Daniel Murphy v Karlene Helmling
[2022] ACTMC 1
•28 January 2022
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Daniel MURPHY v Karlene HELMLING |
Citation: | [2022] ACTMC 1 |
Hearing Date: | 29 October 2021 |
Last Submissions: | 14 January 2022 |
DecisionDate: | 28 January 2022 |
Before: | Magistrate Theakston |
Decision: | 1. The defendant has a case to answer; and 2. The charge should not be dismissed due to any failure to comply with a testing provision |
Catchwords: | CRIMINAL LAW – DRIVING OFFENCES – Driving with a prescribed drug in oral fluid – presence of prescribed drug – de minimis non curat lex – noncompliance with a testing provision |
Legislation Cited: | Criminal Code 2002, s 39 Evidence Act 2011, s 144 Human Rights Act 2004, ss 18, 22, 30 Legislation Act 2001, s 142 Road Transport (Alcohol and Drugs) Act 1977, ss 13G, 13H, 20, 41AB, 42AA |
Cases Cited: | Beattie v Potts [2015] ACTSC 350 Brown v Director General of the Justice and Community Safety Directorate [2021] ACTSC 320 DPP v Elskaf [2012] NSWSC 21 Momcilovic v R [2011] HCA 34; (2011) 245 CLR 1 Project Blue Sky v ABA [1998] HCA 28; 194 CLR 355 Williams v R [1978] HCA 49; (1978) 140 CLR 591 |
Texts: | Toni Makkal, Drug Use Monitoring in Australia (DUMA): Drug Detection Testing, (Australian Institute of Criminology Research and Public Policy Series Part No 25, March 2000) Australian Standards. (2019) Procedure for the specimen collection and the detection and quantification of drugs in oral fluid (AS/NZ 4760:2019) |
Parties: | Daniel Murphy (Informant) Karlene Helmling (Defendant) |
Representation: | Counsel A Brown (Informant) S Whybrow (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Informant) David Healey Solicitors (Defendant) | |
File Number: | CC 7202 of 2019 |
MAGISTRATE THEAKSTON:
Introduction
Since late 2010, the offence of drug driving has existed in the Australian Capital Territory. The offence proscribes the presence of a prescribed drug in a driver’s oral fluid (or blood). Methylamphetamine is such a drug.
At hearing, the defendant made a no case to answer submission and claimed the concentration was so low that, as a matter of common sense and as the Legislative Assembly intended the expression to mean, she did not have the presence of the prescribed drug in her oral fluid.
The defendant also claimed there was a failure to comply with two testing provisions. Therefore, the Court must dismiss the charge.
Ultimately, I disagree with those submissions and find the defendant has a case to answer and the charge should not be dismissed due to any failure to comply with a testing provision. These are my reasons.
Background
The defendant is charged with having a prescribed drug in her oral fluid, contrary to the Road Transport (Alcohol and Drugs) Act 1977, s 20. She pleaded not guilty.
The uncontested facts are that on ANZAC Day 2019, the defendant was driving on a road in Kambah when police stopped her vehicle. She was subject to a roadside drug screening test. This produced a positive result. She was taken to Tuggeranong Police Station for the purpose of collecting a sample of her oral fluid. That procedure was completed within one hour of the defendant being stopped. The sample was later processed by the ACT Government Analytical Laboratory. The laboratory reported that methylamphetamine was detected within the sample.
As a matter of practice, the laboratory reports detection of methylamphetamine in samples of oral fluid when the concentration in the sample, as provided to them, is equal to or exceeds 4 ng/ml. It does not report the concentration level.
The questions to be determined in this matter are:
(a) Is the offence established by proving the existence of any concentration of methylamphetamine, no matter how minute?
(b) If there is a limit, has the prosecution established a case to answer?
(c) Was there a failure to comply with a testing provision of the Act?
(d) If there was such a failure, should the charge be dismissed?
Is the offence established by proving the existence of any concentration of methylamphetamine, no matter how minute?
