Michael Thorpe challenges police powers in County Court

A Gippsland man has appealed his licence suspension for failing to provide a breath test, saying he wasn’t the driver of a van and that police were on private property.

Michael Thorpe successfully challenged police authority to ask for a breath test when he was not the driver of a vehicle officers claimed he was at Lake Tyers Reserve.

A man has scored a big win against overzealous police by having his conviction for refusing a breath test thrown out on appeal

Michael Thorpe successfully challenged in the County Court his conviction and sentence imposed in the Magistrates’ Court for refusing a preliminary breath test on the grounds he was not driving or in charge of a vehicle and that police were trespassing on the property he was in when an officer questioned him.

The drama began on the night of November 8, 2021 when Senior Constables Felicity O’Byrne and Chelsea Maxwell were requested to attend a report of a drunk male driving a white van in the Lake Tyers Reserve in Gippsland.

Mr Thorpe told the officers he did not know where the keys to the van were, that he had no connection with the vehicle and questioned the authority of the police to ask for a breath test.

When Senior Constable Byrne said to Mr Thorpe “you’re in charge of a vehicle”, Mr Thorpe replied “No, I’m in charge of my land”.

Michael Thorpe successfully appealed his conviction and sentence for refusing a breath test.

Mr Thorpe continued to dispute the authority of the police to ask him to undergo a breath test.

Senior Constable Maxwell asked Mr Thorpe if he had anything to drink that day and he replied that he had been drinking “Just about everything”.

Senior Constable Byrne gave him the choice to either do a breath test or lose his driving licence for two years.

She gave evidence in the County Court that she believed she saw the rear lights of the van, that it was not stationary and had travelled about 10m on a gravel road.

When it was put to her that she could not assert Mr Thorpe was driving, she said “I did not see Michael Thorpe driving but there was no question he was the driver of the vehicle”.

While dismissing the charge, Judge Kellie Blair said a police officer must observe the person driving the vehicle and that holding a belief as to who was driving it would not be enough for the purpose of a breath test.

Judge Blair said the charge stated that Mr Thorpe, having being required to undergo a preliminary breath test, did refuse such a test within three hours of being the driver of a motor vehicle.

The judge said she would have expected the prosecution to call Senior Constable Maxwell to give evidence and there was no explanation as to why she wasn’t called.

A large focus of Mr Thorpe’s appeal and a considerable amount of evidence was given in relation to the authority of the police to enter the Lake Tyers Trust property without permission and to exercise their powers.

Judge Blair said given her findings in relation to the charge, it was not necessary to make a finding with respect to this evidence and the arguments advanced by the parties.