Relevance of the Victorian Charter to Breath and Blood Testing

DPP v Piscopo [2010] VSC 498 and DPP v Rukandin [2010] VSC 499 (12 November 2010)

The recent decisions in DPP v Piscopo [2010] VSC 498 and DPP v Rukandin [2010] VSC 499 provide further guidance concerning alcohol testing enforcement.  The two separate judgements, delivered simultaneously by Kyrou J, contain identical legal reasoning dealing with ss 49(1)(e), 55(1) and 55(9A) of the Road Safety Act 1986 (Vic).  The Court concluded that where police request a motorist to accompany them for the purpose of furnishing a sample of breath or blood, the motorist must be informed that they have to remain until that sample has been taken or until three hours after driving, whichever is sooner.

Facts

The key facts are as follows:

• In Piscopo, police intercepted a vehicle driven by Piscopo (who was disqualified at the time), required him to undergo a preliminary breath test which was returned positive and then asked him to accompany police to a station for another breath test.  Piscopo replied ‘nuh’ and after being asked why, said ‘cause you're going to lock me up anyway’.  Piscopo was charged with two offences: driving a vehicle whilst disqualified (s 30(1)) and refusing to accompany police for the purpose of furnishing a sample of breath (s 49(1)(e)).  Piscopo pleaded guilty to charge 1 and not guilty to charge 2.  Magistrate Hardy dismissed charge 2.  In essence, Hardy M held that police had failed to establish all elements of an offence under s 49(1)(e) because Piscopo had not been informed that he would be required to remain at the station until he furnished a sample of breath or until three hours after the driving, whichever was sooner.
• In Rukandin, a vehicle driven by Rukandin mounted a kerb and collided with another vehicle.  Police arrived, requested Rukandin's licence, who replied he did not have one.  Police required him to undergo a preliminary breath test, which was returned positive and police then asked him to accompany them to a station for another breath test.  Rukandin complied. Two tests were attempted but could not be completed.  Police then asked Rukandin to accompany them to a medical centre for a blood test.  Rukandin replied, ‘I go home’.  Police asked why he was refusing and Rukandin said, ‘I want to go home’.  Rukandin was charged with two offences: careless driving (s 65) and refusing to accompany police for the purpose of furnishing a sample of blood (s 49(1)(e)).  Rukandin pleaded guilty to charge 1 and not guilty to charge 2.  Magistrate Keil dismissed charge 2.  As in Piscopo, Keil M held that police had failed to establish all elements of an offence under s 49(1)(e) because Rukandin had not been informed that he would be required to remain at the medical centre until a sample of blood had been taken or until three hours after the driving, whichever was sooner.

The DPP appealed both matters to the Supreme Court of Victoria.

Decisions

The Supreme Court of Victoria dismissed both appeals.

The central issue for determination was the meaning of the expression ‘refused to comply with a requirement made under’ ss 55(1) or 55(9A) in s 49(1)(e) of the Act.

The DPP argued that a requirement for a motorist to accompany police to a place where a sample of breath or blood is to be taken was sufficient to support a charge under s 49(1)(e) if the motorist refused to comply.  By contrast, counsel for both Piscopo and Rukandin argued that, in order for a requirement under ss 55(1) or 55(9A) to support a charge, it must not only require the motorist to accompany police, but crucially, must also inform that motorist that he or she will be required to remain there until that sample of breath or blood is taken or until three hours after driving, which is sooner.

Justice Kyrou held that for the purposes of s 49(1)(e), ss 55(1) and 55(9A) set out two, not three, requirements: firstly, to furnish a sample of breath or to allow a registered medical practitioner or an approved health professional to take from a motorist a sample of blood (an 'accompany' requirement) and secondly, to accompany a police officer to a place where a sample of breath or blood can be taken and to remain there until the sample is taken or until three hours has elapsed since driving, whichever is sooner (a 'remain' component).  Justice Kyrou said, ‘a motorist who is required to accompany a police officer to a police station for the purpose of a sample of breath (or blood, as in Rukandin) without being told the maximum period for which or he or she will be required to remain at the police station for that purpose would not be in a position to make an informed choice’.  His Honour found that a requirement that does not inform a motorist of the 'remain' component, ‘is not a requirement made under s 55(1) (or 55(9A)) within the meaning of s49(1)(e) .  Kyrou J said that his interpretation was consistent with the Court's decision in Uren v Neale [2009] VSC 267.

Consideration of the Charter

In both cases, counsel for Piscopo and Rukandin submitted that s 32 of the Charter (interpreting statutory provisions consistently with human rights) required ss 55(1) and 55(9A) of the Act to be interpreted in a way that is compatible with the human right to liberty and security (s 21 of the Charter).  Counsel for the DPP submitted that the human rights set out in s 21 of the Charter are not engaged by ss 55(1) or 55(9A) because neither sections confer powers of arrest or detention.  Counsel for Piscopo and Rukandin drew on the decision of the Supreme Court of Canada in R v Therens [1985] 1 SCR 613, where the Court there concluded that ‘there is...a detention...when a police officer assumes control over the movement of a person by a demand or direction which may have significant legal consequence’.  Justice Kyrou said he was unable to accept that definition and relied on previous authority of the Court to conclude that ss 55(1) or 55(9A) did not authorise detentions.  His Honour did, however, accept that compliance with those sections involved a deprivation of liberty.

Justice Kyrou said that his interpretation of s s55(1) or 55(9A) were correct and that, so interpreted, those sections were compatible with the human rights found in s 21 of the Charter: ‘that interpretation requires that a motorist be informed of the temporal limitation in s 55(1) and thereby ensures that any deprivation of liberty...is in accordance with the procedures that are set out in that section’.

Further, in Piscopo, counsel submitted that the requirement that was communicated to the defendant was unreasonable because police had failed to reassure Piscopo that he would not be 'locked up'.  Justice Kyrou rejected that submission: ‘In my opinion, it would be absurd to apply the requirement of objective unreasonableness in the manner [suggested above].  It cannot be the case that a requirement that is made under s 55(1) will be invalid unless and until the police officer disabuses the individual of each and every irrational fear that he or she raises’.  Curiously, in delivering these comments, His Honour makes no reference to the Charter at all.

Finally, the decisions in Piscopo and Rukandin may result in a large number of current charges (brought under s 49(1)(e) of the Act) being withdrawn against motorists.

The decision is at www.austlii.edu.au/au/cases/vic/VSC/2010/499.html.

Daniel Creasey is Senior Associate & Pro Bono Coordinator with DLA Phillips Fox