Martin v Police

[2015] SASCFC 85

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Permission to Appeal in Private)

MARTIN v POLICE

[2015] SASCFC 85

Judgment of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Peek)

11 June 2015

TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - DRIVING UNDER INFLUENCE OF INTOXICATING LIQUOR OR A DRUG

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - WHEN NEW TRIAL REFUSED

The applicant was convicted in the Magistrates Court of driving a motor vehicle whilst a prescribed drug, methylamphetamine, was present in his blood contrary to s 47BA of the Road Traffic Act 1961 (SA). He appealed to this Court alleging errors in the reasoning of the learned Magistrate. Permission to appeal was refused by a single Judge of this Court.

The applicant now applies to this Court for permission to appeal.

Held (the Court):

1.  The applicant’s complaint raises questions of fact which have been adversely decided against him.

2.  It is not appropriate to grant permission to appeal on strained constructions of reasons below.

3.  Permission to appeal is refused.

Road Traffic Act 1961 (SA) s 47BA, referred to.
Jones v Dunkel (1959) 101 CLR 298, considered.

MARTIN v POLICE
[2015] SASCFC 85

Full Court: Kourakis CJ, Gray and Peek JJ

1. THE COURT:    The applicant was convicted in the Magistrates Court of driving a motor vehicle whilst a prescribed drug, methylamphetamine, was present in his blood contrary to s 47BA of the Road Traffic Act 1961 (SA) (RTA). The applicant did not contest the police evidence that the drug was present in his blood whilst he was driving. He relied on the defence provided by s 47BA(2) of the RTA which provides:

   47BA – Driving with prescribed drug in oral fluid or blood

   (2)Subject to subsection (3), it is a defence to a charge of an offence against subsection (1) if the defendant proves that he or she did not knowingly consume the prescribed drug present in his or her oral fluid or blood.

2. In addition to the evidence of the presence of the drug provided by a swipe test, a written statement of a police officer was admitted, and not disputed, to the effect that the applicant’s eyes were watery and bloodshot, his body movements were not fluid and he was speaking quickly. 

3. The applicant testified that on Sunday 10 March 2014, he was at The Grand Bar at Glenelg from about 10.00 pm to 3.00 am with friends.  There he drank mostly vodka and orange juice, and some beer.  He admitted that he had become intoxicated from his drinking, but denied that he took any drugs.  The following day, Monday 11 March, he went to the Golden Grove Hotel where he met two of his friends.  He testified that there he played poker machines and drank only water, but that on two occasions he left his glass of water unattended when he went to the toilet.  He remained at the hotel to about 4.30 pm.  The applicant testified that neither at Glenelg, on the Sunday, or at Golden Grove, on the Monday, did he feel any symptoms of drug intoxication. 

4. The Magistrate’s reasons for rejecting the applicant’s account were essentially as follows:

   I note it is only his say so that he relies on.  Mr Martin said that he did not feel affected by drugs at any time and did not taste anything in his drinks on either occasion.  He said he was not so intoxicated he would not have noticed or recalled drug use.

   Constable Robertson’s observations of Mr Martin at the time of the drug testing were at least not inconsistent with the signs demonstrated by someone who has used such drugs.  The night before he was tested, Mr Martin had been out at a bar, drinking and socialising with friends.  One might consider that there was an opportunity for Mr Martin to willingly take drugs, but on the other hand, for there to have been some surreptitious administration.  I accept that people who supply drugs ordinarily like to be paid for them, and while it is not beyond possibility that Mr Martin was “slipped” something without his knowledge, it is difficult to accept this is what occurred given the description Mr Martin gave of the events of that weekend.  Essentially, nothing out of the ordinary occurred.  I note I have not heard evidence from any of the friends who had been with Mr Martin.

5. On appeal to this Court, the applicant contended that the Magistrate misused the police officer’s observations as to his intoxication.  He submitted that the Magistrate reasoned that because the applicant appeared intoxicated he must have knowingly taken the drugs.  Sulan J rejected that contention:

   In my view, without expert evidence of the effect of the drugs detected in the defendant’s oral fluid, no conclusion can be drawn from the observations of Constable Robertson to support a finding that the defendant had consumed the drugs.

   The Magistrate made no positive finding based upon the police officer’s evidence.  I consider that her comment that the police officer’s observations were at least not inconsistent with the signs demonstrated by someone who has used drugs was open to her.

6. The applicant next complained that the Magistrate had erred in observing that people who supply drugs would normally like to be paid for them.  Sulan J also rejected that submission:

   Counsel further submitted that the Magistrate’s observations that “people who supply drugs would ordinarily like to be paid for them” had no evidentiary basis.  The comment was merely a statement of the obvious.  In my mind, there is no merit in counsel’s contention.

7. The applicant further complained that the Magistrate’s observation concerning the absence of any evidence from his friends wrongly applied the rule in Jones v Dunkel[1] to criminal proceedings.  Sulan J dismissed this ground:

   I disagree with the submission of counsel for the defendant that the Magistrate applied the rule in Jones v Dunkel.  She merely commented that she had not heard evidence from any of the defendant’s friends who had been with him.  In my view, it did not suggest that, if they had been called, they would have given evidence that did not support the evidence of the defendant.  In my view, there is no basis in counsel’s argument that the Magistrate had applied the rule in Jones v Dunkel, which should have no application in criminal proceedings.

   [1] (1959) 101 CLR 298.

8. The applicant then complained about the adequacy of the Magistrate’s reasons.  Sulan J also dismissed this ground:

   Although the Magistrate gave short reasons, this was a case in which the defendant had to establish on the balance of probabilities that he did not knowingly ingest the drug.  There is no doubt that drugs were present in the defendant’s oral fluid.  It is clear from the Magistrate’s reasons that she did not accept his explanation that the drugs might have been slipped into his drink, either on the night of 10 March 2014 or on the day of 11 March 2014 at the Golden Grove Hotel when he was drinking water.

9. Overall, Sulan J observed of the Magistrate’s reasons:

   The Magistrate saw and heard the defendant give evidence.  She made an assessment of his evidence.  It is clear that she did not accept his evidence.  It follows that she was not satisfied that he had discharged the onus required of him.

   …

   The Magistrate concluded that it was inherently unlikely that a drug would have been administered to the defendant without him knowingly being aware of it.  That conclusion was open to the Magistrate.  Having read the evidence of the defendant, I am satisfied that the conclusions that the Magistrate drew about his evidence were open to her.

10. The Magistrate could have elaborated further on her reasons; in particular, the Magistrate might have set out her assessment of the applicant’s demeanour in the witness box.  Nonetheless, it is clear from the Magistrate’s reasons that her Honour did not accept the applicant’s account because it was inherently improbable that an unknown third person had surreptitiously slipped the drug into either his alcohol or water.  The applicant was with friends who would have no motive to do so.  No evidence was adduced which raised the possibility of the presence of anyone else who might have had a motive to spike the applicant’s drink.

11. The reference to Constable Robertson’s observations was quite innocuous, it was admitted by the applicant that methylamphetamine was in his blood.  The importance of Constable Robertson’s observations is that they undermined the credibility of the applicant’s assertion that he did not feel at all affected by drugs.

12. The proposed appeal raises a question of fact, on which the applicant carried the onus, on the balance of probability, which has been decided adversely to him both at first instance and on appeal. There is insufficient reason to doubt the Magistrate’s ultimate conclusion that she could not rely on his evidence.  Nor should permission to appeal be given on grounds which rely on a strained construction of the Magistrate’s reasons.

    Conclusion

13. Permission to appeal refused.