DPP (NSW) v Sonter

1. [1]

   HIDDEN J: The defendant, Brent Sonter, was prosecuted in the Local Court on a charge of dangerous driving occasioning grievous bodily harm, pursuant to s 52A(3)(a) of the Crimes Act 1900. The charge was dismissed. The plaintiff, the Director of Public Prosecutions, appeals against that dismissal, pursuant to s 56(1)(c) of the Crimes (Appeal and Review) Act 2001. Conformably with that section, the appeal raises questions of law.

2. [2]

   The charge was that the defendant in the afternoon of 26 August 2013 at Wongarbon drove a vehicle, a blue coloured Holden Commodore sedan, “when it was involved in an impact occasioning grievous bodily harm to Shayne Popovic, and at the time of impact the said Brent Sonter was driving the vehicle under the influence of a drug, to wit, methylamphetamine.”

3. [3]

   Put shortly, it was the prosecution case that on the occasion in question the defendant was driving the Commodore on the Mitchell Highway from Dubbo to Wellington. The car crossed the centre line, veered to its incorrect side, and collided with two cars travelling in the opposite direction. Ms Popovic was the driver of the second of those cars, a Mazda, and she suffered serious injuries. About three hours after the collision a sample of the defendant’s blood was taken, and the subsequent analysis of it detected the presence of 0.16 mg/L of methylamphetamine.

4. [4]

   Also put shortly, the defendant’s account to police in a recorded interview, which he maintained in evidence in the Local Court, was that he had used methylamphetamine before he set off on the journey, about 45 minutes before the collision, because he was tired. He believed that his car had veered to the wrong side of the road because he had momentarily gone to sleep. In the Local Court there was no issue about the impact or the resultant grievous bodily harm. The focus was upon whether the prosecution had proved that the defendant was under the influence of the drug at the relevant time and, if so, whether he made out the statutory offence under s 52A(8)(a) of the Crimes Act, that the impact was in no way attributable to the fact that he was under the influence of the drug. Rather, it was said, the accident was the result of his falling asleep despite his belief that it was safe to drive: presumably a reference to the High Court’s analysis in Jiminez v The Queen (1992) 173 CLR 572.

5. [5]

   At this stage it is necessary to set out relevant provisions of the Crimes Act. The provision creating the offence, s 52A(3), is in the following terms:

6. [6]

   Sections 52AA(3A) and (3B) provide:

7. [7]

   Section 52A(8) provides:

8. [8]

   On the issue whether he was under the influence of methylamphetamine, the defendant told police in an interview that while he was driving prior to the accident he was “feeling ok … not a problem.” He added, “I’ve obviously fallen asleep at the wheel.” Expert evidence was called about the possible effect upon him of the drug, based on his account and the reading obtained by the analyst. For present purposes there is no need to examine it in any detail. It turned in part upon whether he had injected the drug or taken it orally. If he had taken it orally the absorption into the bloodstream would have slower than if he had injected it, and it would have had less of an effect on him at the time of the accident. The magistrate found that he had taken it orally.

9. [9]

   The expert called in the defence case, Professor Christie, estimated that at the time of the accident the level would have been between .01 and .02 mg/L, a low concentration which he described as “sub therapeutic”. At such a level, he said, an individual might “feel a minor increase in alertness or awakeness but they might not feel anything at all.” He considered that concentration to be consistent with the defendant not having felt any effect of the drug while driving prior to the collision. The expert called in the prosecution case, Mr Farrar, did not accept that the concentration would have been that low. Both experts were of the view that the defendant would have been under the influence of the drug if the concentration at the time of accident was .16mg/L, the concentration found on analysis of the blood sample.

10. [10]

    The case was conducted on the basis that s 52A(3) creates three offences of dangerous driving, that is, driving under the influence of intoxicating liquor or a drug, or at a speed dangerous to another person or persons, or in manner dangerous to another person or persons. The charge was driving whilst under the influence of a drug, and it was accepted that unless that was established the defendant was entitled to be acquitted. His Honour said as much in his reasons for dismissing the charge, although it concerned him because he took the view that a case of driving in a manner dangerous might have been made out on the basis of the defendant’s fatigue.

11. [11]

    In his reasons for dismissing the charge, his Honour noted s52AA(3B), which he described as “a mechanical provision by which the point at which the blood test if it is within four hours occurs and the level of reading at that time allows the prosecution to rely on that analysis as having been sufficient to prove the level of drug in the blood at the time of driving.” He noted that that “mechanical provision is subject to a defence which is set out in the section.”

12. [12]

    His Honour set out the terms of s 52A(8)(a) and said, “I interpret that to mean that if you are able to demonstrate as a defence, and it is suggested that that is on the balance of probabilities, that the impact was not in any way attributable to the fact that the person was under the influence of in this case methamphetamine, then that would be a defence to the offence charged.”

