Queensland Police Service v Ntakarutimana
[2012] QDC 139
•22 June 2012
DISTRICT COURT OF QUEENSLAND
CITATION: | Queensland Police Service v Ntakarutimana [2012] QDC 139 |
PARTIES: | QUEENSLAND POLICE SERVICE v INNOCENT NTAKARUTIMANA |
FILE NOS: | 33/2011 & 34/2011 |
DIVISION: | Criminal |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Beenleigh |
DELIVERED ON: | 22 June 2012 |
DELIVERED AT: | Beenleigh |
HEARING DATE: | 10 May 2012 |
JUDGE: | Dearden DCJ |
ORDERS: | 1. Appeal granted. 2. Orders of “no case to answer” in respect of the offences of fail to provide a specimen of breath (TORUMA s. 80(5A)(b)) and fail to provide a specimen of breath for analysis (TORUMA s. 80(11)), set aside. 3. Verdicts of acquittal for the offences of obstruct police and driving under the influence of liquor (TORUMA s. 79(1)(A)) set aside. 4. Remit the offences of fail to provide specimen of breath (TORUMA s. 80(5A)(b)); fail to provide a specimen of breath for analysis (TORUMA s. 80(11)); obstruct police (PPRA s. 790(1)); and drive under the influence of liquor (TORUMA s. 79(1)(A)) to the Magistrates Court at Beenleigh for retrial before another magistrate. |
CATCHWORDS: | Criminal law – appeal and new trial – where at trial, magistrate ordered “no case to answer” – error of law – misdirection as to elements of the offence – whether the learned magistrate erred in accepting a “no case” submission Criminal law – appeal and new trial – where at trial, magistrate made a finding of not guilty – error of law – misdirection as to elements of the offence – where defences not addressed by learned magistrate Criminal law – appeal and new trial – where at trial, magistrate made a finding of not guilty – error of fact |
LEGISLATION: | Transport Operations (Road Use Management) Act 1995 (Qld) ss. 79(1)(A), 80(5A)(b) and 80(11) Police Powers and Responsibilities Act 2000 (Qld) s. 790(1) Justices Act s. 225(1), (2) |
CASES: | Stehbens v Queensland Police Service [2012] QDC 132 R v Gesa and Nona; ex-parte Attorney General [2001] 2 Qd R 72 Doney v R (1990) 171 CLR 207 Queensland Police Service v Tobane [2010] QDC 222 Walton v Gardiner (1993) 177 CLR 378 R v Ferguson; ex-parte Attorney General of Queensland [2008] QCA 227 R v Sutton [1986] 2 Qd R 72 |
COUNSEL: | J A Wooldridge for the appellant L K Crowley for the respondent |
SOLICITORS: | Director of Public Prosecutions for the appellant Legal Aid Queensland for the respondent |
Introduction
On 15, 16 and 23 March 2011, the respondent, Innocent Ntakarutimana, appeared for summary trial before the learned magistrate at Beenleigh in respect of the following charges:-
(1) Fail to provide a specimen of breath (Transport Operations (Road Use Management) Act 1995) (“TORUMA”) s. 80(5A)(b);
(2) Fail to provide specimen of breath for analysis (TORUMA s. 80(11));
(3) Obstruct police (Police Powers and Responsibilities Act 2000 (PPRA)) s. 790(1); and
(4) Drive under the influence of liquor (TORUMA s. 79(1)(A)).
The learned magistrate, at the conclusion of the prosecution case, found that the respondent had no case to answer in respect of the offence of failing to provide a specimen of breath (TORUMA s. 80(5A)(b)) and failing to provide a specimen of breath for analysis (TORUMA s. 80(11)) on 16 March 2011. The trial continued on 23 March 2011, and at the conclusion of the trial (after evidence was called by and on behalf of the respondent), the learned magistrate found that the prosecution had not proved the remaining charges (obstruct police and drive under the influence of liquor) beyond reasonable doubt, and dismissed those charges.
The appellant appeals the decision by the learned magistrate finding there was no case to answer in respect of the offences of fail to provide a specimen of breath (TORUMA s. 80(5A)(b) and TORUMA s.80(11)),[1] and the learned magistrate’s decision to find the respondent not guilty in respect of the offences of obstruct police and drive under the influence of liquor.[2]
[1]Appeal, file 33/2011.
