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Secretary for Law v Godwin [1974] PGSC 55 (13 December 1974)

IN THE SUPREME COURT OF PAPUA NEW GUINEA

CORAM: PRENTICE, J.
Friday,
13th December, 1974.

SECRETARY FOR LAW

v.

GODWIN

(Appeal No. 116 of 1974 (N.G.))

1974
12 Dec.
PORT MORESBY
Prentice, J.

Special leave to appeal in this case was granted to the appellant by order of this Court on 3rd September, 1974. The leave was granted under s.225 sub-section 3(a) of the District Courts Act. The appeal is brought on a number of grounds following the dismissal of an information by the learned magistrate presiding in the District Court at Lae on 20th June, 1974.

The charge was one against the respondent under s.9 sub-section 1 of the Motor Traffic Act, of driving a motor vehicle under the influence of intoxicating liquor. After the evidence of the arresting policeman Senior Constable Apa had been given, the magistrate apparently refused to allow further police witnesses to be called and dismissed the information - making the following notation:-

"Prosecutor calls a prosecution witness. End of prosecution witness. This Court established no prima facie case. Finding: not guilty and discharged the defendant"

Senior Constable Apa had given evidence that was at that point unchallenged. He spoke of his attention being drawn to the eratic behaviour of a car and of following it in a police vehicle. The vehicle being followed swung from side to side, passed the centre line, and went to the wrong side of the road. This happened three times. The respondent was spoken to. It was noticed that there was a strong smell of liquor on his breath and that his eyes were bloodshot and his hair untidy. His speech was slurred, He admitted drinking, stating that he had just come back from the R.S.L. This was at 10.10 p.m. At the police station when asked what time he started drinking the respondent replied "The R.S.L. Club opens between 6.00 p.m. till 10.30 p.m.". Being questioned by the defendant, the constable stated he noticed a cassette fitted to the car and that the back of it was opened.

The learned magistrate on 3rd July, 1974 wrote out "Reasons for Judgment" as follows:-

"No prima facie case established by the Court on the following grounds:

(a) Speed limit is 30 mph on this particular road in which the defendant drove along 15 to 21 mph that shows no sign of dangerous driving.

(b) Prosecution witness did not prove the defendant was well under the influence of intoxicated liquor but submitted that the defendant's eyes were bloodshot his speech was slurred and had strong smell of liquor.

(c) Defendant in that case showed should be tested and made sure that he was drunk at the time of his arrest.

(d) Defendant admitted taking couple of beer at R.S.L. Club but denied to mention what type of beer.

(e) Arresting constable eyed witness the defendant who used to work on his cassette with one hand on the steer of his car and that caused the defendant's motor vehicle wheels missed the centre line.

Comments- The above ground are all minor mistake any motorist can make and that without proof beyond reasonable doubt magistrate could not punish such person unless prosecution offers sufficient evidence to prove the defendant's drunkenness and at the same time prove to the Court the habit of his dangerous driving"

On 24th September, 1974 the magistrate expressed further "Reasons for Judgment" as follows:-

(1) The reason for "not allowing" prosecutor to call further prosecution witnesses by the magistrate in Court was that I heard the evidence of the first prosecution (arresting officer) witness and after the questions and cross-examinations, I foresaw the nature of the alleged offence was not constituted any seriousness of its kind. Consequently I announced the dismissal of this case.

(2) The prosecution evidence proved that the defendant was drinking some beer after driving his motor vehicle along the Markham Road in bound town at a speed of about 15 to 20 miles per hour. Defendant although freely admitted swerving his motor vehicle by missing the centre line several occasions at the time the defendant used to insert a cassette to his cassette player in the vehicle.

(3) No evidence adduced the driving habit of the defendant as dangerous to public unless it get to be testified in Court that the accused actually hampered, threatened, destructed or collided with another motor vehicle in a public street. Most motorists do drink and drive upon a public street nearly every day and cause simple mistake as this. Even though there was not heavy traffic on that particular night may be none at all except the police vehicle approaching the rear of the defendant's motor vehicle.

(4) Prosecution evidence also showed that the defendant's cassette player was seen by the arresting officers at the scene. Defendant was found to be normal but the prosecution described him as was well under the influence of intoxicating liquor. There was no proof of alcohol content test produced in Court by police or trained medical practitioner in order to define the meaning of well effecting by liquor.

