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Latest drink-driving defences

Feature Articles

Cite as: (2003) 77(4) LIJ, p.54

Sentencing discretion as to licence cancellation is so restricted that the vast majority of motorists must lose their licence if a drink-driving charge is proved. Accordingly, many defendants will consider contesting these charges. Here are some of the latest drink-driving defences agitated at the Court of Appeal or Supreme Court in 2002.

By Warwick J Walsh-Buckley

In the 12 months from July 2001 to the end of June 2002, 18,644 Victorian drivers were caught by police with blood alcohol concentrations exceeding the prescribed limit (with more than 5000 of that number having at least one prior conviction for a drink-driving offence).[1] Because sentencing discretion is fettered by the legislature so much through recent amendments to the Road Safety Act 1986 (Vic) (the Act), it is likely that if found guilty, the vast majority of those motorists will lose their licences for lengthy periods (and for very lengthy periods if they have prior drink-driving convictions) no matter what the mitigatory material is. Not surprisingly, many defendants will consider contesting these charges.

The following are some of the latest drink-driving defences agitated at the Court of Appeal or Supreme Court in 2002 since the author’s previous articles for the LIJ.[2] These may further assist a legal practitioner in determining whether the client has a defence which may be open to reasonable legal argument.

DEFENCES TO REFUSAL OFFENCES

Goodey v Clarke – defective charge
In Goodey v Clarke,[3] the Supreme Court dismissed a refusal charge after allowing a motorist’s appeal under s92 of the Magistrates’ Court Act 1989 (Vic) (the MCA) against a conviction for an offence under s49(1)(e) of the Act of refusing to furnish a sample of breath for analysis by a breathalyser. The evidence was that the motorist complied with the first police requirement but refused to comply with the second requirement to provide a further sample.

Bongiorno J held that a magistrate erred in holding that an offence of refusing to furnish a sample of breath for analysis by a breathalyser in response to a requirement under s55(1) was a cognate offence with that of refusing to comply with a requirement under s55(2A) to furnish a further breath sample. The magistrate erred in allowing the charge laid under s49(1)(e) (which pleaded that the requirement alleged to have been refused was under s55(1)) to be amended after more than 12 months had passed since the commission of the offence.

An application for leave to appeal subsequently brought by the Crown was refused by the Court of Appeal on the basis that Bongiorno J’s decision was not attendant with sufficient doubt to warrant leave to the Crown being granted.[4]

Accordingly, Bongiorno J’s decision placed a further case in the defence armoury, until the effect of that particular decision was legislated out from 23 October 2002.[5] The amendments, of course, do not interfere with the viability of this application of a “defective charge”-type defence to offences of refusal to furnish a breath sample where offences occurred before 23 October 2002.

Drink-driving offences are, in the main, technical-type offences. They must be properly pleaded according to general principles of common law in cases such as the High Court decision in Johnson v Miller[6] and the mandatory obligation of s27(1) of the MCA relating to description in the charge sheet of the offence alleged to have been committed. The legal practitioner should scrutinise the charge carefully to see if the evidence matches it.

If the 12-month statute of limitations under s26(4) of the MCA has expired and the charge does not match the evidence, then an amendment application under s50(1) of the MCA by the prosecution which effectively creates a new charge out of time should not be allowed and the charge should be dismissed.

Hrysikos v Mansfield – unreasonable requirement
In Hrysikos v Mansfield,[7] the Court of Appeal dismissed yet another Crown appeal, this time against Smith J’s decision in Mansfield v Hrysikos[8] which had been under appeal by the Crown since November 2000.

Smith J held that an implication of reasonableness should be read into all police requirements under s55(1), including a requirement to remain for a breathalyser test. He had allowed a motorist’s appeal against a conviction on a s49(1)(e) offence of refusing to remain for a breathalyser test on dual bases.

The Court of Appeal heard that Smith J dealt with a motorist’s appeal under s92 of the MCA involving conviction for a s49(1)(e) refusal offence. After she furnished one breath sample the breathalyser produced a certificate “alcohol in mouth”. The operator told her that she would have to wait another 15 minutes for a second breath test. The motorist said she wished to go outside the booze bus to smoke a cigarette. She was told that if she left the bus she may lose her licence for two years and receive a substantial fine. She left the bus, was followed by police and was again warned. She had a cigarette and remained close to the bus and in the company of the two police.

