Plaintiff v Defendant

1 Senior Constables Clinton Goff and Will Watson, performing highway patrol duties, intercepted Caleb Sheerin while driving his white Hilux utility on the Bass Coast Highway at Inverloch, Victoria one Sunday in February 2018. After the police obtained Mr Sheerin's details, they asked him to undergo a preliminary breath test. It was negative. The police then asked him to undertake a preliminary oral fluid test pursuant to section 55 D of the Road Safety Act 1986 (the Act).

2 Having administered that test, and reading from a card with pro forma text, Senior Constable Goff said to Mr Sheerin,

In my opinion the results of the oral fluid test indicated that oral fluid contains a prescribed illicit drug. I now require you to accompany me to the testing vehicle for the purpose of an oral fluid test and to remain there until you've undergone the test and received a sample of the fluid, or for a period of three hours from the time of driving or being in charge, whichever is sooner.

3 The police officer also informed Mr Sheerin that if he refused to accompany him to the police vehicle to take the oral fluid test he may be charged with an offence and penalised if found guilty. Mr Sheerin accompanied the police officers to the police vehicle where the oral fluid test was to be performed. Whilst at the police vehicle Mr Sheerin became agitated, pacing back and forwards, and complained to the police that they were holding him up. Senior Constable Goff told him,

You're not under arrest mate, you can leave if you want but just remember the consequences I read you.[1]

4 At that point Mr Sheerin left without waiting for the test to be taken and before 3 hours had elapsed since driving his vehicle. Mr Sheerin was charged with the following offence:

The accused at Inverloch on 11/02/2018 within 3 hours of being the driver of a motor vehicle was required to provide a sample of oral fluid for testing pursuant to section 55E(2)(a) of the road safety act 1986 and for the purpose he accompanied a police officer to a testing vehicle and did refuse to remain at the location prior to providing a sample in accordance with section 55E.

5 At the hearing of that charge Senior Constable Goff and Senior Constable Watson both gave their evidence and were cross-examined. At the conclusion of the prosecution evidence, counsel for Mr Sheerin submitted that the charge should be dismissed because it was defective in its composition, lacking any express allegation that Mr Sheerin had been required to remain. He submitted,

... what the charge needs to allege in order for the facts of this case to make out the charge or establish the offence in that the accused was required to remain after being required to accompany for the purpose of providing the oral fluid test - and it was that requirement being the requirement to remain that he transgressed against.

6 Due to pressure of court business on that day, the hearing was adjourned for the magistrate to consider the submissions and the cases to which he had been referred. Upon resuming nearly four months later, and having been reminded of the point which the proceeding had reached, the magistrate gave an ex tempore ruling which he acknowledged might have been better had he had more time to prepare it. In substance, he stated that the law on the subject was complex and, over the years, had involved many changes and superior court decisions. He appeared to accept Mr Sheerin's submission that the charge was confusing, saying he had 'reasonable doubt about the structure on which the charges were laid'. On that basis he dismissed it.

7 It is common ground that his Honour did not dismiss the charge for any failure by the prosecution to prove the facts it sought to prove. Rather, the magistrate accepted the submission that the charge as framed was defective. The Director (on behalf of the informant, Senior Constable Goff) appealed the dismissal pursuant to s 272 of the Criminal Procedure Act 2009 on a question of law. Her notice of appeal raises two questions:

(a) Did the learned magistrate err by dismissing the charge on the basis that it was defective?

(b) In the circumstances of this case, was the phrase 'did refuse to remain' as stated in the charge sufficient, or was the charge required to state that there had been a refusal of a requirement to remain?

8 In my opinion, for the reasons that follow, the charge as expressed was not defective and the magistrate made an error to dismiss it on that basis. The appeal must be allowed and the charge remitted back to the Magistrates' Court at Latrobe Valley to be heard and determined according to law.

