R v Luhrs[2010] QDC 212

DISTRICT COURT OF QUEENSLAND

Katrina Leanne Luhrs is charged that on the 20th of December 2008, at Gladstone in the State of Queensland, she dangerously interfered with the operation of a vehicle in Busteed Street, Gladstone, and at the time of committing the offence she was adversely affected by an intoxicating substance, namely alcohol.

The trial is listed to commence tomorrow at 10 a.m. in the Gladstone District Court. Prior to the commencement of the trial I have heard preliminary argument on a direction hearing under section 590AA of the Criminal Code as to admissibility of evidence which has been obtained by virtue of a breath analysis and which, if admitted, would be relevant to the circumstance of aggravation of the charge of dangerous driving.

Having regard to the manner in which the evidence and the argument has unfolded before me and to concessions made by the Crown Prosecutor Mr Gordon and Mr Murray, who appears for Ms Luhrs, the issue is whether the prosecution have established on the balance of probabilities that the breath analysis was lawfully conducted pursuant to section 80(8) of the Transport Operations (Road Use Management) Act 1995 (TORUM Act).

That section provides as follows. "Any person who -

...

(b) is arrested for an indictable offence in connection with or arising out of the driving of a motor vehicle by the person (including any offence against any provision of the Criminal Code section 328A); ...

may while at a police station, vehicle, vessel, hospital or other place authorised under this section as aforesaid, be required by any police officer to provide one or more of the following, as any police officer requires—

(d) a specimen of the person's breath for analysis by a breath analysing instrument;"

In this case Mr Murray submits I should exclude the evidence of the breath analysis taken from Ms Luhrs at 6 p.m. on the 20th of December 2008 at the Gladstone Police Station and which gave a reading of .098 per cent.

The reason he submits this evidence should be excluded is, firstly, Ms Luhrs was not lawfully arrested by Constable James and, alternatively, if she was lawfully arrested it was not for any indictable offence in connection with or arising out of the driving of a motor vehicle by her because the offence is alleged on the basis of dangerously interfering with the operation of a motor vehicle rather than the operation of the motor vehicle itself.

In order to rule on these issues, it is relevant to summarise the evidence on which I must make this decision. Constable James, who knew the defendant prior to this date, attended a single vehicle traffic accident at approximately 4.59 p.m. on 20th December 2008 after receiving information from Police Communications over the police radio.

The information that he received, and therefore his state of mind at all relevant times, was that the accident involved a female passenger grabbing the steering wheel and causing it to crash into a gutter. The information extended to the fact that she had blonde hair and was standing next to the vehicle arguing with a male person.

He drove to the scene and arrived about two or three minutes after he received this information. As I have said, my understanding of the evidence is that he arrived at approximately 4.59 p.m..

On arriving there and turning into Busteed Street, he observed a green Ford utility seemingly parked in the middle of the road near the intersection with Byrne Street approximately 100 metres up the road. He observed the accused, who is a female with blonde hair, walking on the footpath towards he and his partner.

When he first saw her she was outside number 16 Busteed Street. I note that her residence is at 12 Busteed Street. When he approached her she was outside number 14 Busteed Street. In other words, she was walking in the direction of her residence. As I understand his evidence, she would have been about 100 metres from the vehicle which had been involved in the incident and she was walking from the direction of that vehicle. He pulled up next to her and asked her to stop and wait. As he put it, she verbally abused him in all sorts of profanity for 30 to 40 seconds. He described her as antagonistic and aggressive.

At this time he considered that she was very quick to anger. He noted that she was very unsteady on her feet. He formed the opinion that she was affected by liquor or a drug. He got out of the car and attempted to talk to her. He told her he wanted to ask her if she had anything to do with the accident. However, again, all he received for this was abuse. On the basis of the information he had received from police communications, he arrested her. In his evidence in chief, he said this was on the basis that he had information the female who had grabbed the steering wheel had blonde hair. The defendant also had blonde hair. He also took into account that she was walking from the direction of the vehicle and she was reluctant to talk to him. He took this behaviour into account and formed what he described as a reasonable suspicion that she was the person in the vehicle. He made the point that there was no-one else fitting this description in the area at the relevant time. He therefore told her he reasonably suspected that she was involved in the accident and the dangerous interference with a vehicle and he arrested her.

