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Chapter 48: Unfit to Drive

Table Of Contents  

[48.0] Introduction 

This chapter will examine the offences of: 

·                     'Driving When Under The Influence Of Drinks Or Drugs'; and 

·                     'Being In Charge When Under The Influence Of Drinks Or Drugs', 

as provided for by section 43 of the Traffic Act (Ch. 131). 

For the purpose of consistency the offences under the Traffic Act (Ch. 133) should be interpreted  

'in accordance with the Interpretation and General Provisions Act and the principles of legal interpretation obtaining in England, and expressions used in it shall be presumed, so far as is consistent with their context, and except as may be otherwise expressly provided, to be used with the meaning attaching to them in English criminal law and shall be construed in accordance therewith', see section 3 of the Penal Code (Ch. 26). 

See: Road Traffic Act 1960 (UK), section 6.

[48.1] Unfit To Drive

[48.1.1] Offence 

Section 43(1) of the Traffic Act (Ch. 131) states (in part): 

'A person who, when driving or attempting to drive a motor vehicle on a road or other public place, is unfit to drive through drinks or drugs […].'

[48.1.2] Wording Of Charge 

'[Name of Defendant] at [Place] on [Date] did [drive or attempt to drive] a motor vehicle to wit a [specify the motor vehicle] on a [road namely (specify the name of the road) or public place to wit (specify the public place)] whilst being unfit to drive through drink or drugs.' 

A conviction for driving whilst being unfit to drive through drink or drugs is not bad for duplicity, see Thomson v Knights [1947] 1 AllER 112; [1947] KB 336. 

The law relating to 'Duplicity' is examined commencing on page 86.

[48.1.3] Elements 

A. Defendant 

B. Place 

C. Date 

D.        [i] Drive; or 

[ii] Attempt To Drive 

E. Motor Vehicle 

F.         [i] Road; or 

[ii] Public Place 

G. Whilst Being Unfit To Drive Through Drink Or Drugs

[48.2] In Charge

[48.2.1] Offence 

Section 43(2) of the Traffic Act (Ch. 131) states: 

'A person who, when in charge of a motor vehicle which is on a road or other public place (but not driving the vehicle) is unfit to drive through drink or drugs […].'

[48.2.2] Wording Of Charge

'[Name of Defendant] at [Place] on [Date] was in charge of a motor vehicle to wit a [specify the motor vehicle] which was on a [road namely (specify the name of the road) or public place to wit (specify the public place)] whilst being unfit to drive through drink or drugs.'

[48.2.3] Elements 

A. Defendant 

B. Place 

C. Date 

D. In Charge 

E. Motor Vehicle 

F.         `[i] Road; or 

[ii] Public Place 

G. Whilst Being Unfit To Drive Through Drink Or Drugs

[48.3] Drive 

The element 'Drive' is examined commencing on page 709.

[48.4] Attempt To Drive 

The term 'Attempt To Drive' is not defined in the Traffic Act (Ch. 131) or the Interpretation & General Provisions Act (Ch. 85). 

The 'natural and ordinary' meaning of that term in the context of this section would include sitting in the driver's seat and 

·                     endeavouring to start the motor vehicle;  

·                     trying to put it the motor vehicle in gear; or 

·                     accelerating the engine of the motor vehicle in order to try to make it go forward, see R v Farrance (1977) 67 CrAppR 136.

In R v Cook (1964) 48 CrAppR 98 Lord Parker CJ, delivering the judgment of the Court, stated at pages 103 –104: 

'It is unnecessary to go through the many cases which draw a distinction between what one might call an act preparatory and an act constituting the attempt. So far as this case is concerned, we are quite clear that it is impossible to say that the getting into the driving seat and the passenger seat of this vehicle by Howe and the appellant, respectively, with the clear intention of taking and driving it away, when the full offence would be constituted in a minute, as the appellant said, did not constitute an attempt. 

The nearest authority dealing with the taking and driving away and stealing of a motor – vehicle is an Irish case, PRENDERGAST V PORTER [1961] IrJurR 15. There a defendant had attempted to start the car with the handle and twice tried to start it with the handle, then sat in the driver's seat, but failed to start it. It was argued that all that he had done was to attempt to start it, and that he had never got to the stage of attempting to drive it. The court said that "although the process of putting a car in motion by driving involves several steps, yet in the ordinary process these steps are so intimately connected as to occupy a matter of seconds and constitute a practically instantaneous succession of semi – automatic movements. In the instant case the defendant attempted to begin this succession and he would have completed the act of driving, had the car started."'

