Queensland Police Service v White

[2016] QMC 27

MAGISTRATES COURT OF QUEENSLAND

CITATION:

Queensland Police Service v White [2016] QMC 27

PARTIES:

Queensland Police Service
(Complainant)

v

Stephen John White
(Defendant)

FILE NO/S:

MAG-00262125/15(7)

DIVISION:

Magistrates Court

PROCEEDING:

Criminal

ORIGINATING COURT:

Emerald

DELIVERED ON:

28 December 2016

DELIVERED AT:

Rockhampton

HEARING DATE:

25 August 2016

MAGISTRATE:

M Morrow

ORDER:

CATCHWORDS:

Vehicle and traffic – drive with illicit drug present in saliva – positive test to methyl amphetamine – whether analysis produced a false positive – whether defence of honest and reasonable mistake of fact available

SOLICITORS:

S/Const R Cannon appeared for the Queensland Police Service

Mr B Gimbert, Solicitor, John Crossan and Company, Solicitors and Notaries for Defendant.

1. Stephen John WHITE is charged with the offence that on the 11 October 2015 at Capella in the Magistrates Courts District of Emerald in the State of Queensland he whilst a relevant drug namely methylamphetamine was present in his saliva did drive a motor vehicle namely a prime mover on a road namely Peak Downs Street Capella.

1. Mr White denies he had taken any methylamphetamine and, at that time, he was taking Duromine and the testing has given a false positive reading.

1. The Prosecution has called Senior Constable John James, Senior Constable Scott Black and Sarah Lorraine Morey, a State Analyst with Queensland Health to give evidence on their behalf and the Defendant gave evidence.

1. There was no expert evidence for the defence.

1. The burden of proof lies with the Prosecution to prove each and every element of the offence and the standard of proof is beyond reasonable doubt.

1. The Defendant does not have to give evidence, or call other people to give evidence on his behalf, or otherwise produce evidence. That he has done so does not mean that he assumed a responsibility of proving his innocence. The burden of proof has not shifted to him. His evidence is added to the evidence called for the Prosecution. As I have said, the Prosecution has the burden of proving each of the elements of the offence beyond reasonable doubt, and it is upon the whole of the evidence that I must be satisfied beyond reasonable doubt that the Prosecution has proved the case before the Defendant may be convicted.

1. In relation to this particular matter I have, during the course of the trial, had an opportunity of listening to and observing the demeanour of the witnesses that have given evidence. This has assisted me in assessing credibility, although I accept that there is a need to keep the appearance and demeanour of a witness in perspective and the weight of that aspect in the light of the other more objective considerations.

The Law

1. As in relation to drug driving laws the following is relevant to this case.

1. Pursuant to section 60: ‘Stopping vehicles for prescribed purposes’ of the Police Powers and Responsibilities Act 2001, police officers may require the person in control of a vehicle to stop the vehicle to allow the officer to conduct a breath test or saliva test.

1. Section 79(2AA) of the Transport Operations (Road Use Management) Act 1995 (TORUMA) prescribes an offence of driving while a relevant drug is present in a person’s blood or saliva and liable to a penalty not exceeding 14 penalty units or to imprisonment for a term not exceeding three months. Mandatory disqualification from holding or obtaining a Queensland driver licence follows conviction for a period of not less than one month and not more than nine months if a person has a current open driver’s licence with no relevant previous convictions in the five years[1].

   [1] Section 86(2), TORUMA

1. Relevant drugs[2], are –

   [2] Section 5 of TORUMA, definitions of particular words is found in schedule 4 which defines “relevant drug” to mean a drug prescribed under a regulation. Traffic Regulation 1962, regulation 172 prescribes 3 relevant drugs.

(a)        3,4-Methylenedioxymethamphetamine (MDMA);

(b)        Delta-9-tetrahydrocannabinol;

(c)        Methylamphetamine.

1. A police officer may require any person found by the officer or who the officer reasonably suspects was during the last preceding three hours of driving a motor vehicle on a road to provide a specimen of breath for a breath test by the person, a specimen of saliva for a saliva test by the person, or both[3].

