Thorpe v Director of Public Prosecutions
[2024] VCC 646
•14 May 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. AP-23-0891
| MICHAEL THORPE | Appellant |
| v | |
| THE DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
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JUDGE: | HER HONOUR JUDGE BLAIR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9, 17 & 18 April 2024 | |
DATE OF JUDGMENT: | 14 May 2024 | |
CASE MAY BE CITED AS: | Thorpe v DPP | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 646 | |
VERDICT
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Subject:CRIMINAL LAW – RULING
Catchwords: Conviction and sentence appeal – refusing a breath test – preliminary breath test – driving a vehicle
Legislation Cited: Evidence Act 2008 (Vic); Road Safety Act 1986 (Vic); Jury Directions Act 2015 (Vic)
Cases Cited:The Director of Public Prosecutions v Phillips VSC unreported Ashley J 23 December 1992; DPP v Mitchell (2002) 37 MVR 142; Peebles v Hotchin 8 MVR 147; Halley v Kershaw [2013] VSC 439
Judgment: Charge dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms S. Lacy SC Mr J. Blackley | Fitzroy Legal Service Ms S. L’Estrange |
| For the Respondent | Mr G. Buchhorn | Office of Public Prosecutions |
HER HONOUR:
1This matter came before me on 9 April 2024 as a conviction appeal. Mr Michael Thorpe has been charged with one charge of refusing a breath test pursuant to s. 49(1)(c) of the Road Safety Act.[1] The charge reads ‘The accused at Lake Tyers Trust on 8th November 2021 having been required to undergo a preliminary breath test in accordance with section 53(1) of the Road Safety Act 1986 did refuse to undergo such test within three hours of being the driver of a motor vehicle.’
[1] Road Safety Act 1986 (Vic) s 49(1)(c) (“RSA”).
2I commenced to hear the appeal and in doing so set aside the order of the Magistrates Court. Over the 9th, 17th and 18th of April, 2024, I heard evidence from two aboriginal elders, Wayne Hood, called by the Respondent and Marjorie Thorpe, called by the Appellant. I also heard evidence from the informant, Senior Constable O’Byrne and from Sophie L’Estrange, the appellant’s solicitor. I have considered all of the exhibits tendered.
3The issues raised by the appellant are threefold;
1) Michael Thorpe was not found driving or in charge of a vehicle therefore the power in s. 53(1)(a) of the RSA to request a preliminary breath test was not enlivened and the request was not made in accordance with s. 53 of the RSA.[2]
2) Senior Constable O’Byrne was not acting in the execution of her duty because she was trespassing.
3) If the court finds that Senior Constable O’Byrne had an implied licence to be on non-gazetted areas of Lake Tyers, this did not extend to her being able to exercise a coercive power and therefore she did not act lawfully.
[2] Ibid s 83.
General directions of law
4The general directions of law required pursuant to the Jury Directions Act 2015 (Vic) and that I have applied in this case are as follows.
Presumption of innocence and the onus and standard of proof
5Mr Thorpe is presumed innocent unless and until guilt is proved on evidence presented to the court. The guilt of Mr Thorpe must be established beyond reasonable doubt on each element of an offence charged. This is the highest standard of proof known to the law. It is not enough for the prosecution to prove that the accused is probably guilty, or very likely to be guilty. A reasonable doubt is not an imaginary or fanciful doubt, or an unrealistic possibility. If the court is not satisfied to this standard Mr Thorpe must be found not guilty. The burden of proof is entirely on the prosecution to establish guilt beyond reasonable doubt. Mr Thorpe bears no onus of proof. It is not for Mr Thorpe to prove his innocence or prove anything at all.
Decision to be based solely on the evidence
6I must decide the case only on the admissible evidence led in this appeal. In this appeal such evidence takes the form of witness testimony and the exhibits that have been tendered. I have not done any outside research or had regard to any outside sources of information.
Assessment of witnesses
7I must assess both the honesty and reliability of the witnesses. That is whether a witness was truthful and whether they correctly recalled the facts about which they gave evidence. In that assessment I may accept all, some or none of a witness’s evidence. I must bear in mind that I should not make any assessment only on the basis of how a witness gave evidence, as giving evidence can be a stressful experience. I remind myself that witnesses come from different backgrounds and have different abilities. There are too many variables to make the manner in which a witness gave evidence the only or even the most important factor in my assessment.
