Beattie v Potts
[2015] ACTSC 350
•10 December 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Beattie v Potts |
Citation: | [2015] ACTSC 350 |
Hearing Date(s): | 23 July 2015 |
DecisionDate: | 10 December 2015 |
Before: | Burns J |
Decision: | See [50] |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – Particular offences – drug offences – driving with a prescribed drug in oral fluid or blood. APPEAL – Appeals From and Control Over Magistrates – appeal against conviction – where the appellant relied on a defence under s 39 of the Criminal Code 2002 (ACT) in the Magistrates Court – whether the Magistrate failed to apply the correct evidentiary burden – appeal upheld. |
Legislation Cited: | Criminal Code 1995 (Cth) ss 10.1, 13.3, 101.5 Criminal Code 2002 (ACT) ss 7, 8, 11, 15, 39, 58 Road Transport (Alcohol and Drugs) (Random Drug Testing) Act 2010 (ACT) |
Cases Cited: | Queen v Khazaal (2012) 246 CLR 601 |
Parties: | Shay Beattie (Appellant) Adam Clayton Potts (Respondent) |
Representation: | Counsel Mr T Sharman (Appellant) Ms S McFarland (Respondent) |
| Solicitors Aboriginal Legal Service (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number(s): | SCA 32 of 2015 |
Decision under appeal: | Court: ACT Magistrates Court Before: Magistrate Doogan Date of Decision: 14 April 2015 Case Title: Potts v Beattie Court File Number(s): CC 4470 of 2014 |
BURNS J:
These proceedings are an appeal from a decision of a Magistrate. On 14 April 2015, the appellant was convicted of the charge of driving with a prescribed drug in her blood in contravention of s 20 of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (the Act). The appellant was then sentenced to a disqualification period from driving of six months and a fine of $400.00 plus court costs.
The present appeal is with respect to the conviction imposed. The appeal against sentence was not pursued at the hearing.
Background
At about 12.30 pm on 15 March 2014, the appellant was driving a motor vehicle along Bennelong Crescent, Macquarie in the Australian Capital Territory (ACT). The appellant was then involved in a motor vehicle accident, shortly after which ACT police and ambulance services attended the scene. The appellant was conveyed to Canberra Hospital with minor injuries, and was admitted to hospital at 1.20 pm.
At 1.45 pm, a sample of the appellant’s blood was taken pursuant to s 15AA of the Act. This sample was subsequently conveyed to the ACT Government Analytical Laboratory and analysed, which revealed the presence of methylamphetamine in the appellant’s system.
The appellant was charged by way of summons with an offence contrary to s 20 (1) of the Act , alleging that, as a first offender, on 15 March 2014, having been the driver of a motor vehicle on a road, she had, within the relevant period, a prescribed drug in her blood.
The proceedings before the Magistrate
The hearing proceeded by way of the tender of agreed facts, and certificates under ss 41 (1) (d) and 41AD of the Act were then tendered in support of the prosecution case. The appellant accepted that there was methylamphetamine in her blood at the relevant time, although maintained that, while she had consumed methylamphetamine in the past, she had not ingested any methylamphetamine for eight years. Whether the concession by the appellant that she had methylamphetamine in her blood was a wise forensic decision is not for me to say. This concession was effectively a concession that the result of the analysis of her blood was accurate and reliable. The concession deprived the appellant of any argument which may have been available to her to the effect that the result of the analysis must be incorrect.
Counsel for the appellant sought to rely on a defence under s 39 of the Criminal Code 2002 (ACT) (the Code), advancing two possibilities for the Magistrate to consider:
(a)the substance was in the appellant’s blood as she had inadvertently inhaled methylamphetamine smoke at a party she had attended two nights prior to the offence; or
(b)methylamphetamine had come into the appellant’s blood at some time and by some means of which she was unaware.
The proceedings before the Magistrate largely focused on the former possibility, however, the appellant’s case on appeal focused solely on the latter. In examination in chief in the Magistrates Court proceedings, the appellant was questioned about her previous contact with methylamphetamine:
So you agree that you have taken it before? - - -Yes.
You say it was eight years ago? - - - Yes.
