Foster v Dahl[2009] QDC 45

HER HONOUR: On the 20th of March 2008 Shirley Foster was convicted of being in charge of a motor vehicle whilst under the influence of liquor and/or a drug.

The conviction was based upon events of the 22nd of February 2006. A passer-by, Mr Gorring, found Ms Foster in her car on the side of the road. She appeared unconscious or barely conscious. She became coherent and conversed with him soon after he roused her. Ambulance and police attended in succession.

Ms Foster admitting drinking. Am empty bottle of vodka was found in the car. She also exhibited the indicia of intoxication. A breath analysis was taken sometime later that afternoon.

At trial Ms Foster said that she had parked her car with the intention of killing herself by overdosing on alcohol and pills.

She has appealed her conviction under section 222 of the Justices Act. By operation of section 223 an appeal under section 222 is not an appeal in the strict sense. It is an appeal by way of rehearing. The appellate Court must make its own determination of the issues on the evidence. There was no attempt to adduce new evidence in this case. Thus, this appeal falls for determination upon the trial record.

The learned Magistrate made findings of credit adverse to the appellant and favourable to certain prosecution witnesses whose evidence was challenged. Nothing has been placed before me to suggest that those findings of credit were unreasonable.

There were 10 grounds of appeal. There was some duplicity in the drafting of those grounds, but in essence the grounds were these: firstly, that the conviction was not supported by the facts; secondly, that the Magistrate misdirected himself as to the law; that the Magistrate amended particulars of her charge during her judgement without allowing a defence to be heard; that the Magistrate failed to have the prosecution witnesses subpoenaed when police failed to do so; and finally, that the sentence was excessive.

The offence is under section 79(1) of the Transport Operations (Road Use Management) Act 1995. It provides for the offence of driving while under the influence. The relevant aspect of subsection (1) is this: "Any person, who, while under the influence of liquor or a drug, is in charge of a motor vehicle, is guilty of an offence."

The appellant has complained about the use of the breath analysis certificate and reliance upon the indicia of intoxication. The ultimate complaint of a miscarriage of justice is unsustainable, but before dealing with the relevance of the breath analysis, the certificate and the indicia, I make the observation that even without those pieces of evidence, the appellant's own statements, in combination with the undisputed physical evidence inside the car, established that she was under the influence of alcohol or a drug.

The appellant's position at trial and on this appeal was that the period that the appellant was in charge of the car ceased when the keys were taken from her. The appellant accepts that this must have been around 3:20 p.m. The breath analysis test was done at 5:30.

There is no dispute that the appellant was in her parked car with the keys after or while she had been drinking vodka. Her tape-recorded account to police was that she had been drinking for 24 hours. Her evidence at trial differed in a substantial way from what she told police, but even on her account at trial she must have consumed a very large amount of alcohol in a very short amount of time.

In addition, for the first time she claimed to have taken an overdose of sleeping pills. At trial she said she had bought 2 bottles of vodka some time around noon that day. She said she spent several hours wandering before parking at the roadside and drinking a mixture of vodka and Coke.

She also testified that she had taken a quantity of Serapax; up to 10 tablets, with the alcohol. No packaging was in the car. She had not mentioned the tablets to either the ambulance officers at the scene or to any of the various police that dealt with her the in the course of the following hours. There were 2 vodka bottles in the car. One was empty. There was also a bottle of Coke, which smelt of alcohol. The car smelt of urine.

The appellant appeared to have been unconscious or semi-conscious when she was first approached by Mr Gorring. The appellant herself told the Magistrate that she had become groggy and later lost consciousness after the police arrived to move her from the car. She said she was disoriented and her memory was badly affected. Under cross-examination she said, "I've got no idea what happened after I had the alcohol and the pills. I've got a bit of an idea but I am not a hundred per cent sure of every single word that was said."

The only explanation on the evidence for the appellant's self-described condition was her intoxication. There is no suggestion that she had taken any drink or drug after the keys were taken from her but the conclusion of intoxication is inescapable, even on her own account and the undisputed state she was in when Mr Gorring had to rouse her.

