McPherson v County Court of Victoria [2003] VSC 105

McPherson v County Court of Victoria [2003] VSC 105 - VSC 2003 case summary — Zoe

[15]

"It was common ground on the appeal that at no time had Sergeant Hickson required a sample of breath under s.55(1) or (2) from the appellant. This being so, Mr Walsh-Buckley submitted that an essential element of the charge had not been proved and that the charge must be dismissed. Further, he submitted that even if this threshold requirement in s.55(9A) was not strictly an element of the offence, under s.49(1)(g), the non-compliance was of a kind, which demanded that any exercise of judicial discretion should be exercised in favour of the appellant. (The prosecution) submitted that the failure by the respondent/informant to require a sample of breath was not fatal to the prosecution case. Assuming such a requirement was an element of the offence in all the circumstances of the case, I should exercise a Bunning and Cross discretion and admit the evidence of the taking of the blood sample and the certificate of analysis. In my opinion, I should exercise my discretion in favour of the prosecution and accept the tender of the Exhibits A and B (ie. evidence of the taking of the blood sample and its analysis) absolutely. I have no doubt that in the ordinary course of events, the appellant would have been required to take a breathalyser test at the Werribee Police Station. It is not the fault nor neglect of the police that that procedure did not eventuate. There is not the slightest suggestion that the failure to take a sample of breath was due to malicious intent or deliberate flouting of the law by the police. It was the statement by the appellant that he was suffering from chest pains which aborted the trip to the police station and took the appellant and Sergeant Hickson to the Werribee Hospital. The action taken by Sergeant Hickson was not only appropriate in the circumstances but his subsequent behaviour as confirmed by the appellant, was that of a reasonable and conscientious police officer. For example, he drove to Hoppers Crossing in order to bring the appellant's brother back to the hospital. Further since the failure to require a sample of breath was not intentional nor was it reckless I am of the view that that omission did not, in this case affect the cogency of the evidence relating to the blood sample and the analysis of the same. Mr Walsh-Buckley had argued that the intrusive nature of the taking of the blood sample, an invasion of a person's privacy, demands that there be strict compliance with the terms of s.55(9A). He went further and submitted during argument that even impossibility of compliance with the requirement of taking a sample of breath would not attract the exercise of the Bunning/Cross discretion. He submitted that legislative amendment is required rather than "law making" by Judges. Such approach is no doubt desirable in an appropriate case, but the case before me is not such a case. In these days where road accidents have enormous personal, social and economic consequences, driving a motor vehicle with a blood alcohol reading in excess of a prescribed limit qualifies as a serious offence. It is a valid exercise of judicial discretion to weigh in the balance the failure to comply with the relevant legislative provisions, which of course include the reasons associated with such a failure and the public interest. In the circumstances of this case and for reasons already stated I have no hesitation in concluding that I should admit the evidence. (The prosecutor) also relied on the provisions of s.57(9) as an alternative argument. The sub-section reads as follows - `Except as provided in ss.55(9A), 55(B) and 56, a blood sample must not be taken and evidence of the result of the analysis of the result of a blood sample must not be tendered unless the person from whom the blood has been collected has expressed consent to the collection of blood and the onus of proving that express of consent is on the prosecution.' I am satisfied that when the appellant consented for the taking of a blood sample he was "expressing consent to the collection of the blood". Accordingly, the certificate may be tendered absolutely on that basis, the result is that for the reasons advanced by the prosecution, the evidence is admitted and I find the charge proved."

[18]

"The jurisdiction of the court to review decisions of inferior courts and tribunals is limited. The jurisdiction is supervisory and does not entitle this court to canvass matters that it would on appeal. In a judicial review the court is exercising common law jurisdiction. The jurisdiction is different from an appeal. The judicial review procedure is concerned with the legality of what was done by the court or tribunal, and is not concerned with the merits of the decision under review. This is to be contrasted from an appeal, where the question usually is whether the decision is right or wrong, whereas the question of a judicial review is whether or not the decision is in accordance with the law. Order 56 is concerned with procedure. It abolishes the remedies and the nature of the old prerogative writs that nevertheless deserve the jurisdiction of the court to make prerogative writ-type orders. It is clear that the rules do not affect the common law jurisdiction of the court, and it is equally clear that this court has jurisdiction to make an order in the form similar to the old prerogative writ of certiorari, namely, quashing the decision under review. The scope of the jurisdiction was recently discussed by the High Court in Craig v South Australia.[3] In a joint judgment the Court said: `Where available, certiorari is a process by which the superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal, or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of an impugned order or decision upon one or more of a number of distinct established grounds: most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, or fraud, an error of law on the face of the record. Where the writ is sought on the ground of jurisdiction error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it. In contrast, where relief is sought on the ground of error of law on the face of the record, the superior court is restricted to `the record' of the inferior court or tribunal and the writ will enable the quashing of the impugned order or decision only on the ground that it is affected by some error of law which is disclosed by that record'."

