Media statement on RDT: David Heilpern
David Heilpern is a retired NSW Magistrate having sat in regional and rural NSW for over 20 years. He is an Adjunct and Practice Professor at Southern Cross University, and is Director of “Drive Change” an organisation dedicated to law reform in the area of drug driving, with particular emphasis on prescribed cannabis patients.
“I have viewed photographs of the drug tests on Cate Faehrmann MLC on the weekend of Nimbin Mardi Grass 2021. It is immediately apparent from those photographs that police were not complying with their own standard operating procedures. They were not wearing gloves.
The Standard Operating Procedures for random oral fluid testing are found on the NSW Police website[i]. Paragraph 1-5 could not be clearer or more directive:
“Under no circumstances will oral fluid or equipment used to obtain oral fluid samples be handled by police without wearing protective latex or nitrile gloves”.
It beggars belief that the only test that was conducted on that day where protocols were breached was the one on a member of parliament, and it is far more likely that protocols were contravened extensively in the operation that occurred. Press reports state that there were more than 1500 tests conducted around Nimbin during the Mardi Grass with 29 detections[ii].
The consequences of the breach are significant.
First, all tests conducted without gloves and in breach of the protocols would be unlikely to be able to be successfully prosecuted for obvious reasons[iii].
Second, all subsequent tests on other people would also be suspect – the protocols have been developed to protect from cross contamination and not wearing gloves means that the testing regime is unreliable.
Third, evidence obtained as a result of this impropriety (including stage two and three testing) would be subject to inadmissibility rulings in court proceedings under s138 of the Evidence Act NSW.
I join calls for all prosecutions or penalties launched or issued as a result of the flawed testing withdrawn. This is not only because any prosecution would be likely to fail, but also out of a recognition that it would be unfair to proceed.
Finally, these 1500 tests were conducted on unimpaired[iv] festival goers and locals going about their business. It is a colossal waste of police time, community resources and road safety funding for this to have occurred in the first place. It was not and does not even pretend to be about road safety. It is all about prohibition. For this to have transpired in circumstances where the police cannot even follow their own clear directives amplifies the absurdity of the entire operation.”
[i] https://www.police.nsw.gov.au/__data/assets/pdf_file/0020/612704/4761_information_for_the_disclosure_log.pdf
[ii]https://www.nbnnews.com.au/2021/05/03/dozens-test-positive-for-drugs-at-nimbins-mardi-grass/
[iii] See for example: https://www.smh.com.au/national/nsw/sydney-lawyer-has-drug-driving-charge-dismissed-after-police-drug-test-contamination-20190807-p52epa.html
[iv] The reason that we can assume they were unimpaired is that if they were impaired, the police would have charged them with a more serious offence: See Standard Operating Procedure 1.4