Police v McCagh
[2009] QMC 6
•23 November 2009
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Police v McCagh [2009] QMC 006
PARTIES:
POLICE
(prosecution)
v
CATHERINE LILIAN MCCAGH
(defendant)
FILE NO/S:
MAG92240/09(6)
DIVISION:
Magistrates Court
PROCEEDING:
Charge
ORIGINATING COURT:
Magistrates Court at Innisfail
DELIVERED ON:
23 November 2009
DELIVERED AT:
Innisfail
HEARING DATE:
13 November 2009
MAGISTRATE:
Brassington J
ORDER:
Defendant is convicted
CATCHWORDS:
TRAFFIC LAW – OFFENCES – DRIVING UNDER THE INFLUENCE – drinking after driving – is certificate proof of concentration of alcohol for a period of time
Transport Operations (Road Use Management) Act 1995(Qld), s 80(15)
Davies v Dorfler, ex parte Davies [1988] 2 Qd R 490
COUNSEL:
Moon (sgt) for prosecution
Mobbs for defendant
SOLICITORS:
Prosecution on their own behalf
Vandeleur & Todd for defendant
INTRODUCTION
At about 5pm on 3 May 2009, at Mourilyan, Les Sheehan was driving to his home when he saw a commodore off the side of the road in a ditch. Worried there had been an accident he checked the vehicle and found a woman he described as ‘slumped’ in the front seat. It is not disputed that this woman was the defendant Catherine McCagh.
Mr Sheehan, concerned that the woman had been drinking (he formed this opinion because of her slurred speech only) rang the police. Police did not come for some time and he saw the car drive off at about 5.30pm.
There had been no accident. Ms McCagh, with her friend Michael Clothier, had been driving to collect friends from fishing when she ran out of petrol. Mr Clothier had gone to get more petrol while Ms McCagh waited in the vehicle. When he returned she completed her errands, dropped Mr. Clothier back to his employment and drove to her home. She was not feeling well and went to bed.
The police did respond to Mr Sheehan’s call. Constables’ Seymour and Ahrens were directed to Mourilyan to investigate. They could find no car. They spoke to Mr. Sheehan and then travelled to 20 Mayflower Street Innisfail – the residence of Ms McCagh where they found a motor vehicle which Constable Seymour described as hot and had a front bumper injury. The time was 6.18pm.
The police knocked on the door and spoke to Ms McCagh’s son. Ms McCagh was roused from bed by her son and went to speak to police. The whole conversation was digitally recorded by Constable Seymour and a disc was tendered as an exhibit. The conversation is reproduced below in full as it has a significant bearing on the resolution of the factual disputes in this trial:[1]
Seymour: Catherine we know about what happened on Harbour Road
McCagh: What happened
Seymour: In relation to your car
McCagh: We ran out of petrol
Seymour: What happened there? Can you tell us about that
McCagh: ui
Seymour: Well I can smell liquor on your breath. How much have you hadMcCagh: Not much.. I’ve been sick as. I’m hot. Ui[1]The transcript is my own
Ahrens:Obviously you then haven’t had anything to drink since you came home
McCagh:No
Ahrens:Yep
McCagh:I spewed up tomatoes and I haven’t had tomatoes for weeks like them sun dried tomatoes
Seymour: Ok
Ahrens:Can you tell us about your actions when you ran out of fuel on the road on Harbour Road Mourilyan
McCagh:I just pulled over the side of the road and ui went and got petrol
Seymour: What time was that Catherine
McCagh:I don’t know
Seymour: Its about 6.20pm now
McCagh:Yeah so
Seymour: What time
McCagh:I would not have a clue
Seymour: Ok what have you done since you got home
McCagh:I went to bed I was sick
Seymour: Ok where were you going to on Habourline Road
McCagh:To pick up some people on the jetty
Seymour: Who was in the car with you
McCagh:Mick and when I came back or
Seymour: No when you were heading there either way there or back who did you have in the car
McCagh:On the way up there I had Mick from Walkabout and on the way home I had (?) Ree and Zilla
Seymour: Ok have you changed your clothes at all
McCagh No
SeymourSince then no so you were wearing those clothes
McCagh Yes
Ms McCagh was then directed to provide a breath sample. That test indicated that she was over the general alcohol limit and she was taken to Innisfail Police Station for a breath analysis. A Breath Analysis Certificate produced under s 80(15) of the Transport Operations (Road Use Management) Act 1995 was exhibit 1 in the proceeding. The certificate stated that at 18:42 hours Philip Ahrens analysed a specimen of breath of Katherine Lilian McCagh and the concentration of alcohol as indicated by such analysis to be present in the breath of the subject was 0.097 in 210 litres of breath.
