Event and Time
Event Description
In February 2018, Senior Constables Clinton Goff and Will Watson intercepted Caleb Sheerin while driving on the Bass Coast Highway in Inverloch, Victoria. After a negative preliminary breath test, the police requested Mr. Sheerin to undertake a preliminary oral fluid test under the Road Safety Act 1986. Although Mr. Sheerin initially complied and accompanied the officers to the testing vehicle, he subsequently left before undergoing the test.
Application and Claims
Mr. Sheerin was charged with an offence under section 55E(2)(a) of the Road Safety Act 1986 for refusing to remain at the testing location, which is necessary for providing a sample of oral fluid within three hours of driving. He contended that the charge was defective, arguing it lacked an express allegation that he was required to remain for testing.
Judicial Decisions
The magistrate initially dismissed the charge, acknowledging potential confusion in its structure. Subsequently, the Director appealed the dismissal on a question of law, claiming the initial ruling was erroneous and sought to determine the sufficiency of the charge's wording. The appeal concluded that the charge was not defective, and the case was remitted back to the Magistrates’ Court for a hearing.
Dispute Points and Legal Basis
Dispute Points
- Prosecution's Claims:
- Mr. Sheerin was required to provide a sample of oral fluid after a positive indication from the preliminary test. - The charge was laid under the applicable statute that criminalizes refusal to comply with such requirements.
- Defendant's Arguments:
- The charge was defective due to the absence of explicit wording indicating a requirement to remain for testing. - The nature of the offence was not sufficiently conveyed, causing ambiguity regarding the basis of the alleged refusal.