K v Police HC Auckland CRI 2007-092-3700

[2007] NZHC 1353

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2007-092-003700

BETWEEN  K

Appellant

ANDPOLICE Respondent

Hearing:         27 November 2007

Appearances: D Rawlings for Appellant

S N B Wimsett for Respondent

Judgment:      30 November 2007

JUDGMENT OF COOPER J

This judgment was delivered by Justice Cooper on

30 November 2007 at 9.30 a.m., pursuant to r 540(4) of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Public Defence Office, PO Box 76 715, Manukau

Meredith Connell, Crown Solicitors, PO Box 2213, Upper Shortland Street, Auckland.

K V POLICE HC AK CRI 2007-092-003700  30 November 2007

[1]      The appellant, Mr K  , was charged with an offence under s 58(1) of the Land Transport Act 1998.   It was alleged that he had driven a vehicle on a road whilst under the influence of a drug, to such an extent as to be incapable of having proper control of the vehicle.   Because his driving on the occasion in question had resulted  in  him  driving  his  car  into  a  tree,  he  was  also  charged  with  driving carelessly, under ss 8 and 37 of the Act.

[2]      He  was  convicted  by  Blackie DCJ  following  a  defended  hearing  in  the Manukau District Court on 28 August 2007.  He now appeals against his conviction on the charge of driving whilst under the influence of drugs.  He accepts that he was properly convicted on the careless driving charge.

[3]      The appeal has raised a novel question, on which counsel assure me there is no authority in New Zealand or in other jurisdictions with legislative provisions similar to s 58 of the Land Transport Act.  Before dealing with the basis upon which the appellant was convicted, and the grounds on which he appeals, it will be convenient to set out the provisions of s 58(1) of the Act, for the outcome of the appeal depends upon its proper construction.  The subsection provides:

A person commits an offence if the person drives or attempts to drive a motor vehicle on a road while under the influence of drink or a drug, or both, to such an extent as to be incapable of having proper control of the vehicle.

[4]      That provision is the companion of s 12.  The latter, headed “Persons not to drive while under influence of alcohol or drugs” enacts that:

A person may not drive or attempt to drive a motor vehicle while under the influence of drink or a drug, or both, to such an extent as to be incapable of having proper control of a vehicle.

[5]      The  point  in  issue  in  the  appeal  can  be  shortly stated  as  follows.    The appellant maintains that the erratic driving, for which he accepts responsibility, was because he was suffering from the absence of methadone.  As a former heroin addict, methadone has been prescribed to him and taken daily.  However, on the day of the accident he had not taken methadone and was suffering from withdrawal symptoms. The question is whether, given those facts, he was driving under the influence of a drug.

The decision in the District Court

[6]      In the judgment that he delivered setting out the reasons for convicting the appellant, Blackie DCJ found the following facts.  The defendant had been a heroin addict since the age of 13, and was now aged 30.  During the last five years he had been  on  a  methadone  programme,  designed to  maintain  him  “with  a  degree  of stability”.  He was prescribed 100mg of methadone per day.  On the evidence, that was a substantial dose, but contemplated by the treatment programme.  On the day of the accident, he was on his way to a chemist to obtain further methadone.   The accident, which involved driving his car into a tree, occurred at around 10.30 a.m. He had last consumed methadone on the previous day, at approximately 8.00 a.m. Consequently, the 24 hour period, which was the normal interval between the taking of the doses of methadone, had expired by two or three hours.

[7]      When a police constable arrived at the scene of the accident, he endeavoured to make inquiry of the defendant as to his name, address and occupation, but he had initially been  unable  to  obtain  a  satisfactory response.    A  short  time  later,  the appellant  was  requested  to  accompany  the  police  officer  to  the  Howick  Police Station.  The defendant gave him his driver’s licence and from that the officer was able to obtain his name, address and occupation.  It was the police officer’s evidence that, at the scene, he had considered the defendant to be incapable of having proper control of a motor vehicle.

[8]      On arrival at the Howick Police Station, the defendant was placed in a police cell and examined by a police surgeon, Dr Parr.  It was Dr Parr’s evidence that he carried out a number of standard tests on the defendant by asking him questions, requiring him to stand and to carry out the hand to nose test.  The doctor reported the defendant had been unsteady on his feet, uncoordinated in respect of movement and “uncoordinated in respect of time”.  He thought the day of the week was Monday, but it was a Wednesday.   As a result of the examination, the doctor formed the opinion that the defendant would be incapable of driving a motor vehicle, and that the incapability would have been brought about by either alcohol, drugs or both.

[9]      At [8] of his decision, Blackie DCJ said:

The submission was made to the doctor by Counsel for the defendant, and also was made by the defendant in the course of his evidence, that during the time of the accident he would have been “coming off” or “coming down” from the methadone and that this would have caused him to have lost the degree of co-ordination that he might otherwise have had.  In other words he was suffering from withdrawal symptoms.  The question of withdrawal was put to the doctor but he said that in his opinion it was not an issue of withdrawal as distinct from an issue of incapability.  Withdrawal symptoms, he said, were likely to have manifested themselves in hot flushes, stomach cramps, muscle cramps and things of that nature rather than the unco- ordination  which  the  defendant  demonstrated  during  the  course  of  the doctor’s examination.   The doctor accepted there was always a possibility that factors similar to that demonstrated in the course of examination could be brought about by withdrawal but that was an exception rather than the rule.

