Appeal of Francesco Mendolicchiu [2008] NSWDC 182

New South Wales District Court

CITATION: Appeal of Francesco Mendolicchiu [2008] NSWDC 182

HEARING DATE(S): 20 August 2008

JUDGMENT DATE: 27 August 2008

JURISDICTION: Criminal

JUDGMENT OF: Goldring DCJ

DECISION: Allow appeal. Quash conviction.

CATCHWORDS: CRIMINAL LAW - Road Traffic - driving with PCA - Defence of honest and reasonable mistake - Evidence - burden of proof - evidentiary burden

Crimes (Appeal and Review ) Act 2001 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Road Transport (Safety & Traffic Management) Act 1999

CTM v The Queen [2008] HCA 25 CASES CITED: DPP v Bone [2005] NSWSC 1239 Elliott v Crawford TasSC 30 Nov 1989

PARTIES: Francesco Mendolicchiu (Appellant) NSW DPP (Respondent)

FILE NUMBER(S): 08/12/0904

COUNSEL: J W Shaw QC (Appellant) L Coyle, solicitor (Respondent)

SOLICITORS: The People's Solicitors (Appellant) NSW DPP (Respondent)

JUDGMENT

1 The appellant pleaded guilty in the Balmain Local Court on 4 June 2008. He was charged with driving a vehicle with a low range concentration of alcohol in his blood. He was convicted and fined $900 plus costs and disqualified from driving for 12 months.

2 He seeks leave to appeal to this Court pursuant to Crimes (Appeal and Review) Act 2001, s 12. After hearing the application, I determined there was a significant point of law involved in the appeal and granted leave to appeal. I now grant leave for him to withdraw his plea of guilty.

3 There is no doubt that, at the time he was stopped by police and his breath was analysed, the concentration of alcohol in the appellant's blood was 0 .055. The appellant does not deny that he had been to dinner with some friends and had drunk some wine with dinner. Although he was surprised by the reading when he was breathalysed, he did not doubt or ever contest the accuracy of the reading. He was acutely aware of the offence because in evidence there are documents showing that, following a conviction for a low range PCA charge very recently, he completed a Traffic Offender Intervention Program successfully and was intending to drive responsibly.