Jordan v Davies

[1991] TASSC 140

Serial No B26/1991
List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Jordan v Davies [1991] TASSC 140; B26/1991

PARTIES:  JORDAN, Mandy Lee
  v
  DAVIES, Clive

FILE NO/S:  CLA 27/1991
DELIVERED ON:  31 May 1991
JUDGMENT OF:  Wright J

Judgment Number:  B26/1991
Number of paragraphs:  22

Serial No B26/1991
List "B"
File No LCA 27/1991

MANDY LEE JORDAN v CLIVE DAVIES

REASONS FOR JUDGMENT  WRIGHT J

31 May 1991

1. On 19 March 1991, the applicant was convicted in the Court of Petty Sessions at Hobart upon a complaint alleging that on 18 April 1990, on Murray Street, a public street at Hobart in Tasmania, she drove a vehicle whilst under the influence of a drug to such an extent as to be incapable of having proper control of the vehicle, contrary to s4(b) of the Road Safety (Alcohol & Drugs) Act 1970. The applicant was fined the sum of $150 and ordered to pay costs and she was disqualified from holding or obtaining a driver's licence for a period of nine months. She now moves this Court to review her conviction and sentence upon the following grounds:

1(Abandoned).

2The learned magistrate erred in fact and in law when he was satisfied beyond reasonable doubt that the charge had been proved.

3The learned magistrate erred in fact and in law in being satisfied beyond reasonable doubt that the charge had been proved when a reasonable hypothesis consistent with innocence was open on the evidence.

4The learned magistrate erred in fact and in law by paying insufficient weight to the evidence of Dr DL Weidmann.

5(Abandoned).

6The finding that the applicant was under the influence of a drug to such an extent as to be incapable of having proper control of the vehicle was against the weight of the evidence.

7(Abandoned).

8The learned magistrate erred in fact and in law by imposing a sentence which was manifestly excessive in all the circumstances.

1. During the prosecution case in the Court of Petty Sessions, evidence was called from a number of witnesses. Mrs Suzanne Fay Paterson said that on Wednesday 18 April 1990, she was employed as a support worker at Caroline House. On that day she saw the applicant who appeared very agitated during the course of the afternoon. Her co-ordination was very bad and she was falling and stumbling everywhere. Mrs Paterson said that she had known the applicant for approximately two years and this behaviour was abnormal for her. She was not normally unco-ordinated, forgetful or prone to stumbling. The applicant told her that she intended to drive her motor vehicle and Mrs Paterson advised her not to do so and further informed her that if she did, she would call the police as she was a danger to herself and she could have an accident. Mrs Paterson said that the applicant had been in this state "off and on for a couple of days". Early in the afternoon at about 2 or 2.30pm, one of the workers from Caroline House took the applicant to her doctor and when she returned the applicant informed Mrs Paterson that her doctor had changed her medication and also said that he did not want her to drive. It was part of Mrs Paterson's duty to dispense medication to residents at Caroline House and on 18 March 1990 between approximately 12 noon and 1.pm, she had issued medication to the applicant.

1. Under cross–examination Mrs Paterson agreed that she had taken the applicant to the Royal Hobart Hospital on 9 April 1990 suffering from spasms or tremors. She also recalled that a doctor was called to Caroline House on 13 and 14 April because the applicant was experiencing similar symptoms. She agreed that on the date of the alleged offence, the applicant appeared light headed, complained about her vision and also complained of sensitivity to sound.

1. 1/C Constable Andrew David Sice also gave evidence. He was on duty in Liverpool Street at 5.30pm on Wednesday 18 April 1990 and intercepted a motor vehicle driven by the applicant. He said:

"I observed that she had a vacant, dazed expression on her face and she appeared to be confused. When speaking to her I noticed that her speech was slurred and incoherent and I also noticed a faint smell of alcohol on her breath. I subsequently gave the defendant a breath test which returned a reading .055. I asked the defendant to step out of the vehicle which she did and I noticed that she was unsteady on her feet and her balance was impaired. The defendant informed me that she had been taking prescription drugs. I formed the opinion that the defendant was driving under the influence and arrested her."