Circumstantial evidence
8Where the prosecution rely upon circumstantial evidence I must be satisfied that it is the only reasonable inference open and that the prosecution have excluded any reasonable hypotheses consistent with innocence.
S.43 Prosecution failure to call witnesses
9In this case I would have expected the prosecution to have called the corroborator Senior Constable Maxwell to give evidence however they chose not to do so. There was no explanation given in evidence as to why Senior Constable Maxwell was not called as a witness. Mr Buchhorn for the prosecution contended in argument that anything she could say was subsumed by the Body Worn Camera footage. However the Body Worn Camera footage does not cover the entirety of the observations of police. Importantly the BWC footage did not show whether the white van was moving when first seen by police. Senior Constable Maxwell attended court on the first day of this appeal, she left court when an order for witnesses out of court was made and I did not see her return at any stage of the hearing.
10In my view there was no satisfactory reason to not call this witness. Senior Constable Maxwell was an eyewitness to the police involvement and contact with Mr Thorpe that occurred on 8 November 2021. I have concluded that this witness was not called by the prosecution as her evidence would not have helped the prosecution case.
Applicable provisions of the Road Safety Act
11Section 49(1)(c) provides
A person is guilty of an offence if he or she
……
(c) refuses to undergo a preliminary breath test in accordance with section 53 when required under that section to do so…
12Section 53 relevantly provides:
A police officer may at any time require
(a) any person he or she finds driving a motor vehicle or in charge of a motor vehicle;
…..
To undergo a preliminary breath test by a prescribed device.
13Section 48(1)(b) provides:
A person is not taken to be in charge of a motor vehicle unless that person is a person to whom section 3AA(1)(a)(b)(c) or (d) applies.
14Section 3AA relevantly provides:
1) Without limiting the circumstances in which a person is in charge of a motor vehicle, the following persons are to be taken to be in charge of a motor vehicle for the purposes of this Act-
(a) a person who is attempting to start or drive the motor vehicle;
(b) a person with respect to whom there are reasonable grounds for the belief that he or she intends to start or drive the motor vehicle;
15The elements of an offence under s. 49(1)(c) are as follows:
(a) A person was found by a police officer either;
(i)Driving a motor vehicle; or
(ii)In charge of a motor vehicle; and
(b) The person was required to undergo a Preliminary Breath Test; and
(c) The requirement to undergo a Preliminary Breath Test was made in accordance with s. 53 of the RSA;
(d) The person refused to undergo the required PBT.
Relevant facts
16On 8 November, 2021 Senior Constable Felicity O’Byrne and Senior Constable Chelsea Maxwell were working on the divisional van patrol. At 8.27pm they received a call from dispatch and were requested to attend the Lake Tyers Reserve as there had been a report of a male who was drunk driving a white van. The person who made the complaint was Chantel Hood and she was at 23 Rules Rd. The male person driving was alleged to be Michael Thorpe who lived at 16 Rules Rd.
17Senior Constables O’Byrne and Maxwell finished the job they were doing and drove to the Lake Tyers Trust. They arrived there at about 8.45 to 8.50pm. The purpose of their attendance was to ascertain if they could see the white van and apprehend the driver who they had been told was Michael Thorpe.
18When the police members got to the Lake Tyers Trust they entered by passing through the boomerang gates and travelled down Rules Rd. They did not call either of the numbers to speak to the manager and gain permission to enter the Trust. It was Senior Constable O’Byrne’s evidence that she had entered the Trust many times and did daily patrols there. She had never sought permission to enter Trust property and did not believe that she was required to do so particularly as she was responding to a 000 call.
19The police vehicle proceeded down Rules Rd and then turned left and came around on a gravel road. Senior Constable O’Byrne gave evidence that she believed she saw the rear lights of the white van, it was not stationary and had travelled about 10 metres on a gravel road. Senior Constable O’Byrne activated the red and blue flashing lights and her body worn camera prior to the police vehicle coming to a stop. The BWC footage showed a very dark area, a light in the distance and the white van stationary on the grass. The white van was to the right of the driver’s side of the police car so that only the passenger side of the van was visible to the police members.