Mr Swindells argues that after the removal of the keys the appellant ceased to have control of the car and therefore was no longer in charge of it. If this was so, the prosecution could not prove that the breath analysis was conducted within the 2-hour statutory period. This is because the evidence was not precise as to when the keys were removed. It could have been as early as 3:18 or 3:20 p.m. The time, as I said, on the breath analysis certificate was 5:30 p.m.

Section 80(15) of the TORUM provides for a conclusive proof of level of alcohol at the time of the material events within 2 hours of the analysis. On the times that can be proved, the removal of the keys, therefore, would exceed the two-hour readback by 10 minutes or so.

The Magistrate found that the appellant had in fact remained in charge of the vehicle for a period after the removal of the keys. The prosecution defends that finding, referring to the apparent attempts by Ms Foster to later start the car, and relying upon the authority of Brooks v Spasovski [2004] QDC 471 and the evidentiary presumption in section 124T. That provision relevantly provides that "Any person who appears at or behaves as the person having possession of any vehicle shall be presumed to be the person in charge thereof, whether the person is or is not the real person in charge, and it is immaterial that by reason of circumstances not known to such person, it is impossible to drive otherwise use the same."

The evidence about the appellant's actions towards the ignition of the car, whilst the police were trying to remove her from the car, was truncated upon objection by the defence, but the evidence that had been given was that she was reaching for, or appeared to be reaching for the ignition at the time that she was resisting calls to get out of the car.

On a review of the evidence, I am satisfied that her Honour's finding that the appellant remained in charge of the car for a period after the keys were removed and at a time when she was observed to be reaching for the keys was a finding reasonably open to her.

An argument was also raised at trial about the validity of the breath analysis certificate itself because of delays in using a breathalyser.

Under section 80(3)(c), the test must be administered as soon as practicable after the request has been made by a police officer. Here, it seems up to some 50 minutes had passed between a request at the scene and the testing at the station where the equipment for testing was held. There was a dispute about whether the testing was conducted as soon as practicable after that request was made.

The evidence was that although the station was local - the travel time was not lengthy - once the police arrived at the station, the breathalyser equipment had to be set up. While that was being done the appellant was being interviewed by other police. The interview lasted for some 20 minutes. It was then that the equipment was used.

It is apparent from the nature of the interview that police held with the appellant that part of the purpose of that interview was to ascertain her state of health and medical requirements. In those circumstances, I am satisfied that the certificate was a valid one and properly relied upon by the prosecution.

In an event, as I already noted, the evidence apart from the certificate, was compelling as to the applicant's state. All of the witnesses at the scene describe her condition. Mr Swindells objected to that evidence for 2 reasons: the first reason was that the prosecution had not identified to the defence that it was relying on indicia until sometime after the first day of trial. This is tied up with a complaint that the defence was not advised that the ambulance officers were to be called until some weeks before the second day of trial.

The second reason for objection to the evidence of indicia seems to be that some of the police witnesses did not see the appellant until after the keys had been taken from her. Mr Swindells argued that the res justae was complete and therefore what followed was inadmissible.

Dealing with the first complaint about the failure to notify of the reliance upon indicia, the prosecution does have a duty of disclosure. In this case police did not pursue statements from the ambulance officers until after the first day's evidence. It is undesirable that investigations be conducted piecemeal; ideally, all relevant evidence should be provided to the defence in a timely way before trial. That did not happen here, but the failure did not cause a miscarriage of justice.

The defence had the ambulance statements some weeks before the second day's evidence. There was no application to recall any of the preceding witnesses. The complaint really seems to be that the prosecution misled the defence into thinking that the prosecution's case was based solely upon the certificate.

All of the witnesses, including the witnesses who gave evidence on the first day of trial, gave evidence of the appellant's condition. Much of that evidence went unchallenged. Mr Swindells claimed that if he had known that the Crown would rely upon this evidence to support its case, he would have cross-examined about it. It is trite to say that the verdict must be based upon the whole of the evidence. Moreover, as I have said, the appellant's own evidence as to her state suggests that there was little basis for challenging material facts about her apparent state of intoxication.

