Police v Keith Stewart Mouat [2014] NSWLC 27

Local Court New South Wales

Medium Neutral Citation: Police v Keith Stewart Mouat [2014] NSWLC 27 Decision date: 22 December 2014 Jurisdiction: Criminal Before: Heilpern LCM Decision: Two counts of the offence of driving under the influence of drugs found not proven beyond reasonable doubt and both charges dismissed. Catchwords: CRIMINAL LAW - conflicting expert evidence WORDS AND PHRASES - "under the influence" - Road Transport Act 2013 (NSW), s 112(2) Legislation Cited: Road Transport Act 2013 (NSW), s 112(2) Cases Cited: Mair v Railway Passengers Assurance Co (1877) 37 LT 356 Sagacious Legal Pty Ltd v Westfarmers General Insurance (No 4) (2010) FCA Vakauta v Kelly (1989) 167 CLR 568 Category: Principal judgment Parties: Police (Prosecution) Keith Stewart Mouat (Defence) Representation: Mr Checkley (Solicitor for the Prosecution) Mr Van Dugteren (Solicitor for the Defence) File Number(s): 2014/00026551 Publication restriction: Nil

JUDGMENT 1. Mr Mouat was involved in two collisions whilst riding his motorcycle. He was charged with two counts of driving under the influence of drugs. The only issue in this case is whether he was driving under the influence of drugs. The prosecution bear the burden of satisfying the court that he was "under the influence" at the time.

What does "under the influence" mean? 1. This term is not defined by the legislation. The courts have long recognised that there is a line of drug or alcohol use beyond which a person may be proven to be under the influence. In the old case of Mair v Railway Passengers Assurance Co (1877) 37 LT 356, Lord Coleridge CJ mused on the difficulty of considering the point where alcohol or drugs becomes an impediment in the exercising of a person's mental faculties and where the precise point is: "…enough to say that there is a point, and it seems to me these words would be satisfied when the influence of intoxicating liquor is found in point of fact to be such as to disturb the quiet and equable exercise of the intellectual faculties of the man who has taken the liquor." 1. In Sagacious Legal Pty Ltd v Westfarmers General Insurance (No 4) (2010) FCA, Rares J stated: "The determination is one of fact and degree based on the evidence, including, particularly, the observations of those who saw the person at or close to the critical time." 1. The key point is that in this offence the quantity of drugs or alcohol consumed is not in issue – it is the extent to which the drug or alcohol has negatively influenced the defendant's ability.