Victoria Police v Santucci

IN THE MAGISTRATES’ COURT OF VICTORIA

AT SUNSHINE

CRIMINAL DIVISION

Case No. F13290088

PLUMMER, SHANE	Informant
v
SANTUCCI, ELIZABETH	Accused

MAGISTRATE:	MAGISTRATE MACCALLUM
WHERE HELD:	SUNSHINE MAGISTRATES’ COURT
DATES OF HEARING:	21 DECEMBER 2016; 31 MAY 2017
DATE OF DECISION:	16 OCTOBER 2017
CASE MAY BE CITED AS:	VICTORIA POLICE V SANTUCCI
MEDIUM NEUTRAL CITATION:	[2017] VMC017

REASONS FOR DECISION

APPEARANCES:	Counsel	Solicitors
For the Prosecution	SENIOR CONSTABLE B.CLAPHAM	SUNSHINE PROSECUTIONS
For the Accused	WALSH-BUCKLEY, W.	N/A

HER HONOUR:

THE CHARGES

The Accused, Elizabeth Santucci, is charged with the following offences.
Charge 1 is that the Accused at Melton on 5 August 2015 having been required to undergo a preliminary breath test (‘PBT’) in accordance with section 53(1) of the Road Safety Act 1986 (`the Act’) did refuse to undergo such test within three hours of being the driver of a motor vehicle required to stop at a preliminary breath testing station under section 54(3) of the Act, contrary to section 49(1)(c) of the Act.
Charge 2 is that the Accused at Melton on 5 August 2015 being the driver of a motor vehicle on a highway namely High Street when requested by a member of the police force to produce her licence for inspection and state her name and address did fail to produce for inspection her licence, contrary to section 59(2) of the Act.
Charge 3 is that the Accused at Melton on 5 August 2015 being the driver of a motor vehicle on a highway namely High Street when requested by a member of the police force to produce her licence for inspection and state her name and address did fail to state her name and address, contrary to section 59(2) of the Act.
The Prosecution has informed the Court that charges 2 and 3 are alternatives.
The Accused has pled not guilty to the charges.

THE EVIDENCE

The Prosecution called four witnesses:
1. The Prosecution relied on the following exhibits:
2. The Accused elected to give evidence and was cross-examined. She relied on the following exhibits:
3. The Accused put her good character in issue, by informing the Court that she has no prior convictions. Good character evidence is potentially relevant for two purposes. First, it may make it more likely that the Accused’s evidence is credible. Second, it may make it less likely that the Accused committed the offence. The probative value of good character evidence will vary according to the facts of each case, and may also be affected by the strength of other evidence supporting the charge.[1] I have taken into account the Accused’s good character in making this decision, but in view of the strength of the Prosecution evidence before the Court supporting the charges, her prior good character has limited probative value.

ASSESSMENT OF THE EVIDENCE

I have assessed all of the evidence before the Court, the relevant legislative provisions, the case law relied on by the parties and referred to in this decision, as well as the legal submissions of the parties. I make the following findings.

CHARGE 1 – SECTION 49(1)(c) – ISSUES FOR DETERMINATION

12.These crimes have several elements which the Prosecution must prove beyond reasonable doubt. If the Prosecution do not satisfy the Court that each of the elements is proven beyond reasonable doubt, the charges will be dismissed.
13.To prove the contraventions of section 49(1)(c) of the Act that are alleged, the Prosecution must establish that:
a.the accused is the alleged offender;
b.the accused was the driver or a motor vehicle;
c.the member of the police force had power to request a PBT pursuant to s 53(1);
d.a request was made of the Accused to undergo a PBT at the scene;
e.the request was made within three hours of the accused driving; and
f.the Accused refused to comply with that requirement.

14.Ms Santucci gave evidence that she was driving her vehicle home after a community function close to midnight on 5 August 2015, and that she was signalled by police to drive into the booze bus area on High Street, Melton.[2] She conceded that Constable Plummer asked her to do a PBT.[3] The Defence did not dispute the Prosecution evidence in relation to elements (a)-(e) above, nor were any legal issues raised in relation to these elements. I therefore find elements (a) – (e) of the charge proven beyond reasonable doubt.
[2] Transcript 31 May 2017, pages 28-29.
[3] Ibid, page 29, lines 22-23.

Issue 1 – Did the Accused voluntarily and consciously refuse the PBT?

The factual issue for determination is whether or not the Accused’s statement to the Informant that she wanted to hold the PBT device herself amounts to a refusal within the meaning of section 49(1)(c) of the Act.[4]

[4] Transcript of hearing 21 December 2016, page 6, lines 2-9.

The Prosecution case in relation to charge one is that the Accused made a voluntary and conscious decision not to comply with the request of the Informant to undergo a PBT and thereby committed an offence against section 49(1)(c) of the Act.
The Defence submits that the Prosecution has failed to establish beyond reasonable doubt that the Accused had the requisite mens rea, as at no time was the Accused refusing to comply with the PBT requirement, she “simply wanted to hold [the device] in the police officer’s presence while she put the mouthpiece into her mouth and exhaled because it was more comfortable for her to do it that way.”[5] It was submitted in the alternative that the Accused was “at the very least…confused as to how the test is to be lawfully complied with”[6] and that the Prosecution had not proven beyond reasonable doubt that sufficient information was given to her to know what was specifically required, and that she did not consciously and voluntarily refuse.[7]

[5] Defence submissions, 27 December 2016 at page 2.

[6] Defence submissions, 27 December 2016 at page 2, citing DPP v Serbest [2012] VSC 35; Sanzaro v County Court [2004] VSC 30 per Nettle J at para 73; Ball v Chargelegue [2016] VSC 294; DPP v Vaa [2004] VSC 444, para 10..

[7] Defence submissions 27 December 2017, page 2.

Issue 2 – Does section 53 of the Act require that only a police officer may hold a PBT device during a PBT test?

The Accused has raised for determination a question about the legal meaning of section 53 of the Act. It is submitted that section 53 of the Act does not state that only a police officer may hold the PBT device while the member of the public blows into it, and that the phrase the “to the satisfaction of the police officer” in section 53(3) refers to the requirement of “exhaling continuously”, and not whether the motorist or police may hold the PBT device.[8]

[8] Defence submissions 27 December 2017, page 1.

The Prosecution submit that section 53 establishes the power of police to conduct a PBT and does not extend to police permitting a motorist to conduct a PBT on themselves.[9]

[9] Prosecution submissions 31 May 2017, page 10.

Issue 3 – Was it unreasonable for the Informant to refuse to accede to the Accused’s request that she hold the PBT device?

Alternatively, the Defence submit that it was unreasonable for the Informant to refuse to accede to the Accused’s request that she hold the device.[10] It is submitted that the unreasonableness arises because of the discomfort of having another person physically insert the device into the mouth of the person undergoing the test.[11] It is further submitted that the failure by Constable Plummer to allow the Accused to hold onto to the PBT device, and the failure by Constable Plummer when administering the PBT to consider the effect of the Charter of Human Rights and Responsibilities Act 2006 (`the Charter’), constitutes a breach of sections 10, 22, and 38 of the Charter.

[10] Defence submissions 27 December 2016, page 1.

[11] Defence submissions 27 December 2016, page 1.

