The Court of Appeal today delivered its judgment in Mastwyk v DPP  VSCA 111.
It’s a bit of an involved read. The short result is:
- the police can require motorists to accompany them in the back of divvy vans to a police station for a breath test
- but, if a motorist refuses, and is charged with refusing and defends the charge by claiming the requirement was unreasonable, the police must prove that the mode of transport was objectively reasonable
- reasonableness will be shown using the test set down by Kyrou J in DPP v Mastwyk (2008) 185 A Crim R 285;  VSC 192
If the police don’t do that, the requirement to accompany will be invalid…and the accused should be acquitted.
A very quick refresher…
On 10 June 2005 at Wattle Bank the police asked Ms Mastwyk to go back to a police station for a breath test. In a divvy van. In the cage at the back. She baulked at going in the van.
The police charged her with refusing to accompany them for a breath test, contrary to Road Safety Act s 49(1)(e). She contested the charge. The magistrate dismissed it, deciding that transport in a divvy van amounted to imprisonment. And it was unreasonable for the police to require her imprisonment someone when the Road Safety Act didn’t provide that power. The magistrate relied on an old unreported judgment of the County Court — Salton v Wigg.
The police appealed: DPP v Mastwyk (2008) 185 A Crim R 285;  VSC 192. The Supreme Court overturned the Magistrates’ decision, deciding that the police must act reasonably when they requiring someone to accompany them for a breath test. In Ms Mastwyk’s case, so long as she was able to communicate with the police at any time to say something like, “I want to get out”, it was reasonable. (See  – .)
Ms Mastwyk appealed to the Court of Appeal.
The Court unanimously dismissed her appeal.
Court of Appeal’s decision
All three members of the Court agreed that Road Safety Act s 55(1) does not authorise the arrest or detention of a motorist. (Hardly a revelation to anyone who deals with these provisions regularly, but nice to have a Court of Appeal opinion on the point.)
Nettle and Redlich JJA delivered separate judgments, but agreed the police may only require a motorist to accompany them in a way that is, objectively, reasonable.
Nettle JA said:
 Accordingly, I would limit the basis for decision in this case to saying that, where a driver is otherwise willing to comply with a requirement that he or she accompany a police officer to a designated place to undergo a breath test, but the police officer directs the driver to accompany the police officer to that place by means of travel which are objectively unreasonable, a refusal by the driver so to travel is not without more a contravention of s 55(1).
(Redlich JA agreed with that, at .)
At  Nettle JA said if the accused’s defence is that the requirement to accompany was by an unreasonable method, the prosecution must establish the mode of transport was objectively reasonable. He didn’t specify the standard of proof, but it’s almost certainly beyond a reasonable doubt: Evidence Act s 141; Woolmington v DPP  AC 462.
His Honour also dealt with the resources-argument raised on the appeal:
 Finally, a fair amount was made in the course of argument of the difficulty which police would face if they had to provide reasonable means of transport in all cases of requiring a driver to accompany them to a designated place for testing. In my view that is not persuasive. Practical difficulties of the kind to which reference were made are the product of executive budgetary decisions. Absent an express or otherwise clear statutory indication that they were regarded by Parliament as informing the scope of a power, they are irrelevant to the amplitude of the power. The solution is to furnish the police with the resources required to carry out their duties in the manner that Parliament intended or to have Parliament amend the legislation to make clear that it intends to authorise requirements which are unreasonable.
At  Redlich JA said the prosecution does not have to establish as a separate element of the offence that a requirement to accompany under s 55(1) is reasonable. But, if an accused defends a refuse-to-accompany charge contrary to s 49(1)(e) by claiming the requirement was unreasonable, then objective reasonableness is “relevant to the question whether the prosecution has discharged its burden of proving a refusal.”
I think that’s the same point raised by Nettle JA at , but differently worded. It makes more sense, too, when I look back at  where Nettle JA highlights the point from Hyrsikos v Mansfield about the difference between failing and refusing to accompany. The old ‘fail’ offences are long since repealed; only ‘refuse’ remains — and that requires a mental element of unwillingness…perhaps it’s wilfulness?
His Honour went on:
 I consider that the section should be construed so that the requirement must be one that is objectively reasonable in the circumstances. My conclusion rests upon the premise that Parliament would not have intended that the refusal of an objectively unreasonable requirement would constitute an offence. It is an implication that is derived from the accepted presumption of statutory interpretation that Parliament will not, without clear words to the contrary, be taken to have intended a restriction on individual liberty that goes beyond what is necessary to meet the purposes of the section and the Act. The elements of the offence should, therefore, be read to reflect the intention. Accordingly, where a driver does not comply with a requirement to accompany the police officer because the proposed manner of compliance is objectively unreasonable, the prosecution will fail to establish the element of ‘refusal’ by the driver.
Put another way, if the police prove that the ‘proposed manner of compliance’ is objectively reasonable, they will establish the refusal offence.
Last, at  Redlich JA affirmed Kyrou J’s disagreement with the part of Salton v Wigg that said putting a motorist in the back of a divvy van will always equate to imprisonment.
Maxwell P disagreed with Nettle and Redlich JJA. He considered that Ms Mastwyk was making a collateral challenge to the power to require a motorist to accompany police. At  –  he considered administrative law principles about challenges to exercising statutory powers, and concluded at  ff that Wednesbury unreasonableness must be argued before a court must consider the reasonableness of a request to accompany.
Redlich JA disagreed with that. At  he raised the real problems with trying to deal with Wednesbury unreasonableness in summary hearings in busy Magistrates’ Courts, and said policy considerations weighed against it.
Some gratuitous observations
First, I think the requirement of reasonableness is understandable, and probably almost predictable. (Easy to say with hindsight!) Cases like Trobridge v Hardy (1955) 94 CLR 147 and DPP v Foster (1999) 2 VR 643 speak of reasonableness when police exercise statutory powers. We’ve only got to think of extreme examples to illustrate the point: a demand to accompany in the back of a brawler or prison van would be unreasonable. A demand to accompany by getting in the boot of a police car, or hanging on the roof rack, would be unreasonable. Of course no offence would occur if such a requirement were made.
But a requirement to accompany in the back of a divvy van…subject to the sorts of considerations discussed by Kyrou J in the Supreme Court decision…that’s probably reasonable.
I expect we’ll see a fair bit of litigation on that point as a factual argument in Magistrates’ Courts. And it might make life a bit harder for police, because the test is objective reasonableness — determined by the courts, many months after the event. It won’t always be easy for them to know at the time if they are right or wrong, if they think their requirement is reasonable while the motorist thinks it’s not. But, that’s a fact of policing.
Second, there were no Charter arguments in this case because the alleged offending was on 10 June 2005. 38. The Charter of Human Rights and Responsibilities Act 2006 commenced, in part, on 1 January 2007; the balance commenced on 1 January 2008. In R v Williams (2007) 16 VR 168 at  the Supreme Court held that the Charter had no application to proceedings commenced before the Charter commenced operation.
It’s not likely this point will come up again any time soon: after all, it took ten years before Salton v Wigg was argued at appellate level. But, there is still the possibility it might be revisited with a Charter angle! Stay tuned…?