13. [13]

    His Honour went on to refer briefly to the defendant’s police interview and his evidence, and the expert evidence, in particular, Professor Christie’s evidence that the level of the drug at the time of the impact would be sub-therapeutic. His Honour then said, “… I really cannot make a finding that it was at a level where he was in fact under the influence of the drug because of the evidence of Professor Christie, and even on the prosecution case and on the prosecution expert it is not clear on the balance of probabilities that he was in fact influenced if he had taken the drug orally.”

14. [14]

    His Honour referred to the defendant’s detailed police interview, noting that he had given evidence consistent with it and that the expert evidence was consistent with his having taken the drug orally, as he had said. His Honour continued, “I am of the view that the defence have, on the balance of probabilities, satisfied me that he was not under the influence of the drug at the time of the impact.”

15. [15]

    His Honour went on to say:

16. [16]

    Before formally pronouncing the acquittal his Honour made it clear that he considered that the wrong charge had been laid. Indeed, before commencing his reasons he said:

17. [17]

    I have done no more than sketch the course of the Local Court proceedings, and have referred only to a few highlights of what was a considerable body of evidence. However, what I have set out is sufficient to understand the issues raised by the appeal.

The appeal

1. [18]

   In this Court counsel for the Crown, Mr Pickering SC, argued six grounds of appeal. There is some overlap between them and it is not necessary to deal with each of them separately. The appeal challenges the magistrate’s view that s 52A(3) creates three separate offences, his Honour’s approach to the deeming provision is s 52AA(3B) and the statutory offence in s 52A(8), and generally the adequacy of his Honour’s reasons for dismissing the charge.

2. [19]

   The effect of s 52AA(3B) is that the concentration of methylamphetamine found upon analysis of the defendant’s blood sample was taken to be the concentration in his blood at the time of the accident unless he could prove that there was “no such drug” in his blood at that time: par (b).

3. [20]

   In the Local Court the defendant was represented by Mr Nicholls of counsel, who also appeared in this Court. After the expert evidence, but before the defendant was called to give evidence, Mr Nicholls made what he described as a Prasad submission that, as the evidence stood, his Honour could not be satisfied that the defendant was under the influence of the drug at the time of the accident. His Honour rejected that submission and the hearing proceeded to finality. However, in the course of argument s 52AA(3B) was raised by the prosecutor, who argued that the defendant could not succeed under par (b) because, although the expert evidence conveyed that the concentration in his blood could have been less than that found on analysis, it could not be said that there was no drug at all in his blood at the time of the accident. Mr Nicholls argued that all that need be shown to invoke par (b) was that the level of drug in the defendant’s blood was less than the concentration found on analysis.

4. [21]

   In the course of discussion it appears that his Honour accepted the prosecutor’s position. However, on the following day he delivered a brief ex tempore judgment on the issue, the import of which, with respect, is not clear. He referred to the terms of the section, describing it as “mechanical.” He referred to a “reverse onus” on the issue “in the sense that there is a defence available under s 52A, once it is demonstrated by the prosecution that there is a level of intoxication within four hours after the time of impact it is for the defence to disprove that there would have been intoxication in effect at the level that is demonstrated at that time.” Whether that was his Honour’s conclusion, or simply a reference to Mr Nicholls’ argument, is not clear.

5. [22]

   His Honour continued:

6. [23]

   The reference to a defence “under s 52A” would appear to be the statutory defence under subs (8). It may be that what his Honour intended to convey was that the defendant’s reading at the time of analysis was taken to be his reading at the time of the accident unless he proved that there was no drug at all in his blood at that time, and that, if he could not, there might be a basis upon which he could have recourse to the statutory defence. As will be seen, there appears to be the same ambiguity in his Honour’s reasons for dismissing the charge.

7. [24]

   On this issue in this Court, Mr Nicholls refined the argument he had mounted in the Local Court. He referred to the second reading speeches in the Legislative Assembly and the Legislative Council in relation to the Road Transport Legislation Amendment (Drug Testing) Act 2006, which inserted s 52AA(3B) into the Crimes Act. In the Assembly the Parliamentary Secretary said:

8. [25]

   Mr Nicholls submitted that the words “no such drug” in subs (3B)(b) should be interpreted to mean no such drug “active” in the defendant’s blood at the time of the impact. In the present case, he said, the effect of the evidence of Professor Christie that the concentration in the defendant’s blood at the time of the accident would have been sub-therapeutic, such that he may not have felt any effect of the drug, pointed to the drug not having been active at the time. He argued that the construction of the paragraph for which he contended would prevent a plainly unjust outcome where a defendant with a sub-therapeutic amount of drug in his or her blood at the time of an impact would be subject to a serious punitive provision. He cited authority for the proposition that, in the event of ambiguity or uncertainty, a legislative provision should be interpreted in such a way as to avoid irrational, incongruous or unjust results: Public Transport Commission (NSW) v Murray More (NSW) Pty Ltd (1975) 132 CLR 336, per Gibbs J at 350; DPP v Serratore (1995) 38 NSWLR 137, per Kirby P at 146.