20The BWC footage shows that the police were in their vehicle for a short time. They were looking at the registration number of the van, which was difficult to see and they were talking on the radio. The passenger door of the van opened slightly, some moments later it was possible to see the shape of someone through the passenger window. As the police members got out of their car Senior Constable Maxwell asked ‘Has he got out of the car?’ Senior Constable O’Byrne replied ‘Nuh.’ As she came around the driver’s side of the van she said ‘He has now’. Senior Constable O’Byrne then spoke to Mr Thorpe. It is apparent from the BWC footage that Mr Thorpe was not in the white van when the police first saw him. He was standing near the front of the van on the driver’s side. The driver’s door was shut.
21Senior Constable O’Byrne told Mr Thorpe to get back in the van for safety reasons. She also told him to take the keys out of the ignition. Mr Thorpe got into the van and indicated he did not know where the ignition key was but that it was not in the ignition. Mr Thorpe was then asked to produce his licence and he asked if he could get out of the van. He was trying to put his hands in his pockets at this time. They allowed him to exit the vehicle. Mr Thorpe produced his licence and gave his address as a Reservoir address consistent with the address on his licence.
22Senior Constable Maxwell asked Mr Thorpe if he had anything to drink today and he responded that he had been drinking ‘Just about everything’. Senior Constable O’Byrne then said ‘Now, because we’ve observed you driving today, we do need you to undergo this preliminary breath test on a prescribed device’. Mr Thorpe questioned the authority of the police. Senior Constable O’Byrne said to Mr Thorpe ‘you’re in charge of a vehicle’. Mr Thorpe replied ‘No, I’m in charge of my land’. Senior Constable O’Byrne said to him ‘You’re driving your vehicle’. Mr Thorpe continued to dispute the authority of the police. When Senior Constable Maxwell suggested he was refusing Mr Thorpe responded that he was not refusing.
23Senior Constable Maxwell then said to Mr Thorpe ‘Michael, you’re in charge of a motor vehicle. We have observed you being in charge of a motor vehicle and you are now required to undergo a preliminary breath test until our satisfaction, and if you do not do that, we will take that, that you’re refusing to conduct a preliminary breath test and you will lose your licence for two years. So it’s your choice’. Mr Thorpe maintained that he was not refusing and continued to question the authority of the police to ask him to do the test. Eventually, Senior Constable O’Byrne said to Mr Thorpe ‘you can blow in here or refuse one or the other that’s the way it is going to go today. Okay. And we’ll take this … We’ll take this as a refusal’. Shortly after this Senior Constable Maxwell said ‘We have given you enough chances tonight.’
24The police members then tried to get the keys to the van from Mr Thorpe, he maintained he did not know where the keys were. He also said he had no connection with the vehicle. Mr Thorpe continued to question the authority of the police. Senior Constable O’Byrne told Mr Thorpe ‘That’s absolutely fine. So what will happen, you’re refusing today so you will lose your licence for two years’.
25Senior Constable Maxwell then asked Mr Thorpe where he was going now. Eventually Mr Thorpe said he lived in the bush. Senior Constable Maxwell said ‘All right. Off you go then. Go for a walk’.
26In her evidence in chief, Senior Constable O’Byrne said when she approached the van she believed that Michael Thorpe had been the driver. She approached the van to do a PBT and Mr Thorpe smelt strongly of alcohol and appeared intoxicated. Senior Constable O’Byrne said that later when Mr Thorpe said he was going to go she believed he was going to drive there because he had been driving earlier.
27In cross examination, Senior Constable O’Byrne agreed that she went to number 23 Rules Rd expecting to find Michael Thorpe in a white van. Senior Constable O’Byrne stated that she pulled over a moving vehicle and she got out of her car and spoke to Michael Thorpe. She agreed that the van was not moving as she approached it and there were no lights on, on the white van.
28Senior Constable O’Byrne gave evidence of where the police vehicle had stopped by marking this on a map that was tendered as exhibit 7. There was further evidence about this from the defence instructing solicitor Sophie L’Estrange in the form of a google maps document depicting the GPS co-ordinates of where the BWC was first turned on, this information had been supplied by the prosecution upon request by the defence. Senior Constable O’Byrne did not agree that the red mark on exhibit 9 was where she was located when she started her BWC.
29Senior Constable O’Byrne agreed that in her evidence at the Magistrates’ Court, she had described the night as being pitch dark. She said that although she had difficultly reading the number plate on the van she could see the van move. She agreed with the following propositions put to her by defence counsel, Ms Lacy;
(a) She couldn’t see into the van when it moved.
(b) She couldn’t see into the van when it stopped.
