Ashley Knowles v Eamon Thomas Hogan
[2021] ACTMC 3
•30 March 2021
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Ashley Knowles v Eamon Thomas Hogan |
Citation: | [2021] ACTMC 3 |
Hearing Dates: | 5 March 2021 |
DecisionDate: | 30 March 2021 |
Before: | Chief Magistrate Walker |
Decision: | See [47]–[48] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Verdict – Driving offences – Strict liability – Intervening act – Evidential burden |
Legislation Cited: | Criminal Code 2002 (ACT) Evidence Act 2011 (ACT) Road Transport (Road Rules) Regulation (2017) (ACT) Road Transport (Alcohol and Drugs) Act 1977 (ACT) |
Cases Cited: | Beattie v Potts [2015] ACTSC 350 Halper v R [2015] NSWDC 346 R v Khazaal [2012] HCA 26; (2012) 246 CLR 601 |
Parties: | Ashley Knowles (Informant) Eamon Thomas Hogan (Defendant) |
Representation: | Counsel E Riley (Crown) S Lynch (Defendant) |
| Solicitors Director of Public Prosecutions (ACT) (Crown) Aboriginal Legal Service (NSW/ACT) (Defendant) | |
File Numbers: | MC 2920-21 of 2020 |
CHIEF MAGISTRATE WALKER
Eamon Hogan is charged with one count of entering an intersection against a red traffic light contrary to regulation 59(1) of the Road Transport (Road Rules) Regulation (2017) (ACT), an offence which on conviction carries a fine of up to 20 penalty units or $3,200. He is also charged with one count of driving with a prescribed drug in his oral fluid contrary to section 20(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT), as a first offender, an offence which on conviction carries a financial penalty of up to 10 units or $1,600 and a default disqualification from driving for three years, reducible to a statutory minimum of six months if the circumstances warrant it.
Both offences are said to have occurred on 6 February 2020. The defendant pleaded not guilty on both counts and the matter proceeded to hearing before me on 5 March 2021.
In assessing the evidence, I remind myself of the basic principles applicable to a criminal prosecution. The prosecution bears the burden of proving each and every element of the offences charged beyond reasonable doubt. The defendant has no obligation to prove his innocence; if he raises an explanation consistent with his innocence he is not required to prove it; it is for the prosecution to disprove it or demonstrate its irrelevance.
In respect to strict liability offences, if the defendant gives or points to evidence which suggests the reasonable possibility of exculpation recognised at law, then he has met his evidential burden and it is for the prosecution to disprove beyond reasonable doubt.
In assessing the reliability or credibility of witnesses, I may take into account a range of factors including what they say, how they say it and their general impression upon me; in doing so, I may accept or reject some or all of their evidence. In assessing the evidence I must be rational and dispassionate and may rely on common sense and experience. An inference may only be drawn if it is the only rational inference available. A defendant’s evidence is of no lesser weight simply by virtue of that person’s status as a defendant. If the prosecution fails to meet its high evidential burden, then the defendant must be acquitted of the charges.
Background
At about 8pm, on dusk, on 6 February 2020, Senior Constable Knowles was on traffic patrol at the intersection of Gungahlin Drive and Valley Avenue in Gungahlin. He was stationary on Gungahlin Drive heading south and facing the intersection. Vehicles were turning right in front of him from the Valley Avenue on to Gungahlin Drive. He was in a black VW unmarked police car.
Mr Hogan was the driver of a Nissen Navara motor vehicle which turned right from the Valley Drive on to Gungahlin Drive.
Senior Constable Knowles said that he saw the traffic lights controlling traffic entering from Valley Drive into the intersection move through green, orange and then red. He said he saw the colours reflected off the visors around the light. After the lights turned red, he turned to observe the traffic entering the intersection from Valley Avenue. He then saw the Nissen Navara enter the intersection.
Senior Constable Knowles conducted a U-turn to follow that vehicle and pulled it over. The officer conducted a roadside drug test which proved positive. Mr Hogan expressed surprise at the positive result as he denied having consumed cannabis. He subsequently provided an oral sample at the police station. Following ACT Government Analytical Laboratory (ACTGAL) analysis, delta-9-tetrahydrocannabinol (THC) was detected in that sample.
The officer was cross-examined as to his observation of the light turning red. It was put that his observation was unreliable because of the position of the sun, the angle at which the officer was looking at the light, the fact that he was wearing sunglasses and his 15 metre distance from the lights. It was established that he had six years in traffic operations, could see the light from both its reflected colour and position on the pole, and was not impaired by obstruction nor the setting sun. He was comfortable that he was not mistaken in his observations.
