DPP v BONE

Reported Decision : 158 A Crim R 215 64 NSWLR 735

DPP v BONE [2005] NSWSC 1239 CITATION : This decision has been amended. Please see the end of the judgment for a list of the amendments.

CATCHWORDS : High Range PCA - Whether absolute offence - Drinks spiked unbeknown to the defendant - Whether prosecution must disprove honest and reasonable mistake - Effect of possible guilt of low range offence - Nature of belief

Crimes (Local Courts Appeal and Review) Act 2001 Criminal Appeal Act 1912 Local Government Act 1919 Motor Traffic Act 1909 LEGISLATION CITED : Road Transport (Driver Licensing) Act 1998 Road Transport (General) Act 1999 Road Transport (Safety and Traffic Management) Act 1999 Taxation Administration Act 1953

August v Fingleton [1964] SASR 22 Bank of NSW v Piper [1897] AC 383, 389, 390 Bergin v Stack (1953) 88 CLR 248 Binskin v Watson (1990) 48 A Crim R 33 Blackburn v Davies (1993) 18 MVR 131 (Tasmania) Cameron v Holt (1980) 142 CLR 342 Davis v Bates (1986) 25 A Crim R 422 F v Ling [1985] 21 A Crim R 55 (Tasmania) Flyger v Aukland City Council [1979] 1 NZLR 161 Griffin v Marsh (1994) 34 NSWLR 104 Harmer v Grace, ex p Harmer [1980] Qd R 395 Kidd v Reeves [1972] VR 563 Lim Chin Aik v The Queen [1963] AC 160, 174 Mayer v Marchant (1973) 5 SASR 567 Millar v Ministry of Transport 91986) 1 NZLR 660 O'Neill v Ministry of Transport [1985] 2 NZLR 513 CASES CITED : Pascoe v Christie [1984] 1 Qd R 464 Proudman v Dayman (1941) 67 CLR 536 R v Dibb [2002] NSWSC 934 R v Glennan (1970) 91 WN (NSW) 609 R v He Kaw Teh (1985) 157 CLR 523 R v Iannazzone [1983] VR 649 R v Reynhoudt (1962) 107 CLR 381 R v Strawbridge [1970] NZLR 909 R v Tolson (1889) 23 QBD 168 R v Vlahos (1975) 2 NSWLR 580 R v Wampfler (1987) 11 NSWLR 541 Rooke v Aukland City Council [1980] 1 NZLR 680 Smith v Le Mura [1983] 1 Qd R 535 Sweet v Parsley [1970] AC 132 Stewart v Von Lieven (1988) 14 NSWLR 537 Von Lieven v Stewart (19900 21 NSWLR 52

Director of Public Prosecutions (Plaintiff) PARTIES : Christopher William BONE (Defendant)

Mr P Lakatos (Plaintiff) COUNSEL : Mr M Thangaraj (Defendant)

Ms B Scheepers (Plaintiff) SOLICITORS : Kenneth Barnes, K R Barnes & Co

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CIVIL LIST

DIRECTOR OF PUBLIC PROSECUTIONS v Christopher William BONE

ADAMS J: Introduction 1 On 9 June 2004 Mr Bone was charged with an offence under s 9(3)(a) of the Road Transport (Safety and Traffic Management) Act 1999 (the Act) for driving a motor vehicle whilst there was present in his blood the middle range prescribed concentration of alcohol (PCA). The reading was 0.095 grams of alcohol per 100 millilitres of blood. When the matter came on for hearing in the Local Court, Mr Bone pleaded not guilty. The essence of his case was that his drink had been spiked without his knowledge. He was acquitted. The Director of Public Prosecutions has appealed to this Court under s 56 of the Crimes (Local Courts Appeal and Review) Act 2001. Such appeals are confined to pure questions of law.