The Prosecution submit that a PBT is a routine, legislated test that is not unreasonable in any way when requested by police in accordance with the Act. The Prosecution submit that the administration of the PBT does not engage the above provisions of the Charter, or alternatively that if the Court finds that is engaged, that the right has been reasonably limited pursuant to section 7(2) of the Charter.

ANALYSIS

In this decision, I will provide a ruling on issues two and three first, and then I will turn to issue one.

Issue 2

23.Does section 53 of the Act require that only a police officer may hold a PBT device during a PBT? For the reasons set out below, the answer to this question is “yes”.
24.Section 49(1)(c) the Act provides:
“49 Offences involving alcohol or other drugs
(1)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;”

25.Section 49(1A) provides that a person may be convicted or found guilty of an offence under subsection (1)(c), even if a prescribed device was not presented to the person at the time of the making of the requirement.
26.Section 49(3) provides that a person who is guilty of an offence under subsection (1)(c) is liable—
“(a) in the case of a first offence, to a fine of not more than 12 penalty units; and
(b)in the case of a second offence, to a fine of not more than 120 penalty units or to imprisonment for a term of not more than 12 months; and
(c)in the case of any other subsequent offence, to a fine of not more than 180 penalty units or to imprisonment for a term of not more than 18 months.”

27.Section 50(1B) of the Act provides:
“On convicting a person, or finding a person guilty, of an offence under section 49(1)(a), (c), (d) or (e) the court must, if the offender holds a driver licence or learner permit, cancel that licence or permit and, whether or not the offender holds a driver licence or learner permit, disqualify the offender from obtaining one for such time as the court thinks fit, not being less than—
(a) in the case of a first offence, 2 years; and
(b) in the case of a subsequent offence, 4 years.”

28.Section 53 of the Act sets out the powers of police to require a person to undergo a PBT.
“53 Preliminary breath tests
(1)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; or
(b)the driver of a motor vehicle that has been required to stop, and remain stopped at a preliminary testing station under section 54(3); or
(c)any person who he or she believes on reasonable grounds has within the last 3 preceding hours driven or been in charge of a motor vehicle when it was involved in an accident; or
(d)any person who he or she believes on reasonable grounds was, within the last 3 preceding hours, an occupant of a motor vehicle when it was involved in an accident, if it has not been established to the satisfaction of the police officer which of the occupants was driving or in charge of the motor vehicle when it was involved in the accident—

to undergo a preliminary breath test by a prescribed device.
(2)…..

(3)A person required to undergo a preliminary breath test must do so by exhaling continuously into the device to the satisfaction of the police officer or the officer of the Corporation or of the Department.

(4)A person is not obliged to undergo a preliminary breath test if more than 3 hours have passed since the person last drove, was an occupant of or was in charge of a motor vehicle.”

29.Section 54 of the Act sets out police powers to set up preliminary testing stations.
“54 Preliminary testing stations
(1)A police officer may set up a preliminary testing station on or in the vicinity of any highway.
(2)A preliminary testing station—
(a)consists of such facilities as are necessary to enable the making of preliminary breath tests or preliminary oral fluid tests; and
(b)must be identified by suitable signs, lights or other devices.

(3)A police officer who is on duty and wearing uniform at a preliminary testing station may request or signal any person driving a motor vehicle to stop the motor vehicle and remain stopped until a police officer on duty at the station indicates that the driver may proceed.
(4)Police officers who are on duty at a preliminary testing station must ensure that no person is detained there any longer than is necessary.”

30.Together these provisions stipulate:

Any police officer may conduct a PBT or set up a PBT testing station (sections 53(1) and 54(1));
An officer conducting a PBT testing station must be on duty and in uniform (section 54(3)); and
A person required to undergo a PBT must exhale continuously into the instrument to the satisfaction of the police officer operating it (section 53(3)).

Neither of the parties referred the Court to any case law on the issue of whether the PBT device may only be held during testing by a police officer, and I have not been able to find any.
Following the authority of the High Court of Australia in Project Blue Sky Inc v Australian Broadcasting Authority[12], the Court must discern the legislative purpose of the statutory provisions. The correct approach to statutory construction is to construe legislation in a manner that is consistent with the language and the purpose of all of the provisions in the statute, and which presumes that provisions are intended to give rise to harmonious goals.[13]

[12] (1998) 194 CLR 355.

[13] Ibid, paragraphs 69-71.

The first step is to begin with the text of the provision by focussing on the plain meaning of the words. Second, those words should be read in their context, which is, `by reference to the language of the instrument viewed as a whole’.[14] Third, meaning must be attributed to all words.[15] Focussing on the language of sections 53(1), it is clear that only police are empowered to administer the PBT device. The requirement that a person undergoes the PBT at the request of police, necessarily implies that it is only the police officer who may administer the test. This interpretation is supported by section 53(3) which provides that the person must exhale continuously into the device to the satisfaction of the police officer.

[14] Ibid, paragraph 69.

[15] Ibid, paragraph 71.

Second, this textual interpretation is supported by the purposes of the Act. A relevant purpose of the Act is to provide for “safe, efficient and equitable road use”.[16] As stated by the Court of Appeal in DPP v Piscopo, “[t]he policy of Part 5 is to deal with a major social problem: the presence of alcohol and drug-affected motorists on the road, and the consequences of such presence. See s 47 of the Act.”[17] Section 47 of the Act provides:

[16] Section 1(a).

[17] [2011] VSCA 275, paragraph 38, citing, note 4, “DPP v Foster [1999] 2 VR 643, 652 [29] (Winneke P, with whom Batt JA agreed ‘in all respects’ and with whom Ormiston JA agreed, with one reservation)”.

“The purposes of this Part are to—
(a)reduce the number of motor vehicle collisions of which alcohol or other drugs are a cause; and
(b)reduce the number of drivers whose driving is impaired by alcohol or other drugs; and
(c)provide a simple and effective means of establishing that there is present in the blood or breath of a driver more than the legal limit of alcohol; and
(d)provide a simple and effective means of establishing the presence of a drug in the blood, urine or oral fluid of a driver.”

I am fortified in my conclusion by section 55(3) of the Act which provides that a “breath analysing instrument must be operated by a person authorised to do so by the Chief Commissioner of Police.” Although this provision applies to the operation of the evidentiary breath test, it is consistent with the above interpretation of section 53.
If I were to conclude otherwise, it would mean that members of the general public could dictate terms to police upon the making of the PBT request, which could lead to the tampering of test results, or theft of or damage to PBT devices. This would undermine public safety, which is a central purpose of the Act. All police witnesses gave evidence that they are specifically trained not to let the person doing the PBT hold the device, as the reading might be tampered with or the device damaged or stolen. Constable Plummer gave evidence that in police training, the cadets are instructed in how to hold the device, and told not to let people hold it to avoid tampering with test results or potentially damaging to the PBT device by throwing or driving off with it. He said that people may grab onto the hand of the police officer or the device, but the device must stay in the officer’s hand with a strap around the wrist.[18] Constable Oake gave evidence that he heard Constable Plummer explain to the Accused that she was unable to hold device as it was tethered to his wrist to avoid someone snatching it, or driving away with it, and that is how they were trained.[19] Constable Oake said in cross-examination that there was not an option for the Accused to hold the device, it is tethered to the officer’s hand and they are told in training not to remove it. Sergeant Kelso said that Constable Plummer was not permitted to let the Accused hold the device. That instruction is given to officers administering the PBT device by the senior police members operating the booze buses.[20] Mr Edwards stated it is a legislative requirement that police conduct the test. I have no reason to doubt the officers’ evidence about their training about the use of the PBT device.

