Michael Colin Cooper v SA Police No. SCGRG 93/1358 Judgment No. 4147 Number of Pages 8 Criminal Law and Procedure

[1993] SASC 4147

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA OLSSON J

CWDS
Criminal law and procedure - Appeal against conviction driving a motor vehicle on a road whilst so much under the influence of alcohol and a drug as to be incapable of exercising effective control of it - appellant recorded a 0.021 per cent breath analysis reading - appellant taking prescription drug - appellant chronic abuser of alcohol - symptoms exhibited by appellant consistent with alcohol abuse - hypothesis consistent with innocence remained at end of trial - evidence could not support finding of guilt beyond reasonable doubt - appeal allowed. Road Traffic Acts 47. Simms v O'Sullivan
(1952) SASR 179, considered.

HRNG ADELAIDE, 24 August 1993 #DATE 31:8:1993
Counsel for appellant:     Mr S Tilmouth QC
   with Mr B Harrap
Solicitors for appellant:    Harrap and Associates
Counsel for respondent:     Ms J Lee-Justine
Solicitors for respondent: Crown Solicitor

ORDER
Appeal allowed.

JUDGE1 OLSSON J This is an appeal against the conviction of the appellant by a stipendiary magistrate of the offence of driving a motor vehicle on a road whilst he was so much under the influence of intoxicating liquor and a drug as to be incapable of exercising effective control of it, contrary to section 47 of the Road Traffic Act. The appellant asserts that the conviction was against the weight of the evidence. 2. The appellant pleaded not guilty to the charge and the matter went to trial on oral evidence. That evidence exhibited some unusual features, to which I shall come in due course. Suffice it to say, at this juncture, that it was common ground that the appellant had been a long term, chronic abuser of alcohol - the significance of which will shortly emerge. 3. The evidence before the learned magistrate was to the effect that, just prior to midnight on 20 January 1993, police officers were summoned to attend a unit at Station Place, Alberton, as a consequence of an alleged domestic incident. This unit was occupied by the appellant's wife. He was separated from her, but apparently visited her from time to time. 4. As they arrived at Mrs Cooper's unit the police officers observed the appellant driving away from the premises in a Camira sedan. They subsequently located and followed this vehicle. They noted that it was travelling quite slowly along Grand Junction Road and, at one point, had straddled the broken white line on the road for about 50 metres and then slowly veered back into the left hand lane. 5. The police officers stopped the appellant's car. They noted that, as he got out of it, he lowered his legs to the ground very slowly and rested his hand on the vehicle, apparently for support, as he walked to the rear of it. All of his movements seemed to be very deliberate and slow. Whilst leaning against the boot of the car he appeared to be staring and there seemed little or no movement of his eyes. He presented as if in a dazed or trance like state. When interviewed he repeated every question before answering it. 6. The breath analysis unit was summoned to the scene. A breath analysis was carried out at about 12.42am. This recorded a reading of 0.021 per cent. The breath analysis operator noted overt physical symptoms not dissimilar to those deposed to by other police officers, but conceded that the appellant readily comprehended and answered questions and had no difficulty in blowing as directed. 7. Blood was taken from the appellant by Dr Long just after 1.30am. Upon analysis this did not reveal the presence of any alcohol, but did indicate the presence of chlorpromazine, diazepam and nordiazepam in therapeutic concentrations. 8. The two police officers were surprised at the breath analysis result because, although they detected little smell of alcohol on the appellant's breath, they felt that, on physical observation, he appeared at least mildly to moderately affected by alcohol, consistent with what they would have expected with a reading in the range 0.14 to 0.15 per centum. It had been noted that, whilst seated, the appellant exhibited a pale complexion, his speech seemed slightly slurred and he was swaying to and fro, although not to a marked extent. 9. Dr Long also noted only a mild smell of liquor, but that the appellant's eyes were bloodshot and face flushed. However, the appellant's pupils were normally reactive, he was orientated in terms of time and space and he passed some simple arithmetical tests. This witness felt that the appellant's speech was slow and thicker than he would have expected. He recorded that the appellant exhibited what he described as a broad based, ataxic gait and had co-ordination problems with his upper limbs. He also had a tremor of the tongue. When standing he swayed to some extent. These were all symptoms similar to those previously observed by the police officers. 10. At the time of his examination Dr Long concluded that the observations made were possibly consistent with the effects of alcohol intoxication, potentiated by the drug Largactil. In giving evidence the doctor conceded that his findings on examination were also consistent with the physical effects of chronic alcohol abuse and might not have had anything to do with the ingestion that evening of alcohol or drugs or both. As I understand his evidence he was not prepared positively to opt for one situation in preference to another. In the course of his evidence he did not give any definitive evidence as to the likely (or even possible) degrees of interaction or potentiation as between specific quantities of alcohol and Largactil. This issue remained very much up in the air. 11. As to this the learned magistrate said:-
    "For example, the observed broad-based gait of the defendant
    was such a symptom equally consistent with earlier chronic alcohol
    abuse. The doctor also conceded that it was possible that the
    combination of Largactil and alcohol did not have any appreciable
    effect on the defendant either at the time the doctor saw him or
    earlier (around midnight) when he was detected driving.