The defence submissions relating to this question focused on the decision of Williams v R [1978] HCA 49; (1978) 140 CLR 591 and the legal maxim de minimis non curat lex. In Williams, the High Court ruled that a microscopic amount of cannabis in a pocket did not constitute possession of that substance under the relevant offence provision. The de minimis maxim translates to ‘the law is not concerned with trifles’. Ultimately, I am of the view that the question is better approached by determining the proper construction of the offence provision. That is, what the Legislative Assembly should be taken to have meant when it used the words ‘prescribed drug in the person’s oral fluid’.
The offence provision provides relevantly:
20 Prescribed drug in oral fluid or blood––driver or driver trainer
(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.
Maximum penalty:
(a) for an offence by a first offender––10 penalty units; and
(b) for an offence by a repeat offender––
(i) if the offender is the driver—25 penalty units, imprisonment for 3 months or both; and
(ii) if the offender is the driver trainer—20 penalty units.
(2) Strict liability applies to subsection (1).
…
(5) In a proceeding for an offence against subsection (1), evidence may be given that a person has a prescribed drug in the person’s oral fluid or blood based on—
(a) for proof of the presence of a prescribed drug in the person’s oral fluid—an analysis of a part of a sample of the person’s oral fluid under section 13G (Oral fluid—confirmatory analysis) that indicates that a prescribed drug is present in the sample; or
... [Emphasis added]
This provision requires the drug to be in the driver’s oral fluid and provides that this may be established if the analysis indicates the drug was present in the sample. On its face, it does not describe a quantifiable threshold or require the driver to experience a consequential biological or behavioural effect. The prosecution submitted that any presence would be sufficient. The defendant submitted that the concentration must be at or above the threshold defined within a particular Australian Standard.
The interpretation of Territory legislation is guided by the key factors of language, context and purpose, human rights and legality: see Legislation Act 2001, Chapter 14; Project Blue Sky v ABA [1998] HCA 28; 194 CLR 355 at [69] – [71]; Human Rights Act 2004, s 30; and Momcilovic v R [2011] HCA 34; (2011) 245 CLR 1 at [43].
The context and purpose of the Act involves the promotion of road safety, by the sanctioning of certain drivers who have consumed alcohol or illicit drugs. It anticipates modern testing methods and laboratory analysis being used to measure the existence or concentrations of substances in a person’s breath, oral fluid or blood. For the most part, the offences require facts to be established that would only be perceivable using laboratory equipment and methods. In that way, the circumstance is very different to that considered in Williams. In Williams, the substance was cannabis, ordinarily visible to the naked eye. There, the term ‘possession’ was held to involve ordinary perception of the substance and not an examination by scientific means.
I take judicial notice that it is possible for prescribed drugs to be present within a driver’s oral fluid at very small quantities down to as low as a single molecule. Further, modern laboratory analysis is sensitive and can detect very small quantities of prescribed drugs. Something similar was observed by Murphy J in Williams at [7]:
… it is well-known that sea water, even a few drops, contains extremely minute quantities of gold and other elements detectable by sophisticated analytical techniques which have been available for decades. Inevitably a swimsuit immersed in the sea will contain gold. It would be foolish to charge a swimmer who is aware of this with possession of gold. Radioactive material from atmospheric nuclear tests is so dispersed over the surface of the earth that every person's body contains minute quantities. It would be foolish to suggest that a person who knew he had articles containing products of the dispersion is in breach of a statute which prohibits possession of radioactive material.
