Daniel Murphy v Karlene Helmling - [2022] ACTMC 1

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Daniel Murphy v Karlene Helmling

Details

AGLC: Daniel Murphy v Karlene Helmling [2022] ACTMC 1
Case: [2022] ACTMC 1
Decision Date: 28 January 2022

CaseChat Overview and Summary

In the case of Daniel Murphy v Karlene Helmling, the defendant was charged with driving with a prescribed drug in his oral fluid. The matter was heard in the Magistrates' Court of Victoria. The defendant contested the charge on the basis that the presence of the prescribed drug, which was detected through an oral fluid test, was so negligible that it did not warrant a conviction. The court had to determine whether the defendant had a case to answer regarding the charge of driving with a prescribed drug in his oral fluid, and whether noncompliance with a testing provision should result in the charge being dismissed.

The court considered whether the presence of a prescribed drug in the defendant's oral fluid was significant enough to constitute a contravention of the relevant legislation. The issue also involved whether the doctrine of de minimis non curat lex, which suggests that the law does not concern itself with insignificant matters, applied in this context. Additionally, the court examined whether the failure to comply with a testing provision should lead to the charge being dismissed, as per the provisions of the Road Safety Act 1986 (Vic).

The court concluded that the defendant had a case to answer as the presence of the prescribed drug in his oral fluid was not so negligible as to fall under the de minimis principle. The court found that the amount of the drug detected was sufficient to impair the defendant's ability to drive safely. The court also determined that the failure to comply with a testing provision did not necessitate the dismissal of the charge. Consequently, the court ruled that the defendant had a case to answer and that the charge should not be dismissed due to any failure to comply with a testing provision.

Orders

Orders of the court

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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