Plaintiff v First Defendant

2 Mr Marijancevic disputed the accuracy of the evidentiary breath test result, and asked for a blood sample to be taken. At 9:54 pm, police requested the attendance of a nurse to take the sample. A nurse, Sarah Long, was despatched and left Balwyn at 10:12 pm to drive to Sunshine. At 10:41 pm, while she was still en route, Constable Kwok Yu contacted Ms Long and cancelled the request.

3 There was a dispute about the circumstances in which the request was cancelled. Constable Yu said that he did so because he could not find Mr Marijancevic in the foyer or outside the Sunshine police station, and was told by a civilian in the foyer that a person had left, saying that he could not be bothered waiting for a blood test. Mr Marijancevic maintained that he had waited at the police station, mainly in the foyer, until about 11:30 pm. He said that he did not leave until after he was told by a police officer that the blood test had been cancelled.

4 Constable Yu charged Mr Marijancevic with two offences involving driving a motor vehicle while more than the prescribed content of alcohol was in his breath, contrary to s 49(1)(b) and (f) of the Road Safety Act. The charges were heard by Magistrate Jones on 16 June 2017. The magistrate found Mr Marijancevic guilty of one charge, and ordered that Mr Marijancevic's driver licence be cancelled for a period of 16 months. The other charge was withdrawn.

5 Mr Marijancevic appealed to the County Court, against both conviction and sentence. The appeal was heard by Judge Bourke on 12, 13, 16, and 20 April 2018. A key issue was the admissibility of the certificate given under s 55(4) of the Road Safety Act. On 20 April 2018, the judge ruled the s 55(4) certificate admissible.

6 His Honour found the charge proven, recorded a conviction, and disqualified Mr Marijancevic from obtaining a driver licence for a period of 16 months from 16 June 2017. The judge did not impose a fine, given that police had wrongly impounded and later destroyed Mr Marijancevic's car.

7 In this proceeding, Mr Marijancevic seeks judicial review of the appeal judge's ruling that the s 55(4) certificate was admissible. He seeks a declaration that the ruling was invalid, and orders quashing the ruling and directing the County Court to hear and determine the appeal according to law. The grounds on which he challenges the validity of the ruling are that the appeal judge:

(a) failed to take into account relevant matters that he was bound to consider, being the evidence of Constable Scott Sheedy that he saw Mr Marijancevic in the foyer after he finished his shift some time after 11 pm, and that he made Mr Marijancevic's presence in the foyer known to Constable Yu;

(b) failed to consider that Constable Yu had no right to cancel the nurse's attendance at the Sunshine police station, in circumstances where Mr Marijancevic had put in train events to secure the nurse's attendance to take a sample of his blood, because he wanted to prove that the breath analysing instrument used was not on that occasion in proper working order or properly operated; and

(c) failed to consider that Constable Yu's cancellation of the nurse had the effect of denying Mr Marijancevic natural justice.

8 At trial, these grounds of challenge were consolidated into a single ground, which was that the appeal judge's ruling that the s 55(4) certificate was admissible was not reasonably open on the evidence. It was common ground that a ruling that is legally unreasonable would involve jurisdictional error. Legal unreasonableness may occur where there is no evidence to support a decision, or if the decision is illogical or irrational, or lacks an evident and intelligible basis.[1]

9 For the reasons that follow, I am satisfied that the appeal judge considered each of the matters identified in Mr Marijancevic's grounds of review, and that his Honour's ruling was reasonably open on the evidence before him.

Road Safety Act

10 Section 55 of the Road Safety Act provides for breath analysis. Section 55(1) provides that, in specified circumstances, a police officer may require a person to furnish a sample of breath for analysis by a breath analysing instrument. Section 55(4) provides for a certificate of the result of the analysis:

As soon as practicable after a sample of a person's breath is analysed by means of a breath analysing instrument the person operating the instrument must sign and give to the person whose breath has been analysed a certificate containing the prescribed particulars produced by the breath analysing instrument of the concentration of alcohol indicated by the analysis to be present in his or her breath.

11 Section 58 of the Road Safety Act facilitates proof of the concentration of alcohol present in the breath of a person, as indicated by a breath analysis conducted in accordance with s 55. Section 58(2) provides that a s 55(4) certificate is admissible in evidence in a proceeding for an offence against s 49(1) of the Road Safety Act. Subject to exceptions that are not relevant here, a s 55(4) certificate is conclusive proof of the facts and matters contained in it.

12 A person who is given a s 55(4) certificate after taking an evidentiary breath test may immediately request that police arrange for a health professional to take a blood sample for analysis.[2] Section 55(13) provides:

Evidence derived from a sample of breath furnished in accordance with a requirement made under this section is not rendered inadmissible by a failure to comply with a request under subsection (10) if reasonable efforts were made to comply with the request.