   [3] Section 80(2) of TORUMA

1. Saliva test is done to obtain an indication of the presence of a relevant drug in a person’s saliva by using a device approved under a regulation[4].

   [4] Regulation 186. Traffic Regulation 1962

1. If it appears to a police officer in consequence of a saliva test carried out that a relevant drug is present in the person’s saliva any police officer, using such force as is necessary, may take the person to a vehicle where facilities are available for the analysis by a saliva analysing instrument f a specimen of saliva for the purposes of subsections (8) to (8L)[5].

   [5] Section 80(6) of TORUMA

1. Any person who is, for the purposes of subsections (8) to (8L), detained at or taken to a vehicle where facilities are available for the analysis by a saliva analysing instrument of a specimen of saliva be required by any police officer to provide one or more of the following as any police officer requires a specimen of the person’s saliva for saliva analysis[6].

   [6] Section 80(8) of TORUMA

1. A person required under subsection (8) or (8C) to provide a specimen of the person’s saliva for saliva analysis must do so by –

(a)        placing a collection unit that is prescribed under a regulation[7], into or adjacent to the person’s mouth when directed by the authorised police officer operating, or who is to operate, a saliva analysing instrument; and

(b)        while providing the specimen, holding or otherwise dealing with the collection unit, in a way prescribed under a regulation[8], until told to stop by the authorised police officer[9].

[7] Regulation 187, Traffic Regulation 1962

[8] Regulation 188, Traffic Regulation 1962

[9] Section 80(8FA) of TORUMA

1. An authorised police officer can then analyse the specimen of saliva on a saliva analysing instrument. The operator of saliva analysing instrument must not be the officer who requires specimen[10].

   [10] Section 80(8J) of TORUMA

1. A saliva analysing instrument means an instrument that is approved under a regulation[11], for finding out whether a relevant drug is present in a person’s saliva by analysing a specimen of the person’s saliva.

   [11] Regulation 184, Traffic Regulation 1962

1. As a result of the saliva analysis of a specimen of saliva by a saliva analysing instrument the saliva analysing instrument indicates the presence of a relevant drug in the specimen, analysis of another part of the specimen of saliva is performed by a laboratory test approved under a regulation[12].

   [12] Regulation 185 Traffic Regulation 1962 defines saliva analysis, is a laboratory test that uses mass spectrometry to identify the presence of a relevant drug is approved.

1. As soon as practicable after a specimen of saliva provided under a requisition has been analysed by means of a saliva analysing instrument, the authorised police officer operating the instrument must – (a) enter details in a record, prescribed under a regulation, about the analysis, including the date and time at which the analysis was made and whether a relevant drug was present in the saliva that has been analysed, and sign the record for the entry; and (b) give a notice, in the approved form, about the result of the analysis to each of the following – (i) the police officer who made the requisition; (ii) the person whose saliva has been analysed (or to another person on behalf of that person on request by that other person)[13].

   [13] Section 80(15AB) of TORUMA

1. As soon as practicable after a specimen of saliva has been obtained and a notice is given to a police officer who made the requisition must deliver the specimen of saliva must deliver it, or arrange for it to be delivered on the police officer’s behalf, to the laboratory of an analyst[14].

   [14] Section 80(16) of TORUMA

1. The specimen of saliva to be delivered under subsection (16) must be delivered to the analyst’s laboratory in the way prescribed under a regulation[15].

   [15] Section 80(16A) of TORUMA. Regulation 183, Traffic Regulation 1962 provides: For the purposes of section 80(16A) of the Act, delivery of a blood, saliva or urine specimen made other than personally must be made in accordance with the International Air Transport Association Dangerous Goods Regulations.

1. Subsection 80(19) of TORUMA provides if a police officer delivers a specimen of saliva, or arranges for the specimen to be delivered on the officer’s behalf, to an analyst’s laboratory in a way prescribed by regulation, in any proceeding – (a) evidence of that fact given by the officer and any person who delivered the specimen on the officer’s behalf; and (b) a certificate, produced in evidence, purporting to be signed by the analyst certifying that the specimen was received at the analyst’s laboratory from the officer; is sufficient evidence of compliance with subsection (16A).

