R v Delbridge

[2019] NSWDC 450

District Court

New South Wales

Medium Neutral Citation:	R v Delbridge [2019] NSWDC 450
Hearing dates:	27 July 2019
Date of orders:	08 August 2019
Decision date:	08 August 2019
Jurisdiction:	Criminal
Before:	Priestley SC DCJ
Decision:	See at [65]
Catchwords:	CONVICTION APPEAL – drive motor vehicle with illicit drug present in blood – passive inhalation EVIDENCE – expert evidence EVIDENCE – Browne v Dunn
Legislation Cited:	Crimes (Appeal and Review) Act 2001 (NSW) Road Transport Act 2013 (NSW)
Cases Cited:	CTM v The Queen (2008) 236 CLR 440 Ibrahim v R [2014] NSWCCA 160 Makita v Sprowles (2001) 52 NSWLR 705 Proudman v Dayman (1941) 67 CLR 536
Category:	Principal judgment
Parties:	Regina Marie Ann Delbridge
Representation:	Solicitors: Mr Gerrish for the DPP Ms Triggs for the appellant
File Number(s):	2016/293704
Publication restriction:	Nil

JUDGMENT

1. HIS HONOUR: This is an all grounds appeal from a conviction by the Local Court on 14 November 2018. The conviction was in respect of a charge under s 111(1)(a) of the Road Transport Act, alleging that the appellant, Marie Ann Delbridge, drove a motor vehicle with an illicit drug present in her blood, that drug being Delta-9-Tetrahydrocannabinol, or more commonly cannabis.

2. Pursuant to s 11 of the Crimes (Appeal and Review) Act, the appeal is of right. Neither party sought to lead further evidence. The appeal is to be by way of rehearing on the evidence given in the original proceedings. The nature of the appeal is well established and it requires me to determine the matter afresh and it does not require me to find any error on the part of the magistrate.

3. In the Local Court, the magistrate found that the appellant had an honest but not reasonable belief (or “opinion”, as stated by the magistrate) that she would not test positive. The parties have conducted the matter focussing on that issue. That issue is whether Ms Delbridge had an honest and reasonable belief that she did not have an illicit drug present in her blood, in particular cannabis.

4. As I will discuss below, that in fact is to misstate the test, but for present purposes it serves to identify in broad terms the issue. Whilst I need to make an independent assessment of the evidence, I also need to bear in mind the limitation of not having seen the evidence given viva voce.

5. In this case, an essential feature of the evidence was the competing experts. Both experts were cross-examined. Being experts, the benefit of observing them in the witness box is perhaps of lesser significance, but it nevertheless can be a factor.

6. The evidence before me was contained in the Crown conviction appeal cover bundle, which became exhibit A. That bundle included a report from Professor Weatherby, which was evidence relied upon and tendered by the appellant in the Court below.

7. The competing expert evidence relied upon by the Crown was from Dr Perl. I was provided with transcripts of the Local Court proceedings. I should note…