He was also cross-examined about the reason for his formation of this reasonable suspicion. He catalogued the matters he relied on as being her location in relation to the accident, the direction of her travel, the fact she was a blonde female, the general lack of any other females or females matching the description of a blonde female, her general demeanour and the fact she would not answer his questions. He conceded that at the time he formed the decision to arrest her, he had not received any information from Mr Bromilow, who was the actual driver of the vehicle at the time, that she had grabbed the steering wheel. He said he had spoken to Mr Bromilow before he undertook the following roadside breath test but these were brief discussions that did not detail the cause of the accident. Although he may have subsequently been present for discussions between other police and Mr Bromilow about the cause of the accident, he never suggested that any information Mr Bromilow gave about the cause of the accident formed a part of his decision to arrest the defendant. He said he did not know, as a result of the information he had received over the radio, the exact or alleged time of the accident.

After he had arrested her she was placed in the vehicle which was driven up to the place where the accident had occurred, where he tried to identify witnesses and made observations of the scene. Shortly after arriving in this area she was removed from the vehicle for a search by a female police officer. It was at that time he had a greater opportunity to assess whether she was affected by liquor or drugs. He described the following indicia that led him to this conclusion. He noticed she was unsteady on her feet. This was associated with swaying, which he said was not excessive but occurred to a degree; she was quite pale; had bloodshot eyes; had a strong smell of liquor on her breath and her person; was aggressive, antagonistic and swore at him calling him, "a cunt", and telling him to, "fuck off".

He also noted there was some darkening around the eyes which he suspected was related to an injury. At this stage he administered what I have described as a roadside breath test, in other words, he took a specimen of her breath.

This was on the mistaken understanding that he was entitled to do so under section 80(8) of the TORUM Act, to which I have previously made reference. It is accepted that this was an honest mistake on his part because the section that applies to authorise the request for a breath specimen is section 80(2) of the TORUM Act. It is conceded by the prosecution that this section was not complied with.

However, at this stage he formed the view that the breath alcohol concentration exceeded the general alcohol limit. Having already arrested her, he then transported her to the Gladstone Police Station where he purported to take a specimen of her breath for analysis by a breath analysing instrument under section 80(8)of the TORUM Act. As indicated, this occurred at 6 p.m. and there was a reading of .098 per cent.

She was then placed in the watch-house while further inquiries were being conducted.

I have already referred to a relevant aspect of her cross-examination by Mr Murray. Another aspect of this cross-examination which is relevant to this decision is that Constable James said that he had known the defendant for between three and five years and had spoken to  her at length before. While she had been able to speak normally on some of these occasions, there were other times when she was abusive as on this occasion.

However, he said she did not always have to be affected by liquor to be abusive. He gave an example of an occasion where she attended the police station to make a complaint and as he put it she absolutely fed it to him that day, that is, she abused him a lot despite the fact she not affected by liquor.

In answer to questions from Mr Murray, he agreed he never alleged she drove the car. He said he never took that view. He responded to me, that this is why he had arrested her for the offence which is described in his statement as dangerous interference with a vehicle. As I have indicated that is also how he described it in his evidence-in-chief. I note there was at one stage of his evidence when he was explaining why he believed he was authorised to take the roadside breath test under section 80(8) of the TORUM Act when he said he was under that impression because he had arrested her under section 328A of the Criminal Code for dangerous interference. It is relevant that he added "dangerous interference".

The first question to be determined is whether or not I am satisfied by the prosecution that Constable James had lawfully arrested the defendant for the purposes of making a requirement under section 80(8)(b) of the TORUM Act.

Under section 365(2) of the Police Powers and Responsibilities Act 2000, it is lawful for a police officer without a warrant to arrest a person, the police officer reasonably suspects has committed or is committing an indictable offence for questioning the person about the offence or investigating the offence under chapter 15.

It is clear that this is the purpose for which Constable James arrested the defendant, in the present case. That is to say for questioning her about the offence or investigating the offence. Both things happened subsequent to her arrest.