How do you know specifically that it was eight years ago? - - - (Indistinct) second youngest daughter, she’s seven and yes, it was just before that that I’d stopped using and then I had her.
So in the last eight years, have you had any contact with the drug methylamphetamine in any way? - - - No, not to have it – yes, not having it, no.
So you haven’t had it personally - - - No.
The remainder of the appellant’s evidence then focused on a housewarming party she attended two nights prior to the accident on 15 March 2014. She gave evidence that, at this party, she had come into contact with guests who she observed to be smoking, what she speculated to be methylamphetamine from a glass pipe. Since any complaint about the Magistrate’s rejection of this evidence as founding a basis on which the drug was detected in the blood of the appellant was abandoned on the appeal, I will not set out the appellant’s evidence in relation to this event in any greater detail.
In cross-examination, the prosecutor confirmed that eight years ago was the last time the appellant had knowingly consumed methylamphetamine. He too focused on the timeline of events at the housewarming party, and confirmed that she had not consumed any illicit substances that night. The appellant was also questioned about her ingestion of any other illicit substances in the days prior to the offence:
In the days prior to [the housewarming party] or on that day or indeed afterwards before you were pulled over or before the accident occurred and you were taken to hospital, did you consume any other illicit substances? - - - No.
That issue was not pressed any further in cross-examination.
The Magistrate found that there was no evidence that anybody at the party was smoking methylamphetamine, and that there was no evidence before her of some other way that the appellant may have ingested the substance. The Magistrate then found that the defence under the provisions of s 39 of the Code was not made out.
The appeal
On 23 July 2015, the appeal came on for hearing before me. The appellant appealed on the ground that the Magistrate failed to apply the correct evidentiary burden in assessing the evidence before her and finding the appellant guilty of the offence. The parties did not seek to put any further evidence before the Court.
It is useful to first set out the sections that the appellant relied upon in the Magistrates Court proceedings below.
The statutory defence which the appellant relied upon in the Magistrates Court falls under Part 2.3 of the Code, which addresses circumstances where there is no criminal responsibility. The relevant provision is:
39Intervening 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 39 of the Code has not been subject to much consideration since it was first enacted and is mirrored on s 10.1 of the Criminal Code 1995 (Cth) (the Commonwealth Code). The Explanatory Memorandum to the Code provides the following guidance by referencing the Commonwealth Explanatory Memorandum on the equivalent provision:
The common law contains a defence of “external intervention” for strict and absolute responsibility offences. The defence is set out by Bray CJ in Mayer v Marchant (1973) 5 SASR 567:
“It is a defence to any criminal charge to show that the forbidden conduct occurred as the result of an act of a stranger, or as the result of non-human activity, over which the defendant had no control and against which he or she could not reasonably have been expected to guard.”
Although this looks like it might be a principle of causation, it operates in practice as a defence based on lack of fault to crimes of strict or absolute liability where a defendant can be proved to have committed the physical element of a strict liability offence. Despite the fact, for example, that the defendant’s truck exceeded the prescribed weight limit, it did so because a third person had secretly loaded it with additional items and the defendant could not reasonably have been expected to guard against this. The defence is not necessary for offences containing fault elements because the defendant will lack the fault element or, in the case of negligence, argue that she or he had taken reasonable care.
(emphasis added)
As counsel for the appellant accepted, the raising of the defence under s 39 shifted the evidential burden to the appellant: s 58 of the Code. I have extracted the relevant subsections from s 58 below:
58Evidential burden of proof – defence
...
(2)A defendant who wishes to deny criminal responsibility by relying on a provision of part 2.3 (Circumstances where there is no criminal responsibility) has an evidential burden in relation to the matter.
...
(6)The question of whether an evidential burden has been discharged is a question of law.
(7)In this Act:
evidential burden, in relation to a matter, means the burden of presenting or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
The appellant was charged with an offence contrary to s 20 (1) of the Act, which relevantly provided:
(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) [not applicable]; and
(b)has, within the relevant period, a prescribed drug in the persons’ oral fluid or blood.
(2)Strict liability applies to subsection (1).
