NSW Police v Snow

Does the defence apply to s 111 of the Road Transport Act?

1. I have previously found that the defence of honest and reasonable fact applies to s 111 of the Road Transport Act: NSW v Carrall [2016] NSWLC 4. I note that decision has not been appealed, and I adopt the same reasoning here. So much was accepted by the prosecution in this case.

Burden and onus of proof

1. There is an evidential burden to raise the defence. This has been achieved by the defendant's evidence detailed below. The prosecution then bear the burden of disproving 'honest and reasonable mistake of fact'. The test is stated clearly in the concluding remarks of Goldring J in Appeal of Francesco Mendilicchiu [2008] NSWDC 182 at [20]: I find that, once the appellant raised the defence of an honest and reasonable belief by asserting facts that, if true, would have exonerated him from guilt of the offence, the evidentiary burden of disproving that defence shifted to the prosecution.

Prosecution Case

1. The apprehending officer for the first allegation was Senior Constable Benjamin Tuckett, and his evidence was by way of statement and he was not cross examined. The defendant stated to the police officer (at paragraph seven) that: I have not had a smoke for about nine days mate.
2. He also described his medical conditions as including lung cancer and emphysema.
3. The apprehending officer for the second allegation was Senior Constable Mathew Linton and his evidence was also by way of statement and he was not cross-examined. The defendant stated to the police officer (at paragraph four) I haven't had a smoke now for over five weeks right and it's still in your system.
4. When the first roadside test was administered, and the defendant was informed that it came back positive he stated: Yep cause it's in your system mate. It takes ninety four or fifty four days to get out of your system. So you can test me now and test me tomorrow and you're gonna get the same reading and your gunna test me the next day for seventy four days mate. If I took that to court and I'd beat it mate. Right. Drive under the influence of marijuana mate.
5. When asked if he understood that this was not a DUI charge, he stated: It's not mate I haven't had anything that's the thing. I had not had any. So why do youse keep. Youse know all the police you all know it stays in your body.

The Evidence of Dr Perl

1. Dr Perl gave evidence for the prosecution. Contained within her statement are details of her experience and her qualifications which are extensive. She was asked to assume consumption of cannabis had last occurred nine days prior.
2. In her statement she states at page two that: Where the drug is present, usage has been fairly recent.
3. This statement is then qualified on page three by stressing that the length of time drugs can be detected varies due to many factors, and that usage and detection times are not certain. She also states that the prosecution limit used at the laboratory is 10 ng/ml.
4. Dr Perl in her statement then reviews the available literature on saliva testing and concludes that … a person using cannabis 9 days prior to the test would definitely NOT have a positive oral fluid result. However the Accused did have a positive result and the scientific studies demonstrate that this is not possible unless cannabis had been used within 12 hours of the oral fluid sampling.
5. Under cross-examination Dr Perl was asked to define "fairly recent". She answered: In most users within 24 hours. With chronic heavy users no more than 48 hours.
6. At first this seemed contradictory to her written report with respect to 12 hours. However she explained this with reference to a subsequent paper by O'Dell where very heavy users (two of them) had detectable levels up to 48 hours. However, she reiterated her view at 9.35 as follows: Q. Sorry, perhaps I can put it this way. Your evidence is it would be impossible to be either five or 10 after nine days? A. Absolutely impossible. According to all the scientific literature, yes.
7. This certainty was reiterated at 13.30 to 13.45.
8. At 13.1, Dr Perl conceded that the studies of THC in saliva are Very few and far between. I mean they're certainly not a widely studied area. Very few study it.
9. Dr Perl was not aware of any study that found THC in oral fluid after eight days (at 13).
10. On the issue of passive exposure, Dr Perl was asked to opine assuming a passive smoking episode in a hotel room an hour before the testing. She stated at 14.20: … from the studies that have been done on passive exposure, you would not be a positive after that sort of exposure. The studies that were done were actually in extreme conditions where you've got very small closed environment with several smokers and only a couple of subjects who did not use any cannabis and they were not positive once they left that environment. So it would - it would be in a real situation impossible.
11. This certainty was somewhat contradicted when Dr Perl was referred to the Dutch coffee shop study, where she conceded that the subjects in that study had tested positive once leaving the premises after exposure to cannabis smoke. However, she commented that the study was poorly designed and unverifiable.
12. Despite that study, and some others, she reiterated her view at 16.15 that after an hour of passive exposure it was impossible to have a positive reading.

