Varverakis v Police

VARVERAKIS v POLICE
[2003] SASC 20
Magistrate’s Appeal
GRAY J
Introduction

This is an appeal against a magistrate’s decision to refuse to make an alcohol interlock order pursuant to section 50(1) of the Road Traffic Act 1961 (SA).
On 10 October 2002 the appellant Con Varverakis pleaded guilty to driving a motor vehicle with more than the prescribed amount of alcohol in his blood and driving without due care.[1] He was convicted, fined $1,100 and disqualified from holding or obtaining a driver’s licence for 24 months commencing on 11 October 2002. The appellant applied for an alcohol interlock order. The application was refused.
[1] The complaint was in the following terms:
On 4 December 2002 this appeal was allowed by consent. An alcohol interlock order was made. Both counsel sought the publication of reasons.
The Alcohol Interlock Scheme
For many years alcohol interlock devices have been fitted to vehicles in Canada, Sweden and parts of the United States.[2] Research indicates that since their introduction there has been a reduction in drink driving generally and a significant reduction in the recidivism rate for offenders participating in alcohol interlock programs as compared with offenders who only serve a period of licence disqualification.[3]
[2] Second Reading Speech House of Assembly Government Gazette 8 November 2000 at 388-391
[3] Second Reading Speech House of Assembly Government Gazette 8 November 2000 at 388-391
The Road Traffic Act regulates the conduct of road users. It provides for various driving offences including drink driving. In 2000 the Road Traffic Act was amended by the Road Traffic (Alcohol Interlock Scheme) Amendment Act 2000 (SA). Division 5A which contains the alcohol interlock scheme was inserted by this amendment. This legislation allows for alcohol interlock devices to be used throughout South Australia. It permits the issuing of a special interlock driver’s licence to scheme participants.[4]
[4] The alcohol interlock scheme was discussed in Police v Gun (2002) 83 SASR 566. See also the Second Reading Speech House of Assembly Government Gazette 8 November 2000 at 388-391
The alcohol interlock scheme applies to offenders meeting the statutory criterion. All persons convicted of relevant drink driving offences under the Road Traffic Act where a period of licence disqualification of six months or more has been imposed come within the scheme. The scheme enables offenders to regain their driver’s licence subject to conditions at any time after the half way point in the period of their disqualification. Participation in the scheme by eligible offenders is voluntary and participants will bear all costs in relation to the installation, monthly rental, servicing and removal of the alcohol interlock device and the obligatory counselling sessions.[5] Participation is required for twice the number of days left in the offender’s period of licence disqualification for the relevant drink driving offence prior to entering the scheme.[6] Offenders may also arrange with the installer to lease the device at their own cost after exiting the scheme.
[5] South Australian Alcohol Interlock Scheme Transport SA October 2001 provided that it is expected that the initial cost for entrance into the scheme will be $400 and the monthly rental, service and administration fee will total $160. Provision has been made in the legislation for a ‘Low Income Participant Subsidy Scheme’ to ensure equality of access for all eligible offenders regardless of income.
[6] Section 50 of the amending legislation provides: “Under subsection (4) the period for which the new licence is required to be subject to the alcohol interlock scheme conditions is a number of days equal to twice the number of days remaining in the period of the offender’s disqualification for the relevant drink driving offence immediately before the issuing of the new licence.” For example if a 12 month licence disqualification has been ordered then the offender will be eligible to enter the scheme after six months and can then participate for 12 months.
An alcohol interlock device is a small breath testing device about the size of an electric shaver. The device is an electronic breath alcohol analyser with a micro-computer and internal memory. It is attached to the ignition and other control systems of a motor vehicle nominated by the offender. This is the only vehicle that the offender is permitted to drive. The offender must blow into the alcohol interlock device for a few seconds. The device measures blood alcohol concentration. It prevents a vehicle from being started or operated if the offender’s blood alcohol exceeds a pre-set limit, thereby preventing drink driving.[7]
[7] South Australian Alcohol Interlock Scheme Transport SA October 2001at 10
If the offender does not ‘pass’ the breath test then the vehicle will not start for anywhere between five and 30 minutes. If the vehicle stops for more than three minutes the offender will need to successfully blow into the device again before the vehicle will re-start. The device may require a re-test as the offender drives along. The offender is provided with three minutes in which to pull over and provide a breath sample whilst the ignition is still running. If the offender is below the pre-set limit then driving can continue. If the offender does not provide a sample or fails the test an alarm involving the vehicle’s horn and lights will start until the ignition is turned off or the offender undertakes a successful re-test.[8]
[8] South Australian Alcohol Interlock Scheme Transport SA October 2001 at 3 and 10.
Alcohol interlock devices must be installed by one of two approved installers.[9] Approved installers monitor the device at regular monthly intervals. Each service involves checking the equipment and downloading the event log. This is information recorded about the previous month’s usage.[10] This includes the date and time of all attempts to start the vehicle, breath tests and lockouts. This information is then forwarded to the registrar for evaluation. If the device is not serviced within the maximum period allowed, the device will lockout the offender and can only be re-set by an approved service provider and the registrar will be notified.[11]