1. The appellant was taken to the Hobart Breath Analysis Section and a breath analysis showed a blood alcohol concentration of only .018%. She was then informed that 1/C Constable Sice believed that her condition was not the result of alcohol and he required her to have a medical examination at the Royal Hobart Hospital. In cross–examination 1/C Constable Sice agreed that the applicant was pale and confused and that he did not observe any tremor or muscle spasm.

1. The breathalyser operator, 1/C Constable Michael Berry gave evidence that he saw the applicant at 5.55pm on Wednesday 18 April 1990 at the Hobart Breath Analysis Section. He asked her if she was taking any medication and she said she had taken Meloral tablets within the past 24 hours for major depression. She also said that she had consumed intoxicating liquor consisting of one beer. She said she had consumed this between 5 and 5.30pm at the Alabama Hotel. 1/C Constable Berry continued:

"My observations of the defendant were her breath smelt faintly of intoxicating liquor, she appeared to be very pale, sleepy eyed, her speech was slurred, confused, she appeared to be very dazed and confused your Worship. I also noticed that she was very unsteady both on her feet and while sitting. She appeared to me to be very drunk."

1. In cross–examination when asked by defence counsel whether the applicant appeared to be dizzy, 1/C Constable Berry said:

"Yes, not all the time though it seemed to be spells. She had slight spells where she appeared to perhaps be dizzy. She was also at the time, she would have short spells of trembling as well."

He said that such trembling occurred on possibly three or four occasions. He agreed that the applicant was pale. A blood sample taken from the applicant at 7.44pm was analysed by the Government Analyst who stated in a certificate tendered by consent:

"The blood specimen submitted was found to contain Lithium (1.74 mmo ll). No alcohol or other drugs were detected. Lithium is an anti–psychotic drug marketed in the from of Lithium Carbonate under various trade names including 'Priadol'. In tablet form it is available legally only on prescription (S4). It is frequently used in the treatment of manic–depressive states. The concentration of Lithium detected in the blood is higher than the normal therapeutic range (0.50 – 1.50 mmo ll). This medication may cause disorientation, ataxia, nausea, muscle weakness, dizziness and muscle twitching ...".

1. At the close of the prosecution evidence a defence submission of "no case" was rejected. The applicant did not give evidence herself but Dr David Leo Weidmann, a consultant psychiatrist was called on her behalf. He gave evidence that the applicant had been a patient of his for a considerable time. He had prescribed Lithium for her in the form of Priadol which is a slow release form of Lithium Carbonate. Her regular dose was two tablets each of 400 milligrams per day and just prior to the date of the alleged offence, this was increased to three tablets per day. Prior to 18 April the applicant had shown "a degree of tremor" associated with her Lithium treatment. He described this as a fine, rapid frequency tremor usually of the hands. He continued:

"QYes. You heard the police officer give evidence about a tremor, shiver up the spine, would it be anything like that?

ANot to my knowledge.

QNo. It would be a tremor of the hand.

AGenerally and it can be more wide spread but I can't imagine it involving the muscles around the spine.

QNow if a person was suffering symptoms due to excessive levels of Lithium can you say what symptoms you'd expect that person to display ...?

AWell one would expect them to have a marked tremor and to be ataxic, in other words to have lost their sense of co–ordination and balance. They would be the main signs, signs on just observing somebody.

QWould you expect nausea or diarrhoea?

AThose are symptoms indeed.

QNow in the course of treating the defendant did you take tests of her blood pressure?

AYes.

QAnd from testing her blood pressure did you notice anything in relation to her blood pressure?

AThere was a marked postural hypotension which means that on changing, changing posture on standing from sitting or standing from lying, there's a drop in blood pressure.

QCan you say what would be the normal blood pressure for the defendant?

