Hrysikos v Mansfield [2002] VSCA 175

Hrysikos v Mansfield [2002] VSCA 175 - VSCA 2002 case summary — Zoe

[5]

Although it carried and still carries quite significant penalties, an offence under s.49(1)(e) would perhaps be seen at the lower end of the scale of seriousness of road traffic offences of this kind; certainly that would be so if the appellant were correct. The offence of refusing to comply with a requirement made under certain provisions in Part 5 of the Act concerning the taking of breath tests was and is designed[1] to ensure that people will not escape from the consequences of driving under the influence of liquor because they cannot be forced to undergo the relevant tests. In order to ensure that certain requirements under s.55 were and are complied with, which in turn would lead to the obtaining of evidence of a kind which would ensure effective prosecution of offenders for the more serious offences under s.49(1) of the Act, para.(e) makes "refusal" to comply an offence in itself. As will be seen it is refusal, rather than non-compliance, which is penalised. First, however, one must see what is the nature of the requirement. The relevant requirement in the present case was under s.55(1) of the Act which, although similar in form to the other requirements referred to in para.(e), is expressed in very elaborate terms.[2] In essence, though, at the relevant time the sub-section provided that, if either a person underwent a preliminary breath test which indicated that the person's blood contained alcohol or there had been a refusal or failure to carry out the preliminary test properly, then "any member of the police force ... may require the person to furnish a sample of breath for analysis by a breath analysing instrument ... and for that purpose may further require the person to accompany a member of the police force ... to a police station or other place where a sample of breath is to be furnished and to remain there until the person has furnished the sample of breath and been given the certificate ... or until three hours after the driving ...". (Emphases added.) It is first important to note that that any requirement under the sub-section itself did and does not, as was conceded, involve any arrest of the subject of a proposed test. A requirement by a police officer does not result in confinement for the purpose of the test. Rather the two sections should together be construed so as to impose a penalty for a driver who chooses to ignore any such requirement and refuses to comply with it. So much was accepted on both sides on the hearing of this appeal.

[10]

would lead to the risk that in fact drivers subject to these requirements might "escape" and not undergo the tests or that they might ingest (I can express it no more precisely) some further drink or food which might affect the validity of the breath test they were required thereby to undergo. For myself I am not clear that these things cannot occur in any event, certainly if the driver were required only to attend at a designated police station and remain there. If drivers are not under arrest, then it seems to me that while waiting they can conduct themselves as they choose, so long as they do not breach the peace or otherwise interfere with normal police operations, and it would also seem to follow that relatives and friends could not be prevented from speaking or dealing with drivers as they waited, for that is not the nature of the detention connoted by the obligation to attend and remain at a designated place. Police stations are many and various in size and layout. They may be purpose built, or either office buildings in the city or in country towns or conventional houses adapted for police use in suburb or country. Doubtless most have comparatively little public space but a requirement of the kind contemplated under s.55(1) could not oblige persons to stay throughout the three hour period only in a specified room and it must surely be permissible for such drivers to wait in areas where they could not be said to be in custody as such, so that they might fairly wait in some public area, or on a verandah, or for that matter in a yard, so long as the yard could be said to be part of the station and within easy calling distance by the police officer. It would be amazing in such circumstances if a person using the toilet facilities, whether within the building or outside in the yard, would thereby be treated as refusing to comply with the stated requirements. Common sense and flexibility is what is demanded and the section in effect says as much by penalising refusal rather than failure to comply.