See also: McNeall v Croker (No. 2) (1939) 56 WN(NSW) 149; Kelly v Hogan [1982] RTR 352 & Harman v Wardrop [1971] RTR 127. 

The law relating to 'Attempts To Commit Offences' is examined commencing on page 398.

[48.5] In Charge 

The term 'In Charge' is not defined in the Traffic Act (Ch. 131) or the Interpretation & General Provisions Act (Ch. 85). 

In Director of Public Prosecutions v Watkins (1989) 89 CrAppR 112 Taylor LJ with whom Henry J concurred, stated at pages 117 – 118: 

'[There is] no hard and fast all – embracing test [that] can be propounded as to the meaning of the phrase "in charge". 

Broadly there are two distinct classes of case. (1) If the defendant is the owner or lawful possessor of the vehicle or has recently driven it, he will have been in charge of it, and the question for the Court will be whether he is still in charge or whether he has relinquished his charge. That is the class to which the Haines v Roberts rule was directed. Usually such a defendant will be prima facie in charge unless he has put the vehicle in some else's charge. However he would not be so if in all the circumstances he has ceased to be in actual control and there is no realistic possibility of his resuming actual control while unfit: eg. if he is at home in bed for the night, if he is a great distance from the car or if it is taken by another. 

(2) If the defendant is not the owner, the lawful possessor or recent driver but is sitting in the vehicle or is otherwise involved with it, the question for the Court is […] whether he has assumed being in charge of it. In this class of case the defendant will be in charge if, in the circumstances, including his position, his intentions and his actions, he may be expected imminently to assume control. Usually this will involve his having gained entry to the car and evinced an intention to take control of it. But gaining entry may not be necessary if he has manifested that intention some other way, eg. by stealing the keys of a car in circumstances which show he means presently to drive it. 

The circumstances to be taken into account will vary infinitely, but the following will be usually relevant: 

(i) Whether and where he is in the vehicle or how far he is from it. 

(ii) What he is doing at the relevant time. 

(iii) Whether he is in possession of a key that fits the ignition. 

(iv) Whether there is evidence of an intention to take or assert control of the car by driving or otherwise. 

(v) Whether any other person is in, at or near the vehicle and if so, the like particulars in respect of that person.

It will be for the Court to consider all the above factors with any others which may be relevant and reach its decision as a question of fact and degree.' [words in brackets added] 

Section 43(2) of the Traffic Act (Ch. 131) states: 

'A person is deemed for the purposes of this subsection not to have been in charge of a motor vehicle if he proves – 

(i)                 that at the material time the circumstances were such that there was no likelihood of his driving the vehicle so long as he remained unfit to drive through drink or drugs; and 

(ii) that between his becoming unfit to drive as aforesaid and the material time he had not driven the vehicle on a road or other public place.' (emphasis added) 

The onus is on the defendant to prove that defence on the 'balance of probabilities'. 

Refer also to the law relating to 'Negative Averments' commencing on page 83.

[48.6] Motor Vehicle 

The element 'Motor Vehicle' is examined on page 710.

[48.7] Road 

The element 'Road' is examined on page 710.

[48.8] Public Place 

Whilst the term 'Public Place' is not defined in the Traffic Act (Ch. 131), it is defined in section 16 of the Interpretation & General Provisions Act (Ch. 85) as including: 

'every place to which the public are entitled or permitted to have access whether on payment or otherwise'. 

In R v Waters (1963) 47 CrAppR 149 Lord Parker CJ, delivering the judgment of the Court, held at page 154: 

'It seems to this court that the question is largely a matter of degree and fact. If only a restricted class of person is permitted to have access or invited to have access, then clearly the case would fall on the side of the line of it being a private place. If, on the other hand, only a restricted class is excluded, then it would fall on the side of the line of it being a public place.' 

See also: Clarke v Kato & others [1997] 1 WLR 208; [1998] 1 WLR 1647; Ling Ainui v Luke Ouki [1977] PNGLR 11 at page 12; Hansen v Appo, Ex parte Appo [1974] QdR 259; O'Mara v Lowe, Ex parte O'Mara [1971] QWN 34 & Schubert v Lee (1946) 71 CLR 589.

[48.9] Unfit To Drive 

The term 'Unfit To Drive' is not defined in the Traffic Act (Ch. 131) or the Interpretation & General Provisions Act (Ch. 85). 

Section 43(5) of the Traffic Act (Ch. 131) states: 

'For the purposes of this section, a person shall be taken to be unfit to drive if his ability to drive properly is for the time being impaired.' 