The second complaint about the evidence of witnesses going to indicia is premised upon the inadmissibility of evidence about Ms Foster's sobriety after she had lost control of the keys. This is connected to the argument about when she ceased to be in charge of the car.

Mr Gorring's evidence was that he had to rouse Ms Foster from an apparent unconscious state, but that she roused quickly and was able to carry on a conversation with him. There is other evidence that the appellant was unsteady, slurred, dishevelled and had to be assisted by 2 police officers to leave her car and move to the police car.

Her level of impairment so soon after she had been in charge of the car was highly relevant to the question of whether the appellant was under the influence at the time that she was in charge of the car. In circumstances where she had been under the observation of Mr Gorring, the ambulance officers and then the police, there is no suggestion of intervening drinking.

With regard to the specific areas of appeal, the first ground I will deal with is the ground that the conviction is not supported by the facts. The offence has 2 elements; 1, that the person is in charge of a motor vehicle; and secondly, that person is in charge while under the influence of liquor or a drug.

There was compelling circumstantial evidence that the appellant was intoxicated. Her own statements confirmed this. There was no challenge that she had been in charge of the vehicle at least from the point that she regained consciousness, up to the point when the keys were removed. The only question then was whether the appellant had a defence under section 79(6).

This is a defence which places the onus upon the defendant. It provides relevantly: "The Court shall not convict if satisfied of particular matters - if, on hearing of a complaint against subsection (1)(c), (2)(c), (2A)(c), (2B)(c) or (2J)(c) in respect of a motor vehicle and the Court is satisfied beyond reasonable doubt by evidence on oath at the material time (a) the defendant (1) by occupying a compartment of the motor vehicle in respect of which the offence is charged, other than the compartment containing the driving seat of that motor vehicle...had manifested an intention of refraining from driving that motor vehicle in any of the following circumstances relevant to a conviction on the complaint applied; (3) the defendant was under the influence of liquor or a drug...(b) the defendant (i) was not under the influence of liquor or a drug to such an extent...as to be incapable of understanding what the defendant was doing or as to be incapable of forming the intention referred to in paragraph (a); and (c) the motor vehicle in respect of which the offence is charged was parked in such a way as to not constitute the source of danger to other persons or other traffic; and (d) the defendant had not previously been convicted of an offence under subsection (1)(2A), (2B), (2D), (2J) within a period of 1 year...the Court must not convict the defendant of the offence charged.

The Magistrate made findings favourable to the appellant in respect of all matters required for the defence in subsection (6) except for the first part in subpart (a)(i). Indeed, the Magistrate gave the appellant the benefit of a finding that she had not parked in a way such as to constitute a danger when there was direct evidence from a police officer that he had to move the vehicle from its intrusion onto the road for public safety. In light of the Magistrate's findings favourable to the appellant, the real question on appeal is whether her Honour's finding against the defendant, in question as to the first precondition, was a reasonable one.

The precondition that the defendant, by occupying a compartment of a motor vehicle other than the driver's seat, had manifested an intention of refraining from driving. The issue, on the evidence, was whether the appellant had spread beyond the driver's compartment in the car.

The appellant herself gave evidence that she had tried to make a bed in the car. None of the other witnesses, although they gave evidence in differing terms from each other, supported the notion that the appellant had been lying down.

The most relevant witness as to the position of the appellant at the time that she still had the keys was Mr Gorring. Gorring described her being in the driver's seat. He said that the seat was back but because she was a big lady, it was in the position that she would probably be in if she were driving. He said in terms of what he meant by the seat being back or being wound back, at page 19, "A lot of women drive like that. A lot of blokes drive with their hands out on the wheel. I would say that her seat position would be that if you drove - if Shirley drove with her hands out on the wheel like that, that would be the position. It wasn't laid back, as laid right back, but it wasn't right forward, but it wasn't halfway back. It was in a back position. Shirley might drive like that.

