No.
6441
of
2000
MOTOR VEHICLES - Criminal law - Road safety - Breath test and blood alcohol -
Driver required to accompany police officer to a "booze
bus" and to remain at
that place for purpose of completing a breath test and obtaining certificate -
No result produced from first
test and driver asked to wait in booze bus until
second test conducted - Driver departs van for purpose of smoking cigarette but
remaining in close proximity to van - No evidence that driver was refusing to
take part in second test - Whether departure from van
a refusal to comply with
requirement to remain at the place - Whether reasonableness of request to
remain relevant - Road Safety Act 1986, ss.49(1)(e), 55(1).
EVIDENCE - Witness' statement placed in his hands - Cross-examination on
document - Tender of document - Whether only used for purpose
of refreshing
memory - Evidence Act 1958, s.36.
- In this appeal brought by the Director of Public Prosecutions
in the name of the informant I agree, subject to what appears below,
with the
conclusions and reasons for dismissing the appeal expressed in the judgment of
Eames, J.A. Having regard to the nature
of the charge and the minute
infraction of s.49(1)(e) of the Road Safety Act 1986 ("the Act") here
alleged, little further should have to be said, for his Honour's reasons ought
to be more than sufficient to dispose of the
appeal. I will, nevertheless,
venture the following further views because I should like to express my own
opinion upon the appeal
which, I confess, I expressed forcefully during
the hearing.
- Although it carried and still carries quite significant
penalties, an offence under s.49(1)(e) would perhaps be seen at the lower end
of the scale of seriousness of road traffic offences of this kind; certainly
that would be
so if the appellant were correct. The offence of refusing to
comply with a requirement made under certain provisions in Part 5 of the Act
concerning the taking of breath tests was and is designed[1] to ensure that people will not escape from the consequences
of driving under the influence of liquor because they cannot be forced
to
undergo the relevant tests. In order to ensure that certain requirements under
s.55 were and are complied with, which in turn would lead to the obtaining of
evidence of a kind which would ensure effective prosecution
of offenders for
the more serious offences under s.49(1) of the Act, para.(e) makes "refusal" to
comply an offence in itself. As will be seen it is refusal, rather than
non-compliance, which is penalised.
First, however, one must see what is the
nature of the requirement. The relevant requirement in the present case was
under s.55(1) of the Act which, although similar in form to the other
requirements referred to in para.(e), is expressed in very elaborate terms.[2] In essence, though, at the relevant time the
sub-section provided that, if either a person underwent a preliminary breath
test which
indicated that the person's blood contained alcohol or there had
been a refusal or failure to carry out the preliminary test properly,
then "any
member of the police force ... may require the person to furnish a sample of
breath for analysis by a breath analysing
instrument ... and for that
purpose may further require the person to accompany a member of the
police force ... to a police station or other place where a sample
of breath is to be furnished and to remain there until the person has
furnished the sample of breath and been given the certificate ... or until
three hours after the driving ...".
(Emphases added.) It is first important
to note that that any requirement under the sub-section itself did and does
not, as was
conceded, involve any arrest of the subject of a proposed test. A
requirement by a police officer does not result in confinement
for the purpose
of the test. Rather the two sections should together be construed so as to
impose a penalty for a driver who chooses
to ignore any such requirement and
refuses to comply with it. So much was accepted on both sides on the hearing
of this appeal.
- The penalty under paragraph (e), however, is not imposed for
failing to undergo the necessary breath test, or to accompany the police
officer, or to remain at a police station or other place; it is
for
refusing to do so. Why the paragraph was not expressed in terms of
"failure" is not entirely clear, as the verb "fails" appears both in s.49(1)(d)
and in para.(b) of s.55(1) of the Act. The word "refuses" must be taken to
carry with it an element of mental intent, albeit judged objectively for the
purposes of an
offence such as the present. The simplest way of proving a
refusal would be if the subject driver said "I refuse etc." or some equivalent
words, with or without expletives, connoting an unwillingness to comply.
Alternatively, the prosecution might ask a court to infer
that a driver has
refused to comply by proving acts from which that inference may be drawn, i.e.
by proof of the circumstantial case
from which the only inference is that the
driver is refusing to comply, albeit he or she is not expressly saying so. A
driver who
immediately turns and runs away, a driver who jumps the back fence
of a police station, a driver who forcibly pushes open the door
of a mobile
testing station and runs off without explanation would each be persons against
whom the necessary inference could be
drawn. It would not be the performance
of an act exhibiting "consciousness of guilt" so much as an act exhibiting a
conscious unwillingness,
and thus a refusal, to comply with the stated
requirements.
- Thus it will not be sufficient for the prosecution to prove
merely a failure to remain "there", i.e. at either the police station
or the
"other" (designated) "place", for that in itself may not be sufficient to allow
the drawing of an inference to the criminal
standard that the person was
exhibiting such an unwillingness to comply with a requirement as to amount to a
refusal. Each case
must depend on its own particular circumstances but, in
the absence of a direct and explicit refusal, it should be remembered that
a
failure to comply must always be shown to be such that implicitly the driver is
refusing to comply with the relevant requirement.
Further it should be
remembered that the requirement is not merely a requirement to accompany a
police officer and to remain in
a stated place, but also to do so "for that
purpose", in effect, for the purposes of s.55(1), for in each case the
requirement is extended only so far as is necessary to enable a sample of
breath to be furnished which is to
be carried out within three hours of the
last moment of driving.
- Next, it is important to realise, as has been held on several
occasions and was not disputed before this Court, that the person
is not under
arrest but only subject to a direction, the sole sanction for which is
prosecution for refusal to comply, pursuant to
s.49(1)(e). This much may be
derived, if only by analogy with similar provisions in s.53, from the
discussion in DPP v. Webb[3].
Nevertheless, although there is a deprivation of liberty implicit in the whole
of the relevant provision which derives from the
fact that non-compliance has
certain penal consequences if they can be characterised as a refusal, no aspect
of the scheme under
s.55 entitles the police officer to treat the person, who
is at that stage in effect merely a suspect, as a person under arrest and thus
subject to explicit directions and control by the officer. The object sought
to be achieved is that the driver attend at the designated
place and undergo
the appropriate breath test. So long as drivers are in a position whereby the
test can be carried out at request
with reasonable promptitude, they cannot be
directed any more explicitly than s.55(1) permits (for present purposes). One
should not infer a right in a police officer to detain a driver by use of force
or to require
the subject to go to or stay in some particular room or place
which would involve a further deprivation of liberty. No authority
cited to
the Court would gainsay any of these matters.
- Counsel for the appellant valiantly tried to demonstrate
difficulties which might occur if the alleged infraction in the present
case
were not treated as a refusal. They suggested that an interpretation which
permitted an undue freedom to move around or near
the designated police station
or other place[4]
[9]1[3]
would lead to the risk that in fact drivers subject to these
requirements might "escape" and not undergo the tests or that they might
ingest
(I can express it no more precisely) some further drink or food which might
affect the validity of the breath test they were
required thereby to undergo.
For myself I am not clear that these things cannot occur in any event,
certainly if the driver were
required only to attend at a designated police
station and remain there. If drivers are not under arrest, then it seems to me
that
while waiting they can conduct themselves as they choose, so long as they
do not breach the peace or otherwise interfere with normal
police operations,
and it would also seem to follow that relatives and friends could not be
prevented from speaking or dealing with
drivers as they waited, for that is not
the nature of the detention connoted by the obligation to attend and remain at
a designated
place. Police stations are many and various in size and layout.
