Area of Law – Sentencing

An Article about Not a defence to a charge under s. 49(1)(e) for refusing to accompany to say that refusal was for a reason of substantial character

The Road Safety Act 1986 provides a defence under s. 55(9) that a person can refuse to provide a breath test if that refusal is a reason of substantial character. Section 55 of the RSA 1986 also provides for the requirement to accompany a police officer to a station for the purpose of a breath test. Can a person use the same defence under s. 55(9) and argue that they refused to accompany police to the police stations because of a reason of substantial character?

The effect of the Court of Appeal decision in DPP v Greelish [2002] VSCA 49 is that s. 55(9) cannot be relied upon in defence to a charge under s. 49(1)(e) where the alleged refusal relates to refusing to accompany a police officer to a police station or other place, for the purpose of a breath test.

The facts of the case were that the defendant was intercepted by police and asked to attend a police station for a breath test. He refused ont he basis that he did not want to leave his 8 yr old daughter. The police informant offerred to drop the defendant’s daughter back at home, and the defendant would be conveyed in a second vehicle following closely behind. He refused. He walked his daughter home to the famiy home a close distance away, and returned to the police. He was charged with an offence under s. 49(1)(e) of refusing to accompany. At the Magistrates Court contested hearing, he argued that his reason for refusing to accompany the police was a reason of substantial character as provided for under s. 55(9). He successfully argued this defence. The DPP appealled. The DPP was unsuccessful on appeal to the Supreme Court on a question of law under s. 92 of the Magistrates Court Act (see DPP v Greelish [2000]. The DPP appealled to the Court of Appeal and were successful.

On the application of s. 55(9) to refusal offences under s. 49(1)(e), the Court of Appeal held:

“The genesis of s.55(9) in the Act is Act No.8143 (Motor Car (Driving Offences) Act 1971) s.7 whereby s.80F (12) was inserted in the Motor Car Act 1958. It has remained unchanged since 1971, notwithstanding the amendment to s.80F(6) in 1980 whereby the words “and for that purpose may further require the person to accompany a member of a police force to a police station or the grounds or precincts thereof” were inserted.

“The obvious purpose of s.55(9) was to ameliorate the harsh consequences of persons being required to furnish a sample of breath for analysis under s.55. It is important to keep in mind that if there is no reason of a substantial character for a refusal, the strictly formulated offence is designed to deal with a major social evil: c.f. Thompson v. His Honour Judge Byrne. It was not extended to provide a defence to a charge of refusing to accompany probably because the act of accompanying a police member to a police station or other place is not incriminating (see Rankin v. O’Brien), but is preparatory to being requested to furnish a sample of breath for analysis, an act by which the person could incriminate himself”.


Date: 01/09/2009