Hall v Pendelton - [2015] ACTSC 205

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Hall v Pendelton
Citation:	[2015] ACTSC 205
Hearing Date(s):	17 July 2015
DecisionDate:	17 July 2015
Before:	Burns J
Decision:	The decision of the Magistrate is set aside. The matter is remitted to the Magistrates Court so that evidence of the disputed fact can be adduced.
Category:	Principal Judgment
Catchwords:	CRIMINAL LAW – Appeals From and Control Over Magistrates – crown appeal against non-conviction order – contested evidence from the bar table of innocent ingestion of prohibited substance – whether the magistrate should have directed that the law of evidence applied pursuant to s 4 Evidence Act 2011 (ACT) – whether the magistrate was obliged to require the respondent to prove the asserted facts where they were disputed by the prosecution by adducing appropriate evidence. CRIMINAL LAW – Particular Offences – drug offences – driving with a prescribed drug in oral fluid or blood – repeat offender.
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) s 17 Road Transport (Alcohol and Drugs) Act 1977 (ACT) s 20 Evidence Act 2011 (ACT) s 4
Cases Cited:	Talukder v Dunbar (2009) 194 A Crim R 545
Parties:	Jason David Hall (Appellant) Timothy Neil Pendelton (Respondent)
Representation:	Counsel Mr J White SC (Appellant) Ms R Bird (Respondent)
Solicitors ACT Director of Public Prosecutions (Appellant) Rachel Bird & Co (Respondent)
File Number(s):	SCA 22 of 2015
Decision under appeal:	Court/Tribunal: ACT Magistrates Court Before: Magistrate Boss Date of Decision: 2 March 2015 Case Title: Hall v Pendelton Court File Number(s): CC No 8635 of 2014

BURNS J:

At about 2.25 pm on 7 August 2014, the respondent was driving a motor vehicle and was stopped by police conducting random breath testing. He was required to undergo a drug screening test, which, when analysed, confirmed the presence of prescribed drug Delta-9-tetrahydrocannabinol (THC) in his oral fluid. Police observed the respondent to have watery, bloodshot eyes with small pupils, his speech was slow, his ability to understand was fair and his demeanour fluctuated between being indifferent and abusive when questioned.

The respondent was charged by way of summons with an offence contrary to s 20(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT), alleging that, as a repeat offender, on 7 August 2014, having been the driver of a motor vehicle on a road, he had, within the relevant period, a prescribed drug in his oral fluid.

On 2 March 2015, the respondent entered a plea of guilty to this charge in the Magistrates Court. The respondent did not give evidence, but submitted to the Magistrate that he did not use drugs and that the presence of THC in his oral fluids may have resulted from his consumption of a “protein power” which had “stuff in it” and which “obviously tripped over this test”. The respondent produced a packet of the “protein powder” for the Magistrate to inspect, telling her that he had purchased it at the Mitchell Produce Markets. The Magistrate said she would…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hall v Pendelton

Details

AGLC: Hall v Pendelton [2015] ACTSC 205
Case: [2015] ACTSC 205
Decision Date: 17 July 2015

CaseChat Overview and Summary

The defendant, Pendelton, appealed against the decision of the magistrate not to convict him of driving with a prohibited drug in his oral fluid or blood. Pendelton argued that the magistrate should have directed that the law of evidence applied pursuant to s 4 of the Evidence Act 2011 (ACT) and should have required him to prove the asserted facts of innocent ingestion by adducing appropriate evidence. The court had to determine whether the magistrate should have directed that the law of evidence applied and whether the magistrate was obliged to require the respondent to prove the asserted facts where they were disputed by the prosecution.

The court found that the magistrate did not err in concluding that the evidence was admissible without the need for a direction under s 4 of the Evidence Act 2011 (ACT). However, the court found that the magistrate should have required Pendelton to prove the asserted facts of innocent ingestion by adducing appropriate evidence. The court held that the magistrate was obliged to require the respondent to prove the asserted facts where they were disputed by the prosecution.

The court set aside the decision of the magistrate and remitted the matter to the Magistrates Court so that evidence of the disputed fact can be adduced. The court held that the evidence of the disputed fact should be adduced before the magistrate makes a fresh determination as to whether or not the respondent is guilty of the offence. The court held that the evidence of the disputed fact should be adduced by way of cross-examination of the respondent.

Orders

Orders of the court

The decision of the Magistrate is set aside.

The matter is remitted to the Magistrates Court so that evidence of the disputed fact can be adduced.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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