Zumpano v Prestney - [2020] VSC 612

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 03180

IN THE MATTER of an Appeal on a Question of Law
pursuant to Section 272 of the Criminal Procedure Act 2009

ALDO ZUMPANO	Appellant
v
ALEXANDER PRESTNEY	Respondent

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JUDGE:	NIALL JA
WHERE HELD:	Melbourne
DATE OF HEARING:	18 September 2020
DATE OF JUDGMENT:	23 September 2020
CASE MAY BE CITED AS:	Zumpano v Prestney
MEDIUM NEUTRAL CITATION:	[2020] VSC 612

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JUDICIAL REVIEW – Criminal practice and procedure – Appeal on a question of law –Whether magistrate erred in finding valid service of charge-sheet and summons – Whether magistrate failed to properly exercise discretion in refusing to allow abridgement of time to serve notice under Road Safety Act 1986 s 58(2) – Whether magistrate erred in accepting photocopy of certificate of breath analysis into evidence – Error established – Bogdanovski v Buckingham [1989] VR 897 applied – Impagnatiello v Campbell (2000) 2 VR 503; [2000] VSCA 149 applied – Whether magistrate erred in finding appellant guilty of charge – Order of magistrate set aside – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant:	Mr S Hardy	The Law Offices of Barry Fried
For the Respondent:	Ms A Moran	Ms A Hogan, Solicitor for Public Prosecutions

HIS HONOUR:

Three days before Christmas 2017, the appellant was seen driving a car and, when tested by police, recorded a breath alcohol concentration of 0.083 grams of alcohol per 210 litres of exhaled air. The recording took place using prescribed equipment at the Boroondara police station. A little earlier, the informant, who was in a marked divisional van, had seen the appellant in a dual cab utility, registered to a company associated with the appellant, driving north along High Street, Kew.

The appellant was charged with two offences. The first alleged that he drove a motor vehicle with more than the prescribed concentration of alcohol present in his breath in breach of s 49(1)(b) of the Road Safety Act1986 (the ‘RSA’) and the second alleged a breach of s 49(1)(f).[1]
[1]Furnishing a breath sample indicating greater than the prescribed limit of alcohol within 3 hours of driving or being in control of a motor vehicle where the concentration of alcohol was not due solely to the consumption of alcohol after driving or being in charge of the vehicle.

The charges were heard before a magistrate on 14 June 2019. The informant gave evidence that he and his colleague were on patrol in a divisional van and followed the appellant’s vehicle until it pulled into a carpark off High Street. The carpark is on the corner of High Street and Woodlands Avenue. The informant saw the appellant get out of the driver’s seat of the vehicle and administered a preliminary breath test which recorded a concentration of alcohol in excess of the prescribed limit. The appellant then accompanied the police officers to Boroondara police station where the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Zumpano v Prestney

Details

AGLC: Zumpano v Prestney [2020] VSC 612
Case: [2020] VSC 612
Decision Date: 23 September 2020

CaseChat Overview and Summary

The appellant, Mr Zumpano, appealed against a decision of the Melbourne Magistrates Court, which found him guilty of failing to comply with a direction to provide a breath specimen. The appeal raised questions regarding the service of a charge-sheet and summons, the refusal to allow an extension of time to serve a notice under the Road Safety Act 1986, the acceptance of a photocopy of a certificate of breath analysis into evidence, and the ultimate finding of guilt. The court was required to determine whether the magistrate erred in finding that the charge-sheet and summons were validly served, whether the magistrate failed to properly exercise their discretion in refusing to extend the time to serve notice, whether the magistrate erred in accepting a photocopy of the certificate of breath analysis into evidence, and whether the magistrate erred in finding the appellant guilty of the charge.

The court found that the magistrate erred in finding that the charge-sheet and summons were validly served as the service did not comply with the statutory requirements. The court also found that the magistrate failed to properly exercise their discretion in refusing to allow an extension of time to serve notice, and that this error was not inconsequential. Furthermore, the court found that the magistrate erred in accepting the photocopy of the certificate of breath analysis into evidence, as it did not meet the requirements of the statutory provisions. Finally, the court found that the magistrate erred in finding the appellant guilty of the charge, as the errors made in the proceedings were such that they materially affected the outcome. As a result, the order of the magistrate was set aside and the appeal was allowed.

The court held that the magistrate's errors were significant and affected the outcome of the proceedings, and therefore the order of the magistrate was set aside. The court found that the appellant was not afforded a fair hearing due to the errors made by the magistrate. The court ordered that the charge against the appellant be dismissed.

Orders