(c) She did not know there were two people in the van until she approached the van and the driver’s door was open.
(d) The first time she saw Michael Thorpe he was outside the van.
30Ms Lacy suggested to Senior Constable O’Byrne that she had assumed the person she saw was Michael Thorpe. Senior Constable O’Byrne disagreed with this suggestion and responded that she had not made such an assumption which was why she asked the person for their licence. In response to the suggestion that she did not at any stage see the person who was driving the vehicle Senior Constable O’Byrne responded, ‘We didn’t see but there was no question as to who was driving the vehicle on the night’. Further when it was put to her that she could not assert Michael Thorpe was driving Senior Constable O’Byrne said ‘I did not see Michael Thorpe driving but there was no question he was the driver of the vehicle’.
31Further, Senior Constable O’Byrne said that she intended to put a demand for a PBT on the person who was driving the vehicle. She approached the van with the breathalyser. Senior Constable O’Byrne gave evidence that it was her intention to find the white van that was causing a safety risk to the members of the Lake Tyers Trust. She agreed that Michael Thorpe on several occasions questioned the authority of the police to be able to request him to undertake the breath test.
32Senior Constable O’Byrne stated that it was her opinion that she had the right to be on Trust land as she was responding to a triple 000 call and she had seen the vehicle driving and thought she had the right to be there as it affected the safety of others on Trust land. Senior Constable O’Byrne disagreed that she had no right to be on ungazetted areas of Trust land.
33In re-examination, Senior Constable O’Byrne said that she attended the reserve generally to conduct patrols, to serve warrants, respond to 000 calls, attend for fortnightly meetings and to serve orders. She stated a road related area was anywhere a vehicle could drive and that could be either grass or gravel. Senior Constable O’Byrne gave evidence that where the van was stopped was not fenced and that when the van was stopped she did not see anyone approach or leave the van. Senior Constable O’Byrne said that she made the request for the PBT under s.53 of the RSA and that she was required to explain who she was and what her job was and that she believed the person was in charge of a motor vehicle.
Respondent submissions
34Counsel for the respondent, Mr Buchhorn in his written submissions briefly summarised the events that led to the issuing of the charge as follows:
35On 8 November 2021, a resident at the Lake Tyers reserve, Chantelle Hood, called to 000 to report that the appellant was driving a van erratically while under the influence of alcohol.
(a) Senior Constable Chelsea Maxwell and Senior Constable Felicity O’Byrne received a dispatch call and responded to Ms Hood’s report.
(b) Upon attending the Lake Tyers reserve, they saw the appellant driving a white Toyota Hiace van.[3]
(c) They intercepted the van and spoke with the driver, namely the appellant, who appeared alcohol affected and smelt of alcohol.
(d) The appellant was requested to undergo a PBT.
(e) The appellant refused and walked off.
[3] Emphasis added.
36Mr Buchhorn submitted that the power to make a request under s.53(1)(a) can be made at any time and at any location so long as the police ‘find’ (meaning personally and presently observe) a person driving or in charge of a motor vehicle.[4]
[4] The Director of Public Prosecutions v Phillips VSC unreported Ashley J 23 December 1992.
37In his oral submissions Mr Buchhorn submitted the following;
(a) That a request pursuant to s. 53(1)(a) can be made at any time.
(b) The was no requirement for the request to be made using specific or formal words, it was sufficient if what was required and why was explained. Senior Constable O’Byrne had done this in making the request of Mr Thorpe and this was depicted on the BWC footage.
(c) There was no requirement for the police officers to explain what authority they had to make the request. In this case the request was communicated as were the consequences of a refusal.
(d) As to the preconditions required under s.53(1)(a) these could be met in two ways, either when the police ‘finds’ a person driving a motor vehicle or ‘in charge’ of a motor vehicle.[5]
(e) In this case Senior Constable O’Byrne had been advised by dispatch of the contents of a 000 call. When she attended the reserve she saw a white van matching the description she had been provided. Senior Constable O’Byrne saw the vehicle moving and the red tail lights, the van stopped when they pulled up behind it.
(f) Senior Constable O’Byrne inferred from the circumstances that the driver was Mr Thorpe and that he had got out of the van. The inference was overwhelming that he had been driving the van when intercepted as he was standing beside the driver door and another person was in the passenger seat. In those circumstances Mr Thorpe could not have been the passenger in the vehicle. There was no reasonable hypothesis that anyone else could have been the driver.