9. [26]

   I cannot accept that proposition. There is no ambiguity or uncertainty in the words of the paragraph. “No such drug” is not qualified in any way – certainly not by the adjective “active” – and can only mean no concentration at all of the drug in question. As Mr Pickering pointed out, the expression “concentration of a drug” is used in the opening words of subs (3B) but not in par (b), making it clear that par (b) is concerned not with the concentration of the drug in a person’s blood, but with the presence of the drug at all. Understood in this way, the provision may be seen to have a draconian effect in some cases but it is plainly what it means.

10. [27]

    It is apparent that the expert evidence, particularly that of Professor Christie, was at the centre of his Honour’s reasons for dismissing the charge. However, with respect, it is unclear how that evidence was linked to the legal issues involved. Those issues were:

11. [28]

    The issue whether the defendant was under the influence of the drug at the time of impact turned largely, although not entirely, on the expert evidence. There was eye-witness evidence that he appeared to be driving the car normally and safely before it veered to the wrong side of the road. Nevertheless, the expert evidence loomed large on this issue, and it is the only evidence to which his Honour referred in his reasons.

12. [29]

    That evidence, in turn, was based upon an estimation of the concentration of the drug in the defendant’s blood at the relevant time, having regard to his account of his ingestion of the drug and the reading obtained on analysis of his blood sample. However, by virtue of s 5AA(3B) the concentration was taken to be that reading, .16mg/L, a level at which the experts were in broad agreement that he would have been under the influence of the drug. Nevertheless, that remained a factual matter for his Honour to determine.

13. [30]

    His Honour raised s 5AA(3B) by his reference to a “mechanical provision”, to which he noted that there was “a defence which is set out in the section.” A little later in his reasons his Honour referred to the statutory defence in s 52A(8). On both defences the burden of proof lay upon the defendant on the balance of probabilities. Despite his reference to s 52AA(3B), his Honour appears to have made a finding about the level of the drug in the defendant’s blood at the time of the accident on the basis of Professor Christie’s evidence, saying that he could not find “that it was at a level where he was in fact under the influence of the drug”, and that it was “not clear on the balance of probabilities that he was in fact influenced if he had taken the drug orally.” Finally, his Honour expressed the view that the defence had “on the balance of probabilities, satisfied me that he was not under the influence of the drug at the time of the impact.”

14. [31]

    Of course, it was for the prosecution to prove beyond reasonable doubt that the defendant was under the influence of the drug at the relevant time, not for the defendant to prove on the balance of probabilities that he was not. His Honour appears to have treated the evidence of Professor Christie as a matter going to a defence on which the defendant bore the onus. Whether that “defence” was the issue raised by s 5AA(3B)(b), that there was “no such drug” in the defendant’s blood at the time of the accident, or whether it was the statutory defence under s 52A(8), is unclear. I incline to the view, which was the view of the parties in argument, that it was the latter.

15. [32]

    If it was the former, then the defence could not be made out because it had not been established that there was no methylamphetamine at all in the defendant’s blood at the time of the accident. If it was the latter, then that defence fell to be considered only after his Honour was satisfied beyond reasonable doubt that the defendant was under the influence of the drug. The defence would be made out if his Honour were persuaded on the balance of probabilities that the drug played no part at all in the accident: R v Ganderton (CCA unreported, 17 September 1998) per Sully J at p 11. The statutory defence sought to be made out by the defendant, that he simply fell asleep at the wheel, was not addressed in his Honour’s reasons. The only reference his Honour made to it was his observation that it might have provided the foundation for a different charge.

16. [33]

    Of course, due allowance must be made for the pressure under which magistrates work, and the fact that his Honour’s reasons were given ex tempore and that the record I have of them is unedited and, in large part, unpunctuated: Director of Public Prosecutions v Illawarra Cash Mart Pty Ltd [2006] NSWSC 343, 67 NSWLR 402 at [15] (407), a decision of Johnson J. Nevertheless, it is clear that his Honour failed properly to address the issues raised by the matter and that this Court’s intervention is called for.

17. [34]

    This leaves the question whether his Honour’s view that s 52A(3) creates three offences is erroneous. Mr Pickering submitted that the subsection creates one offence of dangerous driving (occasioning grievous bodily harm) constituted by any one or more of the paragraphs set out: driving under the influence of intoxicating liquor or a drug, or at a speed or in a manner dangerous to another or others. If this be so, it would be appropriate in the one charge to allege more than one of those paragraphs, in effect, as particulars.

