Murray v Queensland Police Service
[2017] QDC 184
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Murray v Queensland Police Service[2017] QDC 184
- Add to List
Murray v Queensland Police Service[2017] QDC 184
Murray v Queensland Police Service[2017] QDC 184
DISTRICT COURT OF QUEENSLAND
CITATION: | Murray v Queensland Police Service [2017] QDC 184 |
PARTIES: | JAMES EDWARD MURRAY (appellant) v QUEENSLAND POLICE SERVICE (respondent) |
FILE NO/S: | D2/17 |
DIVISION: | Criminal |
PROCEEDING: | Appeal pursuant to s 222 of the Justices Act 1886 |
ORIGINATING COURT: | Magistrates Court at Woorabinda |
DELIVERED ON: | 28 June 2017 |
DELIVERED AT: | Rockhampton |
HEARING DATE: | 7 June 2017 |
JUDGE: | Burnett DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – appeal pursuant to s 222 Justices Act 1886 – conviction – possessing liquor in a restricted area – whether methylated spirits conforms to definition of liquor – intended for human consumption. Legislation Justices Act 1886 (Qld) ss 48, 222, 225(1) and 225(3) Liquor Act 1992 ss 4B, 168B(1) and 173H Liquor Regulations 2002 (Qld) Schedule 1E Cases Queensland Police Service v James Edward Murray [2016] QMC 10 Project Blue Sky Inc v Australian Broadcasting Authority [1998] 194 CLR 355 |
COUNSEL: | R Lo Monaco for the Appellant M Lyell for the Respondent |
SOLICITORS: | Aboriginal and Torres Strait Island Legal Service for the Appellant Queensland Police Service for the Respondent |
Introduction
- [1]The appellant was convicted before a magistrate on 9 February 2017 at the Woorabinda Magistrates Court for an offence of possessing liquor in a restricted area contrary to s 168B(1) Liquor Act 1992. He was convicted and fined $200.
- [2]On 9 March 2017 he appealed the conviction by notice of appeal pursuant to s 222 Justices Act 1886, contending as the only ground that: “the conviction of the defendant was not in accordance with law.”
Background facts
- [3]As the learned magistrate stated in his written reasons dismissing an application for a ruling of no case to answer delivered on 2 June 2016, Woorabinda is a relatively small indigenous community situated about 170km southwest of Rockhampton. The community is profoundly disadvantaged, partly as a result of exposure to violence in the context of alcohol abuse and suffers significant social disadvantage and exposure to violence, particularly in the context of alcohol abuse. Consequently, in 2003 the Liquor Regulation 2002 was amended so that Woorabinda was declared a restricted area and since that time, pursuant to s 168B(1) of the Liquor Act 1992, it has been an offence to possess liquor in that area.
- [4]It was uncontested at trial that on 2 November 2015 a police patrol observed a gathering of people at a residence that evening. Later that evening the level of noise was deemed to be excessive and accordingly police attended on the premises. After unsuccessfully attempting to raise the residents at the front door the officers proceeded to the rear of the premises and observed a male inside the premises holding what appeared to be a water pipe. Accordingly an emergent search was conducted and the officer engaged in a conversation with a male person, the appellant. At that time he observed “a bottle of methylated spirits under the floor of (a) small bench or… bedframe and it was also seized and placed next to the homemade water pipe.”[1]
- [5]The second officer, in company of the first officer, gave similar evidence adding that the bottle “had no lid but had about 200mls of clear liquid inside.” He proceeded to state that he picked it up and it “had a clear label on it saying methylated spirits. I could smell a strong odour coming from inside the bottle.”[2]
- [6]The appellant was subsequently charged that:
“…on the second day of November 2015 at Woorabinda in the magistrates court district of Emerald in the state of Queensland (the appellant) within a restricted area declared under s 173H of the Liquor Act 1992, namely Woorabinda, did have in his possession a quantity of liquor, namely methylated spirits, being more than the prescribed quantity type for the area other than under the authority of a restricted area permit.”