[18] Transcript 21 December 2016, page 16-17; 20; 22.

[19] Transcript, 21 December 2016, page 58.

[20] Transcript, 31 May 2017, page 24.

I am for all of these reasons satisfied that the legal meaning of section 53 is that only police may administer the PBT, and that it may be inferred from the language of the relevant legislative provisions, the purposes of the Act and the evidence of the police witnesses that this extends to not letting a member of the public hold the PBT device while the test is being administered. The Defence submission is dismissed.

Issue 3

Was it unreasonable for the Informant to refuse to accede to the Accused’s request that she hold the device? Upon a review of the legislative provisions, case law and the provisions of the Charter relied on by Defence, I have concluded that the answer to this question is “no”. My reasons are as follows.

The requirement of reasonableness

39.The Accused’s submissions are set out in paragraph 17 above. In summary, it was submitted that she was not refusing, she just wanted to hold the device as it would have been more “comfortable” her.[21]
[21] Defence written submissions, 27 December 2016, paragraph 2.1.
40.The Prosecution submitted, citing Hrysikos v Mansfield,[22] that the requirement of reasonableness is to be objectively determined. It submits that in all of the circumstances viewed objectively, the Accused had the required mens rea as she knew what was required of her, the consequences of failing to undergo the PBT were explained to her, and she continued to refuse to undergo the PBT.[23]

[22] (2002) 5 VR 485, paragraph 3.
[23] Prosecution submissions, 31 May 2017, page 13.
41.The superior courts have recognised that owing to the significant consequences of a refusal to comply with a request for a PBT, section 53 of the Act is subject to a requirement of reasonableness.[24] Thus, refusal of a “plainly unreasonable requirement” under section 53 (or section 55) would not constitute an offence under section 49(1)(c).[25] Redlich JA in Mastwyk v DPP explains that the rationale for this conclusion rests upon the premise that Parliament would not have intended a restriction on individual liberty that goes beyond what is necessary to meet the purposes of the section and the Act. [26]
[24] Hrysikos v Mansfield [2002] VSCA 175, paragraph 3, approved in Mastwyk v DPP (2010) 27 VR 92, per Nettle JA at paragraphs 39-41 and Redlich JA, paragraphs, 60-65.
[25] Mastwyk v DPP (2010) 27 VR 92, per Redlich JA, paragraphs 66, 75.
[26] DPP (2010) 27 VR 92, paragraph 75.
42.In DPP v Webb[27], Ormiston JA held in relation to section 53 of the Act that the duty of a driver required to undergo a PBT is limited to the obligation to undergo the test. His Honour stated that:
[27] [1993] 2 VR 403, 412, cited in Mastwyk v DPP (2010) 27 VR 92, per Nettle JA at paragraph 42.
“the power under s 53 of the Act to require a driver to undergo a preliminary breath test is similarly limited to what is reasonable. His Honour reasoned that, absent a clear statutory indication to the contrary, the restrictions on the liberty of the subject imposed by s 53 were to be construed as limited to the minimum necessary to enable the test to be carried out and, consequently, that a requirement to travel any significant distance in order to undertake the test would be beyond power and unreasonable.” [footnotes omitted].
43.Both parties relied on the decision Hrysikos v Mansfield[28] in which Ormiston J stated in relation to section 55 of the Act:
“The word “refuses” must be taken to carry with it an element of mental intent, albeit judged objectively for the purposes of an offence such as the present. The simplest way of proving a refusal would be if the subject driver said “I refuse etc.” or some equivalent words, with or without expletives, connoting an unwillingness to comply. Alternatively, the prosecution might ask a court to infer that a driver has refused to comply by proving acts from which that inference may be drawn, i.e. by proof of the circumstantial case from which the only inference is that the driver is refusing to comply, albeit he or she is not expressly saying so. A driver who immediately turns and runs away, a driver who jumps the back fence of a police station, a driver who forcibly pushes open the door of a mobile testing station and runs off without explanation would each be persons against whom the necessary inference could be drawn. It would not be the performance of an act exhibiting “consciousness of guilt” so much as an act exhibiting a conscious unwillingness, and thus a refusal, to comply with the stated requirements.” [29]
44.Turning to the facts of this case, the Accused has submitted that the insertion by one person of the hand held device into the mouth of another person is “unreasonable” as defined in DPP v Webb.[30] The unreasonableness of the requirement is said to arise:
“because the reasonable thing to do is to let the person hold it themselves, affix their lips around the mouthpiece at their own pace and convenience in a position comfortable to them with the device steadied by their own hands, not the hands of another, and then blow continuously until the sufficient sample is received. There is no evidence that the PBT device itself was brittle and liable to break if dropped or thrown by an accused”.[31]
45.There is nothing objectively unreasonable about a request made by a police officer that a person undergo a PBT under section 53. As stated by the Prosecution, this is a routine, legislated test that all police members are empowered to require. The requirement is mandatory with significant consequences for a refusal because of the important public safety policy underlying the legislation. As I have said earlier, I have no reason to doubt the consistent evidence of the police witnesses about the need for the PBT to be administered in accordance with their training to ensure that the general safety of the public is not undermined.
46.It is conceded by the Accused that Constable Plummer asked her to undergo the PBT. There is no evidence before the Court that Constable Plummer requested that the PBT be undertaken in a manner contrary to the Act, or in a manner that was degrading to the Accused. The fact that the Accused personally felt uncomfortable with the police officer administering the test is not relevant. Were the Court to conclude otherwise, the general public would be at liberty to dictate to the police the subjective terms upon which they find it more comfortable to perform the PBT, with the effect of undermining public safety.
47.The Accused draws an analogy with the decision in Hrysikos. It was submitted that just as the female motorist in that case wanted to go outside and have a cigarette, where there was no evidence that her smoking would affect the test, in this case there was no evidence that the Accused’s holding the PBT device would affect the test.[32] I disagree. First, there is uncontroverted evidence before the Court of four officers that to allow the Accused to hold the PBT device was contrary to their training, could interfere with the reading, or result in the device being damaged or stolen. Second, the factual and legal issues for determination in Hrysikos’ case were very different to the case at hand. Hrysikos’ case involved consideration of where the accused, by stepping a few feet outside a booze bus to smoke a cigarette, had failed to comply with the requirement to remain at the booze bus. This decision involved complex considerations of the difference between the requirement to remain and being under arrest. Ultimately the Court of Appeal held that there was insufficient evidence upon which a magistrate could have found that there was a refusal to comply with the requirement given to the respondent.[33] As I have set out below, there is an abundance of evidence before this Court that the Accused repeatedly refused to take the PBT.

The Charter

[28] (2002) 5 VR 485, paragraph 3.

[29] Although this case concerned an alleged contravention of section 49(1)(e) of the Act, the comments of the Court of Appeal as to the legal meaning of the word `refuse’ are applicable to section 49(1)(c).

