I blogged about Mastwyk v DPP yesterday, but didn’t get to write about the other similar appeal delivered straight after.
In this case, the Court of Appeal allowed the prosecution appeal and remitted the case to the Magistrates’ Court.
In Foot, the police administered a preliminary breath-test to Mr Foot and then asked him to accompany them back to a police station for a breath test. He agreed. He got in the back of the divvy van, and the police closed the door.
We now know that wasn’t imprisonment: Mastwyk at .
There was some dispute about what happened next, but it seems Mr Foot then decided he wanted out when he saw the police arrest a woman who was with him in the car. It seems the police didn’t realise that…presumably because they were otherwise engaged arresting the woman.
The Court of Appeal considered that could not amount to imprisonment. Only if the police refused to release Mr Foot would he have been imprisoned. And if they didn’t know he wanted out, they couldn’t refuse his request…
That was enough to dispose of the appeal.
But the Court also went on to consider if the requirement to accompany had to be objectively reasonable before the police could establish an offence contrary to Road Safety Act s 49(1)(f) for exceeding the prescribed concentration of alcohol within 3 hours of driving.
They said that was wrong, applying DPP v Foster  2 VR 643 at  – : the reasonableness of any request or requirement is only relevant when the motorist refuses a police request and the police then rely on their statutory powers to compel the motorist.
This means the ‘objective reasonableness’ requirement articulated in Mastwyk is confined to refuse-to-accompany cases contrary to s 49(1)(e) and doesn’t apply to exceed-prescribed-concentration-cases contary to s 49(1)(f) (and probably 49(1)(b)).