The most common reason for a police officer to form the opinion that a driver’s breath contains alcohol (a prerequisite for a valid requirement to accompany for a further test under s 55) is the result of a preliminary breath test. This device doesn’t just tell its operator whether alcohol is present, but also presents a figure of how much is present.

It’s not surprising that a driver who has just been tested and produced such a reading would like to know what that reading is. But nothing in the Road Safety Act 1986 requires the police officer to tell them, and a refusal to share that information doesn’t invalidate a requirement that the driver accompany the police officer to another place for an evidentiary breath test.

In DPP v Blango [2012] VSC 384 the driver, Mr Blango, insisted on being told the PBT reading, as a precondition to accompanying the officer to a police station for an evidentiary test. Magistrate Spencer ruled that, in these circumstances, Mr Blango had not intended to refuse a requirement under s 55.

The DPP appealed on behalf of the police informant, under s 272 Criminal Procedure Act 2009. In days gone by this would have been done by application for judicial review, but the avenue for a prosecution appeal on a point of law exists in the Criminal Procedure Act and it seems the Office of Public Prosecutions now intends to use it. The appeal grounds certainly have an administrative law flavour about them [at 13]:

The Director’s grounds of appeal were that the magistrate

• Failed to apply the relevant objective test for refusal as laid down in Hrysikos v Mansfield.
• Took into account an irrelevant matter, namely Mr Blango’s subjective beliefs as to the law.
• Took into account an irrelevant matter, namely Mr Blango’s suspicion of police.
• Treated Mr Blango’s reasons for unwillingness to comply as evidence to support a conclusion that he had not refused.

In Hyrsikos v Mansfield (2002) 5 VR 485 the Court of Appeal had explained that a number of actions were capable of constituting refusal. Ormiston JA said,

The word “refuses” must be taken to carry with it an element of mental intent, albeit judged objectively for the purposes of an offence such as the present. The simplest way of proving a refusal would be if the subject driver said “I refuse etc” or some equivalent words, with or without expletives, connoting an unwillingness to comply. Alternatively, the prosecution might ask a court to infer that a driver has refused to comply by proving facts from which that inference may be drawn, ie by proof of the circumstantial case from which the only inference is that the driver is refusing to comply, albeit he or she is not expressly saying so. A driver who immediately turns and runs away, a driver who jumps the back fence of a police station, a driver who forcibly pushes open the door of a mobile testing unit and runs off without explanation would each be persons against whom the necessary inference could be drawn.

The Supreme Court determined that Magistrate Spencer’s doubt about Mr Blango’s refusal was not open to her. A number of precedents establish that an agreement to accompany, made conditional upon an event to which that party has no right, can still constitute refusal. The respondent’s refusal to accompany the police until after he was satisfied of the preliminary reading was such a refusal. At the conclusion of the judgment, Macauley J said [beginning at 20]:

The only reasonable inference available from the accepted fact that, after four requests, Mr Blango was being argumentative with police, asserting a mistaken view of the law and wanting to see the reading, as a condition of complying with the informant’s requirement, was that he refused to comply with that requirement.

It follows that I accept that the magistrate erred in law. The nature of that error is that her Honour wrongly treated Mr Blango’s particular reasons for not being willing to comply as supporting the inference that he had not refused to comply. In so doing, her Honour either failed to apply an objective test for assessing refusal as required by Hrysikos, or took into account irrelevant matters, or both.

Conclusion

In those circumstances I uphold the appellant’s appeal. Because, as I have shown, there was only one inference reasonably open on the facts as found, namely that Mr Blango had refused to comply in contravention of s 49(1)(e) of the Act, as a matter of law he must be found guilty of the offence as charged.

Remarks [at 18] leave the door open for argument that, prior to a flat refusal, a request for further information might not be treated as a refusal. But that was not this case. Further, Rowntree v Police (SA) [2006] SASC 51; (2006) 45 MVR 361 was referred to, in support of the comment in passing [at 16] that it might unwise for a police officer to inform a driver of the result of their preliminary test. In that case, Bleby J had said [at 15]:

Evidence of the result of an alcotest instrument is not conclusive evidence of [an offence under the relevant legislation]. Evidence of the result of a properly conducted breath test is. The result of an alcotest, being a less reliable instrument, can only be a guide which in this case justified the requirement for a breath test. Disclosure of the reading was not necessary and could generate in the mind of the person tested uncertainty or confusion if it did not match the result of the breath analysis, which must be disclosed or if it was in fact below the prescribed concentration. It may be that a reading close to but just below the prescribed concentration would indicate that the prescribed concentration may be present. If the alcotest instrument in fact indicated a concentration above that prescribed, the requirement of subsection (2b) was satisfied.