Home | Databases | WorldLII | Search | Feedback Supreme Court of Nauru

Director of Public Prosecutions v Aliklik [1980] NRSC 15; [1969-1982] NLR (D) 94 (5 March 1980)

[1969-1982] NLR (D) 94

IN THE SUPREME COURT OF NAURU

Criminal Appeal No. 5 of 1980

THE DIRECTOR OF PUBLIC PROSECUTIONS

v

DOUGAL ALIKLIK

Driving under the influence of intoxicating liquor - entitlement to examination by a medical practitioner - section 21(4) of the Motor Traffic Act 1937-1973 - problems in giving effect to the provision.

Appeal against acquittal of driving a motor cycle whilst under the influence of intoxicating liquor. The respondent was acquitted by the District Court because the magistrate considered that the degree of intoxication required to constitute the offence had not been proved and because the respondent, having requested to be examined by a medical practitioner, had not been examined. The police had refused to take him to the hospital for examination and all the medical practitioners concerned had refused to come from the hospital to the police station to examine him.

Held: The police and the medical authorities have a duty to co-operate with one another so as to ensure that the right to an examination by a medical practitioner, conferred by section 21(4) of the Motor Traffic Act 1937-1973 is real and not illusory.

Appeal dismissed.

D.G. Lang for. the appellant
Respondent in person

Thompson CJ:

The respondent was charged in the District Court with two offences relating to his driving a motor cycle. On one count, charging him with negligent driving, he was convicted, On the other charging him with driving a motor cycle whilst under the influence of intoxicating 1-iquor, he was acquitted. The learned magistrate stated in his judgement that there were two reasons, why he did not find the respondent guilty of that offence. First, the evidence of intoxicating was not adequate to prove the offence. Second, the respondent had been deprived of an opportunity to adduce medical evidence to rebut the prosecution evidence; when in police custody, he had asked to be examined by a medical practitioner but his request had not been met.

This appeal has been brought by the Director of Public Prosecutions against the acquittal of the respondent on the charge f driving a motor cycle whilst under the influence of intoxicating liquor. It has been brought on two grounds. The first is that the learned magistrate applied the wrong standard in respect of the degree of intoxication required to be established or, if he applied the correct standard, was not entitled to make the finding which he made. The second; round is that the police did not fail in any duty owed to the respondent by failing to arrange for him to be medically examined when he requested it.

At the time when the case was tried in the District Court the meaning of the phrase "whilst under the influence of intoxicating liquor or drugs" in section 21(1) had not been authoritatively construed by this Court. Since then this Court has decided in Criminal Appeal No. 4 of 1980, that a person is under the influence of intoxicating liquor or drugs for the purpose of section 21(1) where the degree of his intoxication is such that it is likely to have a substantially detrimental effect on his driving skills. It is in the light of that decision that the evidence given in the District Court must be viewed.

The facts established by the evidence of the prosecution witnesses were that at about l0a.m. on the day of the alleged offence the respondent drove his motor cycle for some distance on the wrong side of the, road while looking back at some other motor cyclist whom he was overtaking, and that, when stopped by police officers because of that, his breath smelled of alcohol and he rested first on one foot and then on the other as lie sat astride the motor cycle, apparently having difficulty holding it up. The respondent himself gave evidence that he had drunk eight or nine cans of beer between 7p.m on the previous evening and 3a.m that morning and that, although at 10a.m he was sober, he "still had the effects of drink on me and because he had had no food, his breath smelled of alcohol. That was certainly not an admission of any substantial intoxication or of the consumption of such a quantity of intoxicating liquor at such a time as would be likely to result in any substantial "intoxication at l0a.m, when he was stopped by the police officers.

Although one of the two police officers who arrested the respondent gave evidence that he was very drunk, they gave no evidence of any of the usual indicia of intoxication, except the smell of alcohol on the respondent's breath. The manner of his driving was negligent but it was not erratic or otherwise such as to point strongly to the respondent being intoxicated. The respondent gave what the learned magistrate accepted was a plausible explanation of his having difficulty holding up the heavy motor cycle. When all the evidence is examined, therefore, it is clear that the case, as presented, was not a strong one and the magistrate could, on the evidence, properly have had a reasonable doubt whether the degree of the respondent's intoxication was sufficient for him to be guilty of the offence charged. Accordingly the appeal will be dismissed.

However, before completing this judgment I should deal briefly with the second ground of the appeal and the issues raised by it. Section 21(4) of the Motor Traffic Act 1937-1973 provides as follows:-

"(4) Any person who is arrested for an offence under this section shall be entitled, upon request made by him or on his behalf, to be examined by a medical practitioner nominated by him and, where any such request is made, the arresting officer shall afford reasonable facilities for the holding of the examination."

That is not an entirely satisfactory provision because, although it purports to confer on the person under arrest an entitlement to be medically examined by a medical practitioner of his own choice, it does not expressly impose any obligation on the medical practitioner to examine him or on the police to find for him a medical practitioner willing to do' so. The nature of the practice of medicine is such that many occasions arise when a medical practitioner is so fully occupied, e.g. with a surgical operation, that he cannot be expected to make himself available to examine a person under arrest for an offence against section 21. So the entitlement of such arson to be examined by a medical practitioner of his own choice clearly subject to some limitations. But it is equally clear hat the section does imply that medical practitioners have duty to carry out the examination if they are not prevented by more pressing work from doing so. In the circumstance of Nauru where all medical practitioners are employed by the Republic or the Nauru Phosphate Corporation, it also implies that the Republic d the Corporation have a duty not to place obstacles in the way of a person entitled to medical examination under section 21 (4) obtaining it. The section imposes a positive duty on police officers to facilitate the actual examination.

It seems that at present: there is a lack of good will and co-operation between the police and the medical authorities on the matter. There appears to be a difference of opinion between them on whether such examinations should be carried out at the police station or in hospital.

There are obvious problems involved in taking an obstreperously intoxicated person to hospital, where he may have to wait with ordinary out-patients. But the medical practitioners may also face the problem of leaving patients at the hospital unattended for an unduly long time if they have to go the police station to carry out the examination. One possible 'compromise is that the police should take to the hospital all Persons requiring examination unless their behaviour is such as to be likely to cause problems if that is done; and for the doctors agree to come to the police station on any occasion when the police inform them that the behaviour of the person to be examined; necessitates it. What is important is that good will and common sense should prevail instead of the present apparent intransigence. If the persons concerned are unable to display that good will and common sense, their superior officers, or if necessary their 'Ministers should issue directions, so that the entitlement given to a person by section 21(4),is real and effective and not, as in\ the present, case, a mere illusion.

As Mr. Lang pointed out, the reason why persons arrested for offences under section 21 need to be entitled to be medically examined is the fact that those offences have to be medically examined is the fact that those offences have to be proved by the evidence of the opinion of expert witnesses. If the Motor Traffic (Breath Analysis) Act 1973 were brought into force, the 'offences for which it provides would not depend on expert opinion and the number of prosecutions for offences under section 21 would almost certainly decrease drastically, thus practically resolving the problem of providing facilities for medical examination in compliance with section 21(4).

The appeal is dismissed.