Director of Public Prosecutions v Deaido [1978] NRSC 9; [1969-1982] NLR (D) 69 (25 September 1978)

[1969-1982] NLR (D) 69

IN THE SUPREME COURT OF NAURU

Criminal Appeal No. 28 of 1978

DIRECTOR OF PUBLIC PROSECUTIONS

v.

DON JUAN DEAIDO

25th September, 1978.

Driving under the influence of intoxicating liquor - condition after driving - inference as to condition while driving.

Driving under the influence of intoxicating liquor - evidence of single witness - if witness experienced and uncontradicted, may be sufficient to prove intoxication.

Dangerous driving - what constitutes - driving which is dangerous per se, accompanied by fault.

Appeal against acquittal on counts of driving a motor vehicle under the influence of intoxicating liquor contrary to section 21(1) of the Motor Traffic Act 1937-1973 and of driving in a manner dangerous to the public contrary to section 19(1) of that Act. The respondent in his motor car overtook a bus and collided with a landrover travelling in front of the bus which was turning to the right. A police sergeant arrived at the scene shortly afterwards and, observing the condition of the respondent to whom he was related and whom he knew well, came to the conclusion that he was drunk. No witness other than the sergeant gave evidence of the respondent's condition. The magistrate held that the evidence did not establish a prima facie case on either count.

Held: (1) In the absence of any grounds for believing that the respondent might have consumed liquor after the collision and before the arrival of the sergeant, an inference as to his condition when driving could properly be drawn from his condition as observed by the sergeant.

(2) There is no rule of law or practice which requires intoxication to be established by the evidence of a doctor or of more witnesses than one. An experienced police officer may be accepted as an expert witness on the issue of intoxication.

(3) A person is guilty of the offence of driving in a manner dangerous to the public only if the manner of his driving is dangerous per se and he is in some way at fault.

Appeal allowed; case remitted to the District Court for trial de novo.

R.J. Hooker for the appellant
L.D. Keke for the respondent

Thompson CJ:

The respondent was charged with driving under the influence of intoxicating liquor contrary to section 21(1) of the Motor Traffic Act 1937-1973 and with dangerous driving contrary to section 19(1) of that Act. At his trial in the District Court evidence was given by three witnesses called by the prosecution. The evidence established a prima facie case that the accused was driving his car on the road in Baiti District, overtook a bus which was travelling in the same direction and collided with a landrover which had been travelling 30 yards in front of the bus in the same direction, had its right-hand turn indicator flashing and was turning right. As a result of the collision the landrover was pushed along the road and turned over onto its left side. Two girls travelling in the back of the landrover were slightly hurt. Evidence was given by a police sergeant who arrived on the scene shortly after the collision that the respondent had badly bloodshot eyes, spoke in a slow and hesitant manner with his head bowed, admitted that he had been drinking and appeared to be drunk. There was a strong smell of alcohol. The witness gave evidence that he was related to the accused, knew him well and was able to tell whether he was drunk or sober. He also gave evidence that during ten years' service in the police force he had become experienced in handling cases of driving under the influence of alcohol. The accused was not examined by a doctor and no evidence was given that he was so much under the influence of alcohol as to be unable to have proper control of a motor vehicle.

At the conclusion of the prosecution case the learned magistrate held that there was no case for the accused to answer on either count. This appeal is brought against that decision, in respect of both counts.

In respect of the first count he held that there was no evidence on which the respondent could be safely convicted. He observed that the only evidence of intoxication was that of the police sergeant, that it was not corroborated and that it related to a time after the collision when the accused was no longer driving. He considered that the respondent's condition could have been due to nervousness and because he was in a state of shock. He pointed out that the time in respect of which it must be proved that the respondent was under the influence of alcohol was the time when he was driving. That is entirely correct but there is no reason why his condition at that time should not inferred from his condition shortly after the accident. The police sergeant came upon the scene very soon after the collision. The respondent was still there. It was not suggested in cross-examination of the police sergeant or either of the other witnesses that the respondent consumed liquor after the collision. In the absence of any other evidence tending to show the contrary the only reasonable inference is that the respondent was under the influence of alcohol when driving the car. The magistrate was in error, therefore, in holding that the evidence did not establish that prima facie.

If, as appears to have been the case, he held that the evidence of the police sergeant required corroboration, again he was in error. Where intoxication to the extent of inability to control a motor vehicle is an element of such an offence, as it is in many countries, the administration of special tests may, depending on the circumstances, be required so as to enable that issue to be determined. But no such degree of intoxication is required to establish an offence against section 21(1) of the Motor Traffic Act 1937-1973. In Nauru a long-serving police officer probably has more experience of assessing whether a person is under the influence of alcohol than some doctors may have. The evidence of a witness such as the police sergeant who gave evidence in this case is, in the absence of evidence raising a reasonable doubt that the respondent's condition was due to some cause other than alcoholic intoxication, quite adequate to found a conviction on. The appeal on the first count must, therefore, be allowed.

In respect of the second count, the learned magistrate held that the evidence did not establish that the respondent was driving in a manner which was or might be dangerous to the public. He observed that there was no evidence of excessive speed or of the length of clear road ahead when he began to overtake after the driver of the landrover signalled her intention to turn to the right. It is not, I think, disputed by either party that, in order to prove the offence, the prosecution had to establish two things, first that the manner of driving was dangerous per se and second that the respondent was guilty of some fault in driving in that manner. In this case, if the manner of driving was dangerous per se, there can be no doubt that the respondent was at fault; he chose to overtake the bus and the landrover. Mr. Hooker submitted that merely to overtake a bus is a dangerous manoeuvre. In certain circumstances it certainly may be, but the generalisation cannot be accepted as correct. Often it is a perfectly safe manoeuvre. As the learned magistrate implied, it depends on the length of clear road ahead. The issue in this appeal, therefore, is whether there was adequate evidence to establish that, when the respondent began to overtake the landrover, he had available to him information which would have led a reasonable person in his position to be aware that the road would not remain clear and that the manoeuvre would be unsafe. The onus was, of course, on the prosecution to prove that. The principal evidence relevant to the issue is that of the driver of the landrover that she turned on her right-hand-turn indicator some distance before she began to turn and that she slowed down before she made the turn. She stated the distance in terms of that between the Courthouse and the Police Station, a fact of which the learned magistrate could take judicial notice, as can this Court. The witness was not cross-examined to suggest that her evidence was untrue; indeed she was not cross-examined at all. Provided that the indicator was working, her evidence establishes prima facie that the respondent had reason to know, well before he began to overtake the landrover, that the road ahead would not be clear for him to do so and that the manoeuvre would be dangerous. Evidence was given by the driver of the bus that the indicator was flashing; he was not cross-examined on that evidence.

The prosecution, therefore, did adduce sufficient evidence that the respondent was driving in dangerous manner per se and was guilty of fault in doing so. The learned magistrate was in error in holding that a prima facie case had not been established in respect of the second count, and the appeal on that count also is allowed.

Normally the proper order in such an appeal as this is that the case be remitted to the District Court with a direction that the trial be continued by the same magistrate. Unfortunately, the magistrate in this case is no longer in Nauru and, unless the witnesses are no longer available, it would be unnecessarily expensive to adopt that course. If the witnesses are all still available, the order will be that the case be remitted to the District Court for trial de novo before another magistrate.