It is, therefore, necessary, in order to lawfully arrest her, that he had a reasonable suspicion that she had committed the offence of dangerous interference with a vehicle, as he put it, or more precisely, under section 328A of the Criminal Code, dangerously interfering with the operation of a vehicle.

The prosecution must satisfy me on the balance of probabilities that Constable James had such a reasonable suspicion. In considering this issue I apply the observations of Holmes J in Dobbs v Ward and Another [2002] QSC 109 at paragraph 19, where her Honour said, with particular reference to George v Rockett (1991) 170 CLR 104 at 112:

"The statutory requirement of "reasonable grounds" for suspicion is a requirement of "the existence of facts which are sufficient to induce that state of mind in a reasonable person". Suspicion itself is "a state of conjecture or surmise where proof is lacking".

"A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a position feeling of actual apprehension or mistrust, amounting to a 'slight opinion, but without sufficient evidence', as Chambers dictionary expresses it. Consequently a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence ... something which in all circumstances would create in the mind of a reasonable person ... an actual apprehension or fear that the situation ... is in actual fact [that suspected]".

Applying this to the present case, and the factors which are relied upon by Constable James to constitute a reasonable suspicion for the purposes of this arrest, in the sense that she had committed the offence for which she was arrested, he refers to the location of the defendant in relation to the accident, and her direction of travel. However, the fact is, as I have indicated, while she was walking from the direction of the motor vehicle, involved in the accident, she was 100 metres away and walking towards her own residence in the street.

It is true that her general demeanour was aggressive and antagonistic and abusive and she would not answer his questions. However, she has been aggressive and abusive towards him on other occasions when she was not a potential suspect for an offence. I refer to the occasion when she attended at the police station to make a complaint. In addition, she is entitled, like every other citizen, not to comply with a police request or desire that she answer questions.

It is the case that she was the only female in the area, as well as being the only blonde female who met the description of the person in the vehicle. That may have been, in some circumstances, something which would create, in the mind of a reasonable person, an actual apprehension that she had been involved in the commission of the offence. However, that would depend upon how closely connected her appearance in the area was with the offence that she is suspected of committing.

In this case Constable James frankly conceded that at the time he formed his suspicion he did not know the exact time of the offence as a result of any information he had received over the police radio.

I appreciate that all of these factors need to be considered as a whole rather than individually. However, in circumstances in which she was in the vicinity of her own home and walking in that direction and there was no information, to his knowledge, as to how much time had passed since the accident involving the vehicle, I am not satisfied, on the balance of probabilities that this combination of circumstances would create, in the mind of a reasonable person, an actual apprehension that she was involved in the commission of this offence. I am not so satisfied, on the balance of probabilities, and therefore I conclude that the prosecution has not established, to my satisfaction, that her arrest for the indictable offence was lawful so as to entitle a requirement to be made under section 80(8)(b) of the TORUM Act.

In addition, even if she had been lawfully arrested, it is necessary that be for an indictable offence in connection with or arising out of the driving of a motor vehicle by her. In this case it is argued by Mr Murray that the offence of dangerously interfering with the operation of a motor vehicle for which she was arrested, is not one in connection with or arising out of the driving of a motor vehicle.

In this regard, section 328A of the Criminal Code was amended from 1 July 1997 with the result that the offence was no longer based on a person who drives a motor vehicle but, rather, on a person who operates or in any way interferes with the operation of a vehicle. I note there are, in fact, two offences under the section. One is operating or in any way interfering with the operation of a vehicle dangerously in any place, and the second is, operating or in any way interfering with the operation of a vehicle dangerously in any place and causing the death or grievous bodily harm to another person. There are circumstances of aggravation which are available for both of those offences, including, in each case, the circumstance of aggravation with which the defendant, is charged in the present case.

The interpretation of section 328A is not without difficulty so far as the meaning of operation, on the one hand, and interfering with the operation of a vehicle, on the other hand, is concerned. In particular, there is lack of clarity as to the extent to which either of those elements involves the concept of driving, which is the term referred to in section 80(8)(b) of the TORUM Act.