Ms McCagh was charged with an offence under s 79(2)(A) that on the 3rd May 2009 at Mourilyan in the Magistrates Courts District of Innisfail in the State of Queensland she whilst she was over the general alcohol limit but was not over the high alcohol limit did drive a motor vehicle namely a Holden sedan on a road namely Harbour Road Mourilyan.
To this charge she pleaded not guilty. The matter was heard by me Friday 13th November 2009. These are the reasons for my judgment in the trial.
The prosecution case is that they have proved to the requisite standard that Ms McCagh is guilty of the offence for the following reasons:
- Upon Ms McCagh’s own evidence, the evidence of Mr Leslie Sheehan and the evidence of Michael Clothier Ms McCagh was driving her Holden Commodore on Harbour Road Mourilyan between 5 pm and 5.30pm on 3 May 2009.
- Upon her own admission in evidence and in the police station she had drunk one rum in the morning and had drunk alcohol at the Walkabout Hotel with Mr. Clothier before driving the motor vehicle.
- That the certificate tendered under s 80(15) is conclusive proof of the concentration of alcohol in her breath for two hours prior to the time of issue (6.42pm) and as that concentration was 0.097 grams of alcohol in 210 litres of breath she was over the general alcohol limit when she drove the motor vehicle on Harbour Road Mourilyan.
Mr. Mobbs, for Ms McCagh, does not dispute that Ms McCagh was driving nor the time and date of the driving. However, he submits that the certificate tendered under s 80(15) is not conclusive proof of Ms. McCagh’s concentration of alcohol in her breath as the prosecution cannot prove that at the material time Ms. McCagh was in fact driving over the general alcohol limit because:
- In evidence she testified that her initial conversation with police was wrong: when she had returned from Mourilyan she had drunk two rum and cokes that had been prepared for her to settle her stomach; and
- the evidence of her antecedent alcohol consumption does not establish she was in any way intoxicated or over the general alcohol limit.
[10] So thus he contended the prosecution cannot establish that Ms McCagh drove at the material time over the general alcohol limit and the effect of the authorities of Davies v Dorfler [1988]2 Qd R 490 and Leach v Commissioner of Police [2009]QDC 066 mean that the defendant must be acquitted.
[11] Before turning to the resolution of this issue I will address some legal and procedural matters as to how I should instruct myself in this matter.
PROCEDURAL ISSUES
[12] The matter was heard by me on 13 November 2009. Judgment was reserved to consider the relevant authorities. I have not obtained a transcript of the proceedings.
[13] To explain my findings I will refer to some of the evidence. I have of course considered the whole of the evidence presented and because matters have not been stated it does not mean that I have disregarded them or not given them sufficient weight, nor because matters have been mentioned does it follow they have been given undue weight. I have been assisted by seeing and hearing the witnesses and observing their demeanour in giving evidence. I however note that in assessing credit I have taken into account that police witnesses are well used to giving evidence and that a witness may hesitate for many reasons including nervousness and shyness rather then dishonesty.