9 The conduct with which Mr Sheerin was charged is made unlawful by s 49(1)(eb) of the Act. It states that a person is guilty of an offence if he or she,

(eb) refuses to provide a sample of oral fluid in accordance with section 55D or 55E when required under that section to do so or refuses to comply with any other requirement made under that section;

10 It is important to note that para (1)(eb) makes it an offence to refuse to provide a sample or to refuse to comply with 'any other requirement' made under either s 55D or s 55E (my emphasis).

11 Section 55D authorises a police officer to require a person to undergo a preliminary oral fluid test, as occurred in this particular case. Section 55E deals with the requirement to undergo an oral fluid test if the preliminary oral fluid test returns a positive result. After defining certain terms in sub-s (1), s 55E(2) provides,

(2) If a person undergoes a preliminary oral fluid test when required to do so under section 55D by a police officer or an enforcement officer and -

(a) the test, in the opinion of the police officer or enforcement officer in whose presence it is made, indicates that the person's oral fluid contains a prescribed illicit drug; or

(b) the person, in the opinion of the police officer or enforcement officer, refuses or fails to carry out the test in the manner specified in section 55D(6) -

any police officer or, if the requirement for the preliminary oral fluid test was made by an enforcement officer, any police officer or any enforcement officer may require the person to provide a sample of oral fluid for testing by a prescribed device and, if necessary, analysis by a properly qualified analyst within the meaning of section 57B and for that purpose may further require the person to accompany any police officer or, if the requirement for the preliminary oral fluid test was made by an enforcement officer, any police officer or any enforcement officer to a place or vehicle where the sample is to be provided and to remain there until -

(c) the person has provided the sample and any further sample required to be provided under subsection (5), the sample has been tested by a prescribed device and the person has been given (if necessary) a part of the sample under subsection (11) and complied with any requirement made of him or her under section 59; or

(d) 3 hours after the driving, being an occupant of or being in charge of the motor vehicle -

12 Careful attention must be paid to the structure and composition of s 55E(2). Paragraphs (2)(a) and (b) set out conditions which, if either occurs, trigger the operative provision. The operative provision comes immediately after para (2)(b) commencing with words 'any police officer or' and ending with the word 'until'. Paragraphs (2)(c) and (d) state the events that conclude the obligations created by the operative provision.

13 As emphasised in the text above, the operative provision authorises the police officer to make three requirements of a person if the conditions in para 2(a) or (b) are met, namely:

(a) to provide a sample of oral fluid for testing;

(b) and for that purpose,

(i) to accompany a police officer to a place or vehicle where the sample is to be provided; and

(ii) to remain there until the sooner of the time periods in para (2)(c) or (d) elapses.[2]

14 Mr Sheerin's argument was put in a variety of ways both before the magistrate and on appeal. They had subtle variations. In descending order of particularity, they can be summarised as these:

(a) The charge was defective for being ambiguous and did not enable Mr Sheerin to understand exactly what offence was alleged against him;

(b) The charge was defective because it did not identify precisely which requirement Mr Sheerin was said to have contravened;

(c) The charge was defective because it did not explicitly allege that Mr Sheerin had been required to remain at the testing vehicle for the relevant time frame.

15 The first two arguments amount to much the same thing and I will deal with them together.

16 Counsel for Mr Sheerin argued before the Magistrate that there was substantial ambiguity in the charge because of the numerous different offences that s 55E provides for. He argued that the charge did not make unambiguously clear which of those offences was alleged.

17 In support of the alleged ambiguity, he contended that the charge might be understood, first, to allege a contravention of the requirement to provide a fluid sample as provided under the substantive part of s 55E(2).[3] Alternatively, it might be understood to allege a contravention of s 55E(2)(c) for not providing a sample which is tested by a prescribed device with the person being given a portion of the sample.[4] Finally, it might be understood to allege a contravention of s 55E(2)(d) in failing to provide a sample within 3 hours of driving.[5]

So there is an ambiguity in the charge. Is he said to have failed to provide the evidentiary sample absolute? Has he failed to remain at the location for the purpose of providing a sample? Has he failed to remain at the location until a period of three hours elapses? Because we see each of those alternatives mentioned in part in the charge. But it does not nail its colours to the mast and say unambiguously there is one discrete requirement identified in the charge which he is said to have contravened and that's the heart of it ... an accused person ought to be able to understand that.