The Act does not expressly declare the purpose and context of the Act or the offence provision. Notwithstanding reservations expressed about the assistance that presentation speeches may provide, see for example Brown v Director General of the Justice and Community Safety Directorate [2021] ACTSC 320 at [106], those speeches remain legitimate contextual tools: Legislation Act 2001, s 142. In 2010, the drug driving offence was inserted into the Act following a private member’s bill sponsored by Mr Jeremy Hanson MLA. On 9 December 2009 and during his initial presentation speech in the Legislative Assembly, Mr Hanson stated:
This bill only allows for the detection of the active presence of a drug, rather than measure a certain concentration. In other words, the testing procedure does not allow us to test for sobriety in the same way that we would for alcohol. I stress, though, that the testing, as it is conducted in other jurisdictions, only tests for active presence of a drug in the blood system insofar as it impairs driving. In other words, the test is not designed to detect the residual presence of a drug that may have been consumed in the days or weeks leading up to the test, but rather, immediately prior to the person driving. So this is not about catching drug users;
On 5 May 2010 and during the debate of the Bill, Mr Hanson stated:
The reason that we prescribe a level is because Victoria’s model is a drug and alcohol Bill. Obviously, alcohol is a legal substance and there is a prescribed limit, and we know that that is .05. But for illicit drugs the quantity is zero. That language that I have used is the exact same language from the Victorian bill, and I will read now from the Victorian legislation, which Jon Stanhope supported in February and said his own scheme was based on but which he is now criticising. The Victorian legislation states: … “prescribed concentration of drugs means, in the case of a prescribed illicit drug, any concentration of the drug present in the blood or oral fluid of that person”.
On 30 June 2010, when debating a proposed amendment that would change the offence from one involving the exceeding of a concentration (but where the concentration was set at zero for illicit drugs) to a straightforward prohibition of the presence of the drug, Mr Hanson made the following observations about the amendment:
It makes sure that there can be absolutely no confusion about what we are talking about here, which is that for a prescribed drug, any presence of a prescribed drug in your system is the offence rather than trying to determine a safe or unsafe concentration, which has proved problematic.
There had been earlier debate about the lack of research reconciling levels of drug concentration with degrees of driving impairment.
It is apparent that, while there were some important amendments to the Bill, the context and purpose of the provision remained the same. That is, to create an offence when a driver has an active presence of a prescribed drug in his or her oral fluid (or blood), but where tests are not so sensitive to detect the residual presence of a drug that may have been consumed in the days or weeks leading up to the test and which did not otherwise rely upon exceeding a defined concentration.
Section 30 of the Human Rights Act 2004, requires, as far as it is possible, Territory law to be interpreted in a way compatible with the rights described within that Act. Those rights include the presumption of innocence and the right to liberty and security of person: ss 18 and 22.
Additionally, the principle of legality presumes that the Legislative Assembly does not intend to depart from fundamental common law principles, except by clear and unequivocal language. The de minimis principle, described above, is one such principle. That principle provides that the law does not concern itself with trifles. That is, things of little value or importance. A minute amount of a prescribed drug in a driver’s oral fluid, being at an amount demonstrably of no biological or behavioural significance for the purpose of road safety, would in this case be of little value or importance. The language of the offence provision does not, by clear and unequivocal language, demonstrate that the Legislative Assembly intended to interfere with that common law right and freedom.
To my mind, it is an unavoidable conclusion that the offence provision contemplates an amount of a prescribed drug in a driver’s oral fluid somewhere above the lowest possible level before the offence is established. It is then necessary to describe a consequential threshold while honouring the requirement that the concentration need not be above any particular quantifiable level or at a level demonstrating a degree of impairment. That threshold could be described as the presence of a prescribed drug at a level that was not demonstrably trifling. Here, trifling would be where the level was of no significance for the purpose of road safety.
If there is a limit, has the prosecution established a case to answer?
In this matter, there has been no challenge to the evidence from Federal Agent Murphy that the defendant was driving a motor vehicle on a road on the day in question and, within the relevant period, provided a sample of her oral fluid for the purpose of analysis. The remaining element, involving methylamphetamine in the defendant’s oral fluid, is in issue, (including a possible future assertion that there had been intervening conduct or event: see Criminal Code 2002, s 39 and Beattie v Potts [2015] ACTSC 350).
In evidence there is a certificate issued in accordance with s 41AB of the Act indicating that an approved analyst arranged for the above sample to be analysed at an approved laboratory and methylamphetamine was accurately detected within that sample. Pursuant to s 20(5)(a) of the Act, that indication is evidence that the prescribed drug was in the defendant’s oral fluid. During cross examination, the analyst conceded that the indication in the certificate that methylamphetamine was detected, meant that it was detected at or above the concentration of 4 ng/ml. The analyst did not report what concentration of the drug was actually detected.
