Martin v Police - [2015] SASC 41

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MARTIN v POLICE
[2015] SASC 41
Judgment of The Honourable Justice Sulan
24 March 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 appellant was found guilty of one count of driving under the influence of a prescribed drug and one count of driving under the influence of a prescribed drug whilst holding a provisional licence. The issue at trial was whether the appellant had knowingly consumed the drugs. The Magistrate concluded that the appellant failed to satisfy her on the balance of probabilities that he did not know that he had consumed the drugs. The appellant appeals against the convictions on the grounds that the convictions were unreasonable and unsupported by the evidence.
Appeal dismissed.
Road Traffic Act 1961 (SA) s 47BA(1)(a), s 47BA(2); Motor Vehicles Act 1959 (SA) s 81A(13), referred to.
R v Corish (2006) 96 SASR 207, discussed.
Jones v Dunkel (1959) 101 CLR 298, considered.

MARTIN v POLICE
[2015] SASC 41
Magistrates Appeals: Criminal

SULAN J: The appellant and defendant, Kieran Martin, was found guilty by a Magistrate of driving a motor vehicle whilst under the influence of a prescribed drug, contrary to s 47BA(1)(a) of the Road Traffic Act 1961 (SA), and of driving a motor vehicle whilst under the influence of a prescribed drug whilst holding a provisional licence, contrary to s 81A(13) of the Motor Vehicles Act 1959 (SA). The defendant pleaded not guilty to both charges. The defendant appeals against the convictions.
Background
On 10 March 2014, the night before the offence occurred, the defendant had been to the Grand Bar at Glenelg with three friends. They arrived at the hotel by taxi between 10 pm and 11 pm. The defendant left by taxi at between 2 am and 3 am on the following morning. The defendant gave evidence that he had consumed about ten drinks at the hotel, mainly vodka and orange juice and beer. He gave evidence that, on a number of occasions, he left his drink unattended either at the bar or on the table whilst he visited the bathroom or went outside for a cigarette. He said that no drugs were consumed that night.
On 11 March 2014, the defendant awoke at about midday and, later in the afternoon, drove to the Golden Grove Hotel where he met two friends. At the hotel, he and his friends played the poker machines. The defendant gave evidence that he only drank water, as he was driving. He said that he left his glass unattended on two occasions to visit the bathroom. He left the hotel at about 4 pm to drive both his friends to their home.
At about 4.45 pm, the defendant was stopped by police who were conducting random breath testing and drug testing. He recorded a negative result for alcohol. A drug test was then administered using a saliva sample, which entered a positive result for both methylamphetamine and methylenedionxmethamphetamine. Later, at the police station, a second drug test was administered, which also returned a positive result.
One of the officers who had apprehended the defendant gave evidence that he spoke to the defendant at about 6.00 pm. After the defendant had tested positive for drug consumption, the officer asked him the following questions:
QI am going to ask you some further questions, you are not obliged to answer them but anything you do say may be taken down in evidence. Do you understand.
AYeah.
QI stopped you at 5.45 pm on Grenfell Road driving a white HOLDEN commodore Reg S041ABI. Is that correct.
AYes.
QKieran Todd MARTIN, of 4/12 BARCOO Road PARA HILLS, 5096, Licence CM3773 and Date of Birth 26/04/1992. Is that correct.
ACorrect.
QYou have provided a positive oral fluid sample for methamphetamine. Is that correct.
ANo comment.
QWhat was the purpose of your journey today.
ANo comment.
QAre you aware that it is an offence to drive a motor vehicle with a prescribed drug in your oral fluid.
ANo comment.
QDo you want to read my notes.
ANo thankyou.
QDo you wish to make any further comments regarding this matter.
ANo thankyou.
QI am reporting you now for driving a motor vehicle with a prescribed drug in your oral fluid. Do you understand.
AYes. I do understand.
QDo you want to add anything to this matter.
ANo thankyou.
QWould you like to sign my notes to ensure they are a true and accurate reflection of our conversation.
ANo thankyou.
At trial, the evidence of the police officers and the evidence relating to the taking of fluid and the testing of that fluid were admitted. There was no cross‑examination of any witness for the prosecution.
The defendant gave evidence that, on the evening of 10 March 2014, he had been at the Grand Bar at Glenelg, that he had consumed both beer and vodka and orange juice, and that he had left at about 2 am to 3 am on the following morning. He was intoxicated. He stated that he had attended the hotel with three friends, and they had left together.
The following morning he awoke at about midday, He later met friends at the Golden Grove Hotel where he played the poker machines. He left the hotel at about 4.30 pm, just prior to being apprehended by police.
Whilst at the hotel, he drank only water. At no time on the evening before, or on the day he was apprehended, did he consume any drugs. He gave evidence that he had never consumed illicit drugs.
In cross-examination, the defendant said that at no stage had he felt affected by drugs and that, when he tested positive, it came as a complete surprise to him. At no stage had he felt any effect of the drugs.