In R v Leonard Boaz (Unrep. Criminal Review Case No. 45 of 1996) Palmer J stated at page 4: 

'In the review hearing before this Court, learned Counsel for the accused stated that the accused had told him that he was going to plead guilty as he had taken some alcohol. The offence he had been charged with however, is not merely for taking alcohol, but that he was unfit to drive as a result. There are two different things involved, one is the taking of alcohol, and the other is the ability to drive as a normal driver. A person may have taken one or two cans of beer, and still be able to drive normally. Another person on the other hand, may not be in a fit position to drive. The test as set out by the learned Author, G.S. Wilkinson in Road Traffic Offences, at page 100 is that, "his ability to drive properly is for the time being impaired", through drink or drugs. He also points out that this can be proven by evidence that a car was being driven erratically or that an accident occurred at a spot where there was no hazard for a normal driver.' 

See also: R v Hawkes (1931) 22 CrAppR 172. 

A police officer may give 'opinion evidence' as regards the indicia of the defendant. 

In Himson Mulus v R [1969 – 70] PNGLR 82 Frost J stated at page 99 that 'no expert qualification is required for a witness to give evidence as to the effect of alcohol upon a person'. 

In R v Aldridge (1990) 20 NSWLR 737 the Court held at page 744: 

'The third ground of appeal complains of admission into evidence of the police officer's opinion that Mrs Ryan was affected by intoxicating liquor at the time when the police were called to her house. Unassisted by authority, and ignoring what has always been permitted in charges of driving under the influence and in personal injury claims, I would have said that a police officer could give evidence of only the usual indicia upon which an opinion may be founded – smelling of liquor, slurred speech, inability to walk in a straight line, etc – leaving it to the jury (or other tribunal of fact) to draw its own conclusions from their own experience […]. 

The police officer's opinion was therefore admissible, although it should not have been permitted without first obtaining the factual basis for that purpose.' (emphasis added) 

Therefore, for such 'opinion evidence' to be admissible police officers must give the basis of their opinion based on their own experience in dealing with persons affected by liquor both at work and socially. 

See also: Kennedy v Prestwood (1988) 7 MVR 561; Himson Mulas v R [1970 – 71] PNGLR 82 at page 99; Blackie v Police [1966] NZLR 910; Thomas v Snow [1962] QWN 7; Warning v O'Sullivan [1962] SASR 287 at page 289; R v Kelly [1958] VR 412; R v McKimmie [1957] VR 93 & R v Whitby (1957) 74 WN(NSW) 441.

 Whilst such evidence is admissible, an opinion by a lay person as to whether a defendant is 'unfit to drive' is inadmissible, see R v Davies [1962] 1 WLR 1111; (1962) 46 CrAppR 292; [1962] 3 AllER 97. 

Furthermore, an admission by a defendant that he/she had too much alcohol to drink was not an adequate substitute for evidence by a police officer that the defendant was visibly affected by alcohol, see Amos v Griffiths (1987) 5 MVR 430. 

Refer also to the subsection which examines 'Opinion Evidence – Lay Persons' commencing on page 205. 

In Billy Gatu v R (Unrep. Criminal Case No. 93 of 1993) Palmer J stated at pages 6 – 7: 

'The evidence adduced in the Magistrate's Court indicated clearly that the line walking test was used to determine whether the accused was in a fit state to drive or not. 

I note that there is no legal basis for the application of such a test. I do however observe that such a test had been used it seems as a standard practice by police for sometime. 

I accept that the police do not have a police surgeon, or a medical doctor, that is attached on a permanent basis to the Police Department, and who can be called upon in such instances to carry out a medical examination on the suspect, when required. I also do note that previously, such persons would normally have been taken to the Central Hospital, for examination by a doctor or nurse, but that this practice seems to have been discontinued for some reason or other. Perhaps, it was the doctors and nurses who have refused such requests for fear of being physically assaulted by such drunken suspects. 

I accept that the police are therefore in a very difficult position in respect of carrying out any recognised tests or examination on such suspects. I do not know how the test applied in this case emerged as a practice adopted by the police, but it would seem to have its origins from the usual medical examinations that are normally performed by medical doctors. 

One such good example of this is contained in the book titled 'Road Traffic Offences' by G.S. Wilkins, 4th Edition 1963 at page 394 – 399, and marked Appendix II. This is a model scheme of Medical Examination drawn up by the British Medical Association and published in 1958, as a guide for an examining doctor to use. The requirements imposed are very clear and precise, and when contrasted with the test applied by the police officers, that test I must say, fell well below any minimum standard of acceptability. 

One of the sub – headings in this model scheme is headed 'gait', and it is interesting to note that the line walking test applied by the police officers cam under this subheading. I quote: 

"The examinee should be asked to walk across the room and the examiner should note: 

(a)                Manner of walking: is it straight, irregular, over – precise, staggering, reeling or with feet wide apart? 

