DPP v Jamie Michael Clear [2010] NSWSC 392

New South Wales Supreme Court

CITATION : DPP v Jamie Michael Clear [2010] NSWSC 392

HEARING DATE(S) : 3/05/10

JUDGMENT DATE : 6 May 2010

JUDGMENT OF : Barr AJ at 1

1.Set aside the order dismissing the charge that on 11 April 2009 at Albury the defendant refused/failed to submit to a drug blood test; DECISION : 2.Remit the matter to the Local Court to be dealt with according to law; and 3.Order the defendant to pay the plaintiff's costs of the appeal.

CATCHWORDS : Requirement to provide blood and urine samples for analysis - whether person so required may choose to provide either and not the other.

LEGISLATION CITED : Crimes (Appeal and Review) Act 2001 s 56 Road Transport (Safety and Traffic Management) Act 1999 ss 26, 27, 28, 29

CATEGORY : Principal judgment

PARTIES : Plaintiff- Director of Public Prosecutions (NSW) Defendant- Jamie Michael Clear

FILE NUMBER(S) : SC 2009/15452

COUNSEL : Plaintiff- F. Veltro

SOLICITORS : Plaintiff- S.C Kavanagh, solicitor for Public Prosecutions Defendant-T. Hemsley

LOWER COURT JURISDICTION : Local Court

LOWER COURT JUDICIAL OFFICER : Magistrate Hiatt

LOWER COURT DATE OF DECISION : 18/09/09

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

BARR AJ

THURSDAY, 6 MAY 2010

2009/15452 DIRECTOR OF PUBLIC PROSECUTIONS (NSW) v JAMIE MICHAEL CLEAR

JUDGMENT 1 HIS HONOUR: On 18 September 2009 Local Court Magistrate Hiatt dismissed proceedings against the defendant, Jamie Michael Clear, who was charged with an offence described in a Court Attendance Notice as "Refuse/Fail to submit to (drug) blood test". The plaintiff, the Director of Public Prosecutions (NSW) has brought this Summons by way of appeal against his Honour's order under s56(1) Crimes (Appeal and Review) Act 2001. 2 The appeal is brought to this Court as of right. By s 59(2) of the same Act, this Court may determine an appeal like the present one by setting aside the order appealed from and making such other order as it thinks just or by dismissing the appeal. 3 On 11 April 2009 police officers saw the defendant driving a motor vehicle in Albury. He was driving in a manner that made them think that he might have been drinking. They stopped the vehicle and told the defendant that they had done so to hold a random breath test. They administered the test and the result was negative. Some conversation took place between the officers, the defendant and the defendant's passenger, as a result of which the officers decided to search the defendant and his vehicle. The defendant told them that there was a used syringe in the vehicle that he had recently used to administer amphetamines. A search of the defendant himself revealed a small resealable plastic bag containing crystals. The officers cautioned and arrested the defendant. His eyes were bloodshot, his pupils were enlarged and he appeared anxious. There was this conversation- "Sen. Const. Brady-Due to your actions and your comments about using amphetamines, you are under arrest for the purpose of supplying a blood and urine sample. You will be taken to the Albury Base Hospital.