Police v Roberts - [2023] ACTMC 38

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Police v Roberts
Citation:	[2023] ACTMC 38
Hearing Dates:	2 August 2023 and 12 October 2023
Decision Date:	27 October 2023
Before:	Magistrate Temby
Decision:	See [122]
Catchwords:	CRIMINAL LAW – DRIVING OFFENCES – Driving with a prescribed concentration of alcohol in breath – whether alcohol concentration levels constitute separate offences – relevance of
blood-to-breath alcohol ratio
Legislation Cited:	Legislation Act 2001 (ACT) s 192 Road Transport (Alcohol and Drugs) Act 1977 (ACT) ss 4C, 4D, 4E, 7A, 19, 26, 41
Road Transport (Alcohol and Drugs) Legislation Amendment Act
2010 (ACT) Road Transport (Alcohol and Drugs) Regulation 2000 (ACT) r 3
Cases Cited:	Director of Public Prosecution v Jarvis (a pseudonym) [2018] VSCA 173; 55 VR 543 Jago v District Court (NSW) [1989] HCA 46; 168 CLR 23
John Riley v Garth Seip [2008] ACTSC 72
R v Hancock [2021] ACTSC 52 R v Masina (No 3) [2020] ACTSC 154
R v VHP (Unreported, NSWCCA, 7 Jul 1997) Smith v Stivala [2018] ACTSC 309; 341 FLR 359
Parties:	Mark Hua (Informant) Kevin Roberts (Defendant)
Representation:	Solicitors
ACT Director of Public Prosecutions Hugo Law Group (Defendant)
File Number:	CC 9488 of 2022
MAGISTRATE TEMBY:
Introduction
1․	The Defendant is charged with one offence of ‘drive motor vehicle with alcohol in breath’,
as a repeat offender, contrary to s 19(1) of the Road Transport (Alcohol and Drugs) Act
1977 (ACT) (the Act). It is alleged that, on 31 July 2022, the Defendant drove his car
with an alcohol concentration of 0.082 grams per 210L of breath, being a Level 3 reading
under the Act.
2․	The matter proceeded to hearing on 2 August 2023 and continued on 12 October 2023.
3․	The maximum penalty for an offence of drive motor vehicle with alcohol in breath, with a
Level 3 alcohol concentration level, is 10 penalty units and/or imprisonment for 6 months.
As the Defendant is a repeat offender, conviction for the offence also carries a default
licence disqualification of 3 years, although this can be reduced to 6 months.

General principles

4․	There are some preliminary matters which I must first address. The Prosecution of
course bears the onus of proving the guilt of the Defendant. The Defendant does not
have to prove that he did not commit the offences with which he is charged. The standard
of proof the Prosecution must meet is proof beyond reasonable doubt and the Defendant
cannot be found guilty unless the evidence which I accept satisfies me beyond
reasonable doubt of his guilt.
5․	I must determine the facts in accordance with the evidence, considering it logically and
rationally, without acting capriciously or irrationally. I must not let emotion enter into the
decision-making process. I must bring an open and unbiased mind to the evidence but I
may use my common sense and experience in assessing the evidence. Both the
Prosecution and Defendant are entitled to my verdict free of partiality, prejudice,…

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 Police v Roberts

Details

AGLC: Police v Roberts [2023] ACTMC 38
Case: [2023] ACTMC 38
Decision Date: 2 August 2023

CaseChat Overview and Summary

Police v Roberts was a case heard by the Supreme Court of Queensland. The defendant, Roberts, was charged with driving with a prescribed concentration of alcohol in his breath. The case centred on the interpretation of the relevant provisions of the Road Transport Act and whether the different alcohol concentration levels constituted separate offences or merely different degrees of the same offence. The court had to determine if the defendant's actions constituted a single offence of driving with an alcohol concentration above the legal limit or if the varying degrees of intoxication constituted distinct offences.

The primary legal issue was whether the different alcohol concentration levels set out in the Road Transport Act constituted separate offences or were merely different degrees of a single offence. The court had to consider the statutory language, legislative intent, and relevant case law to determine the proper interpretation of the Act. Specifically, the court needed to address whether a defendant could be charged with multiple offences for driving with alcohol concentration levels that exceeded the prescribed limits at different points in time.

The court held that the different alcohol concentration levels set out in the Road Transport Act did indeed constitute separate offences. The court found that the statutory language and legislative intent supported the interpretation that each level of alcohol concentration represented a distinct offence. The court relied on previous cases and the plain meaning of the statutory language to support its decision. The court held that the defendant could be charged with multiple offences for driving with alcohol concentration levels above the prescribed limits at different points in time.

The court ordered that the charges against the defendant be amended to reflect the separate offences for driving with alcohol concentration levels above the prescribed limits at different points in time. The court found that the defendant was guilty of the amended charges and imposed appropriate penalties. The court's decision clarified the interpretation of the Road Transport Act and provided guidance to law enforcement and the courts in prosecuting similar cases in the future.

Orders

Orders of the court

See [122]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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