Section 20 (1) was inserted into the Act by the Road Transport (Alcohol and Drugs) (Random Drug Testing) Act 2010 (ACT), and as such it is an offence to which the provisions of Chapter 2 of the Code applies: see ss 7 and 8 of the Code. Section 11 of the Code provides that an offence consists of physical and fault elements. For present purposes, I will restrict myself to identifying the physical elements of the offence created by s 20 (1).
A physical element of an offence may be –
(a)conduct;
(b)a result of conduct; or
(c)a circumstance in which conduct, or the result of conduct, occurs: see s 14 of the Code.
“Conduct” is defined to mean “an act, an omission to do an act or a state of affairs”:
s 13.
There are two physical elements of the offence created by s 20 (1):
(a)having a prescribed drug in the person’s oral fluid or blood within the relevant period; and
(b)having been the driver of a motor vehicle.
Both of these physical elements are conduct for the purposes of the Code, in that each is a “state of affairs”.
Although this point was not argued by the appellant before the Magistrate, or in the present appeal, I note that s 15 (4) of the Code provides that, where conduct required for an offence consists only of a state of affairs, the state of affairs is voluntary only if it is a state of affairs over which the person is capable of exercising control. As the matter was not argued before me, I express no opinion whether this provision may have applied to the appellant’s case as it was conducted in the Magistrates Court.
The appellant’s submissions
Counsel for the appellant relied on the appellant’s evidence that she had not knowingly ingested methylamphetamine or any other illicit drugs in the period leading up to 15 March 2014. He submitted that this raised a reasonable possibility that the appellant had ingested methylamphetamine through some unknown intervening act or event. This, the appellant submitted, was sufficient to satisfy the evidentiary burden under
s 58 and to raise the defence provided by s 39 of the Code.
Counsel also submitted that the appellant’s evidence led to the necessary inference that the drugs came into her system by means of some other person having done something or some event occurring which ultimately led to her consuming the drug unknowingly. The question posed on the appeal is, the appellant submitted, whether the evidence of the appellant that she had not consumed any illicit drugs in the period leading up to 15 March 2014 leads to that inference such that a defence under s 39 is raised, and is sufficient to discharge the evidentiary onus placed on the appellant with respect to s 58?
The respondent’s submissions
The respondent submitted that to sufficiently discharge the evidential burden the appellant needed to point to an actual intervening act or event, and that the appellant’s evidence that she did not consume the illicit substance does not go far enough for the purposes of s 39 of the Code.
Consideration
Evidential burden
The definition of evidential burden under s 58 of the Code states that the evidence adduced needs to point to a reasonable possibility that the matter exists or does not exist. The Commonwealth Code also has the same definition of evidential burden under s 13.3 (6). This definition was considered in detail in the High Court case of The Queen v Khazaal (2012) 246 CLR 601. The appellant in Khazaal was convicted of an offence contrary to s 101.5 (1) of the Commonwealth Code, namely that he “did make a document connected with assistance in a terrorist act knowing of that connection”. The document the subject of the charge was an electronic book compiled and edited by the appellant using material downloaded from the internet. The appellant then added a dedication and a foreword. The document included material apparently encouraging or inciting terrorist acts. The appellant did not give evidence at his trial, but evidence was led that he was an accredited journalist who contributed regularly to an Islamic affairs magazine. He also had a large library of materials relating to Islam, had a significant interest in the Islamic religion and had written benign articles about Islamic issues.
Section 101.5 (5) of the Commonwealth Code provided a defence to a charge under
s 101.5 (1), where “the document was not intended to facilitate preparation for the engagement of a person in, or assistance in a terrorist act”. Section 13.3 (2) of the Commonwealth Code imposes an evidential burden upon a defendant wishing to rely upon any “qualification or justification provided by the law creating an offence”. The term “evidential burden” is defined for the purposes of the Commonwealth Code in s 13.3 (6), which provides that:
In this Code:
evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
The trial judge declined to leave to the jury the defence under s 101.5 (5). On appeal, a majority of the NSW Court of Criminal Appeal (Hall and McCallum JJ, McClellan CJ at CL dissenting) held that the appellant had discharged the evidentiary onus, and that the defence should have been left to the jury.