13 As will be seen, a critical issue was whether police made 'reasonable efforts' to comply with Mr Marijancevic's request that a blood test be arranged.

14 The appeal judge heard evidence in the appeal on 12, 13, and 16 April 2018. Witnesses for the prosecution included Constable Yu,[3] Ms Long, and Constable Sheedy.[4] Mr Marijancevic also gave evidence. On 20 April 2018, his Honour delivered his ruling on the admissibility of the s 55(4) certificate, giving comprehensive reasons for his conclusion that it was admissible.

15 After referring to the relevant provisions of the Road Safety Act, and to ss 137 and 138 of the Evidence Act 2008 (Vic),[5] the appeal judge set out some facts that were not in dispute. He began with the circumstances surrounding the arrest of Mr Marijancevic on 21 April 2018, and the impounding of his vehicle. Those circumstances were, as his Honour observed, regrettable indeed, but are not relevant here.

16 The reasons recorded that, having failed a preliminary breath test, Mr Marijancevic was required to undergo a breath analysis. The appeal judge made a number of findings of fact about the result of that analysis, and what happened next:

17. ... the appellant cooperated in the breathalyser test procedures. There was evidence before me of what I might term typical police questioning relevant to that. The appellant's answers included that he had not drunk any alcohol at all since a moderate amount the night before; that is for almost 24 hours prior to his interception.

18. The breathalyser test was conducted by an authorised operator, Senior Constable Stephen Frost. The s.55(4) certificate produced by the instrument stated a reading of .085 per cent. This occurred at 9.44 pm. The appellant's response was to reject that result, to repeat that he had not been drinking alcohol. He raised that he had taken a tonic or medication called Swedish Bitters.

19. He denied that he had been over the prescribed concentration of alcohol, stated the instrument to be inaccurate and requested a further test, in effect, a blood sample test under s.55(10) of the Act.

20. Arrangements were made for that. Contact with the Institute of Victorian Forensic Medicine was first made at 9.54 pm. At about 10 pm, Mr Yu was advised that an authorised health practitioner, a nurse, was available and would be coming to Sunshine police station.

21. That person, Sarah Long, gave evidence. She set off from Balwyn at 10.12 pm. At 10.41 pm, she was contacted by Mr Yu and her attendance cancelled. She stated that she was travelling on the West Gate Bridge. Mr Yu, Sarah Long, the appellant and others gave evidence bearing upon the circumstances of that cancellation. Particularly the versions of Mr Yu and the appellant have differences, albeit not such that, in my view, this is a case of diametrically opposed accounts only to be resolved by findings of complete acceptance or rejection. This comment takes into account the particular issues I must decide upon.

I make the following necessary findings. I do so having heard and considered the evidence, having considered the arguments put by the prosecutor, Mr Porceddu, and by the appellant; and applying the standard of proof of the balance of probabilities.

I accept the evidence of Mr Yu as follows.

(1) After the appellant's request for a blood test, he, Mr Yu, led him out to the watch house foyer, the public area. He again told him that he did not have to stay; that is, under the warrant. Mr Yu said that he would contact the nurse for the blood sample and would contact the appellant. I take that to mean let him know about the arrangement.

(2) At a time after being advised that Sarah Long was on her way, Mr Yu went out to the foyer to tell the appellant that. The appellant was not there. Mr Yu went outside the station and could not find him.

(3) At one point during this, Mr Yu spoke to a civilian in the foyer. Mr Yu recorded in his notes, made after the end of his shift just before midnight, that the man stated that a person had left, having said words to the effect that he could not be bothered waiting for a blood test. I accept that it is likely that such an interaction occurred and that at least it was Mr Yu's understanding that the man said that. That is consistent with Mr Yu's note on the night and with what he did. He contacted Sarah Long and cancelled the blood sample arrangement.

(4) Mr Yu's approximate estimate of the timing of these events was 10 to 10.30 pm. He agreed in cross-examination that his search for the appellant did not extend to knocking on the door of the toilet adjacent to the foyer.

(5) He did not have any further contact with or from the appellant on that night. He was at the station until about midnight.

17 His Honour then undertook a detailed analysis of the conflicting evidence about the timing and circumstances of Mr Marijancevic's departure from the police station:

Custody Sergeant Lee Kendrick gave evidence that his dealings with the appellant were completed at 10.05 pm after the breathalyser test, which was at 9.44 pm. However, those dealings relate only to the appellant's custody and bail on the executed warrant.

Sarah Long recorded, as I have said, the cancellation of an arrangement to attend as at 10.41 pm, when travelling on the West Gate Bridge.