[2]Appeal file 34/2011.
Summary of facts
The following summary of the facts is drawn from the respondent’s outline of submissions:[3]
[3]Appeal Exhibit 3.
“[7] The respondent Innocent Ntakarutimana is an African man from Burundi who was residing at Crestmead at the time of the alleged offences. English is not his first language. He speaks Burundi and Swahili. At the time of the alleged offences he was learning English at TAFE, however his understanding of English was at a basic level and his comprehension of English was not always good.
[8] On 25 July 2010 at about 12.05 am the respondent was driving his vehicle, a grey Ford Falcon, along Browns Plains Road, Crestmead. He was seen at the time by a civilian witness to be driving in an erratic manner. The civilian witness followed the respondent’s vehicle as it drove down Browns Plains Road and turned into Waratah Drive at which time the vehicle was seen to hit the angled gutter and then continue along Waratah Drive. The witness then followed the respondent’s vehicle further to the end of Waratah Drive and on to Chambers Flat Road at which time the witness noticed the vehicle had a flat tyre. As the witness followed the respondent’s vehicle along Chambers Flat Road, the vehicle was seen to turn into Barklya Place at which time the witness observed the tyre of the vehicle to come off the rim. The vehicle was then seen to do a U-turn and stop at the lights at Chambers Flat Road.
[9] The civilian witness then pulled in behind the respondent’s vehicle and got out to speak to him saying words to the effect of “You’re driving like a fuckin dickhead … what’s your go? Are you pissed or what?” to which the respondent replied “There’s something wrong with my car”.
[10] A very short time later a police vehicle arrived. The civilian witness then departed and police approached the respondent in his vehicle. The arresting officer, Constable Radovanovic spoke to the respondent whilst he was seated in his vehicle and stated in English that he required him to provide a specimen of his breath for a breath test (i.e. a “roadside breath test”).
…
[11] … Constable Radovanovic made a request to the respondent to provide a specimen of his breath for a roadside breath test. The requirement was stated in English in the following form of words:
‘I require a specimen of breath for a breath test. This is a breath testing device. To comply with my requirement I now direct you to place your mouth over the mouth piece of the device and blow directly and continuously through the mouth piece until I tell you to stop, so one continuous breath until I tell you to stop.’
[12] Thereafter, the respondent blew into the mouth piece of the breath testing device, however he did not do so correctly and therefore did not provide a sufficient specimen of breath. …
Constable Radovanovic repeated his requirement direction several more times, each time requiring the respondent to provide a specimen of breath for a breath test. The respondent thereafter attempted several more times to provide a specimen of breath but on each occasion the specimen provided was not sufficient.
[13] Throughout the period of the relevant events at the roadside, two other female police officers were present at the scene, namely Constable Gratton, the partner of Constable Radovanovic for that shift, and Sergeant Serafim, the District Duty Officer, who had also attended the scene.
[14] During this process, the respondent repeatedly stated to Constable Radovanovic words to the effect that he did not understand what he was required to do and that he wanted the Constable to demonstrate what was to be done and that he needed help. The respondent also repeatedly stated that he did not understand English.
[15] At various times during the unsuccessful attempts to provide a sufficient specimen of his breath, Constable Radovanovic stated to the respondent words to the effect that ‘I’ll tell you what happens if you can’t give me a sample here. You have to come to the police station and give one’ and ‘… If you don’t provide you will be taken to a police station …’, and after the penultimate occasion that he failed to provide a sufficient specimen of his breath ‘Sir you are detained for the purposes of a breath test … you’ll be attending a police station for the purposes of a breath test.’”[4]
[4]Trial Exhibit 1, track 1.
[16] …
[17] After informing the respondent that he was detained for the purposes of attending a police station for a breath test, Constable Radovanovic gave the respondent one further opportunity to provide a specimen of his breath at the roadside. Again, the respondent attempted to blow into the device but again provided an insufficient sample.