The facts 2 The prosecution tendered without objection the statements of two police officers and documents establishing the relevant concentration of alcohol. The statement of Constable Mason concerns the stopping of Mr Bone's vehicle at about 11.20 pm for the purpose of administering a random breath test. Mr Bone was asked whether he had consumed any alcohol that night and answered, "I've been drinking at a mate's place…but I haven't had anything to drink since about 9 o'clock". Mr Bone blew into the alcometer which showed a reading of 0.110 and he was arrested and taken to Hornsby Police Station. At the station his breath was analysed. He was told by the sergeant, "You have returned a reading of 0.095 grams of alcohol per 100 millilitres of blood." Mr Bone asked if he could do the test again and was told he could not. He asked the sergeant, "Do I look pissed to you?" to which the response was, "From the observations I have made you look moderately affected." The sergeant had previously asked Mr Bone about how much he had had to drink. He said that his first drink was a 6 pm, his last drink was at 9 pm and that he had six schooners of (full-strength) beer. 3 Mr Bone gave evidence of going to a club at Hornsby where he met Mr Fuchs with whom he had three drinks. After they separated, he drank one more schooner and then walked back to his friend's house. He said that he was on his way home when he was stopped by police. He said that at the time he did not believe he was over the limit, in the context a reference to the lower range PCA. He was not aware of the precise relationship of the quantity a person might drink and the relevant limits but pointed out that the advertising about PCA mentioned "three drinks in an hour, one every hour after that" but what followed from this drinking pattern he did not state and was not asked. Mr Fuchs confirmed that he had brought three drinks for Mr Bone when he was celebrating a win on the poker machines. He said to Mr Bone, "I had a bit of a good hit on the pokies, my shout", that he was "having doubles", asked Mr Bone if he could get him a double "and he said he would just have a beer". For foolish reasons a shot of vodka was put in each of these drinks but he did not tell Mr Bone about it. He said that he did not know that Mr Bone was driving. 4 It is obvious that the actual quantity of alcohol consumed by the defendant was significantly greater than that which he believed he had drunk. He was not asked questions that suggested that his own experience of things was that he was affected by alcohol. The clear sense of his evidence and the terms of his protest when his reading was taken at the police station indicate that he believed that he was not. (This is not to say, of course, that he was not, in fact, affected.) The hearsay evidence of the sergeant as to his opinion could not be used to establish Mr Bone's actual sobriety and, at all events, did not prove any PCA. There was in the result no evidence from which it could have been inferred that, had it not been for the vodka, Mr Bone would have been driving with a low range PCA. In the circumstances, this would have required expert evidence. No adverse finding on this point could have been made against Mr Bone on the basis of judicial notice. Because of the course of the proceedings - mentioned below - the Magistrate did not consider that it was necessary for him to make any finding about this matter. 5 The undisputed time framework was: Mr Bone left work at about 5.00 pm and, having had nothing to eat since that time, he consumed five or six schooners of full strength beer at a club; the last three drinks were bought for him by Mr Fuchs; he left the club at about 9.00 pm and walked back to a friend's house, which was close by; between one hour and a half and two hours later he commenced to drive home and was pulled over for a random breath test at 11.20 pm. 6 It appears that Mr Bone's counsel had indicated to the Court that his client might plead guilty to having had the low range prescribed concentration of alcohol in his blood upon the basis that, although he honestly believed that he did not, that would not be a reasonable belief. The Director submits that this amounted to a concession made to this effect and that this amounted to an admission that at the relevant time he had the low range concentration of alcohol in his blood. The transcript does not record any such concession although there is, perhaps, a hint that, if the matter were to proceed as a prosecution for low range PCA, there would be a plea. On my interpretation of the transcript there was nothing that could have been used by the Magistrate, and certainly nothing that could be used by me, as evidence of an admission by Mr Bone that his blood contained the lower range PCA. On the assumption that it was relevant to establish that Mr Bone did have in his blood the lower range concentration of alcohol, I do not think it could be proved at all events by reference to statements made by his counsel as to what might occur if Mr Bone had been charged with a low range PCA offence. This is especially so given Mr Bone's evidence to the effect that he did not actually know but thought he was below the range. It may well be, of course, that the defence of honest and reasonable mistake of fact would not have applied to a prosecution for low range PCA but the prosecution in that event would have had to prove that his blood did contain the lower range concentration before the question of the defence arose or, in the circumstances here, that his blood would have contained that PCA but for the consumption of vodka. This matter was plainly dealt with at first instance upon the basis that whether this was so was irrelevant. 7 The transcript does not record the submissions. However, I infer from what his Honour, the learned Magistrate said, that the police prosecutor did not submit that the so-called Proudman v Dayman (1941) 67 CLR 536 defence did not apply so that, if Mr Bone had an honest belief on reasonable grounds that he was not driving with the prescribed quantity of alcohol specified in the charge, he did not have the necessary mens rea to commit the offence charged. Rather, the prosecution contended, it appears, that Mr Bone could be convicted of a low range PCA under s 10(1) of the Act, which permits such an alternative verdict on a charge of mid range PCA "where there was present in the person's blood the low range [PCA]". Section 10(1) applies only where, at the relevant time, "there was not present the person's blood the middle range" PCA (emphasis added). Since that PCA was undoubtedly present, the precondition for the application of s 10 was not satisfied and the section did not apply. The learned Magistrate was clearly correct in rejecting this course, even if it had conceded that Mr Bone had no defence to a low range charge, had one been brought. 8 The learned Magistrate concluded that he could not be satisfied that the prosecution had disproved the defence and, accordingly, that he was bound to dismiss the charge.

