Firth v Kruger - [2021] NTSC 33

CITATION: Firth v Kruger [2021] NTSC 33

PARTIES: FIRTH, Justin Antony

v
KRUGER, Liam Andrew

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: APPEAL from LOCAL COURT exercising Territory jurisdiction

FILE NO: LCA 55 of 2019 (21938160)

DELIVERED ON: 31 March 2021

HEARING DATES: 23 and 30 March 2020

JUDGMENT OF: Grant CJ

CATCHWORDS:

CRIME – Appeal and review – Appeal from Local Court to Supreme Court – By prosecutor on a question of law alone

Charge of driving a motor vehicle with alcohol present in the breath while the holder of a provisional licence dismissed – Drager Alcotest result of 0.009 grams of alcohol in 210 litres of breath – Application of maxim de minimis non curat lex – Appeal allowed and dismissal of charge quashed.

Local Court (Criminal Procedure) Act 1928 (NT), s 163
Traffic Act 1987 (NT) s 20, s 24, s 51

Balchin v Anthony (2008) 22 NTLR 52, Berlyn v Brouskos (2002) 134 A Crim R 111, Harvey v Bofilios [2017] NTSC 68, McPherson v Racing Tribunal (WA) (1995) 79 A Crim R 256, Peach v Bird (2006) 159 A Crim R 416, Rigby v Benfell [2020] NTCA 9, Rigby v Taing (2015) 249 A Crim R 320, Williams v The Queen (1978) 140 CLR 591, referred to.

REPRESENTATION:

Counsel:
Appellant: T Grealy
Respondent: Self-represented

Solicitors:

Appellant:Office of the Director of Public Prosecutions
Respondent: Self-represented

Judgment category classification:          B
Judgment ID Number:  GRA2104
Number of pages:  8

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Firth v Kruger [2021] NTSC 33

LCA 55 of 2019 (21938160)
BETWEEN:
JUSTIN ANTONY FIRTH
Appellant

AND:
LIAM ANDREW KRUGER
Respondent

CORAM: GRANT CJ

REASONS FOR JUDGMENT

(Delivered 31 March 2021)