[14] During the trial the prosecution called four witnesses. The defendant gave evidence. By giving evidence she assumed no burden of proof. The defendant is entitled to the presumption of innocence. The prosecution bears the onus of proof and must prove the guilt of the defendant beyond a reasonable doubt. That is the prosecution bears the burden of proving each element of the charges and excluding any defences raised on the evidence beyond reasonable doubt.
THE LAW TO BE APPLIED:
[15] Section 79 (2) of the Transport Operations (Road Use Management) Act 1995 provides for the offence of driving over the general alcohol limit but not over the high alcohol limit:
Any person who, while the person is over the general alcohol limit but is not over the high alcohol limit—
(a) drives a motor vehicle, tram, train or vessel; or
(b) attempts to put in motion a motor vehicle, tram, train or vessel; or
(c) is in charge of a motor vehicle, tram, train or vessel;
is guilty of an offence and liable to a penalty not exceeding 14 penalty units or to imprisonment for a term not exceeding 3 months.
[16] Section 79A provides the relevant definitions for “general alcohol limit” and “high alcohol limit”. A person is over the general alcohol limit if the concentration of alcohol in the person’s breath is, or is more than, 0.050g of alcohol in 210L of breath. A person is over the high alcohol limit if the concentration of alcohol in the person’s breath is, or is more than, 0.150g of alcohol in 210L of breath.
[17] Section 80 of the Transport Operations (Road Use Management) Act 1995 sets out the important procedural provisions with respect to breath analysing instruments providing for presumptive proof of various matters after the production of a s 80(15) certificate:
Section 80(15A) provides that a copy of a certificate under subsection (15)—
(a) is evidence that the instrument operated by the doctor or officer was a breath analysing instrument; and
(b) is evidence that the instrument was in proper working order and properly operated by the doctor or officer; and
(c) is evidence that all regulations relating to breath analysing instruments were complied with; and
(d) is presumed to have been given to the person whose breath was analysed, unless the contrary is proved.
Section 80 (15G) provides that evidence by a doctor or an authorised police officer or by a copy of a certificate referred to in subsection (15) purporting to be signed by a doctor or an authorised police officer of the concentration of alcohol indicated to be present in the blood or breath of a person by a breath analysing instrument operated by such doctor or authorised police officer is, subject to subsection (15H), conclusive evidence of the concentration of alcohol present in the blood or breath of the person in question at the time (being in the case of such certificate the date and time stated therein) the breath of that person was analysed and at a material time in any proceedings if the analysis was made not more than 2 hours after such material time, and at all material times between those times. (my highlighting and underlining)
Section 80(15H) provides that the defendant may negative such evidence as in s 80(15) only if the defendant proves that at the time of the operation of the breath analysing instrument it was defective or was not properly operated.
[18] In Pearce v. Dennis [1997] QCA 239 the Court held that the effect of s 80(15G) and s. 80(15H) (at p. 3) “was held Corry v. Dorron, ex parte Corry [1985] 1 Qd. R. 31, 34, to be that “a court must accept the reading on the certificate unless the evidence is such as to justify a finding that the defendant has discharged the onus of establishing that the machine was defective or not properly operated at the relevant time”. His Honour Justice of Appeal Keane in R v Anderson [2005] QCA 305 (with whom Williams JA agreed) reiterated the conclusive effect of the s 80 certificate. Anderson concerned the prosecution of a charge of dangerous operation of a motor vehicle causing death while adversely affected by alcohol. There was a certificate under s 80(16B) and admissible under s 80(24) attesting that the blood alcohol concentration at 1.30am was 0.138. The fatal incident occurred at about 12.30am. Much of the case turned on the issue had the trial Judge properly instructed the jury as to the issue of whether the defendant was, at the time of the incident, adversely affected by alcohol. The blood alcohol concentration was one factor that the jury could take into account. However Keane JA makes it plain that once the s 80(16B) certificate is properly in evidence it is conclusive of the blood alcohol concentration:
“In my opinion, the combined affect of these provisions is such as to require a direction to the jury that the effect of s 80(16F) and s 80(24) is that the certificate of analysis is conclusive evidence of the appellant's blood alcohol concentration at the time of the accident.” (para. 61) and at (para. 68) “It is apparent from these passages that the learned sentencing judge directed the jury that they might doubt the efficacy of the certificate as proof of the appellant’s blood alcohol concentration both in relation to the issue of dangerous driving and to the issue whether the appellant’s driving was adversely affected by alcohol, and they might give effect to that doubt in relation to each issue. That was a direction as to the law to which the appellant was not entitled insofar as it was apt to deny the effect of the certificate as conclusive evidence of the appellant’s blood alcohol concentration at the time of the accident”.[2]
[2]Section 80(15G) is largely the equivalent provision to s. 80(16F) with respect to breath analysis rather then blood alcohol concentration.