AIn my line of work I don't frequently measure it unless I find it necessary, so, no I can't answer that.

QDid you measure the defendant's blood pressure at about the 18 of April?

AYes.

QYes. Can you say what you found when you measured her blood pressure?

AAt that stage her, her reclining blood pressure was 95 on 60 which is lower than one would expect, and on standing it dropped markedly to 80 on 45 ...

QAnd this condition of hypotension does it manifest itself in signs?

AYes, with marked giddiness and instability, lack of co–ordination.

QCan you say whether it would affect the vision?

ANot unless, no, unless one was blacking out.

QWould one suffer from blurred vision?

ABlurred vision, not in my experience.

QWould the person be pale?

AYes.

QGiven the reading, the blood pressure reading that you took of the defendant, can you say at what date that was ...?

A19th of the 4th 1990.

QAnd was that reading sufficient to cause the signs of unsteadiness that you've given evidence of?

AThat was my clinical judgment at the time, unsteadiness.

QYou believed that the unsteadiness that she was displaying at that time was due to low blood pressure?

AI was completely certain of that, yes.

QIs it more probable than not that it was as a result of low blood pressure than Lithium?

AI think on the balance of probabilities it was due to hypotension, her signs were due to hypotension."

1. In cross–examination Dr Weidmann was asked whether he would expect a person with a Lithium reading of 1.74 millimols to display signs of intoxication. He replied, "they may". He also agreed that prior to 18 April he had advised the applicant not to drive because of postural hypotension. He agreed that Lithium would cause a person to be sleepy eyed and, at very high levels, would cause speech to be slurred and confused. Asked if a reading of 1.74 millimols was a high level, he said it was not a high level for the applicant. He agreed however that it would make a lot of people ill. He agreed that it could cause the applicant to sway when she walked and to impair her balance.

1. At the conclusion of Dr Weidmann's cross–examination he was asked the following questions by the learned magistrate:

"Doctor, if on the 18th of April there was a serum level of 1.74 would you expect there to be substantial signs of the patient being affected by Lithium?

Witness:Again your Worship, that's a difficult question to answer in my opinion –

His Worship: Well take this particular patient whom you have known for quite some time with a level of 1.74 which was much higher than you've ever analysed, would you expect her to be affected or showing obvious signs?

Witness:There would be – I'm not trying to hedge the question – but there would be some effects as I mentioned before on the level of 1.3 there was a tremor and it was noticeable so I would expect at an even higher level the effects would be magnified somewhat."

1. The learned magistrate then put to the witness the essence of Mrs Paterson's evidence as to the applicant's behaviour on the day in question and on a previous occasion and asked Dr Weidmann:

"Would you ascribe all of those symptoms to the effect of Lithium?

The witness replied:

"No, I don't think so, I think it's a mixture but I think many of the signs and symptoms at that time were due to her markedly low blood pressure, it really was very low.

His Worship: No doubt the combination of Lithium and low blood pressure would.

Witness:It certainly wouldn't help.

His Worship: Would not help. Would you regard a person who had a serum level of 1.74 millimols per litre of Lithium as being, and exhibiting the signs which I have described, as being a person who was safe to drive a motor vehicle?

Witness:No."

1. In re–examination the witness was asked:

"QYou said in examination–in–chief that when you recorded a reading of 1.3 millimols per litre you noted that the defendant was displaying tremors. Would you expect tremors at 1.74 millimols per litre given that?

AYes.

QAnd would you expect tremors at that reading?

APossibly, probably.

QNow, if there were marked tremors at that reading but there were signs of ataxia, could you ascribe that ataxia to either a Lithium overdose or excessive Lithium or low blood pressure?

AIt could be due to either.

QIs it more likely to be due to low blood pressure than the Lithium given that there were no marked tremors?

AIn my opinion that's so, yes."

