Director of Public Prosecutions (NSW) v Kirby

Supreme Court of NSW|2017-12-06|Before: Hulme J

Solicitors: Solicitor for Public Prosecutions Blackheath Lawyers File Number(s): 2017/241212 Decision under appeal Court or tribunal: Local Court Date of Decision: 19 April 2017 Before: Toose LCM File Number(s): 2016/237852

Judgment

HIS HONOUR: By a Summons filed on 8 August 2017, the Director of Public Prosecutions (NSW) ("the Director") seeks orders pursuant to s 59(2) of the Crimes (Appeal and Review) Act 2001 (NSW), that the order of Magistrate Toose made on 19 April 2017 at Katoomba Local Court dismissing a charge against the defendant for the offence of "drive vehicle while under the influence of alcohol" contrary to s 112 of the Road Transport Act 2013 (NSW) be set aside, and that the charge be remitted to the Local Court to be determined according to law.
At the conclusion of the hearing I upheld the appeal and made the orders sought. The following are my reasons.
The Director contended that the magistrate erred in law in three respects: (i) Impliedly holding that, in the prosecution of an offence under s 112(1)(a) of the Road Transport Act 2013, it is necessary for the prosecution to prove that the offender's manner of driving was affected by the influence of alcohol. (ii) Failing to provide adequate reasons for dismissing the charge. (iii) Denying procedural fairness to the prosecutor by dismissing the charge on the basis of the second limb of May v O'Sullivan (1955) 92 CLR 654, without providing the prosecutor with an opportunity to make submissions regarding whether the offence had been proved beyond reasonable doubt.