They may be purpose built, or either office buildings in the city
or in country
towns or conventional houses adapted for police use in suburb or country.
Doubtless most have comparatively little
public space but a requirement of the
kind contemplated under s.55(1) could not oblige persons to stay throughout the
three hour period only in a specified room and it must surely be permissible
for
such drivers to wait in areas where they could not be said to be in custody
as such, so that they might fairly wait in some public
area, or on a verandah,
or for that matter in a yard, so long as the yard could be said to be part of
the station and within easy
calling distance by the police officer. It would
be amazing in such circumstances if a person using the toilet facilities,
whether
within the building or outside in the yard, would thereby be treated as
refusing to comply with the stated requirements. Common
sense and flexibility
is what is demanded and the section in effect says as much by penalising
refusal rather than failure to comply.
- The difficulty, if so it may be dignified, is that in the
present case the requirement was one which directed the respondent to
accompany
the appellant to a mobile breath testing vehicle or station (as it was
variously called) situated at the side of the road
in Todd Road, Port
Melbourne, and she was likewise, in conformity with the section, required "to
remain there" until a breath sample
had been furnished and the certificate
given or the three hours expired. As I understand it, at least by the time the
matter reached
the Trial Division and for the purposes of this appeal, the
alleged infraction, that is, the refusal upon which the appellant bases
his
case, consisted in the respondent's having done no more than going down the
back steps of the testing station and standing within
two or three metres,
after she had been warned that if she failed to remain for the purpose of a
breath test she might lose her licence
for two years and might receive a
substantial fine. Her sole purpose, so it was made abundantly clear from the
repetition of her
requests and the proliferation of bad language which
accompanied them, was to obtain a cigarette and to go outside the vehicle to
smoke it.
- For the purposes of this appeal it is important to know
something of the "place" which the respondent had been required to attend
for
the purpose of undergoing the breath test. There can be little doubt that
"other place" included a mobile breath testing vehicle
or station, but
precisely what that expression meant, as used by the appellant on the night, is
by no means so clear. For this purpose
it is necessary to examine some of the
factual background which was outlined to us by senior counsel for the appellant
which, as
I understand it, was taken substantially from the evidence, but to
the extent it went beyond that evidence counsel for the respondent
expressly
agreed that it was an accurate description. Although these mobile stations are
and have been colloquially called "booze
buses", they are in fact trucks or
vans, the provision for the seating of police officers as passengers being
confined to two rows
at the front of the van. The rear part of the van, where
the breath testing is in fact carried out, consists of an area of moderate
size
divided into two compartments. Each area ordinarily contains one operator
conducting breath tests with the appropriate equipment
pursuant to s.55 of the
Act. It seems that each compartment has another table at which suspected
drivers are asked a number of questions ordinarily by the officer
who has
conducted the preliminary breath test and has required the attendance of the
driver at the mobile station. Entry to the
van may be gained by a side door
but there seems also ordinarily to be a rear door to the rear compartment, as
well as a sliding
door between the compartments. There is some limited
provision for seating on chairs or benches within each compartment. It was
conceded that the area of each compartment was approximately 8 to 9 feet by 8
to 9 feet, perhaps a little longer but not greatly
so. Ordinarily a suspected
driver is directed into one or other of the compartments and it is not common
for suspected drivers to
be moved from one compartment to the other for the
purpose of testing. Although there may be room for more than two persons to be
seated in each compartment, there is no waiting area within the mobile station
and it was asserted that, if another suspected driver
had to be tested, while
another driver is waiting for a further test, there was no provision ensuring
privacy for the second driver
during testing. It seems that, having regard to
the existence of two testing compartments, it was ordinarily unlikely that
there
would be any delay involving the need by any drivers to wait. However,
it must be recalled that a requirement under s.55 could oblige a driver to
remain at the designated mobile station for up to three hours for the purpose
of being tested. I would
add that counsel conceded that there were no toilets
in or attached to the mobile station, but he suggested that, if a driver had
had the need to use them, there were toilets situated some metres away in a
large service station nearby, though he was unable to
refer to any power of
dispensation or the like, other than necessity, which would permit such a
driver to venture so far afield.[5]
- Some further brief facts need to be noted as to what occurred
on the night. The appellant, after conducting a positive preliminary
breath
test, said:
"I now require you to accompany me to a breath testing vehicle for
the purpose of a breath test and to remain there until you have
furnished a
sample of your breath and be given a certificate of analysis or until three
hours after the time you were drinking or
in charge of a motor vehicle,
whichever is sooner."
The respondent agreed to accompany the appellant to the mobile
station which was little more than ten or twenty metres away from where
she had
been stopped. She was shown into the rear compartment through a side door and
then was asked a number of questions by the
appellant as to her driving and
drinking. An authorised operator then conducted a test on her but it was
unsuccessful, apparently
because there was alcohol in the respondent's mouth.
A certificate was prepared to that effect but she was, in accordance with the
Act, required to wait so that a proper test could be completed. It was
indicated that she might have to wait an additional 15 minutes
for that
purpose.
- At some stage, apparently shortly before that period expired,
the respondent said that she wanted a cigarette and to go outside
to smoke one.
At this the operator warned her that, if she left the "booze bus", "she may
receive a substantial fine and lose her
licence for up to two years", in
substance suggesting that she would be liable to prosecution in terms of
s.49(1)(e), although that provision was not expressly referred to. It seems
the respondent did not accept the warning given in response to
her request and
proceeded to open the back door and to go down the steps uttering a string of
expletives which need not be repeated.
She walked two or three paces
apparently in the hope of obtaining a cigarette from her male friend who was
waiting outside in a
nearby vehicle. The appellant asked her again to return
to the "bus", repeating the warning about refusing to furnish a sample of
her
breath, but she responded again with further expletives insisting that she
wanted a cigarette. It seems her friend gave her
a cigarette which she smoked
within a few paces of the back door of the mobile station. It was not
suggested during this time that
the breath testing equipment was ready for use
a second time, nor was it suggested that at any time she expressly refused to
take
a test. She did not try to leave the area and at first remained on her
own. Apparently a few minutes later, presumably after smoking
the cigarette,
the respondent went back into the van to collect her bag and other belongings,
but went outside again to a position
again close to the mobile station. Again,
at no stage during this period did she refuse to take a breath test, not did
she attempt
to move any further away from the mobile station.
- However, when she again came down the steps, it seems that she
had a dispute with the male friend and that soon involved the police,
as a
result of which they were both charged with assault. There seems to have been
no further request for the respondent to undergo
a breath test so that, as best
one may discover, she eventually left the site of the mobile breath testing
station after having been
charged with certain offences.
- Having regard to these facts, I have no doubt that the charge
under s.49(1)(e) was not made out and was properly ordered to be dismissed by
the learned judge. Although there can be little doubt that a proper
requirement was made pursuant to s.55(1) of the Act, there was simply
insufficient evidence upon which the magistrate could have found that there was
a refusal to comply with the requirement
so given to the respondent. The
appellant's case was based on the simple proposition that as soon as the
respondent left the mobile
station she had committed the offence in that
thereby she had refused to comply with the requirement that she remain "there",
i.e.
at the mobile breath testing station or "vehicle". Refusal was said to be
the only inference open once she had gone through the
door to walk down the
steps at the back of the vehicle.
