Tuesday, 11 May 2010

Mastwyk v DPP: reasonable to go home in the back of a divvy van

The Court of Appeal today delivered its judgment in Mastwyk v DPP [2010] VSCA 111.

It's a bit of an involved read. The short result is:
  • the police can require motorists to accompany them in the back of divvy vans to a police station for a breath test
  • but, if a motorist refuses, and is charged with refusing and defends the charge by claiming the requirement was unreasonable, the police must prove that the mode of transport was objectively reasonable
  • reasonableness will be shown using the test set down by Kyrou J in DPP v Mastwyk (2008) 185 A Crim R 285; [2008] VSC 192

If the police don't do that, the requirement to accompany will be invalid...and the accused should be acquitted.

A very quick refresher...

On 10 June 2005 at Wattle Bank the police asked Ms Mastwyk to go back to a police station for a breath test. In a divvy van. In the cage at the back. She baulked at going in the van.

The police charged her with refusing to accompany them for a breath test, contrary to Road Safety Act s 49(1)(e). She contested the charge. The magistrate dismissed it, deciding that transport in a divvy van amounted to imprisonment. And it was unreasonable for the police to require her imprisonment someone when the Road Safety Act didn't provide that power. The magistrate relied on an old unreported judgment of the County Court — Salton v Wigg.

The police appealed: DPP v Mastwyk (2008) 185 A Crim R 285; [2008] VSC 192. The Supreme Court overturned the Magistrates' decision, deciding that the police must act reasonably when they requiring someone to accompany them for a breath test. In Ms Mastwyk's case, so long as she was able to communicate with the police at any time to say something like, "I want to get out", it was reasonable. (See [61] – [62].)

Ms Mastwyk appealed to the Court of Appeal.

The Court unanimously dismissed her appeal.

Court of Appeal's decision

All three members of the Court agreed that Road Safety Act s 55(1) does not authorise the arrest or detention of a motorist. (Hardly a revelation to anyone who deals with these provisions regularly, but nice to have a Court of Appeal opinion on the point.)


Nettle and Redlich JJA delivered separate judgments, but agreed the police may only require a motorist to accompany them in a way that is, objectively, reasonable.

Nettle JA said:
[38] Accordingly, I would limit the basis for decision in this case to saying that, where a driver is otherwise willing to comply with a requirement that he or she accompany a police officer to a designated place to undergo a breath test, but the police officer directs the driver to accompany the police officer to that place by means of travel which are objectively unreasonable, a refusal by the driver so to travel is not without more a contravention of s 55(1).

(Redlich JA agreed with that, at [54].)

At [46] Nettle JA said if the accused's defence is that the requirement to accompany was by an unreasonable method, the prosecution must establish the mode of transport was objectively reasonable. He didn't specify the standard of proof, but it's almost certainly beyond a reasonable doubt: Evidence Act s 141; Woolmington v DPP [1935] AC 462.

His Honour also dealt with the resources-argument raised on the appeal:
Police resources

[51] Finally, a fair amount was made in the course of argument of the difficulty which police would face if they had to provide reasonable means of transport in all cases of requiring a driver to accompany them to a designated place for testing. In my view that is not persuasive. Practical difficulties of the kind to which reference were made are the product of executive budgetary decisions. Absent an express or otherwise clear statutory indication that they were regarded by Parliament as informing the scope of a power, they are irrelevant to the amplitude of the power. The solution is to furnish the police with the resources required to carry out their duties in the manner that Parliament intended or to have Parliament amend the legislation to make clear that it intends to authorise requirements which are unreasonable.

At [74] Redlich JA said the prosecution does not have to establish as a separate element of the offence that a requirement to accompany under s 55(1) is reasonable. But, if an accused defends a refuse-to-accompany charge contrary to s 49(1)(e) by claiming the requirement was unreasonable, then objective reasonableness is “relevant to the question whether the prosecution has discharged its burden of proving a refusal.”

I think that's the same point raised by Nettle JA at [46], but differently worded. It makes more sense, too, when I look back at [39] where Nettle JA highlights the point from Hyrsikos v Mansfield about the difference between failing and refusing to accompany. The old ‘fail’ offences are long since repealed; only ‘refuse’ remains — and that requires a mental element of unwillingness...perhaps it's wilfulness?

His Honour went on:
[75] I consider that the section should be construed so that the requirement must be one that is objectively reasonable in the circumstances. My conclusion rests upon the premise that Parliament would not have intended that the refusal of an objectively unreasonable requirement would constitute an offence. It is an implication that is derived from the accepted presumption of statutory interpretation that Parliament will not, without clear words to the contrary, be taken to have intended a restriction on individual liberty that goes beyond what is necessary to meet the purposes of the section and the Act. The elements of the offence should, therefore, be read to reflect the intention. Accordingly, where a driver does not comply with a requirement to accompany the police officer because the proposed manner of compliance is objectively unreasonable, the prosecution will fail to establish the element of ‘refusal’ by the driver.

Put another way, if the police prove that the ‘proposed manner of compliance’ is objectively reasonable, they will establish the refusal offence.

Last, at [79] Redlich JA affirmed Kyrou J's disagreement with the part of Salton v Wigg that said putting a motorist in the back of a divvy van will always equate to imprisonment.


Maxwell P disagreed with Nettle and Redlich JJA. He considered that Ms Mastwyk was making a collateral challenge to the power to require a motorist to accompany police. At [15] – [17] he considered administrative law principles about challenges to exercising statutory powers, and concluded at [32] ff that Wednesbury unreasonableness must be argued before a court must consider the reasonableness of a request to accompany.

Redlich JA disagreed with that. At [70] he raised the real problems with trying to deal with Wednesbury unreasonableness in summary hearings in busy Magistrates' Courts, and said policy considerations weighed against it.

