Morgan v Commissioner of Police

[2] Ms Morgan pleaded guilty on 26 April 2002 to one count of Dangerous Operation of a Motor Vehicle causing the death of one person and Grievous Bodily Harm to seven other people whilst adversely affected by an intoxicating substance, namely butane. She also pleaded guilty on the same date to one count of Attempting to Pervert the Course of Justice.

[3] A sentence of six years imprisonment was imposed on the dangerous operation charge, together with a cumulative sentence of six months imprisonment on the other charge. It was ordered that Ms Morgan be eligible for post-prison release into the community after two-and-a-half years. She was disqualified absolutely from holding or obtaining a driver licence.

[4] Ms Morgan was released from prison to home detention on 25 October 2004 and was granted parole on 25 January 2005. On 7 February 2006 her parole order was amended by deleting clause (o) which stipulated "that the prisoner not apply for removal of her licence disqualification," thus allowing Ms Morgan to bring this application.

[5] Section 131(2C) of the Act provides that upon the hearing of an application of this nature the Court may either by Order remove the disqualification as from such date as may be specified in the Order or refuse the application. In determining the application the Court is required to have regard to

Prior to her conviction on the present matters Ms Morgan had no prior traffic or criminal history. At the sentence proceedings on 26 April 2002 I indicated that I accepted the thrust of her advocate's submission that Ms Morgan is capable of insight and personal growth and that she is certainly capable of rehabilitation.

[7] The Applicant's Conduct Subsequent to the Order

There is nothing in the material before me to suggest that Ms Morgan has driven a motor vehicle since her release from custody to home detention on 25 October 2004. Ms Morgan has resided at two addresses since her release from prison. It appears that Ms Morgan has complied with the requirements of her parole. In a court report dated 6 February 2007 her current parole supervisor, Mr Alan Stevenson, stated that:

"Since release to parole in January 2005, Ms Morgan has responded well to supervision. She has reported reliably and been willing to discuss her circumstances in detail. Regular fortnightly urine and breath tests have recorded negative results on every occasion. Early in 2005, she undertook counselling in relation to personal problems through a community mental health clinic and the Sisters Inside organisation.

Ms Morgan now appears to have achieved a degree of emotional stability and is living in an apparently supportive marital relationship. In late 2005, she completed her studies in Aged Care. She is now engaged in regular casual employment through an agency. She also appears to be providing a stable upbringing for her young daughter. The offender has been unable to accept some offers of employment through the agency, due to her reliance on public transport. She is currently limited to attending work placements within her local area.

In summary, Ms Morgan has complied with the requirements of her order and used the supervision period to stabilise her circumstances."

[8] I accept the evidence of Mr Stevenson. There is nothing in his court report which would indicate any impediment to granting Ms Morgan's application.

[9] A letter to the Director of Public Prosecutions office at Southport dated 22 April 2006 under the hand of Senior Constable K Pring was placed before the Court. This indicated that enquiries made by police officers of neighbours of Ms Morgan at her Mount Gravatt address (where she resided for some six months) elicited reports of "erratic behaviour" by her on two separate occasions. One neighbour allegedly formed the opinion that Ms Morgan was under the influence of some form of amphetamine because her behaviour was so out of character from her usual demeanour. When asked about this when being cross-examined by counsel for the respondent, Ms Morgan denied having used any drugs and reminded counsel that her fortnightly drug testing had consistently returned negative results. In his closing submissions counsel for the respondent informed the Court that he had sought clarification from the former neighbour of Ms Morgan but could add nothing to what Senior Constable Pring's letter contained. In the circumstances I am unable to place any weight at all on the suggestion that Ms Morgan had been observed to exhibit signs of being affected by amphetamines.

[10] Another neighbour of Ms Morgan during the period she resided in Mount Gravatt, Ms Candice Smith, has sworn an affidavit in these proceedings attesting to the good character of Ms Morgan. She states:

"Since [Ms Morgan's] move into the unit beside me after her release from prison, I have found her to be a very kind, sincere, open and honest person especially in respect of her incarceration...