- I cannot agree. Refusal is a matter to be inferred from the
totality of the circumstances, and what is proscribed is not merely
a refusal
"to remain"[6], but a refusal to comply with the
whole of the relevant requirement, being the requirement to remain at the
designated place for
the purpose of having a breath test conducted and a
certificate furnished to her.[7] Having regard
to the obvious concession that the requirement does not involve an arrest, the
question in each case must be whether
the person so required has exhibited an
intention to be unwilling to remain at the designated police station or "other
place" in
order to undergo the test. If one could not infer a refusal to
remain for the purpose of the test, then the precise place to which
the
respondent moved was of little consequence, so long as in practical terms she
would have been able to comply with a request for
the testing of her breath
within a very short but reasonable time having regard to all the circumstances.
There cannot be an obligation
to remain seated or standing next to the table at
which the test is to be carried out for a period of up to three hours, for that
is not what a requirement under s.55(1) should state. The sub-section
describes a practical but reasonable requirement. At a police station there is
clearly no power to
require a driver to remain in a cell, so that there must be
scope for some flexibility if the operator is unable to conduct a first
or
later test immediately on the driver. If there is a room set aside for the
testing, the section does not require the driver to
remain in that room but
merely at the station, whatever facilities by way of waiting rooms and the like
it may have. Some point
was taken before the magistrate that the section as
originally passed referred to a police station "or the precincts thereof", but
that was repealed and re-enacted in the form which is relevant to the present
offence. Subsequently in 2001[8] the expression
was amended so as to read "to a place or vehicle where ... "
[9]. We were not referred to the parliamentary
history of the original amendment, although the latter amendment seems to have
resulted
from the decision in DPP v. Williams[10]. For myself I would doubt that the particular amendment
made in 1989 can be used to infer that Parliament intended that the person
so
required had to remain within the four walls of the building used for the
purposes of a police station. It would be remarkable
if, say, a driver were
not permitted to use the toilets in the yard of a country police station. In
each case one would have to
look to the precise circumstances and the layout of
the police station to see what was reasonable and so what amounted to a refusal
to comply. A person who waited on a verandah could hardly be said to be
refusing to comply with such a requirement, and walking
from the verandah to a
front garden or yard in close proximity would hardly seem to be an act which
would permit the drawing of an
inference that a person refused to remain at the
police station to undergo the necessary test.
- However, the question in the present case is whether a "place"
should be restricted for the purposes of s.55(1) in the manner for which the
appellant contends. What is here argued is that, having been required to go to
a mobile breath testing
vehicle, the respondent was obliged to stay within the
compartment to which she was directed by the appellant. In the first place,
of
course, that was not what she was required specifically to do. The rear
compartment was only one portion of the breath testing
vehicle, although no
point was taken as to that or as to the form of the charge.[11] The practicalities of using any other part of the
vehicle for the purpose of waiting were remote. The other compartment was
likewise
little more than 9 feet by 9 feet and, more likely than not, it was
either being used or was about to be used for the purpose of
testing some other
driver. Likewise it seemed impracticable to go directly to the front of the
vehicle, even if that were desired,
and in itself that would have required the
respondent to go from the back compartment around to the front of the vehicle,
in breach,
so it has been so strenuously argued, of the requirements of the
section.
- Common sense dictates that a requirement to remain "there" at
a vehicle, with such confined space as is revealed by a description
of the
relevant compartments, could not be treated as requiring a driver to remain
within a compartment for a period of up to three
hours for the purpose of
having a test. What is fairly required must depend on the nature of the place
to which a driver is directed,
but in each case it should not be assumed that
an obligation to "remain there" involves an obligation to remain confined
within the
outer four walls, or the like, of the designated place. One might
observe, considering the terms of the presently amended section,
that it would
be equally unreasonable to require a driver to remain inside a car at which a
test was being conducted, if the test
could not be immediately carried out for
some reason or other, and so as to require a driver on a hot day to remain
seated in the
car for up to three hours.
- The boundaries may not be precise, but the issue in each case
is not a failure to "remain", rather the issue is whether there has
been a
"refusal to comply with a requirement". If a person is within a few metres of
the place where the test is to be carried out,
then there could not be the
slightest doubt that that person should ordinarily be treated as complying with
the requirement to remain
at the relevant place. It would be quite another
question if the person departing from the mobile vehicle were to burst out and
run at high speed away into the distance, for then the evidence would permit an
inference to be drawn, if all the facts justified
it, that the driver was
thereby refusing to comply with a relevant requirement.
- Here the respondent was indisputably always within a few
metres of the vehicle, in a position where she could be communicated with
easily and where it would have taken much less than a minute to return to the
table when the operator chose to have her equipment
in order and ready to
conduct the further test. There was no act or word that the respondent did or
uttered which would permit an
inference to be drawn that she refused to remain
at the place for the purpose of complying with the requirement. Admittedly she
used the foulest of language to
vent her dissatisfaction, but the dissatisfaction was directed
only to her inability to smoke a cigarette. However much one might
disapprove
of her language and smoking habits, there was no evidence at all of a refusal
to comply with the requirement, once one
accepts that the place at which she
was obliged to remain was not confined to the four walls of the compartment or
the outer exterior
of the mobile breath testing vehicle, whichever
interpretation one might wish to place on the appellant's contentions.
- It is unnecessary for me to say anything as to the other basis
considered by the learned judge for reaching a conclusion as to the
commission
of the offence, nor likewise is it necessary here to canvass in detail the
evidentiary issue separately raised. As to
this latter question I agree with
Eames, J.A. that counsel's questions permitted the magistrate to accede to the
prosecutor's earlier
request that the document be tendered[12], though I would prefer to express no opinion as to the
precise meaning of the proviso to s.36 of the Evidence Act 1958. One
might venture only this further comment, that I find it strange that it was
seen to be necessary to raise such minor issues
in the Court of
Appeal.
- The appeal should be dismissed.
CHERNOV, J.A.:
- I have had the benefit of reading the draft reasons for
judgment of Ormiston and Eames, JJ.A. in this case. I agree, substantially
for
the reasons given by Eames, J.A., that the appeal should be dismissed. It
seems to me that, even if the relevant part of the
mobile breath-testing
station in question ("the station") was an "other place" for the purposes of
s.55(1) of the Road Safety Act 1986 ("the Act"), it was not open to the
magistrate to find that, in the circumstances of this case, the respondent
relevantly refused to remain
there and had thus breached s.49(1)(e) of the Act.
- 21 The question before the magistrate was whether, by leaving
the van for the purpose of smoking a cigarette immediately outside
it, the
respondent thereby refused to comply with the requirement of the informant that
she remain "there" for the purpose of s.55(1) of the Act. The appellant's case
before us, stripped to its essentials, was that, once the respondent walked out
of the van to smoke the cigarette
she thereby manifested such a refusal and
thus breached s.49(1)(e) of the Act. It was contended that such a result
flowed from a proper construction of s.55(1) of the Act which should be read as
entitling a member of the police force to require the person to remain within
the "four walls" of "the place"
until the sample of breath has been furnished
to the satisfaction of the police or three hours have elapsed, whichever period
is
the lesser. In my view, however, s.55(1) does not support such a
construction.
- The section obviously recognises that there might be a delay
of some considerable time - up to three hours - in the police officer
administering the test to the person who, it will be remembered, had complied
with the request to attend the station for the purpose
of furnishing a sample
of breath. It is also apparent that the provision contemplates that it will be
the relevant police officer
who will determine (on proper grounds) when
the breath sample is to be furnished and how many samples are to be provided.
Further, it seems that the section implicitly contemplates
that, during the
period of any delay, the person will remain under the broad supervision of the
police and at their beck and call.
