Scully v Semple - [2004] VSC 393

Judge

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5515 of 2004

IN THE MATTER OF AN APPEAL under s. 92 of the Magistrates’ Court Act 1989

BETWEEN:

LYN SCULLY	Appellant
v
PHILIP SEMPLE	Respondent

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JUDGE:	Williams J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 September 2004
DATE OF JUDGMENT:	11 October 2004
CASE MAY BE CITED AS:	Scully v Semple
MEDIUM NEUTRAL CITATION:	[2004] VSC 393

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MAGISTRATES – Appeal from conviction under s 49(1)(f) of the Road Safety Act 1986 (“the Act”) – Whether notice given under s 58(2) of the Act – Whether notice complied with s 58(2A) of the Act – s 49(1)(f), s 58(2), s 58(2A) Road Safety Act 1986.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr S. Hardy	Keogh & Co
For the Respondent	Mr M. Gibson	Office of Public Prosecutions

HER HONOUR:

The appellant was convicted of an offence under s 49(1)(f) of the Road Safety Act 1986 ("the Act") on 18 March 2004 in the Magistrates’ Court at Melbourne constituted by Ms Bolger M. The appellant’s driver licence was cancelled, she was fined and she was disqualified from obtaining a licence for a period of six months.

The issue

The appeal concerned the effect of a letter dated 18 February 2004 from counsel for the appellant to the respondent (the informant in relation to the charge) (“the letter”). The appellant challenged the learned Magistrate’s decision that the letter did not operate as the requisite written notice under s 58(2) of the Act to prevent a certificate produced by a breath analysing instrument (“the certificate”) from constituting conclusive proof of the facts and matters referred to in s 58(2)(a) - (f) of the Act. She contended that the Magistrate erred in so far as she found the appellant guilty of the offence under s 49(1)(f) of the Act on the basis that relevant facts or matters were proved by the certificate.

The Act

The Act relevantly provided:

Part 1—Preliminary
3.        Definitions
(1)     In this Act—
"breath analysing instrument" means—
(a)     the apparatus known as the Alcotest 7110 to which a plate is attached on which there is written, inscribed or impressed the numbers "3530791" whether with or without other expressions or abbreviations of expressions, commas, full stops, hyphens or other punctuation marks and whether or not all or any of the numbers are boxed in; or
…
Part 5—Offences Involving Alcohol or Other Drugs
47.     Purposes of this Part
The purposes of this Part are to—
(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.
…
49.      Offences involving alcohol or other drugs
(1)     A person is guilty of an offence if…

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 Scully v Semple

Details

AGLC: Scully v Semple [2004] VSC 393
Case: [2004] VSC 393
Decision Date: 11 October 2004

CaseChat Overview and Summary

Scully was convicted under section 49(1)(f) of the Road Safety Act 1986 for failing to provide information required by a police officer. Semple appealed this conviction, arguing that the notice provided under section 58(2) of the Act did not comply with section 58(2A). The appeal was heard by a magistrate.

The central issue for the court was whether the notice provided to Scully complied with the statutory requirements set out in section 58(2A) of the Act. Specifically, the court needed to determine if the notice was sufficient in form and content as required by the statute. This included examining whether the notice correctly identified the offence, the time and place it was alleged to have occurred, and whether it was delivered to Scully within the required timeframe.

The court reviewed the provisions of sections 49(1)(f), 58(2), and 58(2A) of the Act, as well as the evidence presented regarding the notice given to Scully. It was found that the notice did not fully comply with the statutory requirements, as it did not explicitly state that Scully was required to provide information to the police officer. Consequently, the conviction was quashed, and the appeal was allowed.

Orders