[10]     It is unclear from that paragraph whether or not the Judge accepted that the appellant had been suffering from withdrawal symptoms at the time of the accident. However, in the paragraph that immediately followed, he recorded that he had asked counsel  for  authorities  which  might  be  of  assistance  because  counsel  for  the appellant had submitted to him that a person such as the appellant could not fall within the confines of s 58(1) of the Act if they were suffering from the withdrawal symptoms of a drug rather than the direct effects of having taken the drug.  I infer from the way the Judge expressed himself that he was proceeding on the basis that the appellant had indeed been suffering from withdrawal symptoms when driving the motor  vehicle.    Further,  there  was  no  finding  that  the  appellant  had  consumed alcohol or drugs on the day in question or that anything else had contributed to the appellant’s bad driving.

[11]     In  this  respect,  I  note  at  this  point  that  in  sentencing  the  appellant, Blackie DCJ said:

Although I found the charge proved on a legal basis I accept that there is no evidence that it was a deliberate act on your part.  You set out to get your drugs but you were obviously coming down from the effects of methadone and that was instrumental in causing this accident.

[12]     Mr Wimsett, who appeared in this Court for the respondent, accepted that the appellant was incapable of having proper control of the motor vehicle because of the effects of methadone.  He argued that it was irrelevant whether or not the appellant have  been  “on  the  up”  or  “coming  down”.    However,  insofar  as  the  facts  are

concerned, there was no doubt on the evidence before the Court that the appellant had not consumed methadone for about 26 hours.

[13]     The essence of the Judge’s reason for convicting the appellant under s 58 of the Act is set out in paragraphs [10]-[11] of his decision which read as follows:

[10]      In my view, the section has to be looked at against the general purport of the Land Transport Act 1998, which is to encourage road safety. A person who takes drugs and it is by no means confined to illegal drugs, has the responsibility before they get into a motor vehicle, or take control of a motor vehicle, to ensure that in doing so they are not likely to be affected by the drugs they have taken, whether it is whilst the drug is having its normal effect, which I am told in respect of methadone is to keep a person relatively calm and in control, or whether it is during a period when the drug is ceasing to have proper effect, in other words a period of withdrawal.  In either case one has to be considered under the influence of the drug if you are taking a drug which has either of those effects.   The question is the extent to which it might cause a person to be incapable of having proper control of a motor vehicle because that is the safety issue which the Statute is generally designed to control.

[11]      In  my  view,  it  matters  not  whether  the  inability  to  have  proper control of a motor vehicle is brought about whilst the drug is having its designed prescribed effect, or whether it is brought about by virtue of the drug during the course of withdrawal.  It is still conduct that is influenced by the drug.   In this case, there is no doubt that the defendant was taking methadone, a legal drug in the course of his treatment.  There is no doubt, in my view, that at the time of this accident he was under the influence of that drug in some way or another, and there is no doubt having regard to the evidence of the doctor, which I accept, that the influence of that drug caused him to be incapable of driving or having proper control of a motor vehicle, the evidence of which was manifested in the fact that he collided with a tree. Therefore, I find the charge to be proved.

The argument

[14]     In advancing the appeal the principal contention made by Mr Rawlings was that the learned District Court Judge erred in law when determining the parameters of the term “under the influence” of a drug.  He submitted that once the Court had accepted that the appellant’s errant driving could have been due to withdrawal from (as opposed to the taking of) a drug, the appellant could not then deem to be “under the influence” of that drug when driving.

[15]     The appellant accepted that he had driven a motor vehicle on a road, whilst being incapable of having proper control of the motor vehicle.  For the purpose of s 58(1) it was irrelevant as to whether a drug is proscribed or prescribed.   In the present case, methadone can rightly be considered to be a “drug”.  He contended that the element of the charge that was not proved was that the appellant’s inability to control the car was due to him being “under the influence of” methadone.

[16]     Neither Mr Rawlings or Mr Wimsett has been in a position to refer to any relevant authority on the meaning of the section, either here or elsewhere in the Commonwealth  where  there  are  comparable statutory provisions.    Mr  Rawlings submitted that on a plain reading, the expression “under the influence” of a drug must refer to the influence caused by the act of taking the drug, and should not include effects indirectly caused by the passive state of withdrawal from a drug. Referring  to  the  definition  of  influence,  in  the  Random  House  Unabridged Dictionary (2006 edition) he contended that the definitions given supported his proposition that for something to have “influence” it must be as a result of a positive act.  The relevant dictionary definitions to which he referred me read as follows:

a)The capacity or power of persons or things to be a compelling force on or produce effects on the actions, behaviour, opinions etc., of others: He used family influence to get the contract.

b)The action or process of producing effects on the actions, behaviour, opinions, etc. of another or others:  Her mother’s influence made her stay.

c)A person or thing that exerts influence:  He is an influence for the good.