Some gratuitous observations

First, I think the requirement of reasonableness is understandable, and probably almost predictable. (Easy to say with hindsight!) Cases like Trobridge v Hardy (1955) 94 CLR 147 and DPP v Foster (1999) 2 VR 643 speak of reasonableness when police exercise statutory powers. We've only got to think of extreme examples to illustrate the point: a demand to accompany in the back of a brawler or prison van would be unreasonable. A demand to accompany by getting in the boot of a police car, or hanging on the roof rack, would be unreasonable. Of course no offence would occur if such a requirement were made.

But a requirement to accompany in the back of a divvy van...subject to the sorts of considerations discussed by Kyrou J in the Supreme Court decision...that's probably reasonable.

I expect we'll see a fair bit of litigation on that point as a factual argument in Magistrates' Courts. And it might make life a bit harder for police, because the test is objective reasonableness — determined by the courts, many months after the event. It won't always be easy for them to know at the time if they are right or wrong, if they think their requirement is reasonable while the motorist thinks it's not. But, that's a fact of policing.

Second, there were no Charter arguments in this case because the alleged offending was on 10 June 2005. 38. The Charter of Human Rights and Responsibilities Act 2006 commenced, in part, on 1 January 2007; the balance commenced on 1 January 2008. In R v Williams (2007) 16 VR 168 at [48] the Supreme Court held that the Charter had no application to proceedings commenced before the Charter commenced operation.

It's not likely this point will come up again any time soon: after all, it took ten years before Salton v Wigg was argued at appellate level. But, there is still the possibility it might be revisited with a Charter angle! Stay tuned...?


BiRDman said...

Given that Mastwyk's case has failed to be the "game-changer" that certain lawyers have been going round for months saying it was going to be it isn't surprising that defence are on the sniff for something to replace the old Soltan v Wigg argument.

Reasonableness is part of the requirement now. But Justice Maxwell dissented and Justice Redlich said that there are no additional elements for the prosecution to prove. There was no BRD requirement in the majority decision (as you said in your article).

Rather than putting an evidentiary burden on the defence, then a legal burden on the prosecution, I read Justice Redlich to be saying that taking into account all the circumstances the court has to decide whether the requirement was reasonable. That sounds BOP to me.

Anonymous said...

Holy Hell! Months and months of waiting for this decision and they still can't agree on what the law is!

Jeremy Gans said...

This case firmly settles the law prior to 2008, but says nothing AT ALL about the law from 2008 onwards. The mystery is why the police wasted so much energy trying to get the CoA to read down the pre-2008 law. I guess they haven't heard of the Charter.

The Charter didn't apply in this case because of Charter s. 49(2) (which banishes the Charter from pre-2007 proceedings) but also, more importantly, Charter s. 49(3) (which confines the Charter obligations of public authorities, including the cops, to events about 1/1/8.)

It's Charter s. 38 that will be the game-changer in alcohol checks done in 2008 and later. It makes it unlawful for the cops to act incompatibly with any human right (including the right not to be subjected to deprivations of liberty that aren't clearly authorised by law) or to fail to give proper consideration to a human right. That certainly requires more than Wednesbury and probably also requires more than 'objective reasonableness'. There's still Charter s. 38(2) and Charter s. 39(1) to contend with, but it's hard to see what real barrier they create when someone is charged with disobeying a police order.

For Charter matters, the burden of proof is most likely on the rights claimant (on the balance of probs.) That's arguably less protective than the majority in Mastwyck, who I agree seemed to treat reasonableness as an element or defence. Either way, that puts the ultimate burden of proof on the prosecution beyond reasonable doubt. But I'm not sure this matters. While their might be some factual disputes underlying a reasonableness issue, the major question is just one of legal characterisation, and burdens of proof don't matter much to those.

The major news from Mastwyck for Charter purposes is Maxwell's obsession with treating these matters as collateral administrative law attacks, rather than as fundamental defects in the prosecution. That bodes badly for any attempt to rely on Charter s. 38(1) in criminal settings. Fortunately, he's in the minority for now.

Anonymous said...

The Court of Appeal was obviously thinking about a couple of cases when deciding Mastwyk. It is also worth having a look at State of Victoria & Ors v Richards [2010] VSCA 113 at 18 (out today) for Redlich's comments about police powers being used in a reasonable manner.

Kyle said...

Birdman, I had another read of Redlich JA's judgment. Not sure about BOP...

Jeremy, I agree with all that you say about the Charter point, but I wonder if it's ‘just’ similar points with different labels. And I know that sounds a bit dismissive of the Charter aspect: I don't mean to downplay it, but I reckon if the case was decided on Charter grounds the point would still boil down to justifying putting someone in the back of a divvy van for a drink-driving offence. The language used to decide that would be different though, as would the path to the conclusion.

I disagree with your point about objective reasonableness just being a legal characterisation largely unaffected by burden of proof.

This comes back to Birdman's point: the unanswered question is about what Max Perry terms in his book Hampel on Advocacy ‘the burden of persuasion’.

The Court must be satisfied that it was objectively reasonable to require the motorist to go in the divvy van.

Who must satisfy the Court of that, and to what standard, is a critical question not just for the advocates but for the Court itself.

What happens if the Court says it is objectively reasonable when the accused says it's not? What about the reverse? On my reading, this isn't certain, and I imagine there'll be many an argument about it in Magistrates' Court across the State.

I think it will be similar to self-defence: accused's onus to raise it (evidentiary onus); once raised, prosecution onus to rebut (legal onus).

Difficult to know precisely without knowing more about how the appeal ran, but I suspect the reason is no more complex than the Court of Appeal wasn't asked to consider the point and so didn't address it.

Anonymous said...

Birdman, let me guess - Police Prosecutor??