[19] The defendant has not sought to try and prove that at the time of the operation of the breath analysing instrument it was defective or was not properly operated. Rather it was submitted that the conclusiveness of the certificate is subject to the authority of Davies v Dorfler, ex parte Davies [1988] 2 Qd R 490 which is authority for the proposition that to rely on the s 80(15) certificate as conclusive proof of the blood alcohol concentration the prosecution must prove that the defendant was driving at the material time with a blood alcohol concentration over the general alcohol concentration. In that case Ryan J held:
In Bartlett v. Harrison [1975] Qd. R. 325, 327 Lucas J. pointed out that there is no definition in the subsection of what is meant by “the material time” but he added that “it must one would think refer to the time at which a person is alleged to have been in charge of a motor vehicle”. The combined effect of s 16 (1) and s 16(3) is therefore that if it appears on the hearing of a charge under s 16(1)(a) that at the time when the accused drove the motor vehicle he had a blood alcohol concentration equal to or in excess of .15 per cent he is conclusively presumed to have been at the time under the influence of alcohol. Section 16(3) makes it impossible for a person who, at the time he is in charge of a motor vehicle has a blood alcohol concentration in excess of .15, to rebut the presumption that he was then under the influence of liquor.
….. The submission for the prosecution was that the effect of this “conclusive evidence” provision was that once it was established that a person had driven a motor vehicle, he was conclusively to be taken as having done so with the blood alcohol concentration indicated to be present by a properly functioning and operated breath analysing instrument, if his breath was tested within two hours of the time when he drove the vehicle. The prosecution did not shrink from accepting as a consequence of this suggested interpretation that any person who had driven his car without consuming any liquor at the time and, after parking at his home, consumed liquor, would be conclusively presumed to have driven it under the influence of liquor if he was tested within two hours after his return home and was found to have a blood alcohol concentration equal to or in excess of .15. It was said for the prosecution that the conclusive evidence provision was designed to prevent a situation where a person who was tested after he had left his motor vehicle could escape conviction on the ground that it could not be proved that he had not consumed alcohol only after he left the vehicle. If that was the policy it would have the unfortunate effect that it would operate to convict both those who had not consumed any alcohol prior to leaving a vehicle and those who had.
In my judgment however the submission for the prosecution misconceives the operation of s 16A(15)(e)(i). That does nothing to change the requirements in s 16(1) that the prosecution must prove that a person drove a motor vehicle and that he was then under the influence of liquor. It has the effect of establishing conclusively that at any material time within a period of two hours prior to the time when the breath was analysed the blood alcohol concentration was the same as when the specimen was provided. If the material time is the time when the alleged offence of driving under the influence of liquor occurred it operates to establish conclusively the blood alcohol concentration at that time if it is within two hours of the time when the specimen was provided. But if the evidence before a Stipendiary Magistrate in hearing a charge under s 16(1)(a) of the Act establishes that no offence was committed at the time alleged, that time will not be a “material time” for the purpose of s 16A15(e)(i). That subsection does nothing to convert lawful into unlawful conduct.