[28]

"An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it directly recognises that jurisdiction does exist. Such jurisdictional error can effect either a positive act or a refusal or failure to act. Since certiorari goes only to quash a decision or order, an inferior court will fall into jurisdictional error for the purposes of the writ where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercise, jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction. Jurisdictional error is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of the kind which wholly or partly lies outside the theoretical limits of its functions and powers. An inferior court would, for example, act wholly outside the general area of its jurisdiction in that sense if having jurisdiction strictly limited to civil matters, it purported to hear and determine a criminal charge. Such a court would act partly outside the general of its jurisdiction if, in a matter coming within the categories of civil cases which it had authority to hear and determine, it purported to make an order of a kind which it lacked power to make, such as an order for specific performance of a contract when its remedial powers were strictly limited to awarding damages for breach. Less obviously, an inferior court can, while acting wholly within the general area of its jurisdiction, fall into jurisdictional error by doing something which it lacks authority to do. If, for example, it is an essential condition of the existence of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied, as distinct from the inferior court's own conclusion that it has, there will be jurisdictional error which the court or tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the court has jurisdiction to entertain. Similarly, jurisdictional error will occur when an inferior court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring jurisdiction requires that that particular matter be taken into account or ignored as a precondition of the existence of any authority to make that order or decision in the circumstances of the particular case. Again an inferior court would exceed its authority and fall into jurisdictional error if it misconstrues that statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case. In the last mentioned category of case, the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern."

[32]

"Clearly certiorari lies not only when a body purports to exercise a jurisdiction that it does not have, but also when a body fails or refuses to exercise jurisdiction that it does have: see e.g. the discussion in Public Service Association of South Australia v Federal Clerks' Union of Australia (1991) 65 ALJR 610. This is not a case in which there was error on the face of the record, however widely the expression `record' can be understood. The appellant's arguments depend upon their demonstrating that there was a usurpation of jurisdiction or a refusal (whether actual or constructive) by the County Court Judge to exercise jurisdiction. The mere fact that a tribunal has made a mistake of law, even as to the proper construction of a statute, does not necessarily constitute an error of jurisdiction. R v Toohey; ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170 at 268 per Aitkin J; R v Minister of Health (1939) 1 KB 232 at pp.245-6. It is important to observe that, on the views we have already expressed, there was no want of jurisdiction in the Magistrates' Court. The magistrate had proceeded to hear and determine the merits of the matter and to record a conviction. ... An appeal having been duly brought before the County Court Judge, the question for us is whether his erroneous decision that s.30(2)(a) was not complied with involved an error going to his jurisdiction and producing the result that his decision was subject to review. Since the appeal has been duly brought the argument for the appellants that the orders made by the Judge involved a usurpation of jurisdiction falls to the ground. It was not argued before this court - indeed it was not in our opinion properly arguable - that the County Court Judge was required to decide correctly that s.32(a) had been complied with before he had jurisdiction to engage in the re-hearing. Correspondingly, his decision - albeit erroneous - that s.32(a) had not been complied with did not mean that he had no such jurisdiction. His Honour having had jurisdiction to engage in the re-hearing had, as has sometimes been starkly put, as much jurisdiction to decide the case wrongly as he had to decide it correctly. To adapt the language of Lord Wilberforce in Amisminic Ltd v Foreign Compensation Commission [1968] UKHL 6; [1969] 2 AC 147 at p.210, his Honour was not making a decision outside his area; he was simply making a wrong decision within his area. There being no appeal from his decision, its correctness or otherwise is not to the point in determining whether he is amenable to judicial review."

[63]

"It seems to me to be reading a lot into the words `under s.55(1)' if they are to comprehend proof that the panoply of discretionary `requirements' to which the subsection refers, have been made of the motorist, and made in the street following the completion of the preliminary breath test. I would have thought, ... that the opening words of s.49(1)(f) are fulfilled by proof that the police officer formed the opinion described in s.55(1)(a) following the administration of a preliminary breath test (which is undoubtedly a precondition of the offence), and that, thereafter, the motorist furnished a sample of his breath for analysis by the approved instrument within three hours of driving: cf. Meeking v Crisp [1989] VicRp 65; [1989] V.R. 740 at 743. It is the fact of furnishing the sample of breath to which s.49(1)(f) specifically refers; not the fact that the person has been required to furnish the sample. Granted that an element of compulsion may be readily inferred from the fact that a person furnishes a sample of his or her breath into an approved instrument, it is not easy to see why a sample furnished by a willing and co-operative motorist after the administration of a positive preliminary breath is not as much a sample furnished `under section 55(1)' as is a sample furnished by an unco-operative motorist who has only been prepared to do so after a specific requirement, in terms of s.55(1), has been imposed: cf. Bunning v Cross [1978] HCA 22; (1978) 141 C.L.R. 54 per Barwick C.J. at 58, 63-4. The power to make the requirements of which s.55(1) speaks is obviously a power which is invested by the legislature in the police in order to effectuate the purpose and policies of the legislation. Without such powers, that purpose and those policies would be frustrated because police have no authority, from other sources, to require motorists to furnish samples of breath or blood. Because they are facilitative powers, I would have thought that it is not obligatory for the police officer to exercise them, let alone in the manner of a ritual incantation of the type which counsel for the respondents suggests. Rather, as I see it, they are powers which a police officer `may' exercise as and when circumstances dictate."

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