The Defendant's evidence

1. Mr Snow gave evidence that his last use before the first test was at least nine or ten days prior. He describes an incident where he was exposed to cannabis smoke in a closed room in the minutes prior to his apprehension for the first allegation. He was asked if he thought he would test positive and he said at 21.30: No, no, I didn't think I'd test positive at all. Q. Why did you think that? A. Because I hadn't had any and the police said it was closed out of your system in 12 hours, 24 hours. That's what they keep telling us, but people been pulled up 36 hours and it comes up in their system. So I don't really know. Q. When you say people keep telling us that…what do you mean by that? A. …Well the police said once you - you can drive after 24 hours. If it shows up positive at the police station you're not allowed to drive for 24 hours. So I assumed after 24 hours I was allowed to drive, because the police virtually told me. You can - after 24 hours you can drive. So I don't know whether they're misleading me or what the law is on it. No one seems to know.
2. At 22.45 the defendant was asked why he thought he'd come up negative if tested by police. He stated: Because I hadn't had any for that long and I - I'm trying - no I gave it up because of my emphysema and because I cough up a lot of blood is always right in my system all the time. Even now I can taste it right in my lungs, you know. And because I'm so skinny there's no fat for it to hold, to hold the - the THC. Where it is for me is just - is there. Where I get to the stage I don't even have any but people say they can smell it because it's coming out of the pores of my skin.
3. The defendant was cross-examined by the prosecutor focusing firstly on the discrepancy between saying nine days on the date of the first allegation, and five weeks on the second, which was only eight days later. The defendant did not remember saying five weeks, and then denied it flatly describing it as follows (at 25.50): … to me that's just police verbal again.
4. I note that the evidence of the police officer was recorded at the time, was reproduced in his statement, and was not the subject of cross-examination of the officer.
5. The defendant flatly denied stating that it takes 94 or 54 days to get out of your system at 28.35.
6. At 30.25 I asked the defendant whether, at the time of the first test, he believed there was still some cannabis in his system. He responded: I couldn't really say because I wasn't affected in any way. I wasn't under the influence. I wasn't - there's no euphoria, there's no - you know.