The Director appeals 9 The Director of Public Prosecutions has appealed from the dismissal of the information upon the ground that an offence contrary to s 9(3) of the Act is an absolute offence and, accordingly, the "defence" of honest and reasonable mistake of fact was not available. In the alternative, the Director submits that in the circumstances of the present case the "defence" was not available since Mr Bone did not have an honest and reasonable belief that he was innocent of the offence of driving with the low range PCA in his blood.

10 The precursor of the present Act was the Motor Traffic Act 1909 (later renamed the Traffic Act). The counterpart provision of s 9 in the present Act was s 4E, which was inserted into the Motor Traffic Act in 1968. The Motor Traffic Act underwent a number of amendments but the form of s 4E and its successors remained virtually identical.

11 The Motor Traffic Act was amended in due course to insert separate offences for low range (0.05 gm or more but less than 0.08 gm per 100 ml of blood), middle range (0.08 gm or more but less than 0.15 gm per 100 ml of blood) and high range (0.15 gm or more per 100 ml of blood) concentrations of blood whilst driving. Each of the offences was punishable by pecuniary penalties, the latter two also being punishable by custodial sentences not exceeding six months imprisonment for the middle range, nine months (for a first offence) and twelve months (for a second or subsequent offence) for a high range PCA. Each of the offences was expressed in identical terms except, of course, each categorised the PCA as low, middle or high in range. 12 The renamed Traffic Act 1909 was repealed by the present Act with a commencement date of 1 December 1999. Section 3 of the Act sets out the objects of the Act - "(a) to provide for a system of safety and traffic management that is consistent with the uniform national approach envisaged by the agreements scheduled to the National Road Transport Commission Act 1991 of the Commonwealth; (b) to re-enact with some modifications certain other provisions of the Traffic Act 1909 (as in force immediately before its repeal by the Road Transport Legislation Amendment Act 1999 ) relating to safety and traffic management, (c) to improve safety and efficiency of transport on roads and road related areas, (d) to reduce the costs of the administration of road transport."

