Police v Vella

[2019] VMC 1

IN THE MAGISTRATES’ COURT OF VICTORIA
AT THE SUNSHINE MAGISTRATES’ COURT
CRIMINAL DIVISION

Case No. G10213946  

FIRST CONSTABLE CATHERINE FINCH	Informant
v
CATHERYN VELLA	Defendant

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MAGISTRATE:	A.G.BURNS
WHERE HELD:	SUNSHINE MAGISTRATES COURT
DATE OF HEARING:	19 DECEMBER 2018
DATE OF DECISION:	29 JANUARY 2019
CASE MAY BE CITED AS:	POLICE v VELLA
MEDIUM NEUTRAL CITATION:	[2019] VMC001

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CATCHWORDS: Road Safety Act s.49(1)(bb) – Road Safety Act s.49(1)(h) – Road Safety Act s.57B(4) - Toxicology certificate – Interpretation of Legislation Act s.14(2) – Failure to object – Waiver.

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APPEARANCES:	Counsel	Solicitors
For the Informant	SC Hogben	Sunshine Prosecutions Unit
For the Defendant	Mr S. Hardy	Victorian Bar

HIS HONOUR:

1. Ms Vella is charged was exceeding the prescribed concentration of drug in her oral fluid (Charges 1& 2- Contrary to s.49(1) (bb) & and in the alternative (h) Road Safety Act 1986) and driving with the suspended license (Charge 3- Contrary to s.30 Road Safety Act 1986) alleged on 1 October 2015. A plea of guilty was entered to charge 3, driving whilst suspended at the outset of this case. During the prosecution case the police evidence was unchallenged including the informant’s evidence that the accused had admitted to using cannabis the week before the driving detected on 1 October 2015.
2. No issue was taken as to any prosecution exhibit and on the answer to the specific question as to whether continuity of the sample was taken, Mr Hardy for the accused said words to the effect of “No, there is no issue the sample came from my client”
3. No issue was raised in the running or before the close of the Police case that any part of the evidence, or any document was to be, or was being challenged by the defence. (I’m instructed that as between the parties the VIFM toxicology certificate was not conceded.)
4. Five prosecution exhibits were tendered without objection in the running of the Police case. Specifically the VIFM toxicology certificate, (issued under sections and 57, 57A and 57B of the Road Safety Act) was tendered absolutely without objection by the defence as exhibit C in this case.  It shows the Accused’s sample of oral fluid to be positive for Methyl-amphetamine and Delta 9 -THC (Cannabis.)
5. After the close of the Police case, Mr Hardy called his client to give evidence. The Accused admitted to smoking a ‘joint’ (cannabis) the week before she was detected driving. She was not asked with respect to amphetamine use. She also testified that she was not aware of her licence status as to being suspended at the time of driving.
6. Following the close of the defence case Mr. Hardy made a submission that exhibit C, the VIFM toxicology certificate earlier admitted absolutely and without objection, could not be relied upon as it did not comply with the current iteration of section 57B(4) of the Road Safety Act 1986 “RSA”. This failure to comply impliedly rendered the contents of the document to be inadmissible hearsay.
7. Specifically it’s vice was said to be that it did not state within the document that the sample was analysed by an “approved laboratory” as required by section 57B(4). In submissions Mr Hardy indicated that VIFM was not an “approved laboratory” at the time of the alleged offending in this case on 1 October 2015 and indeed no laboratories were so approved for this purpose.
8. That is in fact the case because the amendment to 57B(4) RSA, requiring laboratories to be approved and for certificates to state that the analysis occurred in an approval laboratory was not legislated as a requirement until early 2016, by virtue of the Road Legislation Amendment Act, 5 of 2016.
9. There is no suggestion that the certificate, now exhibit C in this case, did not comply with section 57B of the RSA as the legislation was then enacted and current on 1 October 2015.
10. The matter was adjourned for consideration and to give the prosecution, who had been taken by surprise, an opportunity to make further submissions.  Upon hearing further submissions the matter was stood down.
11. So two questions arise as to the situation currently before the Court;

(i)           What is the effect of the legislative amendment to 57B(4) RSA  given the relevant certificate, exhibit C in this case, complied with the law at the time of the alleged offence.

(ii)         What is the effect if any, as to Mr Hardy’s failure to object to the tender of the certificate, thus allowing it to enter evidence absolutely as exhibit C in this case.

12. Taking Q1 first - As a matter of statutory interpretation the answer to question one is usually to be found in the transitional provisions of the relevant piece of legislation. Here, curiously the relevant transitional provisions of the Road Safety Act specifically, those sections around 103ZI, 103ZJ and 103ZK are silent on the issue. That is, there is no distinct transitional provision in the RSA relating to the amending Act 5/2016.
13. That being the case Section 14(2) of the Interpretation of Legislation Act 1984, has some work to do. That section notes as far as relevant:-

14(2)      Where an act or provision of an act is repealed or amended the repeal or amendment etc. shall not, unless the contrary intention appears 

…

(d) affect the previous operation of the act or provision ...

and any such investigation, legal proceedings or remedy might be instituted, continued or enforced and any such penalty forfeiture or punishment might be imposed, as if that act or provision had not been repealed or amended.

14. As to Q2, with regard to a failure of Counsel to object to the evidence, allowing its tender absolutely, this was dealt with by the Victorian Court of Appeal in its decision in R v Clarke (per Maxwell P and Charles and Nettle JA), (2005) 13 VR 75 at 82 paragraph 54. This was a case in which evidence went in at the time during the running of a case and was not objected to until after the close of the prosecution case. Charles JA at paragraph 54 said

“ I agree with the president that the doctrine of waiver is properly applicable in criminal proceedings. Where defence counsel makes a deliberate choice not to object to hearsay evidence adduced by the prosecution, there can be little ground for later objection on appeal that the evidence was inadmissible.”

15. See also at paragraph 11 in the judgment of President Maxwell –

“I accept the submission of Senior Counsel for the Crown that modern criminal trial practice is quite deliberately directed at identifying, before the trial commences, matters of law or evidence which will be an issue at the trial. As counsel said, no longer is trial by ambush acceptable. In my view, if defence had any intention of challenging the factual foundation of Sergeant Bellion‘s opinion there was ample opportunity for this to be raised at a pre-trial directions hearing or at the commencement of the trial.”

16. I’m satisfied therefore that as the transitional provisions of the Road Safety Act are silent on the issue, that section 14(2) of the Interpretation of legislation Act effectively ‘saves’ exhibit C and confirms it’s admissibility despite not complying with the current iteration of 57B(4) of the Road Safety Act enacted after the offence date.
17. I’m further satisfied that even if I’m wrong as to question one above, I’m fortified in my view as to its admissibility, having regard to the decision taken by Mr. Hardy, an experienced member of counsel, not to raise any issue with respect to the certificate which is now exhibit C in this case, nor indeed to object to its tendering in the running of the case. This is to be taken as a waiver against any later argument on behalf of the accused as to the inadmissibility of the contents of the certificate purported to be hearsay.
18. Accordingly, the effect of both questions, (i) and (ii) above, is that the evidence contained in Exhibit C is admissible. That being the case, I find both charges proven beyond a reasonable doubt.

A.G. Burns

Magistrate

Sunshine Magistrates Court

29^th January 2019