NSW Police v Carrall

Local Court

New South Wales

Medium Neutral Citation:	NSW Police v Carrall [2016] NSWLC 4
Hearing dates:	21, 28 January 2016
Decision date:	01 February 2016
Jurisdiction:	Criminal
Before:	Heilpern LCM
Decision:	I find the defendant not guilty in respect to the June offence, and will proceed to sentence on the May offence on a date to be fixed.
Catchwords:	CRIMINAL PROCEEDINGS – drive with illicit drug present in blood – positive test to cannabis – defence of honest and reasonable mistake of fact – availability
Legislation Cited:	Road Transport Act 2013, s 111
Cases Cited:	Appeal of Francesco Mendilicchiu [2008] NSWDC 182 Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No 3 of 2002) [2004] NSWCCA 303 Bergin v Stack [1953] HCA 53 CTM v The Queen [2008] HCA 25 DPP v Bone [2005] NSWSC 1239 Giachin v Sandon [2013] ACTSC 77 Ostrowski v Palmer (2004) 218 CLR 493 Proudman v Dayman [1941] HCA 28 R v Duong [2015] QCA 170 RTA v O’Reilly & Ors [2009] NSWSC 134
Category:	Principal judgment
Parties:	Joseph Ross Carrall (defendant) NSW Police
Representation:	Solicitors: Mr Costin-Neilson on 21/1/2016, Mr Huxtable on 28/1/2016 (for the prosecution) Mr Bolt (for the defendant)
File Number(s):	2015/237138

Judgment

Reasons for decision

1. The defendant has been apprehended for the offence of driving with an illicit drug present in his blood (s 111 Road Transport Act 2013) on two relevant occasions - 26 May 2015 and 23 June 2015. He pleads guilty to the May offence. He pleads not guilty to the June offence on the basis of an honest and reasonable mistake of fact.

2. This judgment is prepared without the benefit of a transcript.

3. There was no expert evidence for either the prosecution or defence.

4. The legislative provision is simple:

111(1) Presence of prescribed illicit drug in person’s oral fluid, blood or urineA person must not, while there is present in the person’s oral fluid, blood or urine any prescribed illicit drug:

(a)  drive a motor vehicle….

5. The elements of the offence are not in issue – the defendant was driving a motor vehicle on a public street whilst there was present a detectable level of THC in his oral fluid.

6. It is important to note that there need not be any affect proven – the mere presence of a minute or residual presence of THC is sufficient. There is a separate offence of driving under the influence of a drug for which affect must be proven.

Prosecution case

7. The apprehending officer for the May and June offences was Senior Constable Chayne Foster. His evidence-in-chief relating to the June offence was by way of statement which relied on the audio recording from the highway patrol vehicle. There was some other conversation not recorded.

8. First the defendant was breath tested for alcohol, and…