Johnson v Poppeliers: fishing expedition or reasonable possibility?

Though a few months old now, Johnson v Poppeliers [2008] VSC 461 has some good law for us and is worthy of discussion — though I’m sure the folks at Frankston are already well across it, and many others of you too. (Plus, it’s next in my pile of reading.)

The headlines from it are:

  • an accused can still be convicted of drink-driving contrary to s 49(1)(f) even if they don’t receive a Certificate of Analysis
  • on the return of a subpoena, the proper test for determining legitimate forensic purpose is is there a reasonable possibility the evidence would materially assist the defence?
  • police aren’t obliged to tell a person of their right to a blood test under Road Safety Act s 55(10). So the discretion to exclude unfairly obtained evidence doesn’t occur if the police in fact don’t mention the right to a blood test

The facts

On Thursday 25 May 2006 Leigh Johnson stopped at a booze-bus in Park Road, Cheltenham. He took a preliminary breath test. The test indicated alcohol in his blood. He went to Moorabin Police Station for an evidentiary breath test, and returned a reading of 0.155%.

Mr Johnson said, “I can’t believe it’s that high.”

Apparently, the police didn’t give Mr Johnson a copy of the Certificate of Analysis. (At least, the magistrate’s factual finding wasn’t challenged on appeal.) At [26] the Supreme Court described it as an “inadvertent failure to give a certificate”.

And the police didn’t tell Mr Johnson he could ask for a blood test under s 55(10) and, quite properly, admitted they deliberately didn’t tell him.

Certificate of Analysis

The magistrate acquitted Mr Johnson of the charge under s 49(1)(b), because he wasn’t satisfied beyond reasonable doubt Mr Johnson received a certificate as required by s 55(4).

He convicted Mr Johnson of the s 49(1)(f) charge. In Johnson v Poppeliers at [20] the Supreme Court simply referred to Furze v Nixon (2000) 2 VR 503, which essentially held a Certificate of Analysis wasn’t necessary to prove the offence. The conviction was sound even if Mr Johnson didn’t get a Certificate. (In any event, at [23], the Supreme Court noted Mr Johnson was told orally of the reading, and in writing in the notice of suspension.

Nor did it matter that the police didn’t tell Mr Johnson he could have a blood test.

While s 49(10) of the RSA gave Mr Johnson a right to request a blood test, the RSA does not impose an obligation on the police to inform him of that right. The failure to inform Mr Johnson of his right under s 55(10), without more, cannot enliven the unfairness discretion to exclude the breath analysis certificate. In light of Furze, the giving of a certificate to Mr Johnson was not a precondition to establishing the offence under s 49(1)(f) and it is therefore difficult to see how an inadvertent failure to give a certificate, without more, can enliven the unfairness discretion to exclude the certificate. Do the two failures, in combination, enliven the discretion? In my opinion, they do not because they are not causally linked. The certificate does not refer to the right under s 55(10) and therefore Mr Johnson’s lack of awareness of that right was not affected by his not having been given a certificate: Johnson v Poppeliers [2008] VSC 461 at [26].

The subpoena

Mr Johnson issued a subpoena1 asking for production of various items, including:

7. The memory print-out records surrounding the test on the Defendant or applicable to the Defendant, from the Breath Analysis Instrument as was used on the Defendant

8. All service and maintenance records for both:

(a) the Preliminary Breath Testing device used on the Defendant by the Informant, and

(b) the Breath Analysis Instrument used on the Defendant by the authorized Breath Analysis Instrument Operator

First, a quick refresher on the steps involved on the return of subpoenas:

  1. Obeying the subpoena. Material produced to the Court, unless the witness successfully claims abuse of process or privilege
  2. Court releases the subpoenaed material. If a party objects to the relevance or forensic purpose of the material, the judicial officer should inspect the material, hear from the parties on purpose and then rule on its release
  3. Wholly or partly receiving the things into evidence

At the Magistrates’ Court, the prosecutor opposed release of the subpoenaed material because it was irrelevant, or the accused had not demonstrated it had a legitimate forensic purpose. The magistrate agreed.

The Supreme Court discussed a number of authorities dealing with legitimate forensic purpose, including the recent NSW cases of RTA v Connolly (2003) 57 NSWLR 310 and Attorney-General (NSW) v Chidgey [2008] NSWCCA 65, and Victorian cases of DPP v Selway (No 2) (2007) 16 VR 508 and Ragg v Magistrates’ Court (2008) 18 VR 300.

The most significant part of this judgment is this:

In my view, the authorities discussed above establish that in Victoria, the test for determining whether evidence sought on summons by a defendant has a legitimate forensic purpose, is whether there is a reasonable possibility that the evidence would materially assist the defence. The test of “within the range of probability” set out in Fitzgerald does not correctly state the law. The authorities also establish that while a fishing expedition is insufficient, the test of “reasonable possibility” must be applied flexibly (and, I would add, with common sense) in order to give the accused a fair opportunity to test the Crown’s case and take advantage of any defences available to the accused. Where the accused wishes to rely on a statutory defence, the absence of evidence from which an inference can be drawn that the documents sought will satisfy the requirements of the defence does not necessarily mean that the reasonable possibility test is not met. This is particularly so where there is only one statutory defence available to the accused and that defence involves technical information exclusively in the possession of the Crown; insistence by the court that the accused present evidence which provides a basis for a positive inference that the documents sought will satisfy the requirements of the defence may effectively “eviscerate” the defence: Johnson v Poppeliers [2008] VSC 461 at [42].

He later said at [50] and [51]:

This was not a case where the summons sought documents which may or may not exist on the speculative basis that they might contain something which might be of some assistance to the defence in some unspecified way…The police did not make any admission that the breath analysing instrument was malfunctioning. In these circumstances, having access to schedule items 7 and 8(b) afforded the only means by which Mr Johnson could have any prospect of establishing the defence in s 49(4) of the RSA.

This is a big shift in how we understood the law about subpoenaed material. For charges proved by technical material solely in the police’s possession, it does make sense. Otherwise, how will the accused know if the material will assist their defence?

On my reading of all the previous authorities, I reckon the argument in the Magistrates’ Court was absolutely right — and very well argued by the prosecutor. But, we now know the test is different.

And, at [53] Kyrou J also made a point about the utility of opposing a subpoena application:

Had access been given to items 7 and 8(b), much delay and cost might have been avoided. If schedule items 7 and 8(b) had disclosed no basis for challenging the working order or operation of the breath analysing instrument, the proceeding would have focused on the substantive issues. If schedule items 7 and 8(b) had disclosed a basis for challenging the working order or operation of the breath analysing instrument, the focus would have been on whether the defence in s 49(4) was satisfied.

I must admit, I’ve been guilty of not seeing the wood for the trees. It’s only recently I’ve appreciated the subtly of the approach of wiser heads. If the material isn’t harmful, why oppose it’s release?


I forgot to mention the outcome of the appeal! (This is the beauty of an electronic format: it’s easy to edit!)

The defendant’s appeal against his conviction was upheld. The argument about the Certificate of Analysis was rejected, but the Supreme Court considered that the outcome might have been different if Mr Johnson were granted access to the subpoenaed material.

The charge was remitted to the Magistrates’ Court for determination by a different magistrate.

1 Pedantically, the Magistrates’ Court issues summonses, not subpoenas, but they have the same legal affect and are governed by the same principles.

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