(b)               Reaction time to a direction to turn: does the examinee turn at once or continue for one or two paces before obeying? 

(c)                Manner of turning: does the examinee keep his balance, lurch forward, or reel to one side? Does he correct any mistake in a normal or an exaggerated way? 

It is undesirable to ask the examinee to walk along a straight line drawn on the floor or along a carpet edge.' 

The first obvious point can be noted from the above quotation is that, the test applied by the police officers was described as 'undesirable'. 

Secondly, such a medical examination is carried out only with the consent of the examinee. Thirdly, the walking test stood out as a very crude test; so crude in fact to be virtually unreliable, and accordingly should have been excluded outright. But even if it is to be admitted, its evidential value with respect would be so negligible to be of any significance.' (emphasis added) 

Any medical examination of a defendant to determine 'unfitness to drive' must be conducted with the consent of the defendant as there is no legal basis to require a defendant to undertake such an examination. 

See also: 'Halsbury's Statutes of England', 3rd ed., Ch. 28, page 232. 

If defendant is examined for the purpose of determining whether he/she was suffering from an illness or disability and consents to the examination on that basis, the doctor cannot be called to give evidence as to his/her opinion regarding the fitness of the defendant to drive, see R v Payne (1963) 47 CrAppR 122; [1963] 1 AllER 848; [1963] 1 WLR 637 & R v Court [1962] CrimLR 697. 

Refer also the law relating to 'Opinion Evidence – Experts' commencing on page 202.

[48.10] Drink 

The term 'Drink' is not defined in the Traffic Act (Ch. 131) or the Interpretation & General Provisions Act (Ch. 85). 

In Armstrong v Clark (1957) 41 CrAppR 56 [[1957] 2 QB 391; [1957] 2 WLR 400; [1957] 1 AllER 433] Lord Goddard CJ, with whom Cassels & Lynskey JJ concurred, commented at page 59: 

'In my opinion, drink means alcoholic drink.' (emphasis added)

[48.11] Drug 

The term 'Drug' is not defined in the Traffic Act (Ch. 131) or the Interpretation & General Provisions Act (Ch. 85). 

In Bradford v Wilson (1978) 84 CrAppR 77 Robert Goff LJ, delivering the judgment of the Court, stated at page 82: 

'Accordingly, adopting a common sense approach, I would say, without attempting to give a definition, that, as a general rule, a substance which is taken into the human body by whatever means, for example, by inhalation, or by injection, or by mouth – which does not fall within the description "drink" (because that is specifically mentioned in the section) [, referring to section 5(2) of the Road Traffic Act 1972 (UK),] and which is not taken as a food, but which does affect the control of the human body, may be regarded as a drug for the purposes of this section. A particular example of such a substance is one which has a narcotic effect on the human body. That provides, I hope, some guidance as to what can properly be regarded as a drug for these purposes.' [words in brackets added]

[48.12] Sentencing

[48.12.1] Unfit To Drive 

Section 43(1) of the Traffic Act (Ch. 131) states that a defendant found guilty of an offence under that subsection shall be 'liable – 

(a)                on conviction by the High Court, to a fine of two thousand dollars or to imprisonment for two years or to both such fine and such imprisonment; 

(b) on conviction by a Magistrate's Court, to a fine of four hundred dollars or to imprisonment for twelve months or in the case of a second or subsequent conviction to a fine of five hundred dollars or to imprisonment for twelve months.'

[48.12.2] In Charge 

Section 43(2) of the Traffic Act (Ch. 131) states that a defendant convicted of an offence under that subsection shall be 'liable – 

(a)                on conviction by the High Court, to a fine of five hundred dollars or to imprisonment for six months or to both such fine and such imprisonment; 

(b) on conviction by a Magistrate's Court, to a fine of two hundred dollars or to imprisonment for six months or in the case of a second or subsequent conviction to a fine of three hundred dollars or to imprisonment for six months.'

Section 43(4) of the Traffic Act (Ch. 131) states: 

'Where a person convicted of an offence under subsection (2) has been previously convicted of an offence under subsection (1), he shall be treated for the purposes of the said subsection (2) as having been previously convicted under that subsection.' 

The law relating to 'Sentencing' in respect of this offence is examined commencing on page 918, including the 'Disqualification Of Drivers' Licenses'.

[48.13] Related Offences 

The following offence is related to the offence of 'Driving Whilst Unfit To Drive': 

·                     'Cycling When Under The Influence Of Drink Or Drugs', section 51 of the Traffic Act (Ch. 131).