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Uren v Neale

Uren v Neale

Case [2009] VSC 267 26 June 2009

Statutory Construction

Adjournment

Criminal Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 10252 of 2008

BRUCE NORMAN UREN	Appellant
v
EDWINA NEALE	Respondent

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JUDGE:	FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	27, 28 May 2009
DATE OF JUDGMENT:	26 June 2009
CASE MAY BE CITED AS:	Uren v Neale
MEDIUM NEUTRAL CITATION:	[2009] VSC 267
JUDGMENT APPEALED FROM:	Crisp M (13 November 2008)

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MOTOR VEHICLES – Criminal law – Road Safety Act (Vic) 1986 s 49(1)(e), s 55(2), s 55(9A) – Refuse breath test – Refuse to provide blood sample - Refuse to remain at Police Station for purpose of blood sample – Requirements – No necessity for approved instrument.

STATUTORY CONSTRUCTION – Magistrates’ Court Act (Vic) 1989 s 30 - Distinction between Substantive/Procedural law – Interpretation of Legislation Act (Vic) 1984 s 14(2) – Filing of an “on the spot” summons by police out of time.

MAGISTRATES’ COURT ACT – Adjournment – Schedule 2 clause 1A – Contest mention – Requirement for pre-hearing disclosure.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr G. Hardy	Rickards Legal Lawyers
For the Respondent	Mr B. Ihle	Office of Public Prosecutions

HIS HONOUR:

Introduction

At 12.25am on 23 May 2007 in Beach Street, Frankston, Mr Bruce Uren, the appellant, was apprehended by the respondent, Acting Sergeant Edwina Neale, and a fellow officer, Senior Constable Gerhardt Kaschke. As a result of their observations of his driving, he was required to undertake a preliminary breath test and was then taken to the Frankston Police Station to undergo a breathalyser test.

At the station he was either unable to or deliberately refused to provide a breath sample for analysis using a breathalyser. He was then asked by Ms Neale whether he would remain at the police station to await the arrival of a medical practitioner to take a blood sample. He refused and left the station.

He was, on 23 May 2007, charged on summons with breaches of the Road Safety Act (Vic) 1986, including three charges that related to his alleged refusal to provide a breath test or a sample of his blood.[1]
[1]There is an issue about the date of issue of charge four which I will return to later.

Ultimately, the hearing of the charges came on before a Magistrate in October and November 2008 at the Frankston Magistrates’ Court and a number of defences (which may be described as technical by some and by others as simply requiring strict compliance by the prosecution with the law) were taken on his behalf. Four police officers gave evidence. Mr Uren’s daughter, who had collected him from the police station, gave evidence. Mr Uren stood mute.

The Magistrate convicted Mr Uren on each of the charges, his licence was cancelled and he was disqualified from driving for two years and fined a total of $1500.

On this appeal, a number of discrete issues (all of which were argued before the Magistrate and rejected) are raised by Mr Uren, who asserts…

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 Uren v Neale

Details

AGLC: Uren v Neale [2009] VSC 267
Case: [2009] VSC 267
Decision Date: 26 June 2009

CaseChat Overview and Summary

In the matter of Uren versus Neale, the defendant, Uren, was charged with various traffic offenses under the Road Safety Act 1986 (Vic), including refusing to provide a breath sample, refusing to provide a blood sample, and refusing to remain at a police station for the purpose of providing a blood sample. The case was heard in the Magistrates’ Court of Victoria. The primary issue before the court was whether Uren's refusal to provide a blood sample constituted an offence under the statute, considering the absence of an approved instrument at the police station to perform the blood test.

The court had to determine if the legislative provisions under the Road Safety Act were clear and unambiguous regarding the requirements for a blood sample test and whether the absence of an approved instrument at the police station rendered Uren's refusal non-compliant with the statutory obligations. Additionally, the court examined whether the police officer's failure to file an "on the spot" summons within the specified timeframe under the Magistrates’ Court Act 1989 (Vic) affected the validity of the charges against Uren.

The court concluded that the legislative provisions were clear and unambiguous, and Uren's refusal to provide a blood sample constituted an offence regardless of the absence of an approved instrument at the police station. The court found that the statute did not require the presence of an approved instrument to mandate the provision of a blood sample. Furthermore, the court held that the failure to file the summons within the specified time did not invalidate the charges against Uren. The court ordered that Uren be found guilty of the charges and made appropriate orders accordingly.

Orders