On 13 November 2019, the respondent pleaded guilty to two offences. The first offence was of driving a motor vehicle with alcohol present in the breath while the holder of a provisional licence, contrary to s 24 of the Traffic Act 1987 (NT). The second offence was of driving a motor vehicle without having “P” plates displayed so as to be clearly visible from both the front and rear of the vehicle, contrary to reg 14(2) of the Traffic Regulations 1999 (NT). The Local Court found the respondent guilty of the second offence but not guilty of the first offence. This appeal is brought from the dismissal of that charge.
Section 24 of the Traffic Act relevantly provides:
Some drivers to be zero alcohol
(1) This section applies to the following persons:
(a) …
(b) …
(c) the holder of a licence that is provisional under section 42 or section 10A of the Motor Vehicles Act 1949;
(d) …
(e) …
(2) The person must not drive a motor vehicle if the person's breath or blood contains alcohol.
Maximum penalty: For a first offence – 5 penalty units or imprisonment for 3 months.
For a second or subsequent offence –7.5 penalty units or imprisonment for 6 months.
The Local Court was necessarily satisfied on the evidence that the respondent was the holder of a provisional licence; that at the material time he was driving a vehicle along Rapid Creek Road; and that he submitted to a breath test and returned a result of 0.009 grams of alcohol in 210 litres of breath. The respondent also conceded that he had consumed a quantity of alcohol prior to driving. Despite the respondent’s indication that he wished to plead guilty to both charges, the Local Court found that the offence charged in count 1 was not proven. The Local Court’s essential reasoning in finding the respondent not guilty of the charge was:
(a)a standard drink of alcohol in a healthy individual with a normally functioning liver will give rise to a blood alcohol reading of 0.02 %, which will be metabolised and so reduced to close enough to zero blood alcohol content in one hour;
(b)on that analysis, a reading of 0.009 % was equivalent to 5/11, or less than one-half, of one standard drink;
(c)the mischief to which the drink-driving prohibitions in the Traffic Act are directed is people driving motor vehicles when they are incapacitated to drive as a result of the consumption of alcohol;
(d)the respondent’s blood alcohol content of 0.009 % was so low as to be incapable of having any practical impact upon his capacity to drive a motor vehicle; and
(e)as the law does not concern itself with trifles, the prosecution had failed to make out all necessary elements of the offence.
This appeal is brought pursuant to s 163(3) of the Local Court (Criminal Procedure) Act1928 (NT), which creates an avenue of appeal from an order or adjudication of the Local Court dismissing a complaint. The right of appeal is limited to “an error or mistake on the part of the Local Court on a matter or question of law alone or a matter or question of both fact and law”.[1] The allowance of an appeal against the dismissal of a complaint is an exceptional discretionary power, to be exercised in only the clearest and most compelling circumstances for the purpose of correcting manifest error.[2] That restraint is most stringently applied where the ground of appeal asserts a wrong finding of fact or inference, particularly where the dismissal is based upon a reasonable doubt arising from conflicting testimony or an impression gained from an observation of a witness.[3] This is not such a case. There was no factual dispute requiring resolution. The analysis undertaken by the Local Court was clearly wrong as a matter of law, and the dismissal of the charge is properly set aside.
First, all necessary elements of the offence were established on the evidence. They were: (a) that the respondent was the holder of a provisional licence; (b) that at the material time the respondent was driving a motor vehicle; and (c) that the respondent’s breath contained alcohol in the amount of 0.009 grams of alcohol per 210 litres of breath. It was not an element of the offence that the respondent’s capacity to drive was impaired by alcohol. Moreover, the legislation provides expressly that it is unnecessary to show that a person’s ability to drive a motor vehicle is impaired in order to establish an offence of driving with alcohol in the breath or blood.[4]
Secondly, offences of driving with a prohibited blood alcohol content, including the offence created by s 24 of the Traffic Act, are regulatory offences[5] which, for reasons of public policy and community protection, are not governed by the ordinary principles of criminal responsibility under Part II of the Criminal Code.[6] Just as the respondent’s subjective belief concerning his fitness to drive was irrelevant to the commission of the offence, so too was any belief in that respect which might have been harboured by the Local Court.
Thirdly, the language of the section does not give rise to any ambiguity, and does not permit more than one potential meaning. Accordingly, it was unnecessary to have recourse to extrinsic materials or conduct any enquiry into legislative purpose in order to determine whether the prosecution had satisfied each of the elements of the offence. Even if such an enquiry had been permitted or required, the second reading speech dealing with the offence as originally enacted provided that the zero alcohol requirement served a number of road safety purposes, including to “separate new drivers from drinking”, to “reduce the risk of alcohol compounding the problems of inexperience”, and to “encourage new drivers … to develop a habit of not driving after drinking and to arrange their social activities accordingly”.[7] Once it had been established that there was alcohol in the respondent’s breath, the legislative purpose and intention was not concerned with the practical impact on the respondent’s capacity to drive a motor vehicle at that time.
Fourthly, the maxim de minimis non curat lex is a principle which may assist in determining whether a qualitative standard has been met or breached. So, for example, it may be applied in determining whether a buyer might rightfully reject goods supplied under a contract, or whether a plaintiff has suffered some recoverable loss, or whether wrongful conduct has materially contributed to injury. The principle is also sometimes applied in Australian, American and Canadian drug law to require the possession of a usable quantity of a dangerous drug where the legislation creates the offence without adverting to quantity.[8] However, the maxim is not a freestanding legal rule, and cannot be deployed to displace the operation and plain meaning of the words of a statutory instrument. That is particularly so where the legislation adopts a quantitative standard such as “zero alcohol”. While the relatively low level of alcohol present in the respondent’s breath on this occasion may have been relevant to the question of penalty, it could not absolve him from criminal responsibility.
Finally, during the course of its reasons the Local Court engaged in some rhetorical discussion concerning the capacity of devices to measure low levels of alcohol in the human system, and the point at which such devices are no longer sensitive enough to detect alcohol. It is unclear from the reasons what part, if any, this consideration played in the decision to dismiss the complaint. What can be said in that respect is that the Drager Alcotest 7110, which was used to conduct the test in this case, is a prescribed breath analysis instrument;[9] that the instrument is capable of producing a reading to three decimal places and did so in this case; and that there was no evidence before the Local Court to sustain a finding that the reading in this case was defective or the level of alcohol in the breath too low to permit accurate or meaningful measurement.
This is not a case in which there is any call for the exercise of the residual discretion to dismiss the appeal in the interests of justice notwithstanding the finding of error on the part of the Local Court. It is also not a case in which the Supreme Court should itself enter a conviction and proceed to sentence. The appropriate course is to quash the adjudication of the Local Court finding the respondent not guilty of the charge brought in count 1 on the complaint taken on 30 October 2019, and effectively dismissing that charge on complaint. That leaves the charge on foot. It is then a matter for the prosecution whether, having established the point of principle through the medium of this appeal, it wishes to proceed with the charge in the circumstances; and a matter for the Local Court to determine the questions of guilt and penalty in the event that the prosecution does proceed.
Accordingly, I make the following orders:
1.The appeal is allowed.
2.The adjudication of the Local Court made on 13 November 2019 to dismiss count 1 on the complaint taken on 30 October 2019 is quashed.

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[1] Local Court (Criminal Procedure) Act, s 163(5); Peach v Bird [2006] NTSC 14; 159 A Crim R 416 at [7]-[11]; Rigby v Taing [2015] NTSC 16; 249 A Crim R 320; Balchin v Anthony [2008] NTSC 2; 22 NTLR 52 at [17].

[2] Peach v Bird [2006] NTSC 14; 159 A Crim R 416 at [12].

[3] Berlyn v Brouskos [2002] VSC 377; 134 A Crim R 111 at [30], [33]; Harvey v Bofilios [2017] NTSC 68 at [28].

[4] Traffic Act, s 20.

[5] Traffic Act, s 51.

[6] Rigby v Benfell [2020] NTCA 9 at [26].

[7] Northern Territory, Parliamentary Debates, Legislative Assembly, 29 April 1987, 88 (Frederick Finch, Minister for Transport and Works). Part V of the Traffic Act dealing with blood alcohol content testing offences and penalties was rewritten by the Transport Legislation (Drug Driving) Amendment Act 2007. However, the new Part simply recreated the drink-driving provisions in the existing legislation, and the original legislative purpose remained unchanged. Although police initially worked to a 0.02 % blood alcohol content limit following the commencement of the legislation in 1987, which was said to be to address transitional and "misplaced" concerns about the effect of cough mixtures and other medicines, there was no evidence or suggestion in either the Local Court or in this appeal that the initial or transitional practice was maintained.

[8] Williams v The Queen (1978) 140 CLR 591 at 600, 602; cf McPherson v Racing Tribunal (WA) (1995) 79 A Crim R 256 at 260.

[9] Traffic Regulations 1999 (NT), reg 56.