I am aware that since [her] release she has been subjected to domestic violence from the father of her child and the persecution by various members of the community over her actions which tragically took the life of a small child. I am aware that [Ms Morgan] is very sorry for her actions as she has expressed this to me when we have discussed it.

...

I am aware that [Ms Morgan] has had little family support and has provided for her daughter solely on her own until her recent engagement to her current fiancé. I am aware that [Ms Morgan] does not like to burden people by asking for favours such as transportation assistance where public transport has been inefficient for her travelling needs across long distances.

...

I believe that Ms Morgan has made a conscious effort in improving herself and I have watched her grow into a responsible and compassionate young lady. I believe that [Ms Morgan] has applied herself to her study and personal life and has been determined to work hard to get where she is today."

[11] Ms Smith was not cross-examined on the contents of her affidavit and there is no reason to reject or discount any part of her evidence. She does touch upon an aspect of Ms Morgan's circumstances which was the focus of much of the hearing before this Court - namely the difficulties being encountered by Ms Morgan in using public transport to travel to and from work.

[12] Ms Morgan has obtained casual employment with Nurse Direct Pty Ltd which is a company that employs staff and schedules shifts for hospitals and nursing homes. In the course of her work as an Assistant in Nursing she is required to work at Birkdale, Moreton Bay, Wynnum, Redland Bay and Carindale. She currently resides in Alexandra Hills with her fiancé D and her daughter. Ms Morgan has described her transport difficulties in an affidavit sworn on 9 February 2007 as follows:

"I do not know what I will be working until approximately one hour before the shift starts. One hour before the commencement of the shift I receive a telephone call from Nurse Direct requesting me to work at a certain location. I am unable to work if I am unable to arrange transportation both to and from the nursing facility. On occasion I can arrange transport either by way of public transport or from my fiancé however given the hours that I am some times required to work [D] may not be able to drive me as he works full time. In addition public transport is not always available due to the hours I work and the location of the aged care facilities. I have had to refuse work in the past because I am unable to get to the nursing facility. The various shifts that I am required to work are either 6:30am to 2:30pm, 2:00pm to 10:00pm, 4:00pm to 12 midnight, 10:00pm to 6:30am and 12 midnight until 6:30am."

[13] If Ms Morgan's fiancé is successful in obtaining work in central Queensland he will be away from home for 10 days at a time. Ms Morgan has no intention of moving herself and her child to that location.

[14] Ms Denise Trent, the proprietor of Nurse Direct Pty Ltd, has confirmed that it will be very difficult, if not impossible for Ms Morgan to be employed on a casual basis with her company if Ms Morgan does not have a driver's licence.

[15] Ms Sandra Butcher was Ms Morgan's teacher for her Certificate III in Aged Care Work. She states that she is aware from her experience in the aged care field that in order to obtain employment Ms Morgan will need a driver's licence and will need to be flexible in her working hours. She confirms that it is often a requirement in this field to be able to do shift work and weekend work as part of one's employment. Ms Butcher believes that if Ms Morgan was to obtain her driver's licence she would have greater opportunities in obtaining employment in the aged care industry and that her job prospects are currently limited due to the fact that she must rely on public transport to travel to and from places.

[16] In her oral evidence Ms Morgan expanded upon the difficulties she currently experiences when using public transport to get to and from work.

"But the public transport system down at Alexandra Hills is quite sufficient, runs regularly, doesn't it?--Well, not through my actual suburbia area, I have to walk to a main road which takes me some 20 minutes to get to depending how fast I walk -----

Is that main road-----?-- -----but if I was to start a shift at 6 o'clock in the morning, no, a bus does not run at 5 o'clock in the morning for me to get there.

Would that be Cumberland Drive?--No, that would be Finucane Road.

