Police v McNamara
[2022] VMC 11
•25 May 2022
IN THE MAGISTRATES’ COURT OF VICTORIA
AT FRANKSTON SITTING IN MELBOURNE
CRIMINAL DIVISION
Case No. K12469500
| SENIOR CONSTABLE BRENDAN PARKER | Informant |
| v | |
| JOHN McNAMARA | Accused |
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MAGISTRATE: | G BRYANT |
WHERE HELD: | Frankston sitting in Melbourne |
DATE OF HEARING: | 6 April 2022 |
DATE OF DECISION: | 25 May 2022 |
CASE MAY BE CITED AS: | Police v McNamara |
MEDIUM NEUTRAL CITATION: | [2022] VMC 11 |
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MOTOR TRAFFIC LAW – Road Safety Act 1996 – Refusal of driver to comply with requirement to accompany officer to police station – Requirement to form belief of offence against ss 49(1)(a) or (b) – Requirements for request to accompany police – Obligation to explain consequences of refusal to accompany police for evidentiary breath test.
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APPEARANCES: | COUNSEL | SOLICITORS |
| For the Informant | Senior Constable Matthew Donaldson | Victoria Police |
| For the Accused | Mr SP Hardy |
HIS HONOUR:
INTRODUCTION
The accused John McNamara (‘the accused’) is charged under s 55(2) of the Road Safety Act 1996 (‘the Act’) which permits the police to give a requirement to accompany them where a sample of breath is to be furnished where the police officer forms the opinion that the driver has committed an offence under ss 49(1)(a) or (b) of the Act. The accused was also charged with two other offences which will be considered later in the judgment.
The entire interaction between the accused and the police members was captured on a body worn camera (‘BWC’) which was played to the Court. A transcript of the conversation was also produced. The entire proceedings were conducted by WebEx with all parties appearing remotely.
Unlike the resources and technical know-how available to media outlets, it is not possible to imbed the BWC footage into the text of this judgment. That may be a reflection of the luddite qualities of the author, or that the law has not yet caught up with the contemporary science required to do so. That is a pity as a picture tells a thousand words, as the transcript and evidence of the parties in this hearing do not adequately reflect the nuance and tenor of the interaction between the witnesses, in the same way the video footage is able to.
The informant gave evidence that on 24 May 2019 at approximately 4:55pm, he in company with two other police members in the same vehicle pulled over a motor vehicle driven by the accused in Sturt Street South Melbourne due to the manner in which the Ford Ranger motor vehicle was being driven by the accused. The informant also gave evidence that as he and his colleagues were originally tasked with social order duties that day, and as such they did not carry with them a PBT device.
The following conversation took place (errors in original):
THE INFORMANT: G’day mate …( inaudible ) your licence
THE ACCUSED: I haven’t got my licence on me
THE INFORMANT: yeah yeah cool, we’ll do a couple of check… the reason we stopped you ..no right turn there coming on to Kings Way. Um also..
THE ACCUSED: Well guess what ? I’ve had a couple of drinks and I probably drank too much so…
AND LATER
THE ACCUSED: I’m in a lot of froth and bubble
THE INFORMANT: Ah yeah we – well, what we’re going to do because we can tell- we can tell you’ve been drinking , usually under these…
THE ACCUSED: ---have – I had too much
THE INFORMANT: Yeah well usually under the circumstances, we would – we would give you a PBT but- we have the power to put a requirement on you without giving you a PBT. So just on my observations, I think you have been – you’ve got alcohol in your system so I’m going to require you to accompany me to the Southbank police station which is just down the road
THE ACCUSED: yeah yeah no worries
THE INFORMANT: So you’re happy to accompany us?
THE ACCUSED: Yeah…..( he later remarked) Shouldn’t have been driving should I ?
As time passed whilst arrangements were being made to transport the accused, it is apparent from the BWC that he was becoming more agitated and impatient which ultimately led to him being confrontational and belligerent with attending police.
AND LATER
THE ACCUSED: What did I do wrong?
THE INFORMANT: hey?
THE ACCUSED: Hey?
THE ACCUSED: What did I – other than drinking, under the influence, what did I do wrong?
