DPP v Bolton [2007] NSWSC 1030

Reported Decision : 178 A Crim R 460

New South Wales Supreme Court

CITATION : DPP v Bolton [2007] NSWSC 1030 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 2 July 2007; 5 July 2007

JUDGMENT DATE : 8 November 2007

JURISDICTION : Supreme Court

JUDGMENT OF : Rothman J

(i) Time to appeal and file the summons is extended, pursuant to Part 51B Rule 6(2)(a) of the Supreme Court Rules, to the date of the filing of the summons, 22 May 2007;

(ii) The orders of his Honour Magistrate Lawson made at Hornsby Local Court on 9 February 2007 dismissing the charge against Andrew Peter Bolton of Fail to Undergo Breath Test be set aside;

(iii) A declaration that the Magistrate erred in law as to the proper construction and application of section 13(2) of the Road Transport (Safety and Traffic Management) Act in determining that the defendant had not been directed to undergo a breath test; DECISION : (iv) An order that the proceedings be remitted to Hornsby Local Court to be heard and determined according to law;

(v) The defendant shall pay the plaintiff's costs of the appeal as agreed or assessed;

(vi) The Court grants an indemnity certificate to the defendant under the Suitors' Fund Act 1951 (NSW).

CATCHWORDS : CRIMINAL LAW - refuse to undertake breath test - form of words used - whether sufficient requirement

Crimes (Appeal and Review) Act 2001 (NSW) LEGISLATION CITED : Road Transport (Safety and Traffic Management) Act 1999 (NSW) Suitors' Fund Act 1951 (NSW)

Attorney General for the State of New South Wales v X (2000) 49 NSWLR 653 Australian Gaslight Co v Valuer-General (1940) 40 SR (NSW) 126 Hammond v Lavender (1976) 11 ALR 371 CASES CITED : Hutchinson v RTA [2000] NSWCA 332 Police v Spitzer (2003) 85 SASR 431 R v Clarke [1969] 2 All ER 1008 R v Nicholls [1972] 2 All ER 186 Williams v R (1986) 161 CLR 278