluded under the provisions of the Road Safety Act 1986. The court had to balance these statutory requirements with the principles of natural justice and the interests of justice.

The court examined the statutory provisions and found that the Magistrates’ Court Act 1989 allowed the court to proceed ex parte in certain circumstances, but this did not override the fundamental requirement of natural justice. The court held that the short service of the certificate of analysis was impermissible as it did not provide the respondent with adequate time to prepare a defence. Consequently, the certificate was inadmissible. The court emphasised that the right to a fair hearing is paramount, and procedural fairness must be observed. The respondent’s application to exclude the certificate was granted.

The court ordered that the certificate of analysis was inadmissible in evidence and directed the prosecution to take appropriate steps to ensure proper service of all documents in future proceedings. The hearing was adjourned to allow the respondent adequate time to prepare their defence.

Orders