NSW Police v Snow [2017] NSWLC 2

Local Court New South Wales

Medium Neutral Citation: NSW Police v Snow [2017] NSWLC 2 Hearing dates: 3, 4 November 2016; 13 January 2017 Decision date: 09 February 2017 Jurisdiction: Criminal Before: Heilpern LCM Decision: The defendant is convicted of each offence Catchwords: CRIMINAL LAW – driving with an illicit drug present in blood – availability of defence – honest and reasonable mistake of fact EVIDENCE – expert evidence – contradictory evidence of two experts Legislation Cited: Road Transport Act 2013, s 111 Cases Cited: Appeal of Francesco Mendilicchiu [2008] NSWDC 182 Chamberlain v The Queen [No 2] [1984] HCA 7 CTM v The Queen [2008] HCA 25 DPP v Bone [2005] NSWSC 1239 NSW Police v Carrall [2016] NSWLC 4 Velevski v The Queen [2002] HCA 4 Texts Cited: Judicial Commission of NSW, Criminal Trials Bench Book Category: Principal judgment Parties: NSW Police (prosecution) Lionel John Snow (defendant) Representation: Sgt B Gradisnik (for the prosecution)

Solicitors: Mr S Bolt (for the defendant) File Number(s): 2016/34957

Judgment

Reasons for Decision 1. The defendant has been apprehended for the offence of driving with an illicit drug present in his blood (s 111, Road Transport Act 2013) on two relevant occasions – 22 October 2015 and 30 October 2015. He pleads not guilty to both offences on the basis of an honest and reasonable mistake of fact. 2. The legislative provision is simple: 111 Presence of certain drugs (other than alcohol) in oral fluid, blood or urine (1) Presence of prescribed illicit drug in person's oral fluid, blood or urine A person must not, while there is present in the person's oral fluid, blood or urine any prescribed illicit drug: (a) drive a motor vehicle….. 1. The elements of the offence are not in issue – the defendant was driving a motor vehicle on a public street whilst there was present a detectable level of THC in his oral fluid. There is no controversy with these elements in relation to both the charges. 2. It is common ground that the detection level is 5 ng/ml, the cut-off for prosecution is 10, the defendant was tested at 233 ng/ml on the first occasion, and 26 on the second occasion. A nanogram is one thousand-millionth of a gram. 3. It is important to note that there need not be any affect proven – the mere presence of a minute or residual presence of THC is sufficient. There is a separate offence of driving under the influence of a drug for which affect must be proven.