Parties Dispute Offence Against Road Safety Act

Police v McNamara [2022] VMC 11 (25 May 2022)

The parties are in dispute over the refusal of a driver to comply with the requirement to accompany the officer to the police station.  The informant gave evidence pertaining offence against s 49 of the Road Safety Act 1996.  The Court, in adjudicating this dispute, considered the requirements for the request to accompany police and the obligation to explain the consequences of refusal to accompany police for an evidentiary breath test.

Facts:

The accused John McNamara (‘the accused’) is charged under s 55(2) of the Road Safety Act 1996 (‘the Act’) which permits the police to give a requirement to accompany them where a sample of breath is to be furnished where the police officer forms the opinion that the driver has committed an offence under ss 49(1)(a) or (b) of the Act.  The accused was also charged with two other offences which will be considered later in the judgment.  

The informant gave evidence that on 24 May 2019 at approximately 4:55 pm, he in company with two other police members in the same vehicle pulled over a motor vehicle driven by the accused in Sturt Street South Melbourne due to the manner in which the Ford Ranger motor vehicle was being driven by the accused.  The informant also gave evidence that he and his colleagues were originally tasked with social order duties that day, and as such, they did not carry with them a PBT device.

The defence raised three issues for consideration by the Court on the facts in this case: (a) that there was no evidence on the BWC or in the evidence in the case, that the informant formed a belief that the accused had committed an offence against ss 49(1)(a) or (b) of the Act; (b) that when giving the accused the requirement to accompany, the informant failed to comply with the principle set out in Mitchell v DPP; and (c) as the accused had a prior for drink driving, the minimum period is 4 years loss of licence. The accused was never informed of this and accordingly was misled which caused him to act to his detriment by telling him the penalty would be a two-year licence loss.

Issue:

Whether or not the evidence of the informant formed a belief that the accused had committed an offence. 

Applicable law:

Road Safety Act 1986 s 49(1)(b) - provides that when a motorist is pulled over by police and administered a PBT, the reading obtained from the PBT will form the basis of the belief that the accused has consumed alcohol above the prescribed limit. 

Hrysikos v Mansfield [2002] VSCA 175; (2002) 5 VR 485 - provides that to require a person to give a sample of breath, the officer must have reasonable grounds for the belief that the person has offended against s 49(1)(b). 

DPP v Skinner [2004] VSC 32 - provides that the exercise of a statutory discretionary power is only invalid if lacking in bona fides or is not based upon reasonable grounds. 

DPP v Mitchell [2002] VSC 326 - where there appears to be some divergence in the authorities on whether the state of mind of the informant and the grounds for the belief must be the subject of express evidence by the informant.

DPP v VAA [2004] VSC 444 - provides that a failure by the officer to advise the person the consequences of refusing does not amount to failing to prove an element of the offence, nor is it a defence to the charge.

Rankin v Obrien [1986] VicRp 7; [1986] VR 67- established that proof of demand by precise recital of words of the Act is not required.  

Analysis:

Evidence of a requisite belief being formed can be proven by several means.  Firstly, an expressed opinion by the informant, secondly a concession by the accused, and thirdly, by inference from all the surrounding circumstances, including the viewing of the BWC.   

The evidence in chief of the informant at the hearing was that after the accused’s vehicle, he approached the accused who had exited the vehicle.  The informant stated that initially, his presentation was unremarkable, however, when the accused spoke, it was apparent that he was intoxicated and had been drinking. 

The informant further stated that his breath smelt of liquor and that he presented with an intoxicated demeanour in that he was slightly unsteady on his feet.  The footage tendered in evidence from the BWC clearly depicts the accused behaviour as being consistent with someone who is intoxicated, in addition to being confrontational, unnecessarily argumentative and misogynistic in his dealings with a female police officer.  There is nothing in any of the legislative provisions or the case law that would suggest that police have an obligation to explain the consequences of refusing to accompany, and if they choose to explain the consequences, that there is a requirement to precisely state the likely penalty when making a request to accompany them is made.  

In this case, the accused was informed that he may go to prison, in addition to a fine and a 2-year loss of licence.  Notwithstanding this possible consequence involving the loss of liberty, he still chose to not accompany the police.

Conclusion:

To the extent that a belief that an offence has been committed under ss 49(1)(a) or (b) is a necessary element of the charge, the Court is satisfied that there was a reasonable basis for such a belief to be formed and that belief was communicated to the accused at the time of his apprehension and was subsequently confirmed by the informant in his evidence in chief.  In the alternative, there is sufficient evidence from the BWC for the requisite state of mind of the informant to be proved by inference.