The Crown appealed to the High Court. Concerning the defence available under s 101.5 (5), French CJ said at [12]:
A defendant bears the evidential burden, as defined, in relation to a defence under s 101.5(5). If that burden is discharged, the prosecution bears the legal burden of negativing the defence beyond reasonable doubt. 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 least capable 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 case may be like that of ships passing in the night. Importantly, as s 13.3(5) provides, the question whether an evidential burden has been discharged is one of law.
(citations omitted)
Later, at [19] – [20], French CJ, after discussing the approach of the majority in the Court of Criminal Appeal, said:
With respect to their Honours, the question for the trial judge was not whether the evidence relied upon was incapable of suggesting the reasonable possibility necessary to satisfy the evidential burden on the respondent. The question was whether the evidence was capable of supporting that possibility. The fact that the matters relied upon by the respondent were not inconsistent with the absence of an intention to facilitate assistance in a terrorist act did not mean that it was logically open to infer, from those matters, the absence of that intention. The evidence relied upon by the respondent did not suggest a reasonable possibility that the making of the document was not intended to facilitate assistance in a terrorist act.
The approach taken by McClellan CJ at CL was, with respect, the approach that should have been taken by the trial judge, albeit it yielded the same result. His Honour said:
“Whatever be the difficulties with [the trial judge’s] approach to the legislative provision I am satisfied that this evidence was insufficient to discharge the evidentiary burden which fell upon [the respondent]. To discharge that burden [the respondent] had to point to evidence that suggested a ‘reasonable possibility’ that the making of the particular document was not intended to facilitate assistance in a terrorist act. The evidence to which attention was drawn was entirely neutral in relation to that issue. Whether or not [the respondent] was a journalist who had researched and published in relation to Islam it was his intention in making the document which was the issue in the trial. On that issue, apart from the document itself, without [the respondent] giving evidence or there being other evidence from which his intention could be inferred the evidential burden could not be discharged. There was nothing to support a reasonable possibility that he did not have the relevant intention.
In a joint judgment, the plurality (Gummow, Crennan and Bell JJ) said that, in the absence of any evidence of the appellant’s intention in making the e-book, the evidence that the appellant was a journalist with an interest in Islam, and who had published articles about Islam, was incapable of raising or supporting an inference that his making of the e-book was a lawful activity not intended to facilitate a terrorist attack.
At the outset of the hearing of the charge before the Magistrate, counsel then appearing for the appellant (who was not counsel appearing on the appeal) made it clear that the appellant was relying on the “defence” provided by s 39 of the Code. A document titled “Agreed Facts” was then tendered, to the following effect:
(a)at approximately 12.30 pm on 15 March 2015 (semble 2014), the appellant was the driver of a motor vehicle on a road in the ACT;
(b)the vehicle driven by the appellant was involved in a motor vehicle accident;
(c)the appellant was conveyed by ambulance to the Canberra Hospital with minor injuries;
(d)a sample of the appellant’s blood was taken at the hospital pursuant to s 15AA of the Act;
(e)an analysis of the sample detected the presence of methylamphetamine.
A certificate under s 41AD of the Act was tendered in the Magistrates Court proceedings, confirming that methylamphetamine was detected in the appellant’s blood sample. The certificate does not quantify the amount or concentration of methylamphetamine in the sample of blood, but merely certifies that the substance was detected in the sample.
The appellant gave evidence in the Magistrates Court proceedings to the following effect:
(a)she had used methylamphetamine in the past, but she had not used it for the last eight years;
(b)she had been to a party two days before the alleged offence when she had “come across other people smoking it” and she had left the party; and
(c)she had concluded that what the two people were smoking was methylamphetamine because they were smoking through a glass pipe.
In cross-examination, the appellant gave evidence to the following effect:
(a)she had not used any illicit substances on the night of the party to which she had referred;
(b)she was aware that people smoke methylamphetamine through a glass pipe;
(c)she saw a couple of people smoking through a glass pipe in an enclosed area of the back of the house;
(d)she could not recall if she smelt anything when she came close to those people;
(e)she came to within three and a half metres of them;
(f)she was in the same room as them for about two or three minutes; and
(g)in the days prior to going to the party, and between the party and the alleged offence, she did not consume any illicit substances.