... I look at it and I say to Your Honour I honestly do not know which of those three alternatives one ought to conclude on the charge as it's drafted. They're each equally open. It's ambiguous and does not properly particularise these (sic) discrete requirement that he is said to have contravened.[6]

19 There have been a number of cases which have addressed similar provisions to s 49(1)(eb) and s 55E except that, rather than being concerned with oral fluid tests for the presence of an illicit drug, the provisions in those cases concerned breath analysis tests for the presence of alcohol.[7]

20 Section 49(1(e) of the Act creates offences for refusing to comply with requirements made under s 55(1) of the Act (among other specified sub-sections) to provide a sample of breath following the administration of a preliminary breath test. Section 55(1) has a structure and terminology that is, relevantly, the same as s 55E(2). It has been held that s 49(1)(e) creates as many offences of failing to comply with a requirement under s 55 as there are different kinds of requirements under s 55.[8]

21 Here, the 'Charge - Sheet and Summons' stated that the law under which the charge was laid was s 49(1)(eb) of the Act. So Mr Sheerin was informed that he was charged under a law making it an offence to refuse to provide a fluid sample under s 55D or s 55E or to comply with another requirement made under one of those sections. By the same reasoning that has been applied to the breath test provisions, s 49(1)(eb) creates as many offences of failing to comply with a requirement under s 55E in relation to oral fluid testing as there are different kinds of requirements under s 55E.

22 The offences created by s 49(1)(eb) include a refusal to provide a sample when required under s 55E to do so or a refusal to comply with any of the specific requirements authorised to be made in s 55E - relevantly to this case, in s 55E(2). Those specific requirements are the three I have identified, all contained in the operative part of the subsection, namely: to provide the sample, and for that purpose to accompany and then to remain (until the sooner of two things occur). The second and third are facilitative of the first yet give rise to divisible obligations the contravention of which give rise to separate offences.[9]

23 None of the three requirements belong peculiarly to any one of the individual sub-paragraphs in s 55E(2)(a), (b), (c) or (d). Instead, between them, those subparagraphs state the conditions which must exist for the police to make any of the requirements and define the time period within which the obligation to comply with a requirement extends. Specifying either s 55E(2)(a) or (b) tells the defendant the condition that triggered the authority for the police to make a requirement. The text of charge in this case alleges that Mr Sheerin

... was required to provide a sample of oral fluid for testing pursuant to section 55E(2)(a) ...

24 So, it is clear that it is alleged that he was required to provide the oral fluid sample (the primary requirement). Because of the explicit reference to s 55E(2)(a), the charge identifies that the condition relied on for making that requirement was that, in the police officer's opinion, a preliminary test administered under s 55D had returned a positive result.

25 The circumstance that gives rise to the power to make the requirement to provide the sample also gives rise to the power to make the further, facilitative requirements to accompany the police officer to the testing station and to remain there until the sample is provided and the result obtained, or 3 hours since driving elapses (whichever is sooner). In that context, the charge further alleges that Mr Sheerin,

...for the purpose [ie. of providing the sample] accompanied a police officer to a testing vehicle and did refuse to remain at the location prior to providing a sample in accordance with section 55E.

26 A charge is to be interpreted in the way in which a reasonable defendant would understand it, giving reasonable consideration to the words of the charge in their context.[10]

27 Adopting the perspective of the reasonable defendant interpreting the charge in its context, such a person could not sensibly have understood that the charge alleged a failure to comply with a requirement to accompany the police officer because the charge makes it clear that requirement was complied with. In bald terms, it is alleged that he did accompany but he did not remain. Only one refusal was alleged: the refusal to remain. Mr Sheerin argued that the charge was defective and did not appraise him of the nature of the offence charged because it did not tell him unambiguously the requirement he is said to have contravened. Because it is clear that it was his refusal to remain that was the basis of the charge, by necessary implication the only relevant requirement that could be in issue was a requirement to remain until the sample was provided or the 3 hours elapsed.

