Victoria Police v Brasse
[2023] VMC 1
•17 February 2023
IN THE MAGISTRATES’ COURT OF VICTORIA
AT DANDENONG
CRIMINAL DIVISION
Case No. L10599859
| VICTORIA POLICE | Prosecution |
| v | |
| BORIS BRASSE | Accused |
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MAGISTRATE: | J STUDHAM |
WHERE HELD: | Dandenong |
DATE OF HEARING: | 10 October 2022, 21 November 2022 |
DATE OF DECISION: | 17 February 2023 |
CASE MAY BE CITED AS: | Victoria Police v Brasse |
MEDIUM NEUTRAL CITATION: | [2023] VMC 1 |
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MOTOR TRAFFIC LAW – Road Safety Act 1986 – Accused charged with failing an oral fluid test – Admissibility of s 84 Certificate – Held that Certificate does not comply with legislation, is deficient and cannot be relied on – Infringement Notice as evidence of prior conviction – Infringement notice sought to be tendered does not include required information in compliance with legislation – Infringement notice ruled inadmissible.
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APPEARANCES: | COUNSEL: | SOLICITORS: |
| For the Prosecution | Senior Constable Christopher Cato | Victoria Police |
| For the Accused | Ms Zoe Davis | ZD Legal |
HER HONOUR:
INTRODUCTION
The accused Boris Brasse (Mr Brasse) has entered a plea of guilty to one charge of failing an oral fluid test pursuant to s 49(1)(h) of the Road Safety Act 1986 (RSA). The matter proceeded on the 10th of October and the 21st of November 2022 as a plea hearing. After the summary was read, and the charge found proven, the prosecution sought to tender the accused’s prior convictions pursuant to a certificate issued under s 84(1) of the RSA (Certificate). The admission of the Certificate issued under s 84 is relevant as the prosecution sought to prove that Mr Brasse had one relevant prior conviction from 2018 also involving a charge of drug driving. If proven, the offending before this Court becomes a subsequent offence, thereby increasing the mandatory minimum licence disqualification period from six months to twelve months. Counsel acting on behalf of Mr Brasse did not admit the prior matter and objected to the tendering of the Certificate. It was put that the Certificate, as it stood, was inadmissible on the basis that it did not disclose the amount of the fine imposed for the 2018 offence.
If the prosecution is not successful in having tendered into evidence the Certificate, they seek to tender a copy of the original traffic infringement notice in relation to the 2018 offence as proof of that matter having been committed, therefore amounting to a relevant prior matter for the purposes of licence disqualification.
The tendering of the copy of the traffic infringement notice was opposed by defence on the basis that the traffic infringement notice is invalid as it is incomplete and cannot take effect as a conviction.
It is agreed between the parties that the test to be applied in this case is beyond reasonable doubt.
In this matter I have been assisted by written submissions filed by both the prosecution and defence. I will refer to each party’s position when addressing each issue.
ADMISSIBILITY OF CERTIFICATE ISSUED UNDER SECTION 84 RSA
The prosecution submit that a certificate issued under s 84(1) of the RSA allows a court to rely on such a certificate as proof of a relevant prior matter.
In determining whether the Certificate attesting to Mr Brasse’s prior conviction could be tendered as evidence in the current proceedings, s 90(4) of the RSA makes it clear that such a document may not be tendered in evidence without the consent of the accused. Mr Brasse does not provide such consent and therefore the documents are not able to be tendered. The onus then falls on the prosecution to prove the conviction in another manner.
In written submissions filed with the Court dated 11 November 2022, the prosecution concede that the Certificate cannot be tendered and relied upon as proof of a prior conviction pursuant to s 90(4) of the RSA, however ‘…the prosecution relies upon the provisions in the CPA [Criminal Procedure Act 2009] for the purposes of this hearing.’ In essence, the prosecution argue that the Court can rely on the Certificate as a ‘criminal record’ under s 77(2A) of the Criminal Procedure Act 2009 (CPA).
Section 77 of the CPA sets out what particulars must be contained in a criminal record. I note, in particular, s 77(2A)(c) stated that a criminal record must contain, in relation to each infringement conviction, the amount specified in the notice as the penalty for the infringement (emphasis added).
The prosecutor argues that the structure of s 77 is consistent with subsection (2A) being a directory provision, rather than a mandatory provision, despite subsection (2A) requiring infringement convictions to include the penalty. The prosecutor submitted the provision ought to be construed in a manner whereby the failure of the infringement conviction to include the quantum of the fine does not invalidate the infringement conviction but allows the accused to raise the issue.