These rather anodyne objects disguise the fact that the Act is largely concerned with the creation, detection and punishment of criminal offences. 13 The present case is concerned with s 9 of the Act which is relevantly in the following terms - "(3) Offence - middle range prescribed concentration of alcohol A person must not, while there is present in his or her blood the middle range prescribed concentration of alcohol: (a) drive a motor vehicle, or (b) occupy the driving seat of a motor vehicle and attempt to put the motor vehicle in motion, or (c) if the person is the holder of a driver licence (other than a provisional licence or a learner licence issued under the Road Transport (Driver Licensing) Act 1998 ) - occupy the seat in a motor vehicle next to a holder of a learner licence who is driving the vehicle. Maximum penalty: 20 penalty units or imprisonment for 9 months or both (in the case of a first offence) or 30 penalty units or imprisonment for 12 months or both (in the case of a second or subsequent offence)." 14 Although the terms of s 9(2), dealing with low range PCA and s 9(4) dealing with high range PCA are materially the same as s 9(3), the maximum penalty for low range PCA is 10 penalty units (in the case of a first offence) or 20 penalty units (in the case of a second or subsequent offence) and that for high range is 30 penalty units or imprisonment for eighteen months or both (in the case of a first offence) or 50 penalty units or imprisonment for two years or both (in the case of a second or subsequent offence). 15 Two provisions in the Act refer to defences. Section 11 provides that it is not a defence to a prosecution for offences under s 9 that, at the time the defendant did the act referred to in the relevant provision, there was present in his or her blood a higher concentration of alcohol than those specified in the charge. Section 11A provides that it is a defence to an offence under s 9(1)A (novice range) if the defendant proved that the presence of that range of PCA in his blood was not caused by the consumption of an alcoholic beverage (otherwise than for the purposes of religious observance) or consumption or use of any other substance (for example, food or medicine) for the purpose of consuming alcohol. 16 It will be seen from this brief examination of the present offence and its precursors that the terms of the provisions creating the offences have remained substantially the same since the offence was first created in 1968. Over the years, however, the single offence has developed into four categories of offence of increasing seriousness with corresponding increased maximum penalties. It can easily be accepted that the reason for the legislation in the first place and its increased severity is a reaction to the perceived need in the public interest to deal with the havoc caused when persons who have been drinking also drive.

The "defence" of honest and reasonable mistake 17 In Australia, the invariable starting point in the consideration of the nature of this principle is Proudman v Dayman (1941) 67 CLR 536, in which the High Court held that it was not necessary for the prosecution to prove, on a charge of permitting an unlicensed person to drive a motor vehicle contrary to s 30 of the Road Traffic Act 1934-9 (SA), that the defendant knew the driver was unlicensed. Dixon J stated the principle as follows (at 540-541) - "…As a general rule an honest and reasonable belief in a state of facts which, if they existed, would make the defendant's act innocent affords an excuse for doing what would otherwise be an offence. The strength of the presumption that the rule applies to a statutory offence newly created varies with the nature of the offence and the scope of the statute. If the purpose of the statute is to add a new crime to the general criminal law, it is natural to suppose that it is to be read subject to the general principles according to which that law is administered. But other considerations arise where in matters of police, of health, of safety or the like the legislature adopts penal measures in order to cast on the individual the responsibility of so conducting his affairs that the general welfare will not be prejudiced. In such cases there is less ground, either in reason or in actual probability, for presuming an intention that the general rule should apply making honest and reasonable mistake a ground of exoneration, and the presumption is but a weak one. Indeed, there has been a marked and growing tendency to treat the prima facie rule as excluded or rebutted in the case of summary offences created by modern statutes, particularly those dealing with social and industrial regulation. But, although it has been said that in construing a modern statute a presumption as to mens rea does not exist…it is probably still true that, unless from the words, context, subject matter, or general nature of the enactment some reason to the contrary appears, you are to treat honest and reasonable mistake as a ground of exculpation, even from a summary offence. There may be no longer any presumption that mens rea , in the sense of a specific state of mind, whether of motive, intention, knowledge or advertence, is an ingredient in an offence created by a modern statute; but to concede that the weakening of the older understanding of the rule of interpretation has left us with no prima facie presumption that some mental element is implied in the definition of any new statutory offence does not means that the rule that honest and reasonable mistake is prima facie admissible as an exculpation has lost its application also."