[18] The police then told the respondent to exit his vehicle. The respondent failed to exit his vehicle. After being told to get out of his car several more times the respondent locked the door of his car (although the window remained wound down the whole time). Constable Radovanovic eventually reached through the open window and handcuffed the respondent. The respondent was then dragged from his vehicle by Constable Radovanovic and Sergeant Serafim. He was then led by police to the police vehicle at which time he was advised that he was under arrest for ‘drink driving’. After Constable Radovanovic queried with the other officers what authority he was purporting to arrest the respondent, Sergeant Serafim advised him that the basis of the arrest should be stated to be in respect of the offence of driving under the influence of liquor, based on indicia.[5]
[5]Trial Exhibit 1, track 1.
[19] The respondent was then transported to Logan Police Station where he was led into the BAS room for the purposes of being required to provide a specimen of his breath for analysis … . The authorised officer at the Logan Police Station required the respondent to provide the specimen of breath for analysis, Sergeant Phillips, gave the respondent a direction in the following terms:
‘I direct you to place your mouth over the mouthpiece of the instrument and blow directly and continuously and without escape of breath otherwise, through that mouthpiece, into the instrument, until told to stop by me. Commence blowing now.’
[20] The requirement given by Sergeant Phillips was in the English language. In response, the respondent was said to become very aggressive and started yelling and screaming. He appeared to indicate that he wanted Constable Radovanovic to do it. As a result, Sergeant Phillips concluded that the respondent had failed to provide a specimen of his breath for analysis. No further attempt was made to require the respondent to provide a further specimen.
[21] The respondent was then conveyed to the Beenleigh Watch House where he was charged with the four subject offences alleged.”
Appeal to District Court from Magistrates Court – Summary Criminal/Traffic Trials
I refer to and adopt my exposition of the relevant law as set out in paragraphs 14-16 of Stehbens v Queensland Police Service [2012] QDC 132.
Magistrates decision – no case to answer – failed to provide specimen of breath (TORUMA s. 80(5A)(b)) and failed to provide specimen of breath for analysis (TORUMA s. 80(11))
For a no case submission to succeed, the evidence must be “incapable of supporting a verdict of guilty”.[6] The decision as to whether there is “no case to answer” is a decision of law, and the learned magistrate at this stage must make such a decision on the basis that the prosecution case should be accepted at its highest, and that all inferences which are reasonably open are drawn in the way most favourable to the prosecution.[7] The state of the evidence taken at its highest must be such that the prosecution case is “clearly foredoomed to fail”.[8] Where there is evidence upon which a defendant could lawfully be convicted, then the judicial officer should rule that there is a case to answer, notwithstanding that the judicial officer may consider that a verdict based on such evidence would be unsafe.[9] As the High Court stated in Doney v R (1990) 171 CLR 207:
“… If there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury … and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision.”[10]
[6]R v Gesa and Nona; ex-parte Attorney General [2001] 2 Qd R 72, 76 (para 17-18).
[7]May v O’Sullivan (1955) 92 CLR 654; questions of law reserved on acquittal (N2 of 1993) (1993) 61 SASR 1.
[8]Walton v Gardiner (1993) 177 CLR 378, 393; R v Ferguson; ex-parte Attorney General of Queensland [2008] QCA 227, paras 55, 61-64.
[9]R v Sutton [1986] 2 Qd R 72, 78 (per Shepherdson J).
[10]Doney v R (1990) 171 CLR 207, 214; see also R v Soper [1993] QCA 63.
TORUMA in ss. 80(1A), (5A), (11), (5B) and (11A) provides:
“s. 80(1A) When person taken not to have provided specimen
If a person is required under this section to provide a specimen of breath for a breath test or analysis, a specimen of saliva for a saliva test or for saliva analysis or a specimen of blood for a laboratory test, the person is taken not to have provided the specimen unless it—
(a)is sufficient to enable the test or the analysis to be carried out; and
(b)is provided in a way that enables the objective of the test or analysis to be satisfactorily achieved.
s. 80(5A) Offence of failing to provide specimen as required
Subject to subsection (5B), if a person required by a police officer under subsection (2) or (2A) to provide a specimen of breath for a breath test, or a specimen of saliva for a saliva test, by the person either—
(a) fails to provide the specimen; or
(b)fails to provide the specimen in the manner directed by the police officer who makes the requirement;
the person commits an offence against this Act.
