this product is unavailable for purchase using a firm account, please log in with a personal account to make this purchase.

Drink-driving detours

Feature Articles

Cite as: (2008) 82(9) LIJ, p. 48

New defences to drink-driving offences continue to be created, with mixed success.

By Warwick J Walsh-Buckley

Despite persistent attempts by the Victorian Parliament to discourage people from drink-driving, many motorists are still being charged with exceeding their prescribed concentration of alcohol or related offences under the Road Safety Act 1986 (Vic) (the Act). Although the legislature creates difficulties for defence of such charges, some motorists still succeed in having them dismissed.

The following is a sample of new Supreme Court decisions since the author’s previous articles for the LIJ1 on drink-driving and related offences or matters where some motorists were successful on appeal or review and some were not.

Discretion for alcohol ignition interlock condition

In Jon Robinson v Christine Nixon,2 Smith J held (at [2]) that a magistrate at a licence restoration hearing erred in finding he had no discretion but to impose an alcohol ignition interlock for three years in circumstances in which he did have discretion, as a result of the operation of s50AAA(3A) of the Act, on imposing such a device and on the period for which the device had to be fitted. The police prosecutor had failed to draw the magistrate’s attention to the fact that discretion existed. Smith J held (at [3]): “It is not surprising . . . that the error occurred having regard to the extraordinary complexity of the provisions involved” and (at [16] and [17]) “there is no doubt that the appellant had a right of appeal to the Supreme Court notwithstanding there existed a right of appeal to the County Court and a Supreme Court appeal was justified because the primary position of the appellant was that the imposition of the condition was vitiated by error of law”.

Reopening to prove authorisation to operate instrument

In Burridge v Tonkin3 Williams J held (at [66]-[71]) that a magistrate did not err in exercising his discretion to allow the prosecution to reopen its case to prove that the operator was authorised by the Chief Commissioner to operate the breath analysing instrument in the circumstances, which included late service of a s58(2) notice, and the operator entering the witness box unaware of the magistrate’s ruling on that notice and its content. The magistrate expressed the view that proof of the operator’s authorisation was not merely a “formal” matter.

Miscarriage of discretion to exclude analysis certificate

In DPP (Vic) v Riley4 Hansen J allowed a Crown appeal against dismissal of ss49(1)(b) and (f) charges – exceeding prescribed alcohol concentration – after the magistrate excluded the certificate of analysis from the breath analysing instrument, on the basis that the magistrate failed to exercise the Bunning v Cross public policy discretion by reference to relevant criteria, thereby causing the discretion to miscarry. The magistrate had found that the defendant was in lawful custody for a time after lawful arrest after an interception following his erratic driving of a motor vehicle, but there was a short period of unlawful detention and some excessive pepper-spraying by police.

However, Hansen J found in the circumstances that the magistrate did not take into account the period of unlawful detention in the exercise of the public policy discretion to exclude the evidence; rather the discretion was exercised in relation to certain “excessive” conduct by police after the motorist’s removal from the car. Hansen J held (at [28]) that the motorist was “lawfully arrested” on suspicion of car theft, but the magistrate erred in excluding the certificate because it could not be said that the breath analysis evidence was obtained by means of the excessive roadside conduct, which was why the magistrate excluded the evidence.

Validity of accompaniment by imprisonment in divisional van

In DPP v Mastwyk5 Kyrou J allowed a Crown appeal against a magistrate’s dismissal of a s49(1)(e) charge of refusal to accompany for a breath test because the magistrate applied the wrong test. The magistrate found that a requirement under s55(1), involving the motorist accompanying the police to the breath test location, was invalid because the motorist would be imprisoned in the rear compartment of the police divisional van. Kyrou J held (at [41]) that Eames JA’s obiter about reasonableness of s55 requirements to accompany in Hrysikos v Mansfield6 should be adopted in the resolution of this case. Accordingly, Kyrou J held that “ . . . a requirement made under s55(1) to accompany a police officer . . . to a place for the purpose of furnishing a sample of breath must be objectively reasonable at the time that it is made”. While not defining “reasonableness” for the purpose of requirements to accompany, his Honour gave examples (at [42]-[46]) of unreasonable requirements.

Kyrou J stated, more specifically (at [46]): “Where the form of accompanying proposed is the rear compartment of a police divisional van, that is a relevant consideration in determining whether a requirement made under s55(1) is reasonable. This is particularly so if . . . the rear compartment of a police divisional van constitutes imprisonment”.

The correct test for the magistrate to apply was whether the requirement to accompany in the rear compartment was a reasonable one.

