# Nunn v Pezzimenti - Allan NUNN drove a prime mover on 12 December 2018 at 11:30am. - He was pulled over by LSC PEZZIMENTI. - LSC PEZZIMENTI's statement provided that he requested Mr. NUNN provide an oral fluid sample pursuant to s 55D(1) of the Road Safety Act 1986. - LSC PEZZIMENTI then formed the opinion that a prescribed illicit drug was present in Mr. NUNN's oral fluid and required Mr. NUNN to provide a sample of oral fluid under s 55E of the RSA. - Mr. NUNN was unable to provide a sufficient sample and was required under s. 55E(13) of the RSA to allow a blood sample to be taken. - The blood sample was taken at 12:55pm on 12 December 2018 at Kilmore Hospital. - That blood sample was analysed and confirmed a presence of methylamphetamine. - LSC PEZZIMENTI signed a charge-sheet as the informant on 29 January 2019 with two charges: - "1. The accused at Kilmore on 12 December 2018 did drive a motor vehicle while the prescribed concentration of drugs was present in his oral fluid.” - The legislation specified was s 49(1)(bb) of the RSA. - "2. The accused at Kilmore Hospital on 12 December 2018 within 3 hours after driving a motor vehicle did have a sample of blood taken from him in accordance with s 55E and the sample having been analysed by a properly qualified analyst within the meaning of s 57 did find that at the time of analysis a prescribed illicit drug was present in that sample in any concentration and the presence of the drug in that sample was not due solely to the consumption or use of that drug after driving or being in charge of the motor vehicle." - The legislation specified was s 49(1)(i) of the RSA. - The matter was listed for a contested hearing at Shepparton Magistrates' on 1 July 2020. - Mr. NUNN contended the charges were invalid as they did not comply with s 6(3) and sch 1, cls 1 - 3 of the CPA and that they couldn't be amended by s 8 of the CPA. - The Magistrate ruled the charges were valid. - The Magistrate ruled that if "there is any doubt as to whether or not either of the charges should make specific reference to the drug, methylamphetamine, it seems to me that either or both of the charges could be amended appropriately by included reference to the drug, methylamphetamine." - Mr. NUNN made an application for judicial review. This was heard before Justice BEALE and the judgment delivered on 16 June 2021. - Justice BEALE determined that the Magistrate was HALF-right. - The Magistrate was wrong about the charges being valid before amendment. - But the Magistrate was correct that the charges could be amended. - Justice BEALE therefore denied the review. - Mr. NUNN then sought leave to appeal which was considered as part of Fox v DPP. ## The decision re: NUNN - Before Justice BEALE, Mr. NUNN submitted that both charges were invalid because they: - Failed to state the times of driving and taking of the blood sample; and - Failed to adequately state the place of offending; and - Failed to state the source of the police officers power to require Mr. NUNN to take the oral fluid test and to allow the taking of a blood sample; and - Failed to state the name of the drug; and - Failed to state the level of concentration of the drug allegedly detected. - Justice BEALE found that: - It was not an element of the offence to state the times of driving or taking of the blood sample. - The specification of the place was sufficient. - Rejected that it was necessary to state the power of the police to require the relevant tests. - That the concentration of the drug didn't need to be stated. - However, not specifying the drug, methylamphetamine, in each of the charges was a failure to give reasonable information which would make the charges invalid. - An amendment would have been allowed because when he had a brief served on him, he also had the certificate of analysis which listed the drug in it too. - In the case of Fox v DPP, Mr. NUNN submitted that: - Time was an essential element of the offence in Charge 2 (s 49(1)(i)) due to the requirement that the sample be collected within three hours of the driving. - That the charges were invalid because the source of the power to require the test and the taking of the sample were not specified. - That the reference to section number in Charge 2 without reference to the statute or the content of the relevant provision constituted a failure to set out relevant matters.