Police v Murray

[2011] NSWLC 1

Local Court

New South Wales

Medium Neutral Citation:

Police v Murray [2011] NSWLC 1

Hearing dates:

22 February 2011

Decision date:

24 February 2011

Before:

Tsavdaridis Magistrate

Decision:

1. Leave is granted to conduct a voir dire hearing.

2. The improperly obtained evidence is inadmissible.

Catchwords:

Traffic law - Sobriety assessment - Drive while under the influence of drugs - Observations of police officer - Arrest

Legislation Cited:

Road Transport (Safety and Traffic Management) Act 1999 (NSW)
Evidence Act 1995 (NSW)

Cases Cited:

Baulman v The Queen (2007) 6 DCLR (NSW) 1
R v Hawkins (NSWCCA, 17 December 1992, unreported)
Fleming v R [2009] NSWCCA 233
Robinson v Woolworths Ltd (2005) 64 NSWLR 612
R v Coombe (NSWCCA 24 April 1997)

Texts Cited:

NSW Police Handbook - Breath Tests and Analyses (February 2005 edition)

Category:

Procedural and other rulings

Parties:

NSW Police Force (Prosecuting Authority)
Scott Alan Murray (Accused)

File Number(s):

H 42132903 2010/307714

Reasons for Decision

1. The Accused comes before the Court charged with driving under the influence of drugs, contrary to s.12(1)(a) of the Road Transport (Safety and Traffic Management) Act 1999 (NSW). A formal plea of not guilty was entered on 20 October 2010 and the matter was set down for hearing on 22 February 2011.

1. Prior to the commencement of the hearing, Counsel for the Accused sought leave to have a voir dire hearing in order to determine the admissibility of certain evidence. It is generally accepted that an accused is not entitled to a voir dire hearing as a matter of right and a trial judge (or, in the case of summary matters in the Local Court, a magistrate) should be satisfied that there is an issue requiring such a proceeding and the relevant bases upon which the hearing is to be held should be identified by counsel requesting the voir dire: R v Hawkins (NSWCCA, 17 December 1992, unreport e d).

1. S ections 189(1) of the Evidence Act 1995 (NSW) provides as follows: -

"189 The voir dire

(1) If the determination of a question whether:

(a) evidence should be admitted (whether in the exercise of a discretion or not), or

(b) evidence can be used against a person, or

(c) a witness is competent or compellable,

depends on the court finding that a particular fact exists, the question whether that fact exists is, for the purposes of this section, a preliminary question."

1. Before turning to the matters on which I was addressed by the parties, it is beneficial to set out the circumstances leading to the Accused's arrest and subsequent charge.

1. Factually, it is alleged that at or about 3.40 a.m. on Tuesday 23 March 2010, the Accused's vehicle was stopped by police and while the police officer was speaking with the Accused, he observed the Accused to be very agitated, nervous, very talkative, anxious and continually moving his jaw in a chewing motion. It is alleged that his eyes were glazed and, when removed from his vehicle, was unsteady on his feet…