Tuesday, 30 June 2009

Uren v Neal: refusing a breath test

Last Friday the Supreme Court delivered yet another judgment on drink-driving charges in Uren v Neale [2009] VSC 267.

The facts

The police evidence was they saw Mr Uren pull in at a petrol station early in 3 May 2007, get out of his car, and stagger. Acting Sergeant Neal thought he might be drunk, conducted a preliminary breath test on Mr Uren, asked him to accompany her back to Frankston Police Station, and took him there.

Sergeant Neal said Mr Uren refused an evidentiary breath test, once by putting his thumb over the mouthpiece of a breath analysing instrument, and a second time by stopping blowing into the instrument halfway through the test.

(That evidence wasn't contradicted, at [25].)

The appeal dealt with three charges Sergeant Neal laid against Mr Uren, contrary to s 49(1)(e) of the Road Safety Act, of refusing:
  • a breath test
  • to allow a blood sample to be taken
  • to remain at the Frankston Police Station for the purpose of a blood test

Grounds of appeal

Mr Uren argued four grounds of appeal.

1. Magistrates' Court Act s 30

On 23 May 2007, Sergeant Neal issued an instant summons under the Magistrates' Court Act s 30. At the time, that section relevantly provided:

30. Prescribed person may issue summons

(1) Without limiting the power of a registrar in any way, in the case of a charge for a prescribed summary offence if the informant is a prescribed person he or she may, at the time of signing the charge-sheet, issue a summons to answer to the charge.

(2) If a prescribed person issues a summons under sub-section (1) –
(a) he or she must file the charge and original summons with the appropriate registrar within 7 days after signing the charge-sheet; and
(b) the proceeding for the offence is commenced at the time the charge-sheet is signed, despite anything to the contrary in section 26(1).
(3) Subject to subsection (4), if it appears to the Court that subsection (2)(a) has not been complied with in relation to a proceeding, the Court must may strike out the charge and may, in addition, award costs against the informant.
The charge sheets were in fact filed at Frankston Magistrates' Court on 5 June 2007 — 13 days after the charges were issued, and so contrary to s 30(2)(a).

After a fairly detailed journey through the cases, His Honour concluded that s 30 was a procedural provision, not a substantive right Mr Uren could insist on. For that reason, the magistrate was right in rejecting Mr Uren's claim the charges had to be struck out.

(Initially, I thought Forrest J might have been dealing with a similar line of reasoning to that in Project Blue Sky v ABA (1998) 194 CLR 355, dealing with the effect of not complying with obligatory and discretionary procedural provisions. But, no, he wasn't.)

I think there's a bit of a gap in his reasoning here. Because the provision was correctly categorised as procedural...the magistrate didn't make a mistake when he didn't strike out the charge, though the legislation said he must. I can't really see quite why this makes much difference. Forrest J concluded that s 30(3) wasn't a substantive right that accrued to Mr Uren personally and that he could insist on. But why does that mean the Court didn't err in not following its procedural obligation?

edit As pointed out below in the comments, this section 30(3) was amended to provide that the court may not must strike out a charge, hence the decision was for the Court rather than the accused.

Section 30 will be replaced by the Criminal Procedure Act 2009 s 14, which provides a Court may — not must — strike out a charge not filed as prescribed, so this sort of argument will soon be moot.

2. Magistrates' Court Act Schedule 2 Clause 1A

Mr Uren also claimed the Magistrate should have granted an adjournment until the prosecution provided copies of statements s or written summaries of the substance of evidence likely to be givenby two other police officers. Those officers were Sergeant Neal's corroborator, Senior Constable Kaschke, and a Sergeant Straughan, who corroborated that Mr Uren was asked to provide a blood sample.

Forrest J gave this argument fairly short shrift, noting no complaint of non-disclosure was made during the preceeding 18 months and 3 contest-mention hearings. Nor could counsel for Mr Uren identify any prejudice suffered by Mr Uren, particularly as the corroborator merely confirmed Sergeant Neal's evidence, and the other two police witnesses weren't pivotal.

(The pre-hearing disclosure provisions in the Criminal Procedure Act 2009 Part 3.2 will supplant Schedule 2.)

3. Proof the breathlyser was a breath analysing instrument

Mr Uren's barrister argued the prosecution had to prove that the breathalyser was a breath analysing instrument as defined in the Road Safety Act s 3.

Forrest J then observed:
[77] Nineteen years ago counsel for Mr Uren, in Lisiecki v Grigg (1990) 10 MVR 336 propounded an identical argument in relation to the application of s 49(1)(e) and the need for the prosecution to establish that the relevant breathalyser was an approved instrument. A little surprisingly, counsel did not refer to this decision in either his written or oral submissions...
His Honour then discussed Lisiecki v Grigg and MacDonald v The County Court of Victoria (2004) 41 MVR 183 , which both disapproved Scott v Dunstone [1963] VR 579, and held that it is not an element of the offence under s 49(1)(e) that the breathalyser is an approved instrument.
[81] ...Rather, the constituent elements of the offence are a request in accordance with the terms of the Act and a refusal to comply.
In any event, His Honour was satisfied there was evidence that the breathalyser used was a breath analysing instrument, and rejected this ground of appeal.

4. Non-compliance with Road Safety Act s 55(9A)

Mr Uren succeeded on this last ground of appeal, and the charge of failing to remain for a blood test was quashed. After reviewing several cases including Rankin v O'Brien [1986] VR 67 and Sanzaro v County Court of Victoria (2004) 42 MVR 279; [2004] VSC 48, His Honour concluded that because Sergeant Neal didn't tell Mr Uren he had to remain only until 3 hours elapsed or the medical practitioner arrived and took his blood, an essential element of the charge wasn't made out.


Jeremy Gans said...

The 'must' in s30MA has already been replaced by a 'may', courtesy of the Criminal Legislation Amendment Act 2008.

Kyle said...

Jeremy, you're right. Section 14 of the Criminal Procedure Legislation Amendment Act 2008 amended s 30(3) of the Magistrates' Court Act so that it now reads:

(3) Subject to subsection (4), if it appears to the Court that subsection (2)(a) has not been complied with in relation to a proceeding,
the Court may strike out the charge.
Note Section 131 permits the Court to award costs if a proceeding is struck out.

Section 14 in the amending act commenced operation on 1 July 2008 (see Special Gazette 74, 19 March 2008).

The answer lies in that commencement date. After re-reading the decision, in light of your prompt, I see what I missed the first time.

When the Magistrates' Court decided the issue on 29 October 2008, the new discretionary form of s 50(3) was effective.

Courts apply procedural provisions in force at the time of a hearing, rather than at the time of offending, unless they affect existing right or obligations: Rodway v The Queen (1990) 169 CLR 515 at 518 - 9; Carter v Reid [1992] 1 VR 351.

The point the Supreme Court was making, in light of this, is that it was the Court's choice, not Mr Uren's choice, if the charge was struck out.