McCurley v Commissioner of Police
[2017] QDC 80
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- Unreported Judgment
- McCurley v Commissioner of Police[2017] QDC 80
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McCurley v Commissioner of Police[2017] QDC 80
McCurley v Commissioner of Police[2017] QDC 80
DISTRICT COURT OF QUEENSLAND
CITATION: | McCurley v Commissioner of Police [2017] QDC 80 |
PARTIES: | McCURLEY, Robyn Lyn (appellant) v THE COMMISSIONER OF POLICE (respondent) |
FILE NO: | D 89 of 2015 |
DIVISION: | Appellate |
PROCEEDING: | Appeal pursuant to s 222 of the Justices Act 1886 |
ORIGINATING COURT: | Magistrates Court at Maroochydore |
DELIVERED ON: | 6 April 2017 |
DELIVERED AT: | District Court at Maroochydore |
HEARING DATE: | 13 November 2015, 27 January 2017, 3 February 2017, 24 February 2017 and 6 April 2017 |
JUDGE: | Long SC DCJ |
ORDER: | The conviction of the appellant, on 17 June 2015, of the offence that she was on 29 January 2015, in charge of a motor vehicle on Brisbane Road, Mooloolaba whilst under the influence of liquor or a drug and the orders made in respect of that conviction, are set aside. |
CATCHWORDS: | APPEAL – s 222 of the Justices Act 1886 – Where the appellant appeals against her conviction of being in charge of a motor vehicle whilst under the influence of a drug or liquor – Where the only ground of appeal is directed at the Magistrate’s finding of the fact of the influence of a drug, in the absence of any evidence as to observable indicia of such influence – Whether the Magistrate erred as to the construction and effect of the definition of “drug” in Schedule 4 of the Transport Operations (Road Use Management) Act 1995 – Whether, at the material time, the appellant was proven, beyond reasonable doubt, to be “under the influence of a drug” APPEAL – s 222 of the Justices Act 1886 – powers of the District Court pursuant to s 225 of the Justices Act 1886 – Whether s 79(5) of the Transport Operations (Road Use Management) Act 1995 requires the Court, in dealing with the matter on appeal, to convict the appellant of the offence under s 79(2AA) |
LEGISLATION: | Drugs Misuse Act 1986, s 4 and Schedule 1 Justices Act 1886, ss 222, 225(1), 225(3) Transport Operations (Road Use Management) Act 1995, ss 79(1), 79(1)(c), 79(2AA), 79(3), 79(5), 79(8), 79(8A), 79A(3), 79B(2), 86(2)(e), 86(2)(f), 86(7), 131(3A) and Schedule 4 Traffic Regulation 1962, s 172 |
CASES: | Australian Alliance Assurance Co Ltd v Attorney General (Qld) [1916] St R Qd 135 CIC Insurance v Bankstown Football Club Ltd (1997) 187 CLR 384 Commonwealth v Baume (1905) 2 CLR 405 K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 60 ALR 509 Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565 O'Connor v Shaw [1958] Qd R 384 Noonan v Elson; Ex Parte Elson (1950) St R Qd 158 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Smith v Le Mura [1983] 1 Qd R 535 |
COUNSEL: | M Robinson (sol) for the appellant (13 November 2015, 27 January 2017, 3 February 2017 and 24 February 2017) M Harrison for the appellant (6 April 2017) GJ Cummings for the respondent |
SOLICITORS: | Legal Aid Queensland for the appellant (13 November 2015, 27 January 2017, 3 February 2017 and 24 February 2017) Smith Criminal Law for the appellant (6 April 2017) Office of the Director of Public Prosecutions (Qld) for the respondent |
Introduction
- [1]By Notice of Appeal filed on 24 June 2015, the appellant appeals against her conviction, in the Magistrates Court at Maroochydore on 17 June 2015, of the offence pursuant to s 79(1)(c) of the Transport Operations (Road Use Management) Act 1995 (“TORUM”) of being, on 29 January 2015, in charge of a motor vehicle on Brisbane Road, Mooloolaba, whilst she was under the influence of liquor or a drug.
- [2]That appeal is brought pursuant to s 222 of the Justices Act 1886 and particularly, in the absence of leave to adduce any new evidence pursuant to s 223(2), this Court is required to conduct a review of the hearing below and ultimately, correct any error of the sentencing magistrate, determined on the basis of that review and this Court’s own conclusions, having due regard to the decision which is the subject of the appeal.[1]
- [3]As is clear from the following singularly expressed ground of appeal:
“The learned magistrate erred in making a finding of fact that, on the evidence before the court, the defendant was under the influence of a drug at the relevant time”;
this appeal is only directed at the finding of the trial magistrate: that the prosecution had proven beyond reasonable doubt, the element that the appellant was under the influence of a drug at the relevant time of being in charge of the motor vehicle.
The Magistrate’s decision
- [4]In these circumstances, it is convenient to first set out the Magistrate’s reasons, which not only contain the critical passages in respect of the issue in dispute but also, some context to enable an understanding of that issue and the basis upon which the other element of the offence was found proven:[2]
“Well, it’s been an unusual case, in that – inasmuch as they – the indicia that the Sergeant Graham saw was not the indicia that reflects a high level of heroin usage. So the clear evidence from the medical officer is that if the heroin had been taken then a different indicia would have showed, and not the indicia – the agitation and sweating. So that does – that caused me to reflect on it over lunch. And [indistinct] so I’ve considered the evidence that’s been given, and I’ll now go through that.
The charge is that on the 29th of January 2015 at the corner of Brisbane Road and Culbara Street, Mooloolaba, Robyn Lyn McCurley was under the influence of liquor or drug whilst in charge of a motor vehicle, namely a Toyota motor car. The time, date and place is not in issue. The two questions really before the Court today are as to whether or not the defendant was in charge of a motor vehicle, namely that Toyota motor car, and secondly, whether she was under the influence of a drug.
The ambulance officers who came to the scene in separate vehicles gave evidence. The first one was Kathleen Rose Mitchell, who said that she was asked to – at 2.25 asked to attend an emergency at Brisbane Road: possible drug overdose and CPR in progress. When she attended, the defendant was standing, and had acknowledged had taken drugs.
There was a gentleman on the passenger side. He had taken heroin, had been unconscious. CPR had been performed by the defendant. The – Ms Mitchell gave evidence the defendant was agitated – by that she meant pacing up and down, sweating a lot – and she also said she was driving home to Landsborough. She admitted to having taken a hit of heroin.
The second paramedic who gave evidence was Paul Ivo Tuckett. And he was – at 2.20 pm was called to back up another crew for this unconscious person and CPR in progress. When he arrived, the other vehicle was already there. But he said that there was a male in the front passenger seat, and the defendant was in the driver’s seat. He spoke to the defendant. Said she looked confused and a little bit agitated, was sweating quite a lot. She admitted to having taken a hit of heroin.