An example of this uncertainty is the editor's comment by Judge Shanahan at page 2978 of Carter's Criminal Law of Queensland, as follows, "Note that the offence now encompasses interfering with the operation of a vehicle. This may well have an impact on the automatic suspension of license pursuant to section 86 of the Transport Operations (Road Use Management) Act 1995 where such matters are dealt with on indictment. The operation of section 86, where matters are dealt with on indictment, is confined to, "Any offence in connection with or arising out of the driving of a motor vehicle.". A charge of interfering with the operation of a vehicle may not involve the driving of a motor vehicle and the automatic suspension may not apply. The same result does not follow if the matter is dealt with summarily as section 86 refers to an offence dealt with summarily, "against any provision of the Criminal Code (section 328)".

The difficulties of interpretation arise from the use of different language in different sections of the Criminal Code and the TORUM legislation. For example, section 328A(3)(b) has the effect that where a person has been twice previously convicted, either upon indictment or summarily, or once upon indictment and once summarily, of the same prescribed offence or different prescribed offences, the Court or justices shall, upon conviction, impose, as the whole or part of the punishment, imprisonment. "Prescribed offence" is defined in section 328A(6) to mean "(b) an offence charged on indictment involving the driving or operation of a vehicle at a speed causing, or likely to cause, injury to anyone." 

Section 328B, (1) provides that, "Upon an indictment charging a person with any offence in connection with or arising out of the driving of a motor vehicle by the person (not being an offence defined in section 328A), the person may be convicted of the offence defined in section 328A, with or without a circumstance of aggravation specified in section 328A(4), if such an offence is established by the evidence.". An example of an offence to which that provision could apply is where a person is charged with manslaughter.

Reference has been made by Mr Murray to a number of other offences or provisions under the TORUM Act which refer to driving as opposed to operation.

In order to determine whether an offence of dangerously interfering with the operation of a vehicle is an indictable offence in connection with or arising out of the driving of a motor vehicle by a person, I am not assisted by any authority, nor have any dictionary definitions of any value been referred to me during the course of argument.

It is necessary for me to make this decision on circuit with a limited opportunity to research and in a situation in which a decision must be made in order to facilitate the trial as a matter of some urgency.

I have found the greatest assistance in the explanatory notes to the Criminal Law Amendment Bill 1996, which introduced section 328A in its current form into the Criminal Code. With reference to clause 56, which amended section 328A, it is stated that the term, "operates", will replace, "drive".

The note goes on to say, "The offence will also encompass a person who interferes with the operation of a motor vehicle in a dangerous manner.". I therefore consider that the intention of the legislation in introducing the terms "operates" and "interferes with the operation of a vehicle dangerously" into section 328A of the Criminal Code intended to limit the term "operates" to "drive" and other actions which could be considered as controlling the vehicle's movement, and to introduce the alternative basis of liability of interfering with the operation of a vehicle dangerously to extend to matters that do not involve driving the vehicle.

Accordingly, as is said in the Supreme and District Court Bench Book, at 103.1, "If it is alleged that the defendant was not the driver then the prosecution would have to plead dangerously interfered with the operation of a vehicle, as provided for in subsection (4).". Therefore, I consider a reference to "interfering with the operation of a motor vehicle" was not intended to extend to the concept of driving the motor vehicle.

In coming to that conclusion, having regard to the ambiguity of the terminology used in the legislation, there being a number of possible interpretations available, given this is penal legislation, I adopt the interpretation of the section which is most favourable to the defendant in this case.

Whether or not the facts of this case involved her actually operating the motor vehicle, as opposed to interfering with the operation of the vehicle, is perhaps a grey area, but the fact is the arresting officer, Constable James, exercised his discretion to allege that she dangerously interfered with the operation of the vehicle. As he said in his evidence, he never alleged she drove the car. This was a view that he never took and this is why he arrested her for the offence he did.

The prosecution has also chosen to charge her with this offence, which, in my view, is distinct for the reasons I have given from the concept of driving.

Mr Gordon, the Crown Prosecutor, has argued that by the inclusion at the end of section 80(8)(b) of the TORUM Act, of the words in brackets, "(including any offence against any provision of the Criminal Code, section 328A)", this was intended to extend the concept of driving to that of interfering with the operation of a vehicle in section 328A.