The evidence of Professor Weatherby

1. Professor Weatherby gave evidence for the defence, and during the course of his evidence gave details of his experience and qualifications which are extensive. He was head of drug testing for the Sydney Olympics, and has decades of experience in pharmacology.
2. Professor Weatherby was taken to the current research on saliva testing, and pointed out several limitations to the studies in terms of the numbers tested, the dosage administered and the limited profile of the subjects. He pointed out at 35.40 that the research relied upon by Dr Perl included studies with six subjects, ten subjects and under 14 subjects, making … a total of 24 people in the world that's been looked at under controlled laboratory conditions with probably a very low dose.
3. He criticises any attempt at certainty by extrapolating these results at 36.40: … here where we've got some data in a very little controlled area, well controlled, a small - not even a hundred subjects, not even fifty, that we're now applying to the world in terms of looking at 'oh this is a particular oral fluid THC concentration so therefor it must mean something'. Well in relation to those particular very, reasonably healthy subjects there it might mean something but for the rest of the community you might have all sorts of other complications.
4. Professor Weatherby detailed the O'Dell study describing that after 30 hours the subjects ranged from one to 327 ng/ml. After 61 hours the highest was 37 nanograms per ml. This, he said, exemplified the extremes that occur in this type of testing because not everyone responds to a drug in the same way (at 38.5).
5. Professor Weatherby's conclusion was that this was an area of very little study, that the extremely small numbers do not give rise to extrapolation and that there are simply too many unknowns to make conclusions as made by Dr Perl: I'm very critical of Dr Perl's comments that these sort of things are a blanket 'no that won't happen'. She cannot say that. There is no way she is able to say that. Because there is no scientific evidence to do so and that is the big issue.
6. At 46.5, Professor Weatherby discusses the kind of wide ranging research with thousands of subjects that would be necessary to form confident conclusions regarding saliva testing and times of use including different ethnic groups, allowances for clean mouth conditions without residue, bleeding from ulcers or other disease.
7. In terms of passive smoking, Professor Weatherby detailed the Dutch study and other studies and concluded that the passive exposure detailed by the defendant could have led to a positive result - it is "a very plausible possibility that that occurred" (at 42.35). He also concluded that passive smoking could get a subject to the 10 nanogram limit after "maybe" an hour and a half.
8. There is a very important passage in the evidence of Dr Weatherby relating to the differential between the reading of the test on the first occasion (233 ng/ml) and the second (26 ng/ml). Dr Weatherby concluded at 47.25: Yeah. I mean in terms of the - the two reading about eight days apart, we're looking at that terminal phase which goes for days, it's dropped and we're looking at potentially - you know we're talking about half-lives here of it could be 10 to 40 days, that's consistent with 233 - he said he'd done nine days, and then another eight days its dropped to 26. It's consistent.
9. As I understand this evidence, it is that a reading in the saliva of 233 ng/ml on day one, without any fresh consumption, could lead to a reading of 26 ng/ml eight days later.
10. Under cross examination Professor Weatherby detailed the Dutch study, and on the half-life issue and passive smoking stated at 9.35 (on the second day of the hearing) that those persons in a room with others would have tested positive in New South Wales with readings of 12 to 17 ng/ml. On the half-life issue, he stated that one of those would have tested positive in New South Wales for another three to four days (at 10.10). And later at 11.5: But the thing is that two of the people in the same room would have, if they then walked out and got in a car and driven off and it was in New South Wales, would have tested positive, and likely one of them for a couple of days.
11. Under cross-examination Professor Weatherby concluded in relation to the defendant's evidence at 12.40 relating to cannabis use and smelling of cannabis: I think because there was nowhere else for it to go it's still floating around and probably clogging up blood vessels somewhere and - and as - thinning out. So I suspect - and what you've got to think is that this body compartments, because of his actual physical nature, is probably making what's in the blood somewhat higher than a lot of other people.
12. It was put in cross-examination to Professor Weatherby at 13.4 that the reading of 233 ng/ml and nine days was totally inconsistent with the literature to date. Professor Weatherby disputed that: … because the evidence we're getting is - is pushing that out and we really have not got any evidence about reality - that we know of that's got a group of really really heavy users, of big doses....