(g) Senior Constable O’Byrne did not observe any person go up to the van or leave the van as she approached it. When Senior Constable O’Byrne approached Mr Thorpe she advised him that she had observed him driving and that he needed to do a PBT. Mr Thorpe did not deny driving which should be taken as an admission that he was driving the vehicle. Further Mr Thorpe’s comment that ‘the keys should be in the ignition’ point to him having driven.
(h) Alternatively, Mr Thorpe was ‘in charge’ of the motor vehicle. Where he was standing, his lack of denial and his comment about the keys were all factors that could be taken into account to prove that Mr Thorpe was ‘in charge’ of the vehicle.
(i) The test of ‘in charge’ was a lower hurdle as it was based on reasonable grounds for the belief that he intended to drive or start the vehicle and supporting this was the background circumstances and the fact that the van had been driving around.
(j) Further, Mr Thorpe’s comment that the keys should be in the ignition and his need to get from ‘a’ to ‘b’ were sufficient to show that he intended to travel by using the van. There were reasonable grounds for the belief that he was going to start the motor vehicle when intercepted.
(k) Finally, the element of refusal was clearly met as Mr Thorpe was asked a number of times to undertake the PBT, the consequences of the refusal were explained. Although Mr Thorpe said he was not refusing, his words and actions by not undergoing the test, as it was presented to him, amounted to a refusal.
(l) There was no defence of honest and reasonable belief.
[5] RSA s 53(1)(a).
Appellant’s submissions
38Ms Lacy submitted that there were three parts to her submissions first, that Mr Thorpe was not found driving or in charge of a vehicle and therefore the power to request a PBT under s.53(1)(a) was not enlivened and the request made was not in accordance with s.53 of the RSA.[6] Second, Senior Constable O’Byrne was not acting in the execution of her duty as she was trespassing. Third, if Senior Constable O’Byrne had an implied licence to be on non-gazetted areas this did not extend to exercising a coercive power and therefore she was acting illegally.
[6] Ibid s 53.
39Ms Lacy submitted the following;
(a) Senior Constable O’Byrne could not see into the van. Mr Thorpe was not in the van when he was first seen by Senior Constable O’Byrne. She did not see him get out of the van and she did not see the person who was driving the van. She did not know two people were in the van until the driver’s door was opened, as depicted in the BWC footage.
(b) The suggestion that it could be inferred he was the driver and he had got out of the car before the police approached was simply wrong. There was no evidence of Mr Thorpe getting out of the car. The suggestion that Mr Thorpe could not be a passenger in the car was also simply not right.
(c) The court should not be satisfied that the van was moving based on what is depicted in the BWC footage, the fact that Senior Constable O’Byrne was not a compelling witness but rather a witness who gave non responsive answers and a witness who gave the impression of being vested and justifying her position. In addition, the corroborator, who was a critical eye witness was not called to give evidence despite being available at the time.
(d) A very firm belief that he was the driver of the vehicle was not enough to satisfy ‘finds’ driving. Only direct observation could satisfy this precondition.
(e) In relation to the question of whether Mr Thorpe was ‘in charge’ of the vehicle, he was outside the van, the engine of the van was not running, he didn’t have the keys, he was not seen to get out of the van. There was no reasonable belief held by Senior Constable O’Byrne that Mr Thorpe was ‘in charge’ of the vehicle. The discussion about where he was going occurred long after the request for a PBT had been made and refused. The offence was complete at the time of any conversation about where Mr Thorpe was going to spend the night or how he was going to get there.
(f) The suggestion that he had to get from ‘a’ to ‘b’ was not based on evidence.
(g) In relation to the suggestion that a failure to deny he was the driver, ought be accepted as an admission, s. 89 of the Evidence Act applied and as such an inference unfavourable to Mr Thorpe could not be drawn in the circumstances as contended by the prosecution.[7]
[7] Evidence Act 2008 (Vic) s 89.
Analysis
40Section 49(1)(c) is an offence that can be committed in two ways: being the driver of a motor vehicle within the preceding three hours did refuse a PBT in accordance with s.53 of the Road Safety Act or being in charge of a motor vehicle within the preceding three hours did refuse a PBT in accordance with s.53 of the Road Safety Act.[8]
[8]DPP v Mitchell (2002) 37 MVR 142 using the reasoning of Gillard at [61] - [62].
