Murphy v Helmling (No 2)
[2022] ACTMC 25
•19 December 2022
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 beyond reasonable doubt.
I will initially summarise the defendant’s and the scientific evidence, and then go on to address the three above issues.
But first I note the following key principles. It was for the prosecution to prove beyond reasonable doubt each of the elements of the offence. I needed to make my decision according to the evidence, acting rationally and not capriciously. When the defendant gave evidence, she did not assume an obligation to prove anything, other than the evidential onuses for the defences I describe below. In relation to each witness, I could have accepted all, some or none of their evidence.
The offence provision was reproduced in my earlier decision. It is a strict liability offence. The elements of the offence are:
(a) the defendant drove a motor vehicle,
(b) did so on a road or road related area,
(c) and within the relevant period – here within two hours after driving,
(d) had a prescribed drug – here methylamphetamine,
(e) in her oral fluid.
Defendant’s evidence
The defendant gave evidence that she had never knowingly consumed methylamphetamine but had, the day before the alleged offence, inadvertently entered a living room of a home where five occupants were smoking from a glass pipe, what she presumed to be methylamphetamine. She stayed in that room while being ignored and while waiting to ask her friend how long she was going to be. After about five minutes she felt a burning sensation in her nose, walked outside and waited there for her friend. She described the room as being smoke-filled and not well ventilated.
She also described spending time with that same friend, including drinking from her friend’s drink bottle.
When the defendant drove her car the following day, she did not have concerns about possibly committing an offence and was in the company of that same friend.
Scientific evidence
Mr Kite, an analyst from the ACT Government Laboratory gave evidence. He indicated that the laboratory only reported the presence of methylamphetamine in samples of oral fluid when the concentration was at or exceeded 4 ng/ml. The laboratory did not report the actual concentration level, and in this case no evidence of the actual concentration was presented. While he made some attempt to explain the laboratory’s 4 ng/ml cut-off, it did not provide much illumination. In summary the prosecution evidence was that the concentration of methylamphetamine in the defendant’s oral fluid was at least 4 ng/ml, and there was no further explanation about the significance of that level.
The defence tendered an unchallenged report by Dr Robertson, a pharmacologist and forensic toxicologist. In that report, Dr Robertson noted the cut-off for methylamphetamine in oral fluid was 25 ng/ml in the Australian Standard 4760:2019 Procedure for specimen collection and the detection and quantification of drugs in oral fluid. He also explained the purpose of that standard and why the cut-off had been set at that level:
1.1The intent of the oral fluid standard is to provide an alternative form of drug testing to urine drug testing that is less invasive than urine testing (i.e. does not require a toilet or privacy), and compliments urine drug testing rather than substitutes for urine drug testing.
1.2That is, whilst urine testing allows for the detection of drug use in the preceding day or days, (or weeks in some cases), oral fluid testing allows for the detection of drugs that have been used more recently i.e. hours.
1.3As a result of the intent of the oral fluid standard, the cut-off concentrations in the oral fluid standard were primarily set to detect recent use, a time when impairment is more likely.
1.4Whilst the presence of drug(s) in either urine or oral fluid above the defined cut-off concentrations does not infer impairment, with respect to oral fluid, the presence of a drug at or above the cut-off concentration implies more recent use (relative to urine) and therefore a greater possibility of impairment.
1.5Concentrations of drugs in oral fluid below the cut-off may represent use a day or days prior to the collection of the sample where impairment is not likely (i.e. not the intent of the oral fluid standard) or due to contamination of the oral cavity etc. As such the presence of drugs at concentrations below the cut-off were intentionally excluded and are required by the standard to be reported as negative.
Dr Robertson also addressed the considerations I referred to in my earlier decision and recommended in the Australian Institute of Criminology Research and Public Series Part No 25 – Drug Use Monitoring in Australian Drug Detection Testing:
2.2 With respect to whether the level should enable the detection of recent, casual use, the expected concentrations of methylamphetamine in the oral fluid after recent, casual use would typically exceed 50 ng/ml and as such the standard with a cut-off of 25 ng/ml is adequate to detect the recent casual use of methylamphetamine.
2.3 With respect to whether the level is high enough to rule out analytical noise, a concentration of 25 ng/ml is readily detected by laboratories and is certainly high enough to rule out analytical noise. Laboratories can typically detect concentrations lower than 10 ng/ml.
2.4 With respect to whether the level of confirmations, the cut-off concentrations for the screening of ‘Amphetamine-type substances’ that include methylamphetamine, is 50 ng/ml. The confirmatory cut-off for methylamphetamine is 25 ng/ml and is therefore lower than the screening cut-off and reduces the likelihood of unconfirmed presumptive positive tests.
2.5 With respect to whether the level should be high enough to eliminate positive results from inadvertent exposure to the drug, a cut-off concentration of 25 mg/ml should be high enough to eliminate positive results from inadvertent exposure to the drug however depending on the time of exposure relative to the collection and the magnitude of any inadvertent exposure, this can never by completely excluded.
Dr Robertson also opined that oral fluid concentrations following recent casual use would typically comfortably exceed 100 ng/ml. Further, that concentrations of 24 ng/ml (and by implication lower concentrations – including 4 ng/ml) were more consistent with residual drug from prior casual use a day or more prior to the collection and or inadvertent contamination of the oral cavity and would not likely have any material pharmacological effect on driving. He went on to state that such readings could also be due to inadvertent use or environmental exposure, including passive inhalation of smoke containing methylamphetamine.