It was accepted that the only issue at trial was whether or not the drugs found in the defendant’s oral fluid had been knowingly consumed. The onus of establishing that he had not knowingly consumed drugs was on the defendant, on the balance of probabilities.
The Magistrate’s findings
The Magistrate referred to s 47BA(2) of the Road Traffic Act 1961 (SA), which provides a defence to the charge of driving a motor vehicle whilst a prescribed drug is present in the person’s oral fluid or blood if the defendant proves that he or she did not knowingly consume the prescribed drug present in his or her oral fluid or blood.
The Magistrate summarised the evidence of the defendant. She agreed with the submission of defence counsel that the defendant did not have to provide an alternative explanation for the positive drug test, and that he bears the burden of establishing his defence on the balance of probabilities. She referred to the evidence of Constable Robertson, the police officer who observed the defendant at the time of the drug testing. Constable Robertson had observed that the defendant’s eyes were watering, bloodshot, his body movements were not fluid, and that he was speaking quicker than normal. The Magistrate stated:
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.
Having considered all of these issues and despite Mr Martin’s unequivocal denials, there is nothing inherently unlikely in the detection of the drugs in Mr Martin’s oral fluid. In all of the circumstances, I find that I am not sufficiently satisfied that he did not knowingly consume the drugs.
The appeal
The grounds of appeal are that the convictions were unreasonable and cannot be supported, having regard to the evidence.
Counsel for the defendant submitted that the Magistrate had erroneously reasoned to a conclusion of guilt and was in error in rejecting the defendant’s evidence. Counsel submitted that the Magistrate was in error in relying upon Constable Robertson’s evidence, that his observations of the defendant were “at least not inconsistent with the signs demonstrated by someone who has used such drugs”.
Counsel submitted that the Magistrate had reasoned that the defendant was exhibiting signs consistent with the use of each prescribed drug and, therefore, must have known that he had consumed those drugs.
It is submitted that the Magistrate could not make those findings absent expert evidence of the concentration of each prescribed drug, the likely effect upon a person of that concentration of drug, and the duration of any such effects the consumption of the drug would have upon a person.
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.
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.
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.
A further criticism made of the Magistrate was that, in observing that she had not heard evidence from any friends who had been with the defendant, either the night before or on the day of the events, it appeared the Magistrate had drawn an inference adverse to the defendant from his failure to call any of those persons. Counsel submitted that the Magistrate had inappropriately applied the rule in Jones v Dunkel.[1] Counsel referred to R v Corish, in which Gray J observed:[2]
In this respect it is relevant to recall the observations in Dyers concerning the position of the Crown on issues where the Crown has the onus to prove elements of an offence beyond reasonable doubt. In that respect Gaudron and Hayne JJ observed:
The three reasons we have given are all concerned with giving a Jones v Dunkel direction about evidence which the accused might have adduced. The directions given in this matter were described in the Court of Criminal Appeal as having been intended as "bipartisan". That is, they were understood as permitting, if not inviting, the jury to conclude that there were witnesses whom the prosecution could and should have called. Again, the trial judge having given the jury no guidance about who could be thought to fall into this group, or why that was so, the directions given were either of no assistance to the jury or were apt to mislead. But again, there are more deep-seated reasons for saying that, save in very exceptional circumstances, a direction of this kind should not be given about witnesses whom the prosecution ought to have called.
However the reversal of onus in section 32(3) may be characterised, it is clear that the fact that the defendant may carry an evidentiary or other onus does not effect the circumstances which a Jones v Dunkel direction may be given in a criminal trial – very exceptional circumstances must be established.
[Footnotes omitted.]
[1] (1959) 101 CLR 298.
[2] (2006) 96 SASR 207 per Gray J at [38].
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.
A thrust of the counsel’s argument was that there had been a failure by the prosecution to call evidence to establish the timeframe in which the drugs must have been ingested, their quantity, the effect in terms of taste that the drugs in question would have had upon the defendant, whether the defendant would have tasted or felt the effects of ingestion of those drugs, and how those drugs would have affected him physically. Counsel submits that the Magistrate’s reasons for not accepting the defendant’s explanation were flawed and inadequate.
There was no onus upon the prosecution to call evidence to refute the defendant’s account. The prosecution relied upon the inherent unlikelihood that the defendant unknowingly consumed the prescribed drugs.
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 Magistrates 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.
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.
I would dismiss the appeal.