28 A charge might need to differentiate between the situation of a defendant leaving within the 3 hours without providing a sample at all or, having provided a sample, leaving within the 3 hours before the testing process was completed. Here, the former was specified in that the charge alleges that within 3 hours of him being the driver of the vehicle Mr Sheerin refused to remain at the testing vehicle before providing a sample. So, if triggered, his obligation to remain had not expired under either paragraph 2(c) or (d) at the time he departed.

29 So, the reasonable interpretation of the charge is that Mr Sheerin was charged with the refusal of a requirement to remain at the testing vehicle in order to provide a sample within 3 hours of driving, after he had accompanied the police officer to that vehicle for the purpose of taking the test. Counsel's submission to the magistrate created an illusion of ambiguity by depicting the features of that one charge - the requirement, its purpose and the period for which it operated - as if they might each have been the subject of a separate offence.

30 I reject the suggestion that there was any doubt, confusion, uncertainty or ambiguity as to the nature of the requirement that was relied upon as the basis for the offence charged. If the magistrate's conclusion that there was confusion in the formulation of the charge was based on this submission, unfortunately it was misguided.

31 The remaining issue is whether there was a defect in the charge because it did not explicitly allege a requirement to remain.

Was the charge defective for not explicitly alleging a requirement to remain?

32 It has been held that it is an essential element of a charge of this kind that there be an allegation that the police made the requirement which is said not to have been complied with - in this case, the requirement to remain.[11] Mr Sheerin submitted before the magistrate and again on appeal that the charge is defective because it lacks the essential allegation that the police officer required Mr Sheerin to remain at the testing vehicle. It is true that the charge does not say so in terms. However, that does not mean that the charge did not sufficiently allege that fact.

33 Mr Sheerin's argument is answered by what the Court of Appeal said in Bell in 2001. Charles JA (Winneke CJ and Chernov JA agreeing) endorsed the trial judge's conclusion that a charge alleging that a person had refused to accompany a police officer to a testing station (for a breath test under s 55 of the Act) necessarily carried with it the allegation that the person had refused a requirement to accompany the police officer.

34 Charles JA first noted the trial judge's reasoning and then drew his own conclusion about the matter:

Her Honour drew attention to the Oxford English Dictionary definition of the meaning of the verb "refuse" as "to decline to accept or submit to (a command, rule, instruction etc) or to undergo (pain or penalty)". In her Honour's view, interpreting the charge according to the ordinary meaning of the words used, the allegation that the defendant "did refuse to accompany ..." must necessarily imply an allegation of a requirement or request to accompany, although not necessarily a formal requirement.

...

... To my mind the use of the verb "refuse" in the charge conveyed sufficiently to the defendant that his alleged refusal must have followed some requirement or request to accompany, made as of right. Her Honour's conclusion on this aspect of Bell's submission was expressed as follows:

Given what I have found to be the effect of the verb "refuse", I find that by the use of that word, as required by s 49(1)(e), the charge "sets forth the acts which are relied upon as constituting the offence" (Latham CJ in Johnson v Miller); apprises the defendant of "the particular act, matter or thing alleged as the foundation of the charge" (Dixon J in Johnson v Miller); tells the accused "what law, statutory or other, he is alleged to have broken; and ... with reasonable particularity how he is alleged to have broken that law" (Salter J in Pointon v Cox ); and, finally, "describes the offence" as required by s 27 of the Magistrates' Court Act.

I entirely agree, with respect, with the reasoning which led her Honour to reject Bell's principal argument.[12]

35 It had been submitted that the charge was a nullity for lacking any explicit reference to a requirement to accompany having being made. An equivalent submission was put to the court in the present case. That submission is answered by the conclusion reached by the Court of Appeal in Bell:

Reading the charge against Bell as a reasonable defendant should, I think the defendant would be perfectly capable of reaching a correct conclusion as to the nature of the subject matter of the charge and its essential ingredients. The offence is therefore sufficiently identified to comply with s 27 of the Magistrates' Court Act, and it follows that the submission that the charge in Bell's appeal was defective and a nullity should be rejected.[13]

36 Mr Sheerin further submitted that not only was the charge a nullity for lacking an explicit reference to the police requiring Mr Sheerin to remain at the testing vehicle, but that defect was not capable of being cured by any amendment.