Kyrou J also stated (at [61]-[65]), “. . . I cannot accept the proposition that a requirement made under s55(1) for a person to accompany the police to a place of testing in the rear compartment of a police divisional van will always constitute imprisonment so as to always render such a requirement invalid . . .
[However,] the individual concerned must have the ability at all stages of the journey to communicate to the police his or her desire to leave the vehicle and the police must be willing to comply with such a request. If . . . a person in the rear compartment of a police divisional van is not able to effectively communicate to the police officers in the front compartment a request that they stop the vehicle and allow the person to leave the vehicle, or if the police are not willing to comply with such a request, then the use of the police divisional van as a means of accompanying would constitute a form of imprisonment which would invalidate a requirement . . .

“The learned magistrate should have determined whether, on the basis of the evidence . . . including the proposed transport in the rear compartment of the police divisional van, the requirement . . . was reasonable. A relevant consideration was whether the police officers informed Ms Mastwyk that she could not be forced to enter the rear compartment of the police divisional van against her will and of the consequences of not accompanying the police, and the reasons given by Ms Mastwyk for declining to enter the rear compartment . . . Another relevant consideration was whether the police divisional van . . . provided an effective means by which a person in the rear compartment could at any time request the police officers in the front compartment to stop the vehicle to allow the person to leave the vehicle.”

The matter was then remitted by his Honour to the magistrate for rehearing and determining according to law. If the magistrate, on considering the relevant considerations adumbrated by Kryou J, found that in the circumstances the requirement was unreasonable because it would involve an imprisonment, then the charge would be dismissed.

Defectively pleaded charge

While the Crown sometimes challenges dismissals of charges to the superior courts, it sometimes abandons its appeals or reviews. An example of this is DPP v Kidd,7 where the Crown applied for judicial review of a County Court appeal judge’s dismissal on 20 August 2007 of a s49(1)(e) charge of refusing to accompany police for a breath test. White J had found that the pleaded charge was duplicitous because it referred to a requirement to furnish a breath sample pursuant to s55 of the Act without pleading in the charge which particular sub-section the requirement was made under. His Honour also reasoned that that charge failed to sufficiently disclose an offence under s55. He further ruled that an averment that a preliminary breath test had been undergone pursuant to s53(1) of the Act was an essential ingredient of the offence, the omission of which in the charge could not be remedied by way of amendment.

The Crown abandoned its judicial review application, with costs ordered against it almost 10 months later before the Listing Master.


The above brief discussion represents a small cross-section of appellate litigation arising from courts exercising jurisdiction over drink-driving and related matters. Certain types of defences may come and go. Some defences may lead to legislative change to remove them. Other defences may result in a change in police tactics to stop them being successfully argued. New defences seem to keep being devised with mixed success.

Certain provisions of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter) may, in some situations, also have some potential positive impact for those motorists who wish to defend these sorts of charges. No doubt some arguments arising out of the Charter, if leading to successful defences on occasion, are likely to find their way to the superior courts of this state. l

WARWICK J WALSH-BUCKLEY is a Victorian barrister, practising mainly in Road Safety Act and criminal law, and co-author of Motor & Traffic Law Victoria.

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; “Latest drink-driving defences” (2003) 77(4) LIJ 54; “The Hydra of technicality – drink-driving defences – 2003” (2004) 78(03) LIJ 52; “Drink-driving – the latest defences” (2004) 78(06) LIJ 58; “Getting technical: additions to drink-driving defences” (2005) 79(07) LIJ 66; “Building a defence against drink-driving charges” (2007) 81(1 & 2) LIJ 64; “Clamping down: drink-driving penalties and some defences” (2007) 81(8) LIJ 62. Also see “The rise and fall and rise of drink-driving defences in Victoria” (2001) 25 Criminal Law Journal 276; “The drink-driving defence armoury in 21st century Victoria” (2006) 30 Criminal Law Journal 38; and discussion of the Road Safety Act 1986 Part 5 in Motor and Traffic Law – Victoria, vol 1 (Lexis Nexis Butterworths).

2. [2007] VSC 153.

3. [2007] VSC 230.

4. [2007] VSC 270.

5. [2008] VSC 192. At the time of writing, the motorist has applied for leave to appeal to the Court of Appeal. If leave is granted, the appeal is not likely to be decided until 2009.

6. (2002) 5 VR 485.

7. No 8934 of 2007 – abandoned by the Crown before Master Kings, 18 June 2008.


Leave message

 Security code
LIV Social