18. [35]

    The issue was raised, but not decided, in R v Lykouras [2005] NSWCCA 8. That was an application for leave to appeal under s 5F of the Criminal Appeal Act 1912 against an order of a District Court judge allowing the Crown to add to an indictment containing one count under s 52A(3) alleging driving under the influence of a drug a further count of driving in a manner dangerous. The appeal against that order was dismissed.

19. [36]

    However, relevant for present purposes are the following passages from the judgment of Howie J (with whom Sully J and I agreed) at [14] ff:

20. [37]

    In Lykouras it was argued on behalf of the applicant that there would be unfairness in adding the additional count, given that there was a prospect of acquittal of the original count because there was a basis for challenging the admissibility of a blood sample taken from the applicant and its subsequent analysis. This led to further observations by Howie J at [21] ff:

21. [38]

    The question whether s 52A(3) creates a single offence with alternative particulars or multiple offences was referred to, but again left undecided, in R v Tzanis [2005] NSWCCA 274, per Spigelman CJ at [23].

22. [39]

    In my view, there is considerable force in Mr Pickering’s argument that the subsection creates a single offence. However, yet again, the present case does not require that issue to be decided. Should this appeal be successful, the order sought by the Director is that the matter be remitted to the Local Court for redetermination. This ground of appeal is directed to the question whether, upon remitter, it would be open to the Court to consider the charge on the alternative basis of driving in the manner dangerous in the light of the defendant’s fatigue. However, I would not permit the matter to be remitted on that basis. I accept Mr Nicholls’ submission that that course would involve an unacceptable element of double jeopardy.

23. [40]

    In Director of Public Prosecutions v Wunderwald [2004] NSWSC 182, also an appeal by the Director against the dismissal of a charge in the Local Court, Sully J had occasion to consider whether this Court has a discretion to refuse relief on the basis of double jeopardy. The power to remit arises from s 59(2)(a) of the Crimes (Appeal and Review) Act, by which this Court may set aside the order made in the Local Court and make “such other order as it thinks just.” I propose not to refuse relief, but to grant it on terms.

24. [41]

    His Honour arrived at no concluded view on the issue, but said at [35] - [36):

25. [42]

    Wunderwald, however, was a very different case from the present. It was a simple case in which the dismissal of a charge of offensive behaviour was set aside because of error of law and denial of procedural fairness to the prosecution by the magistrate. The remitter of the matter to a Local Court did not provide any opportunity for the prosecution to recast its case. Here, as I have said, the matter proceeded on the basis of the allegation charged, that is, that the defendant was under the influence of a drug. There was no application by the prosecution to widen its case by amendment of the charge or any other means, nor did the magistrate raise the matter and invite submissions as to whether such a course should be followed.

26. [43]

    This is not a case, such as Lykouras, where the defendant seeks to rely upon a technicality to prevent the prosecution case being determined on its merits. A significant question of fairness arises here, invoking the discretion conferred by s 59 of the Crimes (Appeal and Review) Act. In my view, it would be unjust to allow the prosecution to present a case against the defendant different from that to which it adhered from the beginning to the end of the Local Court proceedings. I propose not to refuse relief, but to grant it on terms.

Orders

1. [44]

   Mr Pickering argued that, if the matter were to be remitted to the Local Court, I should direct that it be heard by another magistrate. I am mindful of the fact that this discretion is not lightly to be exercised. In Wunderwald Sully J refused to do so, saying that he did not “think that it is appropriate for the Supreme Court to intrude so far into the affairs of the Local Court to make such an order”: [41]. His Honour saw the re-listing of the matter in the Local Court as the responsibility of the Chief Magistrate or his delegate, not for a judge of this Court.

2. [45]

   Nevertheless, the order has been made in appropriate cases. Mr Pickering acknowledged that the power to make such an order should be used sparingly and with caution, only where there is a reasonable likelihood of a perception of pre-judgment or where it is otherwise desirable in the interests of justice, citing Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164 at [66] – [85] and [124] – [142]. In the present case his Honour did express a firm view about the likely outcome if what he saw as the appropriate charge had been laid. However, the limited basis upon which I propose to remit the matter will mean that that issue does not arise, and there is no reason to doubt that his Honour would assess the statutory defence appropriately in the light of the evidence.

3. [46]

   Accordingly, the order of the magistrate dismissing the charge against the defendant of dangerous driving occasioning grievous bodily harm is set aside. The matter is remitted to the Local Court for re-determination, confined to the allegation that the defendant was driving under the influence of methylamphetamine. The Director does not seek costs.