In my view, the latter follows from the
principal purpose of the provision, which is to enable the police to establish,
by proper
and reliable means, the blood alcohol content of the person who has
"failed" the preliminary breath test. Unless the police officer
remains with
the person in question until the relevant sample of breath is furnished, he or
she may ingest a substance or take some
other step that would render any
subsequent test invalid for relevant purposes. Moreover, the scheme of the
section is that the
police officer will go with the person in question to the
"place" and will remain with that person until the testing is complete.
That
is made apparent by sub-s.(1) which contemplates that the person will
"accompany" the police officer to the station and by
sub-s.(2A) which
effectively requires the police officer to remain there until, to the extent
practicable, a sample of breath has
been satisfactorily processed.
- Whether the exit of a person from the station constitutes a
relevant refusal to "remain there", depends on the circumstances of
the case.
To take an extreme example, if the person in question walks out of the station
for a distance of no more than, say, a metre
to take a breath of "fresh" air
and immediately returns to it, it could not sensibly be said that the person
has refused to "remain
there" for the purposes of s.55(1). Such an act would
not impede the ability of the relevant police officer to determine when
the sample is to be provided or the ability of the police to keep the person
under constant supervision. On the other hand, if that
person leaves the van
to go to a nearby shop to buy a newspaper, such departure might amount to a
"refusal" which would constitute
a breach of s.49(1)(e). In those
circumstances it might be said that the relevant police officer would lose
strict control over the timing of the provision
of the sample; obviously no
test could take place while a person is absent purchasing a newspaper. More
importantly, the person's
departure from the van might render it impracticable
for police to maintain the requisite supervision.
- But nothing of the sort happened in this case. The respondent
said that she wanted to go outside to smoke a cigarette and the reason
for her
having to go outside was that, unsurprisingly, she was told that smoking was
not permitted in the van. Homan said that one
reason why she did not want the
respondent to smoke a cigarette was that, if she did so, a breath test could
not be administered
for fifteen minutes thereafter. But as Mr. McArdle
effectively conceded, that apprehension had no demonstrable scientific or
practical
foundation. In any event, whether smoking would produce such a delay
might go to the question whether the person refused to take
the test, but it
would not be relevant to the issue of whether there had been a refusal to
remain at the station for relevant purposes.
Although the respondent walked
out of the van, at all relevant times she remained within its immediate
precinct and under police
supervision. There was no suggestion by Mr. McArdle
that the respondent's conduct somehow inhibited the police in keeping her under
scrutiny or that the respondent would not have complied with a request from the
informant or Homan to return immediately to furnish
a sample of breath. In
those circumstances, and given the fact that the respondent had left her
belongings in the station when she
first went outside it to smoke a cigarette,
(which supports her claim that she intended to return to the van), it cannot be
sensibly
said that she refused to remain there in breach of the Act. Had she
decided, after having gone outside to smoke a cigarette, to wander away from
the precinct of the station, a different conclusion
might be reached on the
issue. But that was not the case here.
- In the circumstances, therefore, the learned primary judge was
correct in his conclusion that it was not open to the magistrate
on the facts
before him to conclude that the respondent had refused to remain at the station
in breach of s.49(1)(e) of the Act.
- In light of that conclusion, it is unnecessary to deal with
the other issues raised in the appeal. For completeness, however, I
indicate
that, in relation to the second issue raised by this appeal concerning the
tender of the informant's statement, I agree
with Eames, J.A. that, on a proper
interpretation of what took place before the magistrate, the document was
tendered at the behest
of the prosecution and not the magistrate. That is made
plain by the call by the police prosecutor for the statement to be tendered
after counsel's initial cross-examination of the informant, the postponement of
the ruling on this request by the magistrate until
after completion of the
relevant part of the cross-examination of the informant and by the subsequent
admission of the document into
evidence. It is also clear that the
respondent's counsel had made use of the document in the cross-examination of
the witness and
did not merely use it to refresh his memory.
- Consequently, in my view, the appeal should be
dismissed.
EAMES, J.A.:
- This is an appeal against a decision of Smith, J. made on 14
November 2000 whereby his Honour allowed an appeal pursuant to s.92
Magistrates Court Act 1989 against orders made on 14 July 2000 by a
magistrate sitting at Melbourne. His Honour set aside the orders of the
learned magistrate
who had convicted the respondent of an offence under
s.49(1)(e) of the Road Safety Act 1986, and fined her $400 together with
costs and ordered that her licence be cancelled and that she be disqualified
from driving for a
period of two years.
- The particulars of the offence alleged that the respondent on
19 December 1998 did:
"refuse to remain after having been required to have a preliminary
breath test under s.53 of the Road Safety Act 1986" and being "then
further required to furnish a sample of breath for analysis by a breath
analysing instrument, pursuant to s.55(1) of the said Act, and for that purpose
you accompanied a member of the police force to a police station or other
place, where the sample of breath
is to be furnished, you refused to remain
there until you furnished a sample of breath for analysis or until three hours
have elapsed
after driving of the motor vehicle whichever is
sooner."
- The respondent to the present appeal (and appellant before
Smith. J.), Debra Elaine Mansfield, had been driving on Todd Road, Port
Melbourne on 19 December 1998 when she was directed to stop near a mobile
breath-testing station (more commonly known as "a booze
bus"), and then
provided a preliminary breath test which was administered to her by the
appellant, Constable John Hrysikos. Seated
in the front passenger seat of the
vehicle was Gary William Moore, the partner of Ms Mansfield. The preliminary
breath test was
performed at about 1.15 a.m. and it indicated that
Ms Mansfield had alcohol in her blood. After the preliminary breath test
proved
positive Constable Hrysikos then made a request of the respondent in the
following terms:
"In my opinion, the result of the preliminary breath test indicates
that your blood contains alcohol. I now require you to accompany
me to a
breath testing vehicle for the purpose of a breath test and to remain there
until you have furnished a sample of your breath
and be given a certificate of
analysis or until three hours after the time you were drinking or in charge of
a motor vehicle, whichever
is sooner. Are you prepared to accompany
me?"
- In response to that question the respondent said "Yes" and
then left her vehicle and went with Hrysikos to the "booze bus", which
was
close by.
- The mobile breath-testing station is a large van, of a kind
well-known to the citizens of Melbourne, and apart from the double cabin
for
the driver and passengers the rear breath-testing section is divided into two
separate compartments each of which contains a
breathalyser, tables and chairs
and other equipment. The separate compartments enable breath testing of two
persons to be conducted,
in privacy, at the same time. The two compartments
may be entered by a doorway on the side of the van or through a rear sliding
doorway. There is access between the two compartments by an internal door.
Steps led from the bus to the ground at the rear entry.
It was in the rear
section to which the respondent was directed for the purpose of being tested on
a breath analysing instrument.
- When the respondent entered the van she was introduced to
Acting Sergeant Valerie Homan, a person duly authorised to operate the
breath
analysing machine. Upon being requested by Hrysikos to undergo a breath test
pursuant to s.55 Road Safety Act 1986 the respondent furnished a sample
of her breath. The instrument printed out four copies of a certificate, which
stated "alcohol
in mouth". A copy of the certificate was handed to the
respondent at about 1.35 or 1.36 a.m. and Homan then said to the respondent
that she would have to wait 15 minutes, at which time she would be given a
further breath test. The respondent asked if she could
have a cigarette and
she was told that smoking was not permitted in the van. She then asked if she
could go outside for a cigarette
and was told that if she left the booze bus
"you may lose your licence for two years and receive a substantial fine".