[9] The alcohol interlock scheme is administered by the Department of Registration and Licensing.
[10] The event log records the date, time and day of the following:
[11] South Australian Alcohol Interlock Scheme Transport SA October 2001at 5
The alcohol interlock licence holder must agree not to interfere with the interlock device or permit it to be interfered with by someone else. As earlier observed there is a requirement that the offender attend at stipulated times and locations to enable the interlock data to be downloaded. When driving “P” plates must be displayed. A minimum of two counselling sessions with the Drug and Alcohol Services Council upon entry and exit from the scheme are compulsory. The intention of mandatory counselling is to assist in correcting the offender’s driving behaviour. Failure to attend will result in a breach of the interlock licence and may result in cancellation.[12] An offender who has been convicted of two or more drink driving offences within a three year period is required to undertake alcohol and drug assessment prior to being eligible to apply for an interlock licence.[13] If after an interview and medical assessment at the Drug and Alcohol Services Council the offender is assessed as being dependent on alcohol or drugs then the person cannot be issued with an interlock licence.[14] In the event of a breach of any of the interlock conditions a disqualification period equal to the balance of the original disqualification or six months whichever is the greatest will be imposed.[15] A person disqualified under this provision will not be eligible to apply for an alcohol interlock licence during the period of disqualification.
Consideration of the Issue
[12] If an offender breaches a condition of the alcohol interlock scheme a penalty of up to $1,250 and a further licence disqualification can be imposed. The period of the disqualification will be six months or the number of days remaining in the period of the person’s disqualification for the relevant drink driving offence immediately before the licence was issued, whichever is the longest period. See South Australian Alcohol Interlock Scheme Transport SA October 2001at 4 and 10.
[13] South Australian Alcohol Interlock Scheme Transport SA October 2001 at 4
[14] South Australian Alcohol Interlock Scheme Transport SA October 2001 at 4
[15] See >
Section 50(1) of the Road Traffic Act relevantly provides:
“In a case where this Division applies, the court concerned must, in addition to making the order of disqualification for the relevant drink driving offence, make an order to the effect that, despite the order of disqualification, the offender will, on application made to the Registrar of Motor Vehicles at any time after the half-way point in the period of that disqualification, be entitled to be issued with a driver's licence that is subject to the alcohol interlock scheme conditions for the required period (in addition to any conditions otherwise required).”
The principal issue raised by this appeal was whether the magistrate was obliged to make an alcohol interlock order upon application. Does the word “must” in section 50(1) impose a mandatory obligation on the magistrate to make an order? Counsel for the appellant submitted that the terms of section 50(1): “the court concerned must…make an order” cast an obligation on the magistrate to make the alcohol interlock order once the statutory pre-conditions were established. The Crown supported this construction.
In Kosovich v Mancini[16] Millhouse J considered the wording “must be determined” in the Road Traffic Act:
“It seems to me that ‘must be determined’ imposes an obligation which cannot be regarded as directory only. I have looked both in the dictionary and in Maxwell. The appropriate meaning of ‘must’ in the Shorter Oxford English Dictionary is: ‘expressing necessity: Am (is are) obliged or required to; have (has) to; it is necessary that (I, you, he, it, etc) should’. ‘In ordinary usage, ‘may’ is permissive and ‘must’ is imperative’ (Maxwell on Interpretation of Statutes, 12^th ed. (1969) p 324).”
[16] (1982) 31 SASR 272 at 275-276
“Must” has been defined to mean “indicating an obligation or necessity”[17] and “indicating inevitability”[18], “expressing necessity or obligation”[19] and “a fixed or certain futurity”.[20] Reid J sitting as a member of the Supreme Court of Ottowa in International Union v Massey-Ferguson Industries Ltd[21] observed:
“The word ‘must’ is a common imperative. It is hard to think of a commoner. There is no dictionary of stature of which I am aware that accords to the word any other connotation. In its present or future tense it expresses command, obligation, duty, necessity and inevitability. This is so according to the Oxford Dictionaries, from the Pocket through the Concise and Shorter to the Oxford English Dictionary itself.
I can find nothing but confirmation of this in Roget’s Thesaurus. I can think of no better illustration of the inevitability of ‘must’, than the following:
This above all: to thine own self be true.
And it must follow, as the night the day
Thou canst not then be false to any man. (Hamlet 1.111)”
[17] The Macquarie Dictionary 3^rd edition at 1420
[18] The Macquarie Dictionary 3^rd edition at 1420
[19] The Oxford English Dictionary 2^nd edition vol 10 Clarendon Press Oxford 1989 at 130
[20] The Oxford English Dictionary 2^nd edition vol 10 Clarendon Press Oxford 1989 at 130
[21] (1979) 94 DLR (3d) 743 at 745-6
The use of “must” may be contrasted to the use of the possibly discretionary “shall”. Reid J further observed:
“In contrast, the word ‘shall’ is an equivocal word that can express either command or simple futurity. ‘Shall’ was the word under consideration in Re Metropolitan Toronto and Toronto Civic Employees’ Union, Local 43 et al (1975), 8 OR (2d) 499, 58 DLR (3d) 371, the first case referred to by the learned arbitrator in the passage noted.
The Courts have grown used to examining the context in which “shall” is used to determine whether it is strengthened or weakened to expressing simple futurity, as was done in Re Metropolitan Toronto, supra.
Since ‘must’ bears only one meaning, an imperative one, it is inappropriate and unnecessary to search in the context for something that strengthens it.”
It is useful to contrast the approach of the courts towards the meaning of “shall”. The observations in Julius v Bishop of Oxford[22] have been applied and approved in many authorities:
“They are words merely making that legal and possible which there would otherwise be no right or authority to do. They confer a faculty or power, and they do not of themselves do more than confer a faculty or a power. But there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so.”
[22] (1880) 5 App Cas 214 at 222-223 - see generally Statutory Interpretation in Australia - Pearce and Geddes (2nd edition) at [11.5, 11.6]
There has been widespread recognition that drink driving continues to be a real community concern and a grave social ill.[23] Engaging in this behaviour whether regularly or on a one off occasion brings with it the real possibility of injury or death to others and criminal sanctions for the individual involved. The consequences of drink driving are serious.
[23] >
The alcohol interlock scheme was designed to minimise and wherever possible, prevent drink driving. The scheme seeks to maximise community protection and safety. Offenders are incapacitated from drink driving whilst they are subject to the scheme. The scheme simultaneously provides education and re-training. Participation provides the opportunity for rehabilitation and an altering of driving practices through controlled application.
An offender’s behaviour is restricted by the use of an alcohol interlock licence that will only be issued subject to conditions. When combined with education and counselling offenders can come to understand the reasons for their drink driving and how they can make a different choice should they be faced with driving in a similar situation. The legislation intended that offenders come to realise the need to drive responsibly and to appreciate the consequences of their behaviour.
The alcohol interlock scheme is a reform strategy for convicted drink drivers.[24] Parliament has recognised the community benefits associated with the rehabilitation of offenders. The legislation has a rehabilitative purpose.[25] It seeks to alter unsafe driving habits by remedial correction. It aims to educate and provide offenders with an awareness to drive safely in the future. The scheme provides an interim period where drivers can develop and practice the ability to not drink and drive. The legislation encourages and seeks to facilitate long term behavioural change. It provides protection to the offender and other road users and minimises the risk of further licence disqualification.[26]
[24] Response by the Australian Drug Foundation to Alcohol ignition interlocks in Victoria: discussion paper by Vic Roads July 2001
[25] G Neugebauer “Alcohol Ignition Interlocks: Magic Bullet or Poison Pill” The Pittsburgh Journal of Technology Law and Policy Spring 2002
[26] Response by the Australian Drug Foundation to Alcohol ignition interlocks in Victoria: discussion paper by Vic Roads July 2001
The alcohol interlock scheme is most effective when it applies to all drivers meeting the statutory criterion. Parliament’s use of the imperative “must” aligns with the statute’s rehabilitative purposes. The word “must” in section 50(1) of the Road Traffic Act imposes an obligation on magistrates to make an alcohol interlock order upon application.
LIST OF CITATIONS AS THEY APPEAR IN THE JUDGMENT
1      The complaint was in the following terms:
“On the 20^th day of September, 2001 at Two Wells in the said State [Con Vaverakis] drove a vehicle namely a motor vehicle on a road namely Old Port Wakefield Road whilst he was so much under the influence of intoxicating liquor as to be incapable of exercising effective control of the said vehicle. Section 47 of the Road Traffic Act 1961 [This count was withdrawn.]
On the 20^th day of September, 2001 at Two Wells in the said State [Con Vaverakis] drove a motor vehicle on a road namely Old Port Wakefield Road while there was present in his blood the prescribed concentration of alcohol as defined in Section 47a of the Road Traffic Act 1961.
Section 47b of the Road Traffic Act 1961
It is further alleged that the concentration of alcohol was .148 grams in a hundred millilitres of blood.
On the 20^th day of September, 2001 at Two Wells in the said State [Con Vaverakis] drove a vehicle namely a motor vehicle on a road namely Old Port Wakefield Road without due care.
Section 45 of the Road Traffic Act 1961.”
2Second Reading Speech House of Assembly Government Gazette 8 November 2000 at 388-391
South Australian Alcohol Interlock Scheme Transport SA October 2001 at 1
3       Second Reading Speech House of Assembly Government Gazette 8 November 2000 at 388-391
South Australian Alcohol Interlock Scheme Transport SA October 2001 at 1
Coben J, Larkin G Effectiveness of Ignition Interlock Devices in Reducing Drunk Driving Recidivism American Journal of Preventative Medicine 1999 16 (1S) 81-87. Five of the six studies found programs using ignition interlocks were effective in reducing driving while intoxicated recidivism. Three of these studies had non-randomised groups and one was a retrospective study. In these five studies, participants in the interlock programs were 15-69% less likely than controls to be re-arrested for [DUI]. Alcohol ignition interlock programs appear to be effective in reducing [DUI] recidivism during the time period when the interlock is installed in the car.