41Although both preconditions “finds driving” and “in charge”, are described in s.53(1)(a), they are separately defined in s.3 and s.3AB of the RSA for circumstances in which a person it to be taken to be ‘driving’ a motor vehicle and in s.3AA and s.48(1)(b) of the RSA for circumstances in which a person is taken to be ‘in charge’ of a motor vehicle. “Finds driving” requires the person to be in control of a motor vehicle and that includes steering the motor vehicle. For the purposes of s53(1)(a) the police officer must observe the person driving the vehicle. “In charge” for the purposes of the RSA, and relevantly to this case, is defined as (a) a person who is attempting to start or drive the motor vehicle; (b) a person with respect to whom there are reasonable grounds for the belief that he or she intends to start or drive the motor vehicle.
42As previously mentioned Mr Thorpe is charged as follows; “The accused at Lake Tyers Trust on 8th November 2021 having been required to undergo a preliminary breath test in accordance with section 53(1) of the Road Safety Act 1986 did refuse to undergo such test within three hours of being the driver of a motor vehicle”.[9] Relevantly, Mr Thorpe has not been charged with being ‘in charge’ of a motor vehicle.
[9] Emphasis added.
43In these circumstances, what is required before the police officer can require a PBT is that they must personally observe the person, in this case Mr Thorpe, driving the vehicle. In the case of the Director of Public Prosecutions v Phillips, Ashley J stated the following;[10]
“S53(1)(a) is expressed in the present tense because it does require a member of the police force to find a person driving or in charge of a motor vehicle. The need for present and personal observation found in s.53(1)(a) and (2) is to be contrasted with the factual situation contemplated by s.53(1)(c). There, belief as to a past occurrence triggers the right of a police officer to require a preliminary breath test to be undergone. S.53(1)(a) is concerned not to establish the time when a test may be required in consequence of a presently observed fact, but rather to establish the condition whose satisfaction founds the right to require a test…” “Consistently with what I have said thus far, s53(1)(a) will only apply, where a motorist is not intercepted at the time of his being found driving or in charge of the motor vehicle, in the event that a member of the police observes the motorist driving or in charge of the vehicle. It will not be enough, in my opinion, that the police officer holds a belief as to who was driving the motor vehicle at the earlier time. Such a belief might be founded, for example, upon no more than the registration certificate applicable to a motor vehicle whose number plate details were observed. The judgement of Southwell, J in Peebles v Hotchin [1988] MVR 147 is relevant in this context.”
[10] The Director of Public Prosecutions v Phillips unreported VSC Ashley J 23 December 1992.
44In Peebles v Hotchin Southwell J stated the following;[11]
“In any event Mr Moshinsky submitted, when the defendant was in the company of the informant alongside the vehicle, in all the circumstances the evidence showed that the defendant could be held to have then been in charge of the vehicle, and was accordingly, “found” in charge of it. I cannot accept that the informant here ”found” the defendant driving the vehicle. He found him in circumstances which led quickly and reasonably to the belief that the defendant had very recently been driving.” … “Section 53(1)(a) and (c) deal respectively with a person found driving or in charge, and a person believed on reasonable grounds to have been driving or in charge of a vehicle when it was involved in an accident. The italicised words are critical; a mere belief that a person has been driving is not sufficient – there must have been an accident. If a mere belief that the person had been driving was regarded by Parliament as a sufficient basis for a preliminary breath test, the words italicised would have been omitted.”
[11] Peebles v Hotchin 8 MVR 147 at [149].
45In Halley v Kershaw, Kaye J summarised the principles relating to the proof that a person was in charge of a vehicle, within the meaning of s.3AA(1) of the RSA as follows;[12]
1. The informant should give specific evidence as to the belief which he or she formed in relation to the intention of the defendant to start or drive the vehicle.
2. In addition, the informant should expressly state the basis upon which he or she formed the belief.
3. It is not necessary that the informant be satisfied of the particular fact on the balance of probabilities rather, the informant must establish that he or she held the belief on reasonable grounds.
4. Such a belief has been described as an inclination of the mind towards assenting to rather than rejecting a proposition… A belief is something more than suspicion but does not need to approach anything like certainty.
5. The belief of the informant must be a belief that the defendant intended to start the engine or drive off forthwith, or to do so ay any point of close futurity.
The question is not whether the court itself holds, or agrees with, the belief that the defendant intended to drive or start the vehicle. Rather, the question is whether the informant held such belief and whether the informant did so on reasonable grounds.