It was put to him that the statement that had been supplied by the Prosecution to the Defence did not contain his version of fact, that there was the female in the driver’s seat. But he – on cross-examination by Ms Holland, he maintained that there was – the defendant was in the driver’s seat. I can only conclude from that that it was an omission on his part. It was something that should have been in the original statement. But that – having said all that, I accept his – what he said was that there was a – the defendant was in the driver’s seat.
Senior Sergeant Graham was the police officer who gave evidence. He’s obviously a very experienced police officer, being the duty sergeant. And he came to the scene, because he’d seen the two ambulances, and he spoke to the defendant. His evidence was that she admitted to taking heroin and she also said that she was the driver of the vehicle. He did a search of the vehicle. Found the sharps container, and there was needles in that. And he found subsequently in the search a green leafy material in the [indistinct] front centre of the vehicle, either in the centre console or the driver’s seat. There was also unused syringes and [indistinct]
Sergeant – Senior Sergeant Graham [indistinct] said that the defendant said to him that she was going to drive out to Landsborough. He detained her and subsequently arrested her, and a blood specimen was taken. And he then gave evidence of the chain of events leading to the taking of the blood and the certificate of analysis. Now, he said that the indicia he saw: the defendant being nervous, jittery and slow in speech.
Now, Doctor Natalie MacCormick of the Clinical Forensic Medical Unit gave evidence by telephone. She was referred to the certificate of analysis, and went through that very carefully. The level of morphine .016 and the total morphine of [indistinct] .84 she says was a high level of morphine. She went through the other drugs: codeine, Mirtazapine and – I can’t even pronounce it [indistinct] and tetrahydracarbonol. She said those drugs were relatively low-level. There may have been a combination effect, but the clear inference from her evidence is that the crucial drug or the drug that would have had the most effect upon behaviour was the morphine level at .84.
She said the indicia given – jittery, nervous; slurred speech – was contrary to what one would expect with someone who’d taken morphine. She also gave evidence that it’s possible, in a chronic, well-seasoned heroin user, this level may not have had a pharmacological effect. There may have been a higher level of tolerance, and then not a significant impairment. When pressed about withdrawal, she – the evidence she gave on that indicated that – well, indicated to me that really the defendant was not in a withdrawal phase. And it’s difficult to see how that could’ve been, when the defendant openly admitted that she just had taken heroin in the recent past.
I note the blood test was taken two hours after. And when Doctor McCormick was questioned on that, she said that there would have been a great deal of deterioration in the morphine level, that the level was higher – would have been higher two hours earlier. She said morphine has an effect on the system for two to six hours and has two- to six-hours’ life.
So that’s the overall evidence that’s been given. So if I go through the analysis of that. Kathleen Mitchell saying there’s a gentleman on the passenger side. The defendant: that she’s driving to Landsborough, she’s taken a hit of heroin. Tuckett says male in the front passenger seat, female in the driver’s seat; she admitted she’d taken a hit of heroin. Senior Sergeant Graham: admission of heroin, admission that she was the driver of the vehicle, keys in the ignition; she said she was going to drive out to Landsborough, and the male was on the passenger side of the vehicle. The conclusion I’ve got from that is – very simply – that the defendant was in charge of the vehicle at the relevant time.
Turning then to the second point: whether or not the defendant was under the influence of heroin. First of all, I have had regard to section 79(1), which says any person who, while under the influence of liquor or a drug, is in charge of a motor vehicle [indistinct] commits an offence, the Prosecution have to prove that as a result of consumption of the drug the mental and physical facilities of the defendant are so afflicted as to be no longer in a normal condition.
Turning to definition of “drug” in schedule 4. I understand what the Prosecutor was driving at in relation to the definition of drug “4”. But I think when you look at schedule 4 it simply says, and relevant to this charge, that if it’s a drug under the Drugs Misuse Act – well. If it’s a dangerous drug under the Drugs Misuse Act, it’s a drug. Full stop. And you don’t need to go on from that and say – I don’t really see the relevance of the latter aspect, about having to – it says, well:
…used by any person, deprives the person either temporarily or permanently of any of the person’s normal mental or physical faculties.
My reading of that definition is that applies to a drug that’s not a dangerous drug. But it’s:
…any other substance, article, preparation or mixture –
So clearly, heroin is a drug, and the – yes, is the relevant drug here. And under the Drugs Misuse Act, schedule 1, part 1 of the Drugs Misuse Regulations, heroin is clearly a dangerous drug.
Section 124(1)(t) was referred to, and that only adds to – it says:
…any person who –
I won’t read the lot. But:
…any person who acts or behaves as driver, rider or person having possession, custody, care or management of any vehicle –
So I’ve had regard to that. But I’ve formed the view, as I’ve already stated, that the defendant was in charge.
Now, it seems to me that it’s a very straightforward proposition here. The defendant admitted taking heroin. Verified by the analysis, it was a higher level. The defendant was under the influence of a drug. So that’s my finding. And one of the decisions that’s referred – one of the old 1965 decisions, there was a passage – I think it was Judge Stable who said:
The thing is obvious, and is perfectly evident without need for further proof.
And so I – that’s the stance I’m taking.
I do note 79(8A), which does – I think the relevance of that probably is in matters where there’s conflict between indicia. And that – and some of the old cases seem to really turn on – you know, different levels of indicia. But for completeness [indistinct] I refer to [indistinct] 79(8A), which says:
If, on the hearing of a complaint, the evidence led and admitted establishes that the person so charged was under an influence which was that of a liquor or drug or both liquor and a drug, and all other elements of the offence, the person must be convicted of the offence, even though the particular influence is not established by the evidence.
And I suppose relevant to this matter is that the influence that led to Sergeant Graham forming the view that the defendant was under the influence of a drug – which was the sweating and agitation – was really more, I think, on the evidence I’ve heard today, due to a panic attack and the attempt to revive the passenger, and not so much relevant to the indicia. And that’s all I’ll say on that.
So for those reasons, I’m satisfied that the defendant was in charge of the vehicle and, having taken heroin, being a dangerous drug, she was under the influence of that drug, and has committed the offence.”
The contentions
- [5]Central to this appeal is the necessity for proof of the fact that the appellant was under the influence of a drug. This is because and although and as permitted by s 79(8), the appellant was charged with being “under the influence of liquor or a drug”, the analysis of the blood specimen taken from her, revealed that alcohol was not detected.[3]
- [6]It may be noted that the Magistrate’s initial recognition of a test which requires “that as a result of consumption of the drug the mental and physical facilities of the defendant are so afflicted as to be no longer in a normal condition”, appears to be drawn from the following authorities (albeit that they are concerned with the concept of being under the influence of liquor):
- (a)
“It is not necessary for a person, in order to be found guilty of an offence under the section, to be drunk, or even to be under the influence of liquor to such an extent as to be incapable of exercising effective control over a motor vehicle. A lesser degree is sufficient.
