Mason v Director of Public Prosecutions (NSW) [2022] NSWSC 1247

Supreme Court New South Wales

Medium Neutral Citation: Mason v Director of Public Prosecutions (NSW) [2022] NSWSC 1247 Hearing dates: 11 February 2022 Decision date: 16 September 2022 Jurisdiction: Common Law Before: Ierace J Decision: 1) Leave to appeal granted; 2) Appeal allowed; 3) Set aside the judgment of the Local Court dated 11 June 2021 and in lieu enter a verdict of acquittal; 4) The defendant to pay the plaintiff's costs of the appeal. Catchwords: CRIME – Appeal and review – appeal from Local Court to Supreme Court under s 52 or alternatively s 53 Crimes (Appeal and Review) Act 2001 (NSW) – where plaintiff came off his motor scooter at an intersection – where plaintiff convicted and sentenced for one count of driving with a high range prescribed concentration of alcohol in his blood - where blood sample taken and certificate produced indicating blood alcohol concentration of 0.297g per 100ml of blood – where blood sample taken more than two hours following the incident – whether Magistrate erred by admitting the blood analyst certificate into evidence in breach of cl 31 of the Road Transport Act 2013 (NSW) and contrary to R v Olejarnik (1994) 22 NSWLR 567 – where prosecution case was circumstantial and no expert evidence was tendered – whether judicial notice could be taken of the fact that blood alcohol concentration decreases with time where no further alcohol is consumed Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), ss 52, 53, 70 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 8, 44, Pt 7 Road Transport Act 2013 (NSW), ss 106, 107, 108, 110, 114, Sch 1, cll 31, 36, 37 Traffic Act 1909 (NSW), ss 4E, 12 Cases Cited: Bunning v Cross (1978) 141 CLR 54; [1978] HCA 22 Evans v Benson (1986) 46 SASR 317 Golding v Liddy (1983) 33 SASR 116 R v Olejarnik (1994) 33 NSWLR 567 Category: Principal judgment Parties: Dean Andrew Mason (Plaintiff) Director of Public Prosecutions (NSW) (Defendant) Representation: Counsel: S Ryan (Plaintiff) E Jones (Defendant)