[30] [1993] 2 VR 403 at 418.

[31] Defence submissions, 27 December 2016, paragraph 2.1.

[32] Defence further submissions, dated 28 June 2017, page 1.

[33] Hrysikos v Mansfield, paragraph 12.

The Accused submits that the failure by Victoria Police to accede to the Accused’s request that she hold the PBT device breached her rights under sections 10, 22 and 38 of the Charter.
Section 10 of the Charter provides:

“10 Protection from torture and cruel, inhuman or degrading treatment
A person must not be—
(a)subjected to torture; or
(b)treated or punished in a cruel, inhuman or degrading way; or
(c)subjected to medical or scientific experimentation or treatment without his or her full, free and informed consent.”

Section 22 of the Charter provides:

“22 Humane treatment when deprived of liberty
(1)All persons deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person.
(2)An accused person who is detained or a person detained without charge must be segregated from persons who have been convicted of offences, except where reasonably necessary.
(3)An accused person who is detained or a person detained without charge must be treated in a way that is appropriate for a person who has not been convicted.”

Section 38 of the Charter provides:

“38 Conduct of public authorities
(1)Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.
(2)Subsection (1) does not apply if, as a result of a statutory provision or a provision made by or under an Act of the Commonwealth or otherwise under law, the public authority could not reasonably have acted differently or made a different decision.
Example
Where the public authority is acting to give effect to a statutory provision that is incompatible with a human right.
(3)This section does not apply to an act or decision of a private nature.
(4)Subsection (1) does not require a public authority to act in a way, or make a decision, that has the effect of impeding or preventing a religious body (including itself in the case of a public authority that is a religious body) from acting in conformity with the religious doctrines, beliefs or principles in accordance with which the religious body operates.
(5)In this section religious body means—
(a)a body established for a religious purpose; or

(b) an entity that establishes, or directs, controls or administers, an educational or other charitable entity that is intended to be, and is, conducted in accordance with religious doctrines, beliefs or principles.”

The Accused submits:

“[f]or police to hold the PBT and insert its mouthpiece into the mouth cavity of another without letting the person hold it, without express parliamentary sanction of that, is degrading, undignified and per s 38 police (a public authority) are deemed to have acted unlawfully in failing to consider those rights prior to the decision of the police officer to hold the PBT and insert the mouthpiece into her mouth.”[34]
[34] Accused’s submissions dated 27 December 2016, paragraph 2.2.

The Accused further submits that:

“As this was unlawful, and lawfulness of requirement is an element of the offence. Unless the prosecution can prove the element of “lawfulness” beyond reasonable doubt, the charge must be dismissed as it is no offence to refuse an unlawful requirement. Bell J in DPP v Kaba [2014] VSC 52 states at [481-2] “Any violation of a Charter right should be regarded as serious.”[35]
[35] Ibid.

The Prosecution refute these submissions on the basis that there is no evidence before the Court that there is a breach of the Charter.[36] I agree. There was lengthy cross-examination by Counsel for the Accused of police witnesses that focussed on the size of the PBT device, with the suggestion that the manner of insertion of the PBT device by police into the mouth of the person being tested was somehow sexual in nature, and by its nature, inherently degrading to members of the public. The Accused gave evidence that she felt uncomfortable and that she preferred to hold the device herself.[37] She said further that she felt uncomfortable “speaking to unknown men” about why she “wasn’t comfortable doing it that way.”[38]

[36] Prosecution submissions, 31 May 2017, pages 10-12.

[37] Transcript, 31 May 2017, page 30.

[38] Transcript, 31 May 2017, page 32.

There is no evidence before the Court whatsoever that the administering of the PBT device by police is generally cruel, degrading, undignified or inhuman in the manner suggested or engages the above Charter provisions. The fact that this Accused felt uncomfortable with the PBT device does not engage the above provisions. Constable Plummer clarified that the police officer holds the device, whilst the person places their mouth on it, it is not “shoved” into the mouth of the member of the public, as was being suggested.[39] Further, there is no evidence before the Court that the police witnesses in this case conducted themselves in a manner that engaged any of the above Charter provisions. The submission is dismissed.

Issue 1

[39] Transcript, 21 December 2016, page 31.

Issue one involves the consideration of two questions:

Did the Accused voluntarily and consciously refuse the PBT?
Did the police give the Accused sufficient information to understand what was specifically required, such that she knew it was an offence if she consciously and voluntarily refused the request?

Upon an assessment of all of the evidence before the Court, I am satisfied beyond reasonable doubt that Constable Plummer clearly explained what was required of the Accused and the consequences of refusal, and that the Accused consciously and voluntarily refused the request. My reasons are as follows.
Refusal is a question of fact.[40] Each case is to be determined on the facts to be inferred from all of the circumstances.

“Refusal is a matter to be inferred from the totality of the circumstances, and what is proscribed is not merely a refusal “to remain”, but a refusal to comply with the whole of the relevant requirement, being the requirement to remain at the designated place for the purpose of having a breath test conducted and a certificate furnished to her.”[41] [footnotes omitted].”
[40] Reddy v Ross [1973] VR 462; Hrysikos v Mansfield (2002) 5 VR 485.
[41] Hrysikos v Mansfield (2002) 5 VR 485. See also DPP v Skafidiotis [2013] VSC 258, paragraph 24.

A refusal may be constituted by words or conduct, or by the only inference that can be drawn from the totality of the circumstances.[42]

[42] Hrysikos v Mansfield (2002) 5 VR 485 per Ormiston J at paragraph 13.

A refusal may be constituted by the imposition of a condition upon compliance with the requirement.[43] The Prosecution relies on in DPP v Blango,[44] where it is stated:

“8. It would at least be open to a magistrate to find that a motorist who imposed a condition upon complying with the requirement to undergo a breath test had refused to comply for the purposes of s 49(1)(e). Such was the case in Beardsley v Hower,[3] where the driver said she would only undertake a breath test after she had spoken to a particular inspector of police. But a magistrate is not necessarily compelled to such a conclusion.[4] In Beardsley, Ashley J quoted with approval what was said by McInerney J in Reddy v Ross: [5]
As has been pointed out by the Court of Criminal Appeal in New South Wales in R v Honan [1971] NSWLR 697 … [at 702]:
“No precise form of words or actions is required to constitute a refusal. It is a question of fact to be inferred from all the circumstances, and in this context the remarks of Geoffrey Lane J in R v Clark (1969) 53 Cr App Rep 438 at 442; [1969] 2 All ER 1008 at 1010, dealing it is true with different words in an English Act of Parliament but one that was enacted in the same field, are pertinent. Plainly no particular formula of words is necessary from a defendant to constitute a refusal by him. It is the police, and not the defendants who are required by this legislation to adhere to formula. Any words, or indeed any actions, on the part of the defendant, which in the eyes of the jury make it clear that the defendant in all the circumstances of the particular case is declining the police officer’s proper invitation, amount to a refusal within the section.”

The question whether there has been a refusal is, therefore, always a question of fact to be spelt out from the circumstances. Having regard to the drastic nature of the consequences of a refusal, a magistrate, before convicting, must be satisfied that there has been a real refusal to undergo the test.[6]”
[43] Connellan et al, Road Safety Law In Victoria 2015, p.226, citing Bearsdley v Hower (1993) 19 MVR 15; DPP v Blango [2012] VSC 384.
[44] [2012] VSC 384, at paragraph 8.

