Police v Murray [2011] NSWLC 1

Police v Murray [2011] NSWLC 1

The police did not conduct the mandatory sobriety assessment required by s.25 of the Road Transport (Safety and Traffic Management) Act 1999 (NSW) prior to arrest and taking samples, rendering subsequent evidence improperly and illegally obtained. The gravity of this impropriety warranted exclusion of the evidence under s.138 of the Evidence Act 1995 (NSW).

Parties
Prosecuting Authority: NSW Police Force; Accused: Scott Alan Murray
Jurisdiction
Australia
Judgment Date
24 February 2011
Procedural Posture
Criminal Summary Proceeding / Ruling on Admissibility of Evidence After Voir Dire
Outcome
Evidence excluded as inadmissible; leave granted for voir dire.
Legal Topics
Driving Under the Influence of Drugs, Admissibility of Evidence, Sobriety Assessment Procedure
Criminal Law Traffic Law Driving Under the Influence of Drugs Admissibility of Evidence Sobriety Assessment Procedure

Case Brief

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Parties

NSW Police Force

Prosecuting Authority

Scott Alan Murray

Accused

Procedural Posture

Criminal Summary Proceeding / Ruling on Admissibility of Evidence After Voir Dire

Legal Issues

  1. 1 Whether the police complied with statutory requirements for sobriety assessment under Road Transport (Safety and Traffic Management) Act 1999 (NSW)
  2. 2 Whether the evidence obtained should be excluded as improperly or illegally obtained under Evidence Act 1995 (NSW)

Ratio Decidendi

The police did not conduct the mandatory sobriety assessment required by s.25 of the Road Transport (Safety and Traffic Management) Act 1999 (NSW) prior to arrest and taking samples, rendering subsequent evidence improperly and illegally obtained. The gravity of this impropriety warranted exclusion of the evidence under s.138 of the Evidence Act 1995 (NSW).

Court Disposition

Evidence excluded as inadmissible; leave granted for voir dire.

Orders

  • Leave is granted to conduct a voir dire hearing.
  • The exhibits forming part of Constable Conroy's statement, namely the analyst's certificate and the pharmacologist's expert certificate, are inadmissible.