1. A certificate[16] purporting to be signed by an analyst[17] and stating –

   [16] Regulation 178AA, Traffic Regulation 1962 is authority for analyst to issue certificate of an analysis for specimen of saliva.

   [17] Appointments of a State Analyst is made under section 153Z of the Health Act 1937.

(a)        that there was received at the laboratory of the analyst from the police officer named in the certificate a specimen of the blood, or a specimen of the saliva, as stated in the certificate (the delivered specimen) of the person named in the certificate provided by that person on the date and at the place and time stated in the certificate; and

(b)        that the analyst or another analyst made a laboratory test of the delivered specimen on the date and at the place stated in the certificate; and

(c)        that –

(i)          …

(ii)        if the delivered specimen was a specimen of saliva – a stated relevant drug or metabolite of a stated relevant drug was indicated by the laboratory test to be present in the person’s saliva; is evidence of those matters and until the contrary is proved is conclusive such evidence[18].

[18] Section 80(16B) of TORUMA

1. Evidence by an analyst, or by a certificate referred to in subsection (16B), that a stated relevant drug is indicated to be present in the saliva or a person by a laboratory test of a specimen of the saliva of the person, subject to subsection (16G), is conclusive evidence of the presence of the stated relevant drug in the person’s saliva[19].

   [19] Section 80(16FA) of TORUMA

1. The defendant may negative the evidence of the Analyst or certificate mentioned in (16FA) if the defendant proves the result of the laboratory test of that specimen saliva was not a correct result[20].

   [20] Section 89(16G) of TORUMA

Background

1. Senior Constable James and Black, on Sunday the 11 October 2015, were rostered between 7am and 5pm and set up a static roadside random breath and drug testing site on the Gregory Highway at Capella in the vicinity of the light house statute sometime between 7:45am and 7:50am.

1. At 7:55am they intercepted Mr White’s prime over and White underwent a breath and saliva test by Black.

1. White failed the saliva test, and was required to undergo a second saliva test which went for about an hour.

1. At about 9:20am, Mr White failed the second saliva test.

1. His licence was suspended for 24 hours and the saliva specimen was placed in a drop safe of the police vehicle and eventually delivered to the Forensic Toxicology Laboratory, Forensic and Scientific Services, Queensland Health at Coopers Plains.

1. There, Sarah Morey, a State Analyst, performed a laboratory test that confirmed Mr White’s saliva had tested positive to methyl amphetamine on 2 November 2015 and issued a certificate to that effect.

1. Mr White gives evidence he has not taken any methyl amphetamine and was taking Duromine to lose weight at that time.

Discussion

1. A person may be randomly required to undergo a simple preliminary saliva test (screening test) which appears to take only minutes. If a positive result (drug detected) is returned a person may be taken to a police vehicle for a second saliva test.

1. If the second saliva test is positive for drugs, then the person’s driver licence will be suspended for 24 hours and the remainder of the saliva sample will be sent for laboratory analysis. Following a positive laboratory result, motorists will be notified and charged with a traffic offence for drug driving.

1. Drug tests can’t tell exactly how much of a drug was used or exactly when it was used[21].

   [21] NSW Police v Carrall [2016] NSWLC 4 where Heilpern LCM at [6] indicated: It is important to note that there need not be any affect proven – the mere presence of a minute or residual presence of THC is sufficient. There is a separate offence of driving under the influence of a drug for which affect must be proven.

1. Drug tests also don’t measure impairment.

1. Laboratory testing is necessary to confirm any positive test to Australian standards and is generally more accurate than ‘point-of-collection testing’ (POCT). POCT devices provide more timely results, but laboratory analysis can better differentiate illicit from prescription drug use.

1. Although I accept there is no evidence or limited evidence of the above it is fairly well know and logical as is that methyl amphetamine (speed) may be detected for approximately 24 hours after use. Again, the exact time will vary depending on the size of the dose, other drugs taken at the same time, as well as differences in individual metabolism.

