[1969-1982] NLR (D) 18

IN THE SUPREME COURT OF NAURU

Criminal Appeal No. 4 of 1974

Gobure Demaunga

v 

The Republic

9th May, 1974.

Motor Traffic Act 1937-1973 - section 21(1) - driving whilst under the influence of intoxicating liquor - prosecution need not prove quantity of liquor consumed.

Appeal against conviction for driving under the influence of intoxicating liquor. The appellant was stopped by a police officer while driving a motor vehicle. He admitted having consumed two cans of beer. It was not proved that he had consumed more but evidence of his general behaviour and of his speech being slurred was adduced.

Held: In order to establish that a person has committed an offence against section 21(1) it is not necessary to prove row much liquor he has consumed.

G.R. Clark for the appellant
P.H. MacSporran for the respondent

Thompson CJ:

The appellant was convicted by the District Court of driving a motor vehicle whilst under the influence of intoxicating liquor contrary to section 21(1) of the Motor Traffic Act 1937-1973. He was sentenced to pay a fine of $50 and his driving licence was suspended for nine (9) months. This appeal is against the conviction only. The appellant admits that he drove his motor vehicle along the road to his home immediately before his arrest but denies that he was under the influence of intoxicating liquor.

The prosecution case in the District Court was that he was drinking in a house where the first prosecution witness, P.C. Silk, was present and that, when he left that house, - P.C. Silk formed the opinion that he was intoxicated and unfit to drive his car, but that nevertheless he did so. It is not disputed that P.C. Silk followed the appellant, arrested him at his home and took him to the police station. The prosecution adduced evidence of the Station Sergeant, Sgt. Kapua, that the appellant was drunk when brought to the police station. The appellant admitted in evidence that he had consumed 2 cans of beer in the four hours before he left the house where he had consumed them.

The learned magistrate in a careful and well-reasoned judgment reviewed the evidence fully. He decided that he should treat with caution the evidence of P.C. Silk because the constable had himself been drinking before the incidents of which he gave evidence. However, he found that P.C. Silk's evidence of the appellant's intoxication was amply corroborated by the evidence of Sgt. Kapua. In dealing with one of the submissions made by the defence he commented -

"The submission made by the defence that the prosecution has not produced evidence that the Accused drank more than 2 cans of beer is untenable for the reason that there is no duty cast on the prosecution to establish the quantity of liquor drunk by the Accused. In my view, it is immaterial whether the Accused consumed only 2 cans of beer, or 10."

Mr. Clark, who represents the appellant in this appeal, has submitted that this was a misdirection of himself by the learned magistrate. That contention is not correct. What must be proved in a case of this nature is that the person concerned was intoxicated. The extent of his intoxication is most relevant. Obviously, if the prosecution can prove that a certain quantity of intoxicating liquor was consumed and that quantity is such that the person concerned must have been considerably intoxicated, that is strong evidence of the degree of intoxication. But the degree of intoxication can be established by other evidence, including the person's behaviour and medical tests. What the learned magistrate clearly meant was simply that proof of the precise quantity of liquor consumed was not essential to the establishment of the extent of the appellant's intoxication, or the establishment of the offence charged. 

In this appeal the appellant has, with leave of the Court, adduced evidence of the medical condition of his eyes. The purpose of this evidence was to show that one of the grounds given by Sgt. Kapua for knowing that the appellant was drunk when he was brought to the police station, namely that his eyes were bloodshot, was not a valid ground. Sgt. Kapua's evidence on this matter was recorded as follows:-

"I also noted that the Accused had bloodshot eyes which showed that he was drunk".

Dr. Bott has given evidence that the appellant is suffering from a condition of the eyes which makes them always appear more red than normal eyes. He also gave evidence to which, in the absence of rebutting evidence, this Court must give some weight - even though it appears to be at variance with statements contained in standard text-books on forensic medicine and police procedures elsewhere in the world - that there is never any direct causal connection between the excessive consumption of alcohol and redness f the eyes.

Doubt is cast, therefore, upon Sgt. Kapua's evidence as to the appellant's state of intoxication insofar as it is based on his observation of the appellant's bloodshot eyes. However, he based his opinion also on the behaviour of the appellant, his speech and the smell of liquor. Mr. Clark has submitted that these were "peripheral ingredients" in the causation process of Sat. Kapua forming his opinion. He supports this submission by the fact that Sgt. Kapua stated "the Accused had bloodshot eyes which showed he was drunk". That ignores the fact that the witness said first: "While I was talking to him I noticed that he was drunk". It was after saying that that he went on to state first that he "also" could smell alcohol and then again that he "also" noticed that the appellant had blood-shot eyes. It is clear that he had ample grounds, apart from the appellant's blood-shot eyes for deciding that the appellant was drunk. He is an experienced police officer and offences of this nature are all too familiar to police officers here. The fact that he could not recollect exactly how the appellant's speech was slurred does not detract from the cogency of his evidence. He has been shown to have taken into account a matter which in the appellant's case at least, should apparently not have been taken into account as evidence-of drunkenness; but it is clear that there remained ample other grounds on which he must have come to that conclusion even if he had known of the chronic eye condition from which the appellant suffered.

The appeal is dismissed.