The prosecution sought to illustrate through an analysis of subsection (3) that the absence of a particular expression from subsection (2A) demonstrates the legislature’s intention that merely non-complying with every provision of the subsection would not result in invalidity.
The prosecution, at paragraph 17 of their submissions, argue that in cases where one provision of subsection (2A) is not complied with, such as this case, the most appropriate construction is that the action is not invalid despite it being contrary to law. Rather, they submit that in such circumstances it would allow the accused to take other action such as requiring the prosecution to provide evidence of the amount of the penalty or not admitting the infringement conviction and requiring it to be proved.
As the prosecution has provided a copy of the relevant infringement notice (front page of the infringement notice only) to the accused which sets out the infringement penalty, the prosecution submits that the accused’s criminal record does include an infringement conviction for failing an oral fluid test.
The defence submit that for the prosecution to allege that
…s77(2A) is merely a guideline provision, and that a section 84 certificate can still be submitted irrespective of non-compliance with this section would be entirely nonsensical and not in keeping with the purpose, wording or application of the legislation.[1]
[1]Defence submissions dated 10th October 2022, [10], page 2.
I have had regard to the relevant legislation being the RSA, the CPA and the Road Safety (General) Regulations 2009 (RSA Regulations).
I do not intend to set out verbatim the relevant sections of the legislation however, I note that ss 84 and 90 of the RSA are to be read in conjunction with regs 8 and 79 of the RSA Regulations.
I have also had regard to the unreported decision of Victoria Police v Kerrison (Kerrison) (Unreported, Magistrates Court of Victoria at Latrobe Valley, Magistrate Hayes, 11th of February 2016). Her Honour made the following findings:
6. It is a clear and consistent requirement of both the CPA and the RSA that a document purporting to be a prior conviction or infringement conviction can only be tendered if it complies with the requirement that it records the penalty imposed.
….
10. Secondly, the absence in the s84 Certificate of the penalty, namely the fine imposed, means that it does not comply with section 77(2A) of the CPA nor does it comply with the intent of section 90 of the RSA, or Rule 79 of the Road Safety Regulations, in that it does not include the financial penalty.
In this case, the Certificate does not comply with s 77(2A)(c) of the CPA nor does it comply with reg 79(1)(b)(iii) of the RSA Regulations which each require specification or description of the penalty imposed. Therefore, the Certificate does not comply with legislation, is deficient and unable to be relied upon by the prosecution in this case.
PRODUCTION OF INFRINGEMENT NOTICE SUFFICIENT TO PROVE PRIOR CONVICTION
Having ruled that the Certificate is not admissible, I turn to the prosecution argument that in this case the Court ought to receive a copy of the infringement notice as evidence of the prior conviction.
Infringement notices issued by Victoria Police are issued from a triplicate book with a copy (brown copy) being filed with the Traffic Camera Office (TCO), a copy issued to the accused (red copy) and a copy which remains in the triplicate book (green copy). In this case, the prosecution has produced a copy of the infringement notice filed with the TCO. This is the only page the prosecution tendered, and it does not contain all the prescribed additional details required under reg 75 of the RSA Regulations.
It is noted that the Road Safety (General) Regulations 2009 were revoked with the passing of the Road Safety (General) Regulations 2019 which came into operation on the 27th of September 2019. Applying the law at the time the infringement notice was issued being the Road Safety (General) Regulations 2009, reg 75 prescribed the required detail as being:
75 Prescribed details of traffic infringement notice
(1) For the purposes of section 88(2)(c) of the Act, the additional prescribed details that must be contained in a traffic infringement notice are—
…
(d) if the traffic infringement notice relates to an alleged drug-driving infringement, that—
(i) it is issued in respect of a drug-driving infringement; and
(ii) unless a notice of objection is received at the address specified in the notice within 28 days after the date of the notice, the notice will take effect as a conviction and will result in suspension of the licence or permit of the person on whom it is served; and
….
(f) if the notice is issued in respect of a drink-driving infringement, drug-driving infringement or an excessive speed infringement under section 89A of the Act, the address of the person to whom a notice of objection is to be sent.
I note that, in this case, the prior matter sought to be admitted by the prosecution is not a prior conviction proven in court but rather an infringement conviction. Hence, s 178 of the Evidence Act 2008 does not apply in this case as the infringement penalty did not result from court proceedings. The prosecution submits that the infringement notice produced to the Court and the accused complies with the requirements under ss 77(2A) and 77(3). The prosecution at paragraph 22 of their submissions (first submissions filed, undated) argues that despite the infringement notice not explicitly stating the date that the infringement conviction will take effect, it implicitly provides this date (22 April 2018, being 28 days after the date of the notice) to a sensible person reading the notice as a whole.[2]
[2]DPP v Korybutiak [2004] VSCA 29 (Korybutiak).