The hearing

The defendant pleaded not guilty and the matter proceeded to a summary hearing before her Honour Magistrate Toose on 19 April 2017. Evidence for the prosecution was given by way of oral evidence of three police officers and a supervisor at the hotel where the defendant had been drinking on the day in question. Various statements and other documentary material were tendered. The evidence was to the following effect.
On 6 August 2016 the defendant was drinking at the Gardners Inn Hotel in Blackheath from about mid-afternoon until he was refused further service of alcohol at 7.27pm. The supervisor took that decision because the defendant was "well affected" by alcohol.
Two pairs of police officers attended the hotel in relation to unrelated matters. Senior Constables Denis and Gray arrived at about 8.15pm. Constables Bajanov and Leckey arrived at about 8.20pm (according to the former). Officers Denis, Gray and Bajanov gave evidence. Taken at its highest, the general effect of their evidence was that the defendant was well affected by alcohol.
The hotel supervisor said that the defendant had been drinking water since he was refused service of alcohol. She saw him leave the hotel at about 9.30pm. He exited through the back of the hotel, where the car park was. She said he was "still under the effects of alcohol".
The defendant later told police that he had been drinking since about 2 or 3pm that day and had consumed six or seven middies of VB. He said that his car had been parked out the back of the hotel and when he left the hotel he drove.
At about 11.08pm Senior Constables Denis and Gray were alerted to a motor vehicle accident some distance along Megalong Road at Blackheath where a utility had left the road and gone down an embankment. They attended and found the utility down the embankment with a cattle dog secured to it but the driver was not found. Enquiries were made which revealed that the defendant was the owner and the officers drove towards his home, which was about 7km away. Senior Constable Denis came across the defendant about 70 metres from his front gate. He was arrested for driving under the influence of alcohol. The arrest took place at about 11.50pm.
Senior Constable Denis gave evidence of his observations in relation to physical signs of the defendant being affected by alcohol at that point. The effect of his evidence was that the defendant was still affected; he had bloodshot eyes, although he was no longer slurring his speech as he had been at the hotel.
The defendant was taken to Katoomba Police Station. He was not required to undergo a breath analysis because more than two hours had elapsed since the incident of driving. He was interviewed and some of what he said has been mentioned above (at [8]). In explaining how his utility came to leave the roadway he said that the power steering mechanism had malfunctioned.
At the conclusion of the interview the defendant was issued with a Field Court Attendance Notice for an offence of driving under the influence of alcohol contrary to s 112(1)(a) of the Road Transport Act.
When the prosecution case was closed the magistrate had this exchange with the prosecutor: "HER HONOUR: All right so where's the evidence that he was driving under the influence of alcohol? PROSECUTOR: It's in his own, his own ERISP your Honour. He says himself that he was driving. HER HONOUR: Yes where is the evidence? Have you read the authorities on this? PROSECUTOR: Well the - I've read some of the authorities your Honour probably not - I don't know which ones your Honour -- HER HONOUR: All right well I'm going to take an early morning tea and you have a read of those, thank you I'll adjourn."
Upon the resumption, the prosecutor indicated that he was unable to find any authority in the limited time available. The exchange continued: "PROSECUTOR: All I can rely upon your Honour in the evidence is that he leaves the pub at 9 o'clock [in fact 9.30], he's seen to go to the car park, he says in his ERISP he then drove straight home and on the way he said that he was driving, he was the only person in the car and he crashed the car. HER HONOUR: Yes but it's got to be something about his manner of - you've got to relate his alcohol to the driving. PROSECUTOR: Driving under the influence, my understanding was that it relates-- HER HONOUR: Normally the police would have an expert's report. Did you get one? PROSECUTOR: Well no there isn't one in the brief your Honour, no. HER HONOUR: Well that was an oversight. Normally there would be one to do linking with this that and the other and about how it would've affected him. I have never seen one of these run without it. PROSECUTOR: I see. The only-- HER HONOUR: Even if I were to accept it circumstantially I could never be satisfied beyond reasonable doubt given he's raised the steering column that he was driving - I mean I just can't - you're saying because there was an accident - well because the car went off the road that of itself is-- PROSECUTOR: Well its circumstantial in relation to the manner of his driving, it was a straight stretch of road there was no corner where he had the accident. HER HONOUR: No but he's also - did you get it independently checked, did the police get an independent assessment of the vehicle where the issue is raised about the-- PROSECUTOR: The steering column, yes. No there is no evidence in relation to that your Honour. The only thing the prosecution can rely upon is it's his admissions to driving and the fact that he was seen either side of an accident being intoxicated. HER HONOUR: Yes. PROSECUTOR: That's the prosecution case your Honour. HER HONOUR: All right well did you want to address me about it any further? PROSECUTOR: No I think that, I think in relation-- HER HONOUR: Okay Mr McAuley? MCAULEY: Well your Honour the first limb of May v O'Sullivan in my submission is not made out and the matter should be dismissed. There's no possible way that you can find this beyond reasonable doubt."
The magistrate proceeded immediately to give judgment. It was brief and can be set out in full: "HER HONOUR: Well the first limb is the elements of the offence which I think the prosecution case taken at it's very highest I am stretching to find - as I have said normally there would be evidence as to what we know about the consumption of the alcohol and how that would have affected him - there's no expert's evidence. There is the issue being raised concerning the mechanical issue. With that he was never challenged about being a mechanic so he has raised that he says what, how he had addressed that, he gives a reason saying well that must have run out, it has locked up. I am astonished that was not independently checked by the police because clearly if they had found that not to be the case it might be a very different scenario. But I am satisfied that he stopped drinking at 19:27 when he was cut off by Tasha [the hotel supervisor]. I do not know whether - he was never asked whether he had consumed any alcohol after he got out of the car and began the long walk home which is why I can see there has just been too many corners cut in relation to the police preparation of the case for me to be able to be satisfied beyond reasonable doubt in relation to him driving under the influence of alcohol. The authorities are quite clear as to what evidence needs to be before the Court, the highest I have got is he stopped drinking at 7.27 and the car has later crashed, come off the road, he has given an explanation for how that happened, there is no evidence whatsoever of anyone seeing his manner of driving such as swerving all over the road, nothing like that. SO I THINK IT WOULD BE UNSAFE TO SUPPORT A CONVICTION ON THE SECOND LEG OF MAY V O'SULLIVAN TO BE HONEST AND ON THAT BASIS I DISMISS IT."

Ground 1 - error in respect of the elements of the offence of drive while under the influence

