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Director of Public Prosecutions v Tonewani [1980] NRSC 3; [1969-1982] NLR (D) 90 (3 March 1980)

[1969-1982] NLR (D) 90

IN THE SUPREME COURT OF NAURU

Criminal Appeal No. 4 of 1980

THE DIRECTOR OF PUBLIC PROSECUTIONS

v.

ANDREW TONEWANI

3^rd March, 1980.

Being in charge of a motor vehicle whilst under the influence of intoxicating liquor - section 21(2) of the Motor Traffic Act 1937-1973 - extent of intoxication required to constitute offence.

Appeal against the acquittal of the respondent of being in charge of a motor vehicle whilst under the influence of intoxicating 1iquor-contrary to section 21(2) of the Motor Traffic Act 1937-1973. The respondent had been drinking and was riding his motor cycle along the road when he was stopped and taken to the police station. There the desk sergeant examined him and came to the conclusion that he was not sufficiently intoxicated to justify his being charged with an offence against section 21(1) of the Motor Traffic Act 1937-1973. He told the respondent to go straight home but allowed him to do so on his motor cycle. On the way the respondent stopped and then had difficulty starting the engine of his motor cycle. While he was trying to do so, another police officer found him, considered him to be so intoxicated as to be guilty of an offence against section 21 (2) and took him again to the police station. There he was charged with an offence against section 21(2). The evidence presented to the District Court as to be degree of his intoxication and its effect on his driving skills was conflicting.

Held: A person commits an offence against section 21(2) (and like-wise, if driving, against section 21(1)) if his intoxication is such as to be likely to have a substantially detrimental effect on his driving skills.

Appeal dismissed.

P.A. Thorpe for the appellant.
Mrs. M. L. Billeam &, Mr. B. Dowiyogo for the respondent.

Thompson CJ:

This is an appeal by the Director of Public Prosecutions against the acquittal of the respondent on a charge of being in charge of a motor vehicle whilst under the influence of intoxicating liquor contrary to section 21(2) of the Motor Traffic Act 1937-1973.

The learned trial magistrate found as fact that the respondent was in charge of a motor cycle but that there was doubt as to whether he was under the influence of intoxicating liquor to such an extent as to make him guilty of the offence charged. The facts disclosed by the evidence were somewhat unusual. Shortly before the time at which the offence charged was alleged to have been committed, the respondent had been stopped while riding the motor cycle and taken to the police station because the officer who stopped him was of that opinion that he was driving whilst under the influence of liquor. At the police station the officer decided that the respondent was not so much under the influence of liquor as to justify his being charged with the offence. He gave the respondent a warning, told him to go home and sleep and. allowed him to drive off on his motor cycle. The respondent was apparently on his way to his temporary home at the Meneng Hotel when he was found by other police officers committing the offence with which he was charged. He was arrested and taken back to the police station. The officer who had taken him there the first time was on duty as desk sergeant and gave evidence that the respondent's condition was the same as when he took him there on that first occasion. It is clear, therefore, that the officers arresting him on the second occasion formed a different view from that formed by the officer who took him in on the first occasion, as to the criminality of what they had respectively found the respondent doing in the same state of intoxication.

The appellant is seeking from this Court a decision as to the proper interpretation of subsections (1)-and (2) of section 21 of the Motor Traffic Act 1937-1973. Section 21(1) makes it an offence for a person to drive a motor vehicle "whilst he is under the influence of intoxicating liquor or drugs". Section 21(2) makes it an offence for a, person to be in charge of a motor vehicle in similar circumstances, There is no express requirement of any degree of intoxication. Taken simply the expression "under the influence of intoxicating liquor or drugs" includes the most minimal intoxication which occurs when a person imbibes any alcohol and the relief from pain which results from taking aspirin. To give it such a broad meaning, however, in the context in which it is used in section 21(1) and (2) would clearly be absurd. But, if it is not to have that meaning, where is the lower limit of intoxication rendering a person guilty of an offence against either of those subsections to be set?

One possibility is to import notionally into each subsection the phrase, common in the legislation of many countries, "to such an extent as to be incapable of having proper control of the vehicle". However, because such a phrase is so common in legislation of other countries having a purpose similar to section 21 of the Motor Traffic Act 1937-1973, it seems likely that the omission of it from section 21(1) and (2) was deliberate. In my view, therefore, those subsections should not be read as though they included such a phrase

However, if the provisions of section 21(1) and (2) are not to have an unreasonably oppressive effect, the lower limit of intoxication rendering a person guilty of an offence against either of those subsections must be such that the intoxication is likely to have a substantially detrimental effect on driving skills. I doubt whether it is possible, or desirable, to fix the limit in any more certain terms. No problem arises where the degree of intoxication is great, so that no reasonable person would doubt that driving skills are substantially impaired.

But, where the degree of intoxication is, near the borderline, opinions of even skilled medical witnesses may differ; and the opinions of experienced police officers without medical qualifications are likely to differ even more. The present was obviously such a case.

When the respondent was arrested fort the offence with which was charged in the District Court he was on his way by motorcycle to his temporary home with the approval, of the officer who had stopped him on the first occasion; because he had that approval he would, I think, have been entitled to feel aggrieved if he had been convicted. Even if the first officer applied the wrong standard and the respondent ought to have been charged with an offence for the driving in respect of which that officer stopped him, he was not so charged and his conviction cannot be sustained on that basis. But, in my view, the learned magistrate was entitled to find on the facts of the case, including the expert opinion of that first police officer, that there was doubt on which side of the borderline the respondent's intoxication lay.

In view of the apparent difficulty in obtaining expert opinion evidence of medical practitioners in such cases in Nauru, the need for the Motor Traffic (Breath Analysis) Act 1973 to be brought into effect and breath tests introduced is highlighted.

The appeal is dismissed.