However, the prosecution in each case must prove not only that the person charged has consumed the liquor but also that the effect of the consumption has disturbed the action of the mental or physical faculties so that they are no longer in their normal condition. If a person drinks some liquor, but not enough to affect his faculties to this extent, that person if he drives or is in charge of a motor vehicle does not commit an offence under the section. Evidence of a smell of liquor on the breath is merely one factor, namely the consumption; there must in addition be sensible signs that he has been affected by liquor, e.g. as shown by the difference from the normal in particular person’s physical appearance, actions, conduct, speech or behaviour.”;
- (b)
“This section was considered by the Full Court in Noonan v Elson… it follows from that decision that the prosecution (having proved consumption of liquor) is not required to prove that the defendant was so influenced by the liquor that his driving capacity is impaired – it merely has to prove that he was, at the relevant time, in fact in some observable degree influenced by liquor.”; and
- (c)
“The meaning ‘under the influence of liquor’ in the context under discussion has long been established in Queensland by authority of this Court. Noonan v Elson [1950] St.R.Qd. 215 and O'Connor v Shaw [1958] Qd R 384 show that a person is to be taken as being under the influence if his faculties are so affected as no longer to be normal for that person.”
- [7]The contentions for the appellant proceed are that:
- (a)the evidence here did not sufficiently support a finding of being under the influence of a drug, as opposed to having consumed a drug; and
- (b)the Magistrate ultimately erred in finding that element proven, beyond reasonable doubt, on the basis that the evidence simply proved that the drug had been consumed, rather than upon any finding as to the necessary influence of any drug.
- [8]In particular, there was focus upon the following passages in the Magistrate’s reasons:
- (a)First and after it is noted that the Magistrate had concluded that the evidence of observed indicia of the appellant was not pertinent to the determination of the issue in dispute, he said:[7]
“And I suppose relevant to this matter is the influence that led to Sergeant Graham forming the view that the defendant was under the influence of a drug – which was the sweating and agitation – was really more, I think, on the evidence I’ve heard today, due to a panic attack and the attempt to revive the passenger, and not so much relevant to the indicia.”
- (b)And particularly, the following further passages:[8]
“Now, it seems to me that it’s a very straightforward proposition here. The defendant admitted taking heroin. Verified by the analysis, it was at the higher level. The defendant was under the influence of a drug. So that’s my finding…..”
And:[9]
“… I am satisfied that the defendant was in charge of the vehicle and, having taken heroin, being a dangerous drug, she was under the influence of that drug, and has committed the offence.”
- [9]The submission of the respondent was to contend that the evidence of the indicia displayed by the appellant did not negate the prospect of effect of the admittedly ingested heroin and that in the circumstances and particularly the evidence as to the shared use of the drug, which had affected the appellant’s partner so dramatically, and as to the presence in the blood specimen of the indication of a relatively high or significant quantity of the metabolite, morphine, it was open to conclude or infer that at the time when the appellant was relevantly found to be in charge of the vehicle, she was under the influence of the heroin which she had recently ingested.
The evidence
- [10]Before embarking on any discussion of these contentions, it is necessary to note some of the more critical aspects of the evidence that was before the Magistrate.
- [11]In the first instance, the observed indicia of the appellant at the time when she was, as found by the Magistrate, in charge of the motor vehicle, on Brisbane Road at Mooloolaba, was noted by Senior Sergeant Graham, after he related his conversation with the defendant (who he described as middle aged) and in which she made the admissions noted as to her prior driving of the vehicle, the use of the heroin and her intention of later driving the vehicle to Landsborough,[10]as:
“When I was speaking with her I noticed that her speech was slow and deliberate, and that her movements with her hands and arms were – gave me the impression that she was nervous and jittery.”[11]
That was sometime after 2.20pm on 29 January 2015.[12]
- [12]In the cross-examination of Senior Sergeant Graham, there was the following:[13]
“…So was there any other signs that you could see that my client had taken drugs? What visible signs could you see?‑‑‑Her forthright answers to say that she had also injected the heroin that her partner had used indicated to me that there was drugs in her system, and that on monitoring or looking at her, watching her, there are – the signs that she gave me, the jitteriness, the slow, deliberate speech, was trying to conceal maybe the effects of the drug, or alternatively, as you suggested, it could be that the circumstances made her that – to show that ‑ ‑ ‑
She could have been ‑ ‑ ‑?‑‑‑To show those indications.
That’s right. She could have been in shock after witnessing what happened to her partner?‑‑‑Could be, yes.”
- [13]
- [14]Dr MacCormick, a forensic physician and who has been employed at the Clinical Forensic Medicine Unit in Brisbane since July 2014, was called as a prosecution witness, specifically to address the significance of the analysis of the appellant’s blood specimen and the observed indicia of the appellant at Brisbane Road on 29 January 2015.
- [15]As to the blood analysis and the finding of morphine, Dr MacCormick explained:[16]
“….. So – so on the certificate it has morphine at 0.16 milligrams per kilogram, and the total morphine, which includes the major metabolites of morphine, which are also active drugs, at 0.84 milligrams per kilogram. Now, morphine is a naturally occurring opiate that’s commonly used particularly in the hospital setting for treatment of moderate to severe pain. It’s also available – it’s available in intravenous version but also available in tablet version. It’s – can – it’s duration of action is usually about two or three hours, and there’s a significant individual variability in sensitivity and tolerance to – to morphine, and this leads to a very broad therapeutic range for the drug. So with the – in therapy, usually levels between 0.01 up to 1 milligram per kilogram. So that’s referring to the total morphine level. So 0.84 milligrams per kilogram falls within that therapeutic range that we see. It is important to mention though that there’s a significant overlap between what’s therapeutic and what’s toxic, and what’s toxic, and this is the – once again because there’s a lot of individual variability in the way people handle the drug. This comes down to genetic differences and how individuals metabolise morphine and opiates as a group of drugs, and it also comes down to exposure and previous use. All the opiate drugs, including morphine and heroin, are – lead to the development of tolerance with chronic use, and that means that somebody needs to take increasingly large amounts of a drug to obtain – to obtain the same effect. So as a – as a group, and this refers to morphine, codeine and heroin, as well as other opiate drugs ….. The effects include a sensation of euphoria, sometimes dysphoria. So that means feeling good but sometimes people can feel quite negative as a result. It of course has significant pain relief effects. Because of the central nervous system depressant effects of all opiates, they lead – can often lead to sedation, confusion, poor motor coordination, poor concentration, impaired judgment, slurred, mumbled speech, and other – other specific opiate effects also include nausea, vomiting and having constricted pupils. So that’s when the black of the eye becomes quite small. Just to talk about, I suppose, the interpretation of the three – the morphine and the codeine, as they are both opiate drugs, given the ratio of the levels, so a much higher total morphine level of 0.84 compared to the total codeine of 0.13 milligrams, it suggests that the morphine is from another source other than codeine. It’s important to probably mention here that morphine is a metabolite of codeine, but in this situation with this ratio, it suggests that the morphine is from an alternative source rather than just the metabolism of codeine. Regarding heroin, heroin is not available in Australia for – for legal use or for – within hospitals for therapeutic use. It is rapidly metabolised when it’s administered within, you know, the first sort of 10 minutes, and usually by 30 minutes you can’t actually detect heroin on a blood sample. So it’s metabolised within the blood and also within the liver to morphine. So once again referring to the certificate of analysis, the morphine seen on the certificate could possibly be explained by recent heroin use, but there are other explanations that could be possible.”