The significance of the requirement of mens rea as a potential element of offences created by statute has been the subject of continuing discussion and development for some decades. 18 In Sweet v Parsley [1970] AC 132, the House of Lords considered the case where the subtenant of a farmhouse who had let out several rooms to tenants and later left the premises, returning occasionally to collect letters and rent, was convicted of the offence of being concerned in the management of premises used for the purpose of smoking cannabis resin even though the prosecutor conceded that she did not know this had occurred. Each of the Law Lords accepted the primacy of the legislative language. As Lord Reid said [1970] AC at 148 - "Our first duty is to consider the words of the Act: if they show a clear intention to create an absolute offence that is an end of the matter. But such cases are very rare. Sometimes the words of the section which creates a particular offence make it clear that mens rea is required in one form or another. Such cases are quite frequent. But in a very large number of cases there is no clear indication either way. In such cases there has for centuries been a presumption that Parliament did not intend to make criminals of persons who were in no way blameworthy in what they did. That means that whenever a section is silent as to mens rea there is a presumption that, in order to give effect to the will of Parliament, we must read in words appropriate to require mens rea ."

Their Lordships (except Lord Wilberforce who gave a restricted interpretation of the word "management" in the relevant Act and therefore did not need to consider the matter) were of the view that the offence for which the hapless subtenant had been prosecuted was not absolute, although their speeches expressed this conclusion and the reasons that supported it slightly differently. I intend to cite only two passages. The first is from the speech of Lord Morris of Borth-y-Gest [1970] AC at 155 - "It is said that the intention of Parliament was to impose a duty on all persons concerned in the management of any premises to exercise vigilance to prevent the smoking of cannabis. If that had been the intention of Parliament different words would have been used. It would be possible for Parliament to enact, though it would be surprising if it did, that if anyone should at any time smoke cannabis on any premises, then all those concerned in the management of those premises, whether they knew of the smoking or not, should automatically be guilty of a criminal offence. Yet this is in effect what it is now said that Parliament has enacted. The implications are astonishing. Parliament would not only be indirectly imposing a duty upon persons concerned in the management of any premises requiring them to exercise complete supervision over all persons who enter the premises to ensure that no one of them should smoke cannabis, but Parliament would be enacting that the persons concerned in the management would become guilty of an offence if, unknown to them, someone by surreptitiously smoking cannabis eluded the most elaborately devised measures of supervision. There would not be guilt by reason of anything done or even by reason of any carelessness, but by reason of the unknown act of some unknown person whom it had not been found possible to control. When the range of possible punishments is remembered the unlikelihood that Parliament intended to legislate in such a way becomes additionally apparent. "

