R v Delbridge [2019] NSWDC 450

District Court New South Wales

Medium Neutral Citation: R v Delbridge [2019] NSWDC 450 Hearing dates: 27 July 2019 Date of orders: 08 August 2019 Decision date: 08 August 2019 Jurisdiction: Criminal Before: Priestley SC DCJ Decision: See at [65] Catchwords: CONVICTION APPEAL – drive motor vehicle with illicit drug present in blood – passive inhalation EVIDENCE – expert evidence EVIDENCE – Browne v Dunn Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW) Road Transport Act 2013 (NSW) Cases Cited: CTM v The Queen (2008) 236 CLR 440 Ibrahim v R [2014] NSWCCA 160 Makita v Sprowles (2001) 52 NSWLR 705 Proudman v Dayman (1941) 67 CLR 536 Category: Principal judgment Parties: Regina Marie Ann Delbridge Representation: Solicitors: Mr Gerrish for the DPP Ms Triggs for the appellant File Number(s): 2016/293704 Publication restriction: Nil

JUDGMENT 1. HIS HONOUR: This is an all grounds appeal from a conviction by the Local Court on 14 November 2018. The conviction was in respect of a charge under s 111(1)(a) of the Road Transport Act, alleging that the appellant, Marie Ann Delbridge, drove a motor vehicle with an illicit drug present in her blood, that drug being Delta-9-Tetrahydrocannabinol, or more commonly cannabis. 2. Pursuant to s 11 of the Crimes (Appeal and Review) Act, the appeal is of right. Neither party sought to lead further evidence. The appeal is to be by way of rehearing on the evidence given in the original proceedings. The nature of the appeal is well established and it requires me to determine the matter afresh and it does not require me to find any error on the part of the magistrate. 3. In the Local Court, the magistrate found that the appellant had an honest but not reasonable belief (or "opinion", as stated by the magistrate) that she would not test positive. The parties have conducted the matter focussing on that issue. That issue is whether Ms Delbridge had an honest and reasonable belief that she did not have an illicit drug present in her blood, in particular cannabis. 4. As I will discuss below, that in fact is to misstate the test, but for present purposes it serves to identify in broad terms the issue. Whilst I need to make an independent assessment of the evidence, I also need to bear in mind the limitation of not having seen the evidence given viva voce. 5. In this case, an essential feature of the evidence was the competing experts. Both experts were cross-examined. Being experts, the benefit of observing them in the witness box is perhaps of lesser significance, but it nevertheless can be a factor. 6. The evidence before me was contained in the Crown conviction appeal cover bundle, which became exhibit A. That bundle included a report from Professor Weatherby, which was evidence relied upon and tendered by the appellant in the Court below. 7. The competing expert evidence relied upon by the Crown was from Dr Perl. I was provided with transcripts of the Local Court proceedings. I should note that I have not been provided with the transcript for 25 May or 8 August 2018, though the other transcripts read as if there was no evidence on those days. 8. There was no dispute that the relevant test proved that the accused drove a motor vehicle whilst there was present in her oral fluid, the relevant proscribed illicit drug. That was the evidence of Senior Constable Matthew Linton.