JUDGE:	BELL J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 August 2010
DATE OF JUDGMENT:	17 December 2010
CASE MAY BE CITED AS:	Rugolino v Howard
MEDIUM NEUTRAL CITATION:	[2010] VSC 590

APPEAL – Magistrates’ Court – drink-driving conviction – appeal on question of law – challenge to finding of fact – whether raised a question of law – whether finding open on the evidence – alternatively whether finding clearly did not affect result – Magistrates’ Court Act 1989, s 92(1) and (7).

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CRIMINAL LAW – drink-driving conviction – driving with blood alcohol concentration in excess of prescribed maximum – conviction based on analysis of sample of blood – sample of blood taken after defendant appeared unable to give sample of breath for a medical or physical reason – whether prosecution had to prove authority of operator of breath analysing instrument – Road Safety Act 1986, ss 49(1)(b) and (g), 55(1), (3) and (9A).

APPEARANCES:	Counsel	Solicitors
For the appellant	Mr S Hardy	Law Offices of Barry Fried
For the respondent	Mr B Sonnet	Craig Hyland, Solicitor for Public Prosecutions

HIS HONOUR:

INTRODUCTION

Albert Rugolino was stopped driving his motor vehicle for a preliminary breath test. When he tested positive, Constable Michael Howard took him to the nearby booze bus to give a sample of his breath for analysis by a breath analysing instrument.

Mr Rugolino unsuccessfully attempted to use the instrument to give a sample of breath to the operator. Concluding that his inability to do so was because of some medical or physical disability, Constable Howard asked Mr Rugolino to allow a sample of his blood to be taken, which he did. The sample was found to have a blood alcohol concentration of 0.18%, which is more than the prescribed concentration of 0.05%.

On the basis of the blood analysis results, Constable Howard, as informant, charged Mr Rugolino with drink-driving offences against the Road Safety Act 1986. At the hearing of the charges by a magistrate, Mr Rugolino did not challenge those results. Rather, he contended that blood tests could be requested, and the results used in court, only where the authority of the operator of the breath-analysing instrument was proved, even where the prosecution was not based on a sample of breath. In his submission, that authority had not been proved. He also pleaded the defence of necessity. He said he was driving himself to hospital for treatment for a panic attack

The magistrate found as a fact the operator had the required authority and rejected the defence of necessity. His Honour convicted Mr Rugolino of driving with a blood alcohol concentration exceeding 0.05%. In view of his poor driving record, his licence was cancelled for four years, he was fined $1,500 and he was sentenced to imprisonment for three months…

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 Rugolino v Howard

Details

AGLC: Rugolino v Howard [2010] VSC 590
Case: [2010] VSC 590
Decision Date: 17 December 2010

CaseChat Overview and Summary

The matter before the court was an appeal by the defendant, Rugolino, against a conviction for drink-driving imposed by the Magistrates’ Court. The defendant sought to appeal on the basis of a question of law, challenging a finding of fact made by the Magistrate. The appeal was heard in the higher court, which was required to determine whether the appeal raised a question of law, whether the finding of fact was open on the evidence, and if not, whether the finding did not clearly affect the result.

The court examined the grounds of appeal, which centred on the challenge to the factual finding made by the Magistrate regarding the defendant's blood alcohol content. The defendant argued that the finding was not open on the evidence or, if it was, that it did not clearly affect the result. The court had to consider whether the appeal was properly before it, as the appeal was limited to questions of law and not findings of fact. The court had to assess whether the challenge to the finding of fact raised a question of law, or if it was purely a challenge to the factual determination.

The court held that the challenge to the finding of fact did not raise a question of law, but rather was a challenge to the factual determination itself. The court found that the finding of fact was open on the evidence and, even if it was not, it did not clearly affect the result. The appeal was dismissed, as it did not raise a question of law and was instead a challenge to the factual finding, which was outside the scope of the appeal. The court relied on sections 92(1) and (7) of the Magistrates’ Court Act 1989 in reaching its decision.

The final orders of the court were that the appeal was dismissed, and the original conviction for drink-driving stood. The court did not alter the finding of fact or the conviction, as the appeal did not raise a question of law and was beyond the scope of the appeal process. The defendant was required to comply with the original conviction and any associated penalties imposed by the Magistrates’ Court.

Orders