Maximum penalty—40 penalty units or 6 months imprisonment.”
s.80(11) Guilt of offence and liability for failing to provide specimen
If a police officer makes a requisition under subsection (8),
(8C) or (9) in relation to a person and the person fails to provide as prescribed in this section—
(a)a specimen of the person’s breath for analysis by a breath analysing instrument; or
(b)a specimen of the person’s saliva for saliva analysis; or
(c)a specimen of the person’s blood for a laboratory test;
each of the following applies—
(d)the person is guilty of an offence that is taken to be an offence against the appropriate provision of section 79(1);
(e)the person is liable to the same punishment in all respects, including disqualification from holding or obtaining a Queensland driver licence, as the person would be if the offence were actually an offence committed by the person against the appropriate provision of section 79(1).
s.80 (5B) When person is not guilty under subsection (5A)
A person referred to in subsection (5A) is not guilty of an offence under that subsection if—
(a)immediately after the requirement is made, the person produces to the police officer a certificate in the approved form from a doctor stating that—
(i)because of a stated illness or disability, the person is incapable of providing a specimen of breath, a specimen of saliva or both a specimen of breath and of saliva; or
(ii)the provision of a specimen of breath, a specimen of saliva or both a specimen of breath and of saliva could adversely affect the person’s health; or
(b)the person satisfies the justices that the requisition to provide a specimen of breath, a specimen of saliva or both a specimen of breath and of saliva was not lawfully made or that the person was, by reason of the events that occurred, incapable of providing the specimen as required or that there was some other reason of a substantial character for the person’s failure to provide the specimen as required other than a desire to avoid providing information that might be used in evidence.
s.80(11A)Person not guilty under subsection (11) in particular circumstances
A person referred to in subsection (11) is not guilty of an offence under that subsection if the person satisfies the justices that the requisition to provide the specimen was not lawfully made or that the person was, because of the events that occurred, incapable of providing the specimen or that there was some other reason of a substantial character for the person’s failure to provide the specimen other than a desire to avoid providing information that might be used in evidence.”
The structure of the offences under TORUMA s. 80(5A) and TORUMA s. 80(11) is that in each case, an offence of strict liability is created, followed by exculpatory provisions. In respect of TORUMA s. 80 (5A), the offence is made out if:
“a person required by a police officer under subsection (2) or (2A) to provide a specimen of breath for a breath test …, by the person either —
(a) Fails to provide the specimen; or
(b) fails to provide the specimen in the manner directed by the police officer who makes the requirements; the person commits an offence against this Act.”
The equivalent offence under s. 80(11) is made out if:
“… A police officer makes a requisition under subsection (8), (8C) or (9) in relation to a person and the person fails to provide as prescribed in this section —
“(a) A specimen of the person’s breath for analysis by a breath analysing instrument;
…
(d)the person is guilty of an offence that is taken to be an offence against the appropriate provision of section 79(1).”
The learned magistrate held that “certainly with regard to the … failure to provide offences … I am of the opinion that an essential element of that offence, pursuant to s. 80, is that he is given that requisition to provide the breath test, either on the roadside or back at the police station.”[11] The learned magistrate was correct in law at this stage of the decision.
[11]Trial transcript 2-31.
The learned magistrate, however, went on to state:-
“If he [the respondent] cannot understand that, well, that element – that element falls and that (sic) the prosecution is then unable to substantiate that charge.”[12]
[12]Trial transcript 2-31.
The learned magistrate went on to find “its absolutely essentially (sic) that s. 433 [of the PPRA] with regard to interpreters … be adhered to in a situation such as this, and it does effectively – even though it refers to a relevant person – it does, I think, refer – section 433(3) [of the PPRA] indicates an investigation means the process … so I am satisfied that with regard to those – for those reasons, with regard to the failing to provide at the roadside and failing to provide back at the police … there is no case to answer and those charges are dismissed.”[13]
[13]Trial transcript 2-32.
The learned magistrate has erred in law, firstly by misdirecting herself as to the elements of the offence, and secondly as to the applicability of PPRA s. 433, which does not apply to a direction pursuant to TORUMA.[14]
[14]PPRA s. 414 specifically provides that ch 15, pt 3 of the PPRA applies only to indictable offences and PPRA s. 415 provides that pt 3 of ch 15 applies only to a person being questioned about an indictable offence.