The authorities establish that the Accused’s subjective state of mind in relation to offence with which he or she is charged is not relevant.[45]

The evidence of the police witnesses

[45] DPP v Serbest [2012] VSC 35, per Robson J, paragraph 38.

The evidence of the police witnesses was honest, highly consistent and reliable. The relevant portion of Constable Plummer’s evidence is set out below:

“SENIOR CONSTABLE CLAPHAM: And on this night when Ms Santucci pulled into the testing site, can you remember what you said to her, what was the way that you approached these people?---"Good evening, you're required to provide a preliminary breath test", yeah
What device were you using?---It was a lion alcolmeter SD-400.
So what did you say to Ms Santucci?---I said, "Would you please blow into this instrument."
What did she say?---First of all she pulled her head back and said, "No." I know she said - I said, "Are you refusing?" She said, "No, I'm not refusing. I'm just not going to do it unless I may hold it.
…..
SENIOR CONSTABLE CLAPHAM: What was her demeanour like when she said that?---Standoffish I suppose.
And what did you do in response to that?---I again stated that she was required to blow into the preliminary breath test device.
And then what was her response?---Again she refused and she said she knew her rights and she wasn't going to do it unless she held it.
So you say she refused, what did she say, what words did she say?---"I'm not going to blow into it unless I can hold it."
Did she elaborate any further?---She had said that in the past she'd held it before, she had been allowed to hold it once before.
What did you say?---I said that I would be holding it and that's how we do the breath test. We've had a wrist strap and it stays strapped around my wrist.
…..
SENIOR CONSTABLE CLAPHAM: Just tell me about rights, what did she say to you?---She just said she knows her rights.
Did she elaborate anything further?---No, just, "I know my rights. I don't have to."
Then what did she do?---I made another request for her to blow into the device and she stated that she wasn't going to and I informed her that it would be a possible two year loss of licence and a fine and she said she wasn't going to do it unless again she could hold it.
And then what happened?---I then asked her to produce her licence as she was in charge of a motor vehicle, she was required to and again she stated, "I know my rights,
I don't have to." I've then asked her to state her name and address, as required by law, because she's in charge of the motor vehicle.
Yes?---And again she said she knew her rights, she didn't have to.
And then what happened?---At that point Senior Constable - or Leading Senior Constable Kelso was there listening to the conversation and he directed Ms Santucci to get out of the car and placed her under arrest.
What happened next?---She then - we called for a van to come and transport Ms Santucci to Melton Police Station so we could try and ascertain her identity. At this point she then stated her name so we went onto the - or Senior Constable Edwards monitored the booze bus and checked on LEAP and was able to establish that in fact it was Ms Santucci, so she was then released.
When she was placed under arrest, where was she taken or where was she put?---She was just removed from the car and just moved off the road, just where we were parked and just near a tree, like I suppose it's not a traffic aisle but like a median strip.
………
SENIOR CONSTABLE CLAPHAM: How long was she under arrest for?
---It would have been less than ten minutes.
And then what's happened?---She's then gone back to her car which had been parked across the road by Constable Oake, which is customary we move the car off the line and so she was given her keys back. She went across the road to her car and looked to be on her laptop.
And then what's happened?---We were packing up the site at this stage so that was the end of the night. She was the last person to come through. So we were packing up and approximately 15 minutes later or so she's come across the road and said, "I'm willing to do it now."
And then what happened?---We stated that that wasn't a possibility because she had now been out of our sight so we were unaware if she has drank or - just she's out of our sight so we can't, we don't have reason to do it.

Then what happened?---She was informed that she would be - she would get a summons in the mail for refusing PBT and failing to state name and address and produce licence.
…..
SENIOR CONSTABLE CLAPHAM: Is it correct that Ms Santucci's vehicle is - what's the details of Ms Santucci's vehicle?---I'm not sure of the rego but it was a black Mazda sedan, I believe.
A black Mazda 3, registration USI 346?---That sounds correct.
I'll just take you back to when you initially first requested Ms Santucci to conduct a preliminary breath test, until she was placed under arrest. How long do you think that time would have been?---The conversation went back and forward a fair bit but it was probably - it seemed like forever, but it was probably ten minutes maybe. It went for quite a while. I gave her numerous chances to change her mind and blow into the device. [46]
[46] Transcript 21 December 2016, pages 13-18,

The evidence of Constable Plummer was corroborated by the other police witnesses who gave highly consistent evidence.
Constable Oake gave evidence that he heard Constable Plummer explain to the Accused that she was unable to hold the PBT device because it was attached to his wrist. She said she would only do the PBT if she could hold the device. He said that the conversation went “round and round”. The Accused said that she wanted to hold it and Constable Plummer said she could not. This happened five times. Then Constable Plummer asked the Accused if she was going to refuse the PBT. Constable Plummer then produced a white card and read from it. Constable Oake said this white card was given to them by the booze bus and it has the exact wording of the repercussions that will follow if a person does not accompany police back to the booze bus. The Accused then said that she knew her rights and was adamant. It was explained to her that it was not her right to refuse. Contable Oake described the demeanour of the Accused as quite argumentative. She interrupted Constable Plummer would not let him explain, talking over the top of him and speaking quite quickly. She was angry with Constable Plummer that he was refusing to let her hold the PBT device.
Then Sergeant Kelso came over to the car. Constable Oake could not recall whether it was Constable Plummer or Kelso who asked the Accused to produce a driver’s license. He heard them explain to the Accused that she had failed to provide a PBT and that she was going to be charged. The Accused was asked to produce her license, to which she said she did not have to, as she knew her rights. She was then asked to state her full name and address. The Accused refused to state her name and address and she said that she did not have to, and she knew her rights. Sergeant Kelso said she would be placed under arrest until he could confirm her identity.
Sergeant Kelso opened the door and reached across to undo the seat belt. Constable Oake said that he reached through the car window to turn the car off because he did not want the Accused to drive off. She was unwilling to get out of the car. She was removed and leaned up against the driver’s side door. She did not want to get out willingly. She was saying that the police could not do this, and her voice was raised. She was placed up against the rear passenger door with her hands handcuffed behind her. She was walked of the line and sat down against the tree. Sergeant Kelso had placed her in handcuffs and she was given a caution by him.
Mr Edwards gave evidence that approximately after midnight he was signalled by one of the other members to close the site down. He left the left hand lane is open so the traffic could continue westbound. He walked to where the site was set up. He noticed the Accused with her back against the tree, seated on the ground and appeared to be handcuffed. He asked one of the younger officers why she had been arrested. He was told that she had refused a PBT and had refused to state her name and address.
As the supervising officer on the scene whose role was to ensure safety, Mr Edwards spoke to the Accused. He explained to her obligations under the Road Safety Act and that she was obliged to provide her details when requested by a member of Victoria Police. She was “quite vocal” saying that she did not refuse, she just wanted to hold the device. Mr Edwards said to her that she could not, because the legislation did not allow for a PBT to be undertaken by anyone who is not an authorised person. He said there was also the risk of damage. She said another couple of times that she knew her rights. He explained it to her again. It was then that she gave her name and address. He wrote it down in his notebook and gave it to officers in the bus to verify. Once the Accused’s identity had been verified Sergeant Kelso came out and removed the handcuffs. She was told she was free to leave. She remained for a while in the vicinity of the booze bus. She returned sometime after and said she wanted to do the PBT. He told her that the offences were complete and she would receive a summons in the mail.
Sergeant Kelso gave evidence that he heard Constable Plummer inform the female driver that there was a requirement to provide a sample of breath into the prescribed device pursuant to the Road Safety Act to his satisfaction. He heard the female respond words to the effect of “if I can’t hold it I won’t blow into it, I know my rights.” At that point Constable Plummer informed the female that her actions may be considered a refusal and that he now required her to provide him with her name and address and to produce her license. She was argumentative and told him that she was not going to tell him who she was or produce a license because she did not have to. On her refusal, Constable Plummer informed her that if she refused she would be arrested, by force if necessary, and detained until she provided her details or until the police could establish who she was. He described her manner as belligerent, argumentative and childish. No one else was in the car. Constable Plummer informed her that she may be arrested with force. Again he requested her details. Again she refused saying that she did not have to do and that she was not going to do anything.
Sergeant Kelso said that he stepped forward and advised her that she had been provided with clear details by Constable Plummer and that if she refused she may be arrested and held in custody until her identity could be established. He then requested her to provide her name and address. Again she refused and said she did not have to and that she knew her rights. He informed her that she was under arrest and told her to get out of the car. She refused. Sergeant Kelso opened the door, leaned in and unbuckled her seatbelt. With the assistance of Constable Plummer he removed her from the car, turned her around and placed handcuffs on her wrists. She was then told that she was under arrest again and that she did not have to say or do anything but that anything that she did or said could be used in evidence against her. Sergeant Kelso asked her if she understood that, and at that point she remained mute.
Sergeant Kelso requested that she sit down. At that point she became argumentative again and she sat down of her own volition. She said to Sergeant Kelso he had no rights and no authority to do this. Mr Edwards came over. Sergeant Kelso instructed him that they were closing down the site as this may be a prolonged incident. Sergeant Kelso then briefed Mr Edwards as to what had occurred and informed him that the female was under arrest. Mr Edwards left him and went and spoke to the female. Once they had established her identity, she was released.