In addition, the prosecution argues that although the mere issue of an infringement notice would not constitute a conviction, the prosecution relies on a statement of Glenn Waterworth, unsworn member of Victoria Police, Information Management Unit at the Road Policing Enforcement Division (RPED). Mr Waterworth, in his statement, gives evidence that the infringement notice which the prosecution say was issued to the accused was posted out on the 6th of April 2018 and paid in full by credit card on the 24th of April 2018. A receipt proving proof of payment was not able to be produced as it was requested more than 12 months after payment. The witness confirmed the details as to the notice’s issue date and payment were sourced from information from the RPED infringement databases and the Victorian Infringement and Enforcement Warrants System (VIEW). The prosecution submits that the Court should accept that the date the infringement notice takes effect is contained within the notice and that this Court ought to accept the infringement notice that sets out the infringement conviction as evidence of the accused’s criminal record.
Further, the prosecution sought to rely on the Affidavit of Senior Constable Wendy Micheaux, Victoria Police, dated 17th of June 2022. In this Affidavit, S/C Micheaux states that the accused failed an oral fluid test administered by her on the 20th of December 2017 and that because of information received from the Victorian Institute of Forensic Medicine, an infringement was issued to the accused on the 24th of March 2018 with a penalty amount of $476 and a licence suspension for a period of three months beginning on the 22nd of April 2018.
On behalf of Mr Brasse, it was submitted that the infringement notice sought to be relied upon by the prosecution is invalid and cannot take effect as a conviction as it fails to provide information about a notice of objection, or the address of the person to whom the notice of objection was to be sent. Defence referred to the decision in Kerrison’s case and the interpretation by her Honour of s 77(2A) of the CPA and the Explanatory Memorandum of the amending bill to find that not all infringement notices result in a deemed conviction. It was put on behalf of Mr Brasse that an infringement notice will not be valid and able to come into effect as a conviction unless it is in the prescribed form as set out in s 88(2) of the RSA, s 13 of the Infringements Act 2006, and includes the prescribed particulars outlined in reg 75 of the RSA Regulations. The defence submitted that the infringement notice cannot have taken effect as a conviction as it did not comply with legislation.
It was submitted by the defence that, in the absence of a complete copy of the infringement notice, the prosecution would need to produce other evidence to support a conviction which in some circumstances may be a copy of the Toxicology Certificate. No such certificate was produced in this case.
Section 78(4) of the CPA provides that if a person does not admit to a previous conviction or infringement conviction the prosecution may lead evidence to prove the previous conviction or infringement conviction. The section is silent on how this can be done.
Section 88(2) of the RSA sets out that an infringement notice must be in the form required by s 13 of the Infringements Act 2006. That section says that an infringement notice must be in writing and contain the prescribed details. Regulation 14 of the Infringements Regulations 2016 then sets out what the prescribed details are for the purposes of s 13 of the Infringements Act 2006.
Regulations 75(1)(d)(i), (ii) and 75(f) (as detailed above) of the RSA Regulations set out what the additional prescribed details are for the purposes of s 88(2)(c) of the RSA. These details are in addition to the prescribed details that are required to be included in an infringement notice under reg 14 of the Infringements Regulations 2016.
The traffic infringement notice sought to be tendered in this matter does not contain an overleaf. There is no mention on the infringement notice of a notice of objection, or that unless a notice of objection is received within 28 days, the notice will take the effect of a conviction. It also does not contain the address of the person to whom a notice of objection is to be sent.
The Court of Appeal in Korybutiak provides some guidance as to whether such a lack of information limits the admissibility of the traffic infringement notice into evidence. The Court of Appeal, in that case, overturned an earlier decision of the Supreme Court and the Magistrates’ Court where a traffic infringement notice was found invalid because it did not contain the address of the person to whom the notice of objection was to be sent.
The Court of Appeal held that the:
… reverse side of the infringement notice makes it fairly clear that the recipient has a choice of having the matter dealt with by a court and that the onus is on him or her to deliver the notice of objection to Civic Compliance Victoria within the period stated, there is no express indication on that page what is the address to which the notice of objection is to be sent.[3]
[3][2004] VSCA 29, [7].
It was found that a sensible reading of the whole of the notice in question met the legislative requirements and their underlying purpose.