Section 112 of the Road Transport Act provides for offences of using or attempting to use a vehicle while under the influence of alcohol or any other drug. The offence for which the defendant was charged is provided for in s 112(1)(a) as follows: "A person must not, while under the influence of alcohol or any other drug: (a) drive a vehicle …"
The Director was correct to submit that an offence under s 112(1)(a) of the Road Transport Act requires that the prosecution prove that the defendant drove a motor vehicle, and that, at the time of driving, the defendant was under the influence of alcohol or any other drug. It is not an element of the offence that the consumption of alcohol affected the defendant's driving.
It was held in Molloy v McDonald (1939) 56 WN (NSW) 159 at 160 (Bavin J), which concerned a prosecution under s 5(2)(a) of the Motor Traffic Act 1909 (NSW) of driving a motor vehicle on a public street whilst under the influence of intoxicating liquor: "If it is once found by the magistrate that a person is under the influence of intoxicating liquor and that person is driving a motor vehicle in a public place the offence is committed. The question of whether he is capable of properly driving and controlling a motor vehicle may be a question to be considered in connection with the question whether he is at time of the alleged offence under the influence of intoxicating liquor, but it is in no sense a necessary part of the offence that the defendant should be not only under the influence of intoxicating liquor but also incapable of properly driving and controlling the motor vehicle. I have heard it said that there are persons who are quite as capable of driving and controlling a motor vehicle when they are drunk as when they are sober. Whether that is the fact or not the legislature has paid no regard to it. It has not made incapacity for driving the test. The only test is whether the person driving is, in fact, under the influence of intoxicating liquor."
Bedelph v Weedon [1963] Tas SR 69 concerned s 41(1) of the Traffic Act 1925 (Tas) which provided (relevantly) that "No person shall … drive any vehicle … whilst under the influence of intoxicating liquor". It was held (Burbury CJ, Gibson and Neasey JJ at 77-78): "The offence of driving a motor vehicle whilst under the influence of intoxicating liquor … is complete without proof that the defendant's capacity to drive the motor vehicle is affected by the consumption of intoxicating liquor."
They added (at 80): "… the subsection has made it an offence to drive a motor vehicle whilst under the influence of intoxicating liquor to any material degree, irrespective of ability to drive."
There was no dispute between the parties in the present proceedings as to the above representing the correct construction of s 112(1)(a) of the Road Transport Act. The dispute was as to the correct understanding of what the magistrate said and whether error can be discerned.
It is also necessary to observe that expert medical evidence is not required to prosecute an offence under s 112. Opinions as to the extent of intoxication can be given by lay witnesses, such as in this case the hotel supervisor and the police officers: R v Whitby (1957) 74 WN (NSW) 441 at 443-4; DPP v Ridley [2015] NSWSC 1478 at [70] (Adamson J).

Consideration

The resolution of this ground is not as straightforward as it should be because the magistrate's reasoning is, with respect, a little difficult to follow.
It is clear enough that in the exchange with the prosecutor set out above, it was the magistrate who referred to the manner of driving ("it's got to be something about his manner of - you've got to relate his alcohol to the driving").
The magistrate's reference to the prosecutor "normally" relying upon an expert opinion, "to do [the] linking" is also suggestive of her thinking that it was necessary for the prosecution to prove that the defendant's ability to drive was impaired.
There is another indication during the exchange with the prosecutor that the magistrate regarded the manner of driving as relevant and whether his manner of driving was affected by alcohol as determinative. That is in the magistrate's reference to the defendant's explanation for the vehicle leaving the roadway (the steering malfunction). She appears to have thought that if that was a reasonably possible explanation for the accident, the prosecution would have difficulty establishing that there was impairment in the defendant's ability to drive through intoxication.
The defendant's submissions in this court assert that it was the prosecutor who was relying upon the accident, and that it was implicitly caused by the defendant being under the influence. He referred to the first submission by the prosecutor set out in the extract from the transcript at [15] above. The prosecutor did not say so explicitly, but may have been suggesting that an inference of intoxication could be drawn from the fact that the defendant "crashed the car". Be that as it may, the prosecution case was made perfectly clear at the end of the prosecutor's submissions when it was said, "[t]he only thing the prosecution can rely upon is … his admissions to driving and the fact that he was seen either side of an accident being intoxicated".
In the first of the three paragraphs of the judgment the magistrate referred to what she had said a short time earlier about there normally being expert evidence about how the consumption of alcohol would have affected the defendant. I can only take this to be a reference to her concern about proof that the defendant's ability to drive was impaired by alcohol consumption.
Then there is the reference immediately following to the "mechanical issue". Again that points in the same direction. It was an irrelevant consideration that the police had not checked the claim made by the defendant in his police interview about the malfunction in steering. I can only take her Honour's following statement - "clearly if they had found that not to be the case it might be a very different scenario" - as a further indication that she regarded the manner of driving and whether it was impaired as an essential matter.
The second paragraph of the judgment appears to be concerned with the correct question of whether the defendant was under the influence of alcohol at the time of driving. However, the magistrate appears to have moved to the question whether she was satisfied of guilt beyond reasonable doubt when she had still not dealt with whether there was prima facie case which required her to take the prosecution evidence at its highest.
The third paragraph of the judgment is somewhat ambiguous. However, the references to the steering malfunction explanation and no-one having seen the defendant's manner of driving again suggest a focus upon whether there was impairment of driving ability. This appears to be further indication of the magistrate thinking that the prosecutor had to prove that the defendant's manner of driving was impaired by intoxication.
Counsel for the defendant endeavoured to put an alternative construction on both the magistrate's exchange with the prosecutor and the judgment itself. The fact that there is scope to argue about what her Honour meant only serves to bolster the Director's argument in relation to Ground 2. In the end, however, counsel's submissions did not avail the defendant because they failed to explain the magistrate's focus on extraneous matters and her failure to articulate what the prosecution case, taken at its highest, actually was.
On an overall view of the reasons I was satisfied that the magistrate erred and that this ground must be upheld.