1. The defence really argues the tests produced a false positive result. A false positive is a test result that is positive for a drug that has not been taken. It’s false because the result is incorrect. A false positive usually means that the test wasn’t sensitive or accurate enough to be able to tell the difference between two drugs. For example, a person may have taken a prescription drug (e.g. Duromine), but this was confused by the test with an illegal drug (methylamphetamine).

1. Mr White was prescribed and taking Duromine by his Doctor. Duromine is used to reduce body weight in obese or overweight patients. Duromine capsules contain the active ingredient, phentermine. Phentermine is combined with a resin which slowly releases the phentermine so the effect of Duromine lasts all day.

1. Sarah Morey is a State Analyst appointed under the Health Act 1937 and works at Forensic Toxicology Laboratory, Forensic and Scientific Services, Queensland Health at Coopers Plains.

1. This laboratory is nationally accredited by the National Association of Testing Authorities, Australia (NATA). The NATA website indicates to be accredited, laboratories must demonstrate compliance with requirements to either International Organisation for Standardisation (ISO) 17025 (for chemical/forensic testing) or ISO 15189 for medical/pathology testing and must be accredited by the National Association of Testing Authorities. The NATA website confirms that the Forensic and Scientific Service 39 Kessels Road, COOPERS PLAINS QLD 4108 has Accreditation No: 41 This facility, it is said, complies with the requirements of ISO/IEC 17025:2005

18.01 Controlled substances

.01 Drugs

.04 Clandestine drug facility investigation

1. In a case where a person is adamant a false positive has occurred it is nearly always necessary, where possible, to call expert evidence[22]. There is a need for cited works in courtrooms to be authoritative, accurate and the reliability of Wikipedia is questionable, as anyone can add or edit an entry in Wikipedia[23].

   [22] Drug Driving Offences (and Defences) in New South Wales A paper presented at the 2016 ‘Sir Owen Dixon Chambers Floor Conference’. 5 March 2016. Caves House, Jenolan Caves. Stephen Lawrence & Tina Zhou

   [23] Angenot, M. (2013, December 17). Wikipedia as Admissible Evidence?. Slaw. Retrieved September 4, 2016, from Murray, H. and Miller, J. (2010). Wikipedia in court: When and how citing Wikipedia and other consensus websites is appropriate. St. John's Law Review, 84 pp. 633-655; Australian Associated Motor Insurers Ltd v Motor Accidents Authority of NSW [2010] NSWSC 833 at [22] “Evidence was put before this Court about information published by the proprietor or operator of the Wikipedia service. Anyone can contribute to the service and anyone can edit what has been contributed by others. Specialised qualifications are not required for contributors or editors. That is not to say that articles on any topic, including the one of interest here, have not been contributed or edited by suitably qualified medical persons. However, as the publishers of the service say, allowing anyone to edit articles means that the service is more easily vandalised or susceptible to unchecked information. It warns that articles on subject areas sometimes suffer from significant omissions, and that while misinformation and vandalism are usually corrected quickly, that does not always happen.”

1. I am of the view that Senior Constables John James and Black gave forthright and frank evidence. Whilst there were some minor inconsistencies in their evidence which one expects, I found them to be both credible and reliable in their evidence.

1. Mr White I also consider to be an honest and forthright witness. He denies deliberately taking any form of methyl amphetamine and is adamant that by taking a Duromine tablet a false positive test has resulted for methyl amphetamine.

1. I find it incredible this stop went for so long in relation to a saliva test. That is an inordinate amount of time and wonder if Mr Whit had asked for a specimen, as is his right and officers must provide, how long this would have continued for.

1. As the QPS Traffic Manual indicates, persons may physically be unable to provide a sufficient specimen of saliva for saliva analysis, for example a person may have a dry mouth. In such cases section 80(8)(f) of TORUMA provides that where a specimen of saliva for saliva analysis can be required, a specimen of the person’s blood for a laboratory test can also be required.

Conclusion

1. There is no dispute about date, time and place. Nor is there a dispute whether a requisition was made or a direction given by an authorised officer to Mr White to provide a specimen of saliva for analysis by a saliva analysing instrument its operation or that the instrument was faulty or malfunctioned.