The other witness who gave evidence of before the keys were removed was the ambulance officer Penrose who said, "We saw a silver car on the side of the road with a female patient sitting in the driver's side. Sitting upright, leaning against the pillar of the driver's side door."

Some of the other witnesses gave evidence on the same subject. They saw the appellant at differing times. None of them describe the seat as being down. None of them described the appellant as being positioned in part of any other compartment or in a position where she could not drive.

Mr Swindells relied upon a witness who said that the seat had been reclined. This was after the keys had been removed. Officer Gilpin’s evidence was that the seat was reclined a little bit. He said, "She was sort of sitting back in the chair a little bit. It was sort of reclined a little bit but her head was sort of partially out of the window against a pillar and it was also raining on her at the time."

The weight of evidence, especially the evidence at the point where the appellant had been roused and before she had the keys removed from her, was that she was positioned in the driver's compartment. She was not protruding into another compartment of the car and that her seat was in the driver's position and in a position that would allow her to drive.

Given that the onus was on the appellant to prove the contrary and to prove it beyond reasonable doubt, the Magistrate's rejection of the defence was reasonable.

The grounds of appeal refer to the amendment of particulars of the charge during the judgment. Particulars were given by the Crown Prosecutor at the outset of the trial. The Prosecutor had originally particularised the offences as occurring between 3:30 p.m. and 4:15. The prosecutor then amended it to expand the time by 15 minutes back to 3:15. The Magistrate's judgment referred to being in charge of the motor vehicle between 3:30 and 5:30pm, which was in accordance with the breathalyser certificate.

The particulars of the charge were not of themselves critical to proof of the offence beyond their relevance to the statutory time limit for the certificate. The purpose of particulars is to sufficiently identify the incident so that a defendant knows the case against her and to avoid the risk of a duplicitous prosecution. There is nothing that materially turns upon this point.

Other grounds complain that the Magistrate did not subpoena the prosecution witnesses when the police failed to do so. The defence had been told that the ambulance officers would not be called. They were then told some weeks before the second day's evidence that the ambulance officers would be called.

The evidence of the new witnesses did not alter, or significantly alter, the nature of the case against the appellant. There are aspects of the ambulance officers evidence that assisted the arguments of the defence, particularly in relation to lengthening the time between the removal of the keys and the breathalyser. The paramedics’ evidence was also relevant to the defence based on section 79(6), so far as the position of the appellant in the car was concerned.

This was a simple case, albeit complicated by the behaviour of the parties. The defence had the statements of the ambulance officers several weeks before the witnesses were called. As I have previously noted, there was no application for an adjournment or to recall the witnesses. No prejudice has been identified.

The final ground of appeal is in relation to sentence. The appellant was fined $1,500.00 and disqualified from driving for 18 months. The maximum penalty for the defence is imprisonment up to 9 months with a maximum fine of $2,100 and a minimum disqualification of 6 months.

The appellant was a 40 year-old woman. This was her first offence. She was said to be in a poor financial position, having been separated from her husband, without a job, under treatment from a psychologist and with some significant debts.

The purpose of the offence is to address the dangers posed to the public by those who have control of cars while intoxicated. The appellant was not driving the car. The offence was of being in charge of the vehicle but there was the potential for her to drive. Her level of intoxication was gross. It was claimed to be of an attempt at suicide.

The Magistrate concluded that it was more a cry for help. It is relevant however, that the offence was committed in the context of a period of stress and depression. On the other hand the appellant was not entitled to any discount for co-operation or remorse.

Mr Swindells handed up an analysis from the Magistrates Court database which identified that 75 per cent of matters sentenced for this offence of being in charge while under the influence attracted a lower penalty. Thirty-eight per cent of those sentences attracted fines of $1,000.00. It is a finely balanced matter but having regard to the gross and deliberate intoxication combined with the apparent attempt to drive away when confronted by the police leads to me to conclude that the fine and period of disqualification were not manifestly excessive. The appeal against conviction and the appeal against sentence are both dismissed.