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The hydra of technicality – drink-driving defences 2003

Feature Articles

Cite as: (2004) 78(3) LIJ, p. 52

In the past year motorists charged with drink-driving offences have tried several different defences. Not all have succeeded.

By Warwick J Walsh-Buckley

Many thousands of Victorian motorists were charged with drink-driving related offences last year. Sentencing discretion on licence cancellation is so fettered by legislative amendments that the vast majority of those defendants will see their licences cancelled if the charges are proved. Not surprisingly, a number of those defendants are likely to seek legal advice as to just what defences might be available if they enter a not guilty plea. Some of the latest drink-driving defences agitated at the Supreme Court and Court of Appeal in 2003 since the author’s previous articles for the LIJ,[1] which may or may not have succeeded on appeal, are as follows.

Breach of service requirements

In Platz v Barmby,[2] Byrne J allowed a motorist’s appeal on a question of law (s92 of the Magistrates’ Court Act 1989 (MCA)) against conviction for an offence under s49(1)(g) of the Road Safety Act 1986 (RSA), which provides that a person is guilty of an offence if he or she has “ ... had a sample of blood taken ... in accordance with ss55 or 56 within three hours after driving or being in charge of a motor vehicle”, and a careless driving charge. This was because the motorist was served the charge and summons less than 14 days before the mention date as required by sub-s34(1)(a)(ii) of the MCA. Byrne J adopted a strict approach to the time limits.

He also held that the minimum 10-day period for personal service of a certificate provided for in s57(5) of the RSA had not been complied with. Compliance with the service requirement was a precondition to admissibility. The underlying policy was that the defendant should have an opportunity to consider the content of the certificate well before trial. A certificate which is short-served in terms of date of tender into evidence is inadmissible.

Breaching blood test procedures

In McPherson v County Court of Victoria & Anor,[3] Kellam J heard a judicial review from a County Court appeal judge’s decision to convict on a s49(1)(g) charge.

The circumstances were that following a preliminary breath test administered by a police sergeant revealing the presence of alcohol, the motorist was required to accompany him to a police station to furnish a breath sample into a breath-analysing instrument. The motorist then became ill. The sergeant conveyed him to a hospital for treatment. There the sergeant formed an opinion that the motorist was incapable of furnishing a breath sample due to his medical condition, instead requiring him to allow a medical practitioner to take his blood without first requiring him to furnish a breath sample into a breath-analysing instrument.

At a County Court appeal it was common ground that the sergeant had departed from the procedures set out in s55(9A) of the RSA before making the requirement for a blood test in lieu of a breath test. However, the County Court judge in exercising a judicial discretion did not exclude the blood and analyst certificates and, on admission, the appellant was convicted.

A main point in the judicial review was that the exercise of a judicial discretion to exclude evidence illegally or improperly or unfairly obtained did not even arise because the appellant asserted “in accordance with s55” of the RSA was an element of the s49(1)(g) offence – if that element was missing then the charge must fail. Kellam J held that the requirement “in accordance with s55” to a motorist to allow a medical practitioner to take his blood was not an element of the s49(1)(g) offence to be proved before that charge could succeed.

Kellam J applied the Full Court decision in Walker v DPP[4] and the Court of Appeal decision in DPP v Foster[5] (relating to s49(1)(f) “breath test” offences) to s49(1)(g) offences, despite the fact that in relation to the s49(1)(f) offence the phrase “under s55” is used, whereas in relation to s49(1)(g) the quite different phrase “in accordance with s55” is used and blood tests are more intrusive than breath tests.

Therefore, the motorist could not show that the County Court appeal judge committed an error of law on the face of the record in exercising the Bunning v Cross[6] discretion not to exclude the certificates.

Difficulty proving s49(4) defence

The Court of Appeal dismissed a motorist’s appeal against Balmford J’s decision in the Crown appeal of DPP v Luff[7] who found that, on the evidence before the magistrate, there was sufficient evidence to show that the result was obtained from a properly operated breath-analysing instrument and the magistrate had erred in finding to the contrary and dismissing the ss49(1)(b) and 49(1)(f) charges.

The magistrate reasoned that because an operator gave evidence in cross-examination that he did not know which regulations he had complied with, her Worship could not be satisfied that the result was obtained by a properly operated machine by an authorised officer.

