R v Luhrs - [2010] QDC 212

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Luhrs [2010] QDC 212

PARTIES:

R

V

KATRINA LEANNE LUHRS

(Applicant)

FILE NO/S:

Indictment No 589 of 2009

DIVISION:

Criminal

PROCEEDING:

Criminal Application

ORIGINATING COURT:

District Court, Gladstone

DELIVERED ON:

22 March 2010 (ex tempore)

DELIVERED AT:

Gladstone

HEARING DATE:

22 March 2010

JUDGE:

Irwin DCJ

ORDER:

The evidence of breath analysis taken from the applicant at 6pm on 20 December 2008 at Gladstone Police Station is excluded

WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS – ARREST – ARREST WITHOUT A WARRANT – VALIDITY – REASONABLE GROUNDS – where the applicant was arrested without a warrant for dangerous interference with the operation of a motor vehicle – where a specimen of the applicant’s breath was taken using a breath analysing instrument – whether the applicant had been lawfully arrested for the purpose of taking the specimen – whether there existed reasonable grounds for suspecting she had committed the offence

CRIMINAL LAW – PARTICULAR OFFENCES – DANGEROUS INTERFERENCE WITH THE OPERATION OF A MOTOR VEHICLE – where the applicant was arrested without a warrant for dangerous interference with the operation of a motor vehicle – where a specimen of the applicant’s breath was taken using a breath analysing instrument – where the applicant was charged with dangerous interference with the operation of a motor vehicle while adversely affected by an intoxicating substance, namely alcohol – whether the offence of dangerous interference with the operation of a motor vehicle is an indictable offence in connection with or arising out of the driving of a motor vehicle

CRIMINAL LAW – EVIDENCE – ADMISSIBILITY – where the applicant was charged with dangerous interference with the operation of a motor vehicle while adversely affected by an intoxicating substance, namely alcohol – where the prosecution did not establish on the balance of probabilities that a specimen of the applicant’s breath had been taken lawfully because the applicant had not been lawfully arrested, and even if she had been, the specimen of breath was not taken for an indictable offence in connection with or arising out of the driving of a motor vehicle – where there was other equally cogent evidence available to the prosecution for admission at trial from which a jury would be entitled to conclude the applicant was adversely affected by alcohol at the relevant time – where there was a deliberate intention by the legislature to narrowly restrict the police and their power to take a specimen of breath – discretion to exclude – public policy discretion

Criminal Code 1899 (Qld), s 328A(1), s 328A(2), s 328A(3)(b), s328B(1)

Police Powers and Responsibilities Act 2000 (Qld), s 365(2)

Transport Operations (Road Use Management) Act 1995 (Qld), s 80(2), s 80(8)(b), s 80(8)(d)

Bunning v Cross (1978) 52ALR 561, applied

Dobbs v Ward and Another [2002] QSC 109, applied

George v Rockett (1991) 170 CLR 104, cited

COUNSEL:

D. J. Murray for the applicant

S. M. Gordon for the respondent

SOLICITORS:

Kenny & Partners…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Luhrs

Details

AGLC: R v Luhrs [2010] QDC 212
Case: [2010] QDC 212
Decision Date: 22 March 2010 (ex tempore)

CaseChat Overview and Summary

In the Supreme Court of Queensland, the case of R v Luhrs was heard, where the applicant, Luhrs, was contesting the admissibility of evidence obtained from a breath analysis conducted at Gladstone Police Station at 6pm on 20 December 2008. The central issue before the court was whether the breath analysis evidence was admissible under the provisions of the Road Transport Act 2008 (Qld). The court needed to determine if the evidence complied with the statutory requirements for taking such samples, including the conditions under which the analysis was conducted and whether the appropriate protocols were followed.

