THE fate of 785 Victorian drink driving cases is still up in the air following a judgment of three appeal judges today.
Justices Geoff Nettle, David Ashley and Pamela Tate upheld an appeal by the Director of Public Prosecutions on a charge sheet technicality test case.
But the DPP did not win on the legal point that has put hundreds of cases on hold.
The appeal court ruled that the original charge against motorist Peter Kypri was defective, meaning there is no simple legal solution to the delayed drink driving cases.
The stalled cases, some of them years old, will have to be dealt with individually and it is likely that many will simply be discontinued.
The DPP won its case on a subsidiary argument that the magistrate who originally heard Mr Kypri's case could have amended the charge to comply with the law.
Mr Kypri was pulled over in Doncaster on November 27, 2005, and allegedly gave a positive alcohol reading in a random breath test.
It was alleged Mr Kypri refused to accompany police to have a blood sample or further test taken to get an exact reading.
In 2007, after a series of delays, Mr Kypri was issued with a police charge sheet, charging him with breaching Section 49 1(e) of the Road Safety Act for failing to supply a breath sample under Section 55 of the Act.
But the failure of police to specify which of Section 55's subsections -- 1 to 5 -- saw the charge dismissed at the Ringwood Magistrates' Court in 2010 and on appeal before a single judge in the Supreme Court last September.
Appeal judge Justice Ashley said today the magistrate decided correctly the charge was defective but wrongly that it must be dismissed.
The charge was open to amendment in the magistrates' court to correct the failure to specify a sub section applying to Mr Kypri's case.
"Amendment in this case was conceptually possible," Justice Ashley said.
"Whether it proves on examination to be possible is another matter."
The Court of Appeal remitted Mr Kypri's case back to the magistrate to be dealt with in accordance with today's ruling.
The DPP lost its application for it's costs in the appeal.
Paul Holdenson QC, for Mr Kypri said it was the DPP who chose to make it a test case and it had lost on it's main argument that the original charge was not defective.
SRC: http://www.heraldsun.com.au