In submissions to the Magistrate, the appellant’s counsel said that two possibilities arose from the evidence given by the appellant: either the methylamphetamine entered her body by exposure to methylamphetamine smoke at the party, or it entered her body at some other point in time of which she was not aware by some means of which she was unaware. Counsel submitted that either scenario would “fall within s 39”. He further submitted that the evidence “has satisfied the evidential burden of proof within the meaning of s 58”. Counsel submitted that the Magistrate would have to reject the evidence of the appellant to convict her.
Counsel for the informant (the respondent to the present appeal) submitted to the Magistrate that the evidential burden had not been satisfied with respect to the suggestion that the methylamphetamine may have entered the appellant’s body by exposure to methylamphetamine smoke at the party. Counsel for the informant did not address the second leg of the submission made by the appellant, that
s 39 of the Code would operate to relieve her of liability on the basis that there was a possibility that the methylamphetamine came to be in her body “at some point in time which she is not aware of”.
The Magistrate commenced her reasons by saying that the difficulty for the appellant was that she could give “no explanation at all” as to how the methylamphetamine came to be in her body. She went on to say that there was no evidence that anyone at the party had been smoking methylamphetamine, nothing that the appellant herself was unsure of what was being smoked. The Magistrate then said that, if methylamphetamine was being smoked at the party, the appellant “lingered” too long, so that “the defence under s 39 of the Criminal Code is not made out”. The Magistrate concluded by saying, “I am not satisfied that the substance got into her system by her inhaling it at some party so I am satisfied beyond a reasonable doubt that she committed the offence”.
There are a number of important things that need to be said about how the Magistrate approached her task of determining whether she was satisfied of the appellant’s guilt. First, she did not address at all the second leg of the appellant’s submissions. Secondly, she did not make a clear finding as to whether the appellant had or had not satisfied the evidentiary burden placed upon her by s 39 of the Code. The fact that her Honour went on to say that she was not satisfied that the methylamphetamine came to be in the appellant’s body by her inhaling it at the party suggests that she accepted that the evidentiary burden was satisfied, as there would be no need to deal with the merits of the appellant’s submissions if the evidentiary burden was not satisfied. On the other hand, her Honour may have intended to convey a finding that the evidentiary burden had not been satisfied by that evidence. If the Magistrate had found that the evidentiary burden was met, then what followed from her Honour was a clear error. Where a defendant satisfies the evidentiary onus with respect to s 39, the onus then falls on the prosecution to establish beyond reasonable doubt that the section does not operate to relieve the defendant of criminal liability. In the present case, that would require the prosecution to prove that the physical element of the offence which was in issue (in this case a state of affairs) had not been brought about by someone else (or by a non-human act or event) over whom the appellant had no control, or that the appellant could reasonably have been expected to guard against the bringing about of the physical element. To say, as the Magistrate did, that she was “not satisfied that the substance got into [the appellant’s] system by inhaling it at some party” would be to reverse the onus cast on the prosecution if the appellant had satisfied the evidentiary onus under s 39; to say that “I am not satisfied that X occurred” is not the same as saying “I am satisfied that X did not occur”. If the appellant had satisfied the evidentiary burden, in order to convict the appellant, the Magistrate would have to be affirmatively satisfied that the methylamphetamine did not come to be in the appellant’s blood by the means suggested (assuming the provisions of s 39 were otherwise engaged).
The Magistrate also did not address the terms of s 39 in her reasons, assuming that she was satisfied that the evidentiary onus cast on the appellant was satisfied. Her Honour did not address the terms of s 58 in her reasons, so that it is impossible to know how she may have applied its provisions to the facts. Finally, the Magistrate did not make essential findings of fact about the evidence given by the appellant, such as whether she accepted the evidence of the appellant that she had not knowingly used methylamphetamine in the period of eight years prior to the alleged offence.
In order to properly determine the case before her, the Magistrate was obliged to do the following, accepting that there were agreed facts upon which she was being asked to act:
(a)determine what facts she accepted arising from the evidence of the appellant;
(b)determine, based upon the Agreed Facts and such facts as she found arising from the evidence of the appellant, whether she was satisfied that the appellant had satisfied the onus under s 39; and
(c)if she was satisfied that the appellant had satisfied the onus under s 39, determine whether the prosecution had proven beyond reasonable doubt that s 39 did not apply (the elements of the offence being otherwise conceded).