     Dr. Long also conceded that in light of the defendant's medical
    history he would in all probability be more tolerant to the
    effects of Largactil and that it may be less likely that it had
    any obvious effect on him." 12. He acknowledged that these concessions presented a logical difficulty in relation to the prosecution case, but went on to comment:-
    "How, therefore, do these concessions made by the doctor
    sit with the observations made by the police officers? I have to
    determine in this context whether one or more of the defendant's
    physical or mental faculties was appreciably impaired. It seems
    to me that when I consider the timely observations of the three
    police officers in conjunction with those of doctor and the
    observations of the manner of driving of the defendant in
    straddling the white line for a distance of 50 metres, in all
    probability his mental and physical faculties relevant to
    coordination and the higher judgmental faculties were impaired." I digress to make the point that these comments immediately give rise to a question mark as to the standard of proof which the learned magistrate applied on this critical feature of the case. 13. The learned magistrate was disposed, for reasons which, on well settled bases of principle it is not appropriate to question, to put evidence given by Mrs Cooper to one side, as being unreliable. 14. At the end of the day the learned magistrate was unable to reject the evidence of the police officers and what he felt compelled to infer from it. As to this he said:-
    "The fact that the defendant so consistently repeated
    questions to the degree which he did (accepting Constable Speck's
    90 per cent) and the fact that in the witness box the defendant
    conveyed none of the thickness of speech, swaying, bloodshot eyes,
    or repetition of questioning and he did so without giving any
    reasonable explanation, leads me to the inevitable conclusion that
    on the occasion when he was observed by the police officers,
    having alighted from his car, he was then under the influence of
    intoxicating liquor in conjunction with (and as potentiated by)
    the Largactil tablet he had consumed at 4p.m. the previous day.
    I so find. It therefore follows in my view that the prosecution
has made out its case beyond all reasonable doubt." 15. In so concluding he said that he did not find the appellant a convincing witness, although he does seem to have accepted his evidence that, over the period from 6 to 9pm, the appellant consumed only a very small quantity of alcohol and had, earlier in the day at about 4.00pm, ingested only a normal therapeutic dosage of his prescribed medication, Largactil. He also accepted that the appellant had taken a valium tablet for muscle spasm on the preceding day. 16. The learned magistrate recited that the appellant had given logical explanations for his speed and observed manner of driving, but noted a conflict between his evidence and that of the police as to his physical actions after getting out of his vehicle. He said that the appellant did not give satisfactory explanations in cross examination concerning his slow speech, swaying motion or blood shot eyes, why he had kept repeating questions asked of him and as to why he could not recall the police finding a Largactil container in his vehicle. He made those comments apropos a cross examination in which it had been suggested by the prosecutor that he did not display any of the relevant symptoms in court on the day of the trial. The learned magistrate concluded that the effect of the alcohol which had been consumed must have been potentiated by the Largactil which he had taken, that is to say, the latter must have exaggerated the effect of the former on the appellant. 17. The immediate logical difficulty which arises with the reasoning of the learned magistrate, quite apart from the standard of proof apparently resorted to by him, is that, in terms of reasonable doubt, it cannot stand with the evidence of quantum of alcohol and Largactil ingestion. Nor can it be reconciled with the ready concessions of Dr Long as to possible causative factors, unrelated to actual intoxication, for many, if not most of the physical symptoms said to have been displayed by the appellant. This is particularly so when the evidence bearing on them is coupled with the doctor's further testimony that the appellant's medical history was such that he would, in all probability, be quite tolerant to the effects of Largactil; and that it could well be less likely to have any obvious effect on him. To this must be added the police officers' own puzzlement on the night in question, when the appellant blew a minimal blood alcohol concentration. 