Under s.135(2) of District Courts Ordinance not only to convict or make order upon a defendant but dismiss the information as well as justice is required".

It can at once be seen that the learned magistrate has completely misunderstood the issues which he was required to try. In a charge of driving a motor vehicle under the influence of intoxicating liquor, it is not a necessary part of the prosecution case to establish dangerous driving. A manner of driving shown to be dangerous, negligent or careless, may of course in some circumstances contribute to the proof that the driving being done was being done by a driver influenced by alcohol.

Neither is it a necessary ingredient of such a charge that the prosecution establish "that the defendant was well under the influence of alcohol" - nor that he was "drunk". It is certainly not necessary to show that the defendant "was drunk at the time of his arrest". Information as to the type of beer consumed is not a necessary piece of the evidence required. There is no material in the Court Record to establish, as the magistrate found, that the swerving of the car was negligently caused by the attempt to insert cassettes in a tape recorder. (It may of course have been open to the defendant to establish that by cross examination, or by evidence later from himself). It is plainly incorrect to say that a magistrate would not punish a person (presumably on such a charge), unless the prosecution offers sufficient evidence to prove the defendant's drunkenness and at the same time to establish "the habit of his dangerous driving".

It is obviously incorrect of a magistrate to prevent the prosecution calling relevant witnesses, because he forms the conclusion that the evidence of the first witness does not itself establish the case sought to be proved. It should be unnecessary to advert to the terms of s.135 of the District Courts Act (relating to simple offences) –

"(1) If the defendant does not admit the truth of an information, the Court shall proceed to hear the complainant and his witnesses and the defendant and his witnesses and also such witnesses as the complainant examines in reply, if the defendant has given evidence other than as to his general character.

(2) The Court, having heard what each party has to say and the evidence adduced, shall consider and determine the whole matter, and shall ..."

I shall mention in passing, that in a matter where a manner of driving "dangerous to the public" is in issue; and this charge was not one of that kind; it is not correct to say as the learned magistrate appears to have said, that "drive in a dangerous manner" can only be established by showing that a defendant "actually hampered, threatened destructed or collided with another motor vehicle in a public street".

It should not be necessary to remind a magistrate that production of scientific evidence of alcohol content of an accused's bloodstream is only one method of establishing affection by liquor.

s.9(1) of the Motor Traffic Act so far as relevant, reads as follows:-

"A person, who whilst he is under the influence of intoxicating liquor ...

(a) drives a motor vehicle (b)... shall be guilty of an offence".

The leading authority usually referred to, in any discussion of the elements necessary to establish such an offence, is Molloy v. McDonald^[1] - a decision of Bavin, J., (of the New South Wales Supreme Court on the New South Wales section which is in comparable terms), who said –

"The question whether a person is under the influence of intoxicating liquor is a pure question of fact. 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 the 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".

A number of Useful cases are collected in Leslie & Britts Motor Vehicle Law in N.S.W^[2]. What must be proved, and beyond reasonable doubt, are facts which show that the defendant was in fact affected by the consumption of intoxicating liquor. Among such facts to establish affection by alcohol, may be his appearance, whether he staggers or walks normally, whether his speech is slurred or clear, whether his breath smells of alcohol, whether his general conduct was such as could be regarded as normal and the Court may reach its conclusions on the one hand upon inferences drawn from evidence which may not include any actual act of driving by the defendant, or on the other hand notwithstanding evidence of acts of apparently normal driving by the defendant.

It is important to remember that the section here in Papua New Guinea is not identical with that in South Australia. It is not necessary here to show a defendant "so much under the influence of intoxicating liquor ... as to be incapable of exercising effective control of his vehicle".

I allow the appeal. I quash the order dismissing the information. But in view of the time lapse since the hearing, and the fact that the respondent is now in Alotau and would incur heavy expenses to go to Lae to defend himself and indeed at the express request of the Secretary for Law (the appellant), I decline to remit the case for further hearing. The respondent is therefore relieved from further hearing. The respondent is therefore relieved from further proceeding on this charge.

_____________________

Solicitor for the Appellant: P.J. Clay, Public Solicitor.

^[1] 56 N.S.W.W.N. 159 at 160
^[2] 3rd Edition 210-211