At no time did she say she would not give a further sample, nor that she would leave the site. At all times she was close to the bus and police. She went back inside to get her handbag, and when coming back out for the second time a dispute broke out between police and the motorist’s partner leading to her and her partner’s arrest. She was also charged with refusing to remain.

Smith J applied to s55(1) requirements Ormiston J’s observations in DPP v Webb[9] that the only requirement which needs to be read into s53 of the Act (the power of police to require a preliminary breath test) is one of reasonableness – if a requirement to undergo a preliminary breath test is unreasonable it is no offence to refuse it. Smith J held that the requirement to remain must be reasonable and that there is no unlawful refusal if the requirement to remain is an unreasonable one.

The Court of Appeal in Hrysikos v Mansfield held it was unnecessary to consider whether once the person accompanied police to the bus it was unreasonable not to let the person leave the interior to have a cigarette, although Eames JA discussed a number of examples of reasonable and unreasonable requirements.[10] Accordingly, Smith J’s decision was not reversed. There is an arguable new defence to charges of refusing to remain for a breathalyser test under s49(1)(e), that is, the defence of “unreasonable requirement”.

Hrysikos v Mansfield – remaining in proximity
In Hrysikos v Mansfield the Court of Appeal confirmed the correctness of Smith J’s alternate basis for allowing the appeal, that is, the motorist did in fact “remain there” within the meaning of s55(1) although she left the booze bus against express directions of police to stay in the bus until the breathalyser was ready to receive her second breath sample. This is because the requirement to remain simply means a requirement to remain linked to the place where the breathalyser test is to be carried out. What is critical is the proximity to the place. A person can remain at the place but be outside its four walls.

Accordingly, the Court of Appeal’s decision in Hrysikos v Mansfield confirms Smith J on this point. There is another arguable new defence to charges of refusing to remain for a breathalyser test, that is, the defence of remaining in proximity to the place where testing is to occur.

EXCEED PRESCRIBED CONCENTRATION DEFENCES

DPP v Moore – “bad police advice”
DPP v Moore[11] is still under appeal by the Crown to the Court of Appeal and is not likely to be reached until late 2003.

Balmford J held that a magistrate could not be shown to have erred in exercising discretion to exclude the certificate of analysis produced by the breathalyser and to then dismiss a charge of exceeding the prescribed concentration of alcohol laid under s49(1)(b) of the Act.

Balmford J held that the magistrate appeared to accept the defendant’s evidence that, after the breathalyser test revealed a reading of .074 per cent, the defendant requested a blood test under s55(10). However, the defendant took advice given to him by the operator that his blood-alcohol level would probably be higher than .07 when the doctor arrived and stated “...if I was you, I’d cop the .07 and forget about the blood”. The defendant then declined to continue with his right to a blood test.

Until the outcome of the Crown appeal, Balmford J’s decision effectively creates an arguable new defence to s49(1)(b) exceed prescribed concentration of alcohol charges, that is, “bad police advice” creating unfairness to an accused.

Day v County Court – informed consent in blood requirements
In Day v County Court of Victoria and Hanson,[12] Smith J granted certiorari on a motorist’s successful application for judicial review of a County Court appeal judge’s decision to convict on a s49(1)(b) offence. He held that s57(9) was intended by Parliament that the driver have a choice to provide a blood sample or not and the driver should express consent before blood is taken or the evidence of the result could be tendered.

He held that it was not open to the County Court judge to find consent was made following exercise of a choice because the driver remained under the impression that he had no choice. Thus, when asked by the doctor, his assent amounted to no more than allowing a doctor to take the sample and not the giving of consent.

Smith J held that he did not accept that it would have been the Parliament’s intention that anything short of an informed consent would suffice to enable a blood sample to be taken and given in evidence where ss57(9) and (10) apply.

CONCLUSION

When advising clients of their chances of retaining their licences on determination of drink-driving related charges, practitioners are now having to increasingly focus on the question of dismissal of the charges rather than persuasive guilty pleas. This is due to the stark reality that there is little sentencing discretion left with a court as to licence cancellation.