In Luff v DPP,[8] Vincent JA held at [27], Callaway and Eames JJA agreeing, in relation to the s49(1)(b) offence that while no obligation exists on the prosecution to prove a breath-analysing instrument was properly operated: “If, however, a reasonable doubt can be seen to exist concerning the reliability of the analysis, a magistrate may well not be satisfied that the commission of the offence has been established. That is not because there is an onus cast on the prosecution to establish that the instrument has been properly operated but because they have failed to prove ... an essential element of the offence ... ”.

However, concerning the s49(1)(f) offence, Vincent JA held at [35] in dealing with a submission that the Court should refuse to follow its earlier decision in Furze v Nixon:[9] “First, if the legislature intended that proof of the proper operation of the breath-analysing instrument was an element of the offence created by s49(1)(f), then it is remarkable that this was not explicitly stated. Second, the legislature has made specific provision by s49(4) for the possibility that the instrument may not have been in proper working order or properly operated on the occasion in question. If it had been contemplated that proof beyond reasonable doubt of these matters was required ... , any such provision would be otiose. However, s49(4) reverses the onus of proof with respect to these matters and evidences a clear legislative intention that the results of the analysis are to be accepted for the purposes of s49(1)(f), unless on the balance of probabilities the person charged establishes ... the instrument was not in proper working order or that it was not properly operated”.

The Court of Appeal’s decision reveals just how difficult it is in practice to prove on the balance of probabilities that the breath-analysing instrument was not properly operated for purposes of the s49(4) defence to the s49(1)(f) charge.

Police advising against blood test

In DPP v Moore,[1]0 the Court of Appeal dismissed a Crown appeal from the Supreme Court in DPP v Moore.[1]1 Balmford J heard that a magistrate accepted a defendant’s evidence that, after a test on the breath-analysing instrument revealed a reading of .074 per cent, the defendant then requested a blood test under s55(10). However, he took the operator’s advice that his blood-alcohol level would probably be higher than .07 when the doctor arrived, the operator also stating to the defendant “ ... if I was you, I’d cop the .07 and forget about the blood”. Her Honour held that the Crown had not shown that the magistrate erred in exercising a judicial discretion to exclude the certificate of analysis and dismissing the s49(1)(b) charge.

For a number of reasons contained in the 54-page judgment, the Court of Appeal’s decision in Moore has potential to be a paramount case in the “defence armoury” to defeat charges where a motorist furnished a sample into a breath-analysing instrument allegedly revealing blood alcohol in excess of the prescribed concentration.

Batt JA held at [32] that the magistrate actually erred in exercising the Bunning v Cross “public policy” discretion as that discretion was not available because the impugned police conduct occurred after the evidence was obtained, not before. However, Batt JA held at [35] that the general unfairness discretion discussed in Dietrich v The Queen[1]2 enlivened to exclude the certificate. This was because the magistrate found that the operator’s conduct caused the respondent not to seek a blood test, thus losing a possibility of him being able to lead evidence of a lower blood-alcohol concentration than 0.074 per cent, and dismissed the Crown appeal on that reasoning.

Chernov JA held at [51] and [57] that the Bunning v Cross “public policy” discretion did arise in the circumstances. There was no error by the magistrate in exercising it. His Honour further held that the general fairness discretion discussed in Lobban[1]3 also enlivened to exclude the certificate in the circumstances. He held that it would have been appropriate for the magistrate to have exercised discretion as the motorist was divested of an opportunity to obtain a blood test thereby challenging the accuracy of breath analysis, and thus depriving him of a trial which was not unfair.

Eames JA held at [93] that there was no reason why the Bunning v Cross “public policy” discretion should be unavailable simply because the police conduct followed immediately after the procuring of evidence rather than before. His Honour also held at [94] that the general unfairness discretion was open to be applied by the magistrate in addition to the public policy discretion. His Honour further stated at [95] and [96] that one additional factor in determining whether the respondent was denied a fair trial was the fact that the operator did not give evidence – the absence of the operator was a forensic advantage operating unfairly against the prosecution as no s58(2) notice was given by the defence nor any warning as to the defendant’s allegation. The question whether there was any relevant unfairness to justify exercise of the general unfairness discretion could not be answered in absence of a response from the operator as to the allegation.


One might be accused of understatement to observe that not an inconsiderable portion of the criminal jurisdiction of the Magistrates’ Court of Victoria and the appellate jurisdiction of the County Court of Victoria (as well as the Supreme Court and Court of Appeal) is taken up with litigation involving motorists accused of drink-driving and related offences.