- [16]As to the other drugs detected in the specimen, she further explained:[17]
“….So the mirtazapine was detected at very low levels of less than 0.01 milligrams per kilogram. Mirtazapine is an antidepressant drug that’s used for the treatment of major depression. Specifically it’s referred to as a tetracyclic antidepressant. So the level that’s there is extremely low and it’s very unlikely to have been exerting any effect at the time, you know, but when you talk about adverse effects of this medication, it can include [indistinct] dizziness, agitation, but with that level it’s extremely unlikely to be exerting any effect, and it may be that she had a dose many days prior, because it has a very long [indistinct] life. Regarding the desmethylvenlafaxine, this has – from what I can see, it’s a little bit – it looks like 0.90 milligrams per kilogram. It was just a bit distorted……..So this medication is also an antidepressant, commonly used for depression but also anxiety disorders, and it is of the serotonin and noradrenaline reuptake inhibitors class. So it’s – it can also be present as a – as a metabolite of another antidepressant, which is called venlafaxine, which is also very similar in nature. Commonly, this drug might be also known as Pristiq, which is a trade name that people might be more familiar with. So desmethylvenlafaxine, the – the level that’s in there is consistent with recent therapeutic use. It’s unlikely to have caused any adverse effect that would affect driving. The common adverse effects would be dry mouth, constipation. Sometimes people can have a bit of sweatiness or insomnia as well. The final drug on the certificate of analysis is the delta-9-tetrahydrocannabinol, which is known commonly as THC, or cannabis. So THC is the most psychoactive component of cannabis. I mean, I guess to go to the sort of effects of cannabis, it’s a central nervous system depressant as well. It also can have some other effects, like – so it commonly causes euphoria, increased sociabilities, sedation, intensification of sensory experiences. It also has other properties, such as pain relief properties, nausea-relieving properties, and also helping stimulate appetite. It – it does cause quite significant impairment to driving because it – because of its effect on concentration and – and even ability to sort of attend to multiple things at the one time, but in this level at zero point zero – zero – sorry – 0.003 milligrams per kilogram, this level is quite low, and it could actually represent a residual level in someone who’s a chronic user, because it – in chronic users, we tend to find that even days after use they can have residual levels just because it takes a while for it to be fully removed from the body.”
She then gave the following evidence:[18]
“So can I just clarify. The combination of these drugs then, Doctor, what does it mean for a doctor to look at that for ‑ ‑ ‑?‑‑‑So I think the most significant finding overall is that the morphine level is relatively high, and I think that’s sort of what draws my attention. I do not think that the mirtazapine, the desmethylvenlafaxine or the THC would cause any significant pharmacological effect at those levels. The codeine, I would – could be explained, as I mentioned, that if this morphine was indeed from heroin, the amounts of codeine there could be explained as a contaminant in the heroin. Now, as far as interpretation of the level, that’s where it becomes quite complex. Now, this is given that particularly with opiate-type drugs there’s significant variability in – between individuals as to how they respond to opiates, and as I mentioned, this is because of variations in genetics but also in their previous exposure, and so this can significantly affect their sensitivity and their tolerance to – to morphine and opiate drugs. You can have one person with a level falling asleep, and then another person who was quite a chronic user might not even be feeling the effects of the drug. Given the indicia that was described to me – so it was described to me that – that the defendant was jittery, fidgety and nervous with deliberate and slow speech. I found the interpretation of this difficult because that indicia is actually in contrast with what you would expect from a central nervous system depressant drug, and certainly what you would expect from the effects of morphine. And indeed, I think the indicia of being fidgety, jittery and nervous, we commonly see more with the stimulant use and drugs such as a methamphetamines, so I found that made it difficult to interpret, you know, whether she was actually adversely affected at the time. The other mention was the deliberate, slow speech. Sometimes we see that sort of speech with – particularly with cannabis use or with – or with somebody – like, in – with alcohol, if somebody’s a chronic alcoholic and – and sort of has learned to compensate by speaking very slowly. I don’t think that deliberate, slow speech on its own can really sort of contribute much to – to sort of the argument that she was under the effect of the morphine at the time. So given the – the conflicting indicia with, you know, what you would expect with that morphine level, and it’s possible that in a very chronic, well-seasoned person who has been exposed to opiates and high-dose opiates, that this level may not have actually be exerting a pharmacological effect and – to the point that she was adversely affected or even under the influence at the time, and it’s very difficult, given that indicia, to actually say that she was.
So, Doctor, sorry, just to clarify that last point, you said ‑ ‑ ‑?‑‑‑Mmm.
‑ ‑ ‑ it could be explainable because – if there was a high level of dependence or tolerance to this drug; is that what you’re saying?‑‑‑I’m saying – yeah. So that if – if there’s a high level of tolerance to this drug, that that level may not have been a significant level for – for the individual and may not have actually been, you know, causing impairment, or she may not have been actually under the influence. You know, it’s possible that she could even have been experiencing, you know, symptoms of withdrawal if she’s used to having much, you know, higher levels.
So the withdrawal symptoms, could you perhaps tell the court what happens there, if that’s the case?‑‑‑So typically in withdrawal from opiates, people can get very sick, and there’s generally feelings of dysphoria, of feeling very negative and anxiety. They can – they experience a lot of physical symptoms, like the physiological symptoms. So this can be pains in the – in the abdomen, like, in the stomach and tummy area, diarrhoea. They can become very sweaty, develop goose bumps and – and, yeah – and look very unwell with, you know, a fast heart rate and high blood pressure.”
- [17]Then, and after Dr MacCormick’s attention was drawn to that part of the definition of “drug” in Schedule 4 of TORUM and which reads:
“…. when consumed or used by any person, deprives the person either temporarily or permanently of any of the person’s normal mental or physical facilities”;
she stated the following opinion, as to the likely effect of the indicated level of morphine:[19]
“…. So – so as I was saying, you would expect with that level, being high, for most people it would temporarily deprive them of their faculties, the normal functioning of their faculties, and – and as I mentioned, that I can’t say in this situation given the significant conflicting indicia, I have my doubts whether that was the case.”
- [18]She was then, effectively, asked as to whether some further observations of the attending ambulance officers and as to the appellant’s “profuse sweating” and “pacing” were indicative of heroin use and Dr MacCormick said:[20]
“It’s not typical, and I would – I would suggest that there may be alternative explanations for that which may include anxiety, you know, especially given there’s a – yeah, a suggestion that this person’s on antidepressants as well. I guess that – I would not think that recent heroin use would be the first explanation that I would consider and it’s not a typical symptom.
BENCH: And the agitation?‑‑‑The agitation?
And pacing?‑‑‑And the – agitation and the pacing. Once again, the agitation and pacing is – is not typical for what you would see with central nervous system depressants. It tends – they tend to have a more calming and slowing effect on the system.”