Assoc Prof Parekh, the Unit Director for Clinical Forensic Medical Services, Canberra Health Services, gave evidence that she was not aware of any published scientific papers indicating that passive smoking of methylamphetamine would lead to a positive oral fluid result on a confirmatory test such as the one employed by the ACT Government Laboratory. During cross examination, Assoc Prof Parekh conceded she was not aware of a particular study. That study was not subsequently put into evidence.
Mistake of fact
The Criminal Code 2002 (ACT), s 36 provides the defence of ‘mistake of fact – strict liability’. That provision operates when the defendant is said to have reasonably, but mistakenly considered whether or not a material fact existed.
Section 58 of the same Act provides that a defendant wishing to rely on the defence has the evidential burden of either presenting or pointing to evidence that suggests a reasonably possibility that there was a mistake of fact.
In this case there was no evidence that the defendant turned her mind to whether or not she had methylamphetamine in her oral fluid, either at that time or in the past in similar circumstances. Accordingly, the defendant has not discharged the evidential burden and therefore this defence does not apply.
Intervening conduct or event
Section 39 of the above Act provides for the defence of ‘intervening conduct or event’ That provision reads:
A person is not criminally responsible for an offence that has a physical element to which absolute or strict liability applies if –
(a)The physical element is brought about by someone else over whom the person has no control or by a non-human act or event over which the person has no control; and
(b)The person could not reasonably have been expecting to guard against the brining about of the physical element.
Again s 58 imposes an evidential burden on the defendant.
Here the defendant pointed to her never having knowingly consumed methylamphetamine. That of itself provides evidence of a reasonable possibility that her exposure was brought about by others and or events over whom and which she had no control over and that she could not reasonably be expected to guard against.
In Beattie v Potts [2015] ACTSC 350 Burns J came to a similar conclusion in similar circumstances. At [45] His Honour observed:
If the evidence of the appellant is accepted, the inevitable inference is that the methylamphetamine came to be in her body through the actions of a third party, or through some non-human act or event, and without her knowledge. It is not to the point that she cannot point to the person who, on her version of events, may have exposed her to methylamphetamine without her knowledge.
Additionally, the defendant presented a couple of possible explanations for her positive result, including the passive smoking and the sharing of her friend’s drink. Ultimately, I was comfortable the defendant satisfied the evidential burden for this defence. The onus then fell on the prosecution to prove beyond reasonable doubt that the defence did not apply.
The defendant’s evidence was not relevantly challenged, and I found her evidence convincing.
The prosecution submitted that the defendant had a choice about staying in the smoke-filled room and or driving the next day, and therefore her exposure to methylamphetamine was not beyond her control and or she was at least able to guard against it. That submission presumed that at the time when the defendant entered the room, while she remained there and or at some time before driving the next day, she had some awareness that she would be, was being or had been exposed to methylamphetamine. There is no evidence of that. I understood the defendant to have been identifying that incident in hindsight, rather than admitting to being aware at the time that she was exposing herself to the substance. Additionally, the defendant indicated she left the area when she felt her nostrils burning.
Assoc Prof Parekh, expressed reservations about whether passive smoking could later lead to a positive test for methylamphetamine. She based that opinion on not being aware of any published scientific papers documenting that effect. However, there was no evidence about what searches or inquiries she made of the scientific literature. Further, her qualifications and experience described in her report did not suggest any past focus on this issue.
In contrast Dr Robertson’s report described a long history in forensic pharmacology, including testing of various substances. His report unequivocally explained that a concentration of 4 ng/ml of methylamphetamine in oral fluid could be due inadvertent environmental exposure, including passive inhalation of smoke containing methylamphetamine.
While the evidence does not allow me to make the positive finding that the defendant’s positive result for methylamphetamine was caused by her inadvertent exposure the day before to smoke containing methylamphetamine, that cannot be discounted and remains open on the evidence. More precisely, as I accept the defendant’s evidence that she has not knowingly consumed methylamphetamine and is not subsequently aware how the drug came to be in her oral fluid, countless unknown causes remain open on the evidence. Accordingly, I am not able to find beyond reasonable doubt that the methylamphetamine in the defendant’s oral fluid was either not brought about by someone else or by a non-human event over which she had no control or that she could reasonably have been expected to guard against that. Consequently, this defence is made out.
Presence of methylamphetamine in oral fluid
As described in my earlier decision, the offence contemplates an amount of a prescribed drug in a driver’s oral fluid somewhere above the lowest possible concentration, and that the necessary threshold need not be above any level demonstrating a degree of impairment. The threshold could be described as at a concentration, which is not demonstrably trifling. Because of the purpose and context of the legislation, that could mean not at a concentration of no significance for the purpose of road safety. I repeat the words of Mr Hanson during his initial presentation speech in the Legislative assembly on 9 December 2009:
The test is not designed to detect the residual presence of a drug that may have been consumed in the days or weeks leading up to the test, but rather, immediately prior to the person driving.
Dr Robertson’s report provided a cogent and persuasive basis for a cut-off of 25 ng/ml. More relevantly for this case, it also explained why a concentration of 4 ng/ml was well below what would be of significance for road safety. While different evidence may yield different results in future matters; based on the evidence before me in this matter, I could not be satisfied beyond reasonable doubt that the concentration was not of no significance for the purpose of road safety. Accordingly, I cannot be satisfied beyond reasonable doubt that the defendant had methylamphetamine in her oral fluid, as contemplated by the offence provision.
I find the defendant not guilty of charge CC 7202 of 2019.
Orders
The Court makes the following orders:
1.Charge CC 7202 of 2019 is dismissed, and
2.Usual orders that the informant pay the defendant’s costs.
| I certify that the preceding thirty-three [33] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Magistrate Theakston Associate: Jack Watson Date: 21 December 2022 |
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