The evidence of the Accused

The relevant portions of the Accused’s evidence are set out below:

“He presented some device to you, did he?---Yes.
Did he put - how did he do that? Did he put it through the window or leave it outside the window or what?---Um, he, um, had it in his hand and he, um, gestured that, you know, he - he told me to do the breath test and sort of held it in my direction.
Was there some - this isn't in dispute - was there some straw or mouthpiece sticking out of it, can you recall?---Yeah.
All right. Roughly what colour was that, can you recall, the mouthpiece? I'm not talking about the device, the mouthpiece itself?---Um, it was a white colour.
About how long was it? The last police witness, Sergeant Kelso, gives a description some minutes ago that it's about 2 to 3 - it's about 2 to 3 inches long?---That sounds correct, yeah, that's right.
He says it's about 10 millimetres wide, all right? You would agree that's a fair description of it?---Yes.
When the police officer told you to blow into the device what did you say?---I said, "Okay, um, can I hold the device?"
What did he say in response to that?---He said "No, you can't hold it."
Did he give you a reason for why he said you can't hold it?
---At - at that time, no, he hadn't - - -
All right?---No.
What did the police officer say then?---Um, he said, um, by law, something along the lines of, you know, you have to give me a breath test. And I didn't - I agreed with that.
Yes. And did you say anything then?---I said, "Yes, I want to do the breath test. I'll do it, um, but I feel comfortable holding it and I've held it before." But I can't remember if that was straight away or a bit later.
….
All right, well did the police officer make another requirement of you to do this hand held test?---Um, probably, yes.
This is Plummer the very first - - - ?---Plummer, yeah.
- - - police (indistinct words). All right. Did you do that test?---Um, no, I didn't. I wanted to but I didn't.
No. Did someone use the word "refusing" at that point?---Not - not at that point, but then, um, I was - I was asked by Sergeant, um - sorry, Constable Plummer, um, later he said "Are you refusing?" And I said, "No, I'm not refusing but I want to hold the device because I've - I've done it before." We were at - - -
You said you're not refusing, you want to hold the device because you've done that before. Constable Plummer gave evidence last year, if you may recall?---M'mm.
That he says - well not in his statement, but he said this in the witness box, that he said something "You can hold my hands whilst I", can you recall that being offered to you?---No, I - I can't recall it, no.
All right. Well after you said to Plummer that you're not refusing but you want to hold it because you've done so in the past did Plummer say anything in response to your request to allow him to let you hold it?---No, I think we - we kind of, um - not that I recall. I can't really remember. All right?---But I know it escalated.
Did he ever let you hold the device?---No.
Did you say anything about any other way, raise any alternatives?---We weren't getting anywhere, um, and I said, "Well what are my options", because I thought I could potentially even get out, do a - do the breath test, not in my car but do a breath test.
When you mean a breath test, do you mean a hand held test or something on another machine?---Either/or.
Either/or, okay. Why didn't you submit to the breath test by having it put into your mouth and blowing? Why didn't you just submit?---Well for reasons I didn't feel comfortable speaking to unknown men about why I wasn't comfortable doing it that way. I knew it was possible and that's what I thought was going to happen. I thought I was going to do the breath test that night and go home.
All right. You say you didn't feel comfortable talking with unknown men, to use your expression?---Yeah.
What about the device itself, this 2 to 3 inch long mouthpiece, 10 millimetres wide, being put into your mouth by this man?---I don't like when people are around - I just - I'm not comfortable with a situation where I've got something being put in my mouth.
It's your evidence thus far that you were willing to do this test, and you kept saying this to Plummer, if you could hold it, correct?---Yes.
Can you recall the most recent police witness, in fact the last witness for the prosecution today, Sergeant Kelso, can you recall that police member attending at your car?
---Um, yes, he made an appearance.
Yes, and when he attended your car on this first occasion what did he do?---Um, he told me I had to do the breath test. He stood next to Constable Plummer and said "Are you refusing to do the test?" I said, "No." Um, and he sort of said, "Look", he said "If you don't do it this will happen", and then he left, he seemed annoyed, angry.
You said, "If you don't do it this will happen", what do you mean the word "this"?---You will - you will get a - be charged for refuse and you could lose your licence - you will lose your licence. He told me what was going to happen.
When he said that to you did he mention anything else? I think you mentioned - did you say you might be arrested or something, or did he?---Um, possibly he said "arrested."
When he said that was he whispering to you, was he speaking in normal language like - or volume like I'm talking to you now, or was he raising his voice or not?---It was an angry tone, normal to loud volume.
Is it correct to characterise it as a raised voice?---Yes.
Could you understand why he was talking to you in a raised voice and some (indistinct) to you at that point?
---Well I could - he seemed annoyed, um, like he - they probably wanted to pack up and go home, or wherever.
Well you can't establish - - - ?---I don't know, (indistinct) he was annoyed.
What did you say to Kelso when he made these, as you say, in a raised voice, annoyed tone, as you put it, when he was telling you about these consequences, what can happen to you if you don't do the test? What did you say?---I know I definitely said "I'm not refusing because I know the - I know not to refuse."
All right. When you said that what happened with Sergeant Kelso?---He - he said something in closing like, "You look - you are refusing", and then left and it was just - it was, um, Plummer and myself again, so - - -
All right. So there's another conversation there where Kelso is not present and what did that relate to?---Um, at that point, that was when Constable Plummer asked me for my details and I said "Yes, I'll give them to you. Can I have yours?" And he was very obliging, he said "Yeah, sure", and I got - I was looking for a pen. And I was trying to think and where have I got my own licence because I have a lot of stuff. What was in your car?---Um, well books, my school equipment, so my laptop and - and textbooks. Also catering equipment. And I had uni books at the time in there too.
Were you taking some time to try and find - - -
PROSECUTOR: Objection. Leading.
MR WALSH-BUCKLEY: All right, well were you looking around for a while?---I was processing, um, getting the information from Constable Plummer, who I didn't know at the time, now I know his name. Um, and also thinking where's my wallet with my stuff in it - with my, um, licence in it.
Okay?---It could have been in any one of my bags that I had.
After a passage of time did Plummer say anything in relation to that?---No, he was waiting. He was just waiting for me to - um, I was writing down his name, so he didn't - we were just at that point in the conversation, I was writing down his name and then that's when, um, Sergeant Kelso returned, while I was writing down his name, to my car.
Well it's your evidence today, as I understand you, you admit that police were telling you you can be charged with refusing if you don't do this test. In relation to the question of the licence - - -
HER HONOUR: Was that a yes to that question?---What was the question?
MR WALSH-BUCKLEY: Up to this point you had previously been informed by police that you can be charged with refusing if you don't do the test, correct?---Yes.
All right. In relation to the request for your licence was anything said to you by Constable Plummer about that?
---No, he - um, we were just in that state of play where, um, I was getting his details and he was about to get mine. That's where everything just escalated, um, when Sergeant Kelso came back and pulled me out of my car.
Were you refusing to show your licence?---No.
Did the police officer ask you if you were refusing, any police officer, to show your licence?---I think that question - I think I was asked "Are you refusing to show."
Who asked you that?---Um, - - -
Was it Plummer?---It would have been either Constable Plummer or Sergeant Kelso.
All right?---But it was in an accusing way.
Okay?---Like a rhetorical question.
Well you eventually got Plummer's name, correct?---I - I was in the process of writing it, yeah, I think I've written "Plummer."
And then I think you were about to say Sergeant Kelso attended again?---Yeah. At the car, right?---(No audible response).
When Sergeant Plummer approached the - correction, Sergeant Kelso approached the car again where was Plummer?---He was, um, by my window.
And what happened when Sergeant Kelso attended again?---Well I don't know if there was a push or anything but all I know was suddenly Sergeant Kelso was taking up all of my window frame because he was talking at the same time saying "You're refusing to show your name", um, "provide identification", and while he was talking he was unbuckling my seatbelt through the open window.
What did Sergeant Kelso say when he was unbuckling your seatbelt?---Um, so repeating, he was saying something like "You're refusing to show your driver's licence and for this reason", um, I think he said, "I'm arresting you for this reason", or something, while he was unbuckling.
All right, well what happened then? He said "I'm arresting you", or something like that, "for not stating or producing your licence" or whatever. And what happened then?---Um, I was pulled out of the car and kind of turned around so I was, um, in order that my body was against the car and - - - You mean a breath test device, is that similar to the one presented to you by Constable Plummer?---Correct.
He had one in his hand, yes?---And I said, "I'm not refusing. I'll do it right now", and I gestured to the device that he had in his hand, and he said, "You can't. It's too late."
Right. Yes. What happened then?---He said you'll be - you'll be receiving a summons from, um, Kelso to appear before a court. And I said, "That's just a waste of taxpayer's money. I'll just do the breath test now", and he said, "No, it's too late."
What happened then?---Um, he gave me my keys and said, "You can go. Your car's over there", and - - -
What was the approximate passage of time when you were required by Constable Palmer to do the preliminary breath test to the passage that you stated that you wouldn't do unless you could hold it, was it the time that you then said, or asked Constable Edwards, "I'll do the test now", something to that effect? What was the approximate passage of time?---I'd been saying all along I'd do the breath test, but probably 15 minutes I'd say.
Fifteen minutes. And Edwards said as you said earlier, "It's too late", correct?---That's right.
All right. So you're given the keys back to your car and told you can go, and what did you do then?---I went to my car.
Yes?---Unlocked it and then sat down and realised I didn't know who some of the people were who I'd interacted with that night. So then I went back across the High Street to the slip land, and, um, saw Sergeant Kelso coming out of the booze bus. I asked him for his name. I actually saw his name on the badge when he pulled me out of the car.”[47] [Emphases added].
[47] Transcript, 31 May 2017, pages 30-40.

