Citation: [2011] NSWLC 1
Court: Local Court of New South Wales
Date: 24 February 2011
Judge(s): Magistrate Tsavdaridis
Background
The accused was stopped by police at around 3:40 am in March 2010. The attending officer observed him to be agitated, nervous, excessively talkative, moving his jaw in a chewing motion, and unsteady on his feet. A roadside breath test returned a negative result for alcohol.
Police then searched the vehicle and found drug-like substances and paraphernalia. The accused was arrested for driving while suspended and taken to Blacktown Hospital, where blood and urine samples were taken on the basis that police suspected he may have been driving under the influence of a drug. Analysis of those samples revealed traces of illicit drugs, and the accused was subsequently charged with driving under the influence of drugs contrary to s 12(1)(a) of the Road Transport (Safety and Traffic Management) Act 1999 (NSW).
Before the hearing commenced, defence counsel applied for a voir dire (a preliminary hearing within a hearing) to challenge the admissibility of the analyst's certificate and pharmacologist's expert certificate, which formed the core of the prosecution's evidence.
Legal Issues
- Whether the court should grant leave for a voir dire hearing to determine admissibility of the drug test evidence
- Whether the police were required to conduct a formal sobriety assessment under s 25 of the Road Transport (Safety and Traffic Management) Act 1999 (NSW) before arresting the accused and taking blood and urine samples
- Whether, in the absence of a formal sobriety assessment having been conducted, the blood and urine sample evidence was improperly obtained
- Whether the improperly obtained evidence should nonetheless be admitted under s 138 of the Evidence Act 1995 (NSW), or excluded in the exercise of the court's discretion
Decision
Issue 1: The voir dire application
The Magistrate granted leave to conduct a voir dire. Under s 189(1) of the Evidence Act 1995 (NSW), where the admissibility of evidence depends on the court finding a particular fact, that question is treated as a preliminary question. The court identified the relevant preliminary question as whether the police had satisfied the preconditions in s 25 of the Road Transport (Safety and Traffic Management) Act 1999 (NSW) before obtaining the samples.
Issue 2: The requirement for a sobriety assessment
The Magistrate accepted the defence submission that s 25 and s 26 of the Act create a sequential process. A police officer's observations may ground a reasonable belief that a driver is under the influence of a drug, but those observations alone do not satisfy the statutory requirement. Before arrest and the taking of bodily samples, the legislation requires that the officer either receive a refusal to submit to a sobriety assessment, or conduct the assessment and then form a reasonable belief that the person is under the influence. The officer here moved directly from observations to arrest without conducting the assessment, and the court found that precondition had not been met.
Issue 3: Admissibility under s 138
The Magistrate turned to s 138 of the Evidence Act 1995 (NSW), which permits a court to exclude improperly obtained evidence unless the desirability of admitting it outweighs the undesirability of doing so. The court acknowledged that the officer's failure did not appear deliberate or reckless. However, the court concluded the balance favoured exclusion. The impropriety resulted in a deprivation of the accused's liberty and compelled submission to medical procedures that would not have occurred had the statutory procedure been followed. Applying the principle from Robinson v Woolworths Ltd (2005) 64 NSWLR 612 about minimum standards expected of those exercising law enforcement powers, the court found the evidence should be excluded. The court applied the civil standard of proof (balance of probabilities) under s 142 of the Evidence Act, consistent with the accused bearing the onus of establishing the matters warranting discretionary exclusion.
Orders Made
- Leave granted to conduct a voir dire hearing
- The analyst's certificate and pharmacologist's expert certificate are inadmissible
Key Takeaways
- Under ss 25 and 26 of the Road Transport (Safety and Traffic Management) Act 1999 (NSW), police observations of a driver's condition are a necessary but not sufficient step: a formal sobriety assessment must be conducted (or refused) before an arrest for drug-driving and the taking of bodily samples can lawfully follow.
- Proceeding directly from observations to arrest, without conducting the required sobriety assessment, renders the subsequent obtaining of blood and urine samples improper for the purposes of s 138 of the Evidence Act 1995 (NSW).
- An officer's unintentional or inadvertent failure to follow the prescribed statutory procedure does not automatically favour admission of the evidence obtained: the court weighed the deprivation of liberty and compelled medical procedures against the absence of deliberate misconduct, and concluded exclusion was warranted.
- The onus of establishing the matters that would enliven the court's discretion to exclude improperly obtained evidence rests on the accused, and the civil standard of proof on the balance of probabilities applies.
- Strict legislative procedures governing road transport enforcement reflect a public interest in procedural compliance: the availability of a straightforward lawful path to obtain evidence is a relevant factor weighing against admission when that path was not taken.
Legislation and Cases Referenced
Legislation
- Road Transport (Safety and Traffic Management) Act 1999 (NSW)
- Evidence Act 1995 (NSW)
Cases
- Baulman v The Queen (2007) 6 DCLR (NSW) 1
- R v Hawkins (NSWCCA, 17 December 1992, unreported)
- Fleming v R [2009] NSWCCA 233
- Robinson v Woolworths Ltd (2005) 64 NSWLR 612
- R v Coombe (NSWCCA 24 April 1997)