Area of Law – Driving – Drink Driving Offences

An Article about Proving defendant had a zero license condition as an element to the offence

Does the prosecution have to prove as a separate element to an offence under s. 49(1)(b) of the Road Safety Act 1986 that the person charged was the holder of a Z license condition?

This issue came before the Victorian Court of Appeal in the case of DPP v O’Rourke [2006] VSCA 252.

Ms O’Rourke was charged under s. 49(1)(b) of the Road Safety Act. The certificate evidenced her blood alcohol content (bac) at 0.175% at the time she was on a zero bac license condition. The charge correctly reflected the fact that she was on a ‘Z’ condition, which was a zero bac limit. During the contested hearing, the prosecution failed to call evidence that at the time of providing the sample she was on a ‘z’ condition. The defendant agued that by virtue of s. 52 of the RSA 1986, a separate element of the offence was created namely evidence the defendant had a ‘z’ condition, and there was no evidence before the Court to establish this. The Magistrate dismissed the charge on this basis. The no case submission was successful and the Director of Public Prosecutions appealed. The Supreme Court dismissed their appeal. The DPP appealed again to the Court of Appeal and this time, the appeal was upheld.

The Court of Criminal Appeal ruled that section 49(1)(b) creates a single offence, and the occurence of a person with a zero license condition offending against s. 49(1)(b) was an aggravating feature of the offence, however it was not a separate element for the prosecution to prove.


Date: 01/09/2009