DPP v Foster; DPP v Bajram [1999] VSCA 73

DPP v Foster; DPP v Bajram [1999] VSCA 73 - VSCA 1999 case summary — Zoe

[52]

Mr. Hillman submitted that his Honour was wrong to conclude that the informant in a prosecution of the offence created by s.49 (1) (f), was required to prove that, at the conclusion of the preliminary breath test, the relevant police officer had told the motorist that he was required to remain at the police station until he had furnished the sample of breath or until 3 hours had elapsed from the time of driving, whichever was the sooner. Indeed it was Mr. Hillman's submission that none of the "requirements" referred to in s.55 (1) was an indispensable pre-condition of, or ingredient in, proof of the offence created by s.49 (1) (f). He submitted that the words "under s.55 (1)" were there to point up the fact that the offence could only be committed where the breath test had been administered following a "positive" preliminary breath test and that the words only imported an obligation upon the prosecution to prove the essential ingredients necessary to show that the test was one carried out in conformity with s.55 (1); namely that a preliminary breath test had been conducted pursuant to s.53; that the police officer present had formed the opinion required by s.55 (1) (a) and that the subsequent breath test had been properly conducted in accordance with the section. He contended that the "requirements" contained within s.55 (1) were not essential ingredients of the "breath test" contemplated by the section, but rather were powers which the legislature had invested in police officers for the purpose of ensuring, where it became necessary, that such test could be carried out in pursuit of the objectives of the statute. There was nothing in the structure or content of the Act, he submitted, which suggested that the police officers "powers to require" were to be exercised "willy-nilly". Rather the Act demonstrated that the powers were to be exercised only if and when the occasion arose. That occasion would only arise, he submitted, if the motorist displayed an inclination not to co-operate, in which case it would be necessary for the officer to exercise his "power to require" in order to establish the commission of an offence under s.49 (1) e) of the Act; namely the offence of "refusing to comply with a requirement made under s.55 (1) ...". Mr. Hillman contended that it would be, in any event, a nonsense for a police officer, having formed the required opinion after the administration of a preliminary breath test, to require a motorist to remain at a police station until he had furnished a sample of breath or for 3 hours after the driving when the occasion for such a requirement had not arisen and might never arise.

[53]

In response to the submissions made on behalf of the Director, Mr. Holdenson, who appeared for the respondents, submitted that the conclusions reached by the judge below were correct. He submitted that the words "under s.55(1)", where contained in the offence created by s.49 (1) (f), mean "in compliance with s.55 (1)" and that they clearly imposed the obligation upon the prosecution to prove that the breath test administered "under s.55 (1)" was one preceded by the relevant requirements. He submitted that it had consistently been held by the High Court and judges of the Supreme Court that the requirement to "furnish a sample of breath for analysis" was a necessary pre-condition or ingredient of the offence created by s.49 (1) (f) and that it was logical to conclude that, if the fulfilment of that requirement was an "element" of the offence, then the requirement "to remain" was likewise "an element". Mr. Holdenson sought to distinguish what he called the "dispensation cases" as cases decided on their own facts, submitting that the courts must have been satisfied that the motorists, being "fully informed" of their rights, had waived them. In any event, he contended, those decisions were incompatible with decisions of the High Court and that, accordingly, we should not follow them. Alternatively he contended that they were wrong and that this Court should be prepared to overturn them (R. v. Tait [1996] VicRp 48; [1996] 1 V.R. 662 at 666, per Callaway, J.A.). It was Mr. Holdenson's submission that Part 5 of the Act empowered police to make substantial intrusions into the liberty of the subject and that, in that context, the "requirements" contained in s.55 (1) were designed to impose a duty to inform motorists of the reasons why their liberty was being interfered with and the length of time for which such interference would, or might, occur. It was not enough, he contended, for the "requirements" to be made "as and when the occasion arose". The information was to be conveyed "at the outset" through words of command. It was not good enough, he contended, for police officers to use precatory terms, or terms of "request". He submitted that, although it was not necessary to couch the requirements precisely in the terms of the statute, words to the following effect should be used:

[119]

The President in his judgment (at para.26) has stated that he is "prepared to accept, for present purposes, that the authorities to which Mr Holdenson refers obliged the Court to find that the prosecutor must prove that the motorist has been 'required' to furnish a sample of breath for analysis as a necessary precondition of proof of the offence created by s.49(1)(f)". He has then stated, correctly in my respectful opinion, that he does not accept that the requirement must be expressed in terms of an "imperative demand", or that it should be made at the outset or that each of the requirements to which s.55(1) of the Road Safety Act 1986 ("the Act") refers must be incorporated in a valid requirement for the purposes of a prosecution under s.49(1)(f). However, if and insofar as the learned President has suggested that some requirement to furnish a sample of breath for analysis is not a necessary precondition for a successful prosecution under s.49(1)(f) of the Act, then I would, with due respect, maintain the view that I expressed in D.P.P. v. Webb [1993] VicRp 82; [1993] 2 V.R. 403 at 407. In other words I consider that the necessary conditions for a prosecution under para.(f) include: (1) the undergoing by the accused of a preliminary breath test when so required under s.53, (2) either a test producing a result that the accused's blood contained alcohol or a refusal or failure to carry out a test in accordance with s.53(3) and (3) a requirement by a police officer (or other official named in the section) that the person "furnish a sample of breath for analysis by breath analysing instrument". Then, as now, I would reach that conclusion by following what Tadgell, J. said in Smith v. Van Maanen (1991) 14 M.V.R. 365 at 371 and in particular what had been said by Mason, C.J. and Toohey, J. in Mills v. Meeking [1990] HCA 6; (1990) 169 C.L.R. 214 at 219, 222 and 223-224, a judgment which was confirmed in all essentials by the High Court this year in Thompson v. His Honour Judge Byrne [1999] H.C.A. 16. A necessary precondition for a successful prosecution under s.49(1)(f) is that it has been shown that within three hours after driving or being in charge of a motor vehicle the accused has furnished a sample of breach for analysis "under s.55(1)" of the Act. Having regard to the penalty imposed one would not lightly assume that the furnishing of a sample of breath required to be demonstrated was a mere casual breathing into a breath analysing instrument. Thus the paragraph requires the furnishing to take place "under s.55(1)".

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Judgment (127 paragraphs)