- Homan said to the respondent that if she had a cigarette Homan
would have to wait another 15 minutes before conducting a breath
test, and
because Homan had to make sure that the respondent did not consume anything
during that 15 minutes, she was required to
stay in the booze bus. The
respondent said that she wanted a cigarette and Homan repeated that if she left
the bus she could lose
her licence and be fined. The respondent ignored the
warning and departed the bus, stepping down its back stairs. She was followed
by Homan and Hrysikos. On stepping from the bus she then walked towards Moore
who was sitting on the grass verge just at the rear
of the booze bus and to its
side. She yelled at him that she wanted a cigarette. Moore stood up and
walked towards the van and
Homan told him not to give a cigarette to the
respondent. Homan suggested to Moore that he "talk her into not leaving the
site".
Homan said that if the respondent left "the site" she would lose her
licence for two years and may receive a substantial fine.
- The respondent then took a cigarette from Moore, lit it and
returned into the booze bus via the rear stairs. She was carrying her
cigarette. She picked up her wallet, her licence and the print-out from the
first breath test which was sitting on a table and then
stepped out of the bus,
down the stairs, once again. She then approached Moore and struck him over the
head and Moore struck her
back. Shortly after this a fracas erupted, in the
course of which both the respondent and Moore were arrested on other charges.
A second test via the breath analysing instrument was not conducted on this
occasion.
- The respondent was charged on summons with an offence which,
in a shorthand way, alleged that she "refused to remain", contrary
to
s.49(1)(e) of the Road Safety Act 1986.
- The Road Safety Act 1986 as it applied at the date of
the offence[13] contained the following
relevant provisions:
"49(1) A person is guilty of an offence if he or she -
(e) refuses to comply with a requirement made under s.55(1), (2), (2A) or
(9A)."
- Section 55 contains the following relevant sub-sections for
present purposes -
"(1) If a person undergoes a preliminary breath test when required
by a member of the police force or an officer of the Corporation
or of the
Department of Transport under section 53 to do so and -
(a) the test in the opinion of the member or officer in whose presence it is
made indicates that the person's blood
contains alcohol; or
(b) the person, in the opinion of the member or officer, refuses or fails to
carry out the test in the manner
specified in section 53(3) -
any member of the police force or, if the requirement for the preliminary
breath test was made by an officer of the Corporation,
any member of the police
force or any officer of the Corporation or of the Department of Transport may
require the person to furnish
a sample of breath for analysis by a breath
analysing instrument and for that purpose may further require the person to
accompany
a member of the police force or an officer of the Corporation or of
the Department of Transport authorised in writing by the Corporation
or the
Secretary of the Department of Transport, as the case requires, for the
purposes of section 53 to a police station or other place where the sample of
breath is to be furnished and to remain there until the person has furnished
the sample of breath and been given the certificate referred to in sub-section
(4) or until 3 hours after the driving, being an occupant
of or being in charge
of the motor vehicle, whichever is sooner.
...
(2A) The person who required a sample of breath under sub-section
(1) or (2)
may require the person who furnished it to furnish one or more further samples
if it appears to him or her that the breath
analysing instrument is incapable
of measuring the concentration of alcohol present in the sample, or each of the
samples, previously
furnished in grams per 100 millilitres of blood because the
amount of sample furnished was insufficient or because of a power failure
or
malfunctioning of the instrument or for any other reason
whatsoever."
- The appeal on questions of law heard by Smith, J. raised two
issues. The first concerned the circumstances in which a statement
made by
Hrysikos was tendered during his cross-examination by counsel for the
respondent. The second question of law related to
the charge under the Road
Safety Act. As to the second issue, Smith, J. held that it was not open to
the magistrate to find that there had been a refusal to remain contrary
to
s.49(1)(e) of the Road Safety Act; and, alternatively, the request to
remain in the bus was unreasonable.
- The informant, Hrysikos, now appeals on the following
grounds:
"(1) That the learned judge erred in law in holding that the
learned magistrate was in error in deciding to require the cross-examining
counsel to tender the document identified as Exhibit C.
(2) That the learned judge erred in holding:
(a) That it was not open to
find that there had been a refusal to remain in
breach of s.49(1)(e) Road Safety Act 1986;
(b) That the request to remain in accordance with s.55(1) Road Safety
Act 1986 was unreasonable."
The offence alleged under s.49(1)(e)
- Having regard to the findings of the magistrate and the
evidence before him Smith, J. concluded that at no time did the respondent
say
that she would not provide a further sample when called upon to do so, nor, at
any time did she say that she wanted to leave
the site. It is not contended by
counsel for the appellant that the findings of the magistrate were inconsistent
with those conclusions.
Nor was his Honour's finding challenged that at all
times the respondent remained in close proximity to the bus and the two police
officers.
- The learned magistrate found, and Smith, J. held that he was
entitled to do so, that the relevant requirement "to remain there"
was made
when the respondent, having returned a positive preliminary breath test, was
required by Hrysikos to accompany him "to a
breath testing vehicle for the
purpose of a breath test and to remain there until you have furnished a sample
of your breath and
been given a certificate of analysis or until three hours
after the time you were drinking or in charge of a motor vehicle . . ."
Having
been required to go "to" the bus, the continuing requirement was to remain at
the bus. Counsel for the appellant contends
that the requirement, more
precisely, was that she remain within the four walls of the bus. Thus, she
"refused to comply" with that
requirement the moment she walked out the door of
the van for the purpose of having a cigarette.
- Smith, J. held that a person remained "at" the other place,
namely, the booze bus, so long as she remained "linked to that place".
Thus,
his Honour observed, the offence would not be committed by a person who having
been directed to go "to" a police station for
the purpose of the test, having
first entered the building then waited outside the front entrance, smoking a
cigarette, while waiting
for the breath analysing machine to be set up. When
that person fully intended to perform the test, that person would not be said
to refuse to remain at the police station to which he had been directed.
Smith, J. held that the critical issue was "the proximity
to the `other place'
and the continuation of the purpose for which the person was taken there and
the fact that the person has not
gone to another place". His Honour said that
the question was primarily one of fact.
- In my respectful opinion, Smith, J. was correct in concluding
that the issue is primarily one of fact. For the offence to be proved
there
must be a "refusal to comply[14]" with the
requirement to remain "there". The legislative objective in imposing the
requirement, in my opinion, was to discourage
persons from choosing to depart
the scene before completing an effective breath analysis. The requirement "to
remain there" is to
remain at the "place" where the testing is to take place.
- Although counsel for the appellant contends that in the
present case the "place" is the area bounded by the four walls of the van[15], it was not contended that where the place
is a police station the person must remain within the four walls of the room
where the
breath analysing machine was located. It was submitted, however,
that to stand outside the entrance of the police station would
constitute a
refusal to remain at the police station.
- The absurdity of interpreting the requirement as obliging the
person to remain within the confines of the precise location where
the breath
testing machine was located is highlighted when one has regard to breath
testing in a police car. At the time of this
offence the terms of s.55(1)
referred to "a police station or other place". Those words had been presumed
to allow breath testing in a police car, but that was
held to be unlawful by
Smith, J. in Director of Public Prosecutions v. Williams[16]. The legislation was subsequently amended to permit
testing in a police car and the section now refers to "a place or vehicle"[17]. If the interpretation for which the
appellant contends is correct then a person required to "accompany me to the
police car" would
refuse to comply with that requirement if, having once
entered the vehicle, the person stepped out of the vehicle at any time before
the handing over of a certificate after a satisfactorily conducted test. That
would be so even if the persons' attendance became
necessary (perhaps due to
numbers of persons waiting to be tested or due to mechanical problems, for
example) for the whole of the
three hours allowed for testing, by s.55(1). Mr
McArdle acknowledged that he had some difficulty arguing that it would
constitute a refusal to remain for a person to step out
of the police car but
to stand outside while preparations were made for a further
test.
