Furze v Nixon [2000] VSCA 149

Court of Appeal (Vic)|2000-08-21|Before: PHILLIPS, BATT and BUCHANAN, JJ.A.

For the reasons we have given we think that neither of the two points argued was relevant to the Crown case under s.49(1)(f). As therefore the questions reserved could not be said to have affected the appellant's conviction, none of them should be answered by this Court. We then have no ground upon which we could interfere with the decision below. If it matters, we can see no reason to suppose that the result in the County Court on appeal was inappropriate.

[2] Doidge v. Craig (1994) 19 M.V.R. 508

[8] These first six paragraphs were the source of the recital above.

[11] Moreover, as will be seen, we do not consider that either of these questions raises an issue that was material to the conviction of the appellant.

[12] 22 October 1958 unreported, quoted in Clissold [1981] V.R. at 262-3

[13] For example, Wallin v. Judge Curtain (1998) 27 M.V.R. 356 at 357 per Tadgell, J.A.

[15] These things were among those listed in reg.314 of the Road Safety (Procedures) Regulations 1988, as amended by S.R. 110 of 1994.

[16] On s.58(4), see Matosic v. Hamilton (1991) 13 M.V.R. 171

[18] (1992) 16 M.V.R. 349 (approving Curmi v. Matthews, County Court, 23 April 1991, unreported), two cases unaffected by the changes made to ss.55(4) and 58(2) by s.22 of Act No.19 of 1991: see s.22(4)(a) and (b).

[23] Compare Nicholl v. Hunter (1994) 20 M.V.R. 384 at 388-9. The Act has since been amended.

[24] But, in relation to an offence against s.49(1)(f), contrast Thompson v. Judge Byrne [1999] HCA 16; (1999) 196 C.L.R. 141 at 153-4, para [30].

[25] The introduction of this instrument, manufactured by Drager Australia in Melbourne, was the occasion for the substantial amendments made to ss.55, 57 and 58 of the Road Safety Act by ss.10, 11 and 12 of the Road Safety (Amendment) Act 1994 (Act No.17 of 1994). In Parliament the Alco Test 71107 was described as "fully automated", always analysing two samples of breath and thereby making unnecessary any request for a second analysis. The Minister said: "Once an analysis is commenced, nothing an operator can do will influence the result": Hansard (Legislative Assembly, 7 October 1993) vol.414 p.102.

[28] See, for example, R. v. Williams [1992] VicRp 24; [1992] 1 V.R. 374.

[29] [1989] VicRp 65; [1989] V.R. 740, affirmed by the High Court sub. nom. Mills v. Meeking [1990] HCA 6; (1990) 169 C.L.R. 214.

[31] [1992] 1 V.R. at 379-380 where the Full Court distinguished Mills v. Gilmore [1989] VicRp 39; [1989] V.R. 413.

[34] paras. [24] and [38]; see also para. [30] concerning s.57(2)

[35] Counsel did refer us to the decision of Ormiston. J. in D.P.P. v. Webb [1993] VicRp 82; [1993] 2 V.R. 403 to establish that compliance with s.55(4) was a necessary ingredient of an offence against s.49(1)(f), but Webb is of no assistance in that regard. His Honour was dealing only with ss.53 and 55(1): s.49(1)(f) refers specifically to s.55(1) and s.55(1) refers to s.53. As to s.55(1) see now D.P.P. v. Foster [1999] VSCA 73; (1999) 29 M.V.R. 365 at 375, 379; [1999] VSCA 73; 104 A. Crim. R. 426 at 437-8, 442.

[36] In Webb at 407 Ormiston, J. quoted what Tadgell, J. said in Smith v. Van Maanen (1991) 14 M.V.R. 365 at 371 were the essential ingredients of an offence against s.49(1)(f) and compliance with s.55(4) was not one of them. Compare D.P.P. v. Foster supra.

[38] Road Safety (Certificates) Act 1990, s.4 of which expressly saved the rights of the parties in Bracken v. O'Sullivan in the Supreme Court. We note that, since the added words do not refer expressly to a person, the references to "that person" in the operative parts of s.58(1) which follow are awkward where the relevant alternative condition is that introduced by the amendment; but the intention of Parliament is clear and a theoretical foundation for giving effect to that intention can be found in, for instance, implying words such as "in respect of any person" at the end of the added words.

[41] Nicholl v. Hunter (1994) 20 M.V.R. 384 was also decided while s.58(2) was in this form and it was common ground that s.55(4) had to be satisfied, as noted at 386. (The case involved an offence committed on 30 August 1993; it was determined on 15 July 1994.)

[43] Miscellaneous Act (Omnibus Amendments) Act 1995 s.51(5).

[45] These words were removed also from s.58(2E) and "referred to in sub-section (2)" substituted.

[46] In s.55(4) the word "deliver" was replaced with "give". As for s.58(2E) see last footnote.

[47] McKenzie v. McFadzean (1996) 23 M.V.R. 327 at 329 per O'Bryan, J.

[49] (1996) 24 M.V.R. 568. The offence was committed on 17 September 1995 and judgment was given by Beach, J. on 5 September 1996.

[50] Both the section and the regulation have been changed since 5 December 1997 when this County Court appeal was determined. As amended (as from 1 May 1999) by s.4(5)(a) of the Road Safety (Amendment) Act 1998 (Act No.57 of 1998) s.58(2) no longer refers to a document "purporting to be certificate in the prescribed form" but to one "purporting to be a certificate containing the prescribed particulars". Reg. 314 was lost with the repeal of the Road Safety (Procedures) Regulations 1988 and their replacement (as from 1 May 1999) with the Road Safety (General) Regulations 1999, reg.203 of which provides that "a certificate under section 55(4) must ... contain the following prescribed particulars" which it then lists after the fashion of the former reg.314.

`It cannot be too clearly understood that on a "case stated" the facts stated are to be taken as the ultimate facts for whatever purpose the case is stated. The Court is not at liberty to draw inferences unless the power is, by express words or by necessary implication, specially conferred by some enactment'- Mack v. Commissioner of Stamp Duties (N.S.W.) [1920] HCA 76; (1920) 28 C.L.R. 373 , at p.381_._

`Unless care is taken to distinguish between "inference" and "implication", confusion is likely to occur. An implication is included in what is expressed: an implication of fact in a case stated is something which the Court stating the case must, on a proper interpretation of the facts stated, be understood to have meant by what is actually said, though not so stated in express terms. But an inference is something additional to the statements. It may or may not reasonably follow from them: but even if no other conclusion is reasonable, the conclusion itself is an independent fact; it is the ultimate fact, the statements upon which it rests however weak or strong being the evidentiary or subsidiary facts' - The Merchant Service Guild of Australasia v. The Newcastle and Hunter River Steamship Co. Ltd. [No.1] [1913] HCA 76; (1913) 16 C.L.R. 591, at p.624.

'It has been authoritatively decided by this Court in several cases that no inferences of fact can be drawn by the Supreme Court or this Court in such circumstances . . . - Dickson v. Commissioner of Taxation (N.S.W.) [1925] HCA 29; (1925) 36 C.L.R. 489, at p.497."

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