18. It is trite to say that it was inappropriate for the learned magistrate either to act on mere probabilities or to convict the appellant whilst, on the evidence, there remained any reasonable hypothesis or thesis consistent with his innocence. He was only to be convicted once the stage had been reached, on the whole of the evidence before the learned magistrate, that the proven facts were inconsistent with any reasonable and rational conclusion other than his guilt of the offence charged. 19. It is to be remembered that the appellant was, in this case, charged with the specific offence of driving a vehicle whilst he was so much under the influence of intoxicating liquor and a drug as to be incapable of exercising effective control over it. In other words it was the express case of the prosecution that there was a relevant incapacity and that it resulted from an ingestion of alcohol, the effect of which was potentiated by the drug Largactil. The prosecution therefore bore the onus of proving beyond reasonable doubt that, by reason of the operation of such a potentiation effect at the time of the driving in question, the use of any mental or physical faculty of the appellant was either lost or appreciably impaired. (Sims v O'Sullivan (1952) SASR 179.) 20. There was never any suggestion, on the evidence, that the drug Largactil, taken alone in the prescribed therapeutic dosage, could have brought about such a result. Nor could it fairly have been reasoned that any alcohol ingested by the appellant on the day in question could or would, alone, have produced such a consequence. The evidence of the appellant - which the learned magistrate did not reject - was that he had two substantial glasses of champagne with some food at about 6.00pm on the evening in question (ie well over 6 hours prior to the driving) and that he had two cans of beer at about 9.00pm. That evidence was clearly and unequivocally supported by the breath analysis result of 0.021 per cent at 12.42am (ie a concentration equivalent of one standard drink) and the fact that, when Dr Long took a blood sample at some time just after 1.30am, all alcohol in the appellant's system had been oxidised - as evidenced by the analysis result of a zero concentration in that blood. 21. On the appeal counsel took me through a detailed analysis of relevant aspects of the evidence, a process which I find unnecessary to repeat in these reasons. The plain fact was that Ms Lee-Justine, of counsel for the respondent, was, quite fairly (if not inevitably), constrained to concede that the evidence of the police officers and the doctor, taken with that of the appellant, considered in isolation, necessarily led to a conclusion that there remained hypotheses consistent with either guilt or innocence. 22. However, her contention (which appears to have paralleled the reasoning adopted by the learned magistrate) was that a failure of the appellant to display in court the various symptoms observed on the night of the alleged driving exploded what she asserted was the myth of the hypothesis based upon symptoms resulting from the appellant's history of prior alcohol abuse. She argued that it left only the hypothesis of guilt. 23. At the risk of tediousness I reproduce hereunder the critical evidence of Dr Long bearing on his observations at 1.30am on 20 January 1993. Having described the various overt symptoms displayed by the appellant (in terms which I have already summarised and which substantially accord with those earlier noted by the police officers - albeit that they said there had been some slight improvement between when they first saw the appellant and when the doctor examined him) he had this to say:-
    "Q. We are dealing here with a man who certainly had told
    you in - his history to you, that he was a chronic abuser of
    alcohol over a period of about 20 years.
    A. Yes.
    Q. And you would agree with me, wouldn't you, that a lot of
    your observations of him, whilst consistent with some alcohol
    intake some hours earlier, was equally consistent with him having
    been a chronic abuser of alcohol over a very long period of time.
    A. Many of my findings were consistent with problems associated
    with chronic alcohol abuse.
    Q. That possibly had nothing whatsoever to do with the
    ingestion of alcohol on the night in question. That's right,
    isn't it.
    A. That's right.
    Q. Certainly those findings are consistent with alcohol having
    been in ingested or consumed on that night. That's right isn't
    it.
    A. Yes.
    Q. But equally consistent with him being a person and having a
    history particularly the medical history that he did, is that
    right.
    A. Yes.
    Q. And that refers to matters such as his eyes being bloodshot,
    does it.