- The booze bus is not equipped with a toilet. Mr McArdle, for
the appellant, told us that it is common for the booze bus to be located,
as it
was on this occasion, at a place where access to a nearby toilet would be
possible. He submitted that if the person being
tested were to depart the bus
(with permission) to use a toilet, or on account of ill health, that would not
constitute a refusal
to remain at the place at which he had been required to
remain. He accepted that there could also be circumstances where the numbers
of persons waiting to undergo tests required that some of them leave the bus
and wait outside while others were tested. Mr McArdle
submitted that none of
the persons in those situations would commit an offence, because it must be
read into the section that the
requirement that a person remain at a place
could be varied or suspended if circumstances made it reasonable to do so.
Counsel conceded
that there is no legislative authority given for the
requirement to be modified or suspended in that way. Furthermore, the
obligation
to remain arises by reference to the requirement imposed initially
to accompany the police officer to the place at which testing
was to occur.
Thus, the obligation to remain at the place, which s.55 permits, can not be
divorced from the requirement "to accompany" the officer to the place for the
purpose of testing. Nor is support
gained from the terms of sub-section (2A)
because that merely permits the officer to require the furnishing of a further
sample if
there is a failure to successfully test the breath in an earlier
test. That sub-section says nothing about remaining at any
place.
- There can not, in my view, be any difference in principle as
to what "the place" is if one is asked to accompany the police officer
"to the
police station" or "to the breath analysing vehicle" or "to the police car".
Nothing in the legislation imposes an obligation
that if the requirement is to
be met one must enter and remain in the vehicle or enter and remain in a
particular section of the
police station, rather than merely arrive and remain
at the place with the intention of participating in the test, as directed.
- In my opinion, the word "place" should not be given such a
restricted interpretation as the appellant demands. The main reason
for
contending for such a narrow interpretation is that it would impose practical
problems for the police if the person could depart
the bus. It was said that
those problems would remain, or might be exacerbated, even if the person
remained close to the bus, and
notwithstanding that the person not only left
the bus for reasons which were entirely innocent but also fully intended to
comply
with the requirement to be tested when called upon to do so.
- It was not suggested that smoking a cigarette would compromise
the test results; indeed, the evidence before the magistrate was
that it would
have no such effect. Concern was expressed that the person might drink liquor
when outside the bus, thus delaying
the testing, yet again, if there was
alcohol in the person's mouth when being tested. It was accepted, however,
that if the person
did drink alcohol in the hope that the test results might be
later successfully challenged then the legislation would thwart such
ambition[18].
- The primary concerns were that if persons were permitted to
wander outside the bus they might be endangered by passing traffic,
might
become engaged in arguments with other persons at the scene, or else might act
in a manner which imposed obligations upon police
to supervise them. I fully
appreciate that it would be more convenient for the police to be able to compel
the persons to remain
within the bus, but it was accepted that, as a matter of
practice, the informant, in any event, remains with the person to be tested
at
all times until the testing process is concluded. Furthermore, the person
being tested is not under arrest, and is free to depart,
save for the fact that
if the person does depart without completing the testing process that
constitutes an offence, with severe
consequences for failing to remain[19]. Once the testing process is concluded
there must be many instances of the persons remaining at the scene until driven
home by friends
or perhaps waiting for a taxi. Any risks of the person being
endangered by traffic or causing a scene are likely to be as real after
the
testing is completed as before it is concluded.
- In my view, those practical considerations can not determine
the appropriate interpretation of these sections, and Mr McArdle did
not
suggest otherwise. In any event, it seems to me that the problems are
overstated and would not be eliminated even if the appellant's
desired
interpretation was adopted.
- Smith, J. saw the question as being one of fact, and concerned
with the issue of proximity of the person to the place of testing.
His Honour
also considered it important that the person was "fully intending to return for
the test and remaining under police supervision".
Whilst proximity would no
doubt be a relevant factor, the intention of the person to refuse to remain for
the test seems to me to
be central to the offence. In my view, a person who
walked out the door announcing that he was not going to remain at the site for
a further test but was going home, would have demonstrated a refusal to comply
with the direction to remain there the moment he walked
out the door, just as
he would have done if his starting point for his announced departure was some
metres away from the bus near
which he had been waiting. Thus, even when in
close proximity to the bus a person might so act as to satisfy a court that he
or
she had refused to comply with the request to remain at the place for the
purpose of being satisfactorily tested.
- There might well be cases where it would become a difficult
question of fact - whether by virtue of the distance the person moved
from the
bus, what the person said, or how the person acted - to determine whether the
person was refusing to comply with the requirement.
That was not this case.
- In the present case, the issue was whether by leaving the bus
for the purpose of smoking a cigarette, but remaining close to the
bus, and
fully intending to re-enter the bus when required for testing, that conduct
constituted a refusal by the respondent to comply
with the requirement which
Hrysikos had initially made that she remain at the place to which she had been
directed. The magistrate
in this case concluded that the offence was committed
as soon as the respondent left the bus. That, in my view, on the facts in
this
case did not constitute an offence. In my opinion, it was not open to conclude
that the offence had been committed. The decision
of Smith, J, in that
respect, was correct.
"Reasonableness"
- Smith, J. considered an alternative submission that even if
"the place" meant the inside of the bus an offence was not committed
if it was
unreasonable to prevent the person leaving the bus. Smith, J. concluded that,
if he was wrong as to the interpretation
of the section, then the charge should
have been dismissed because the requirement to remain had to be reasonable, and
in this case
it was not a reasonable requirement. Smith, J. held that
importing of an obligation of reasonableness, in that way, was consistent
with
the introduction of such a requirement into s.53, by Ormiston, J. (as he then
was) in Director of Public Prosecutions v. Webb[20].
- With respect to the view of Smith, J., I do not accept that
the situation here was analogous to that in Webb. In that case the
requirement of reasonableness was held to attach to the requirement to undergo
a preliminary breath test pursuant
to s.53. Ormiston, J. held that there being
no power to place the driver in custody or to detain the person indefinitely,
it should be implied
into the terms of the section that the requirement to
undergo the test be reasonable, thus, if the requirement imposed an obligation
that the person be delayed unduly or be obliged to travel a significant
distance for the preliminary test, then it might not be a
reasonable
request.
- In the present case, consistent with Webb, a
requirement under s.55(1) to accompany an officer to a place for the purpose of
testing by a breath analysing machine would also need to be reasonable. It
would not be difficult to postulate circumstances where the requirement might
be unreasonably imposed. It was in a different situation,
however, that Smith,
J. introduced the notion of reasonableness. If the notion of reasonableness,
as discussed in Webb, was sought to be applied to the present case, then
it would be implied at the time of the making of the requirement to accompany
to a place. Thus, a requirement to accompany and remain in a police car for up
to three hours might very well be unreasonable.
A requirement to accompany "to
the police car" would not (assuming, for this example there is no other factor
making the request
unreasonable). Likewise, a requirement to remain within the
four walls of the bus for up to three hours would be unreasonable;
a
requirement to accompany "to the breath testing vehicle" would not. The last
instance imposes an obligation that the person "remain
there" - that is at the
place - until he has completed the furnishing of a valid sample of breath and
received a certificate. It
does not impose an obligation to remain within the
bus, at all times, until that result is achieved.