The proceedings
- [7]Initially application was made for the ruling of a no case to answer. That application was heard on 6 April and 4 May and decision delivered on 2 June 2016. The submissions for and against that application largely revolved around whether or not methylated spirits fell within the definition liquor under s 4B of the Liquor Act. Section 4B provides the meaning of liquor. It provides:
“4BMeaning of liquor
- (1)Liquor is a spirituous or fermented fluid of an intoxicating nature intended for human consumption.
- (2)Liquor also includes any other substance intended for human consumption in which the level of ethyl alcohol (ethanol) is more than 5mL/L (0.5%) by volume at 20ºC.
Examples of other substances—
ice confections, jellies and aerosol sprays.”
- [8]In his reasons the learned magistrate observed:
“Methylated spirits is ethanol (ethyl alcohol - 95%) which has been mixed with additives (methyl alcohol – 5%) to make it unpalatable and poisonous. It is primarily intended for use as a solvent or as an ignitable fuel for burners or cookers. Accordingly, it is relatively cheaper than commercially available alcoholic beverages, not being subject to the tax placed on alcohol.”
- [9]Much of the debate before the magistrate and the point upon which the debate turned concerned whether or not methylated spirits was a liquor as defined. The Crown contended it did and the defence the contrary. The learned magistrate observed that it was a well-settled principle of statutory interpretation, the words in a provision are assumed to mean what they say and the correct approach is to use the text itself to understand what is meant to be conveyed by the provision. In the event of ambiguity or uncertainty, there may be need for reference to extrinsic material.[3]
- [10]His Honour proceeded to reject the arguments advanced on behalf of the appellant, concluding:
“[15] In my view, the term ‘intended for human consumption’ should be construed as applying to the intention of the person in possessing the fluid or substance consistently with achieving the objects of the Act. I do not find the definition ambiguous. In my view, the definition is sufficiently wide. I do not consider it is a narrow definition, which specifically excludes methylated spirits, as submitted.
[16]I consider the definition to be sufficiently wide to include a substance not originally designed for human consumption, but nonetheless intended to be consumed.”
- [11]Accordingly his Honour found there was a case to answer and the matter proceeded to trial before him on 9 February 2017.
Was the fluid methylated spirits?
- [12]The evidence of the police officers was that they found the appellant in possession of a bottle containing approximately 200ml of clear liquid. The bottle contained a label saying it was methylated spirits and a strong odour emanated from within the bottle. When the arresting officer asked the appellant what it was, the appellant explained “that it is methylated spirits mixed with water.”[4]
- [13]The matter concerning the precise nature of the fluid in the bottle was not explored at trial. The trial proceeded upon the basis that the fluid in the possession of the appellant was methylated spirits per se.
- [14]It is not unreasonable to expect that at some point methylated spirits can be sufficiently diluted to such a point that it no longer satisfies the essential characteristics of methylated spirits as it now commonly presents and as was explained by the learned magistrate in his decision on the preliminary ruling i.e. 95% ethyl alcohol and 5% methyl alcohol.
- [15]Respectfully it appears that it was this failure on the part of both the prosecution and the defence to consider the fluid contained within the bottle rather than the description on the label that has occasioned the current controversy. It is self-evident that methylated spirits, being a spirit which contains a level of ethyl alcohol (ethanol) of more than 5mL/L at 20ºC but what includes 5% methyl alcohol to make it unpalatable and poisonous is a fluid not intended for human consumption. However, it is also apparent from the facts in this case, that once sufficiently diluted with water (or some other suitable mixer) it would seem that the subject fluid which includes methylated spirits could then constitute a spirituous… fluid of an intoxicating nature intended for human consumption.
- [16]The difficulty in this case appears to have its genesis in the complaint that the liquor was “methylated spirits.” This description appears to have distracted both parties at the first instance hearing and on appeal. In fact the liquid alleged to be liquor was a mixture of both methylated spirits and water.
