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Monday, 13 February 2012

DPP v Serbest [2012] VSC 35: choice to refuse is no defence

DPP v Serbest [2012] VSC 35 is the latest drink-driving appeal dealing with an offence of refusing to accompany police for a breath test, contrary to Road Safety Act s 49(1)(e).

Serbest considered if the police need to formally require a motorist to accompany them, and if the motorist needs to understand they arerequired to accompany the police. It was the third and last of several appeals resulting in adjournments for other prosecutions. The other two were Kypri, and Piscopo (with Rukandin).

The Court of Appeal decision in DPP v Kypri (2011) 207 A Crim R 566 largely dealt with the need to identify the relevant requirement made under s 55 in a charge contrary to s 49(1)(e). (See our post here.)

And in DPP v Piscopo (2011) 59 MVR 200 and DPP v Rukandin (2011) 59 MVR 222 (discussed in our post here), the Court of Appeal decided that a requirement to accompany and a requirement to remain are distinct and separate requirements under s 55. Only a requirement to remain must specify the purpose and duration of that requirement, and that will only occur when a motorist is at the place where they should remain — typically, a police station or booze-bus.

The facts


At 3:40 AM on 6 December 2009, Constable Michael Howard and Sergeant Bell stopped Erhan Serbest as he drove along the Nepean Highway at Moorabin. He took a preliminary breath test. It showed he had alcohol in his system. Constable Howard spoke with Mr Serbest (at [4]):
THE ACCUSED: ‘Am I over?’

THE INFORMANT: ‘The test indicates your breath contains alcohol.’

THE ACCUSED: ‘What police station?’

THE INFORMANT: ‘Moorabbin Police Station’, and he motioned up the road.

THE ACCUSED: ‘Do I have to?’

THE INFORMANT: ‘You are not under arrest but the decision is yours. There is important information I need to give to you if you don’t.’

THE ACCUSED: ‘I don’t want to.’

THE INFORMANT: ‘If you fail to accompany me for a breath test you will commit an offence which if you are found guilty carries a fine and imprisonment and two years loss of licence.’

THE ACCUSED: ‘No I don’t want to.’

Constable Howard then read from proforma notes, which the Supreme Court observed at [5], "set out what must be said to a person who has failed a preliminary breath test, and how a request to accompany the police officer to the police station must be worded." Unfortunately, those words aren't contained in the judgment, so it's not very helpful when determining why those words turned out to be okay.

At the appeal, the DPP argued it was at this stage that the offence of refusing to accompany the police was complete.

The police went back to their car to check Serbest's licence. He walked over and spoke with them, and they told him — incorrectly, as it later turned out — that his licence was suspended and so his permissible alcohol concentration was .00. This conversation was recorded, and showed that Serbest refused to attend the police station because he was told he couldn't have any alcohol in his system.

Serbest testified that he didn't remember being told the consequences of refusing to accompany the police. He said:

They gave me a choice, it’s up to you. I didn’t think I had to do it if I didn’t blow over. I asked if I have to I’ll go, I thought it was relating to my licence suspension.


The Magistrate held that the prosecution must prove that the accused understood he had to accompany, and the potential consequences of non-compliance, at [13] – [14]. The accused thought he had a choice, and so chose not to accompany the police. Because he was not required — in the sense of obliged, compelled or mandated — to accompany the police, the Magistrate dismissed the charge.

The appeal


Mr Serbest didn't attend the appeal, so the only submissions were from the DPP.

The Court reviewed most of the main authorities in this area, noting that in DPP v Foster (1999) 2 VR 643 at [29] the Winneke P noted police powers under s 55 are facilitative not obligatory. And in Sanzaro v County Court of Victoria (2004) 42 MVR 279 at [11], the Court held that a demand wasn't necessary; a request would suffice; and all that was needed was for the intent of the police and the obligation on the motorist to be clear.

In Serbest at [35], the Court identified the Magistrate's error in holding the prosecution had to prove Serbest understood he had to accompany the police. In fact, he had a choice, even if it was one of the caught-between-a-rock-and-a-hard-place kind.

As the officer told the accused, he had a choice. That is, there was no compulsion on him to comply with the requirement of the police officer to accompany him to the police station. Obviously, there were consequences and, indeed, serious consequences if the accused failed to comply with the requirement of the police officer. The accused was clearly told of these consequences. The learned Magistrate proceeded on the assumption that the police were required to prove that the accused understood that he had to go to the police station. That is made clear when she says, ‘The informant has asked the accused but has then not expressed to him that it is a requirement that he accompany’.


The driver's subjective state of mind about whether they must accompany the police is not relevant.

Comments


I'm surprised that DPP v Vaa (2005) 42 MVR 511 wasn't mentioned in this case. That dealt with a refuse PBT charge contrary to s 49(1)(c), and held the prosecution didn't need to prove the driver was aware of the consequences of a refusal. Though it dealt with a different offence section, the reasoning there seems to have some relevance in this case. (Coincidentally, that case too came from Dandenong Magistrates' Court.)

It's not clear from the judgment when in fact the offence was complete. Was it after the first conversation, or the second? Even if it was the second, it probably didn't matter if Serbest thought he could have some alcohol in his system: once there was a requirement in the terms described in Sanzaro, and Serbest understood that much, the offence was complete if he didn't comply with the requirement.

But there might then also have been a possibility of raising a defence like that in DPP v Moore (2003) 6 VR 430, where the police dissuaded the driver from taking a blood test that would confirm or cast doubt on a breath test, and so the court had discretion to exclude evidence of the breath test. Though the bow would have been a bit longer in this case, the police view about the prescribed concentration of alcohol might have had some bearing on this.

The case was remitted to Dandenong Magistrates' Court for determination according to law.

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