The practitioner might look at recent observations of Smith J in a successful judicial review of a County Court appeal judge’s decision to convict a defendant on a drink-driving offence in Day v County Court of Victoria and Hansen[1]4 where he stated in relation to “the ongoing saga of challenges to convictions in this area”:

“On occasions, judicial interpretation of the Act has created results seen as unsatisfactory and which have been addressed by amendments to the legislation. That, it seems to me, is a price that has to be paid for the creation of what is a highly detailed and technical set of very difficult provisions, designed to facilitate the enforcement of the law, and so address the very serious problem of drink driving, by removing and limiting common law rights and protections, including those to be found in the common law rules of evidence. Another price that has to be paid is the taking of points by counsel for the accused which appear to be technical ... ”.

A criminal law practitioner might also recall the widely publicised comments of Brooking JA delivering the judgment of the Court of Appeal in Sher v DPP[1]5 who observed in relation to drink-driving litigation “ ... the hydra of technicality is a many-headed beast, and as one unattractive point is cut off, another rears up in its place”.

Bearing in mind what Smith J stated above in Day v The County Court of Victoria and Brooking JA’s wonderfully witty analogy conjuring up the mythical beast “the hydra” in Sher v DPP, a practitioner might fairly comment that “beauty is in the eye of the beholder”.

Some particularly constituted courts might find one type of so-called “technical argument” run by the counsel (acting on instructions to contest a drink-driving charge) to be singularly unattractive. Some other particularly constituted courts, on the other hand, might find that identical “technical argument” to be rather attractive or even the “belle of the ball”. After all, this is a convoluted area of criminal jurisprudence and one in which the Supreme Court and Court of Appeal have commented on its complexity.[1]6

It is not surprising, therefore, that some prosecutors, defence counsel, magistrates and judges have differing views on the merits of a particular “technical” point taken by the defence.

This might help explain the voluminous amount of appellate litigation generated by the prosecution and the defence against various decisions of magistrates and County Court appeal judges in drink-driving cases. One type of new or old “technical” argument might succeed at the Supreme Court or Court of Appeal.

It might not survive long as it may be legislated out of existence or the police may modify their procedures or scrutinise cases more closely prior to court to avoid it being successfully taken again. That seems part of the long history of drink-driving litigation in this state.

In this regard it might be said that our criminal justice system is doing what it is supposed to do.

WARWICK J WALSH-BUCKLEY is a member of the Victorian Bar specialising in the Road Safety Act and criminal law, and co-author of Motor & Traffic Law Victoria. The numbers in square brackets in the text refer to the paragraph numbers in the judgment.

[1] 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; “New drink-driving defences” (2002) 76(8) LIJ 73; and “Latest drink-driving defences” (2003) 77(4) LIJ 54. 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 vol 1, Lexis Nexis Butterworths.

[2] [2002] VSC 531.

[3] [2003] VSC 105.

[4] (1993) 17 MVR 194.

[5] [1999] 2 VR 643; (1999) 29 MVR 365; 104 A Crim R 426; BC9903077; [1999] VSCA 73.

[6] (1978) 141 CLR 54.

[7] [2003] VSCA 81. An interesting argument advanced on behalf of the motorist in relation to the subtleties of challenging the reliability of the breath-analysing instrument is referred to at paras 31, 32 and 33.

[8] (2001) 34 MVR 78; BC200104771; [2001] VSC 260.

[9] (2000) 2 VR 503.

[10] [2003] VSCA 90 (29 July 2003).

[11] (2002) 35 MVR 357; 129 A Crim R 95; BC200200563; [2002] VSC 29.

[12] (1992) 177 CLR 292 at 363.

[13] (2000) 77 SASR 24.

[14] [2002] VSC 426 at 12, paras 40 and 41.

[15] (2001) 34 MVR 153; 120 A Crim R 585; BC200104570; [2001] VSCA 110.

[16] For example, see the president of the Court of Appeal’s comments in Furze, note 9 above; 32 MVR 547; 113 A Crim R 556; BC200005174; [2000] VSCA 149; Bongiorno J’s observations in DPP v Croaker (2001) 34 MVR 397; 120 A Crim R 588; BC200106161; [2001] VSC 342 and Smith J’s dicta in Day, note 14 above, at 12.


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