Ground 2 - inadequate reasons

There are many formulations of the requirement for a judicial officer to provide adequate reasons for a decision and the fact that failure to do so constitutes an error of law. It will suffice for the present case to quote from the judgment of Johnson J in Director of Public Prosecutions (NSW) v Wililo [2012] NSWSC 713; 222 A Crim R 106 at [56]: "[I]t is part of the Magistrate's duty to state the facts found and the legal principles applied to those facts, for the purpose of reaching a verdict: Donges v Ratcliffe [1975] 1 NSWLR 501 at 507. In Moloney v Collins [2011] NSWSC 628, the Court said at [63]-[65] (in the context of a civil hearing in the Local Court): '[63] Failure to give reasons as required by law may itself disclose error of law: Pettitt v Dunkley [1971] 1 NSWLR 376; Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 278-279. However, the extent and content of the reasons required will depend upon the particular case and the issues under consideration. [64] The duty does not require the trial Judge to spell out in minute detail every step in the reasoning process or refer to every single piece of evidence. It is sufficient if the reasons adequately reveal the basis of the decision, expressing the specific findings that are critical to the determination of the proceedings: Stoker v Adecco Gemvale Constructions Pty Limited [2004] NSWCA 449 at 41. It is essential to expose the reasoning on a point critical to the contest between the parties: Pollard v RRR Corporation Pty Limited [2009] NSWCA 110 at [58] …'"
The defendant submitted that the magistrate sufficiently disclosed her concern about the lack of evidence that the defendant was driving under the influence of alcohol. He cited as one example her question to the prosecutor immediately upon the completion of the prosecution case, "where's the evidence that he was driving under the influence of alcohol?". It was submitted that this question, and the ensuing exchange, provided a context in which the judgment could be assessed. It was submitted that when assessed in this way it could be seen that the magistrate's reasons were tolerably clear.
In Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Ltd (2006) 67 NSWLR 402 at 408 [19]; [2006] NSWSC 343, Johnson J said: "It is not satisfactory that an appeal court is left to undertake an analysis of exchanges between the bench and counsel during submissions in an attempt to ascertain a magistrate's reasons for determination."
Johnson J also referred (at 407-8, [15]-[16]) to making allowance for the pressures under which magistrates are placed by the very large volume of cases coming before them. That is an important matter to bear in mind. So too are the facts that the magistrate delivered an ex tempore judgment and (as is usually the case) did not have the advantage of being able to revise the transcript. Nevertheless, her Honour's reasons in this case are problematic. I will simply address some examples.
First, the judgment was immediately preceded by the defendant's solicitor submitting that the "first limb of May v O'Sullivan … is not made out". The solicitor was referring, undoubtedly, to the passage of the judgment of the High Court in May v O'Sullivan (1955) 92 CLR 654 at 658: "When, at the close of the case for the prosecution, a submission is made that there is 'no case to answer', the question to be decided is not whether on the evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands he could lawfully be convicted." (Emphasis in original)
What is sometimes referred to as the second limb in May v O'Sullivan is the ultimate question of whether the prosecution has in fact proved its case beyond reasonable doubt.
The magistrate commenced the judgment with reference to the first limb: "Well the first limb is the elements of the offence which I think the prosecution case taken at it's very highest …". Ultimately, however, she dismissed the case on "the second leg of May v O'Sullivan". It is not clear whether she made a finding on the first limb at all. The defendant's submission in this Court to the effect that it may be inferred that her Honour found in favour of the prosecutor on the first limb cannot be accepted. Such a conclusion should not be a matter of inference.
Secondly, her Honour said, "the authorities are quite clear as to what evidence needs to be before the court". It is impossible to know what authorities her Honour had in mind; she did not say anything more specific. Moreover, I am not sure what she considered the "evidence needs to be". In relation to the latter, her subsequent reference to there being "no evidence whatsoever of anyone seeing his manner of driving" would suggest the type of error asserted under Ground 1.
Thirdly, there is reference in the first paragraph to taking the prosecution case at its highest, and there is a further reference to "highest" in the third paragraph. However, there is an absence of any reference to the evidence that represented the prosecution case at its highest. There is no mention of the defendant being seen to be affected by alcohol before the episode of driving and being still affected by alcohol when he was arrested after the driving.
The magistrate did refer to the evidence of the defendant having ceased drinking at 7.27pm. However, she made no reference to the fact that that was imposed upon him because of the level of his intoxication at that point.
Counsel for the defendant contended that her Honour was not required to refer to every piece of evidence in her decision; it was sufficient if the reasons adequately revealed the basis of the decision and expressed the specific findings that are critical to the determination of the proceedings. I accept that is an accurate statement of principle but the judgment in this case fails to live up to that requirement.
Finally, if her Honour was dismissing the charge on the second limb in May v O'Sullivan one would expect to find not only a reference to the evidence the prosecutor indicated that he was relying upon, but also reasons why it was not accepted beyond reasonable doubt.
For those reasons Ground 2 was established.

