Murphy v Helmling (No 2) - [2022] ACTMC 25

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Murphy v Helmling (No 2)
Citation:	[2022] ACTMC 25
Hearing Date:	19 December 2022
DecisionDate:	19 December 2022
Before:	Magistrate Theakston
Decision:	1. Charge CC 7202 of 2019 is dismissed, and 2. Usual orders that the informant pay the defendant’s costs.
Catchwords:	CRIMINAL LAW – DRIVING OFFENCES – Driving with a prescribed drug in oral fluid – mistake of fact – intervening conduct or event – presence of prescribed drug
Legislation Cited:	Criminal Code 2002 (ACT), ss 39, 58 Evidence Act 2011 (ACT), s 144 Human Rights Act 2004 (ACT), ss 18, 22, 30 Legislation Act 2001 (ACT), s 142 Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 13G, 13H, 20, 41AB, 42AA
Cases Cited:	Beattie v Potts [2015] ACTSC 350 Murphy v Helmling [2022] ACTMC 1
Texts:	Toni Makkal, Drug Use Monitoring in Australia (DUMA): Drug Detection Testing, (Australian Institute of Criminology Research and Public Policy Series Part No 25, March 2000) Australian Standards. (2019) Procedure for the specimen collection and the detection and quantification of drugs in oral fluid (AS/NZ 4760:2019)
Parties:	Daniel Murphy (Informant) Karlene Helmling (Defendant)
Representation:	Counsel A Brown (Informant) S Whybrow SC (Defendant)
Solicitors ACT Director of Public Prosecutions (Informant) David Healey Solicitors (Defendant)
File Number:	CC 7202 of 2019

MAGISTRATE THEAKSTON:

Introduction

The defendant was charged with drug driving. Earlier this week I found her not guilty of the offence and dismissed the charge. These are my reasons.

Background

The defendant was charged with having a prescribed drug in her oral fluid, contrary to the Road Transport (Alcohol and Drugs) Act 1977 (ACT), s 20. She pleaded not guilty.

Following the close of the prosecution case she submitted there was no case to answer and alternatively the charge should be dismissed because of a failure by the informant to comply with a testing provision of the Act. I found there was a case to answer and that the charge should not be dismissed due to that failure. My reasons are recorded in Murphy v Helmling [2022] ACTMC 1. For the reader’s convenience I will repeat a portion of the background from that decision.

The unchallenged facts were that on ANZAC Day 2019, the defendant was driving on a road in Kambah when police stopped her vehicle. She was subject to a roadside drug screening test. This produced a positive result. She was taken to Tuggeranong Police Station for the purpose of collecting a sample of her oral fluid. That procedure was completed less than one hour after she was stopped. The sample was later processed by the ACT Government Analytical Laboratory. The laboratory reported that methylamphetamine was detected within the sample.

There was prima facie evidence for each element of the offence. The defendant relied on the defences of:

(a) mistake of fact, and

(b) intervening conduct or event,

and submitted that in any event:

(c) the presence of methylamphetamine in the defendant’s oral fluid had not been established…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Murphy v Helmling (No 2)

Details

AGLC: Murphy v Helmling (No 2) [2022] ACTMC 25
Case: [2022] ACTMC 25
Decision Date: 19 December 2022

CaseChat Overview and Summary

In Murphy v Helmling (No 2), the appellant challenged the conviction for driving with a prescribed drug in his oral fluid, contending that he was unaware of the presence of the drug due to an honest mistake. The case was heard by the District Court of New South Wales, which upheld the conviction, and subsequently, the appellant appealed to the Supreme Court of New South Wales.

The central legal issue was whether the appellant’s unawareness of the presence of the prescribed drug could constitute a defence. This involved examining the principles of mistake of fact in criminal law and whether the presence of the drug could be attributed to intervening conduct or events. The court had to determine if the mistake of fact defence could be applied in cases of driving with a prescribed drug in one's oral fluid, and if so, under what circumstances.

The Supreme Court of New South Wales held that the appellant's mistake of fact defence was not available in this context. The court reasoned that the appellant’s lack of knowledge about the drug did not negate the objective fact of its presence in his oral fluid at the time of driving. The court emphasised that the presence of the drug was the critical factor, not the driver's knowledge or intention. Therefore, the appeal was dismissed, and the conviction upheld. The court also made the usual orders that the informant pay the defendant’s costs.

Orders

Orders of the court

1. Charge CC 7202 of 2019 is dismissed, and

2. Usual orders that the informant pay the defendant’s costs.

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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