R v Lineham

[2016] NSWDC 247

District Court

New South Wales

Medium Neutral Citation:	R v Lineham [2016] NSWDC 247
Hearing dates:	26 August 2016
Decision date:	14 October 2016
Jurisdiction:	Criminal
Before:	Hatzistergos DCJ
Decision:	The offender was in possession of 11.5 grams of a prohibited drug, namely cocaine
Catchwords:	DRUG OFFENCES – supply prohibited drug – representative drug testing – whether untested substance distinguishable from tested sample
Legislation Cited:	Drug Misuse and Trafficking Act 1985 (NSW) ss 25(1), 43 Drug Misuse and Trafficking Regulation 2011 (NSW)
Cases Cited:	R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 Duffy v R; Mangan v R [2009] NSWCCA 304 R v Lee Martin Cotterill (Unreported, NSW Court of Criminal Appeal, 7 June 1993) R v Pilley (Unreported, NSW Court of Criminal Appeal, 2 May 1991) R v O’Neill [1979] 2 NSWLR 582
Category:	Procedural and other rulings
Parties:	Regina (Crown) Mr Stuart Lineham (Offender)
Representation:	Ms M Fleeton (Crown) Mr P English (Offender)
File Number(s):	2014/149481
Publication restriction:	Nil

Judgment

1. On 11 August 2016, the offender Stuart Lineham was arraigned on one charge of supply a prohibited drug, namely cocaine, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) [1] and one charge of supply a prohibited drug, namely 3,4-methylenedioxymethamphetamine (otherwise known as ecstasy) contrary to s 25(1) of the 1985 Act.

   1. Hereinafter referred to as the “1985 Act”

2. The offender entered pleas of guilty to both offences and sentencing was deferred to the conclusion of the judge alone trial in relation two other offences with which the offender was charged. That trial concluded on 25 August 2016. Later that day, a sentencing hearing commenced. However as there was an issue in respect to a matter relating to which a plea of guilty had been entered, evidence was called to determine the disputed question of fact. [2]

   2. R v O’Neill [1979] 2 NSWLR 582, 588 – 589 (Moffitt ACJ); Duffy v R; Mangan v R [2009] NSWCCA 304 at [21] (Fullerton J with Allsop P and McCallum J agreeing)

3. The dispute concerned the quantity of prohibited drug the subject of the cocaine charge. The Crown relied on a certificate prepared in accordance with the provisions of s 43 of the 1985 Act and Part 3 of the Drug Misuse and Trafficking Regulation 2011 (NSW), tendered as Exhibit T. The certificate was dated 2 July 2014 and prepared by Mr Christopher John Ewers, an analyst employed by the NSW Government, with qualifications as a forensic scientist. Counsel for the offender raised no issue challenging the chain of custody and the materials tested being those found in the vehicle the subject of a search by police on 17 May 2014. Nor was any challenge advanced as to Mr Ewers’ qualifications.

4. The only issue raised was the extent to which Mr Ewers tested the material in question and therefore, the quantity of prohibited drugs that had been established by the evidence.

5. At the trial the evidence was that material found in…