- [17]With respect to both the appellant and the respondent, the answer to the appeal lies in an analysis of the fluid found in the appellant’s possession and not in a contest concerning appropriate statutory construction.
- [18]With respect to all parties I consider the language of s 4B of the Liquor Act to be plain in its expression and readily capable of interpretation in a manner that is consistent with the language and purpose of all provisions of the statute: Project Blue Sky Inc v Australian Broadcasting Authority.[5]In their arguments much focus was placed upon the intent and meaning flowing from the draftsperson’s use of the word ‘intended’. In context the word is directed to its object being the ‘fluid’. In my view it appears plain from the language that the only question to be resolved in the construction of the phase is whether the fluid is ‘intended for human consumption’. This is a question of fact to be determined from the evidence.
- [19]Although the properties of methylated spirits were not explored at the trial I do not think it is seriously in contest that methylated spirits per se is a fluid not intended for human consumption. Liquor requires three defining characteristics:
- It must be a spirituous or fermented fluid.
- It must be of an intoxicating nature.
- It must be intended for human consumption.
Unquestionably, methylated spirits is a spirituous or fermented fluid. Further it is clearly of an intoxicating nature. However, it is not intended for human consumption, a fact that is emphasised by the addition of 5% methyl alcohol which is intended to make the fluid both unpalatable and poisonous. In my view, it follows that methylated spirits per se is not a liquor as defined.
- [20]However when methylated spirits is sufficiently diluted with a mixer it may well satisfy the definition of liquor if the evidence establishes the final statutory element, namely being intended for human consumption. Thus the subject fluid may satisfy the definition of liquor if:
- (a)It continues to be a spirituous fluid;
- (b)Of an intoxicating nature; and
- (c)Intended for human consumption.
- [21]In this case there was no analysis of the fluid in order to ascertain those matters directly from the fluid. That said however, the fact that there was no analysis of the 200mL of fluid contained in the bottle is not the end of it if the evidence demonstrates by some other means that it was a spirituous fluid of an intoxicating nature intended for human consumption.
- [22]At the trial, Sergeant Robson gave evidence that both he and Constable Robinson “smelt the liquor in the bottle and it was a strong odour of methylated spirits.” He made the observation that all those in the premises “appeared to be under the influence of liquor in varying degrees.” He particularly noted concerning the appellant that:
“He was very vocal to Constable Robinson, I do remember that. He wasn’t aggressive towards us but he was shouting and he had said words to the effect of that he had been drinking throughout the day.”[6]
- [23]Constable Robinson gave evidence that he had a conversation with the appellant and asked him concerning the fluid in the bottle, “What is this? And he has explained to me that it is methylated spirits mixed with water.”
- [24]Constable Robinson also observed in evidence that he picked up the bottle, noting it was labelled methylated spirits “as well as the odour that you can associate with methylated spirits.”[7]
- [25]Constable Robinson also noted that apart from one individual, all those present appeared to be under the influence of liquor although he did also note that there was a strong cannabis smell also evident. He opined that the appellant was intoxicated, although not grossly intoxicated, observing that his eyes were glazed and that he struggled to maintain eye contact or a consistent level of conversation and from his observation appeared to be “an intoxicated person.” He stated:
“Like I said, it was – he wasn’t of an intoxication level where I believe he didn’t understand the rights and cautions or that it was a risk that he wouldn’t understand what we were doing there. Like, when we asked his details, he provided all his details in a very civilised manner. He could provide his name, his date of birth, all that sort of stuff. It was just the fact that the odour and my observations of him are – of him – say he was intoxicated.”[8]
- [26]Later in the course of cross-examination, there was also this exchange:
“Q:Did Mr Murray say anything about what he had been consuming that day?
A:Not that I can recall.
Q:Did he say that he had been drinking methylated spirits?
A:- - - yeah. I believe that he’s – that he didn’t say what volumes or at any time that he’s – what that he was – that he was drinking.”