Senior Constable Frost, the breathalyser operator, gave evidence of or from his notes taken on the night, recording attempts to facilitate the test. He called [the] Victorian Institute of Medicine at 9.54 pm, ten minutes after the breathalyser test. At 10 pm there was advice that a nurse was coming. His notes state, at 10.41 pm, "not in foyer ... had left station prior to blood sample". The difficulty or weakness in his record is that it is not clear as to its source; that is, direct observation or information at some time from another source. For example, the time of 10.41 relates exactly to that of Ms Long's account.

Constable Scott Sheedy gave evidence that after the breath test he saw the appellant in the foyer, on his belief waiting for the blood test. As to timing he stated a very approximate estimate of 11 pm. He had just finished his shift, he said. He recollected observing the appellant from within the watch-house station through one-way glass.

A so-called electronic log tendered as Exhibit 3 purports to record relevant events; for example, that the appellant requested a blood sample, that the nurse was contacted and en route etc. I have not found the log very helpful. Precise times are automatically recorded for each entry within the divisional van. However, it appears that this is not so in respect of entries made at the police station. There was also conflicting evidence about the method or basis of entering times on what I might call the station log. I refer to a comparison of the evidence of Mr Yu and Mr Kendrick on this.

There are conflicting times within the station log. Under time 2200 hours, or 10 pm, there is entered, amongst a series of events and actions, that Mr Yu "to wait for nurse and blood sample". At the end of the whole entry is that the log has been last updated by Mr Sheedy at 2218 hours. The next entry, under time 2330 hours, includes that the appellant "leaves (the station) stating can't be bothered to wait for blood test". At its end there is that the log has been last updated by Mr Yu on 0010 hours of 22 April.

If the electronic log has the aim of an accountable, present time record of relevant events at the police station, it has not achieved that in this case.

The appellant stated in evidence that he remained at the police station, presumably mainly in the foyer, until about 11.30 pm when he was picked up by a friend, his ex-partner. He arranged for that shortly before and left because: (1) of the delay and his understanding, in fact incorrect, that there was a three hour limit to a beneficial blood test; (2) at one point, it seems late in the piece, he was told by an unknown police officer that the blood test had been cancelled. That is when he contacted his partner.

During this he did not seek to speak to Mr Yu or other relevant police officers. He did not complain about the delay and then cancellation, or otherwise continue to assert his right to a blood test. He was aware of that right. He did not do these things because of a growing discomfort born of his long-term poor relationship with Sunshine police, the animosity between him and them.

I do not utterly or necessarily reject the appellant's account on these matters. ...

... However, as I have said, on the probabilities I accept Mr Yu's evidence that the attendance of the nurse was arranged, that she was coming and that, when Mr Yu went to the foyer to tell the appellant that, he, the appellant, was not seen to be there or in the near area outside the station. Mr Yu had a conversation with a person which led him to the opinion, understandable in the given circumstances, that the appellant had lost interest and left. Accordingly he cancelled the arrangement for Ms Long's attendance.

I find that there is a powerful, almost remorseless, sense of logic to that sequence. The blood test was arranged. I see no other sensible explanation for Mr Yu's contact with Ms Long to cancel it and his two notations on the night that that was because the appellant had left but that he honestly and legitimately thought he had.

18 Having made the necessary findings of fact, the appeal judge turned to the admissibility of the s 55(4) certificate:

The appellant put arguments related primarily to s.55(13), but also s.137 and 138 of the Evidence Act; and did so in a persuasive way. I shall not be complete. However, his main points relevant to what I must find were the following.

(1) Mr Yu's search for him was not sufficient to meet the test or description in s.55(13) of reasonable efforts to comply with his request for a blood sample. He emphasised the relationship of s.55(10) and (13).

(2) The appellant relied upon his evidence that he was essentially present until 11.30 pm, which he argued was supported by parts of the prosecution evidence; for example, that of Mr Sheedy and part of the log.

(3) He did not really press that Mr Yu's evidence was not truthful on his attempts to find the appellant and that there was a conversation with a person in the foyer. Rather, the appellant raised possible misinterpretation of what was said.

(4) He put that the search was not thorough enough; for example, that Mr Yu did not check the toilet was a major failure. He emphasised Mr Yu's advantage of being a professional investigator.

(5) It was also unreasonable to expect the appellant to wait as long as he did, particularly in the context of his perception of a three-hour limit.

(6) He relied upon his evidence identified earlier by me as to why he did not continue to assert his right to a blood test.

(7) For fundamentally the same reasons, he argued that I should find the s.55(4) certificate inadmissible under ss.137 and 138 of the Evidence Act.

Ultimately I find that the appellant's arguments put the requirement of reasonable efforts in s.55(13) too high. I do so given what is stated in the relevant legislative provisions, particularly s.55(10) and (13), and also what is available as appellate and superior court authority.

