The Supreme Court delivered its decision in two drink-driving cases yesterday.

The first was DPP v Piscopo [2010] VSC 498. (For all the non-Maltese speakers reading this, Piscopo is pronounced Pis-cŏ-pō — short ‘o’, long ‘o’.) The second was DPP v Rukandin [2010] VSC 499. Both were very similar cases, with very similar reasons for decision.

A police officer charged Mr Piscopo with an offence contrary to Road Safety Act 1986 s 49(1)(e) for refusing to accompany the police to Keilor Downs police station for a breath test as required by s 55(1). A different police officer charged Mr Rukandin under the same offence section for refusing to accompany the police to the Monash Medical centre for medical practitioner to take a blood sample as required by s 55(9A).

For s 49(1)(e) offences, police must tell a motorist there’s a 3-hour limit

In both cases, Kyrou J held the police must require an accused motorist to:

• provide a sample of breath for analysis; and
• and accompany the police to a place (in these cases, a police station and a hospital) and remain there until the motorist provides a sample of breath and receives a certificate of analysis, or, three hours pass.

This result means the ‘requirement’ relied on by the police from their proformas and guide-cards falls short of what is needed to establish the offence.

Kyrou J considered DPP v Foster [1999] 2 VR 643 in detail, and also Uren v Neale (2009) 196 A Crim R 415. (I discussed Uren v Neale here in June last year.) Once he reviewed those cases in detail, Kyrou J concluded that there are two requirements contained in s 55(1), and that both need be communicated to an accused driver.

In my opinion, for the purposes of s 49(1)(e), s 55(1) sets out two, rather than three, requirements. The first requirement is to furnish a sample of breath. The second requirement is to accompany a police officer to a police station where the sample of breath is to be furnished and to remain there until the sample is furnished and a certificate is given or until three hours have elapsed since the driving, whichever is sooner. The second requirement has both an ‘accompany’ component and a ‘remain’ component. These components, however, are not separate requirements; they are integral parts of a single composite requirement.

…

My interpretation of s 49(1)(e) is consistent with the proposition that the RS Act contemplates that a motorist who is subject to a ‘requirement made under s 55(1)’ is presented with the choice of compliance or refusal, with the penalty for refusal being the risk that he or she will be convicted of an offence under s 49(1)(e). In conferring such a choice, the Parliament must be taken to have intended that the motorist would be placed in a position to exercise his or her rights in an informed manner. Plainly, a motorist who is required to accompany a police officer to a police station for the purpose of furnishing a sample of breath without being told the maximum period for which 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: Piscopo at [50] and [57]; Rukandin at [56] and [60].

Distinguishing previous authority

His Honour went on to consider if previous authority — particularly DPP v Foster [1999] 2 VR 643 and Uren v Neale (2009) 196 A Crim R 415 — precluded the conclusion he drew.

His Honour considered they didn’t. Put simply, he reasoned that those cases provided that when a driver did accompany, and did remain at a place and did provide a sample of breath for analysis, it wasn’t necessary for the police to recite all things in s 55(1). (And, that is indeed consistent with the Court of Appeal’s decision in Foster.)

But, when a driver is accused of refusing a requirement under s 55, then consistent with Uren v Neale, and DPP v Foot (discussed here), DPP v Greelish (2002) 4 VR 220, and Hrysikos v Mansfield (2002) 5 VR 485, they must be told the full extent of their obligations.

By way of contrast, in relation to a charge under s 49(1)(e), the key questions are whether ‘a requirement [was] made under section 55(1)’ and whether the motorist has refused to comply with it. The first question depends on the nature of the requirement that must be made, which, in turn, is governed by the language of s 55(1), the purposes of Part 5 of the RS Act, and the context of s 55(1) and the Act as a whole: Piscopo at [70]; Rukandin at [76].

Detention, and the Charter of Human Rights

An interesting result in these cases was the finding that Road Safety Act s 55(1) is compatible with Charter s 21(3), which provides:

(3) A person must not be deprived of his or her liberty except on grounds, and in accordance with procedures, established by law.

His Honour considered two Court of Appeal decisions rejecting the conclusion that a requirement under Road Safety Act s 55(1) involved detention or arrest: Hrysikos v Mansfield (2002) 5 VR 485 at [2], [5] and [51], and Mastwyk v DPP [2010] VSCA 111 (discussed in my post here).

(I wonder if the in-court argument considered that those cases might be per incuriam in the sense they were decided pre-Charter, and not binding on today’s Supreme Court?)

At Piscopo at [82] and Rukandin at [86], the Court also considered a Canadian case, R v Therens, [1985] 1 SCR 613 where Le Dain J said at [53]:

In addition to the case of deprivation of liberty by physical constraint, there is in my opinion a detention within s. 10 of the Charter when a police officer or other agent of the state assumes control over the movement of a person by a demand or direction which may have significant legal consequence and which prevents or impedes access to counsel.

The Court considered itself bound by the Victorian cases (though they’re pre-Charter), but noted Hrysikos v Mansfield (2002) 5 VR 485 at [5] and Mastwyk v DPP [2010] VSCA 111 at [50] and [64] both considered that Road Safety Act s 55(1) involved a deprivation of liberty. (I genuinely don’t know if there’s a distinction between ‘detention’ and ‘deprivation of liberty’. It seems to me like two names for the same dog.)

For that reason, Charter s 21(3) did apply. The Court concluded that if Road Safety Act s 55(1) is interpreted as requiring advice of the different obligations in the section, it is compatible with human rights.

[88] Applying the approach set out in R v Momcilovic (2010) 265 ALR 751 in relation to s 32 of the Charter, I have concluded that the interpretation of s 55(1) of the RS Act which I have adopted is correct and that, so interpreted, s 55(1) is compatible with the human right set out in s 21(3) 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 that is involved in complying with a requirement under s 55(1) is in accordance with the procedures that are set out in that section. By being aware of the temporal limitation, a motorist can take steps to ensure that the deprivation of his or her liberty does not exceed the maximum period permitted by s 55(1).

The end result

The appeal was dismissed. Unless the DPP appeals or the legislation is changed, I expect this means the police will need to dust off their pre-Foster and Bajram advice cards for refusal charges.