Wednesday, 12 May 2010

Foot in-step with Mastwyk

I blogged about Mastwyk v DPP yesterday, but didn't get to write about the other similar appeal delivered straight after.

DPP v Foot [2010] VSCA 112 was referred to the Court of Appeal to be heard with Mastwyk's case because it dealt with very similar issues.

In this case, the Court of Appeal allowed the prosecution appeal and remitted the case to the Magistrates' Court.

In Foot, the police administered a preliminary breath-test to Mr Foot and then asked him to accompany them back to a police station for a breath test. He agreed. He got in the back of the divvy van, and the police closed the door.

We now know that wasn't imprisonment: Mastwyk at [82].

There was some dispute about what happened next, but it seems Mr Foot then decided he wanted out when he saw the police arrest a woman who was with him in the car. It seems the police didn't realise that...presumably because they were otherwise engaged arresting the woman.

The Court of Appeal considered that could not amount to imprisonment. Only if the police refused to release Mr Foot would he have been imprisoned. And if they didn't know he wanted out, they couldn't refuse his request...

That was enough to dispose of the appeal.

But the Court also went on to consider if the requirement to accompany had to be objectively reasonable before the police could establish an offence contrary to Road Safety Act s 49(1)(f) for exceeding the prescribed concentration of alcohol within 3 hours of driving.

They said that was wrong, applying DPP v Foster [1999] 2 VR 643 at [49] – [50]: the reasonableness of any request or requirement is only relevant when the motorist refuses a police request and the police then rely on their statutory powers to compel the motorist.

This means the ‘objective reasonableness’ requirement articulated in Mastwyk is confined to refuse-to-accompany cases contrary to s 49(1)(e) and doesn't apply to exceed-prescribed-concentration-cases contary to s 49(1)(f) (and probably 49(1)(b)).


Jeremy Gans said...

Nice of the VCA to give the police helpful advice on how to avoid any 'detention' problems for people in vans: just don't listen.

Of course, it also would have been nice if the VCA had set out some clear guidelines on when the police should listen and, in general, the ability for people in vans to communicate with them. There once was a time when Australian courts were willing to create rules of that sort; overseas courts do it all the time. But, alas, not here, not anymore.

It's not clear when Foot's incident occurred, but the case was heard in the Mag court in May 2008, so presumably the Charter's transitional provisions excluded this case from human rights analysis too, just like in Mastwyck. So, again, this case doesn't describe the current law, just the law prior to 2008.

Dr Manhattan said...

I agree about the need for clear guidelines. Kyrou J's judgment in the earlier Mastwyk decision was better in that respect.

The Court of Appeal referred to the operation of the Evidence Act 2008 discretions [at 14], signalling that they might have work to do in some circumstances.

Section 135 seems unlikely to apply (particularly in the Magistrates' Court) but 137 or 138 might apply in the right set of circumstances (like the facts in DPP v Moore).

While the 'objective reasonableness' test of Mastwyk (supra) doesn't apply to these kinds of charges, there's still scope for unfair conduct by the police (whether intended or otherwise) to lead to the rejection of such evidence.

I wonder if the magistrate had refused to admit the evidence of the analysis in the exercise of one of the discretions whether the Court would have overturned that decision?

Anonymous said...

Mr Gans,

I really wonder whether you think you are more at risk of being killed by a policeman or a drunk-driver. According to you the police roam around looking for someone to beat up or falsely imprison while everyones else goes about their innocent business. Of course the police are the cause of all the trouble - every time there's some disharmony there they are in the middle of it!

The statistics say you are more at risk of being killed by the drunk-driver. Maybe you should think about lending the police some support before all of the easy civil liberties talk.

A Concerned Citizen

Kyle said...

Anonymous, I've been meaning to get around to replying to your post.

I think I'm not ascribing an unwarranted position to Jeremy by saying he's analysing these cases from a human rights perspective largely informed by natural law theories combined with positivism. At their simplest, natural law theories say that laws are based on unchanging and fixed guiding principles. Historically they were often sourced from a religious deity, or reason. (Think Descarte,who wrote “I think; therefore I am”.) Positivism is, simplistically, law that is ‘posited’ or stated. That is, law is what is stated to be law by law-making bodies. This view leads to what is called black-letter (written) law, though it doesn't always explain why a law is a law and not just a moral rule or social convention, and doesn't necessarily provide a moral content to law.

There's a huge amount of interesting reading on jurisprudence or legal theory. I found Legal Theories in Principle a really good introductory overview on this. If you want to delve further, two good texts often used in university courses are Asking the Law Question and Lloyd's Introduction to Jurisprudence (which is a challenging read in parts).

Anyway, the point of all this is to say that a lot of modern human rights law considers rights to be deontological — something inherent and intrinsic, in contrast to teleological theories that assess acts by their consequences. So all legal acts are assessed and weighed against human rights. And that means that legal actors — such as police — are the ones most often assessed. Here, we see that in s 38 of the Charter of Human Rights and Responsibilities, which is consistent with the traditional view of human rights as a protection for individuals against the power of the state.

But your underlying point is a valid one: how do we balance individual rights against other individual rights or broader societal rights? That's the $64-million dollar question. The trite answer is: by giving public authorities, such as police, the power to arrest or interfere with the liberty of citizens in order to protect the rest of us. The idea is to strike a balance where those entrusted with that obligation are in turn subject to checks and balances.

In fact, there's an old Roman guy who once coined a pithy phrase about that. Something about who guards the guards...

And remember, assessment of conduct by public authorities against a certain legal theoretical viewpoint doesn't necessarily equate with condemnation of their role or actions. It's a good thing to discuss these issues from a range of perspectives and canvass counter-arguments. This dialectic process is one of the joys — and frustrations — of working in the law.