[17]     Mr Rawlings bolstered his argument by reference to different fact scenarios which he argued would be the consequence of the reasoning in the District Court, but which would be absurd.  Those examples included a person who drank to excess one evening, waited till they were below the legal breath alcohol limit on the following morning and then drove, suffering from a distracting headache brought about by their body recovering from the effects of the alcohol.  Another example he gave was of an insulin dependent diabetic who was due for an insulin injection but before taking it suffered a black-out whilst driving.  Another example, perhaps implausible, was of a smoker who had recently quit cigarettes and drove while distracted due to

cravings.   In each case Mr Rawlings submitted that a person would be “under the influence” if the reasoning of the District Court were correct in the present case, an outcome which he submitted would be absurd.

[18]     For the respondent, Mr Wimsett submitted, as I have recorded above, that whether or not a person was suffering from effects of taking a drug or of not taking a drug was irrelevant for the purposes of the subsection.  He pointed out that s 58(1) contained no words specifying how the influence of the drug was to have come about.  Rather, the proscription was simply against driving under its influence.   In the present case, Dr Parr had certified that the appellant was incapable of having proper control of the motor vehicle.   That was because the driving was under the influence of methadone, even if the direct source of the problem was that methadone had not been taken.

[19]     Insofar as Mr Rawlings’ dictionary definitions were concerned, Mr Wimsett simply responded that, the definitions at paragraphs (b) and (c) both aptly described the influence that methadone had had upon the appellant, including at the time he drove in the present case.   Insofar as the absurdity argument was concerned, generally, Mr Wimsett submitted that that should not be of concern because to be guilty under s 58, a defendant must first be under the influence of a drug to such an extent as to be incapable of having proper control of a vehicle.   That requirement would effectively filter out any cases where a person had not acted irresponsibly in deciding to drive.

Discussion

[20]     It is surprising that there is no authority on the point that arises for decision in this case.   However, in the apparent absence of authority the matter needs to be approached directly and on the basis set out in s 5(1) of the Interpretation Act 1999, i.e. the meaning of the enactment is to be ascertained from its text and in the light of its purpose.

[21]     One point that is to be immediately noted in relation to the drafting of s 58(1)

of the Land Transport Act is that it treats drink (defined in s 2 as “alcoholic drink”)

and drugs in the same way.   The proscription is against driving whilst under the influence of either.  The word “influence” should be construed in a way that applies consistently to both alcohol and drugs.  Next, it is to be noted that insofar as drugs are concerned, the reference is simply to “a drug”, and that the drug need not be a drug that has been unlawfully consumed.

[22]     “Influence” is given a number of meanings as a noun, in the Oxford English Dictionary.  That dictionary refers to the expression “under the influence” as itself meaning “affected by alcoholic liquor;   intoxicated, drunk”.   Where, as here, the statute speaks of being under the influence of drink or a drug, the relevant meaning given by the definition in the Oxford English Dictionary would be:

The exertion of action of which the operation is unseen or insensible (or perceptible only in its effects) by one person or thing upon another;   the action thus exercised.

[23]     These definitions, and those from the Random House Dictionary on which Mr Rawlings relied tend to confirm one’s intuitive reaction that a person is not aptly described as acting under the influence of something that may be taken, consumed or ingested, without having actually taken, consumed or ingested it.   It is the consumption of alcohol that might have the effect of making someone incapable of having proper control of a vehicle.  If a person had drunk so as to be in that state, and then ceased drinking, one of the effects might be a hang-over the following morning. The hang-over, however, would be the result of the consumption of the alcohol and the feelings on the morning after would be the result of the previous day’s consumption.  It would only be where the proportion of alcohol in the blood was still reasonably high that a person would be incapable of having proper control of a vehicle.

[24]     In the case of methadone, it appears from the evidence in this case that the effects wear off within a 24 hour period.   In the end, it was concluded that what caused  the  appellant’s  condition  and  his  inability to  have proper control  of  his vehicle was the absence of methadone.   It was not an on-going effect of the methadone that had originally been consumed 26 hours earlier and on the days before that.

[25]     I do not think it right to conclude on the facts that  he  drove  under  the influence of methadone.   Rather, he drove under the influence of the absence of methadone.  There is, I think, a logical difficulty in applying the section so as to fit these circumstances.

[26]     In my view, the section is to be construed so as to embrace the effects of alcohol or drugs that have been consumed and whose consumption directly leads to the driver’s inability of having proper control of the vehicle.

[27]     That interpretation accords with what may be assumed to be the purpose of the provision, that is to say, the prevention of driving affected by the consumption of alcohol or drugs.   It is unlikely that the legislature intended to cast s 58’s net any wider.   Various other provisions of the legislation catch driving that falls short of acceptable standards, or is reckless, dangerous or results in injury, where alcohol and drugs are not involved.   Consequently, it is hard to see what purpose would be achieved by construing s 58 to have a wider effect than it does on the meaning I have arrived at on the basis of its text.

Result

[28]     Those being my conclusions, the appeal must be allowed.   The conviction entered in the District Court is quashed.  The fine of $300, the requirement to pay Court Costs of $130 and the disqualification from driving are all set aside.