DPP Reference No 2 of 2001; Collicoat v DPP; Bell v Dawson [2001] VSCA 114

DPP Reference No 2 of 2001; Collicoat v DPP; Bell v Dawson [2001] VSCA 114 - VSCA 2001 case summary — Zoe

[56]

A breath test under s.55(1) is, no doubt, based upon the operation of s.53, since s.55 empowers a police officer to require a person to furnish a sample of breath for analysis by a breath analysing instrument only if there has been a preliminary breath test under s.53. I agree with the County Court judge, with respect, that a fact which must therefore be established in the proof of an offence under s.49(1)(f) is that a motorist has been "required" to furnish a sample of breath for analysis under s.53, having regard to what was said in Mills v. Meeking, and the authorities previously quoted in paragraph [22] above, and in particular the remarks of both Winneke, P.[20] and Ormiston, J.A.[21] in DPP v. Foster and Bajram. But there are a number of facts which must be established as part of the proof of such an offence, such as for example that the instrument used was a breath analysing instrument within the meaning of the Act and that the person who operated the instrument was duly authorised to do so. Of course it does not follow that all such facts, necessary though they may be to proof of the offence under s.49(1)(f), must be alleged in the charge. In my view the essential elements of the offence under s.49(1)(f) are prescribed by the section itself and do not by direct or indirect reference incorporate any other allegation of fact necessary to exist in order to create the offence. In my view this Court, indeed, decided to the contrary in Foster and Bajram, in the passages last cited. It follows that while there must be evidence led as to the practical operation of ss.53 and 55 in circumstances of a prosecution under s.49(1)(f), as a necessary precondition of proof of the relevant offence, these matters do not constitute essential elements of the offence so as to require individual particularisation in the charge. I conclude, therefore, that the charge as drawn referred to each of the matters capable of identification as an essential element in a charge under s.49(1)(f), and was therefore neither defective nor a nullity.

[62]

Collicoat's notice of appeal included some ten grounds which it is unnecessary to set out in full. The grounds themselves are highly repetitious, and the arguments in support of them were not only repetitious but, if I may say so, included repeated statements of, and much citation of authority for, the obvious. I summarise these arguments as follows. The principal submission was that the charge as alleged was a nullity for two reasons. In the first place it was said not to allege an offence at all, because a person does not commit an offence in refusing to have a preliminary breath test unless what was described as a "vehicle nexus" is established. If, for example, a pedestrian were required to have a preliminary breath test, no offence would be committed by a refusal to take that test. Secondly, it was submitted that the charge failed to specify which of the four alternatives in s.53(1) of the Road Safety Act was the basis for the requirement to take a preliminary breath test. Accordingly, so it was submitted, in the present case Collicoat (and the magistrate) would not have known whether it was alleged that the defendant had been found driving, or required to stop at a preliminary breath testing station, or had been the driver of a car involved in an accident, or was sitting in the back seat of a car, before being required by a member of the police force to take the preliminary breath test. Accordingly, Collicoat did not know what charge he had to meet, or what case the prosecution intended to prove. The charge alleged was, it was argued, therefore a nullity, and the Magistrates' Court accordingly had no jurisdiction to hear it, an essential element necessary to be included in the charge not having been alleged. The argument continued that an essential element could not be supplied by inference, and in so far as Tadgell, J. had held to the contrary in Smith v. Van Maanen, his Honour had erred. It was argued that simply to word the offence in terms of s.49(1)(e) told the defendant nothing and the deficiency was fatally defective. Collicoat's counsel submitted that O'Bryan, J. had been in error in failing to hold that it was an essential ingredient in the charge that the defendant was administered a preliminary breath test having regard to one or other of the limbs of s.53(1), and in not holding that it was incumbent on the Crown to allege the "vehicle nexus" in some form and stating which of them was relied on. Reliance was placed on a large number of cases, to some of which reference has already been made, particular emphasis being placed on what was said by Kirby, J. in Walsh v. Tattersall[23] as to the need for the application of a strict approach to the pleading of criminal charges, so that prosecutors are obliged at the outset to define with accuracy each criminal charge intended to be prosecuted, and to identify, in respect of each, the elements of the offence necessary to secure a conviction.

[73]

Bell's counsel made succinct submissions, supported by authority, that the charge against Bell was defective, and a nullity, on three separate bases. In the first place it was submitted that the charge alleged a requirement to furnish a sample of breath, but did not allege any refusal to comply with that requirement. This submission had not, I think, been made either to the magistrate or the judge and, although included in Bell's written submissions, was not pressed in this Court. There is, I think, nothing in the submission. The second argument was that the charge was defective, or even duplicitous, because, as with the Collicoat charge, it did not specify which sub-section of s.53(1) had been the basis of the requirement to take a preliminary breath test. This submission in my view fails for the same reasons as did the Collicoat appeal, in that although proof of the facts indicating which sub-section of s.53(1) was the basis of the requirement to take a preliminary breath test was necessary in proof of the offence, this was not an essential ingredient of the charge required to be specified in it. The charge was not, therefore, defective by reason of the failure to include mention of this matter. The third and principal argument was, however, that the charge alleged a failure to accompany the police officer, but did not allege the making of any requirement that Bell accompany the police officer, and consequently upon any interpretation of the charge it did not describe any offence and failed to allege any offence known to the law. The argument continued that the judge fell into error in saying that it was not necessary to allege in the charge that the requirement had been made and the charge should have alleged that Bell refused to comply with a requirement under s.55(1). The magistrate had dealt with this objection at the hearing by describing the omission as not an essential element of the charge, but a matter that could be dealt with either by the supply of particulars or by amendment. Bell's argument in this Court was that the magistrate had erred in this respect, that the making of a requirement to accompany was an essential element of the charge, and to permit the gap to be filled by supplying particulars of the requirement, or by amendment, was, in effect, to allow a fresh charge to be laid.

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Judgment (114 paragraphs)