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Byron Shire
December 1, 2022

No conviction for man charged with drug driving

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Adam Smith. (supplied)
Adam Smith. (supplied)

By Darren Coyne

A Lismore magistrate has decided not to record a conviction against a man who tested positive, then negative, to having cannabis in his system while driving.

Magistrate David Heilpern also put police on notice that if an offence was likely to attract a licence suspension, they should serve notice ‘in a manner in which injustice doesn’t occur’.

As Echonetdaily reported last week, Adam Smith, a father of two children, was stopped by police at 7.45am for a roadside drug test in August.

He tested positive for cannabis, but once he was retested again in the police van, the result was negative.

Mr Smith was allowed to drive away, but sixteen weeks later he discovered that he had been fined and lost his licence at a court hearing that he was unaware of.

Mr Smith told the court that he had not received any notice of the court hearing, despite police telling him he would be notified if a third test was positive.

‘It appears the police sent my court notice via normal post and I never got it,” Mr Smith said.

‘The issue seemed be that the police used normal post to serve the CAN (court attendance notice) when the consequences for not turning up had much more of an impact as opposed to a civil matter where personal service is required and the consequences aren’t as harsh if they don’t turn up to court,’ Mr Smith said.

For Mr Smith, the consequences were especially harsh. He was suspended from his work as a disability worker, and was left thousands of dollars out of pocket in the lead up to Christmas because of the bungling.

But on Tuesday, the conviction was overturned, with magistrate Heilpern saying that what happened was ‘a great wrong’.

Mr Heilpern described the situation as deplorable, and suggested that when the legislature makes laws that lead to this type of injustice, people should contact their local member.

Mr Heilpern dismissed the charge under Section 10 of the Crimes Act, meaning Mr Smith keeps his clean driving record.

‘I went to the RMS to get my licence back and they still hadn’t been informed it was suspended in the first place,’ Mr Smith said.

‘They put a note on my file. I will be driving around with the letter my lawyer created which explains that I have a valid licence.

‘I am still worried that the police will pull me over and I may have issues with my licence status.

‘I am also worried about the accuracy of the drug tests which may return a false positive in the future.’

Mr Smith said it was unlikely that he would receive any compensation as a result of his ordeal.

“It seems the cops used the normal post to save a few bucks but in the end it has cost me thousands of dollars,’ he said.

Since his court appearance, Mr Smith has been reinstated at work and will be unable to attend a protest out the Lismore Police Station on 21 December.

He said however that he was happy to share his story to raise the issue of drug testing, and the unintended impacts it could have on people.

The Nimbin Hemp Embassy has organised Monday’s protest, which begins at 10am.


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  1. Magistrate David Heilpern is to be commended for his fair and just finding in this matter.

    These tests must be immediately suspended until a better method is proven, one that accurately tests for impairment, not supposed presence.
    The Law must do no harm, be fair and just


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