She then gave the following evidence:[21]
“SGT KENNEDY-GRILLS: And so, Doctor, can I just clarify then. You’re saying that the defendant would not be under any influence whatsoever after taking a – what she called a hit of heroin?‑‑‑I – at the – I’m saying – not knowing what time she took the hit and also how much it was and how much she normally takes and those details, just knowing the drug level on the certificate and the indicia described by the police at the time of interception, I think that the indicia is in conflict with the – what you would expect from the morphine level, and an explanation for that could be that that level wasn’t a significant level for her given her – her level of tolerance to the drug.”
- [19]Otherwise, Dr MacCormick clarified that given the processes of metabolisation of ingested heroin to morphine and the then further metabolisation of morphine, over time, “it’s likely the level was higher two hours previously”. And when asked if “it could have been in the toxic range two hours prior”, Dr MacCormick stated:[22]
“…..as far as the toxic range, that’s when you would start to observe symptoms like, you know, significant drowsiness, sedation, respiratory depression ….. It’s possible but I wouldn’t be able to say for sure …. And given that – how she was described two hours earlier, that does not suggest that she was experiencing toxic effects.”
- [20]The difficulties were succinctly encapsulated in the following cross-examination and questions by the Magistrate:
“Doctor, so you can’t say with any certainty what the effects of taking that drug would have had on my client on that day?‑‑‑So I – so what I – what I can say is that the level that – that I can see on the certificate, as far as what that – pharmacological effect it would have actually had on the individual in question, your client, it’s very variable and – and so we do in this situation rely heavily on the indicia that the police and other – you know, paramedics describe, and – and given the fact that the indicia that was described at the time of being fidgety, jittery and nervous is contrary to what you would expect of somebody who was experiencing the effect of opiates, you know, I can’t conclude that she was under the effects of the drug at that time.
Thank you. I have no further questions, your Honour.
BENCH: Doctor, just – just to clarify the point, really, on that certificate, what we – what the focus should be on is really the morphine level and the total morphine level is said – is it fair to say that the other – the other drugs that are listed there have really – are negligible – would have a negligible effect on driving capacity, so really the focus should be on the morphine; is that right?‑‑‑Yes, that’s correct.
And it’s not really the combination but it’s just the – it’s just the morphine level?‑‑‑Yes, that’s correct. All – I will just clarify that all the drugs on the certificate are central nervous system depressants, so that there will be some cumulative effect, but – but I will qualify that the – that the others are at such low levels that I think their contribution would be very minimal, and that the real focus would be the morphine level, which, you know, from just looking at the numbers does seem high, but as I have – as I have clarified, that it’s inconsistent with what was described.”[23]
Discussion
- [21]It is to be noted that on this appeal, it was common ground that proof of this charge was not in any way assisted by s 79(8A) of TORUM and that, as appears to be the better view, the Magistrate approached the matter on the basis that s 79(8A) was not applicable to the circumstances under consideration. It may be noted that this provision may assist the prosecution where there is reliance on evidence of indicia of an influence of either liquor or a drug or both or a combination of drugs, but the evidence does not allow for a conclusion as to the particular cause of the influence. This approach is also consistent with the immediate context provided by s 79(8), which allows for a charge or allegation that a person was relevantly “under the influence of liquor or a drug”. That may be particularly so, in circumstances where the influence may be inferred from circumstances, including observed indicia of such influence. However, neither provision is apt to dispense with the requirement of proof of the relevant influence, as required by s 79(1).
- [22]However, it is necessary to observe that the fact to be proven is influence of the drug, rather than any particular indicia. However, proof of relevant indicia may provide evidence from which the relevant influence may be inferred. Although in the nature of obiter dicta and provided in reference to the consumption of liquor rather than a drug, the following was observed in Smith v Le Mura:[24]
“The meaning ‘under the influence of liquor’ in the context under discussion has long been established in Queensland by authority of this Court. Noonan v Elson [1950] St.R.Qd. 215 and O'Connor v Shaw [1958] Qd R 384 show that a person is to be taken as being under the influence if his faculties are so affected as no longer to be normal for that person. The discussion in those cases also underlines the difference between the state of a person’s faculties being affected and proof of that state for the purpose of establishing the commission of an offence. In the absence of evidence which may be provided nowadays by the existence of a statutory certificate there may in the nature of things have to be some relatively substantial affecting of the faculties before a tribunal hearing a charge will feel itself satisfied beyond reasonable doubt.
It is accordingly established that if, on the hearing of a charge, a person’s blood alcohol level is shown to equal or exceed 15 per cent he is de jure presumed to be under the influence. Apart from the difficulties of proof already commented upon, the possibility of a person’s being under the influence of liquor at a lower level than 15 per cent or in the absence of a certificate, remains. In the present case, however, there was a certificate and the deeming provisions, already adverted to, applied.”
- [23]The issue here was as to the proof of the influence of a drug and, in particular, heroin or morphine,[25]in the absence of any clear evidence as to observable indicia of such influence, or indicia that could be viewed as evidencing the influence of the drugs in question. That was an issue of critical importance, because and unlike the position in respect of a proven blood or breath alcohol concentration, there is no legislative provision which deems the fact of influence, upon the finding of any particular level or concentration of any drug in a person’s blood or saliva. By way of contrast, it can be noted that the “high alcohol limit” is defined in s 79A(3)[26]and s 79(3) of TORUM provides for a conclusive presumption, upon proof that a person was “over the high alcohol limit”, that the person was “at the time under the influence of liquor”.
- [24]Whilst the approach of the respondent in defending the Magistrate’s decision did not specifically seek to support his apparent interpretation of the definition of “drug” in TORUM, there was recognition of the fundamental requirement as to proof of the influence of the drug pursuant to s 79(1) and it was contented that it was, in the end, a matter of inference from the noted circumstances, which did not admit of, or require any elaboration. However, that contention is both problematic and also, only directly confronted the appellant’s contention that the Magistrate found the influence merely upon the basis that the presence of the significant quantity of the morphine in the appellant’s body was proven, by pointing out the observation that upon verification by analysis of the blood specimen, the admitted ingestion of heroin “was at the higher level”. Further and as was submitted to the Magistrate by the prosecutor, the respondent pressed this Court with the contention that, as a matter of common sense and experience, drugs and particularly illicit drugs, are consumed with an expectation of effect upon mental or physical faculties. However, the requirement here was not proof of such expectation but rather, of the fact of influence of the drug, on the individual at the material time. That is because, s 79(1) of TORUM, which provides for the offence of which the appellant was convicted, requires proof, as a matter of fact, that an offender was, at the relevant time,[27]“under the influence of liquor or a drug”.