Marques P; Tippetts A; Voas R; Beirness D Predicting repeat DUI offences with the alcohol interlock recorder Accident Analysis & Prevention Vol 33(5) Sept 2001 609-619
M Weinrath Crime & Delinquency January 1997 vol 43 at 42-59
B Morse & Delbert Elliot Crime & Delinquency 1992 Vol 38(2) at 131-157
J Sanderson “Alcohol Interlocks: Value for Recidivist Drinkers” Summary of Proceedings: Drink Driving Recidivism Summit Adelaide 26 and 27 November 1996.

M Weinrath of the University of Alberta’s 1997 study published the following finding: “the odds for program participants re-offending declined by 90% for repeat drunk driving, 2.3 times for a serious driving offence. They were 4 times less likely to be involved in an injury collision.”
Neugebauer “Alcohol Ignition Interlocks: Magic Bullet or Poison Pill” The Pittsburgh journal of Technology Law and Policy Spring 2002
4 The alcohol interlock scheme was discussed in Police v Gun (2002) 83 SASR 566. See also the Second Reading Speech House of Assembly Government Gazette 8 November 2000 at 388-391
5      South Australian Alcohol Interlock Scheme Transport SA October 2001 provided that it is expected that the initial cost for entrance into the scheme will be $400 and the monthly rental, service and administration fee will total $160. Provision has been made in the legislation for a ‘Low Income Participant Subsidy Scheme’ to ensure equality of access for all eligible offenders regardless of income.
6      Section 50 of the amending legislation provides: “Under subsection (4) the period for which the new licence is required to be subject to the alcohol interlock scheme conditions is a number of days equal to twice the number of days remaining in the period of the offender’s disqualification for the relevant drink driving offence immediately before the issuing of the new licence.” For example if a 12 month licence disqualification has been ordered then the offender will be eligible to enter the scheme after six months and can then participate for 12 months.
7      South Australian Alcohol Interlock Scheme Transport SA October 2001 at 10
8      South Australian Alcohol Interlock Scheme Transport SA October 2001at 3 and 10.
9      The alcohol interlock scheme is administered by the Department of Registration and Licensing.
10    The event log records the date, time and day of the following:
Initial tests passed; Initial tests failed – Low/High BAC; Initial tests not presented; Retests not presented; Incorrect sample presentations; Engine starts and stops; Bypass detection; Power connects and disconnects; handset disconnects; Lockouts; Hardware errors; Start violations (any attempts to disable or fraudulently start the vehicle etc.) South Australian Alcohol Interlock Scheme Transport SA October 2001at 6 and 9.
11     South Australian Alcohol Interlock Scheme Transport SA October 2001at 5
12     If an offender breaches a condition of the alcohol interlock scheme a penalty of up to $1,250 and a further licence disqualification can be imposed. The period of the disqualification will be six months or the number of days remaining in the period of the person’s disqualification for the relevant drink driving offence immediately before the licence was issued, whichever is the longest period. See South Australian Alcohol Interlock Scheme Transport SA October 2001at 4 and 10.
13     South Australian Alcohol Interlock Scheme Transport SA October 2001at 4
14     South Australian Alcohol Interlock Scheme Transport SA October 2001at 4
15     See footnote 23
16 (1982) 31 SASR 272 at 275-276
17     The Macquarie Dictionary 3^rd edition at 1420
18     The Macquarie Dictionary 3^rd edition at 1420
19     The Oxford English Dictionary 2^nd edition vol 10 Clarendon Press Oxford 1989 at 130
20    The Oxford English Dictionary 2^nd edition vol 10 Clarendon Press Oxford 1989 at 130
21 (1979) 94 DLR (3d) 743 at 745-6
22 (1880) 5 App Cas 214 at 222-223 - see generally Statutory Interpretation in Australia - Pearce and Geddes (2nd edition) at [11.5, 11.6]
23http:// Response by the Australian Drug Foundation to Alcohol ignition interlocks in Victoria: discussion paper by Vic Roads July 2001
T Dolgopol “A Human Rights Perspective” Summary of Proceedings: Drink Driving Recidivism Summit: Adelaide 26 and 27 November 1996
25     G Neugebauer “Alcohol Ignition Interlocks: Magic Bullet or Poison Pill” The Pittsburgh Journal of Technology Law and Policy Spring 2002
26     Response by the Australian Drug Foundation to Alcohol ignition interlocks in Victoria: discussion paper by Vic Roads July 2001