Resolution of Expert Evidence Issues

1. This is a case where the experts have given utterly contradictory evidence. Dr Perl states that it is impossible to test positive above 10ng/ml after nine days. Professor Weatherby categorically states that this conclusion is unsustainable. These differing views rest largely on agreed material - the limited published studies on the issue. These radically different positions require resolution by this court.
2. The leading case on this issue is Velevski v The Queen [2002] HCA 4 where the issue was substantially determined. In that case three children and their mother died from knife wounds. The father of the children was charged with all four murders. The defence case was that the prosecution had not excluded the hypothesis that the mother had killed the children and then herself. Accordingly, the focus was on the expert evidence relating to the wound on the mother and whether it was self-inflicted. Two of the experts gave evidence that it was probable that the mother had died at her own hand. Four of the experts were of the contrary view.
3. The court found that this direction by the trial judge was not in error (at [36]): The trial judge told the jury that, in assessing the expert evidence, it was proper for them to bear in mind that they lacked the scientific knowledge and experience of the experts and that insofar as their opinion depended on scientific medical or psychological knowledge (as opposed to common experience or common sense) "it would not be proper to find an issue against the accused by accepting one body of expert evidence and rejecting another unless there was good reason for doing so"… [emphasis in original]
4. At [85] Gaudron J (dissenting), quoting in part from Chamberlain v The Queen [No 2] [1984] HCA 7, found: If the conflicting evidence of experts is not based on matters or assumptions with respect to matters upon which the jury can reach its own conclusions but, instead, is evidence of "opinion on matters of science within disciplines of which each [is] a master, and at a level of difficulty and sophistication above that at which a juror ... might by reasoning from general scientific knowledge subject the opinions to wholly effective critical evaluation", a jury cannot, by reference solely to that evidence, resolve that conflict in a manner "which would eliminate reasonable doubt".
5. Gummow and Callinan JJ at [178]-[]182] appear to have taken a different view where they found that: 180. … the position… that juries are entitled to prefer one group of experts over another is, as a matter of general principle, clearly established. … 181. The correct position is, in our opinion, that conflicting expert evidence will always call for careful evaluation. … 182. Juries are frequently called upon to resolve conflicts between experts. They have done so from the inception of jury trials. … Nor is it the law, that simply because there is a conflict in respect of difficult and sophisticated expert evidence, even with respect to an important, indeed critical matter, its resolution should for that reason alone be regarded by an appellate court as having been beyond the capacity of the jury to resolve.
6. The task of the fact-finder in cases where there is such a dispute is succinctly characterised by the Criminal Trials Bench Book produced by the Judicial Commission of New South Wales, under the heading "Where there is a conflict between the experts…" (at [2-1110]): In the present case, there is a conflict between the expert evidence of [AB] called on behalf of the Crown and that of [CD] called on behalf of [the accused]. It goes to the issue of … [specify the issue(s)]. It is not a case of simply choosing between their evidence as a matter of simple preference. How you approach the resolution of that conflict will depend largely upon which party has the onus of proof in relation to the issue upon which the expert evidence relates. … It is for you to decide whose evidence and whose opinion you accept in whole or in part, or whose evidence you reject altogether. …
7. In this case the defence have handed up the research reports for the court to read. It is not my function to read those reports and come to some lay independent expert view on the veracity or potential for extrapolation of the findings. My task is to evaluate the evidence and, keeping in mind the onus and burden of proof, assess the acceptability of the evidence.
8. In applying the above direction from the bench book to myself I have carefully considered the evidence given by each of the experts. In my view Dr Perl was clear and straightforward in her evidence, and was prepared to make concessions as appropriate when new evidence (further research) was apparent. She also conceded that the research was limited, but opined that it was nonetheless sufficient to draw finite conclusions. In my view her opinion as to time delay softened appropriately in the light of the fresh evidence and she brings years of experience to her conclusions. In my view Professor Weatherby was also clear and straightforward in his evidence. He had read and analysed each of the studies in question in detail, and brought to bear vast experience in the field, particularly in the area of testing drugs. This was not evidence tailored to muddy the waters and strive for reasonable doubt. It was given in a manner and content in an effort to assist the court. Certainly, if there is strength in his firm and unequivocal evidence as to potential half-life, then THC can be detected for far longer periods than the assumptions and conclusions of Dr Perl would allow. If there is strength to his evidence as to the potential for detection following passive smoking, then this has serious and significant implications for those exposed to THC indirectly.
9. This is indeed an unusual case which has caused me great pause for thought. How can two rational and reasonable, highly qualified experts with decades of experience come to such completely different opinions based largely on the same few academic articles?
10. In the end this is a criminal case, and whilst I would be comfortable, should the evidence allow, in discounting one expert or the other, this is not such a case. To succeed in this case, the prosecution would have to have seriously dented the evidence of Professor Weatherby, and they have not done so. Alternately, they would have needed to provide grounds for accepting the evidence of Dr Perl over that of Professor Weatherby. They have not done so. They bear the burden. The doubt is reasonable, and must favour the defendant.
11. I find as a question of fact that had the defendant consumed cannabis nine or ten days prior, and been exposed to a passive smoking situation as described, he may well have tested positive with the levels described in the analyst certificates on each occasion. The prosecution have not excluded this as a reasonable hypothesis.