Mr Hogan gave evidence at hearing and stated that as he approached the intersection, he was travelling at the speed limit. He said that the lights were orange as he entered, or just as he crossed the line into, the intersection. He did not see the lights turn red.
In respect to the presence of a prescribed drug in his oral fluid, Mr Hogan said that he had not recently or indeed ever knowingly ingested any prescribed drug. He said that earlier that day he had spent time with a friend in a garage when that friend was, to his knowledge, smoking cannabis through a pipe, although he said that he could not smell it. He said that he would have been familiar with the smell from previous exposure. He said his friend smoked in “his own corner” away from Mr Hogan on the other side of the room and blew the smoke out a window because he knew that Mr Hogan did not smoke cannabis. The garage had open windows and doors and was large enough to fit a car and a couple of motorcycles. He asserted in relation to “drugs” that he had never touched them.
Applicable Law
Section 20 of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) relevantly provides:
(1) A person commits an offence if the person—
(a) has been––
(i) the driver of a motor vehicle on a road or road related area; or
(ii) the driver trainer in a motor vehicle on a road or road related area; and
(b) has, within the relevant period, a prescribed drug in the person's oral fluid or blood.
…
(2) Strict liability applies to subsection (1).
The Criminal Code 2002 (ACT) (‘the Code’) relevantly provides:
23 Strict liability
(1) If a law that creates an offence provides that the offence is a strict liability offence — there are no fault elements for any of the physical elements of the offence;
…
(2) If a law that creates an offence provides that strict liability applies to a particular physical element of the offence — there are no fault elements for the physical element;
…
(3) The existence of strict liability does not make any other defence unavailable.
39 Intervening conduct or event
A person is not criminally responsible for an offence that has a physical element to which absolute or strict liability applies if—
(a) the physical element is brought about by someone else over whom the person has no control or by a non-human act or event over which the person has no control; and
(b) the person could not reasonably have been expected to guard against the bringing about of the physical element.
Section 58 of the Code relevantly provides for circumstances in which the defendant bears an evidential burden, which is defined at ss 58(7) as “the burden of presenting or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.”
Section 144 of the Evidence Act2011 (ACT) provides:
Matters of common knowledge
(1) Proof is not required about knowledge that is not reasonably open to question and is—
(a) common knowledge in the place in which the proceeding is being held or generally; or
(b) capable of verification by reference to a document the authority of which cannot reasonably be questioned.
(2) The judge may acquire knowledge mentioned in subsection (1) in any way the judge thinks fit.
(3) The court (including, if there is a jury, the jury) must take knowledge mentioned in subsection (1) into account.
(4) The judge must give a party the opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge mentioned in subsection (1) that is necessary to ensure that the party is not unfairly prejudiced.
Submissions
Defence Submissions
Mr Lynch appeared on behalf of Mr Hogan. He submitted that Mr Hogan’s evidence should be accepted because it was emphatic, clear, concise and detailed. Further, the absence of any evidence of intoxication supports Mr Hogan’s assertion that he had no basis to suspect that he had the drug in his system, which supports his credibility. There being no basis to reject the defendant’s evidence, he must be acquitted.
Mr Lynch relied upon s39 of the Code to submit that there is “a reasonable possibility that the cannabis (sic) came to be in Mr Hogan’s body by an act of someone else over whom he had no control and in circumstances over which he had no control, and in circumstances where he could not reasonably be expected to guard against the cannabis having come into his body”.
Mr Lynch submitted that the court is able to take judicial notice of the notion of “passive smoking” and the “very real risk that people can inhale it (delta-9-tetrahydrocannabinol) from another person smoking”. He further submitted that the burden then shifted to the prosecution to counter that by calling expert evidence to the contrary.
Alternatively, Mr Lynch submitted that Mr Hogan had no idea how the drug came to be present in his oral fluid and that the evidence that he did not consume it placed an obligation on the prosecution, separate to that raised by the passive smoking theory, to disprove that he had knowingly consumed it. Mr Lynch relied on s39 of the Code and the decision of Beattie v Potts [2015] ACTSC 350.
In respect to the red light offence, Mr Lynch submitted that Senior Constable Knowles’ evidence as to his observation of the light turning red should be rejected because of the position of the sun, the angle at which the officer was looking at the light, the fact that he was wearing sunglasses and the officer’s 15 metre distance from the lights.