“On the 20^th day of September, 2001 at Two Wells in the said State [Con Vaverakis] drove a vehicle namely a motor vehicle on a road namely Old Port Wakefield Road whilst he was so much under the influence of intoxicating liquor as to be incapable of exercising effective control of the said vehicle. Section 47 of the Road Traffic Act 1961 [This count was withdrawn.]

On the 20^th day of September, 2001 at Two Wells in the said State [Con Vaverakis] drove a motor vehicle on a road namely Old Port Wakefield Road while there was present in his blood the prescribed concentration of alcohol as defined in Section 47a of the Road Traffic Act 1961.
Section 47b of the Road Traffic Act 1961
It is further alleged that the concentration of alcohol was .148 grams in a hundred millilitres of blood.

On the 20^th day of September, 2001 at Two Wells in the said State [Con Vaverakis] drove a vehicle namely a motor vehicle on a road namely Old Port Wakefield Road without due care.
Section 45 of the Road Traffic Act 1961.”

South Australian Alcohol Interlock Scheme Transport SA October 2001 at 1

South Australian Alcohol Interlock Scheme Transport SA October 2001 at 1
Coben J, Larkin G Effectiveness of Ignition Interlock Devices in Reducing Drunk Driving Recidivism American Journal of Preventative Medicine 1999 16 (1S) 81-87. Five of the six studies found programs using ignition interlocks were effective in reducing driving while intoxicated recidivism. Three of these studies had non-randomised groups and one was a retrospective study. In these five studies, participants in the interlock programs were 15-69% less likely than controls to be re-arrested for [DUI]. Alcohol ignition interlock programs appear to be effective in reducing [DUI] recidivism during the time period when the interlock is installed in the car.

Marques P; Tippetts A; Voas R; Beirness D Predicting repeat DUI offences with the alcohol interlock recorder, Accident Analysis & Prevention Vol 33(5) Sept 2001 at 609-619
M Weinrath; Crime & Delinquency January 1997 Vol 43 at 42-59
B Morse & Delbert; Elliot Crime & Delinquency 1992 Vol 38(2) at 131-157
J Sanderson “Alcohol Interlocks: Value for Recidivist Drinkers” Summary of Proceedings: Drink Driving Recidivism Summit Adelaide 26 and 27 November 1996.

M Weinrath of the University of Alberta’s 1997 study published the following finding: “the odds for program participants re-offending declined by 90% for repeat drunk driving, 2.3 times for a serious driving offence. They were 4 times less likely to be involved in an injury collision.”
Neugebauer “Alcohol Ignition Interlocks: Magic Bullet or Poison Pill” The Pittsburgh Journal of Technology Law and Policy Spring 2002

Initial tests passed; Initial tests failed – Low/High BAC; Initial tests not presented; Retests not presented; Incorrect sample presentations; Engine starts and stops; Bypass detection; Power connects and disconnects; handset disconnects; Lockouts; Hardware errors; Start violations (any attempts to disable or fraudulently start the vehicle etc.) South Australian Alcohol Interlock Scheme Transport SA October 2001at 6 and 9.

T Dolgopol “A Human Rights Perspective” Summary of Proceedings: Drink Driving Recidivism Summit: Adelaide 26 and 27 November 1996

[2003] SASC 20

5 February 2003