Citation: Jones v R [2024] NSWDC 448
Court: District Court of NSW
Date: 25 September 2024
Judge: Scotting DCJ
Background
The appellant was stopped by police in April 2021 while driving a Bunnings Warehouse vehicle towing a boat trailer that lacked a registration plate. After a negative breath test, he disclosed that he used THC products medicinally, having last consumed cannabis the previous evening. A roadside oral fluid test returned a positive result for cannabis, leading to a secondary test using a Draeger DrugTest 5000 machine at Ryde Police Station, which also returned positive for THC.
The appellant had been prescribed cannabis daily since December 2019 to treat osteoporosis and anxiety. He was subsequently convicted in the Burwood Local Court by Magistrate Boulos of driving with an illicit substance (delta-9-tetrahydrocannabinol) present in his oral fluid, contrary to s 111(1)(a) of the Road Transport Act 2013.
The appellant challenged the conviction on appeal to the District Court, arguing that the secondary Draeger Drug Test had been conducted irregularly and that its results should have been excluded from evidence.
Legal Issues
- Whether the evidence of the Draeger Drug Test should have been excluded because the testing procedure was not properly followed
- Whether the magistrate made unsustainable credit findings regarding the police officer's reliability as a witness
- Whether the magistrate erred in characterising the appellant's account of the test as "fanciful"
- Whether the magistrate impermissibly took judicial notice of contested facts
- Whether the magistrate's interventions during examination of witnesses materially affected the appellant's ability to advance his case
Decision
The central factual dispute was whether the sponge component of the test kit detached from its stick during the testing procedure. The appellant gave evidence that the sponge fell out of his mouth mid-test, and that Senior Constable Logan proceeded by asking the appellant to put the sponge to his lips before placing the sample tube against it. The Standard Operating Procedures required the test to be discarded and restarted in those circumstances.
Scotting DCJ found that the magistrate's positive credit findings in favour of Senior Constable Logan were not sustainable. The officer had not prepared his statement until almost two years after the test, and his own cross-examination answers revealed uncertainty about whether his memory of this particular test was reliable. The District Court concluded that his evidence about the testing procedure could not be treated as reliable.
The magistrate's characterisation of the appellant's account as "fanciful" was also found to be in error. The possibility of the sponge detaching was expressly anticipated and addressed in the Standard Operating Procedures, meaning it was a recognised, foreseeable event rather than an implausible invention. The credit findings against the appellant were tainted by this error and by an impermissible taking of judicial notice, and were set aside.
Having found that there was credible, undiscounted evidence of an irregularity that the testing procedure required to render the test invalid, Scotting DCJ turned to s 138 of the Evidence Act 1995, which governs exclusion of improperly obtained evidence. The test result was central to the prosecution case, but its probative value was unknown given the procedural irregularity. The offence was relatively minor and the test could readily have been conducted correctly. The court excluded the evidence and, with no remaining evidence to support the charge, allowed the appeal.
Orders Made
- The appeal against conviction is allowed
- The penalty imposed by the magistrate is set aside
Key Takeaways
- The District Court held that a magistrate's credit findings are not sustainable where they depend on a police witness whose statement was prepared nearly two years after the events and whose cross-examination revealed genuine uncertainty about the reliability of his own recollection.
- Characterising a defendant's account as "fanciful" is an error where the very contingency described is expressly recognised and addressed in the applicable standard operating procedures.
- Under s 138 of the Evidence Act 1995, evidence from an oral fluid drug test may be excluded where the testing procedure required the sample to be discarded and there is credible evidence that the required procedure was not followed, rendering the probative value of the result uncertain.
- Where improperly obtained evidence is excluded and no other evidence supports the charge, a conviction cannot stand on appeal.
- Judicial notice cannot be taken of contested facts that were directly in dispute between the parties, and doing so may infect the overall credit analysis in a way that requires findings to be set aside on appeal.
Legislation and Cases Referenced
Legislation
- Road Transport Act 2013 (NSW), s 111(1)(a)
- Evidence Act 1995 (NSW), s 138
- Crimes (Appeal and Review) Act 2001 (NSW)
Cases
- AG v Director of Public Prosecutions [2015] NSWCA 218
- Charara v R [2006] NSWCCA 244
- Fox v Percy (2003) 214 CLR 118
- Gianoutsas v Glykis [2006] NSWCCA 137
- Lumney v Director of Public Prosecutions [2021] NSWCA 186
- McNab v Director of Public Prosecutions [2021] NSWCA 298
- R v Sopher Em [2003] NSWCCA 374