1. In the course of giving reasons for judgment the learned magistrate reviewed the evidence and concluded with the following remarks:

"Having heard all that evidence and not discounting the evidence of Dr Weidmann, because in the end it's for me to determine whether I am satisfied beyond reasonable doubt, that it is a reasonable hypothesis that her condition was due to low blood pressure rather than Lithium, I am left in no doubt at all the symptoms fitted neatly with those which Mr Ryall says may be expected from Lithium. They fit neatly with the symptoms which Dr Weidmann himself said may be expected from Lithium and I am left in no doubt whatsoever that the signs that the defendant was exhibiting at the time that she was driving the motor vehicle were due substantially at least if not totally to the Lithium Carbonate. Certainly she was under the influence of the drug Lithium to such an extent that as a result of the level of Lithium in her blood she was incapable of having proper control of the motor vehicle. That lack of control was directly attributed to that drug and I find the charge proved."

1. The decision of the learned magistrate was attacked from a number of angles. Firstly it was submitted that this was a case depending upon circumstantial evidence in that, in reaching a conclusion that the applicant's condition was due to drugs rather than to low blood pressure, it was necessary to infer that the drugs produced the symptoms which were observed by the police officers who gave evidence. There can be no doubt of course that before a circumstantial case can be found proved beyond reasonable doubt, any reasonable hypothesis open on the evidence and consistent with innocence must be excluded before the tribunal of fact may convict. It was submitted that in the passage quoted the learned magistrate misdirected himself as to this requirement.

1. In my opinion, such a misdirection is not demonstrated by what the learned magistrate said. But the question still remains whether or not Dr Weidmann's evidence did in fact provide a reasonable hypothesis consistent with the applicant's innocence of the offence charged. In considering this question it is important to bear in mind that Dr Weidmann's examination of the applicant did not occur until some time on the day following her apprehension. On that occasion he took her blood pressure and found it to be very low but he did not apparently check the level of Lithium in her blood at that time. The day before when she was apprehended, although her blood pressure was not checked, it was found that she had a high level of Lithium in her blood. No evidence was given as to the rapidity with which blood pressure levels may rise or fall. The mere fact that on the day after the incident complained of she was found to have low blood pressure, which in itself may produce several of the symptoms which she was observed to exhibit the day before, does not mean that it is necessarily reasonable to infer that this, rather than, a consumption of Lithium may have produced the symptoms which she exhibited on that earlier occasion.

1. In my opinion the learned magistrate, as a tribunal of fact, was entitled to reject that suggested explanation for her condition whilst driving her motor vehicle on 18 April and on that basis he was entitled to convict her as he did. For these reasons the appeal against conviction will be dismissed.

1. I turn now to the motion to review the sentence.

1. It was submitted that driving under the influence of drugs is not nearly as prevalent as driving under the influence of intoxicating liquor, and that therefore, the same considerations as dictate the imposition of a deterrent sentence in the latter circumstances do not apply. Furthermore, it was submitted that there was no evidence that the applicant was seen to be driving in an erratic or dangerous manner by the arresting police officer. Both of these submissions have substance. On the other hand, the applicant was clearly and unequivocally warned by Mrs Paterson that she was unfit to drive, but chose to ignore that warning. It was clearly put to the learned magistrate that the applicant had not taken drugs other than as prescribed for legitimate therapeutic purposes and that, although warned against driving by Dr Weidmann, this had been on account of her low blood pressure. No such warning had been given on the basis that Lithium would render her an unsafe driver.

1. Counsel for the applicant clearly and effectively made all these points to the learned magistrate in the course of his plea in mitigation and there is no reason to think that the learned magistrate misconceived or ignored any relevant factor in assessing penalty. Indeed, the comments which he made, demonstrate to me that he weighed all appropriate matters carefully before making his decision.

1. The fine which he imposed took account of the applicant's low income and the disqualification was somewhat lower than that which is normally imposed in respect of a liquor offence under s4 of the Road Safety (Alcohol & Drugs) Act 1970.

1. All in all, I am unable to say that the penalties imposed by the learned magistrate were manifestly excessive.

1. The motion to review will be refused.