[12] Halley v Kershaw [2013] VSC 439.
46It is my view, the charge against Mr Thorpe has clearly been put on the basis that the police officers believed they had found him driving. This is clear from the wording of the charge brought by the informant and from what the police members said to Mr Thorpe during the body worn camera footage when requiring him to undertake the PBT. The first reason given by Senior Constable O’Byrne was “because we observed you driving today”, next “You’re in charge of a vehicle”, “You’re driving your vehicle”, and “You’re in charge of a motor vehicle. We have observed you being in charge of a motor vehicle”. Despite the fact that they used the words ‘in charge’ it is clear that both police members have used that phrase interchangeably with ‘driving’.
47Additionally, the evidence in chief of Senior Constable O’Byrne was that she saw the van move 10 metres, she walked to the driver who was outside of the vehicle and when asked by Mr Buchhorn “When you approached the van did you have a belief about what the driver was going to do?” she responded “He had been the driver”. In cross examination, Senior Constable O’Byrne said although she did not see who was driving there was no question as to who was driving the vehicle on the night and there was no question he, meaning Mr Thorpe, was the driver of the vehicle.
48Also in cross-examination, Senior Constable O’Byrne conceded that she had not actually observed the driver of the van on the night and in particular, she did not observe Mr Thorpe driving the van on the night. Mr Buchhorn submitted that Senior Constable O’Byrne inferred from the circumstances that Mr Thorpe was the driver of the van, that this inference was overwhelming and there was no reasonable hypothesis consistent with innocence. In my view, an inference that Mr Thorpe was the driver is the equivalent of a mere belief that he was the driver of the van. Alternatively, if an inference is sufficient to satisfy the necessity to find a person driving, it is my view that it is not the only inference open. This is in circumstances where Senior Constable O’Byrne did not see anybody leave the vehicle and there was a passenger. As such I am not satisfied that Senior Constable O’Byrne found Mr Thorpe driving and the s.53(1)(a) precondition that Senior Constable O’Byrne relied on to require the PBT has not been made out.
49Mr Buchhorn submitted in the alternative, Mr Thorpe was ‘in charge’ of the motor vehicle. He relied on the evidence of where Mr Thorpe was standing, that is, near the driver’s door, his lack of denial when it was suggested he was driving, his comment that the keys should be in the ignition, the fact that he had to get from ‘a’ to ‘b’ and the background fact that the van had been driving around. Mr Buchhorn submitted that these factors combined to prove that Mr Thorpe was ‘in charge’ of the vehicle. He submitted this was a lower hurdle as it was based on a reasonable belief that he intended to drive or start the vehicle.
50In my view, it is clear from the BWC footage and the evidence of Senior Constable O’Byrne that she did not form such a reasonable belief at the time she presented the breathalyser to Mr Thorpe and required him to undergo a PBT. It was not until after Senior Constable O’Byrne had said ‘we’ll take that as a refusal’ and Senior Constable Maxwell said ‘We have given you enough chances tonight’ that the conversation turned to where Mr Thorpe was going to go and how he was going to get there. I agree with the submission of Ms Lacy that by this time the offence of refuse a breath test was complete. My view in this regard is fortified by the fact that no further request for a PBT was made from this point on.
51In my opinion, there was no clear evidence given by Senior Constable O’Byrne of a reasonable belief that Mr Thorpe was ‘in charge’ of the van. That is, there was no evidence given by Senior Constable O’Byrne that she held a belief that Mr Thorpe intended to start the engine of the van and drive off forthwith.
52It follows that I do not find the first element of the charge proven and therefore I dismiss the charge of refusing a breath test against Mr Thorpe.
53For completeness, I indicate that I accept the submission of Ms Lacy that ‘silence as an admission’ in this case was not a factor that could be relied upon by the Respondent, based on s.89 of the Evidence Act.[13] I am unable to find if the van was moving when it was first observed by Senior Constable O’Byrne. However, given my other findings I do not consider it necessary to decide this issue.
[13] Evidence Act 2008 (Vic) s 89.
54Further, I acknowledge that a large focus of this appeal and a considerable amount of evidence was given in relation to the authority of the police to enter the Lake Tyers Trust property without permission and to exercise coercive powers therein. Given my findings in relation to the first element of the charge it is not necessary to make a finding with respect to this evidence and the arguments advanced by the parties.
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