Venezia v Marshall - [2001] VSC 87

SUPREME COURT OF VICTORIA
COMMON LAW DIVISION	Not Restricted

No. 6249 of 2000

FRANCESCO VENEZIA	Appellant
v
TANIA ELIZABETH MARSHALL	Respondent

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JUDGE:	Gillard J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 March 2001
DATE OF JUDGMENT:	2 April 2001
CASE MAY BE CITED AS:	Venezia v Marshall
MEDIUM NEUTRAL CITATION:	[2001] VSC 87

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Appeal from Magistrate – Offence under s.49(1)(f) of the Road Safety Act 1986 – Admissibility of Certificate of Breath Analysis under s.58(2) – Certificate altered by operator and handed to accused person – Document admissible in unamended form.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P. Billings with Mr. D. Connors	James T. Stevens
For the Respondent	Mr D. Trapnell	Solicitor for Public Prosecutions

HIS HONOUR:

An appeal pursuant to s.92 of the Magistrates' Court Act 1989 against a final order, made by the Magistrates' Court of Victoria sitting at Frankston, in which the appellant was convicted of a charge pursuant to s.49(1)(f) of the Road Safety Act 1986 ("the Act"), fined, and his licence to drive a motor vehicle was cancelled.

Parties

The appellant, Francesco Venezia, is a 45 year old manager residing in Beaumaris. He was charged with three offences by the respondent, Tania Elizabeth Marshall, a senior constable of police.

The proceeding in the Magistrates' Court

The appellant was charged with three offences. First, that he drove a motor vehicle on 17 December 1999 in Beaumaris whilst having more than the prescribed concentration of alcohol in his blood contrary to s.49(1)(b) of the Act.

The second charge was that on the same day at Moorabbin he did within three hours after driving a motor vehicle furnish a sample of breath for analysis by a breath analysing instrument which indicated that more than the prescribed concentration of alcohol being 0.05 grams per 100 millilitres of blood was present in his system contrary to s.49(1)(f) of the Act.

He was further charged that at Beaumaris on the same date he did drive a motor vehicle in excess of 60 kilometres per hour.

The charges were heard on 27 June 2000 by Mr L. Winton-Smith M at the Frankston Court.

The appellant was represented by counsel.

The appellant entered a plea of guilty to the charge of speeding and pleas of not guilty to the charges under s.49(1) of the Act. The charges under the Act were alternative charges.

After the pleas were made, the magistrate was informed that there was a preliminary point as to the admissibility of the certificate provided by the operator of the breath analysing instrument which was given pursuant to s.55(4) of the Act. The informant sought to tender the certificate under s.58(2) of the Act.

For the purposes of the preliminary ruling, the certificate was placed before the court and after hearing argument the learned magistrate admitted the certificate into evidence.

The certificate was produced by a breath analysing instrument. After it was produced it was observed that the date of birth of the appellant noted on the…

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 Venezia v Marshall

Details

AGLC: Venezia v Marshall [2001] VSC 87
Case: [2001] VSC 87
Decision Date: 2 April 2001

CaseChat Overview and Summary

The matter of Venezia v Marshall before the court involved a dispute over the admissibility of a certificate of breath analysis under section 58(2) of the Road Safety Act 1986. The respondent, Venezia, was charged with an offence under section 49(1)(f) of the Act, which pertains to driving with a blood alcohol concentration above the prescribed limit. The appellant, Marshall, was the operator responsible for conducting the breath test and issuing the certificate. The central issue was whether the certificate, which had been altered by the operator and subsequently handed to the accused, was admissible as evidence in its unamended form.

The court needed to decide if the alterations made to the certificate by the operator constituted a breach of section 58(2) of the Act, which stipulates the form and content of the certificate. Additionally, the court had to examine whether the handing over of the certificate to the accused person affected its admissibility. The interpretation of the legislative provisions and the application of relevant legal principles were crucial to resolving these questions. The court considered whether the certificate's admissibility was compromised by the operator's actions and the subsequent handling of the document by the accused.

In its reasoning, the court determined that the alterations made by the operator to the certificate did not necessarily render it inadmissible. The court held that the primary purpose of section 58(2) was to ensure the certificate's integrity and reliability, rather than to prohibit any modifications. The court found that the alterations did not materially affect the certificate's accuracy or the reliability of the test results. Furthermore, the court concluded that the handing over of the certificate to the accused did not impact its admissibility, as the certificate remained a product of the test conducted by the operator and was subject to the statutory requirements. Consequently, the court upheld the admissibility of the certificate in its unamended form.

The final orders of the court confirmed the admissibility of the certificate of breath analysis as evidence in the proceedings against the respondent. The court's decision underscored the importance of maintaining the integrity of the test results while acknowledging that minor alterations and subsequent handling by the accused do not inherently disqualify the certificate from being admissible under the Act.

Orders