While I can take judicial notice that 4 ng is a small measure of mass, being four one-billionths of a gram, there was no evidence before me about the significance, or otherwise, of having methylamphetamine in a driver’s body at a concentration of 4 ng per millilitre of oral fluid.
The analyst also explained that there was a possibility that the sample provided to the laboratory was already diluted by a buffer solution as part of the sampling device. However, he was uncertain about the details and was unable to quantify by what factor, if any, the sample may have been diluted.
The analyst conceded during cross examination, that there was an Australian Standard that may require a higher concentration of the drug before it could be reported that the drug was present. He was not aware of the precise figure but agreed that if the figure was higher than the 4 ng/ml concentration required by his laboratory, then it was possible that another laboratory, when analysing the defendant’s sample and applying the alternative standard, may have returned a negative result for methylamphetamine.
The Australian Standard was not admitted into evidence, but I note that the Evidence Act 2011, s 144 provides that proof is not required about such information, where it is not reasonably open to question the existence and content of the standard and it is capable of verification by reference to a document the authority of which cannot reasonably be questioned, and where the prosecution has had the opportunity to make submission, and to refer to relevant information relating to the acquiring or taking into account of that standard. The standard is the Australian/New Zealand Standard, Procedure for the specimen collection and the detection and quantification of drugs in oral fluid, AS/NZ 4760:2019. That standard sets the confirmatory test cut-off concentration for methylamphetamine in oral fluid as obtained from the donor at 25 ng/ml.
The core of the defendant’s submission was that the above standard must be applied before there can be a finding that methylamphetamine was in her oral fluid. I do not accept that submission. While such a standard may very well be a benchmark for determining when laboratory results may be reliably reported as physically detecting the drug, and the standard could potentially also take into account considerations relevant to the legal threshold described above at [22], the standard is not binding on the Court and therefore does not dictate when a Court should make the associated finding. That is because Courts’ findings are made based upon admitted facts and evidence before them, along with the application of relevant principles and considerations. Such findings should not simply echo conclusions reached elsewhere, particularly in unknown circumstances.
While there was an attempt to produce evidence that justified the laboratory’s 4 ng/ml threshold, it did not provide much illumination. Similarly, the above standard was referred to without any helpful explanation about how the 25 ng/ml cut-off was arrived at. For example, it is unclear whether either were arrived at after the careful and quantifiable application of the mixed considerations recommended in the Australian Institute of Criminology Research and Public Policy Series Part No 25 – Drug Use Monitoring in Australia Drug Detection Testing paper the defendant referred to during submissions, namely:
(a) the level should enable the detection of recent, casual use;
(b) the level should be high enough to rule out analytical noise;
(c) the level of confirmations should be lower than the screening level so as to minimize the number of unconfirmed presumptive positive tests; and
(d) the level should be high enough to eliminate positive results from inadvertent exposure to the drug.
Accordingly, I am left with two competing thresholds, with no basis to conclude that either is too low to be reliable for the physical detection of the drug, or at a level to be demonstrably trifling. I am left with the prima facie evidence, facilitated by the above certificate, that the prescribed drug was in the defendant’s oral fluid.
Therefore, noting the onus of proof on the prosecution, applying the standard of proof beyond reasonable doubt and taking the prosecution case at its highest, I find as a matter of law that there is evidence, which if accepted would prove every element of the offence and therefore the defendant could be lawfully convicted of the offence charged: DPP v Elskaf [2012] NSWSC 21 at [47]. Consequently, I find the defendant has a case to answer.
Out of completeness, I note that I am yet to hear the defendant’s case, determine what evidence I would accept and, therefore, whether or not the offence is proved.
Was there a failure to comply with a testing provision of the Act?
