Conviction for High Range Drinking Driver Quashed, as Police Failed to Follow the Rules

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By Paul Gregoire and Ugur Nedim

At around 7.45 pm on 19 June 2021, Dean Mason came off his motor scooter at an intersection in the NSW town of Cardiff. The rider was then observed lying in the gutter nearby his scooter by the occupants of a car that had been travelling behind him in the same direction.

The driver of the car had noticed Mason pull out in front of them, as he came out of a side street shortly before the accident. And on stopping, Lydia Sandosam got out of the car to check on and speak to the man, who was slurring. But she understood him to repeatedly say, “I need to go”.

Mason kept trying to get up, whilst the woman was kneeling beside him. But in having trouble in doing so, the man simply slumped forward. Sandosam then placed her hand on the back of his head to assist him and on noticing blood, she called triple 0.

Making a statement five months later, NSW police senior constable Griffin said on arriving at the scene he found nothing to suggest an accident, as a security guard had wheeled away the bike.

However, later at John Hunter Hospital, Mason admitted to the officer that he’d “had a bit to drink”.

Attached to Griffin’s statement were two certificates regarding a blood sample that had been taken at the hospital at 10.02 pm that evening. The blood test had established “0.297 grams of alcohol in 100 millilitres of blood” within Mason’s system, whereas the NSW legal driving limit is 0.05.

The offence of high range drink driving in New South Wales

At Toronto Local Court, Mason entered a plea of not guilty to one count of driving with the presence of a high range prescribed concentration of alcohol in his blood, or high-range drink driving, contrary to section 110(5)(a) of the Road Transport Act 2013 (NSW) (the RTA).

Section 118 of the RTA outlines that high range drinking driving means a person behind the wheel has “a concentration of 0.15 grams or more of alcohol in 210 litres of breath or 100 millilitres of blood”.

The maximum penalties for driving with a high range level of alcohol in one’s system are 18 months imprisonment and/or a fine of $3,300. For a second or subsequent offence of high range drink driving, the maximums are 2 years inside and/or a $5,500 fine.

Section 205 of the RTA provides that a section 110(5)(a) offence leads to an automatic and immediate licence disqualification of 3 years, which can be dropped to 12 months or increased with no limit. For second or subsequent offences, 5 years applies, which can drop to 2 years or be hiked without limit.

As of 2015, there’s been an alternative to mandatory licence disqualification for high range drink driving. This involves a court ordering a mandatory interlock period. An interlock is a device that won’t permit a car to switch on unless a driver provides an alcohol-free breath sample.

Section 211 of the RTA stipulates that a mandatory interlock order results in a high range drink driver having their licence disqualified for 6 to 9 months, followed by 24 months with an interlock, and for second or further offences, a 9 to 12 month ban is followed by 4 years with the device.

Questions arising in the Local Court

Mason claimed to be innocent on the basis that no permissible evidence existed of his blood alcohol level at the time of the accident, as clause 31 of schedule 3 of the RTA stipulates, a blood sample must be taken within 2 hours of a driving incident.

There was no consensus on what time the actual accident took place, but it was agreed that it happened between 7.40 pm and 7.48 pm. Yet, one of the two certificates issued by the hospital clearly shows that the blood sample wasn’t taken until 10.02 pm, slightly past the 2 hour limit.

Magistrate Peter Barnett found, however, that it was beyond reasonable doubt that the driver of the scooter had not consumed any further alcohol in the time between the accident and the blood test, so therefore, he found the offence proven.

The magistrate then sentenced Mason to a 15 month community correction order, fined him $1,000, and, as it was a first time offence, his Honour order that the driver’s licence be suspended for 9 months followed by a 24 month interlock period.

Matters on appeal

Mason appealed the outcome of his case to the Common Law Division of the NSW Supreme Court on 11 February this year.

This was done in accordance with section 52 of the Crimes (Appeal and Review) Act 2001 (NSW), which provides that a Local Court matter can be appealed to the highest court if the case involves a point of law.

Three grounds of appeal were submitted. The first was that the magistrate had made an error by submitting the certificate as evidence. Secondly, in his actions, his Honour became an advocate for the prosecution and finally, he failed to warn against engaging in speculation.

Deliberations of the court

NSW Supreme Court Justice Mark Ierace outlined that the magistrate’s estimations about the level of alcohol in Mason’s blood may have been reasonable, but this assessment should have been made by an expert due to its “scientific nature” and the prosecution produced no such witness.

The Supreme Court judge then set out that as no expert witness was able to provide a thorough analysis about Mason’s state of intoxication at the time of the accident, his Honour found the first ground made out.

And as this ground was upheld, there was no reason to consider the other two grounds.

Justice Ierace therefore allowed the appeal and ordered Mason’s conviction be set aside and entered a verdict of acquittal on 16 September this year.

The NSW Director of Public Prosecutions, of whom the case was filed against, had agreed that this would be the appropriate outcome if the first ground was made out.

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