In respect of each of the “failure to supply” offences, it is clear and inescapable (factually) that the respondent did fail to provide a specimen of breath, both at the roadside (for Constable Radovanovic) and at the police station (for Sergeant Phillips). Whether or not the respondent understood the requisitions administered to him was irrelevant. The learned magistrate should have allowed the trial to proceed in respect of each offence, and then considered the potential exculpatory provisions pursuant to s. 80(5B) and s. 80(11A). The learned magistrate erred in law in accepting the “no case” submission. The learned magistrate should have concluded, in respect of each of the offences, that there was a prima facie case pursuant to s. 80(5A) and s. 80(11), and so much is conceded by the respondent’s counsel Mr Crowley.[15]
[15]Respondent’s outline of submissions p. 26 para 70.
Finding of not guilty in respect of the charge of obstruct police (PPRA s. 790(1))
The learned magistrate found the respondent not guilty in respect of both counts. In respect of the obstruct police, the learned magistrate held that it was “an element of that offence … that if an instruction is given to someone by a police officer and he doesn’t follow that instruction, there has to be understanding of that instruction”,[16] and although the learned magistrate concluded that a police officer had been obstructed, the learned magistrate found the respondent not guilty because the learned magistrate was “satisfied that [the respondent] didn’t understand the instruction by the police officer to get out of the car”.[17]
[16]Trial decision p. 1-2.
[17]Trial decision p. 1-3.
PPRA s. 790(1) provides:
“a person must not assault or obstruct a police officer in the performance of the officer’s duties”.
PPRA s. 790(3) provides that in s. 790:
“obstruct includes hinder, resist and attempt to obstruct”.
In Queensland Police Service v Tobane [2010] QDC 222 McGill DCJ concluded that … “intention to cause a particular result was not expressly declared to be an element of the offence constituted by [PPRA] s 790(1)” and further that “the effect of [Criminal Code] s. 23(2) is to exclude any requirement of an intention to obstruct in relation to the offence under s. 790”.[18] In short, McGill DCJ concluded that “it was not necessary for the complainant to show that the [alleged offender] intended to obstruct.”[19]
[18]Queensland Police Service v Tobane [2010] QDC 222, para 20.
[19]Queensland Police Service v Tobane [2010] QDC 222, para 21.
I conclude therefore that it was not necessary for the prosecution on the respondent’s trial to prove that the respondent wilfully obstructed police officer Radovanovic. Accordingly, I conclude that the learned magistrate erred in law in finding the defendant not guilty of the charge of obstruct. It may be that on the evidence, potential defences under Criminal Code ss. 23 and 24 arise, but these defences (which place an evidential onus on the alleged offender but then require the prosecution to disprove them beyond reasonable doubt), were not addressed by the learned magistrate.
Finding of not guilty in respect of driving under the influence of liquor or a drug (TORUMA s.79(1))
The evidence from the prosecution witnesses included the evidence of Brendan Clark that the respondent’s vehicle had been driven through three sets of red lights, kept veering off to the left hand side of the road, had gone over a roundabout, hit an angled gutter, nearly wiped out a taxi and a number of other cars, had lost a tyre off the rim, and that the driver, when approached, appeared to have bloodshot eyes.[20]
[20]Trial transcript, pp. 1-55 – 1-56.
The evidence of Constable Radovanovic was that the respondent’s eyes were “extremely glassy [and] swollen,” that he had “slurred speech”, was “extremely unsteady on his feet” and “from the defendant’s … immediate area [Constable Radovanovic] could smell a strong sweet smell that [to him] smelt like that of liquor”.[21] Constable Radovanovic also gave evidence that the respondent “was sweating profusely,” that “his eyes were extremely glassy … [and] bloodshot, and they appeared swollen” and that the respondent’s “speech was extremely slurred and he appeared confused.”[22] In addition Constable Radovanovic stated that at the police station, while the respondent was sitting in the common room area, “he was almost falling off his chair at times.”[23]
[21]Trial transcript, p. 1-14.