In Sher v DPP[13] Brooking JA, delivering the judgment of the Court of Appeal, referred to a “thriving minor industry” where “some lawyers” devote “much time and ingenuity” to the “hydra of technicality” when defending clients charged with drink-driving offences and suggested that “the results of all this activity” are not “in the public interest”.

One of many replies that may be made to those comments comes from the editor’s note at the report of that case appearing in the Motor Vehicle Reports[14] which may be summarised as follows. The “activity” is generated by the Victorian legislature. Conduct of breath tests should be simple. Instead, the Act presents police and drivers with complicated, difficult, tortuous and awkward legislative provisions which are amended frequently. Courts devote many hours and thousands of words working out what those provisions mean. The combination of verbose legislation resulting in torrents of judicial precedent creates a formidable branch of law comparable to the tax laws. It may not be unknown for some police to take shortcuts in following a prescribed procedure when testing drivers for having exceeded the prescribed blood-alcohol concentration. These instances may be rare and difficult to prove. It is incumbent on lawyers to check that correct procedures have been carried out in relation to their clients. Pressure and momentum creating the “thriving minor industry” comes from motorists charged with these offences.

Legal practitioners would fail in their professional duty if they did not check carefully whether there had been breaches of ordinary rules of criminal procedure or of specific procedures governing breath testing.

With more motorists being charged with drink-driving offences, and a disturbing percentage having priors for those offences (resulting in dramatic escalation in disqualification periods for repeat offenders and alcohol ignition interlock conditioning of licences by courts on successful licence restorations), it may not take a strained use of the imagination to perceive that the “thriving minor industry” to which Brooking JA referred is unlikely to go away.


WARWICK J WALSH-BUCKLEY is a member of the Victorian Bar, specialising in the Road Safety Act and criminal law and is co-author of Motor & Traffic Law Victoria.


[1] The Herald Sun, 13 July 2002, p5.

[2] See “Drink-driving defences after Foster and Bajram” (2000) 74(2) LIJ 59; “Drink-driving in the year 2000” (2000) 74(11) LIJ 52; “Drug-driving: the new offences” (2001) 75(2) LIJ 79; “Drink-driving – 2001: new developments” (2001) 75(10) LIJ 77; “Drink-driving – 2002: radical changes” (2002) 76(2) LIJ 64; “Drink-driving – alcohol ignition interlocks” (2002) 76(5) LIJ 61 and “New drink-driving defences” (2002) 76(8) LIJ 73. Also see “The rise and fall and rise of drink-driving defences in Victoria” (2001) 75(5) Criminal Law Journal 276 and discussion of Part 5 of the Road Safety Act 1986 in Motor and Traffic Law Victoria, LexisNexis Butterworths, vol 1.

[3] [2002] VSC 246 (12 June 2002).

[4] Clarke v Goodey [2002] VSCA (23 August 2002) per Batt and Buchanan JJA.

[5] Amendments to s49(1)(f) of the Act caused by s8 of the Road Safety (Responsible Driving) Act no 46/2002 becoming operational on 23 October 2002 involving deletion of “55(1) or (2AA)” and that phrase’s substitution with “55” appear intended to prospectively remove the effect of Goodey v Clarke: see Victorian Government Gazette no G43, 24 October 2002, p2858.

[6] (1937) 59 CLR 467 at 486-7. Also see Broome v Chenoweth (1946) 73 CLR 583 and DPP Ref No 2 of 2001; Collicoat v DPP; Bell v Dawson (2001) 34 MVR 164; 122 A Crim R 251; [2001] VSCA 114.

[7] [2002] VSCA 175 (1 November 2002) per Ormiston, Chernov and Eames JJA.

[8] 32 MVR 491; [2000] VSC 474 (14 November 2000).

[9] [1993] 2 VR 403 at 408.

[10] Note 7 above, at 56-59.

[11] [2002] VSC 29 (27 February 2002), Balmford J refers to Bollen J’s decision on a similar point in Nolan v Rhodes (1982) 32 SASR 207.

[12] [2002] VSC 426 (9 October 2002).

[13] (2002) 34 MVR 153; 102 A Crim R 585; [2001] VSCA 110.

[14] Sher, note 13 above, at 154-155 (editorial note of D Brown).

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