[20] As I understand the defendant’s submission because Ms McCagh has testified that she drank rum upon her return home then the prosecution establish any offence occurred at the material time the certificate cannot be relied upon and she must be acquitted.
[21] Before turning to a consideration of that issue it is necessary to make findings of fact as to whether I accept Ms McCagh’s trial testimony.
FINDINGS OF FACT
[22] In her trial testimony Ms McCagh swore that on 3 May 2009, prior to driving to Mourilyan she remembered having a rum and coke much earlier in the morning and having a few sips of a beer (XXXX gold) at the Walkabout. During cross examination she said she could not really remember and may have had rum and coke at the Walkabout as she did not really like beer. She was feeling very sick and after getting home she went to bed. However she could not sleep and “Steve” told her she needed “a stiff rum” and poured her one to make her feel better. She testified she had two glasses of rum and coca cola.
[23] She explained her conversation with the police, where she denied drinking anything upon her return home, as a result of her sickness and tiredness. She testified that she only remembers “bits and pieces” of what she said and can’t remember if she was asked if she had drunk alcohol. She also said she did not feel like talking to the police. During cross-examination she testified she told police what they wanted to hear so she could go back to bed as she was very sick. Further she said that she was off guard and was not really sure what she told police. She said that later she did not wish to talk to police and was essentially too tired and sick to tell them about drinking at home. She denied she was making up her post-driving drinking to get out of the charges.
[24] I regret to say I was not impressed by Ms. McCagh as a witness. Her evidence was evasive when recounting why she denied drinking at home. No issue arose to the accuracy of the conversation – it was recorded.[3] Her explanation that she told them what they wanted to hear was difficult to accept as her other conversation at the house with police was largely accurate as to the details of her day: she was sick, she had driven to Mourilyan and she had run out of petrol. She gave no explanation of why she had denied drinking or why she thought that the police would want to hear she had not been drinking at home. In making these findings I have taken into account that Ms McCagh may well have been tired and sick when she spoke to police in the evening. Nevertheless I am satisfied her original account was truthful and reliable and I reject her trial testimony with respect to her drinking rum when she returned home.
[3]Mr. Mobbs sought the exclusion of the conversation on the basis that the reception of the conversation was unfair because of a breach of the Judges rules. After hearing evidence on a voir dire I rejected the application and admitted the conversation for the reasons recorded in the transcript.
[25] Having rejected Ms McCagh’s trial testimony it does not follow that in the absence of the s 80(15) certificate, I could be satisfied beyond a reasonable doubt that she was over the general alcohol limit when she was driving her motor vehicle at Mourilyan. Her evidence was she had drunk alcohol before driving but it was not a large amount. Although I found Ms McCagh’s evidence somewhat evasive as to exactly what she drank and how much the evidence of Mr. Clothier, who was with her at the Walkabout and in the motor vehicle, corroborates her testimony of drinking a modest amount of alcohol. He testified she did not appear intoxicated to him and had drunk only his offered can of beer. He did not think she had drunk the whole of the can of beer. While Mr. Sheehan called police because he was concerned she had been drinking this observation appears largely based on her slurred speech and her slumping in the motor vehicle. Ms McCagh’s ordinary speech, as submitted by Mr. Mobbs, is slow and slightly slurred. On this day she was tired and, to some extent, sick. Mr. Sheehan’s observations might well be explained by her physical condition rather then intoxication and could not be relied upon beyond reasonable doubt to establish the offence.
[26] Hence, Ms McCagh could only be convicted if the s 80(15) certificate is accepted as conclusive proof of the concentration of alcohol at the time she was driving in Mourilyan. That issue requires consideration of the effect of the decision in Davies v Dorfler.
DAVIES V DORFLER AND OTHER RELEVANT CASE LAW
[27] Davies v Dorfler has been considered in a number of decisions in the District Court following appeals from the Magistrates Court.