The police then detail the driving which led to the accused being pulled over:
THE ACCUSED: right so none of that I admit to …so, none of – so what do you want me to do?
THE INFORMANT: Just ask – well, cause you were driving the vehicle, I have the power to demand your name and address
THE ACCUSED: No comment
THE INFORMANT: no no no well that’s under the road safety act I have the – you are required to provide your---
THE ACCUSED: I’m arrested anyway
THE INFORMANT: no you’re not
THE ACCUSED: So I can drive off?
THE INFORMANT: not without confirming your name and address….you can – well let me explain a few things to you…..I’ve put as requirement on you to accompany us to the police station for the purposes of an evidentiary breath test. Right. OK If you refuse to do that, there there – there are penalties attached to the refusal, amongst which are the – like a two year loss of licence, um
THE ACCUSED: ok ok
THE INFORMANT: There’s possibly even a prison – a prison term
THE ACCUSED: Yeah a large fine yeah
FC BROWN: two years loss of licence
THE INFORMANT: But there is a two-year loss of licence
AND LATER
THE INFORMANT: So John – John is it ? you need to understand, you’re not actually under arrest….This doesn’t – there isn’t an arrest power attached to that, but we have the power to demand your name and address.. Because you have committed an offence that provides us with additional power to investigate the matter, right, and we are we have the power to demand your name and address. If you refuse, because you have committed an offence in front of us i.e the illegal right turn that you made on kings way, that provides us with an arrest power
THE ACCUSED: ok ok
THE INFORMANT: So if you refuse to further provide your name and address, you’ll be placed under arrest
THE ACCUSED: Well, ok ok So let’s go go lets go You clearly know I’m pissed, so my name‘s Johnny Mac – John McNamara
AND LATER
THE INFORMANT: All right all right Look – OK OK So, where we’re at, you’ve you’ve – so you’ve refused the evidentiary breath test and you – you understand the – the penalties that will be attached to that
THE ACCUSED: yeah two years, two years
DEFENCE SUBMISSIONS
The defence raised three issues for consideration by the Court on the facts in this case:
(a) that there was no evidence on the BWC or in the evidence in the case, that the informant formed a belief that the accused had committed an offence against ss 49(1)(a) or (b) of the Act;
(b) that when giving the accused the requirement to accompany, the informant failed to comply with the principle set out in Mitchell v DPP[1] (‘Mitchell’); and
(c) as the accused had a prior for drink driving, the minimum period is 4 years loss of licence. The accused was never informed of this and accordingly was misled which caused him to act to his detriment by telling him the penalty would be a two year licence loss.
RELEVANT AUTHORITIES AND LEGISLATIVE PROVISIONS
[1](2004) 8 VR 192.
On a charge under s 49(1)(b) of the Act, the prosecution must establish the concentration of alcohol in blood or breath exceeded the prescribed amount. A PBT may be used to establish this but it is not a prerequisite. To require a person to give a sample of breath, the officer must have reasonable grounds for the belief that the person has offended against s 49(1)(b).[2]
[2]Hrysikos v Mansfield (2002) 5 VR 485.
Under s 55(2) of the Act, a police officer may require any person whom that police officer reasonably believes to have offended against ss 49(1)(a) or (b) to furnish a sample of breath for analysis by a breath analysing instrument (instead of undergoing a PBT in accordance with s 53) and for that purpose may further require the person to accompany a police officer to a place or vehicle where the sample of breath is to be furnished.
The exercise of a statutory discretionary power is only invalid if lacking in bona fides or is not based upon reasonable grounds.[3] What is required of the police is a conscious appraisal of the situation and information available so as to satisfy themselves there is a basis for making a request.
[3]DPP v Skinner [2004] VSC 32.
There appears to be some divergence in the authorities on whether the state of mind of the informant and the grounds for the belief must be the subject of express evidence by the informant[4] or may be inferred from the totality of the evidence.[5]
[4]DPP v Mitchell [2002] VSC 326.
[5]Iskov v Matters (1977) VR 220, [223]; Public Prosecutions v Boer [1992] VicSC 245.
In regard to the requirement to accompany police after the belief that an offence under ss 49(1)(a) or (b) is established, there is a plethora of well-established law in this area.