[12]

For the purposes of this appeal it is important to know something of the "place" which the respondent had been required to attend for the purpose of undergoing the breath test. There can be little doubt that "other place" included a mobile breath testing vehicle or station, but precisely what that expression meant, as used by the appellant on the night, is by no means so clear. For this purpose it is necessary to examine some of the factual background which was outlined to us by senior counsel for the appellant which, as I understand it, was taken substantially from the evidence, but to the extent it went beyond that evidence counsel for the respondent expressly agreed that it was an accurate description. Although these mobile stations are and have been colloquially called "booze buses", they are in fact trucks or vans, the provision for the seating of police officers as passengers being confined to two rows at the front of the van. The rear part of the van, where the breath testing is in fact carried out, consists of an area of moderate size divided into two compartments. Each area ordinarily contains one operator conducting breath tests with the appropriate equipment pursuant to s.55 of the Act. It seems that each compartment has another table at which suspected drivers are asked a number of questions ordinarily by the officer who has conducted the preliminary breath test and has required the attendance of the driver at the mobile station. Entry to the van may be gained by a side door but there seems also ordinarily to be a rear door to the rear compartment, as well as a sliding door between the compartments. There is some limited provision for seating on chairs or benches within each compartment. It was conceded that the area of each compartment was approximately 8 to 9 feet by 8 to 9 feet, perhaps a little longer but not greatly so. Ordinarily a suspected driver is directed into one or other of the compartments and it is not common for suspected drivers to be moved from one compartment to the other for the purpose of testing. Although there may be room for more than two persons to be seated in each compartment, there is no waiting area within the mobile station and it was asserted that, if another suspected driver had to be tested, while another driver is waiting for a further test, there was no provision ensuring privacy for the second driver during testing. It seems that, having regard to the existence of two testing compartments, it was ordinarily unlikely that there would be any delay involving the need by any drivers to wait. However, it must be recalled that a requirement under s.55 could oblige a driver to remain at the designated mobile station for up to three hours for the purpose of being tested. I would add that counsel conceded that there were no toilets in or attached to the mobile station, but he suggested that, if a driver had had the need to use them, there were toilets situated some metres away in a large service station nearby, though he was unable to refer to any power of dispensation or the like, other than necessity, which would permit such a driver to venture so far afield.[5]

[19]

I cannot agree. Refusal is a matter to be inferred from the totality of the circumstances, and what is proscribed is not merely a refusal "to remain"[6], but a refusal to comply with the whole of the relevant requirement, being the requirement to remain at the designated place for the purpose of having a breath test conducted and a certificate furnished to her.[7] Having regard to the obvious concession that the requirement does not involve an arrest, the question in each case must be whether the person so required has exhibited an intention to be unwilling to remain at the designated police station or "other place" in order to undergo the test. If one could not infer a refusal to remain for the purpose of the test, then the precise place to which the respondent moved was of little consequence, so long as in practical terms she would have been able to comply with a request for the testing of her breath within a very short but reasonable time having regard to all the circumstances. There cannot be an obligation to remain seated or standing next to the table at which the test is to be carried out for a period of up to three hours, for that is not what a requirement under s.55(1) should state. The sub-section describes a practical but reasonable requirement. At a police station there is clearly no power to require a driver to remain in a cell, so that there must be scope for some flexibility if the operator is unable to conduct a first or later test immediately on the driver. If there is a room set aside for the testing, the section does not require the driver to remain in that room but merely at the station, whatever facilities by way of waiting rooms and the like it may have. Some point was taken before the magistrate that the section as originally passed referred to a police station "or the precincts thereof", but that was repealed and re-enacted in the form which is relevant to the present offence. Subsequently in 2001[8] the expression was amended so as to read "to a place or vehicle where ... " [9]. We were not referred to the parliamentary history of the original amendment, although the latter amendment seems to have resulted from the decision in DPP v. Williams[10]. For myself I would doubt that the particular amendment made in 1989 can be used to infer that Parliament intended that the person so required had to remain within the four walls of the building used for the purposes of a police station. It would be remarkable if, say, a driver were not permitted to use the toilets in the yard of a country police station. In each case one would have to look to the precise circumstances and the layout of the police station to see what was reasonable and so what amounted to a refusal to comply. A person who waited on a verandah could hardly be said to be refusing to comply with such a requirement, and walking from the verandah to a front garden or yard in close proximity would hardly seem to be an act which would permit the drawing of an inference that a person refused to remain at the police station to undergo the necessary test.

At a glance

Court

Decision date

Before

Source

Judgment (125 paragraphs)

Parties

Cases Cited (1)