[28] In Evans v Morris [1998] 19 Qld Lawyer Reps 74 Judge McGill SC dismissed an appeal following the conviction of the appellant for driving over the general alcohol limit. In that case the appellant was a passenger in a motor vehicle when his wife was stopped and breath tested. She was detained to go to a police station for a breathalyser test. The appellant approached the police and requested to be breath tested. The reading was 0.155. He was also observed to have several indicia of intoxication. A telephone call was made to arrange for the appellant’s collection and police left the scene. Police attended at his house about an hour and twenty minutes later when they learned he may have driven home. When breathalysed at the police station a reading of 0.136 was returned. At trial he testified that he had drunk moderately before being breath tested at the scene and did not accepted that original reading was right. He admitted driving home and said that he had drunk a bottle of brandy when he got home. The Magistrate did not accept the evidence that the appellant had been drinking at home. Judge McGill (at p. 75) did not interfere with this finding but noted that disbelief of evidence that he had not been drinking cannot amount to evidence that he had not. His Honour accepted that the proper basis of the conviction was a reliance on the breathalyser test under s 16A(15G) as conclusive evidence of the blood alcohol concentration of 0.136 at the material time. He said (at p. 77):
A breathalyser test in accordance with the provisions of the Traffic Act was conducted later in the evening and a certificate issued at 11.06pm. By the Act, the result of that test reading .136 was made conclusive evidence of the blood alcohol concentration at any material time during the preceding two hours: s 16A(15G). Since the appellant had been charged with driving a motor vehicle on Oxley Drive, Runaway Bay, it follows that the time when was so driving is a material time, and if that occurred during the two hours prior to 11:06pm the reading from the breathalyser was conclusive evidence of his blood alcohol content at that time. The magistrate found that the time of driving in Oxley Drive was after 9:06pm, and once such a finding was made, it was appropriate to rely on the certificate as conclusive proof of a blood alcohol concentration at the time when the driving in Oxley drive took place. Accordingly, it was appropriate for the magistrate to have found, as he did, a blood alcohol concentration of 0.136 at the time of the driving in Oxley Drive. So long as the finding that the that the driving took place in the two hours prior to the issued certificate was properly made, it seems to me that what followed was inevitable.
[29] His Honour made plain that at any material time in the two hour period the legislation makes the certificate conclusive and not subject to attack by expert evidence. That is the prosecution cannot themselves seek to show, by reliance on the reading taken at 11:06pm, that a count back demonstrates a much higher reading at the actual time of driving. Nor can the defence try to demonstrate the actual lower blood alcohol reading. Both parties to the proceeding are bound by the conclusive certificate. His Honour’s reasoning seems entirely correct and consistent with the judgment of Keane JA in Anderson.
[30] Judge McGill also considered the effect of drinking after driving (see p. 80 of the judgment). He considered the decision of Davies v Dorfler and said:
On one reading it suggests that s 16A(15G), as it now is, does not provide conclusive evidence of the concentration of alcohol in the blood at an earlier time when the person concerned was driving a motor vehicle, unless there is other evidence to establish that the person was at that time under the influence of liquor, but plainly that is not the correct interpretation of the statute. It would render the breathalyser provisions futile. I think that the important part of the decision is to be found towards the foot of the page at 492:
“If the evidence.. establishes that no offence was committed at the time alleged, that time will not be a ‘material time’ for the purposes of s 16A(15G) [as it now is]”
That does not mean there must be evidence to establish that the accused was under the influence of liquor at a particular time before the material time. Rather it means that if the evidence establishes that no offence was committed, that is, that the accused was not driving under the influence of liquor, the time will not be a material time and the certificate will not be conclusive evidence of the concentration of alcohol at the time: see Nicholson Drink Driving the Law in Queensland (LBC Information Services, Sydney, 1998) p 182. In that case, the magistrate accepted evidence that there had been no drinking prior to the time of driving, and there had been alcohol consumed after that time, and before the breath analysis was taken. In my opinion, the decision really goes no further than to establish that in those circumstances the time of driving is not a material time and the certificate is not conclusive in respect of that time. It does not, in my opinion, follow that, so long as there is any evidence of drinking after the time of driving, and before the analysis, the certificate is not conclusive, and must therefore be disregarded. That was not the situation found by the magistrate in the present case or indeed open on any view of the evidence, and therefore the decision in my opinion is not applicable.