In Mitchell Buchanan J said:
In my opinion a member of the police force who requires a person to accompany the member pursuant to s.55(2) is obliged to state the purpose of the requirement, namely to obtain a sample of breath for analysis by a breath analysing instrument, and to disclose the circumstances which by law justify the requirement. Parliament has not said that a person is obliged to accompany a member of the police force whenever the latter desires to obtain a sample of breath for analysis but only where the member reasonably believes the person to have offended against s.49(1) (a) or (b). The belief which is the condition precedent to the exercise of power should be asserted, although not necessarily in the statutory language.[6]
[6]Mitchell (2004) 8 VR 192, 198 [25].
Rankin v Obrien[7] and DPP v Bligh[8] established that proof of demand by precise recital of words of the Act is not required. The test is whether the evidence, as it stood, was such to prove that the respondent was given reasonably sufficient information to know what was required of him and why.
[7][1986] VR 67.
[8][1992] VicSC 180.
In Sanzaro v County Court of Victoria and Sadler[9] Nettle J summarised the test as follows (citations omitted):
the test is whether the evidence as it stood was such to prove that the plaintiff was given reasonably sufficient information to know what was required of him and why? Consequently, a requirement need not take the form of a demand in imperative terms. A request in precatory or polite terms by a person clothed with apparent authority will ordinarily be sufficient and indeed it is to be hoped, and in most cases expected, that a requirement will be made in terms of a polite request. In any event whatever terms may or may not be used in any given case, it will be enough that the intent of the police officer and the obligation of the person required to comply have been made clear.[10]
[9][2004] VSC 48.
[10]Ibid 7 [11].
For a valid requirement to be made, the officer is not required to inform the person the consequences of failing to comply with the requirement to accompany. Therefore, a failure by the officer to advise the person the consequences of refusing does not amount to failing to prove an element of the offence, nor is it a defence to the charge.[11]
[11]DPP v VAA [2004] VSC 444.
In approaching the relevant provisions of the Act, the Court should adopt a purposive approach. The purposes include:
(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 or breath of a driver more than the legal limit of alcohol; and… [12]
[12]Mastwyk v DPP (2010) 27 VR 92, 106 [59].
CONSIDERATION
No evidence the informant formed a belief that the accused had committed an offence under ss 49(1)(a) or (b) of the Act
Commonly, when a motorist is pulled over by police and administered a PBT, the reading obtained from the PBT will form the basis of the belief that the accused has consumed alcohol above the prescribed limit.[13] In the absence of a PBT, the police member is required to assess that motorist’s condition as being alcohol or drug affected to such an extent as to be incapable of having proper control of a motor vehicle.[14]
[13]Road Safety Act 1986 s 49(1)(b).
[14]Ibid s 49(1)(a).
The claim that on the evidence in this case, the informant did not form a belief that an offence had been committed under ss 49(1)(a) or (b) is baseless. Evidence of a requisite belief being formed can be proven by several means. Firstly, an expressed opinion by the informant, secondly a concession by the accused, and thirdly, by inference from all the surrounding circumstances, including the viewing of the BWC.
The evidence in chief of the informant at the hearing was that after the accused’s vehicle, he approached the accused who had exited the vehicle. The informant stated that initially his presentation was unremarkable, however when the accused spoke, it was apparent that he was intoxicated and had been drinking. The informant further stated that his breath smelt of liquor and that he presented with an intoxicated demeanour in that he was slightly unsteady on his feet.
By the accused’s own admission caught by the BWC he stated, ‘I’ve had a couple of drinks and I probably drank too much so…’ and later in the same conversation the informant stated, ‘we can tell you have been drinking’.
The footage tendered in evidence from the BWC clearly depicts the accused behaviour as being consistent with someone who is intoxicated, in addition to being confrontational, unnecessarily argumentative and misogynistic in his dealings with a female police officer.
To the extent that a belief that an offence has been committed under ss 49(1)(a) or (b) is a necessary element of the charge, I am satisfied that there was a reasonable basis for such a belief to be formed and that belief was communicated to the accused at the time of his apprehension and was subsequently confirmed by the informant in his evidence in chief. In the alternative, there is sufficient evidence from the BWC for the requisite state of mind of the informant to be proved by inference.
