Police v McCagh

[2009] QMC 6

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

1. 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.  

1. 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.

1. 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.

1. 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.

1. 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 had
   

   [1]The transcript is my own

   McCagh:        Not much.. I’ve been sick as.  I’m hot.  Ui

   Ahrens:Obviously you then haven’t had anything to drink since you came…