Resolution of the factual matters

1. It is important to note that the time at which the defendant's state of mind (as to honest and reasonable mistake) is crucial is at the time of committing the offence. I have carefully analysed his evidence and listened to portions of it again in reviewing the transcript and submissions made.
2. I do not accept that the defendant, at the time of committing the offences, had an honest and reasonable mistake as to whether he had cannabis in his system at detectable limits. In Carrall I made the following comments at [44]: Of course it can never be the law that a person can rely on mistake where they made a miscalculation as to their driving ability based upon a misconceived analysis of their own level of intoxication. Every day in every court in the land defendants say: "I thought I was sober enough to drive". And that is because alcohol and other drugs intoxicate and dull the judgement. The defence of honest and reasonable mistake is not a drunk (or drug) driver's charter.
3. The comments of Adams J in DPP v Bone [2005] NSWSC 1239 reinforce this at [36]: One of the important purposes of the legislation is to warn drivers that, whatever their subjective judgment might be as to their fitness to drive, they are objectively a danger to themselves and to other members of the public if they drive with a prescribed concentration of alcohol in their blood. Accordingly, persons who drink drive at their peril as well as the peril of other road users.
4. In the joint judgment of Gleeson CJ, Gummow, Crennan and Kiefel JJ in CTM v The Queen [2008] HCA 25, it was said at [8]: Where it is a ground of exculpation, the law in Australia requires that the honest and reasonable, but mistaken, belief be in a state of affairs such that, if the belief were correct, the conduct of the accused would be innocent. In that context, the word "innocent" means not guilty of a criminal offence. In the case of an offence, or a series of offences, defined by statute, it means that, if the belief were true, the conduct of the accused would be "outside the operation of the enactment". [footnote omitted]
5. In my opinion, the defendant's view at the time of the offence was that he still had cannabis in his system. He had been told others could smell it on his skin. He told the police on the second arrest that he knew that after five weeks it could still be in your system. His state of mind at that time was clear: Yep cause it's in your system mate. It takes ninety four or fifty four days to get out of your system. So you can test me now and test me tomorrow and you're gonna get the same reading and you're gunna test me the next day for seventy four days mate. If I took that to court and I'd beat it mate. Right. Drive under the influence of marijuana mate.
6. In my view this state of mind is not consistent with an honest and reasonable mistake of fact. In my view the evidence establishes that the defendant well knew that the cannabis may still be in his system, and chose to drive and run that gauntlet based upon some misapprehension as to a need to show affectation.
7. He told the police that it was nine days, then five weeks, a crucial inconsistency that belies the later held belief stated in oral evidence that he thought he would not test positive. When asked why he thought that, he answered with a confusing reference to 24 hours, then 36 hours, then quoting the police suspension time on a positive test.
8. Despite the evidence being uncontested (and/or recorded) he denied making crucial statements blaming it on memory or police verbal or other such unconvincing excuse.
9. The defendant was a most unimpressive witness, not just cantankerous and unwell, but clearly tailoring his oral evidence to a later-formed position of ignorance, despite his statements to the police. In my view the prosecution have disproved an honest and reasonable mistake of fact because I have formed the opinion that he knew full well that he may have been positive and still chose to drive. A person cannot rely on an honest and reasonable mistake of fact as to the detectability of cannabis in the system where there is accepted evidence that they knew they could still be detectable.
10. In my view, if a driver knows they may be detected after nine days, or 17 days, and chooses to drive, the defence is disproven. That is the evidence here by virtue of the statements made to the police and the ambiguity of the oral testimony of the defendant.
11. In Carrall, by comparison, I accepted that the defendant genuinely and reasonably formed the opinion that he would have no cannabis in his system based on the advice of the police officer to him directly. Mr Snow, on the other hand, clearly believes that he has cannabis in his system after 17 days (or five weeks) because that is precisely what he told the police.

Conclusion

1. Accordingly, the prosecution having disproved the defence beyond a reasonable doubt, the defendant is convicted of each offence, and the court will now move to the sentencing phase. Magistrate D Heilpern Lismore Local Court

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