Finucane Road, is it? And where's that from your place roughly, north, south, east or west?--I'm sorry, I'm not good with directions.

But there is buses that run on Cumberland Drive?--Yes, there is, but they run out to Capalaba Central shopping centres.

Right?--Which would be an inconvenience for me because it's taking me in the complete opposite direction of where I need to be".

[17] From this material a number of conclusions may be drawn. Firstly, although undoubtedly inconvenient for Ms Morgan (and perhaps Ms Trent) it is not absolutely necessary that a person in casual employment with Nurse Direct hold a driver's licence. Secondly, inadequate as it may be, the bus service operating in Ms Morgan's residential area seems to enable her to accept some work placements through Nurse Direct. Thirdly, there is nothing in the material placed before this Court to indicate that a more permanent position at one of the aged care facilities serviced by public transport from Ms Morgan's neighbourhood may not become available in the future.

Ms Morgan was aged 18 years at the time she committed the offences. She had obtained her driver's licence on 9 November 2000, some nine months prior to the date of the offences.

[19] At the time of the incident in question there was heavy traffic travelling south on the Gold Coast Highway in the vicinity of the ANA Hotel. At the relevant time (mid to late afternoon) the weather conditions were fine. There were numerous pedestrians on the footpath. Ms Morgan was driving her vehicle on the Gold Coast Highway in a southerly direction. At the intersection with View Road her vehicle left the highway, became airborne for some distance before continuing along the eastern footpath colliding with a bench seat and a palm tree, striking some eleven pedestrians, before colliding with the rear of a parked van. Ms Morgan's motor vehicle had been observed north of the intersection to have been speeding, weaving from lane to lane whilst overtaking other vehicles, veering towards parked vehicles on the left before regaining its correct line, travelling for some distance on that part of the road designated as a parking lane, and on several occasions to fish-tail.

As Ms Morgan's vehicle left the Highway to enter upon the footpath, no brake lights were observed by any of the eyewitnesses. No obstruction was seen that may have prevented her vehicle from maintaining a proper course on the highway itself.

[20] There was no definitive estimate of speed made by any of the witnesses, although it was suggested by one eyewitness that Ms Morgan's vehicle may have been travelling at approximately 80 kilometres per hour shortly before it left the highway, and that it was travelling at approximately 50 kilometres per hour when it collided with the rear of the parked van. No great reliance could be placed on those estimates. However, some further indication of speed was provided by the fact that Ms Morgan's vehicle proceeded more than 32 metres along the footpath before it struck the van.

[21] During its path of travel along the footpath the vehicle struck 11 pedestrians. One of those persons, a young child, died as a result of the injuries she sustained. Seven of those persons sustained injuries amounting to grievous bodily harm and three of those persons suffered less serious injuries. At least three of those who suffered grievous bodily harm were said to be unlikely, at least in the short to medium term, to recover. One of those three persons was considered to be clinically dead at the scene of the incident, and but for the actions of a medical practitioner who was dining in a nearby restaurant at the time and was able to resuscitate the victim after some 15 minutes of CPR, it seems that she may well have died also.

[22] The conduct of Ms Morgan immediately prior to the incident explains why it occurred. Ms Morgan's brother had produced a can of butane gas at their residence and he, his girlfriend and Ms Morgan inhaled the gas on more than one occasion. All three were affected by the inhaled butane gas. Ms Morgan must have seen the effects of the inhalation on both her brother and his girlfriend. She must also have been aware, at least to some extent, of the effects of the gas on herself.

[23] Butane gas is a central nervous system depressant. Its effects have been likened to those of intoxication through ingestion of alcohol, although the effects occur almost instantaneously upon inhalation. The reason for this is that the drug enters the bloodstream through the lungs and not through the stomach. Just as the effects are brought on very quickly, so too the gas is expelled from the body rapidly.