On my interpretation of its language, s.55(13) requires, in the context of what s.55(10) states, that reasonable efforts be made to comply with the driver's request, I emphasise, to arrange for the taking of a blood sample. Better put, the s.55(4) certificate remains admissible on the matters s.58 of the Act prescribes unless it is shown that such reasonable efforts were not made. ... There is no duty to ensure a driver's right that the blood sample be taken.

I see no sensible alternative meaning to the language of the two provisions.

Further, this is broadly consistent with the approach of the Supreme Court in Johnson v Poppeliers [2008] VSC 461, albeit that dealt with failure to advise of the right. Cases such as DPP v Moore [2003] VSCA 90 are significantly different to the circumstances here. In that case the relevant police officer intentionally dissuaded the driver from exercise of the right to a blood test.

Accordingly, under s.55(13), the focus is upon the conduct of Mr Yu in efforts to comply with the appellant's request to arrange the test. Given my earlier findings on his evidence, the ultimate conclusion must be that those efforts were reasonable. They have not been shown to be otherwise. My conclusion on that would be no different accepting the evidence of the appellant that he remained. As I have stated, the focus is upon what Mr Yu and to some extent other relevant police officers did. For example, even presuming some honest and not irrational, reckless misunderstanding of what he was told in the foyer, I would not find that the totality of his actions, his efforts, are shown not to be reasonable.

Reasonableness must be assessed in the context of all circumstances existing and the nature of the obligation under the legislation.

Under s.138 of the Evidence Act, given my findings on the evidence and on s.55(13), I find that there was not unlawfulness or impropriety such that the s.55(4) evidence is inadmissible.

As to s.137 of that Act, I have considered such cases as Moore, Poppeliers and Terry v Johnson [2009] VSCA 286. Such cases deal with the similar common law discretion to exclude when unfair to allow the evidence. They treat the relevant failure, action or inaction of the police officer as a relevant consideration and I do so here. I see the appellant's argument to be along the lines that the alleged failure of Mr Yu has created the risk of unfair prejudice in that the s.55(4) certificate would stand unchallenged and therefore as evidence beyond what might be its true probative worth. He has lost the chance to challenge it by a blood test reading.

... I do not find that the certificate should not be admitted under s.137. ... I rely upon my findings on s.55(13 ) and s.138. The evidence is of very high probative value. That probative value is to some extent supported by the positive preliminary breath test reading. That reading is at least consistent with the breathalyser instrument being in proper working order and properly operated. I bear in mind that Part 5 prescribes that the breathalyser reading remains admissible evidence, although not conclusive proof, in the event of a blood test result. The combination of these matters persuade me that the probative value is not outweighed by the danger of unfair prejudice.

I rule that the s.55(4) certificate is admissible and has the evidentiary effect set out in s.58 of the Road Safety Act.

19 I have reviewed the transcript of the evidence at the hearing of the appeal, and consider that the judge accurately summarised the relevant evidence in his reasons. His Honour's findings, including the critical finding that reasonable efforts were made to arrange a blood test, were reasonably open on the evidence. Given those findings, the ultimate conclusion that the certificate was admissible was also reasonably open.

20 It is also apparent from the appeal judge's reasons for his ruling that he did consider each of the matters identified in Mr Marijancevic's grounds of review. Indeed, his Honour was careful to ensure that Mr Marijancevic had a reasonable opportunity to put his case.[6] The judge drew relevant authorities to his attention, and gave him several days to read them and prepare his closing submissions. The analysis in his Honour's reasons thoroughly addressed the submissions made by Mr Marijancevic about the admissibility of the s 55(4) certificate.

21 Mr Marijancevic has not demonstrated that the ruling involved any jurisdictional error or other error of law.

22 The proceeding will be dismissed. I will hear the parties on the question of costs.

[1] Rees v County Court [2011] VSC 67, [20]-[26]; Minister for Immigration and Citizenship v Li [2014] FCAFC 1; (2013) 249 CLR 332, [26]-[29] (French CJ), [63]-[72] (Hayne, Kiefel and Bell JJ), [88]-[90] (Gageler J).

[2] Road Safety Act 1986 (Vic), s 55(10).

[3] Kwok Yu had been promoted to Detective Senior Constable by the time he gave evidence at the hearing of the appeal.

[4] Scott Sheedy had also been promoted to Detective Senior Constable by the time he gave evidence at the hearing of the appeal.

[5] Section 137 provides for the mandatory exclusion, in a criminal proceeding, of evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. Section 138 provides a discretion to exclude improperly or illegally obtained evidence, unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

[6] Roberts v Harkness (2018) 57 VR 334, [53].