The Act stipulates numerous procedures for the purpose of screening and testing for alcohol and prescribed drugs. Of relevance here, s 13G provides the following in relation to an oral fluid sample received by an analyst for testing:
(4) An analyst responsible for testing the sample must take reasonable care to ensure that a part of the sample (the preserved part) sufficient for analysis to be carried out for the person who gave the sample (the tested person) is protected and preserved until—
(a) if a request is made under subsection (6)—the preserved part is sent to the laboratory nominated by the tested person; or
(b) in any other case—
(i) 1 year has passed since the sample was taken from the tested person; or
(ii) if a request is made by the DPP under section 16C (Keeping of samples—request by DPP)—the end of the proceeding to which the sample relates.
(5) However, subsection (4) does not apply if the amount of sample remaining after analysis under subsection (3) is insufficient for further analysis.
At s 13H the Act also requires:
Oral fluid analysis statement
(1) As soon as practicable after an analysis of a sample of a person's oral fluid is carried out under section 13G, the chief police officer must ensure the person is given a written statement that includes the following information:
(a) the date and the time the oral fluid sample was taken;
(b) the unique identifying number on the tamper-evident seal;
(c) the result of the analysis;
(d) the address where the preserved part of the oral fluid sample is being held;
(e) that the person will be notified, in writing, of a request (if any) by the DPP under section 16C (Keeping of samples—request by DPP);
…
The Act at s 42AA then provides a protection for non-compliance with certain procedural provisions:
Effect of noncompliance—analysis of oral fluid
(1) This section applies if the court hearing a charge for an offence against this Act arising out of the carrying out of an oral fluid analysis is not satisfied that there has been compliance with every provision (a testing provision) of this Act relating to the carrying out of the analysis.
…
(2) The court must dismiss the charge unless satisfied that despite the failure to comply with a testing provision the result obtained in the oral fluid analysis would have indicated the presence of a prescribed drug.
The defendant submitted that the analyst’s evidence suggested that the laboratory was not aware of a requirement to preserve part of a sample and, in those circumstances, the Court could not be satisfied that there had been compliance with s 13G(4). However, the evidence relied upon for that submission related to samples of blood and not oral fluid. Further, the analyst later demonstrated awareness that the defendant had the option to have the sample of oral fluid, which had already been analysed, sent away to another laboratory for further analysis. That is consistent with the requirements at s 13G(4). In those circumstances, I am satisfied there was compliance with that provision.
In relation to s 13H, there was simply no evidence about whether a written statement, as contemplated by that provision, had been provided to the defendant. Accordingly, there is no basis for me to be satisfied that there had been compliance with that requirement.
The prosecution argued that s 13H was not ‘a testing provision’ as defined at s 42AA of the Act. They suggested a narrow interpretation, where the expression was limited to provisions directly relating to the actual testing of the sample. I take a different view. The Act prescribes a range of requirements that, when read together, serve the purposes of producing reliable and fair testing of samples. Some of those requirements go to facilitating a driver arranging independent testing. Those requirements are part of the overall scheme and provide an important safeguard. They are also arguably directly related to the carrying out of analysis. Accordingly, I am of the view that the requirement to provide the written statement, in accordance with s 13H, is a testing provision for the purpose of s 42AA.
If there was such a failure, should the charge be dismissed?
As described above, the procedures required by the Act go to serving the fundamental principles of reliability and fairness. Subsection 42AA(2) allows a charge to proceed, notwithstanding noncompliance with a procedural requirement, if the Court is satisfied the result was in any event reliable.
The analyst described how the analysis process had initially gone through a peer reviewed validation accreditation that, amongst other things, addressed the risk of false positive results. Further, the sample was split in two, with each analysed separately. I also note that the provision of the written statement, went to facilitating the opportunity for the defendant to have the remaining part of the sample tested independently, and not directly to the result produced by the analysis conducted by the approved analyst.
Therefore, despite not being satisfied that the written statement was provided to the defendant, I am satisfied that the analysis would have indicated the presence of a prescribed drug.
Accordingly, the charge should not be dismissed due to concerns about failure to comply with a testing provision of the Act.
Orders
The Court makes the following orders:
(a) The defendant has a case to answer, and
(b) The charge should not be dismissed due to any failure to comply with a testing provision.
| I certify that the preceding forty-four [44] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Magistrate Theakston Associate: Linda Cao Date: 28 January 2022 |
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