Judge reluctantly grants appeal

Press, 31 March 1981, Page 9

Judge reluctantly grants appeal

A driver, who was “clearly aggressively and unpleasantly drunk” and unco-opera-tive. has had his appeal against a conviction for driving while the proportion of alcohol exceeded 500 micrograms per litre of breath upheld with regret by Mr Justice Casey in a reserved decision given in the High Court.

His Honour quashed the conviction against Robert Charles Purdy, aged 44. entered by Judge Paterson in the District Court after a defended hearing but made no order of costs to Mr Purdy. Mr Purdy was fined $260 and his driver’s licence was cancelled for six months by Judge Bisphan who sentenced him in the District Court.

The appeal was upheld on a technicality that the mandatory provisions of the Act had not been complied with. After being told that he had returned, a positive breath test Mr Purdy was not informed that if he did not request a blood test within 10 minutes the test could be sufficient evidence to lead to conviction.

According to the evidence of the arresting traffic officer, Mr Purdy took no notice of what he said.

The appeal was heard on February 25 and 27 when Mr D. C. Fitzgibbon appeared for Mr Purdy and Mr M. C. Carruthers for the Crown.

In his decision Mr Justice Casey said that after a bad piece of driving Mr Purdy was given a positive breathscreening test by a traffic officer. Mr Purdy refused to accompany the traffic officer to the police station for an evidential breath test and had to be arrested and forcibly brought in with police assistance. He was clearly aggressive and unpleasantly drunk.

A sample of Mr Purdy’s breath returned a reading of 750. The traffic officer advised him of the positive evidential breath test. When the traffic officer tried to read the prescribed form of positive evidential breath testing. Mr Purdy said that he would take no notice of what he was saying and refused to sign it. He was taken from the medical room and charged. It was

later found that he was a disqualified driver. . 'His Honour also upheld Mr Fitzgibbon's other point that there was no evidence showing that Mr Purdy was allowed the necessary 10 minutes within which to elect to undergo the blood test.

“I can sympathise with the prosecutor’s reported remarks to the District Court judge that there is a limit to which a traffic officer can go in the case of an uncooperative suspect." Mr Justice Casev said.

“However, that limit does not allow him to ignore the mandatory procedures laid down by the Act. even if he concludes (rightly in this case) that his words are falling on hostile and unresponsive ears. "The result is that the evidence of the positive evidential breath test is not admissable in this charge of driving while the proportion of alcohol exceeded 500 micrograms per litre of breath. "The appeal is allowed and the conviction and sentence are quashed, but I make no order as to costs,” his Honour said.