Unfortunately, the Magistrate did none of these things. Unless I can be satisfied that the evidence before the Magistrate could not enliven the operation of s 39 of the Code, the appeal will have to be allowed and the matter remitted to the Magistrates Court for rehearing.
For s 39 to operate, there must be evidence that suggests a reasonable possibility that the methylamphetamine came to be in the appellant’s body by an act of someone over whom the appellant had no control and in circumstances over which the appellant had no control and in circumstances where the appellant could not reasonably be expected to guard against the methylamphetamine coming into her body.
If the evidence of the appellant is accepted, the inevitable inference is that the methylamphetamine came to be in her body through the actions of a third party, or through some non-human act or event, and without her knowledge. It is not to the point that she cannot point to the person who, on her version of events, may have exposed her to methylamphetamine without her knowledge. If, for example, she consumed a drink which had been, without her knowledge, adulterated with methylamphetamine by a third party, thereby causing the methylamphetamine to be later detected in her blood, it could not reasonably be argued that the presence of the methylamphetamine in her body was not brought about by someone else over whom she had no control, albeit that she could not identify precisely who adulterated the drink. I see no reason why the evidentiary burden imposed by s 39 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.
It is contrary to general criminal law principles to punish acts or events (including circumstances) which are beyond the control of an accused person, and the provisions of s 39 are an acknowledgement of those principles, as demonstrated by that part of the Explanatory Memorandum to the Code quoted at [15] above.
Undoubtedly, the prosecution is placed in a difficult forensic position where, as here, an accused says that some unknown third party must have exposed them to a prescribed drug, thereby leading to it being detected in the blood of the accused in an analysis conducted pursuant to the Act. It may be suggested that the availability of a defence such as that provided for in s 39 of the Code will make it more difficult to prosecute this type of offence. There are a number of answers to this. First, the undoubted availability of the defence of honest and reasonable mistake has not led to a proliferation of acquittals for this type of offending. Secondly, where it is demonstrated by the evidence that an accused person was apparently intoxicated by the prescribed drug, this fact would be relevant in assessing their credibility that they did not know they were under the influence of a drug when deciding to drive a motor vehicle. Leaving aside these rare cases of intoxication to the level of depriving the accused of the ability to intend to drive, a person who is without their knowledge intoxicated by the acts of a third person would not be expected to drive a motor vehicle. An intoxicated person who has been intoxicated by the acts of a third person without their knowledge may still be expected to appreciate that they are intoxicated. Driving while knowingly intoxicated is, in my opinion, more consistent with the intoxication being voluntary rather than involuntary. As such, evidence of observations of an accused person by police or other witnesses is likely to be important. There was no such evidence placed before the Magistrate in the present case.
Expert testimony concerning the sensitivity of the testing, and the way in which the body may be expected to metabolise the particular prescribed substance may also be of assistance to the court in an appropriate case. The offence under s 20 (1) of the Act, unlike many offences concerning alcohol created by the Act, does not require the prosecution to establish a particular level of prescribed drug in the blood or oral fluid of a driver, which is undoubtedly the reason that the s 41AD certificate merely certified that methylamphetamine was detected in the appellant’s blood. The fact that samples are apparently not routinely analysed so as to determine a concentration of the drug means, however, that this information is not available. If it were available, expert evidence as to how the drug metabolises in the human body could well assist in gaining an understanding of how long the drug may have been present in an individual.
In my opinion, it cannot be said that the evidence before the Magistrate could not satisfy the evidential burden imposed by s 39 with respect to the second leg of the appellant’s case. In the light of the failure of the Magistrate to address this aspect of the appellant’s case, the appeal must be upheld.
Conclusion
The appeal is upheld and the conviction and penalty imposed by the Magistrate are set aside. The matter is remitted to the Magistrates Court for rehearing before a different Magistrate.
| I certify that the preceding fifty [50] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 10 December 2015 |
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Amendments
14 June 2016 Replace “Secondly, she did make a clear” with “Secondly, she did not make a clear” Paragraph: [40]
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