- [25]As has been noted and unlike the position in respect of liquor,[28]there is no provision which has any deeming effect upon proof of any prescribed level or consumption of any drug, let alone any such effect upon the mere proof of the consumption of any such drug. Further, there is a statutory context which points against any diminution of the requirement of proof of the fact of influence pursuant to s 79(1), in that in s 79(2AA), a less serious cognate offence is provided, upon mere proof of the presence of “a relevant drug” in a person’s blood or saliva, as follows:
“(2AA) Any person who, while a relevant drug is present in the person's blood or saliva—
- (a)drives a motor vehicle, tram, train or vessel; or
- (b)attempts to put in motion a motor vehicle, tram, train or vessel; or
- (c)is in charge of a motor vehicle, tram, train or vessel;
is guilty of an offence and liable to a penalty not exceeding 14 penalty units or to imprisonment for a term not exceeding 3 months.”[29]
- [26]Similarly, it is not simply a question of proof of the presence of any drug in a person’s body, even if it may be expected such a drug would or might affect that person. And the following definition of “drug” in Schedule 4 of TORUM, does not alter that position:
“drug means every substance or article which is a dangerous drug under and within the meaning of the Drugs Misuse Act 1986 or any other substance, article, preparation or mixture (with the exception of liquor) whether gaseous, liquid, solid, or in any other form which, when consumed or used by any person, deprives the person either temporarily or permanently of any of the person’s normal mental or physical faculties.”
- [27]The qualifying and concluding words, are clearly meant to provide a limitation as to the other substances etc. that will be caught by the definition. However, that may not be the only effect of those words and they are also capable of application to the earlier reference to substances and articles that are designated as dangerous drugs. Whilst an isolated consideration of this definition would leave open the view expressed by the Magistrate, that the qualifying words do not apply to the earlier reference to designated dangerous drugs, with an apparent implication of creating a presumption (or at least involving an assumption) that the presence of such drugs in an individual amounts to the necessary influence. Not only is this an unlikely result by way of such indirect implication but it is a view that does not survive contextual consideration, at least as to a preferred view:[30]
- (a)such a conclusion would render the words of s 79(1), in requirement of proof that the individual was, at the material time, “under the influence of a drug”, superfluous and meaningless in respect of application to designated dangerous drugs;[31]
- (b)it would also create an inconsistency of approach to that required in respect of liquor and other drugs, such as to be inconsistent with the application of s 79(8) and (8A);
- (c)it would also, in respect of designated dangerous drugs, tend to make the offence under s 79(1) indistinguishable from that proscribed by s 79(2AA); and
- (d)it is of significance to note that the qualifying words in the definition of “drug” are expressed in an active rather than prospective sense and in terms that are reflective of the tenor of the test otherwise recognised in the decided cases and in respect of the proof of the element of being “under the influence of liquor”, in s 79(1).
- [28]Accordingly, the better view is that the definition of “drug”, in Schedule 4 of TORUM, does not create any presumption as to any effect of any substance on any person and that the words of qualification also apply to designated dangerous drugs. Further and not only is there an absence of warrant for any difference in approach in respect of drugs, from that applicable to liquor, pursuant to s 79(1) of TORUM, the concluding words of the definition may be seen to have effect to reinforce the otherwise separate requirement in s 79(1), as to proof that at the relevant time the person was “under the influence of a drug” and that such proof is required in the sense that the person was deprived, either temporarily or permanently, of some normal mental or physical faculty or faculties. Importantly and whilst, as has been noted, a consequence is to repeat the tenor of the test recognised in the decided cases for determining whether a person is under the influence of liquor, it may be noted that the emphasis is placed upon proof of some deleterious effect upon the person, because of the requirement of “deprivation” of any of the person’s normal mental or physical faculties.
- [29]Whilst it might be observed that a difference in an allegation of being under the influence of a drug, as opposed to liquor, may be that the actual effects of consumption of a drug may not be as readily or widely comprehended or understood, as a matter of common perception. And an apparent context for the test discussed in the decided cases and in respect of proof of being under the influence of liquor, a commonly and legally available and socially encountered substance, appears to be an expectation of common understanding of the potentially deleterious effects of consumption of alcohol upon a person’s normal faculties and particularly, how such an affect (to the point of influence) may deprive such a person from those faculties, which are desirable from the point of view of safe control and management of motor vehicles, and that such may be evidenced by commonly encountered external indicia. It is nevertheless conceivable that similar indicia or a similar conclusion as to influence from the consumption of a drug, may become observable. However, these considerations go only to matters of evidence or proof and it is more likely that in the absence of evidence of such indicia by way of observable behaviour and which clearly indicates the necessary influence, that, as was thought here, it will be necessary to rely upon medical or scientific evidence for the proof of the relevant effects of such drugs and as to what indicia of such influence might be observable.
- [30]In this case, there were obvious difficulties arising from Dr MacCormick’s evidence confronting any conclusion beyond reasonable doubt, as to proof of the necessary influence of a drug and there is an absence of reasoning as to how those difficulties were addressed, otherwise than by effectively avoiding them upon an incorrectly expressed view as to the effect of the legislative definition of “drug”.
Conclusions
- [31]Accordingly, there is no warrant for the approach taken by the Magistrate in this case. It is apparent that he reasoned on the basis that the qualification in the concluding words of the definition of “drug”, only applied to the inclusion of other substances etc. and not to substances that are dangerous drugs within the meaning of the Drugs Misuse Act 1986 and therefore, that the offence was proven upon proof of the consumption and presence of such a drug in the appellant’s body, at the relevant time. However, that conclusion is neither apparently correct, nor the one that should be favoured. More importantly and irrespectively, there is the separate requirement of proof of being “under the influence of a drug’, embedded in s 79(1) and whilst the definition of “drug” must be read with and for the purpose of that requirement, the language of the qualification in the definition is not such as to conclude or create any presumption as to what is an issue of fact. Rather, it is in terms of reinforcing the test that must be met.
- [32]Moreover, the concluding passages of the Magistrate’s reasons allow only the conclusion that he acted, as the appellant contends, merely upon the evidence of the consumption of heroin and indications of a significant quantity of the metabolite, morphine, in the blood test, to conclude the fact of influence.[32]That is, and apart from some apparent confusion as to the evidence of Senior Sergeant Graham,[33]to conclude no more than the fact of consumption and presence of the drug in the appellant’s body, at the relevant time. In the first instance, it may be noted that those conclusions follow shortly after the passage where the Magistrate noted the differentiation in the definition of “drug” in TORUM, as between “every substance or article which is a dangerous drug under and within the meaning of the Drugs Misuse Act 1986” and “any other substance, article, preparation or mixture”. And otherwise, there is no explanation as to how, on the evidence that was before him, the Magistrate concluded that the appellant was under the influence of heroin, at the relevant time.
- [33]Further, the conclusion that this was the basis upon which the Magistrate ultimately determined this application, is also confirmed by the effect of Dr MacCormick’s evidence, in the context of the requirement of proof beyond reasonable doubt of this element. In the first instance, her evidence denied the evidence of the observed indicia of the appellant of any probative value in proof of the appellant being relevantly under the influence of a drug. Secondly, her evidence made it clear that the critical assessment was as to the presence of the significant level of the metabolised morphine, in the blood specimen, as confirmatory of the admitted ingestion of heroin and whilst Dr MacCormick noted an expectation or likelihood of temporary deprivation of the normal faculties of a person based on the level of the metabolised morphine detected, she otherwise qualified that view by reference to the variabilities due to individual genetics and particularly, tolerance to the drug. And in the context of the contrary indications from the observed indicia, Dr MacCormick not only expressed that she was unable to conclude any view “that she was under the effects of the drug at the time” but also expressed “doubts whether that was the case” and proffered that a possible explanation of the evidence may have been the appellant’s “level of tolerance to the drug”.
