Motor Vehicle Law Qld Noticeboard – July 2017 – Proof of being in charge of a vehicle while under the influence of a drug
Proof of being in charge of a vehicle while under the influence of a drug
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)
McCurley v The Commissioner of Police [2017] QDC 80 – 6 April 2017 District Court of Queensland Long SC DCJ
Facts: McC was convicted of being in charge of a vehicle while under the influence of a drug contrary to s 79(1)(c) of the Transport Operations (Road Use Management) Act 1995. A blood test showed the presence of a number of drugs including anti-depressants, some tetrahydrocannabinol and a significant quantity of morphine. She admitted to injecting heroin. The difficulty was that the independent evidence of indicia which she displayed was that her speech was slow and deliberate and that her movements with her hands and arms gave the impression that she was nervous and jittery. The medical evidence was that such indicia were contrary to what one would expect were the drugs actually present. The evidence went on to show that the absence of the expected indicia suggested that she was a seasoned user on whom the drugs present were having no pharmacological effect. In other words, the drugs were not influencing McC possibly because of her tolerance to them, and her indicia were most likely attributable to some other cause.
In convicting McC the Magistrate interpreted the definition of “drug” in Sch 4 of the Act as though it read:
- Every substance or article which is a dangerous drug under and within the meaning of the Drugs Misuse Act 1986; or
- Any other substance, 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 mental or physical faculties.
On this reading the Magistrate concluded that heroin being a dangerous drug within the meaning of the Drugs Misuse Act 1986, the question of indicia going to deprivation of faculties was irrelevant.
Held: Long SC DCJ rejected the Magistrate’s interpretation of the definition. His Honour held at [27]–[29]:
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:
“(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;
(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).”
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.
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 [effect] (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 consideration 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.
Comment: It follows that in order to succeed on a charge under s 79(1) involving being under the influence of a drug, the prosecution must prove beyond reasonable doubt that the person charged was under the influence of a dangerous drug within the meaning of the Drugs Misuse Act 1986, or some other substance referred to in the definition, and that in either case the dangerous drug, substance etc. was one which would relevantly deprive the person of their faculties and did in fact do so, to the extent that they could be said to be under its influence.
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