Ground 3 - denial of procedural fairness

As outlined above, although the defendant's solicitor had only made submissions on the first limb of May v O'Sullivan, the magistrate referred to both the first and second limbs in her judgment.
The second limb involves an inquiry of a very different character to the inquiry made under the first limb. As Garling J observed in Director of Public Prosecutions (NSW) v Elskaf [2012] NSWSC 21 at [47], the first limb of May v O'Sullivan concerns the question of whether there is a case to answer (a "no case submission"). A no case submission is determined by the court as a matter of law, on the basis of all of the prosecution's evidence, taken at its highest and strongest: Elskaf at [47].
In contrast, the second limb of May v O'Sullivan concerns the question of whether, as a matter of fact, on the whole of the evidence, the court is satisfied beyond reasonable doubt of the guilt of the defendant: Elskaf at [48(b)(iii)]. This second limb process should not be embarked upon until after the court has invited the defendant to indicate whether he or she intends to call any witnesses to give evidence or to tender any further evidence: Elskaf at [48(b)(ii)]. The second limb thus "calls for a discrete decision" and a "process separate from the no case to answer stage": Elskaf at [48(b)(ii)].
Counsel for the Director contended that before the magistrate determined the matter under the second limb, fairness dictated that the prosecutor be given an opportunity to persuade the court that, on the whole of the evidence, the court would be satisfied of the defendant's guilt beyond reasonable doubt. Reference was made to Director of Public Prosecutions (NSW) v Richard Christopher Mikhael [2015] NSWSC 819 at [21] where Rothman J said: "The opportunity to make submissions lies at the heart of natural justice, particularly in circumstances … that may result in the case against the accused being dismissed."
It was submitted for the defendant that the magistrate did not deny fairness to the prosecutor. At the outset of the exchange immediately following the conclusion of the evidence she indicated her concern about the evidence that the defendant was driving under the influence of alcohol. At the conclusion of the exchange when the prosecutor made his final submission and said "that's the prosecution case your Honour", the magistrate asked whether the prosecutor wished to address her about it any further and he declined.
The prosecutor, understandably, had made relatively brief submissions directed to the first limb by pointing out that reliance was placed on the observations of the defendant before and after the driving, as well as the defendant's admissions to driving. An extended exposition of the evidence the prosecutor relied upon and argument as to why it should be accepted in proof of the charge beyond reasonable doubt was not required as that was relevant to the second limb. The prosecutor had no forewarning that the magistrate was going to proceed to that point and to dismiss the charge.
For these reasons I was satisfied that Ground 3 was established.

Orders

At the conclusion of the hearing I made the following orders. 1. Appeal allowed. 2. The order made in the Local Court at Katoomba on 19 April 2017 dismissing proceedings against the defendant for the offence of "drive vehicle while under the influence of alcohol - first offence" is set aside. 3. The matter is remitted to the Local Court to be dealt with according to law. 4. The defendant is to pay the plaintiff's costs of these proceedings. 5. The defendant is to have a certificate under s 6 of the Suitors' Fund Act 1951 (NSW)

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 April 2018

Suitors' Fund Act 1951(NSW)

Motor Traffic Act 1909(NSW)s 5(2)(a)

Traffic Act 1925(Tas)s 41(1)

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