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Unsolicited (Letters to the editor)

Every Issue

Cite as: (2007) 81(12) LIJ, p. 8

Promoting the power to arrest

I have just represented another client who has been charged with refusing to accompany police for a breath analysis after she underwent a preliminary breath test which gave a positive result. She was disqualified from driving for two years.

From her instructions that she consumed a single drink that appears to have been spiked, it is possible that she may have received a period of disqualification from driving of between six and 12 months if she had accompanied police to the police station and undergone a breath analysis.

When motorists are stopped by police and asked to undergo a preliminary breath test, most of them, in my experience, are willing to comply.

However, if a positive reading is recorded and the police request them to accompany them to the police station for the purposes of undergoing a breath analysis, many show hesitation in attending.

Some reasons for not attending may be the fact that they may have other adult passengers or children in the car, that they are worried about leaving the car in an insecure location – especially at night, or that they do not know what they should do and don’t have the opportunity to contact a solicitor for advice.

It seems that it is common practice for the Victoria Police to explain the consequences of not attending the police station for a breath analysis (at least in statements made by police in briefs of evidence for these offences) but the police must also make clear to the driver that it is not mandatory for them to attend at the police station and they are free to leave and not accompany police to the police station for a breath analysis.

The fact that the police can require drivers to accompany them to the police station for a breath analysis but cannot arrest drivers for this purpose, in my opinion, is an anomaly, which results in significant penalties being imposed by magistrates at Victorian Magistrates’ Courts against drivers who may have avoided the most draconian penalties by accompanying police to the police station in the first place.

It is fair to say that not many motorists found drink-driving would record a BAC reading of at least 0.240, but the minimum driving disqualification period that could be imposed for this offence is the same as for not accompanying police to the police station for a breath analysis.

I submit that this creates an injustice to motorists who cannot obtain legal advice after recording a positive reading after a preliminary breath test and are told by police that they are not obliged to attend the police station but they are “required” to go there for a breath analysis.

This is a confusing situation and it means that motorists who may have been even eligible for a good behaviour bond under the drink-driving legislation could face a penalty of at least two years disqualification from driving.

In my respectful submission, this injustice could be remedied by changing the Road Safety Act to provide a power of arrest to Victorian police officers once a motorist provides a positive reading after a preliminary breath test.

This power would be similar to that held by New South Wales Police, allowing them to arrest persons for the purpose of a breath analysis after the recording of a positive preliminary breath test result.

This may cause short-term inconvenience to motorists, but would, in my submission, enable justice to be given to motorists fairly and not capriciously.

I note that the defences available for failing to accompany police for the purpose of a breath analysis are extremely limited and it may be easier to defend a drink-driving charge after a breath analysis has been undergone. Although the power of arrest may add to the draconian impact of drink-driving laws in Victoria, it should also provide a fairer result for motorists who are caught in a situation where they have no access to legal advice and have to rely on perhaps compromised advice from the police officers requesting that they attend the police station for a breath analysis.


For providing the letter of the month Hugh S Middleton has won a $50 book voucher from the LIV bookshop, redeemable for the next 12 months.

Clearing house for future law

Just as we have an annual “State of the Judicature” report, we should have an annual report to the profession on the “Future of the Law”.

Lawyers are trained to study law through precedent from the perspective of legal history and development over the centuries.

I submit that insufficient energy is devoted to the possible future directions of the law. While some academic courses teach what the law should be, as opposed to what it is, that emphasis is lost when the student enters practice.

Law reform commissions produce comprehensive and far-seeing reports after receiving references from the Attorney-General on designated topics.

Governments are, however, constrained by the politics of the day as to the issues to refer to them.

There is sometimes greater debate at times of elections, but otherwise this area of jurisprudence is quiescent.

University academics are required to publish papers in specialised journals on the reform of the area of law in which they are experts. Limited commonwealth funding exists for that research. Those journals often have a very narrow readership. All these initiatives are too fragmented.

What is needed is a clearing house to coordinate and collate an overview of innovative research for the future of law and legal practice. A standing agenda for this body might be to consider the following: the delivery of legal services, access to justice issues and the requisite changes to legal culture and legal education to deal with any concerns in these areas.

In addition, it should be charged to scan the leading academic journals in medicine, science, engineering, economics and sociology to flag ideas which may impinge on or shape the current legal regime. At an early stage, gaps in regulations, barriers to development, or obsolete laws and practice could be highlighted in a regular, systematic, pro-active way for more detailed later examination by law reform commissions.

Most disciplines invest heavily in research and development, or in pure research.

Governments and private industry fund organisations like the CSIRO and medical research institutes because they realise that it is imperative to ensure that our economy and society are in the vanguard of all developments both here and overseas.

Legal practice too must similarly invest to be able to expand quickly and appropriately to new or altered environments.

Now is the time for us, either through university law curricula or professional legal education, or continuing legal education, to initiate a vigilant, structured and publicised future directions agenda, so as to be able to be partners with other branches of knowledge.


Setting the record straight

In the November 2007 LIJ in an article titled “Welcome Justice Jack Forrest” there was a misspelling of the name of a former stipendiary magistrate. The magistrate was John Caven. “Jack”, as he was affectionately known, was one of the real characters of the Bench, who in my opinion modelled his Bench style on the late Leo Froude SM.

As well as the amusing incident mentioned in the article concerning the stacking of law books on the Bench, I can recall that whenever he commenced a new court circuit he would get the message out to all the driving “hoons” in town by saying to the first young male traffic offender “tell all your buck mates that Jack’s in town and he won’t stand for any nonsense”.

In many cases this message was heard loud and clear and thereafter traffic offenders were usually “out of towners” who hadn’t yet heard the words “Jack’s in town”.


Judgment wanting

I refer to my letter to you of 17 September and note that the matter has now taken on a very Kafkaesque quality.

Today I rang the Sheriff’s office to try to obtain some response to various letters requesting a report and was advised that I should telephone another number and speak to “G______”.

I duly did so and was advised that the only response would be by way of email after I had forwarded my request by the same method.

After doing so and confirming the warrant details, a second time I received a response, after almost six months, advising me that “the officer holding the warrant was attempting execution and an interim report would be provided in due course”.

In due course!

After nearly six months!

And “Attempting execution”?!

Is there nobody in all the Justice Department who can give a direct and honest reply to enable me to tell my client that something is being done to recover his judgment?

This is not good enough and surely something must be done to provide a service to judgment creditors to enable them to retrieve a judgment debt without going into bankruptcy themselves while waiting on the good officers of the Sheriff’s office to execute on a judgment.



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