37 Again, that proposition is answered by what was said in both Greelish and in Bell. In Greelish, Buchanan JA observed that the charge that the defendant 'did refuse to accompany' was treated by the parties as alleging that the defendant had refused to comply with a requirement to accompany the police officer. Further, without commenting on whether or not it was necessary to do so, his Honour noted that the parties agreed that if the matter should be remitted to the magistrate for rehearing the charge should be amended by the addition of the words 'comply with a requirement to' before 'accompany'.[14] Similarly, in Bell, having held the charge was not invalid, Charles JA nonetheless said it might have been 'preferable', at the outset, to have expressly alleged a requirement to accompany, and opined that it would have been a correct exercise of the magistrate's discretion to have allowed such an amendment if sought.[15]

38 Whether or not such an amendment should be granted upon remitter of this charge to the Magistrates' Court will depend on whether an application to amend is made and, if so, the exercise of the magistrate's discretion in the circumstances that then exist. If sought, such an amendment could be as simple as adding the words 'a requirement' after 'refuse' in the charge.

39 But, for present purposes, it is sufficient to state that the charge as framed is not invalid or defective for lacking any express reference to such a requirement having been made. As in Bell, so here, a reasonable defendant reading the charge should be perfectly capable of reaching a correct conclusion as to the nature of the subject matter of the charge and its essential ingredients. As a matter of practical reality, it was plain that at the hearing before the magistrate Mr Sheerin had no difficulty understanding that the critical legal and factual issue that needed to be examined was whether Senior Constable Goff had required him to remain at the testing vehicle until the test had been carried out or 3 hours from driving had elapsed.

40 The appeal must be allowed. The order made by the Magistrates' Court on 14 March 2019 will be quashed and the charge must be remitted back to the Magistrates' Court at Latrobe Valley to be heard and determined according to law.

[1] In Mastwyk v DPP [2010] VSCA 111; (2010) 27 VR 92, 107 [63,] Redlich JA explained the nature of the power to require a person to accompany a police officer to a testing station and remain there, in relation to an equivalent power given under s 55 of the Act: 'In the absence of the express authority conferred by s 55 of the Act, a member of the police force would have no power to require a driver to accompany the officer to a police station for the purpose of a breath test. Section 55 provides a police officer with a limited tool of coercion, as a requirement is accompanied by the threat of penalty for non-compliance. The power differs from that of the power of arrest, however, as ultimately it leaves the driver with the choice of non-compliance, although non-compliance will then constitute the relevant offence.'

[2] These correspond to the three requirements identified in respect of the analogous provision in s 55(1) relating to breath analysis: see DPP v Greenlish (2002) 4VR 220, 223 at [12] (Buchanan JA, Phillips JA agreeing). To accompany and to remain were held to be separate requirements in DPP v Piscopo [2011] VSCA 275 [71].

[3] Transcript 14/3/19 p15, lines 12-17.

[6] Transcript 14/3/19 p15, line 22 - p16, line 11.

[7] DPP v Foster [1999] VSCA 73; [1999] 2 VR 643; DPP Reference No 2 of 2001 (Collicoat v DPP; Bell v Dawson) [2001] VSCA 114; (2001) 4 VR 55 ('Bell'); DPP v Greenlish [2002] VSCA 49; (2002) 4 VR 220 ('Greenlish'); DPP v Kypri [2011] VSCA 257; (2011) 33 VR 157 ('Kypri'), DPP v Piscopo [2011] VSCA 275; (2011) 33 VR 182 ('Piscopo').

[9] Greenlish, [15]; Piscopo [23]-[25], [71].