[31] In reaching his decision Judge McGill considered the decision of His Honour Judge Wylie in Treloar v McDonald (Unreported Townsville appeal 19 June 1989) and disagreed with the analysis.
[32] In a more recent decision His Honour Judge Robin QC in Leach v Commissioner of Police [2009] QDC 066 agreed with Judge Wylie’s analysis and allowed an appeal with respect to a charge of driving under the influence. In that case the appellant was convicted of an offence against s 79(1) and driving without due care and attention. The appellant admitted to drinking a glass of wine before driving. He then drove and struck a bicycle ridden by a young Japanese tourist. The tourist was not hurt. The appellant left the scene. Witnesses told him to remain and testified to observing indicia consistent with intoxication. At his home the appellant testified to further drinking wine. Police attended his residence and returned him to the police station where there was a certificate established analysis of his breath at 10.10pm showing a blood alcohol concentration of 0.152%. The accident was within the two hour period prior to the issuing of the certificate.
[33] Judge Robin allowed the appeal. He found that there was no evidence to establish that Mr. Leach had consumed any more liquor before driving than he had testified. In those circumstances, relying on the authority of Davies v Durflor and following the reasoning of Treloar v McDonald, His Honour allowed the appeal saying
At the end of the day, I find myself in the same position as was Judge Wylie in Treloar v McDonald of having to declare that from my review of the evidence, the evidence before the Magistrate did not establish beyond reasonable doubt in my mind that Mr Leach, at the time of driving, “was then under the influence of liquor”. To that extent his conduct was lawful. There was no material time which should be called in aid to give rise to the two presumptions ..mention (being those in s 16A(15)(e)(i) and s 16(3) of the Act).
[34] His Honour regarded Davies v Dorfler as applicable in the circumstances and as the prosecution could not prove that the defendant was under the influence of alcohol at the time of the accident the certificate, in light of the accepted post driving drinking, did not have the usual presumptive effect[4] as the evidence did not establish he was under the influence at the material time. His Honour distinguished the decision in Evans v Morris as a different case given the concession of drinking four glasses of wine earlier and been road side tested at 0.155%. However, at para. 21, His Honour noted that there was no authoritative determination as to whether Davis v Dorfler applied where there had been antecedent drinking but with no view enough to put a driver “under the influence”. His Honour did consider that it would be a ‘strange thing’ if ingestion of a single drop of alcohol made all the difference and required a certificate as to blood alcohol concentration known to be wildly wrong to be treated as conclusive evidence. Leach provides strong support for the defendant’s submissions as to the effect of Davies
[4]That is that of a conclusive presumption that as the reading was over the high alcohol limit the defendant was under the influence
[35] His Honour also included in addenda to his judgements two decisions: Weidman v Osborne (Unreported QDC 19 August 1992) and Brannelly v Langsdorf (Unreported QDC 26 May 1994). In Langsdorf the appellant was a passenger in a motor vehicle when the driver was detained and taken for a breathalyser test. When police dropped the driver home they saw the motor vehicle and the appellant admitted to driving the vehicle home. He in turn was breathalysed and found to have a blood alcohol concentration of 0.23. There was evidence that the that the defendant had drunk alcohol in a night club (prior to driving) and had further alcohol (rum) at home after driving. Indeed there was evidence he appeared more intoxicated at home then when observed by police as a passenger. There were admissions at the time of been found at the house that he denied drinking after he drove home. While the police were cross-examined that their recollection as to the alleged admissions might be mistaken but the defendant did not testify. His Honour found the conviction was not unsafe. In Osborne the appellant was involved in an accident. There was indicia of intoxication and evidence she had drunk some alcohol after the incident before she was breathalysed. Her blood alcohol concentration was 0.31. There was some medical evidence that it would be very difficult for her to drink enough between the period of driving and testing to produce the reading of 0.31. In this case His Honour said (at 4) Davies was immediately distinguishable because it was based upon the proposition that the defendant had consumed no alcohol before the “material time”, that is the time the events constituting the charge occurred. His Honour considered that there was enough evidence to convict the appellant of the offence based on the certificate and other evidence, even taking into account the evidence of some post-event drinking. He also considered there may be an argument for guilt based on the conclusive presumption in the legislation but determined that in the circumstances of the case it was not necessary to support the conviction for driving under the influence on that basis.
