NSW Police v Snow - [2017] NSWLC 2

Local Court

New South Wales

Medium Neutral Citation: NSW Police v Snow [2017] NSWLC 2
Hearing dates: 3, 4 November 2016; 13 January 2017
Decision date: 09 February 2017
Jurisdiction: Criminal
Before: Heilpern LCM
Decision:
The defendant is convicted of each offence

Catchwords: CRIMINAL LAW – driving with an illicit drug present in blood – availability of defence – honest and reasonable mistake of fact
EVIDENCE – expert evidence – contradictory evidence of two experts
Legislation Cited: Road Transport Act 2013, s 111
Cases Cited: Appeal of Francesco Mendilicchiu [2008] NSWDC 182
Chamberlain v The Queen [No 2] [1984] HCA 7
CTM v The Queen [2008] HCA 25
DPP v Bone [2005] NSWSC 1239
NSW Police v Carrall [2016] NSWLC 4
Velevski v The Queen [2002] HCA 4
Texts Cited: Judicial Commission of NSW, Criminal Trials Bench Book
Category: Principal judgment
Parties: NSW Police (prosecution)
Lionel John Snow (defendant)
Representation:
Sgt B Gradisnik (for the prosecution)
Solicitors:
Mr S Bolt (for the defendant)

File Number(s): 2016/34957

Judgment

Reasons for Decision

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 – 22 October 2015 and 30 October 2015. He pleads not guilty to both offences on the basis of an honest and reasonable mistake of fact.
The legislative provision is simple:

111 Presence of certain drugs (other than alcohol) in oral fluid, blood or urine
(1) Presence of prescribed illicit drug in person’s oral fluid, blood or urine
A 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…..

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. There is no controversy with these elements in relation to both the charges.
It is common ground that the detection level is 5 ng/ml, the cut-off for prosecution is 10, the defendant was tested at 233 ng/ml on the first occasion, and 26 on the second occasion. A nanogram is one thousand-millionth of a gram.
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.

Does the defence apply to s 111 of the Road Transport Act?

I have previously found that the defence of honest and reasonable fact applies to s 111 of the Road Transport Act: NSW v Carrall [2016] NSWLC 4. I note that decision has not been appealed, and I adopt the same reasoning here. So much was accepted by the prosecution in this case.

Burden and onus of proof

There is an evidential burden to raise the defence. This has been…

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.

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Details

Case: [2017] NSWLC 2
Decision Date: 09 February 2017

CaseChat Overview and Summary

In the matter of New South Wales Police versus Snow, the defendant was convicted of driving while the presence of an illicit drug was detected in their blood. The issue before the court was whether the defendant could avail themselves of the defence of honest and reasonable mistake of fact regarding the presence of the illicit drug in their bloodstream. The court had to determine if the defence was available and whether the expert evidence presented by both parties was sufficient to make a determination.

The legal issues for the court to decide were whether the defence of honest and reasonable mistake of fact could apply in cases of driving with an illicit drug present in the blood, and if so, whether the defendant's evidence was sufficient to establish this defence. The court had to weigh the contradictory expert evidence presented by both parties to determine the reliability and validity of each expert's opinion.

The court found that the defence of honest and reasonable mistake of fact could be available in cases of driving with an illicit drug present in the blood. However, the court was unable to accept the defendant's evidence as it was not satisfied that the defendant had acted honestly and reasonably in their belief that the illicit drug was not present in their bloodstream. The court found that the contradictory evidence of the two experts did not provide a clear direction as to which expert's opinion was more reliable. Ultimately, the court found the defendant guilty of each offence.

The court ordered that the defendant be convicted of each offence as charged. The court noted that the presence of an illicit drug in the bloodstream while driving is a serious matter and that the defence of honest and reasonable mistake of fact should not be easily available. The court emphasised the importance of drivers being aware of the substances in their bloodstream and taking appropriate measures to ensure that they are not driving under the influence of illicit drugs.

Orders

Orders of the court

The defendant is convicted of each offence

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	NSW Police v Snow [2017] NSWLC 2
Hearing dates:	3, 4 November 2016; 13 January 2017
Decision date:	09 February 2017
Jurisdiction:	Criminal
Before:	Heilpern LCM
Decision:	The defendant is convicted of each offence
Catchwords:	CRIMINAL LAW – driving with an illicit drug present in blood – availability of defence – honest and reasonable mistake of fact EVIDENCE – expert evidence – contradictory evidence of two experts
Legislation Cited:	Road Transport Act 2013, s 111
Cases Cited:	Appeal of Francesco Mendilicchiu [2008] NSWDC 182 Chamberlain v The Queen [No 2] [1984] HCA 7 CTM v The Queen [2008] HCA 25 DPP v Bone [2005] NSWSC 1239 NSW Police v Carrall [2016] NSWLC 4 Velevski v The Queen [2002] HCA 4
Texts Cited:	Judicial Commission of NSW, Criminal Trials Bench Book
Category:	Principal judgment
Parties:	NSW Police (prosecution) Lionel John Snow (defendant)
Representation:	Sgt B Gradisnik (for the prosecution) Solicitors: Mr S Bolt (for the defendant)
File Number(s):	2016/34957