1. Mr White claims he has not taken methyl amphetamine

1. The analyst certificate indicates on 2 November 2015 as a result of analysis of his saliva, methyl amphetamine was detected. The statement in the certificate is “evidence” means that it is prima facie evidence of the fact stated. That is, it is sufficient evidence for a court to find that fact proved.

1. The Defendant has not thrown any doubt over the evidence in the certificate and M/s Morey, State Analyst, has given evidence that the laboratory analysis conducted is able to discern between phentermine, an active ingredient in Duromine tablets, and methyl amphetamine. There is no other expert evidence to consider.

1. The statutory scheme gives a Defendant a limited ability to test the accuracy of a saliva analysis.

1. I also accept the evidence of Mr White that he has not knowingly taken methyl amphetamine, the inevitable inference is that the methylamphetamine came to be in his body through the actions of a third party, or through some non-human act or event, and without his knowledge. He cannot point to the person who, on his version of events, may have exposed him to methylamphetamine without his knowledge. There could be many reasons why but that would be speculation on my part.

1. Section 79(12) of TORUMA provides that the Criminal Code section 24 (Mistake of fact) does not apply to an offence under section 79 TORUMA unlike in New South Wales and the Australian Capital Territory where the defence has been allowed in a number of cases[24].

   [24] See NSW Police v Carrall [2016] NSWLC 4 and Beattie v Potts [2015] ACTSC 350

1. In NSW Police v Carrall [2016] NSWLC 4, the defendant was acquitted of a positive cannabis detection while driving on the basis of an honest and reasonable mistake of fact, namely that he had not smoked for a week and a half and based on representations made by police and by the governments road safety website he honestly and reasonably believed he would not have a detectable quantity after that time[25].

   [25] Unfortunately, most states and territories are vague about how long after indulging that THC (the active component) will be detectable in a roadside test. It varies from “up to 24 hours” (Victoria) through to a highly non-specific “detection period varies” in Queensland or SA’s “for several hours after use”. 

1. Beattie v Potts [2015] ACTSC 350 is a case similar to this. M/s Beattie (the appellant) was charged with driving with a prescribed drug in her blood in breach of section 20 of the Road Transport (Alcohol and Drugs) Act 1977 (ACT). The sample taken by Canberra hospital in the aftermath of the motor vehicle accident confirmed the presence of methyl-amphetamine in her blood. M/s Beattie advanced two possibilities for intervening conduct or events mirrored in section 10.1 of the Criminal Code 1995 (Cth) for an honest and reasonable mistake of fact defence for the Magistrate to consider at first instance: “(a) the substance was in the appellant’s blood as she had inadvertently inhaled methylamphetamine smoke at a party she had attended two nights prior to the offence; or (b) methylamphetamine had come into her blood at some time and by some means of which she was unaware.” Burns J determined that the Magistrate had erred in deciding adversely to the appellant ‘whether the appellant had or had not satisfied the evidentiary burden’, by reasoning that the appellant ‘could give no explanation at all as to how the methylamphetamine came to be in her body’. Burns J held: “If the appellant had satisfied the evidentiary burden, in order to convict the appellant, the Magistrate would have to be affirmatively satisfied that the methylamphetamine did not come to be in the appellant’s blood by the means suggested’ Burns J noted ‘it is contrary to general criminal law principles to punish acts or events (including circumstances) which are beyond the control of an accused person’ He further noted “If, for example, she consumed a drink which had been, without her knowledge, adulterated with methylamphetamine by a third party, thereby causing the methylamphetamine to be later detected in her blood, it could not reasonably be argued that the presence of the methylamphetamine in her body was not brought about by someone else over whom she had not control, albeit that she could not identify precisely who adulterated the drink. I see no reason why the evidentiary burden imposed by section 39 cannot be satisfied by way of necessary inference; I also see no reason why the prosecution should not be obliged to negative such a possibility where it genuinely arises on the evidence.” His Honour set aside the appellant’s conviction.

1. Unfortunately for Mr White, that defence is not available in Queensland.

1. I find the Defendant guilty.

Mark Morrow

Acting Magistrate