CONCLUSIONS
[36] The review of the authorities shows there is some disagreement in the District Court decisions about the decision in Davies particularly where there is some evidence of antecedent alcohol consumption coupled with the possibility of post-incident consumption. I prefer the reasoning of his Honour Judge McGill in Evans v Morris. His conclusions as to the presumptive conclusive effect of a certificate under [as it is now] s 80(15F) appear more consistent with the judgment of the Court of Appeal, particularly Keane JA, in Anderson then the analysis adopted by Judge Robin. I would confine Davies, as would Judge McGill, to those cases where there was no drinking prior to the offence hence no evidence of the commission of the offence.
[37] That is not the situation in this case. On the Crown case I am satisfied beyond reasonable doubt that the defendant was drinking alcohol before she drove her motor vehicle. How much she had drunk or the state of intoxication was not proved by the prosecution. Such a task would be very difficult as the defendant admitted to being unsure herself as to whether she was drinking rum or xxxx gold in the afternoon after having some rum in the morning. Mr. Clothier testified he gave her a beer to drink. The concentration of alcohol in blood can be influenced by many factors.
[38] Taking the most favourable view of the evidence for the defendant I am satisfied beyond reasonable doubt that she had some blood alcohol concentration when she drove her motor vehicle at the material time but, relying only on the evidence of the witnesses, I am not satisfied beyond reasonable doubt that she was over the general alcohol level at the material time.
[39] I reject the submission that to rely upon the certificate the prosecution must prove beyond reasonable doubt that the defendant was at the material time driving with a blood alcohol concentration of over .05 or show she was in some way under the influence of alcohol. To require such proof would be effectively to deny the effect of s 80(16G) in any case where there was no visible indicia of alcohol intoxication or reliable evidence of the actual quantity of antecedent drinking.
[40] I find that where there is a question of the blood alcohol concentration at the material time, which there is in this case, the certificate properly issued under s 80(15F) is conclusive proof of the concentration of alcohol at that material time because of the effect of s 80(15G).
[41] I do not accept the defendant’s evidence that she consumed rum when she returned to her house. Rather I consider her initial denial of drinking, recorded by PC Seymour, was an accurate and reliable answer. In those circumstances I find that the defendant cannot rely on the decision of Davies to deny the conclusive effect of the certificate attesting to the concentration of alcohol at the material time. Although not necessary for my final decision I would add that even had I accepted that she had drunk rum at her house I consider that the decision of Davies is properly confined to those situations where there is no evidence that there was any antecedent alcohol consumption. Where there is a question as to the alcohol concentration at the material time then the reading in the certificate, subject of course to the statutory right to cast doubt on the accuracy and reliability of the machine, is conclusive.
[42] I am therefore satisfied beyond reasonable doubt that the concentration of alcohol present in the defendant’s breath at the material time when she was driving a motor vehicle at Mourilyan was 0.097 in 210 litres of breath and thus at the material time the defendant was driving over the general alcohol limit.
[43] Accordingly, she is convicted of the offence.
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