McCurley v Commissioner of Police

Case [2017] QDC 80

DISTRICT COURT OF QUEENSLAND

CITATION:

McCurley v Commissioner of Police [2017] QDC 80

PARTIES:

McCURLEY, Robyn Lyn

(appellant)

v

THE COMMISSIONER OF POLICE

(respondent)

FILE NO:

D 89 of 2015

DIVISION:

Appellate

PROCEEDING:

Appeal pursuant to s 222 of the Justices Act 1886

ORIGINATING COURT:

Magistrates Court at Maroochydore

DELIVERED ON:

6 April 2017

DELIVERED AT:

District Court at Maroochydore

HEARING DATE:

13 November 2015, 27 January 2017, 3 February 2017, 24 February 2017 and 6 April 2017

JUDGE:

Long SC DCJ

ORDER:

The conviction of the appellant, on 17 June 2015, of the offence that she was on 29 January 2015, in charge of a motor vehicle on Brisbane Road, Mooloolaba whilst under the influence of liquor or a drug and the orders made in respect of that conviction, are set aside.

CATCHWORDS:

APPEAL – s 222 of the Justices Act 1886 – Where the appellant appeals against her conviction of being in charge of a motor vehicle whilst under the influence of a drug or liquor – Where the only ground of appeal is directed at the Magistrate’s finding of the fact of the influence of a drug, in the absence of any evidence as to observable indicia of such influence – Whether the Magistrate erred as to the construction and effect of the definition of “drug” in Schedule 4 of the Transport Operations (Road Use Management) Act 1995 – Whether, at the material time, the appellant was proven, beyond reasonable doubt, to be “under the influence of a drug”

APPEAL – s 222 of the Justices Act 1886 – powers of the District Court pursuant to s 225 of the Justices Act 1886 – Whether s 79(5) of the Transport Operations (Road Use Management) Act 1995 requires the Court, in dealing with the matter on appeal, to convict the appellant of the offence under s79(2AA)

LEGISLATION:

Drugs Misuse Act 1986, s 4 and Schedule 1
Justices Act 1886, ss 222, 225(1), 225(3)
Transport Operations (Road Use Management) Act 1995, ss 79(1), 79(1)(c), 79(2AA), 79(3), 79(5), 79(8), 79(8A), 79A(3), 79B(2), 86(2)(e), 86(2)(f), 86(7), 131(3A) and Schedule 4
Traffic Regulation 1962, s 172

CASES:

Australian Alliance Assurance Co Ltd v Attorney General (Qld) [1916] St R Qd 135
CIC Insurance v Bankstown Football Club Ltd (1997) 187 CLR 384
Commonwealth v Baume (1905) 2 CLR 405
K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 60 ALR 509
Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565
O’Connor v Shaw [1958] Qd R 384
Noonan v Elson; Ex Parte Elson (1950) St R Qd 158
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Smith v Le Mura [1983] 1 Qd R 535

COUNSEL:

M Robinson (sol) for the appellant (13 November 2015, 27 January 2017, 3 February 2017 and 24 February 2017)

M Harrison for the appellant (6 April 2017)

GJ Cummings for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant (13 November 2015, 27 January…

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McCurley v Commissioner of Police [2017] QDC 80
Case
[2017] QDC 80
Decision Date

CaseChat Overview and Summary

The appeal before the court involved McCurley, the appellant, who sought to overturn her conviction for being in charge of a motor vehicle while under the influence of a drug or liquor. The conviction was made by a Magistrate and the appeal was brought under section 222 of the Justices Act 1886. The appellant contested the Magistrate’s determination that she was under the influence of a drug, arguing that there was no evidence presented that would indicate such influence. The crux of the appeal lay in the interpretation and application of the definition of “drug” as provided in Schedule 4 of the Transport Operations (Road Use Management) Act 1995 and whether the appellant was proven to be under the influence of a drug beyond reasonable doubt.

The court was tasked with determining if the Magistrate erred in their interpretation of the definition of “drug” and if the evidence was sufficient to establish that the appellant was under the influence of a drug. The appellant’s argument hinged on the absence of observable signs of drug influence and whether these were necessary to establish the offence. Additionally, the court considered the powers of the District Court under section 225 of the Justices Act 1886 and whether section 79(5) of the Transport Operations (Road Use Management) Act 1995 mandated the court to convict the appellant of the offence as defined under section 79(2AA).

The court found that the Magistrate’s determination was flawed in its interpretation of the definition of “drug” and did not adequately consider the absence of observable indicia of drug influence. The court held that the evidence was insufficient to prove beyond reasonable doubt that the appellant was under the influence of a drug. Consequently, the conviction and the associated orders were set aside. The court's decision underscored the importance of clear and sufficient evidence in establishing the influence of a drug under the Act and the necessity for observable indicators of such influence.

Orders

Orders of the court

The conviction of the appellant, on 17 June 2015, of the offence that she was on 29 January 2015, in charge of a motor vehicle on Brisbane Road, Mooloolaba whilst under the influence of liquor or a drug and the orders made in respect of that conviction, are set aside.

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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