There may be some argument in favour of that implicit in the note by Judge Shanahan to section 328A to which I have previously referred, where he said that, "A charge of interfering with the operation of a vehicle may not involve the driving of the motor vehicle and the automatic suspension may not apply. The same result does not follow if the matter is dealt with summarily, as section 86 refers to an offence dealt with summarily, "against any provision of the Criminal Code, 328A".

However, there is a distinction between that provision and section 80(8)(b) because in s 80(8)(b) the words "including any offence against any provision of the Criminal Code section 328A" appear after "is arrested for an indictable offence in connection with or arising out of the driving of a motor vehicle by the person."  In my view because of the use of "driving" in that section, the words of inclusion were not intended to extend driving beyond the normal meaning of that word, but were to ensure any offence involving driving against section 328A was included in that section.

As I had indicated there are in fact two offences in section 328A, one of dangerous operation of a vehicle and another of dangerous operation of a vehicle causing death or grievous bodily harm. I consider that is what is referred to when reference is made to "any offence against any provision of the Criminal Code, section 328A".

Again, to the extent that there is any uncertainty about the interpretation of that provision given the significant consequences to a defendant in a criminal trial, of the taking of a breath specimen under s 80(8)(b) of the TORUM Act, any ambiguity should be decided in favour of the interpretation that favours the position of the defendant.

Accordingly, I am also of the view the prosecution has not satisfied me on the balance of probabilities that the breath specimen was lawfully taken under section 80(8)(b), both because the defendant had not been lawfully arrested, and even if she had been, it was not for an indictable offence in connection with or arising out of the driving of a motor vehicle by her.

That does not entirely resolve the matter because as the Prosecutor has submitted to me, there still falls to me to consider the exercise of my discretion as to whether or not to exclude the evidence, notwithstanding in these circumstances, it has been unlawfully obtained. The Prosecutor submits that I should exercise my discretion to admit the evidence.

The authority that I apply to resolve this issue is

Bunning -v- Cross (1978) 52 ALJR 561. That requires me to balance competing public policy considerations. On the one hand there is the public interest in the conviction and punishment of crime. On the other hand there is the public policy consideration favouring the exclusion of evidence which has been unlawfully obtained.

There are a number of factors which are referred to in that case which can be taken into account by a trial Judge in balancing these considerations and determining whether to admit or exclude the evidence.

One which is in favour of admitting the evidence is where it has been obtained as a result of an honest and mistaken believe as to the application of the law, particularly where there has not been a deliberate or reckless disregard of the law.

In this case it is conceded by Mr Murray and Constable James was honestly mistaken as to the law in acting in the way in which he did.

The second matter is whether the nature of the illegality affects the cogency of the evidence so obtained. In this case the nature of the illegality does not affect the cogency of the results of the breath test. But on the other hand if there is other equally cogent evidence untainted by illegality available to the prosecution at trial, the case for the admission of the evidence illegally obtained will be the weaker.

In this case there is evidence of the indicia of which Constable James has spoken and in this case I consider there is equally cogent evidence of the effects of alcohol on the defendant or at least evidence from which a jury would be entitled to conclude she was adversely affected by alcohol, which is available to the prosecution for admission at the trial.

Another consideration is the ease with which the law may have been complied with in procuring the evidence in question. In this case, it would not have been possible to comply with the law because the offence with which she was charged was not one which allowed a requirement to be made under section 80(8)(b), for the reasons that I have given.

Another factor is the nature of the offence charged and I accept that this is a serious offence and an offence for which there is a public interest in ensuring the conviction of people who commit it.

On the other hand, as I have said, there is other evidence available to the Crown on this issue, which is sufficiently cogent in my view.

Finally, and I consider this is the compelling factor in this case, is where an examination of the legislation suggests there was a quite deliberate intent on the part of the legislature to narrowly restrict the police and their power,  this is a factor favouring the rejection of the evidence.

In this particular case, I consider that section 80(8)(b) has been deliberately narrowly written to restrict the police in their power to require a person to provide a specimen of their breath for analysis by a breath analysing instrument and in circumstances in which that section has not been complied with, I consider that the appropriate exercise of my discretion is to exclude the evidence of the certificate that was admitted as Exhibit A.