Prosecution Submissions
The prosecution submitted that I should accept Senior Constable Knowles evidence “because of the level of detail and procedural integrity of it”.
As to the drug driving offence, the court was reminded that it is a strict liability offence and that the presence of the drug was established by scientific testing. I was referred to Halper v R [2015] NSWDC 346, a sentencing decision in which the court observed the legislative intention in the New South Wales equivalent offence to “prohibit driving with any traces of the illegal drug present in a person’s system”.
The prosecution contended that the court could not take judicial notice that passive smoking in the factual circumstances of this case could result in the detection of delta-9-tetrahydrocannabinol in the defendant’s oral fluid. Further, to the extent that s39 could be relied upon, the defendant did have control over this “intervening conduct” in that Mr Hogan could reasonably have been expected to guard against any risk of inhaling the drug by asking his friend not to smoke in his presence or by leaving.
Consideration
Findings of Fact
The fact that Mr Hogan was a “driver” on a road and the presence of a “prescribed drug” in his oral fluid during the “relevant period” are established on the prosecution’s unchallenged evidence.
The police officer is an experienced traffic officer exercising his duty at the time of this incident. He was stationary observing both the lights and the passage of traffic through the lights. He saw a number of cars pass through the intersection on the green light. He was clear in detailing his practice of waiting until the light turned red before focussing on the traffic entering the intersection. He did not make any particular observation of the Nissan driven by the defendant until after the light controlling its entry into the intersection turned red. His credibility was not diminished as to those observations. There is no suggestion that he had any motivation other than addressing the traffic infringement to go out of his way to perform a U-turn and follow the Nissan. I accept his evidence as reliable.
The defendant gave evidence that he approached the lights at the speed limit. He gave no evidence as to his observations in respect to any vehicles ahead of him. Mr Hogan said that the lights turned from green to orange as entered the intersection. There is no suggestion that anything impeded his righthand turn or in any way caused it to be slowed to an unusual level. It is therefore implausible that, having entered into the intersection on green and travelling at a reasonable speed without impediment, he would not have completed the turn before the lights turned red. Indeed, his evidence was that they did not. Had this been the case, there would have been no reason for him to come to the officer’s attention such as to cause the officer to go out of his way to stop a driver in whom there was no other interest.
I reject the defendant’s evidence as to his approach to the red light. He is inconsistent with the police officer not only as to the colour of the light when he completed his move through the intersection but also as to the colour when he entered it. I conclude that Mr Hogan was mistaken or careless as to the state of the lights as he entered the intersection on red and I reject his evidence in respect to this offence.
Accepting that a person can be honest but mistaken in respect to some but not all of their evidence, I accept Mr Hogan’s version of events earlier in the day, that is that he was with a friend who was smoking cannabis in the circumstances he described some short time before being stopped by police.
The dispute in respect to the red light offence is a purely factual one. I am satisfied that the prosecution has established the elements of this offence beyond reasonable doubt.
As to the drug driving offence, whilst the parties agree on the legal provisions which apply, the issue for this court is their application to these facts.
Application of s39 of the Code
It is the very essence of this strict liability offence that there is no fault element to the physical elements of the offence. Strict liability offences are few and must be clearly identified by the legislation as such, because by removing the usual obligation on the prosecution to prove “fault” or mens rea, an onus shifts to the defendant.
This does not deny the possibility of exculpatory circumstances, such as an intervening event as provided for in s39 of the Code, but there must be “evidence that is at least capable of supporting the inference that the matter to which the evidential burden applies exists or does not exist”.[1]
[1] R v Khazaal [2012] HCA 26; 246 CLR 601 at [12] (French CJ).
The defendant is not required to give evidence as to the exculpatory circumstances; the burden may be discharged by pointing to evidence in the prosecution case.
In this case, Mr Hogan relies on two aspects of the evidence to support the application of s39 to his case. The first is passive smoking as to which he submits the court should take “judicial notice” that it could be responsible for the drug in his oral fluid; the second is the “necessary inference” that because he did not knowingly ingest the drug, an unknown person or non-human act or event must be responsible for its presence in his oral fluid.
“Judicial notice”
The defendant submits that his evidential burden in respect to s39 is met in the circumstances that he was in a room with someone he knew to be smoking cannabis. He submits that the court can take judicial notice that there is a reasonable possibility that this caused the drug to be present in his oral fluid and that the onus then falls upon the prosecution to call expert evidence to disprove this. This argument must fail.
