NT Police: Charges against Daniel Wade Kelly dropped after officers found to be noncompliant with Traffic Act

A trio of Northern Territory Police officers failed to comply with a piece of legislation in dealing with an alleged drink and drug driver, a judge has found, resulting in the charges falling over. Read how.

Cossack man Daniel Wade Kelly, depicted in 2012. Picture: Facebook

A trio of Northern Territory Police officers have been found to have breached their duty to facilitate a drink and drug driving suspect’s request for a blood test, resulting in two toxicology certificates being struck out.

On December 18 last year, Acting Judge Ray Murphy dismissed charges of low range drink driving and drug driving against Cossack defendant Daniel Wade Kelly, 48, after ruling that the certificates tendered by police were inadmissable.

Kelly asserted that police failed to make reasonable attempts to facilitate the blood test he requested in the wake of positive readings indicated by the breath and saliva tests.

According to Acting Judge Murphy, Kelly was arrested and charged with low range drink driving, drug driving, criminal damage and drive without due care after he twice drove a vehicle into a person’s fence, causing $6596.70 worth of damage, on September 20, 2022.

After initial tests suggested he had a blood-alcohol content of 0.053 per cent and cannabis, methamphetamine and benzodiazepine in his system, Kelly, who was detained in the Katherine Watch House, requested a subsequent blood test, as is his right under s29AAL of the Traffic Act 1987.

That section holds that a person who has been detained in custody after undergoing a breath analysis has a right to communicate with a medical practitioner to have themselves examined and a sample of blood taken if they request it.

If such a request is made, “a police officer must make arrangements that are reasonable in the circumstances for the person to communicate with a medical practitioner”.

A trio of Katherine police officers were found by Acting Judge Ray Murphy to have contravened s29AAL of the Traffic Act 1987 (NT). Picture: Pema Tamang Pakhrin

Acting Judge Murphy found that reasonable attempts were not made by a trio of officers, Constable Brooklyn Engles, Acting Sergeant Colin O’Keefe and Acting Sergeant Robert Angove, who was the watch house keeper on the night in question.

After Kelly asked for the blood test, A/Sgt Angove, gave the defendant a phone to call a doctor.

However, due to the time of night – it was past 11.30pm by this stage – the only possibility of finding a doctor was at the Katherine District Hospital’s emergency department.

Kelly, who struggled to find the number to dial, and had multiple requests for guidance from A/Sgt Angove go unanswered, was unable to reach the ED, Acting Judge Murphy said.

A/Sgt Angove then told him to try again in the morning, a proposal that baffled Kelly.

“What time is the morning? What are you talking about here? I’ll be zero in the morning. That doesn’t make sense. That doesn’t make sense then does it?” the defendant said.

Kelly ultimately spent seven hours remanded in police custody.

Acting Judge Murphy found the officers contravened s29AAL of the act by failing to make reasonable efforts to facilitate Kelly’s request.

In particular, he found that A/Sgt Angove should have found out the direct line for the hospital’s ED to provide to the defendant, and confirmed with Kelly what number he was calling.

On the basis that the act was breached, Acting Judge Murphy ruled that he was “duty bound” to exclude the toxicology certificates, as to do otherwise would “give... encouragement” to police noncompliance, and the two charges were dismissed.

Kelly pleaded guilty to the charges of criminal damage and drive without due care.

He was fined $200, had his licence cancelled, and ordered to pay compensation to the fence’s owner.