Back in 2010 the Supreme Court considered if the police were justified requiring a preliminary breath test (PBT) from a person they believed was about to drive — at least, until he saw the police. In DPP v Farmer (2010) 56 MVR 137 the Court held that it was the belief of the police that was relevant, and so long as it was reasonably held, the requirement for a PBT was valid.

More recently, in Halley v Kershaw [2013] VSC 439 the Supreme Court considered the slightly different scenario where the person behind the wheel was asleep when the police found him. Clearly, the police considered he had driven there. (And but for becoming a little too tired and emotional, probably would have continued driving.)

Image courtesy of David Castillo Dominici / FreeDigitalPhotos.net

The case turned on a narrow point (as these cases often do).

Acting Sergeant Mark Kershaw testified that on 10 January 2012 he answered a phone call. The caller said a green Commodore sedan was parked in Huntingdale Road, Huntingdale.

Sergeant Kershaw went to check it. He found a green Commodore parked out the front of a shopping strip, in Huntingdale Road. The engine was running. Sean Halley was in the driver’s seat, slouched over the steering wheel and apparently asleep. Sergeant Kershaw knocked on the window. Apparently, it took about seven to ten minutes to rouse Mr Halley, and he then opened the car door.

The car was in ‘park’. The radio was off, and the heater and aircon were off.

Mr Halley said he had not been there for long. He took a preliminary breath test, which indicated alcohol was in his system, and then went to Oakleigh police station. A later evidentiary breath test returned a result of 0.266%

Sergeant Kershaw did not testify if he believed Mr Halley was going to start or drive the car: see [15] and [41].

Was Halley ‘in charge’?

Road Safety Act 1986 s 3AA provides generally when a person is in charge of a motor vehicle:

3AA. Circumstances in which person is to be taken to be in charge of a motor vehicle

(1) Without limiting the circumstances in which a person is in charge of a motor vehicle, the following persons are to be taken to be in charge of a motor vehicle for the purposes of this Act—

(a) a person who is attempting to start or drive the motor vehicle;

(b) a person with respect to whom there are reasonable grounds for the belief that he or she intends to start or drive the motor vehicle;

(c) a commercial driving instructor while the person whom he or she is teaching to drive is driving or in charge of the vehicle;

(d) an accompanying licensed driver while the person whom he or she is sitting beside is driving or in charge of the vehicle.

But that interpretation is then narrowed for offences contrary to Part 5 of the Act (all the drink and drug-driving provisions) by s 48(1)(b):

48. Interpretative provisions

(1) For the purposes of this Part—

(b) a person is not to be taken to be in charge of a motor vehicle unless that person is a person to whom section 3AA(1)(a), (b), (c) or (d) applies.

So, the general words in s 3AA(1) do not apply to cases alleging offending against Part 5 of the Act: at [26] – [35]. When deciding this, at [32], the Court relied on both principles of statutory interpretation, and DPP v Farmer (2010) 56 MVR 137 (at [7], [9] of that judgment).

Halley argued at the no-case-to-answer stage of the case these provisions meant he was asleep, and not in charge of the car, when woken. But the prosecutor submitted, and the magistrate accepted that, the general words in s 3AA(1) could be used, so that even though there was no evidence the informant reasonably believed Mr Halley was intending to start or drive the motor vehicle, Halley was still in charge.

‘In charge’ limited to the four prescribed grounds

The magistrate was wrong to accept this, and did not make any finding (as required) about the belief (if any) of Sergeant Kershaw. At [41] the Court applied DPP v Farmer (2010) 56 MVR 137 to affirm what was required in this case:

1. The informant should give specific evidence as to the belief which he or she formed in relation to the intention of the defendant to start or drive the vehicle.
2. In addition, the informant should expressly state the basis upon which he or she formed that belief.
3. It is not necessary that the informant be satisfied of the particular fact on the balance of probabilities; rather, the informant must establish that he or she held the belief on reasonable grounds.
4. Such a belief has been described as ‘an inclination of the mind towards assenting to, rather than rejecting, a proposition …’ In DPP v Farmer, Bell J stated that a ‘belief is something more than suspicion but does not need to approach anything like certainty.’
5. The belief by the informant must be a belief that the defendant intended to ‘… start the engine or drive off forthwith, or to do so at any point of very close futurity’.
6. The question is not whether the court itself holds, or agrees with, the belief that the defendant intended to drive or start the vehicle. Rather, the question is whether the informant held such a belief, and whether the informant did so on reasonable grounds. (Citations omitted.)

The conviction was quashed, and unusually, the case was not remitted to the Magistrates’ Court. At [45] – [46], the Court held that even though it could be inferred that Sergeant Kershaw believed in the circumstances that Mr Halley intended to start or drive the car, this would not be enough to prove that element of the offence beyond a reasonable doubt. (Though it would be enough to defeat the no-case-to-answer submission.)