    A. Yes.
    Q. The tremor of the tongue.
    A. Yes.
    Q. The tremor of the upper limbs.
    A. Yes.
    Q. He was certainly orientated as to where he was and what was
    occurring.
    A. Yes.
    Q. He was certainly cooperative throughout your examination.
    A. Yes.
    ...
    Q. The manner of his walking, that equally consistent with him
    being a chronic abuser of alcohol over a 20 year period.
    A. Yes.
    Q. Now, Lagactul (sic) can potentiate the alcohol intake, can't
    it.
    A. Yes.
    Q. And it can react with him.
    A. Yes.
    Q. It doesn't happen automatically though, does it.
    A. No, it would depend, for instance, on the person's tolerance
    to the use of the two substances.
    Q. And based on your limited examination, you have no
    information available to you to make any assessment of this man's
    tolerance to Lagactul (sic), do you.
    A. No, only the information he had been taking it for some
    months.
    Q. And you would certainly expect, if that history were
    correct, that he would certainly be used to taking Lagactul (sic).
    A. Yes.
    Q. His body would be familiar with taking Lagactul (sic).
    A. Yes.
    Q. Would he therefore be more likely to be more tolerant to
    Lagactul (sic), having taken it for that period of time for
    instance, than someone who had just commenced that medication.
    A. Yes.
    Q. By being more tolerant to it, does that mean that it would
    be more likely to have less effect upon him for as long a period
    of time.
    A. It may have less obvious effect, but not necessarily for a
    shorter period of time.
    Q. But the effect upon him may be less obvious because he's
    been taking it for a period of time and he probably is more
    tolerant to it, is that right.
    A. Yes." 24. What seems completely to have escaped both the learned magistrate and Ms Lee-Justine is that there is a fundamental fallacy in the line of reasoning upon which she so strongly relied. 25. The flaw in it is that it completely overlooks the simple, unassailable fact that, when examined by the doctor on the relevant night, the appellant exhibited virtually all of the symptoms now relied upon as evidence of impairment when (having regard to the blood test) it is beyond question that there was no alcohol remaining in his system. It is thus the situation that, although there could have been no possibility of potentiation at that time, nevertheless, the appellant still presented with the symptoms relied upon by the prosecution as indicia of alcohol/drug induced incapacity. 26. I do not pretend to know why the presentation of the appellant in the courtroom differed from that exhibited on the night in question. It may be that the tension engendered in the appellant by the situation in which he found himself may have been an explanation. It really does not matter. There was only a modest time gap between breath analysis and the medical examination and all objective tests made effectively debunked the theory that the appellant was in fact in a condition of impaired faculties induced by alcohol and a drug, as assessed by the police officers. 27. What does matter is that the only basis advanced for rejecting the hypothesis of innocence cannot withstand scrutiny. 28. This is the more so when it is borne in mind that the manner of driving of the appellant at the time was amply explained by the difficult road condition and configuration. The police officers were ultimately constrained to agree that the appellant's manner of driving was in fact responsible in the circumstances. At one point the road was signposted "Dangerous Curve". Moreover, the appellant did, in effect, explain any repetition of questions by saying that he was apprehensive when spoken to by the police officers. He was, he said deliberately, concentrating on making a mental note of the conversations so that, if necessary, he could recall them later on. 29. On a careful reading of the reasons for decision it seems to me that not only did the learned magistrate base his assessment on fallacious reasoning, in the sense which I have demonstrated, but he also expressed himself in a manner which suggests that he did not apply the correct tests as to burden and degree of proof. 30. I am driven to the conclusion that, at best, the conviction recorded against the appellant must be characterised as unsafe and unsatisfactory. I would, however, go further. In my opinion Mr Tilmouth QC, of senior counsel for the appellant, has abundantly demonstrated that the state of the evidence was such that the prosecution did not ever prove its case beyond reasonable doubt. A strong hypothesis consistent with innocence necessarily arose on the evidence led and still remained at the end of the trial. In this regard I point out that this case does not essentially fall to be determined by reference to credibility. Rather it involves the question of what inferences logically arise from the proven objective facts. As to that this court stands on an equal footing with the court below. 31. For the foregoing reasons the appeal must be allowed and the conviction and orders made consequent upon it set aside.