Sanzaro v County Court of Victoria [2004] VSC 48

In the circumstances, I do not consider that it is appropriate to make an order in the nature of certiorari. The authorities are clear that it is not every error of law that affects a decision. Hence if one be confident that error would have had no bearing on the outcome of the case, certiorari may be refused[17]. In this case I think it plain that the judge's reference to waiver could not have made any difference. As appears in her Honour's final reasons for judgment, the basis of her judgment was that she was satisfied on all the evidence, beyond reasonable doubt, that the requirement had been imposed. Consequently, the fact that her Honour may have earlier suggested an alternative basis for reaching the same conclusion in the end proved immaterial.

"Obviously, in this particular case, the informant did not say to the defendant, `I now require you to accompany me to a breath-testing vehicle for the purpose of a breath test and remain there until you have furnished a sample of your breath and been given a certificate of analysis or until three hours after the time you were drinking or in charge of a motor vehicle, whichever is the sooner'. However, Rankin v O'Brien [1986] VicRp 7; [1986] VR 67 and DPP v Blyth 16 MVR 159 established that proof of a demand by precise recital of the words of the Act is not required. The test is whether the evidence as it stood was such to prove that the respondent was given reasonably sufficient information to know what was required of him and why. The question in this case is whether what the informant said was sufficient so the defendant realised that he was required to remain at the back of the bus until he had furnished a sample of his breath, that is, until he had completed the breath test. ... If you look at all the circumstances surrounding the event, the fact that the vehicle was intercepted for the purpose of a preliminary breath test, the fact that the defendant had the preliminary breath test and his preliminary result showed alcohol in the breath, the fact that a card was read to him requiring him to attend the booze bus for the purposes of a breath test, the fact that his keys were taken away from him and his car was removed to a safe place and the fact that his licence was taken away from him, all these factors, together with the conversation which took place between the informant and the defendant, on the evidence as it stands, lead to the conclusion that the defendant should have been aware that he was required to remain at the back of the bus until the breath sample was taken. The defendant's attention was drawn to the fact that there would be a delay before he went on board the bus. He was informed that after the informant completed the checks, he was required to accompany the officer onto the bus for the breath test. If he refused to accompany the officer onto the bus for the test, he could be charged with an offence. The defendant replied that he was prepared to accompany the police officer onto the bus, he replied: 'Yes, I understand, I will come with you'. As a matter of logic he would have to remain at the scene in order to honour this response. He had an opportunity to refuse to remain, as he could have said no, he was not prepared to wait for the checks to take place and to accompany the police officer onto the bus for the tests. He gave no indication, on the evidence as it stands, that he would not stay at the rear of the bus until the officer had completed the checks. ...After his conversation with the informant, on the evidence as it stands, the defendant should have been aware that he was required to wait until the informant could accompany him on board the vehicle for the purpose of the breath test... I find on the evidence as it stands that there was a requirement that he remain to furnish a sample of breath. Alternatively, the fact that the defendant indicated a willingness to wait for the checks to be completed before he was to enter the bus, to provide a sample of breath, makes a request, demand or order to remain unnecessary. As in Walker v DPP (1993) 17 MVR 194, the motorist by agreeing to the test dispensed with the necessity for a formal requirement to remain..."

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Cases Cited (7)