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Monday, 13 February 2012

DPP v Novakovic: new drink-drive appeal?

Down at Geelong on Friday I heard about a new case that seems likely to head to the Supreme Court: DPP v Novakovic. Apparently it's listed before the Supreme Court on 16 February 2012 to set down the questions of law, and timetable for filing materials before it is set for hearing.

As I understand it (based on a short precis from my source) it concerns a motorist required to accompany the police to a police station and remain for a blood test, based on a requirement under s 55(9A). Apparently, the dismissed charge described an offence of refusing a blood test, rather than refusing a requirement to accompany or remain.

It seems the prosecution relied on Uren v Neale (2009) 196 A Crim R 415, particularly at [124]. (See our post about that case here.)

In relation to charge one, when one looks at the whole of the evidence and the context in which the initial statement was made by Ms Neale I think it is clear, beyond argument, that Mr Uren must have understood that he was being required to provide a blood sample. He had done his best, the Magistrate appears to have concluded, to avoid giving a breath sample. The provision of a blood sample was the next logical step well known to most members of the community. The words uttered by Ms Neale, in the light of the aborted breath test, must have alerted Mr Uren to that fact that the next step was for the police to seek a blood sample, and further that this was the requirement being made of him. Common sense would have told him this as well. His initial answer, I readily infer, (despite the conflated nature of Ms Neale’s requirement), was given on the basis that he understood that there was a requirement that he provide a blood sample. In my view he knew that he was required to take a blood sample and he refused.

In that case, the Supreme Court held that the offence of refusing a blood test was made out when the evidence was Uren was asked to remain for the purpose of a blood test. The offence of refusing to remain was not established, because the police had not told him how long he had to remain. (Affirmed in DPP v Piscopo (2011) 59 MVR 200.)

I guess the debate will centre around that finding in Uren v Neale — and, perhaps, if it's correct that courts can presume most members of the community know that blood tests follow breath-test attempts or infer that in some circumstances? — and the requirement for a s 49(1)(e) charge to identify the particular requirement relied upon under s 55: DPP v Kypri (2011) 207 A Crim R 566 at [12]; DPP v Greelish (2002) 4 VR 220 at [12] – [16], [25].

Stay tuned...

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