That when giving the accused the requirement to accompany, the informant failed to comply with the principle set out in Mitchell v DPP
This argument is also baseless, given the footage from the BWC. The informant in the initial exchange with the accused states, ‘we can tell you have been drinking…’ to which the accused replies ‘I had too much’. There is no requirement to recite verbatim the provisions of s 49(1)(b) to the accused, and it was evident from the exchange that the accused knew that he had been drinking and that he had consumed too much alcohol.
The informant makes it clear in the exchange when he says,
well, under the circumstances, we would- we would give you a PBT but we have the power to put a requirement on you without a PBT. So just on my observations, I think you’ve been – you’ve got alcohol in your system so I’m going to require you to accompany me to Southbank police station which is just down the road
The informant misled the accused as to the likely penalty to be imposed and the accused subsequently acted to his detriment by not accompanying police
There is no requirement for the informant to explain the consequences of a refusal to accompany police for an evidentiary breath test.[15] Nevertheless, there does appear to be a police protocol in place that police members utilise to advise suspected drink drivers regarding the potential consequences of refusing to accompany police.
[15]DPP v VAA [2004] VSC 444.
In the circumstances of this case, the accused was advised he may lose his licence for 2 years, be fined and face a possible term of imprisonment. It is apparent from the evidence in this case that the police members did not have access or regard to the accused’s LEAP prior history. Had such information been available, it is argued by defence that the police would have been aware of a relevant prior and that the mandatory minimum disqualification was 4 years, not the two years stated to the accused.
Police members are generally not legally trained. To require them to advise a suspected drink driver of the precise likely penalty to be imposed is too high an obligation or onus, and one that would be fraught with the consideration of too many variables. Matters regarding such things as the gravity of the immediate offence, the existence of other aggravating factors such as speed or the manner in which the vehicle has been driven, the personal circumstances of the offender, his/her prior traffic and criminal record, and mitigatory matters which a Magistrate may consider on penalty would all need to be canvassed.
The public policy considerations behind the police practice of explaining the minimum consequence of failing to accompany police is to allow the driver to make an informed decision on whether to accompany police as they are not under arrest and cannot be compelled. The explanation of possible consequences does not form an element of the offence.
There is nothing in any of the legislative provisions or the case law that would suggest that police have an obligation to explain the consequences of refusing to accompany, and if they choose to explain the consequences, that there is a requirement to precisely state the likely penalty when making a request to accompany them is made
In this case the accused was informed that he may go to prison, in addition to a fine and a 2 year loss of licence. Notwithstanding this possible consequence involving the loss of liberty, he still chose to not accompany police.
The informant correctly informed the accused that he was not under arrest, but that there were consequences if he did not comply with the request. The subjective state of mind of the accused, (that he would only lose his licence for 2 years) is not relevant to the offence with which he was charged.[16] His state of mind is only relevant to penalty not the refusal.
[16]DPP v Serbest [2012] VSC 35.
The elements of the offence are proven when the court is satisfied there has been a valid and lawful request by police to accompany and a subsequent refusal by the accused. On the evidence in this case, this is precisely what has occurred, and accordingly the accused is found guilty of the offence.
OTHER CHARGES
The accused had indicated a plea to charge one being disobey a no right turn sign. A plea of not guilty was entered to charge 3 of stating a false address.
The evidence in regard to charge 3 was that the accused provided an address of 46 Koria Street, Altona Meadows. The accused gave evidence that he was going through a matrimonial break up and had experienced periods of transience, and had only been living on and off at his usual address. The address he gave was his Uncle’s address where he had been staying at that time.
The informant gave evidence that his enquiries revealed that the accused was not living at the address when he was intending to summon him for the charges. He conceded in cross examination that he telephoned the accused and was provided another address. There is no evidence before the court that at the time of the offence that the accused was not residing at the Altona Meadows address, albeit briefly. He was not cross examined on this point at any length, and his later cooperation with police to effect the service of the summons would suggest that there was nothing in the information provided to police on the day that was objectively false. The accused is therefore found not guilty of this charge.
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