- [34]Accordingly, it should be concluded that:
- (a)the conviction of the appellant was determined in error, in that, the magistrate misapplied the definition of “drug” in TORUM and did not actually determine that the appellant was, when in charge of her motor vehicle on 25 January 2015, under the influence of a drug; and
- (b)on the available evidence, it should not be concluded that such influence, in the relevant sense of deprivation, even temporarily, of any of the appellant’s normal mental or physical faculties, was established beyond reasonable doubt.
- [35]Therefore, it will be necessary to allow the appeal and to set aside the conviction of the appellant for the offence pursuant to s 79(1) of TORUM. However, it will also be necessary to further hear the parties as to any consequential orders. This is at least because, and as the respondent initially flagged in written submissions,[34]there is the prospect of substitution of an offence under s 79(2AA) of TORUM. Although that submission was qualified by the need to ascertain whether heroin was prescribed as a “relevant drug” for the purposes of s 79(2AA) and then expressly not pursued, upon confirmation that it was not, it would appear that the concession may have overlooked two things:
- (a)that the charge as to the offence, pursuant to s 79(1) of TORUM brought against the appellant, did not specifically particularise any drug but was charged, in accordance with s 79(8), in terms that the appellant was “under the influence of liquor or a drug”; and
- (b)in any event, that the specific requirement pursuant to s 79(5) of TORUM is that:
“If, on the hearing of a complaint of an offence against subsection (1), the court is satisfied—
- (a)as to all the elements of the offence charged other than the element of the defendant’s being under the influence of liquor or a drug at the material time; and
- (b)that at the material time there was a relevant drug present in the defendant’s blood or saliva;
the court must convict the defendant of the offence under subsection (2AA) that is established by the evidence.”
Further Considerations
- [36]Upon the resumption of this matter, on 27 January 2017, for the purpose of making appropriate orders and when the parties had notice of the reasons set out above (in draft form):[35]
- (a)The legal representatives for the respondent were not then in a position to deal with the issues as to the application of s 79(5) and particularly whether this section would require any Court, in finally dealing with this matter, to convict the appellant of the offence under s 79(2AA) and which is established by the evidence of the identified presence of the drug “Delta-9-tetrahydrocannabinol” (“THC”) in the blood specimen taken from the appellant;[36]and
- (b)The appellant’s legal representatives sought to point out the potential for injustice to the appellant, who has vindicated her defence of the charge upon which she had been convicted, in this appeal and if the outcome involves the application of s 79(5).
Accordingly, the further hearing of this matter was adjourned to allow the parties to consider their positions and ultimately further heard, today, and after directions were made for the preparation of further or addendum written submissions and the filing of additional evidence.[37]No objection was raised to the appellant adducing the new evidence in her affidavit and leave do so was granted pursuant to s 223(2) of the Justices Act 1886 and the appellant was then cross-examined.
- [37]In dealing with the appellant’s position, it is only necessary to note that:
- (a)in originally sentencing the appellant for the offence of being in charge of the vehicle whilst under the influence of liquor or a drug and after being informed that the appellant had only one prior conviction in her criminal history (for an offence of possessing dangerous drugs on 29 January 2015 and for which, on 13 March 2015, she was placed on a good behaviour bond with 4 months of drug diversion) and that she was then 53 years old and in receipt of a disability support pension, the Magistrate imposed a fine in the amount of $500 with an immediate referral to SPER and imposed what he identified as the minimum required period of disqualification of her driver’s licence, being 6 months;
- (b)the relevant maximum fine for the substituted offence would be 14 rather than 28 penalty units;
- (c)although and upon appealing against her conviction and pursuant to s 131(3A) of TORUM, the appellant’s disqualification from holding or obtaining a driver’s licence was suspended, it may otherwise be noted that:
- (i)the appellant, having been charged with the offence under s 79(1) was, pursuant to s 79B(2), suspended from the date when she was charged and until that charge was dealt with in the Court below, being a period of about 5½ months;
- (ii)she has otherwise been subject to the disqualification ordered on 17 June 2015, for about a week and until she lodged her appeal on 24 June 2015; and
- (iii)it is otherwise confirmed that despite the effect of s 79B(2), she has remained without her physical licence, which was surrendered, in accordance with statutory requirement to do so, soon after 17 June 2015 and therefore effectively subject to the disqualification until she reapplied for and was granted a licence on 17 December 2015, notwithstanding the lodgement of her appeal and the effect of s 131(3A). That is a period of 6 months effective disqualification.
- (d)for any substituted conviction of the offence under s 79(2AA), there is legislative requirement, pursuant to s 86(2)(e) of TORUM, that there be an order of disqualification of not less than 1 month and not more than 9 months; and
- (e)the evidence of Dr MacCormick was that whilst the THC “does cause quite significant impairment to driving”, the determined level at 0.03 milligrams per kilogram was “quite low and it could actually represent a residual level in someone who’s a chronic user” and that her expressed view was that she thought that the drugs identified in the blood specimen, other than the morphine, would not cause “any significant pharmacological effect at those levels”.[38]
- [38]In those circumstances, it is correctly pointed out that if there is a conviction now entered for the offence pursuant to s 79(2AA), that would require an order pursuant to s 86(2)(e), of at least a further one month disqualification, taking effect from the date of any such order. On any view, that would be on top of the effect of the charging of the appellant with the unsubstantiated offence pursuant to s 79(1) and the effect of the orders made in respect of the wrongful conviction for that offence and which are now to be set aside. If that were to occur, it may be accepted that in the circumstances outlined, the appellant would have strong claims to an order at the minimum stipulation of one month. However, that would effectively amount to a total period of seven months disqualification, on top of the period of about five and a half months of suspension, from 29 January 2015 and which may otherwise be taken into account pursuant to s 86(7) of TORUM.
- [39]Accordingly, the questions are whether:
- (a)there is any element of injustice in that outcome; and
- (b)in these proceedings, this Court is empowered to make orders that have the effect of avoiding any such injustice.
- [40]The appellant contends for positive answers to each question but the respondent contends otherwise. For the appellant, it is contended that the injustice lies in the length of the effective disqualification or period of deprivation of the appellant’s driver licence already incurred and the fact that the result would be a further period of one month from the date of any such order, irrespective of any other amelioration of the appellant’s position in respect of any fine. For the respondent, the submission is that not only is there no injustice in the circumstances but that this Court is bound by the mandatory requirements of s 79(5), to substitute the conviction for the offence under s 79(2AA) and by s 86(2)(e), to impose at least one month disqualification. The respondent concedes that in the circumstances, this would be the only appropriate order imposed by way of penalty and that no fine would be imposed, in addition.
