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District Court 31 January 2019

R v Nash

[2019] NSWDC 64

Public order & justice offences

Citation: R v Nash [2019] NSWDC 64
Court: District Court of New South Wales
Date: 31 January 2019
Judge(s): Sutherland SC DCJ

Background

In October 2011, the accused drove from a golf club on the Central Coast and was followed by a highway patrol officer intending to conduct a random breath test. The accused's vehicle entered the driveway of his own home before the test could be administered. Under established NSW law, commonly described as the "home safe rule," a random breath test cannot be administered once a person has reached the curtilage of their home.

A physical altercation occurred between the officer and the accused outside the home. The accused was subsequently charged with two offences: resisting arrest and driving under the influence (DUI) contrary to the Road Transport (Safety and Traffic Management) Act 1999.

Both charges were heard in the Local Court at Wyong in May 2012. The magistrate dismissed both charges. In doing so, the magistrate expressly noted that a DUI charge could not be used as a default position simply because an RBT could not be conducted, and she was not satisfied beyond reasonable doubt that the accused had been driving under the influence. The Crown subsequently sought to prosecute the accused for perjury, on the basis that his evidence at the Local Court hearing about the quantity and type of beer he had consumed was false. The accused applied to stay that perjury indictment as an abuse of process.

  • Whether the proposed perjury prosecution constituted an abuse of process, specifically by impermissibly challenging or impugning the earlier acquittal on the DUI charge.
  • Whether the double jeopardy principle, or the related doctrine protecting prior acquittals from direct attack, applied to prevent the Crown from pursuing evidence that the accused's testimony about his alcohol consumption was false.
  • Whether the distinction between evidence going to an "ultimate issue" at the prior trial and evidence that is merely collateral (albeit corroborative) is sufficient to determine whether a subsequent perjury charge directly impugns the acquittal.

Decision

His Honour examined the line of authority governing the relationship between prior acquittals and subsequent prosecutions, including the High Court decisions in Rogers v R and R v Carroll, as well as the English authorities in R v Humphrys and Connolly v DPP. The central principle derived from these cases is that a subsequent prosecution becomes an abuse of process where it directly impugns or controverts a prior acquittal. However, a perjury charge that relates to collateral evidence, which if proved false would not necessarily negative the acquittal itself, does not cross that line.

His Honour noted that the magistrate's reasons for dismissing the DUI charge were not entirely clear. She appeared to have rested her decision partly on the absence of evidence of erratic driving, partly on doubts about the officer's observations (which had not appeared in his original statement), and partly on what appeared to be a view that a DUI charge could not substitute for a failed RBT process. The precise legal basis was uncertain.

Turning to the elements of the DUI offence, his Honour observed that a conviction for driving under the influence is not determined by the mere quantity of alcohol consumed. The question is whether the driver was actually under the influence, and prosecutions have succeeded in NSW even where drivers were below the prescribed concentration limit. On that basis, whether the accused consumed two, three, or four beers, or whether the beer was light or full-strength, was a collateral matter rather than the ultimate issue decided by the magistrate.

Because the Crown's proposed perjury case targeted the accused's evidence about the number and type of drinks consumed, and that evidence did not go to the ultimate issue resolved by the acquittal, the perjury prosecution would not directly impugn the prior verdict. His Honour declined to stay the indictment.

Orders Made

No orders were made in this decision.

Key Takeaways

  • A subsequent perjury prosecution does not constitute an abuse of process merely because it concerns evidence given at a trial that resulted in an acquittal. The key question is whether proving the perjury would directly impugn or necessarily negative the prior acquittal.
  • Where a defendant's evidence at trial was collateral or corroborative, rather than going to the ultimate issue determined by the verdict, a later perjury charge targeting that evidence does not cross the threshold into abuse of process.
  • A conviction for DUI under NSW law turns on whether the driver was under the influence, not on the precise quantity of alcohol consumed. This means evidence about the number of drinks is a collateral, not an ultimate, issue in a DUI prosecution.
  • The District Court applied the High Court's analysis in R v Carroll, reading the majority as focused on situations where the prior acquittal is directly impugned, rather than adopting a broader reading that would protect any evidence that merely tended to undermine the earlier verdict.
  • Under the "home safe rule" confirmed in R v Vatmer and DPP v Skewes, a random breath test cannot lawfully be administered once a person has reached the curtilage of their own home, and the court noted this remains the law notwithstanding any policy discomfort with that outcome.

Legislation and Cases Referenced

Legislation
- Road Transport (Safety and Traffic Management) Act 1999 (NSW), s 12
- Traffic Act (NSW)

Cases
- R v Carroll (referred to throughout, not separately listed in metadata)
- Rogers v R [1994] HCA 42; (1994) 181 CLR 251
- R v Humphrys [1977] AC 1
- Connolly v The Director of Public Prosecutions [1964] AC 1254
- R v Vatmer [1992] 29 NSWLR 311
- DPP v Skewes [2002] NSWSC 1008
- Garrett v R [1977] HCA 67; (1977) 139 CLR 437
- Sambasivam v Public Prosecutor Federation of Malaya [1950] AC 458
- R v Whitby (1957) 74 WN (NSW) 441
- Mraz v The Queen (No 2) [1956] HCA 54; (1956) 96 CLR 62
- R v Wilkes [1948] HCA 22; (1948) 77 CLR 511
- R v Storey [1978] HCA; (1978) 140 CLR 364
- R v McDermott [1899] 24 VLR
- Reg v Ollis [1900] 2 QB 758
- Weaver v Law Society of New South Wales (1979) 142 CLR 201
- Chitwood v United States 178 F 442 (1910)
- Wayne Andrew Reid v R (unreported, 28 April 2017)