- [27]From the evidence at trial, the following was established:
- A bottle with a label methylated spirits containing about 200mL of a white fluid was found under a table bed at the premises.
- The clear fluid smelt of methylated spirits.
- The clear fluid constituted a mixture of methylated spirits and water.
- The appellant had been drinking “methylated spirits” being a reference in context to the contents of the bottle in question.
- The appellant had the demeanour of an intoxicated person but in particular, was said to exude the odour of an intoxicated person.
- [28]Although there is some evidence to suggest that the appearance of intoxication may also be associated with the consumption of cannabis, as a matter of common experience, once alcohol is consumed the consumer exudes a distinct odour. That characteristic was commented upon by one witness. Further, as a matter of common experience, a significant quantity of alcohol must be consumed before a person will exude the odour of alcohol. There was no suggestion in the evidence that any other form of alcohol was consumed on the day in question. It follows that a reasonable and rational inference available on the facts is that the appellant was intoxicated, at least in part, by his consumption of the fluid contained in the bottle. However there is in his favour the hypothesis that his presentation to police was as someone affected by drugs or alcohol. It might be that an inference was open that he was affected by either or both but not necessarily liquor. To secure a conviction the innocent hypotheses must be excluded.
- [29]Although it is possible that the presentation of the appellant as an intoxicated person to each of the investigating officers could have been occasioned by the consumption of marijuana, the distinct smell of alcohol on the breath of the appellant leaves open as the only rational inference that:
- (a)The relevant fluid contained a sufficient concentration of ethyl alcohol to satisfy the element of spirituous fluid; and
- (b)There had been sufficient consumption of it as to be intoxicating.
- [30]Accordingly I am satisfied beyond reasonable doubt that the fluid in the possession of the appellant after dilution with water retained sufficient of those qualities of methylated spirits to satisfy those two elements. That is being a spirituous fluid ‘of an intoxicating nature’.
- [31]In summary it follows, in my view, the following factors can be inferred from the evidence as the only rational inferences available to be drawn from it. In the circumstances they are that:
- (a)the subject fluid was a spirituous fluid;
- (b)it was of an intoxicating nature; and
- (c)it was intended for human consumption.
Powers on appeal
- [32]The appeal is by way of rehearing.[9]In addition, on the hearing of an appeal, the court may make any other order that the court considers just,[10] including the exercise of any power that could have been exercised by whoever made the order appealed against.[11]In this case, the genesis of the error is, in my view, to be found in the particulars of the liquor as described in the bench charge sheet, namely, methylated spirits. Plainly, the bench charge sheet should have identified the offending fluid as “methylated spirits mixed with water”, with or without particulars of the ratio of constituent elements. The defect was as to particulars rather than the offence but as a matter of fairness the complaint in the bench charge sheet should have more specifically identified the offending fluid and that ought to have been amended in accordance with s 48 of the Justices Act.Indeed had it been so framed the prosecution may have considered how it would prove the fluid was ‘liquor’ as defined. A simple chemical analysis accompanied by expert explanation would have been sufficient. I expect if done correctly that material would have been in the subject of admission in due course.
- [33]For reasons that I have outlined above, the evidence supports the complaint contained in the bench charge sheet on the basis that the 200mL of fluid contained in the container satisfied the definition of liquor. It follows, the appeal should be dismissed and the decision below confirmed.
Orders
- Appeal dismissed.
- No order as to costs.
Footnotes
[1]T1-4.
[2]T1-6.
[3]Queensland Police Service v James Edward Murray [2016] QMC 10.
[4]T1-6.
[5]Project Blue Sky Inc v Australian Broadcasting Authority [1998] 194 CLR 355.
[6]T1-5 ll 20-26.
[7]T1-7 L 28.
[8]T1-8.
[9]Section 223 Justices Act 1886.
[10]Section 225(1) Justices Act 1886.
[11]Section 225(3) Justices Act 1886.