- [41]The respondent’s position is premised on the contention that in rehearing this mater by way of appeal, this Court is empowered by s 225(3) of the Justices Act, to “exercise any power that could have been exercised by whoever made the order appealed against” and is therefore equally constrained by the mandatory effect of s 79(5) of TORUM. In my view, that proposition should not be accepted. First, the reference in s 79(5) to “the hearing of a complaint” appears to be particularly directed at the hearing at first instance in the Magistrates Court. Secondly and in any event, it is necessary to have regard to the powers provided to this Court on appeal pursuant to s 225 of the Justices Act. Whilst s 225(3) empowers the Court to like extent to a Magistrate hearing the matter on complaint, the Court is not constrained or bound to exercise any such power. In fact, s 225(3) is expressed in terms of empowering the Court for the purpose of applying s 225(1), which otherwise states the powers of the Court as follows:
- “(1)On the hearing of an appeal, the judge may confirm, set aside or vary the appealed order or make any other order in the matter the judge considers just.”
- [42]Accordingly, this Court is expressly given broad powers to appropriately deal with matters, as they relate to the circumstances of individual cases and the concluding words are indicative of the absence of constraint to act in accordance with any particular power given to a Magistrate, whether mandated in exercise or not. However, any other order that the Court may make must be in exercise of a power available to the Court and apart from the specific powers in s 225(1) to “confirm, set aside or vary the appealed order”, the other powers are those that were available to the Magistrate. Therefore and if the Court considered it a just outcome to act in accordance with s 79(5), the application of s 86(2)(f) of TORUM is engaged and it is statutorily mandated that at least one month further disqualification be then imposed.
- [43]Given the substantial effective penalty that has already been incurred by the appellant, by way of deprivation of her driver licence and the particularly low level, if not technical, nature of the offence that may be substituted pursuant to s 79(5), in the present circumstances there appears to be a lack of justice in doing so, even in order to formally have the fact of this offence noted in the appellant’s traffic record. The facts will otherwise remain a matter of record in this decision. Further and although the respondent drew attention to the obvious statutory intent in the mandatory effect of s 79(5), as would have applied when this matter was heard by the Magistrate, in the event, as is the case, that this Court did not accept the respondent’s contention as to the powers of this Court, it was ultimately and as the circumstances are now known, not contended that the outcome sought by the appellant was inappropriate.
Order
- [44]Having regard to those circumstances and upon allowing the appeal, it is therefore appropriate to simply make an order to set aside the conviction for the offence under s 79(1) of TORUM and the orders made in respect of that conviction. And it may be observed that such an approach is also consistent with the discretionary rather that mandatory alternative provided in s 225(2) and as to returning a matter to the Magistrates Court for rehearing or reconsideration. Therefore the order of the Court is that:
The conviction of the appellant, on 17 June 2015, of the offence that she was on 29 January 2015, in charge of a motor vehicle on Brisbane Road, Mooloolaba whilst under the influence of liquor or a drug and the orders made in respect of that conviction, are set aside.
Footnotes
[1] s 223 Justices Act 1886 and see: Powell v Chief Executive Officer of Australian Customs Service [2016] QCA 313, at [33]-[34] and Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679, at 686-7; and cf: Fox v Percy (2003) 214 CLR 118, at [25], Teelow v Commissioner of Police [2009]QCA 84, at [2]-[4], Tierney v Commissioner of Police [2011] QCA 327, at [26], Merrin v Commissioner of Police; Merrin & Anor v Commissioner of Police [2012] QCA 181, at [10], Commissioner of Police v Al Shakaji [2013] QCA 319 and White v Commissioner of Police [2014] QCA 121.
[2] Transcript of the Magistrate’s Decision, dated 17/6/15, at D2.1 - 5.20.
[3] See Exhibit 3.
[4] (1950) St R Qd 158, at p 226 per Mack AJ.
[5] [1958] Qd R 384, at 385.
[6] [1983] 1 Qd R 535, at p 543 per Macrossan J.
[7] T1-5.11-16.
[8] T1-4.39-41.
[9] T1-5.18-20.
[10] T1-17.5-1-18.23.
[11] T1-18.32-35.
[12] T1-9.7.
[13] T1-23.36 – 1-24.2.
[14] See Exhibit 3.
[15] See Exhibit 4.
[16] T1-25.34 – 1-26.28.
[17] T1-26.30 – 1-27.30.
[18] T1-27.32 – 1-28.37.
[19] T1-30.1-5.
[20] T1-31.22-33.
[21] T1-31.35-42.
[22] T1-32.17-24.
[23] T1-32.40-33.19.
[24] [1983] 1 Qd R 535, at p 543 per Macrossan J.
[25] Whilst heroin is designated as a dangerous drug pursuant to s 4 and Schedule 1 of the Drugs Misuse Act 1986, so is morphine (pursuant to s 4 and Schedule 2 of that Act) and s 4 also extends to include derivatives of those drugs.
[26] “…a person is over the high alcohol limit if –
(a)the concentration of alcohol in the person’s blood is, or is more than, 150mg of alcohol in 100mL of blood; or
(b)the concentration of alcohol in the person’s breath is, or is more than, 0.150g of alcohol in 210L of breath.”
[27] Being either when driving or attempting to put in motion or in charge of a motor vehicle, tram, train or vessel
[28] See definition of “liquor” in Schedule 4 of TORUM.
[29]Perhaps curiously or perhaps underlining the difficulties that emerged in the evidence of Dr MacCormick and as to the proof of a relevant influence of heroin, the relevant drugs for s 79(2AA) do not include heroin. Rather the definition, having regards to Schedule 4 of TORUM and s 172 of the Traffic Regulation 1962, is:
“For schedule 4 of the Act, definition relevant to drug, each of the following drugs is prescribed –
(a)3,4-Methylenedioxymethamphetamine (MDMA);
(b)Delta-9-tetrahydrocannabinol;
(c)Methylamphetamine.”
[30] As to importance and necessity of having regard to context, see K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 60 ALR 509, at 514, Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, at 381 and CIC Insurance v Bankstown Football Club Ltd (1997) 187 CLR 384, at 408.
[31] As a matter of general principle, all the words of a statute are to be given meaning and effect and not to be regarded as superfluous; see Commonwealth v Baume (1905) 2 CLR 405, at 414, Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, at 382. It has also been noted that a preferable construction is one that “produces the greatest harmony and the least inconsistency”; see: Australian Alliance Assurance Co Ltd v Attorney General (Qld) [1916] St R Qd 135, at 161; and that, as far as is practicable, avoids rendering a provision as virtually of no practicable effect; see: Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565, at 574.
[32] See paragraph 32, above
[33] D5.12-14
[34] Respondent’s outline of submissions, at [27]-[30].
[35] Only subsequently revised, as noted on 27 January 2017.
[36] See Exhibit 4, Certificate of Analysis and also T1-27.70-30, per Dr MacCormick.
[37] See Addendum Outline of Argument and Affidavit of R L Hill (as the appellant is now known), filed by the appellant on 3/3/17 and Addendum Outline of Argument, filed by the respondent on 10/3/17.
[38] T1-27.24-36.