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Local Court 9 February 2017

NSW Police v Snow

[2017] NSWLC 2

DrugsTraffic & driving
CRIMINAL LAW AVAILABILITY OF DEFENCE EXPERT EVIDENCE CONTRADICTORY EVIDENCE OF TWO EXPERTS

Citation: NSW Police v Snow [2017] NSWLC 2
Court: Local Court of NSW
Date: 9 February 2017
Judge: Heilpern LCM

Background

The defendant was charged with two counts of driving with an illicit drug (THC, the active compound in cannabis) present in his blood, contrary to s 111 of the Road Transport Act 2013. The charges arose from two separate roadside tests conducted on 22 October 2015 and 30 October 2015. The defendant returned readings of 233 ng/ml on the first occasion and 26 ng/ml on the second, well above the prosecution threshold of 10 ng/ml.

The defendant pleaded not guilty to both charges, relying on the defence of honest and reasonable mistake of fact. He claimed that his last cannabis use had occurred well before each test and that he genuinely believed no detectable drug remained in his system. He also raised the possibility that passive exposure to cannabis smoke shortly before the first test had caused the positive result.

The prosecution led expert evidence from a forensic toxicologist. The defendant gave oral evidence, and his statements to police at the time of each test formed a significant part of the evidentiary picture.

  • Whether the defence of honest and reasonable mistake of fact is available for an offence under s 111 of the Road Transport Act 2013
  • Who bears the evidential burden and the legal burden in relation to that defence once raised
  • Whether the prosecution had disproved the defence beyond reasonable doubt on the facts of this case
  • How conflicting expert evidence about detection windows for THC in oral fluid should be assessed

Decision

Availability of the defence: The magistrate confirmed his earlier finding in NSW Police v Carrall [2016] NSWLC 4 that the honest and reasonable mistake of fact defence is available for a charge under s 111 of the Road Transport Act 2013. The prosecution did not contest this point.

Burden of proof: Once the defendant raised sufficient evidence to put the defence in issue, the burden shifted to the prosecution to disprove it beyond reasonable doubt. The magistrate applied the formulation set out by Goldring J in Appeal of Francesco Mendilicchiu [2008] NSWDC 182.

Expert evidence: The prosecution's toxicologist, Dr Perl, gave evidence that it was "absolutely impossible" for a person to return a positive oral fluid result nine days after last using cannabis, and that positive readings at those levels indicated use within 12 to 48 hours. She also rejected the passive smoking explanation, stating that even studies conducted in enclosed environments with heavy cannabis smoke present had not reliably produced positive readings in non-users. The magistrate accepted this expert evidence.

The defence rejected: The magistrate found the prosecution had disproved the honest and reasonable mistake of fact defence. The critical evidence came from the defendant's own statements to police at the roadside. On the first occasion, the defendant told police that THC stays in the system for up to 74 days and that he expected to test positive for that duration. These statements demonstrated that he knew cannabis could still be detectable in his system, yet chose to drive. The magistrate found the defendant a thoroughly unimpressive witness who sought to adopt a later position of ignorance that was inconsistent with his contemporaneous statements. The contrast drawn with Carrall, where the defendant had genuinely relied on a police officer's direct assurance, was instructive: unlike that defendant, Mr Snow's own words to police confirmed he believed THC remained in his system.

Orders Made

  • The defendant was convicted of both offences.
  • The matter was adjourned to a sentencing phase (no sentence recorded in the provided text).

Key Takeaways

  • The Local Court confirmed, for the second time, that the honest and reasonable mistake of fact defence is available for a charge of driving with a prescribed illicit drug present under s 111 of the Road Transport Act 2013.
  • Where a defendant raises that defence with sufficient evidence, the prosecution bears the burden of disproving it beyond reasonable doubt.
  • A defendant cannot rely on honest and reasonable mistake of fact where the evidence establishes that they actually knew the drug may still be detectable in their system at the time they chose to drive.
  • Contemporaneous statements made to police at the roadside can carry decisive weight, particularly where those statements are recorded, reproduced in an uncontested police statement, and directly contradict the defendant's oral evidence at hearing.
  • Under s 111 of the Road Transport Act 2013, the offence requires only the presence of a prescribed illicit drug at a detectable level; there is no requirement to prove the drug impaired the driver's ability, distinguishing it from a driving under the influence charge.

Legislation and Cases Referenced

Legislation
- Road Transport Act 2013 (NSW), s 111

Cases
- NSW Police v Carrall [2016] NSWLC 4
- 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
- Velevski v The Queen [2002] HCA 4