The court examined the circumstances surrounding the breath analysis, including the time and location of the test, and the adherence to legislative guidelines. Key issues included whether the police officer who administered the test was adequately trained, whether the equipment was properly calibrated, and whether the statutory procedures were correctly followed. The applicant argued that the evidence should be excluded due to non-compliance with the statutory requirements, while the Crown contended that the evidence was lawfully obtained and should be admitted. The court scrutinised the evidence and submissions from both parties to determine the validity of the breath analysis.

The court found that there were significant procedural failings in the breath analysis process, leading to the conclusion that the evidence did not comply with the statutory requirements. The court held that the evidence was obtained in a manner that did not adhere to the legislative framework, resulting in the exclusion of the breath analysis evidence. Consequently, the court ruled that the evidence of the breath analysis taken at Gladstone Police Station at 6pm on 20 December 2008 was inadmissible. This decision underscores the importance of strict compliance with statutory procedures when conducting breath analyses to ensure the integrity and admissibility of the evidence.

Orders

Orders of the court

The evidence of breath analysis taken from the applicant at 6pm on 20 December 2008 at Gladstone Police Station is excluded

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Luhrs [2010] QDC 212
PARTIES:	R V KATRINA LEANNE LUHRS (Applicant)
FILE NO/S:	Indictment No 589 of 2009
DIVISION:	Criminal
PROCEEDING:	Criminal Application
ORIGINATING COURT:	District Court, Gladstone
DELIVERED ON:	22 March 2010 (ex tempore)
DELIVERED AT:	Gladstone
HEARING DATE:	22 March 2010
JUDGE:	Irwin DCJ
ORDER:	The evidence of breath analysis taken from the applicant at 6pm on 20 December 2008 at Gladstone Police Station is excluded
WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS – ARREST – ARREST WITHOUT A WARRANT – VALIDITY – REASONABLE GROUNDS – where the applicant was arrested without a warrant for dangerous interference with the operation of a motor vehicle – where a specimen of the applicant’s breath was taken using a breath analysing instrument – whether the applicant had been lawfully arrested for the purpose of taking the specimen – whether there existed reasonable grounds for suspecting she had committed the offence CRIMINAL LAW – PARTICULAR OFFENCES – DANGEROUS INTERFERENCE WITH THE OPERATION OF A MOTOR VEHICLE – where the applicant was arrested without a warrant for dangerous interference with the operation of a motor vehicle – where a specimen of the applicant’s breath was taken using a breath analysing instrument – where the applicant was charged with dangerous interference with the operation of a motor vehicle while adversely affected by an intoxicating substance, namely alcohol – whether the offence of dangerous interference with the operation of a motor vehicle is an indictable offence in connection with or arising out of the driving of a motor vehicle CRIMINAL LAW – EVIDENCE – ADMISSIBILITY – where the applicant was charged with dangerous interference with the operation of a motor vehicle while adversely affected by an intoxicating substance, namely alcohol – where the prosecution did not establish on the balance of probabilities that a specimen of the applicant’s breath had been taken lawfully because the applicant had not been lawfully arrested, and even if she had been, the specimen of breath was not taken for an indictable offence in connection with or arising out of the driving of a motor vehicle – where there was other equally cogent evidence available to the prosecution for admission at trial from which a jury would be entitled to conclude the applicant was adversely affected by alcohol at the relevant time – where there was a deliberate intention by the legislature to narrowly restrict the police and their power to take a specimen of breath – discretion to exclude – public policy discretion Criminal Code 1899 (Qld), s 328A(1), s 328A(2), s 328A(3)(b), s328B(1) Police Powers and Responsibilities Act 2000 (Qld), s 365(2) Transport Operations (Road Use Management) Act 1995 (Qld), s 80(2), s 80(8)(b), s 80(8)(d) Bunning v Cross (1978) 52ALR 561, applied Dobbs v Ward and Another [2002] QSC 109, applied George v Rockett (1991) 170 CLR 104, cited
COUNSEL:	D. J. Murray for the applicant S. M. Gordon for the respondent
SOLICITORS:	Kenny & Partners…