[22]Trial transcript, p. 1-16.
[23]Trial transcript, p. 1-18.
Constable Gratton gave evidence that there was “a sweet sort of smell that was coming from [the respondent’s] car”,[24] that the respondent was “kind of languid in his movements,” “had a slowed speech,” “was sweating” and “his eyes were bloodshot”.[25] Constable Gratton went on to state that having examined the vehicle, “there was nothing in there that suggested what intoxicating substance the driver had been using. The thing that led us towards believing that it was liquor was the smell that was coming from it”.[26] Constable Gratton noted that at the police station, the respondent “seemed to be having difficulties walking” and inside the police station, “seemed to be having difficulty sitting and was leaning quite a lot to one side”.[27]
[24]Trial transcript, p. 2-9.
[25]Trial transcript, p. 2-9.
[26]Trial transcript, p. 2-10.
[27]Trial transcript, p. 2-10.
Sergeant Serafim gave evidence that when she was looking at the respondent at the roadside, she “could actually smell through the window a very strong smell of pungent stale liquor …emanating from inside the car.”[28]
[28]Trial transcript, p. 2-3.
The learned magistrate correctly noted that the indicia included “red eyes” “a sweet smell”, “sweating”, “slurred words”, “staggering” and “falling off the chair”. The learned magistrate addressed these various indicia, but, in particular, incorrectly stated, “with regard to the sweet smell, I don’t really think that that can be – that’s certainly not indicia.” The learned magistrate went on to note evidence from the respondent’s “teacher” (Ms Emma Percy) to the effect that the respondent “did often smell sweet” and that “everyone at the TAFE commented on the fact that [the respondent] had … strong aftershave or perfume”.[29]
[29]Trial decision, p. 1-4.
During the course of submissions the learned magistrate stated to the prosecutor “just correct me if I’m wrong but there’s no evidence of a smell of alcohol is there … at all?”[30], a comment which the learned magistrate reinforced later in submissions by stating to the prosecutor “so there’s no smell of alcohol is there?”[31] The trial prosecutor appears to have conceded that there was a “strong sweet smell” but failed to remind the learned magistrate of the specific evidence of police officers Radovanovic, Gratton and Seratim that they considered that what they had smelt was, in fact, liquor.
[30]Trial transcript, p. 2-42.
[31]Trial transcript, p. 2-43.
In these circumstances, I consider this constituted a critical factual error by the learned magistrate. I accept, therefore, the submission by the appellant that the acquittal on this charge should also be set aside.
Justices Act s. 225(1) provides:
“On the hearing of an appeal, the judge may confirm, set aside or vary the appealed order or make any other order in the matter the judge considers just.”
Justices Act s. 225(2) provides:
“If the judge sets aside an order, the judge may send the proceedings back to whoever made the order or to any magistrate’s court with directions of any kind for the further conduct of the proceedings including, for example, directions for re-hearing or reconsideration.”
It is clear that there were a series of legal and factual errors which, as indicated, have persuaded me that the learned magistrate’s decision in respect to the “no case to answer” submission on each of the fail to provide specimen charges should be set aside. I have further concluded that the verdicts of acquittal in respect of each of the obstruct police and driving under the influence of liquor or a drug charges should be set aside. Accordingly, I conclude that all charges should be remitted to the Magistrate’s Court for rehearing before a different magistrate. No doubt my reasons for this decision will be of assistance to the next trial magistrate.
Orders
1. Appeal granted.
2. Orders of “no case to answer” in respect of the offences of failed to provide a specimen of breath (TORUMA s. 80(5A)(b)) and failed to provide a specimen of breath for analysis (TORUMA s. 80(11)), be set aside.
3. Verdicts of acquittal for the offences of obstruct police and driving under the influence of liquor (TORUMA s. 79(1)(A)) be set aside.
4. Remit the offences of fail to provide specimen of breath (TORUMA s. 80(5A)(b)); failed to provide a specimen of breath for analysis (TORUMA s. 80(11)); obstruct police (PPRA s. 790(1)); and drive under the influence of liquor (TORUMA s. 79(1)(A)) to the Magistrates Court at Beenleigh for retrial before another magistrate.
Costs
I will hear the parties on costs.
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