- In this case, however, it was unnecessary to consider whether
at a later stage, once the person had accompanied the officer to the
bus, it
was unreasonable not to let the person leave the interior of the bus to have a
cigarette. The person had complied and continued
to comply with the
requirement to remain at the bus, even though she stepped outside the bus, and
she intended to perform such further
tests as were required of her.
The tender of the Hrysikos statement
- The second issue raised by this appeal has no bearing on the
outcome of this case, in light of the conclusions reached above (if,
indeed, it
ever had any bearing on the outcome). Nonetheless, it raises a practical
question relating to the applicable legal principles
relating to the use of
documents during cross-examination which frequently arises.
- The respondent had been charged with a count of common assault
and pleaded guilty to that charge. The charge under s.49(1)(e) was strongly
contested, however, with disputes on many issues, including the terms of the
requirement which Constable Hrysikos gave
to Ms Mansfield. Most of the issues
are of no relevance to this appeal. There was, however, a dispute as to one
matter which is
now addressed by this ground of appeal.
- Hrysikos said that after leaving the bus to have a cigarette
the respondent went back inside the bus and collected her handbag and
other
belongings. The respondent denied that she had gone back to the bus, at all.
During the cross-examination of Hrysikos counsel
for Ms Mansfield suggested to
Hrysikos that he was lying in his evidence. He put to the witness that he had
made two statements
concerning the events of the night and that in neither
statement had he mentioned that the respondent had gone back inside the bus.
Hrysikos agreed that that was the case. Having received that concession one
would have expected the cross-examiner to move on, but
counsel asked when
Hrysikos had last read one of the statements and the witness said he could not
remember. The questioning followed:
"Well, you agree that that aspect isn't in it?
- What's that?
About going into the booze bus? Do you want to read it now?
- I can
read it now, yes.
Refresh your memory from it. Would you satisfy yourself that that is a
statement made by you?
- Yes I would."
- Counsel having handed the statement to the witness during this
exchange then asked "Can I have that back, please? At that point
the police
prosecutor called for the statement to be tendered, because "he's about to be
cross-examined on it". Counsel for the
respondent replied:
"I haven't cross-examined him on it, Your Worship. The
application's premature and without substance, in my submission. It's exactly
why I handed it to him, so he could refresh his memory from it."
- His Worship responded: "We'll wait and see".
- Counsel then asked the following questions of the
witness:
"Thank you your Worship. Have you refreshed your memory from that
statement?
- Yes.
As a result of refreshing your memory from
the statement you're now able to
give evidence in accordance with that statement, correct?
- That's right.
You say in your statement,
don't you, that after you exited the bus you
witnessed a male person, that is Mr Moore?
- Hmmm."
- Counsel then asked three more questions, none of which
challenged the witness with any inconsistency, indeed, each question involved
reading a sentence from the statement and asking the witness if that is what
the statement recorded, which he agreed was the case,
and which the witness
said was what he had already said in evidence. The statement had, thus, been
used for the purpose of demonstrating
that the evidence of the witness was
consistent with his statement in those respects, which constituted something
less than a forensic
triumph, but no doubt foreshadowed what was intended to be
a more meaningful challenge, one in which it would be asserted that there
were
inconsistencies between the statement and his evidence. Before such a
cross-examination commenced, however, his Worship announced,
"The statement
will now be admitted as Exhibit C".
- Counsel asked on what basis the statement had been "admitted",
and his Worship said that counsel had looked at the statement, had
examined
from it and had used the words of the statement and the expression "in your
statement". Counsel responded that the witness
had refreshed his memory from
the statement and that "It's not tenderable if the witness refreshes his
memory".
- In my opinion, the question of law, whilst accurately
reflecting the basis for his Honour's decision on this issue perpetuates what
I
believe is a misunderstanding of the basis on which the document came to be
tendered before the magistrate. The ground of appeal
before us asserts that
the judge was wrong to have held that the magistrate was himself in error "in
deciding to require the prosecuting
counsel to tender the document". Smith,
J., accepting the analysis presented by counsel for the present appellant,
accepted that
it was the magistrate who had required the tender of the
document. Upon that assumption his Honour examined authorities on the question
whether a judicial officer had an entitlement to require the tendering of
evidence in a proceeding. With respect, I can not agree
with the analysis
which Smith, J. and counsel for the appellant made as to the circumstances of
the tendering of the document.
- In my opinion, on close analysis it is apparent that his
Worship, having deferred ruling on the application of the prosecutor, which
counsel for the respondent said was premature - because he had not
cross-examined on the document - then ruled on the application
once counsel did
cross-examine on the document. The document was tendered, therefore, at the
application of the prosecutor, and
that is confirmed by the fact that it became
the third prosecution exhibit.
- The issue, therefore, was whether the use made by defence
counsel of the document enabled the prosecutor to require the document
to be
tendered.
- There are two quite distinct situations which can arise when a
document is being referred to in cross-examination[21]. The distinction was blurred in this case and has caused
some confusion in analysis as to what principles of the laws of evidence
apply.
One issue concerns use of a document to refresh memory. The second situation
concerns cross-examination on the contents of
a document to establish a prior
inconsistent statement.
- Counsel for the respondent contended before the magistrate and
the judge that the document could not be tendered because it had
merely been
used to refresh the memory of the witness. Smith, J. concluded, rightly in my
view, that this was not a case of a document
being used to refresh memory.
There was no refreshing of memory, at all, in this case. The witness accepted
that his statement did
not make reference to a return visit to the bus. It was
nonsense, therefore, to ask him to look at the statement to "refresh his
memory" to confirm the truth of his evidence that the matter had been omitted
from his statement.
- The extracts from the transcript of hearing which I have
discussed above, show that the witness did not refresh his memory, at all,
from
his statement. There was nothing in his statement which refreshed his memory,
and for counsel to hand the statement to the
witness and then ask him to agree
that he had refreshed his memory, but without explaining whether he was
referring to the omitted
matter or some other topic, amounted to little more
than a ruse. If the witness had indeed read the entire statement for the
purpose
of confirming that the topic of a return visit to the bus was omitted
then the witness might have had his memory of events "refreshed",
but he may
have recalled all of the matters in the statement, in any event.
- The real purpose behind placing the statement in his hands was
to cross-examine the witness on the statement under the pretext that
that was
being done as part of an exercise of refreshing his memory rather than as
cross-examination to establish inconsistencies
between the statement and his
evidence. The assumption of counsel was, wrongly, that if the magic words,
"refreshing memory", were
adopted by the witness then the document could not be
tendered.
- However, even assuming this was an instance where memory had
been refreshed, then it was refreshed only as to the topic of the absence
of
reference to the return visit to the bus. The further questions which were
asked went beyond the topic on which memory had been
"refreshed" and the
magistrate was entitled to require that counsel for the respondent tender the
statement[22]. In fact, his Worship treated
it as a prosecution tender, but that was not of practical
importance.
- As I have said, however, in my view this was not a case where
memory had been refreshed. Smith, J. correctly analysed the situation
to be
that the document was used for the purpose of establishing prior inconsistent
statements.[23] In that analysis his Honour
looked at the terms of s.36 of the Evidence Act 1958, which reads as
follows:
"Witness may be cross-examined as to written statements without
producing them
36. A witness may be cross-examined as to previous statements made by
him in writing or reduced into writing relative to the subject-matter
of the
cause or prosecution without such writing being shown to him. But if it is
intended to contradict such witness by the writing,
his attention must before
such contradictory proof can be given be called to those parts of the writing
which are to be used for
the purpose of so contradicting him: Provided always
that it shall be competent for the court at any time during the trial or
inquiry
to require the production of the writing for inspection and the court
may thereupon make such use of it for the purposes of the trial
or inquiry as
the court thinks fit."