[24] The inhalation of the butane gas did not occur only at the residence of Ms Morgan. It was eventually established that she inhaled the gas on several occasions after she began driving the motor vehicle in which were also her brother and his girlfriend. It is likely that Ms Morgan's last inhalation prior to the incident occurred approximately 200 metres from the intersection of the highway and View Road. Some of the eyewitnesses report that the erratic behaviour of Ms Morgan's vehicle became particularly noticeable at or shortly after that point. There could be no doubt that the effect of the butane on Ms Morgan was the cause of the tragedy that unfolded.

[25] The conduct of Ms Morgan after the incident was reprehensible. When her vehicle finally came to rest on the footpath Ms Morgan was heard by several witnesses to claim that she had been forced to swerve in order to miss a vehicle (a blue motor car) and that the accident was not her fault. This version was maintained by her when she spoke to police and her claim led to a sustained media campaign exhorting members of the public who may have seen such a vehicle to contact either the police or Ms Morgan's solicitor.

[26] Not one of the many witnesses interviewed by the police during their investigation could recall having seen a vehicle of the nature described by Ms Morgan. The solicitor who appeared at the sentencing hearing conceded that there never was such a vehicle and that Ms Morgan's claims in this regard were false. The concession was forthcoming only after the girlfriend of Ms Morgan's brother came forward to the police to tell the truth.

[27] This young lady not only revealed to the police the use of the butane gas but also told them that she had been provided by Ms Morgan with a list of questions and suggested answers which she should give to the police who wished to obtain an addendum statement from her. It was the provision of those instructions which formed the basis of count 2 on the indictment, namely attempting to pervert the course of justice.

[28] Until her brother's girlfriend decided to reveal the true circumstances of the incident to the investigating police officers, there had been a significant lack of remorse on the part of Ms Morgan. It was accepted at the sentencing proceedings that by that time she had become genuinely sorry for what she had done.

[29] In R v Markusic [2006] QDC 327 Robin QC, DCJ observed that the Transport Operations (Road Use Management) Act 1995 invites offenders in Ms Morgan's position to make applications like this. His Honour saw the Act as giving a good deal of encouragement to those who can demonstrate rehabilitation to obtain a licence. This was said to free offenders from the temptation, to which many notoriously succumb, to drive while disqualified. A driver's licence enables offenders such as Ms Morgan to retrieve a normal life in the community.

[30] In Burton v Commissioner of Police (Qld) 10 MVR 329 at 332, 333 Williams J (as he then was) approved the following observations of Sachs LJ (with whom Karminski LJ and Lawton J agreed) in R v Shirley [1969] 1 WLR 1357 at 1358:

"Long periods of disqualification from driving may prove a very severe handicap to a man when he comes out of prison and desires to pursue a different type of life to that which has led him into that prison. Such periods of disqualification may shut out a large sector of employment, especially in certain areas. Moreover, if the length of disqualification is overlong, and amounts to a period such as a decade, the position may well seem hopeless to the man - and that of itself sows the seeds of an incentive to disregard the law on this point. However wrong such an attitude may be, it springs from a human factor which it is wise to take into account."

[31] In applying the provisions of s.131(2C) of the Act to the circumstances relevant to this application, it is entirely appropriate to have regard to the statements and observations made in the cases to which I have referred. Ultimately, however, a judgement is required which, in a particular case, balances the interests of the applicant in having his or her licence restored with those of the community in not prematurely sanctioning the right of an offender to resume driving after committing a serious criminal offence which placed in jeopardy the safety of members of that community.

[32] The legislation envisages the eventual return to the roads of offenders such as Ms Morgan. At this time, however, I cannot accept that it is proper to make an order removing Ms Morgan's disqualification. The nature of the offence must be regarded as particularly serious, and Ms Morgan's character and conduct subsequent to her disqualification are not such as to overcome that seriousness at this time. Although I have the power to remove Ms Morgan's disqualification as from such date as may be specified in the order, I have formed the view that this application should be refused.