The evidence of the Prosecution witnesses establishes beyond reasonable doubt that the Accused was asked several times by Constable Plummer to do the PBT, and the consequences of not doing the PBT were explained to the Accused, and she continued to refuse despite having been given several opportunities to do so. The result of her refusal had the aggravating effect of causing the entire PBT station to be shut down. I have accepted the evidence of the four officers as to what occurred on that evening. Not only were each of the Prosecution witnesses honest and consistent witnesses with excellent recall of the events of the evening, but the accounts of Oake, Kelso and Edwards corroborated the testimony of Plummer. It is clear on their evidence that the Accused was refusing to do the PBT unless she could hold the PBT device. They all described her as argumentative and belligerent. In all of the circumstances that are described by the officers, the only reasonable inference to be drawn is that the Accused by her words and conduct was refusing to undertake the PBT unless she could hold the device. As I have stated previously, the legislation does not permit the imposition by the Accused of any such condition on the request.

The Court had the benefit of hearing the Accused’s evidence in chief, and of observing her in answers in cross-examination. She was a less convincing witness than the Prosecution witnesses. Her evidence had the quality of being vague and she avoided answering questions put to her. Further, even on her own evidence, she was imposing conditions on the request that she do the PBT, which supports to the Prosecution case.
The offence against section 49(1)(c) was complete on the first refusal by the Accused to undertake the PBT at the request of Constable Plummer. Constable Plummer exhibited patience in my view, in going to the lengths that he did to explain to the Accused why it was she could not hold the device. He made clear the obligation to provide the PBT, and provided sufficient information to the Accused as to what was required and why and also explained the consequences of not doing so. Her subsequent refusals evidence her intention to refuse the PBT unless it was administered to her on her terms, a position which is unsupported by the legislation or the case law. The fact that the Accused later consented to the PBT is not relevant.[48]

[48] Reddy v Ross [1973] VR 462 at page 470-1, citing the Court of Criminal Appeal in New South Wales in R v Honan [1971] 1 NSWLR 697 at page 701.

As for the submission that the Accused was confused as to what was being requested, and was not provided with sufficient information, the Accused in her own evidence admits that she was asked to do the PBT, and that the police officers explained to her that she would be charged if she did not, and that she would lose her licence. She admitted to having done the PBT on previous occasions, and said that she knew as a matter of law that she had to do the PBT. The argument is not supported in any way by the evidence, and must be dismissed. Further, the authorities establish that the Accused’s subjective state of mind in relation to offence with which he or she is charged is not relevant.[49] Therefore, whether or not she may have been confused as to her rights is also not relevant.

