Friday, 9 September 2011

Court update

After a long wait for a handful of cases with the potential to influence the summary jurisdiction, four have been handed down in a week. Kypri came out on Tuesday, Momcilovic yesterday, and Piscopo and Rukandin this morning.

Momcilovic v R [2011] HCA 34

Recent decisions (at least the ones discussed here) have shown signs of the High Court attempting to provide reasons that lower courts could practically apply. Momcilovic v R [2011] HCA 34 is a return to one or two justices penning their own separate judgments, sometimes arriving at the same destination as their colleagues, but each taking a different route.

The Charter itself came in for more of a beating than might have been expected. (Heydon J was unhappy that none of the advocates in the case would speak against its existence). A thread runs through several of the judgments, sometimes expressed and sometimes implied, that human rights legislation is more likely to lead to an erosion of existing common law protections than it is to strengthen them. The Court also took the opportunity to further engage with the constitutional issues it raised in Dickson v R [2010] HCA 30 (discussed here).

Rather than embark on a detailed discussion I'm going to reflect on the judgment over the weekend, and might have more to say about it next week.

DPP v Piscopo [2011] VSCA 275

Kyrou J's decisions in DPP v Piscopo [2010] VSC 498 and DPP v Rukandin [2010] VSC 499 have been discussed here before.

The Court of Appeal today affirmed the earlier Supreme Court decisions that a driver charged with failing to remain for a breath test must be told of the requirement to remain for a maximum of 3 hours since driving. (That situation was already clear from Forrest J's judgment in Uren v Neale). But Ashley JA (Tate and Weinberg JA agreeing) held that a driver's right to be informed of the 3 hour 'temporal limit' didn't mean that a requirement to accompany made by police at the roadside had to include reference to that 3 hour period.

Ashley JA [at 71]:

Relevantly, there was either one requirement, embodying two components, or two discrete requirements. I have concluded that it was the latter. The relevant requirement was that the respondent accompany the police officer to a specified place for the purpose of furnishing a sample of breath. There is no warrant for grafting onto that requirement a temporal limitation particularly attaching to the discrete requirement to remain.

DPP v Rukandin [2011] VSCA 276

In Rukandin, Ashley JA ( at 17, Weinberg and Tate JA again in agreement) decided the appeal in accord with Piscopo:

In my opinion, there is no relevant difference between the language of s 55(1) of the Act, which I considered in Piscopo, and the language of s 55(9A). For the reasons which I gave in that case, I consider that the judge erred in concluding that the power to require a person to accompany and remain conferred by s 55(9A) is a statement of two component parts of a single requirement rather than a statement of two discrete powers. I further consider, for reasons explained in Piscopo, that the making of a requirement to accompany does not require a statement of what I called, in that case, the 3 hour period. I should add, albeit that it does not affect the outcome of this appeal, that although the evidentiary provisions respecting the blood test regime somewhat differ from those relating to the regime applicable to breath and other tests, I consider that the power to make a requirement to remain does entail stating both the purpose and the temporal limit.

Both of these cases were remitted to the Magistrates' Court for conviction and penalty.


Anonymous said...

I look forward to a more detailed analysis of the Piscopo/Rukandin Judgement.
From my reading, it appears that drivers who refused at the roadside have no defence. However, where a driver did accompany, the requirement to inform them of the temporal limit is triggerred.

[66] I consider, in the event, that s 55(1) should be interpreted as meaning that, in every case where a requirement to remain must be stated – and in practical terms that will mean every case, because there will always be some time elapse between arrival at the specified place or vehicle and the furnishing of the (initial) sample – the requirement must specify its purpose and the temporal limit.

As such, if the refusal occurred at the Police Station or Booze Bus, a charge under s 55(1) would be invalid.

Dr Manhattan said...

I agree that a refusal to remain for a breath test requires that the 3-hour limit be communicated (or else there be some reason that hasn't occurred, as in Sanzaro v County Court of Victoria [2004] VSC 48). It makes sense to make each requirement separate, and only fair that it be counted as a refusal only if the driver has been properly informed of their obligations.

I would write a fuller post about this, but you might have seen I'm having a spot of bother with my links at the moment.