In my view, however, the traffic infringement notice in Korybutiak is different to that in the present matter. In Korybutiak, the reverse side of the infringement notice contained a notice of objection and even went as far as to provide that the notice of objection should be delivered to Civic Compliance Victoria within the period stated. The omission in respect of the traffic infringement notice in Korybutiak was that the address of the person to whom a notice of objection was to be sent was missing.
In the present matter, the reverse side of the traffic infringement notice is not available at all. The traffic infringement notice sought to be tendered and relied upon by the prosecution fails to provide any information about a notice of objection or the address of the person to whom the notice of objection is to be sent.
The prosecution submitted that there is no evidence that the infringement notice served on the accused did not comply with the legislation as it has not been produced by the accused. In addition, the prosecutor submitted the Evidence Act 2008 should be applied and the infringement notice issued to the accused is an ‘unavailable document’ and therefore the notice should be accepted into evidence as a copy of the infringement notice that was served on the accused pursuant to s 48(4)(a) of the Evidence Act 2008. It is not for the accused to satisfy the Court that the infringement notice did not comply with the legislation, it is not a reverse onus situation. The prosecution seeks to tender the infringement notice as proof of the conviction and therefore the onus falls on them to satisfy the Court as to its admissibility. It is not, in my view, permissible to allow a document that is not a complete copy of the original to be tendered into evidence as an ‘unavailable document’.
It is not the number of pages required that is relevant, but that the traffic infringement notice, does not comply with the RSA, RSA Regulations, Infringements Act 2006, and the Infringements Regulations 2016 as to the provision of required information. It should contain sufficient information such that a sensible reading of the whole of the notice meets the legislative requirements and their purpose. Given the omission of the entire reverse side of the traffic infringement notice this Court is not able to determine whether the traffic infringement notice has met the legislative requirements.
The prosecution has argued that the Court should infer that the requirements are met, and that the accused would have been provided, as a matter of procedure, the mandatory information when served with the traffic infringement notice. This proposition is put on the basis that Victoria Police use triplicate books for the issuing of infringements and that Mr Brasse would have received the information as required.
I pause at this point to draw attention to an inconsistency in the evidence submitted by the prosecution which they sought to rely upon. This inconsistency became apparent when perusing the material. In the statement by Mr Waterworth at page 2, paragraph three, he states, ‘the infringement notice had been posted out on 6th April 2018 and had been paid in full on 24th April 2018’. Two paragraphs down he states that, ‘the same day I then sent an email to the Financial Transactions section at Civica requesting a receipt of payment of TIN 375 273 732 which, according to VIEW was paid by credit card on 6th April 2018’. Based on this evidence, it is unclear whether the infringement notice was paid in full by Mr Brasse on the day the notice was posted out, or on the second version, two days after the licence suspension started on the 22nd of April 2018. These inconsistencies are significant in circumstances where this Court is being asked to make a presumption that the accused was issued with a complete infringement notice, in the absence of the production of the notice. These inaccuracies cause me hesitation given the prosecution must establish a matter of aggravation beyond reasonable doubt.
This Court is being asked to infer and place a great deal of weight on the presumption that the accused would have been issued with the necessary information as a matter of practice. This presumption may meet the test of ‘common sense’ however it does not meet the strict legislative requirements that a court is required to apply. In the present case, the prosecution is unable to prove that the traffic infringement notice meets these requirements and therefore cannot be admitted into evidence as to proof of a prior conviction.
Lastly, it should be noted that in Korybutiak, the respondent did not lodge an objection and paid the fine of $430, similar circumstances as to this matter. The payment of the fine was not a factor considered in either the Supreme Court or Court of Appeal judgement in relation to the admissibility of the traffic infringement notice. In my view, this is instructive for the present purposes where the accused also paid $476 for the 2018 offence upon receiving the traffic infringement notice. Payment of the fine does not, of itself, prevent an accused from lodging a notice of objection to the infringement notice. The payment of the fine itself does not trigger an immediate loss of licence as such suspension/disqualification will only become effective 28 days after the issue of the infringement notice. Therefore, payment of a fine cannot be relied upon to draw an inference as to the validity of the traffic infringement notice.
The Toxicology Certificate issued in relation to the offence alleged to have been committed by the accused on the 20th of December 2017 was not produced. It was referred to by each party in their submissions. Given it was not produced it can have no bearing on this decision.
Having found that both the Certificate issued pursuant to s 84 of the RSA and the traffic infringement notice sought to be relied upon by the prosecution are not admissible I am not satisfied beyond reasonable doubt that the accused has a relevant prior conviction within the past ten years of the charge before the Court.
I will now proceed to sentence Mr Brasse.