Director of Public Prosecutions (NSW) v Kirby [2017] NSWSC 1754

Director of Public Prosecutions (NSW) v Kirby [2017] NSWSC 1754 · Read the judgment on AustLII

Catchwords: Driving under the influence – practice and procedure in hearings – May v O’Sullivan submissions

In the course of confirming that the offence of driving under the influence of drugs or alcohol does not require that the prosecution prove that the drugs or alcohol affected the accused’s manner of driving, the Supreme Court has also considered the procedure in relation to ‘no case to answer’ submissions.

The respondent enjoyed the hospitality of a pub so comprehensively that he was refused service of any more alcohol. Around an hour before he left the pub, two police also happened to see him and considered him ‘well affected’ by alcohol. He attempted to drive home. ‘Attempted’ because a couple of hours later the same police were alerted to a ute which had left the road and gone down an embankment. It was the respondent’s car, so police headed towards his home, 7km away, and found him 70 metres from his gate. They arrested him and found he still had bloodshot eyes (although he was no longer slurring his words), but they couldn’t undertake the formal breath analysis because more than two hours had elapsed since he drove. They charged him with driving under the influence.

At the hearing, the magistrate expressed the view that the prosecution ought to have obtained an expert report connected to his manner of driving. The accused’s lawyer subsequently submitted that the ‘first limb of May v O’Sullivan [was] not made out and the matter should be dismissed’. Readers will recall that the so-called ‘first limb’ requires a judicial officer to assess the prosecution case at its highest and decide whether the evidence could (theoretically) support the charges. The magistrate then provided judgment, dismissing the charge on the basis of the second limb of May v O’Sullivan. The DPP appealed on the basis that magistrate erred in (implicitly) finding that the offence requires the manner of driving to be affected; the reasons were inadequate; and the prosecutor ought to have been allowed to make submissions before the matter was dismissed under the second limb. This summary will only deal with the first and third of those appeal grounds (all three were successful).

RA Hulme J, sitting alone, confirmed in relation to the elements that there is no requirement that the manner of driving be affected, and referring to decisions as far back as 1939 and 1963 which confirm that proposition (at [18]-[21]). Moreover, no expert evidence is necessary to make out the offence – it can be established by the observation of lay witnesses (at [22]).

In relation to the question of procedural fairness, his Honour identified that although the accused had only made submissions in relation to the first limb of May v O’Sullivan, the magistrate dismissed the matter under the second limb. The second limb is an inquiry of a very different character: whereas the first limb is a question of law, taking the prosecution’s case at its highest, the second limb is a question of fact based on the whole of the evidence. That second stage should not be embarked upon without asking the accused whether they intended to call witnesses or tender evidence, and should be seen as a second and discrete stage (at [47]-[49]). It followed in this case that the magistrate ought to have given the prosecutor (who had only made relatively brief submissions on the first limb) the opportunity to submit on the second limb before dismissing the charge.