[49] See DPP v Serbest [2012] VSC 35.

I find the charge proven.

CHARGES 2 AND 3 – SECTION 59(2) OF THE ACT

Section 59 of the Act relevantly provides:

“59 General duty of driver or person in charge of motor vehicle
(1)The driver or person in charge of a motor vehicle on a highway has the following duties—
(a)to stop the motor vehicle, produce for inspection his or her driver licence document or learner permit document and state his or her name and address if requested or signalled to do so by—
(i)a police officer or an officer of the Corporation or of the Department (being an officer of the Corporation or of the Department authorised in writing by the Corporation or the Secretary, as the case requires, in that behalf);

…; and

(b)to obey any lawful direction given to him or her by a police officer under subsection (5); and

….

(2)Subject to subsections (3) and (4), a person who fails to do anything that he or she is required to do under subsection (1) or (1A), or who when required to state his or her name and address states a false name or address, is guilty of an offence and liable—
(a)….;

(b)if the offence consists of failing to produce for inspection his or her log book or failing to state his or her name or address or stating a false name or address or failing to permit an entry in his or her log book to be copied or failing to permit an entry to be made in his or her log book or failing to permit his or her vehicle to be searched for another log book, to a penalty of not more than 5 penalty units or imprisonment for a term of not more than 1 month;
(c)….

(3)….

(4)A driver or person in charge of a motor vehicle who fails to stop when required to do so in accordance with subsection (1)(a) or (1A)(a) is not guilty of an offence if—
(a)the person making the request or signal is not in uniform; and
(b)the driver or person in charge believed that that person was not—

(i)a police officer, a protective services officer or an authorised officer of the Corporation or of the Department, as the case requires; or
(ii)an officer of or person authorised in writing in that behalf by a municipal council.

(5)A police officer may give such reasonable directions to a person driving or in charge of a motor vehicle on a highway as are, in the opinion of that police officer, necessary—
(a)for carrying into execution the provisions of this Act or the regulations; or
(b)for the purposes of any traffic survey being carried out in the vicinity of the highway.
….

(9)A reference in this section to a driver licence document or learner permit document includes a reference to any other document which evidences the authorisation of the driver to drive the motor vehicle.”

To prove the contraventions of section 59(2) of the Act that are alleged, the Prosecution must establish beyond reasonable doubt that:

the offence occurred at the place and time alleged;
the offender was the accused;
the accused was a driver or person in charge of a motor vehicle on a highway;
that a police officer signalled the accused to stop the motor vehicle, and requested they produce their driver’s license or permit for inspection, and state their name and address; and
the accused failed to stop the motor vehicle, or produce a driver’s license or permit, or stated a false name or address.

The Accused does not dispute elements (a) to (d). The factual issue in contest is whether or not the Accused failed to produce her licence and state her name and address. The Accused gave evidence that when Constable Plummer asked her for her details, she said "Yes, I'll give them to you. Can I have yours?" She said she was looking for her wallet when Sergeant Kelso appeared and aggressively removed her from the vehicle.
The evidence of the Prosecution witnesses, which I have accepted for the reasons given above, is in direct contrast. Each of the Prosecution witnesses said that the Accused refused to provide her details and produce her licence when requested to do so by Constable Plummer, and said that she was aggressive in her assertion to them that she did not have to do so and that she knew her rights. She later again refused to provide details of her name and address, and to produce her licence, to Sergeant Kelso. I am satisfied beyond reasonable doubt that the only reasonable inference to be drawn from all of the evidence is that, based on the words and conduct of the Accused, she understood what was being required of her, and she voluntarily and consciously refused to provide her name and address, and to produce her licence, when requested to do so by police. The offence was complete upon the first refusal to provide her details and her licence, and the repeated refusal by her to do so evidences her clear intention to refuse to provide her licence and also her name and address. As stated above, the authorities establish that the Accused’s subjective state of mind in relation to offence with which he or she is charged is not relevant. Therefore, whether or not she may have been confused as to her rights is also not relevant.

The Accused’s submission regarding the validity of charges 2 and 3

The Accused submits that:

“Charges 2 and 3 are identical and plead a fundamental error to be proved by the prosecution beyond reasonable doubt of the accused `being the driver of a motor vehicle….’ The informant (C/Plummer), the police member to whom his requirements to the accused to produce licence and state name and address were directed, gives viva voce evidence in cross-examination that said requirements were made on the basis that she was “in charge” of a motor vehicle at the time of the requirements, and indeed her evidence reveals her car was stationary and parked and she had not be (sic) driving for some minutes by the time the requirements were uttered.
An essential element of the offences committed, “in charge” is missing from the pleaded charges which allege a different type of s59(2) offence, ie, `driving’ which is mutually exclusive from the s 3AA RSA definition of ‘in charge’. The meaning of ‘driving’ at common law is ‘having control over movement and direction of travel of propulsion of vehicle’ eg Harris v Broadbent [1983] 2 VR 17 at 19 per Young CJ) and this is consistent with s 3 RSA definition of `drive’. The definition of `in charge’ is contained in s 3AA RSA (also see Halley v Kershaw [2013] VSC 439 [4] to [7], [26] to [33]. [41] & [46] re discussion of what is in charge.”
The pleaded offences are one of ‘driving’ rather than one of `in charge’ – the evidence reveal that the prosecution put its case on `in charge’ (which the accused submits is a different offence to the ones charges at 2 and 3).
If the prosecution cannot satisfy the court beyond reasonable doubt that accused was driving at the time of the requirements then the charges must be dismissed as she was not `driving’ per the s 3 definition. Per s8(3) & (4) CPA the charge cannot be amended to correct element as the limitation period expired 5 August 2016. Both charges must be dismissed.”[50]
[50] Defence submissions, 27 December 2016, pages 2-3.

Although Constable Plummer may have described the Accused as being “in charge” of the vehicle in his evidence, Ms Santucci herself has admitted that she was the driver of her vehicle, and that she drove into the PBT station and was seated in the car when the request was made of her to state her name and address and to produce her licence. I accept the Prosecution submission that in all of the circumstances described in the evidence of the witnesses including Ms Santucci, that she was the “driver of a motor vehicle”, and the details of the charge are correct.
For all of these reasons, the Accused’s submissions are dismissed.

85.I find beyond reasonable that :

the Accused at Melton on 5 August 2015 having been required to undergo a PBT in accordance with section 53(1) of the Road Safety Act 1986 (`the Act’) did refuse to undergo such test within three hours of being the driver of a motor vehicle required to stop at a preliminary breath testing station under section 54(3) of the Act, contrary to section 49(1)(c) of the Act;
the Accused at Melton on 5 August 2015 being the driver of a motor vehicle on a highway namely High Street when requested by a member of the police force to produce her licence for inspection and state her name and address did fail to produce for inspection her licence, contrary to section 59(2) of the Act;
the Accused at Melton on 5 August 2015 being the driver of a motor vehicle on a highway namely High Street when requested by a member of the police force to produce her licence for inspection and state her name and address did fail to state her name and address, contrary to section 59(2) of the Act.

I find the charges proven.

[2017] VMC 17

16 OCTOBER 2017