If, as Mr Hogan says, he did not know that such exposure could have resulted in the drug being present in his oral fluid, that logically supports the conclusion that I would have reached in any event. It is not a matter of common knowledge, nor readily capable of verification by reference to a document, that it is reasonably possible that a person in company with another in the circumstances described by the defendant would then test positive for the presence of delta-9-tetrahydrocannibinol in their oral fluid. The defendant was apparently not aware of the possibility, nor could such knowledge be attributed to the court. The assertion is very much “open to question”. It is a matter as to which a scientific expert may or may not have the answer; the court certainly does not. Mr Hogan has not discharged the evidential burden.
“Necessary inference”
Mr Lynch relied on a “necessary inference” that the prescribed drug got into Mr Hogan’s oral fluid from one of two sources – either the smoke in the garage or some other unknown source.
I accept Mr Hogan’s evidence that he had not knowingly used the prescribed drug at any time proximate to the offence or otherwise. It is not an element of the offence, and the prosecution is not required to prove, that he ingested the drug knowingly at any time in order for this offence to be made out.
However, accepting Mr Hogan’s evidence that he had never used the prescribed drug enlivens the potential operation of s39. As Burns J stated in Beattie v Potts at [45]:
I see no reason why the evidentiary burden imposed by s39 cannot be satisfied by way of necessary inference; I also see no reason why the prosecution should not be obliged to negative such a possibility where it genuinely arises on the evidence.
His Honour went on to note the “difficult forensic position” this may create for the prosecution. What his Honour was not required to address in the appeal before him was the interplay between the first and second limbs of the exculpation provided for in s39.
It is a necessary inference that, where a credible witness who denies knowingly using a prescribed drug is found to have it present in their oral fluid, “the physical element” must have been brought about by some other means by a person, non-human act or event over which they had no control (given that they could not control something about which they did not know). It does not follow that it is a necessary inference that “the person could not reasonably have been expected to guard against the bringing about of” the presence of the prescribed drug in their oral fluid.
As to the second conjunctive limb of s39, there is nothing of which Mr Hogan gave evidence, or pointed to evidence of in the prosecution case, enlivening the prosecution burden to disprove. This must be a requirement of the section applying. If not, a defendant who simply pleaded not guilty with nothing more could reasonably say in all cases that the plea of not guilty alone raises the possibility that the drug had come into the person’s oral fluid by some third-party act or event against which they could not reasonably have been expected to guard. This approach would defeat the purpose of the strict liability offence.
As was noted in R v Khazaal [2012] HCA 26; 246 CLR 601 by French J at [12]:
The statutory collocation "evidence that suggests a reasonable possibility" is not readily amenable to translation into other terms. But, applying the ordinary meaning of the words of the definition, it is sufficient for the disposition of the Crown's appeal that s 13.3(3), read with s 13.3(6), requires evidence that is at leastcapable of supporting the inference that the matter to which the evidential burden applies "exists or does not exist." This approach reflects the general law position with respect to the evidential burden.If no such inference is able to be drawn from the evidence there is no logical basis for saying that the evidence suggests that inference as a reasonable possibility. Evidence which is merely consistent with or not inconsistent with such a possibility does not "suggest" it. The interaction of the "evidence" and the "possibility" in such a casemay be like that of ships passing in the night.
Accepting Mr Hogan’s evidence that he had never knowingly consumed the prescribed drug, as I must absent anything to contradict it, I can draw no inference as to how the drug came to be in his oral fluid other than by some unspecified intervening act. Therefore no inference is open as to what he might reasonably have been expected to do (and done or failed to do) to guard against that outcome.
Insofar as Mr Hogan relies on potential exposure in the garage, if he was aware of that possibility but knowingly took the risk, then he can hardly rely on that as an intervening act outside of his control.
Decision
The defendant has failed to meet the evidentiary burden of s39. The remaining elements of the drug driving offence – the driving, by the defendant, on a road, and the presence of a prescribed drug in his oral fluid within the relevant period – are established without contradiction and beyond reasonable doubt. I therefore find this offence proved.
Given my findings in respect to the unreliability of Mr Hogan’s evidence in relation to the red light offence, and my acceptance of the evidence of Senior Constable Knowles which satisfy the elements this offence, I also find this offence proved.
| I certify that the preceding forty-eight [48] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Magistrate Walker. Associate: S Corish Date: 12 April 2021 |
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