- His Honour concluded that the document had been tendered at
the behest of the magistrate but that the power given by s.36 for the
magistrate to "make such use of" the statement in these circumstances did not
extend to a power to require one of the parties to
tender the document. For
the reasons given, I do not agree that the magistrate did require the
prosecutor (or the defence) to tender
it. The magistrate simply responded to
the application of the prosecutor that the document be tendered.
- Had his Honour concluded that this was a situation where the
tender was made in response to the prosecutor's application for it
to be
tendered then there is no doubt that Smith, J. accepted that the document could
be tendered at the request of the prosecutor.
His Honour said, expressly:
"There was no reason why the (appellant, Hrysikos) could not have
tendered it if he had wished, and if it was admissible for a relevant
purpose,
had it admitted into evidence (c.f. Wood v. Desmond[24])."
- The entitlement of the prosecutor to tender the statement
might be confined only to so much of it as relates to the topics within
it upon
which there had been cross-examination, but that is a matter for the discretion
of the judge or magistrate[25].
- I make one observation, however, about His Honour's analysis
of s.36. His Honour concluded that the words "make such use of it"
in s.36
did not empower the magistrate to require either party to tender the document.
With respect to his Honour, and with some
hesitation, having regard to his
Honour's depth of knowledge as to the laws of evidence, I disagree that the
section denies such
power to the judge or magistrate, in an appropriate case,
to compel the tender of a document. The section, in my view, is couched
in
terms sufficiently wide to cover such situations as cross-examination before a
jury which would give a false or misleading impression
that a document was
inconsistent with the witness's evidence. In those circumstances, in my view,
the judge or magistrate would
retain the power to compel one or other party to
tender the document. The power of the judge or magistrate to compel tender
under
s.36 is recognised by the authorities, in my opinion[26]. Even when the contents of the document are not referred
to explicitly in cross-examination, the manner in which cross-examination
proceeds may still lead to the obligation being imposed on counsel to tender
the statement. For example, if a statement is placed
in the hands of a witness
and he is asked "having read that do you stand by your evidence" then the
statement may be required to
be tendered by counsel who asked the question, in
order to dispel any unfair suggestion that his statement was at odds with his
evidence[27].
- Smith, J. held that if (contrary to his opinion) the section
did give such a discretion then this was not a case which warranted
the
magistrate requiring the tendering of the document, and that having wrongly
exercised his discretion to admit it the respondent
was denied a chance of
acquittal. Smith, J. concluded that the tendering of the document might have
wrongly prejudiced the respondent's
defence, by introducing inflammatory
material.
- Had it been necessary to determine whether the discretion was
correctly exercised (that is, had I concluded that the magistrate
exercised his
own discretion under s.36 to compel the tender of the document, rather than
simply respond to a prosecution application)
then I would not have concluded
that the discretion miscarried, or that the fair trial of the respondent was
prejudiced. I find
it difficult to understand why such a fuss was made about
the tender of the document. The inflammatory material which it contained
merely represented further examples of colourful and obscene language used by
the witness at the scene, of which there was an abundance
already in evidence.
Counsel before us, on both sides, could not suggest what damage it did to the
respondent's case to have the
document admitted.
- In my opinion, the appeal should be dismissed.
---
[1] The language of s.49(1)(e)
has remained almost the same, although many of the related sections have been
amended. I shall use the
present tense, nevertheless, to describe the offence
and its elements.
[2] The language of s.55 has been amended since
1998, in some respects significantly, but I shall also use the present tense to
describe
its requirements.
[3] [1993] VicRp 82; [1993] 2 V.R. 403 esp. at 411-413.
[4] It should be noted that s.55(1) now refers
to "a place or vehicle", and "examples" are now appended to the sub-section:
see fn.[ below at para.[].
5]
Sub-section (9) of s.55 would not provide a defence, for that is
limited to refusals to provide a sample: see DPP v. Greelish [2002] VSCA 49; (2002) 4
V.R. 220.
[6] As was seemingly charged in the first line
of the charge, although, at the end of a long and highly confusing charge,
spread over
nine lines, it appears that the charge was repeated in fuller
terms.
[7] It seems, from DPP v. Greelish, a
recent decision not cited to us, that each "requirement" under s.55 may form
the basis of separate charges pursuant to s.49(1)(e).
[8] By s.16 (1)(ii) of Act 92 of 2001.
[9] An "example" is now given at the foot of
this section to the effect that a person may be "required to go to a police
station, a
public building, a booze bus or a police car to furnish a sample of
breath".
[10] [1998] VSC 119; (1998) 28 M.V.R. 521. I should not be
taken as accepting the whole of the reasoning in that case.
[11] Which was clearly defective: see esp.
DPP v. Greelish at 221-222.
[12] The making out of this latter ground
cannot, of course, affect the outcome of this appeal, for this evidence had no
bearing on the
relevant facts which are the basis for the Court's legal
conclusion that the charge was not established.
[13] Reprint No. 4 Road Safety Act
1986.
[14] The emphasis upon deliberate
disobedience, by use of the words "refuses to comply" in s.49(1)(e), is made
even clearer when those words are contrasted with the terms of s.49(1)(d) which
makes it an offence where a person "refuses or fails" to comply with a request
to stop.
[15] It was agreed by counsel that the
compartment in the bus in which the respondent was tested measured
approximately "eight or nine
feet by eight or nine feet".
[16] Director of Public Prosecutions v.
Williams [1998] VSC 119; (1998) 28 MVR 521.
[17] Amended by s.16(1) of Act No. 92 of
2001. By s.16(2) under a heading "Example", s.55(1) and (2) are now followed
by words "A person may be required to go to a police station, a public
building, a booze bus or a police
car to furnish a sample of breath".
[18] See s.48(1A) and s.49(1)(f).
[19] An offence will be committed under
s.49(1)(e) if there is a refusal to comply with any one of the discrete
obligations imposed by s.55(1); the requirement to remain at the relevant place
being one such obligation: Director of Public Prosecutions v. Greelish
(2001) 4 V.R. 220, at 223.
[20] Director of Public Prosecutions v.
Webb [1993] VicRp 82; [1993] 2 V.R. 403.
[21] See De Bono v. Neilsen (1996) 88
A.Crim.R. 46, at 52-53. In this case although the witness was cross-examined
about an omission from his statement it was truly a case of refreshing
memory
because the witness admitted that he had used the statement before coming to
court, for purposes of refreshing his memory.
[22] Senat v. Senat [1965] P 172;
R. v. Harrison [1966] VicRp 12; (1966) V.R. 72; R. v. McGregor [1984] 1 Qd. R.
256; Wood v. Desmond (1958) 78 W.N.(N.S.W.) 65.
[23] See Mansfield v. Hrysikos [2000] VSC 474, [2000] 32 M.V.R. 491.
[24] (1961) 78 W.N.(N.S.W.) 65, at 69.
[25] R. v. Jack (1894) 15 N.S.W.L.R.
196; Alchin v. Commissioner for Railways (1935) 35 S.R.(N.S.W) 498;
Wood v. Desmond, at 67.
[26] See R. v. Jack, at 199, per
Windeyer, J., with whom Innes and Stephen, JJ. agreed; Wood v. Desmond,
at 67, per Herron, J., with whom Kinsella, J. agreed; Alchin v.
Commissioner for Railways, at 509, per Jordan, C.J., with whom Street and
Maxwell, JJ. concurred.
[27] R. v. Jack, at 200-201.
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