The second quotation comes from the speech of Lord Diplock, who said (at 163) - "[Citing R v Tolson (1889) 23 QBD 168, it is] a general principle of construction of any enactment, which creates a criminal offence, that, even where the words used to describe the prohibited conduct would not in any other context connote the necessity for any particular mental element, they are nevertheless to be read as subject to the implication that a necessary element in the offence is the absence of a belief, held honestly and upon reasonable grounds, in the existence of facts which, if true, would make the act innocent. As was said by the Privy Council in Bank of NSW v Piper [1897] AC 383, 389, 390, the absence of mens rea really consists in such a belief by the accused. This implication stems from the principle that it is contrary to a rational and civilised criminal code, such as Parliament must be presumed to have intended, to penalise one who has performed his duty as a citizen to ascertain what acts are prohibited by law ( ignorantia juris non excusat ) and has taken all proper care to inform himself of any facts which would make his conduct lawful. Where penal provisions are of general application to the conduct of ordinary citizens in the course of their every day life the presumption is that the standard of care required of them in informing themselves of facts which would make their conduct unlawful, is that of the familiar common law duty of care. But where the subject-matter of a statute is the regulation of a particular activity involving potential danger to public health, safety or morals in which citizens have a choice as to whether they participate or not, the Court may feel driven to infer an intention of Parliament to impose by penal sanctions a higher duty of care on those who chose to participate and place upon them an obligation to take whatever measures may be necessary to prevent the prohibited act, without regard to those considerations of cost or business practicability which play a part in the determination of what would be required of them in order to fulfil the ordinary common law duty of care. But such an inference is not likely to be drawn, nor is there any room for it unless there is something that the person on whom the obligation is imposed can do directly or indirectly, by supervision or inspection, by improvement of his business methods, or by exhorting those whom he may be expected to influence or control, which will promote the observance of the obligation (see Lim Chin Aik v The Queen [1963] AC 160, 174)." 19 In R v He Kaw Teh (1985) 157 CLR 523 the High Court of Australia considered the mental element necessary to be proved for an offence under s 233B(1)(b) of the Customs Act 1901, in particular whether it was an element of the offence that the accused who, as it happened, imported narcotic goods is aware that narcotic goods were in his possession. Gibbs CJ (with whom Mason J agreed) noted (157 CLR at 528) that it is presumed that mens rea is an essential ingredient in every offence although the presumption may be displaced either by the language or by the subject matter of the statute creating the offence, observing that there had "in the past been a tendency in Australia to regard this presumption as only a weak one, at least in the case of modern regulatory statutes" citing, inter alia, Proudman v Dayman. So far as the second consideration was concerned, his Honour noted that the perceived social evil resulting from drug importation and dealing might suggest that it was intended to make the offence absolute. On the other hand, the section created offences which are "truly criminal", where a conviction exposed the offender to obloquy and disgrace and becomes liable to a very severe penalty, making it unlikely that such a consequence could have been intended or a person no intention to commit wrongdoing and no knowledge that he was doing so (ibid at 529-530). The third consideration is to enquire whether enforcement of the law is enhanced by imposing strict liability for its breach. In this respect his Honour said, in reasoning which appears to be apt to the present case (ibid at 530) - "…A person bringing baggage into a country can no doubt take care to ensure that no drugs are contained in it. The public interest demands that such care should be taken. There is thus an argument…in favour of the view that the Parliament may have intended to penalise importation that was no more than careless. Clearly, however, no good purpose would be served by punishing a person who had taken reasonable care and yet had unknowingly been an innocent agent to import narcotics." 20 Gibbs CJ then observed (citing the speech of Lord Diplock in Sweet v Parsley) "recklessness may be a sufficient mental element of some offences, and there is no single mental element that is common to all offences." His Honour concluded that an accused must be acquitted where there is an honest and reasonable belief that he or she was not carrying narcotic goods (ibid at 532). His Honour noted that to hold that guilty knowledge is not an ingredient of an offence does not lead to the conclusion that the offence is absolute but that "a middle course, between imposing absolute liability and requiring proof of guilty knowledge or intention, is to hold that an accused will not be guilty if he acted under an honest and reasonable mistake as to the existence of facts, which, if true, would have made his act innocent" (ibid at 533). Having regard especially to the penalty of life imprisonment attached to the offence with which the accused was charged the Chief Justice considered that guilty knowledge was intended to be an element of it and, if so, an honest belief, even if unreasonably based, might negative the existence of the guilty knowledge and hence lead to an acquittal (ibid at 535). Leaving the possibility of wilful blindness to one side (where the suspicions of the incoming traveller are roused but he deliberately refrains from making any enquiries for fear that he may learn the truth), Gibbs CJ noted that where a traveller who was innocent of complicity in any attempt to import narcotics and there is nothing to arouse suspicion, "it is difficult to see what action he could be reasonably expected to take to prevent a stranger from secreting narcotics in his baggage…[and it] would have little point to make negligence a ground of liability" (ibid at 536). His Honour therefore concluded (ibid at 537) that the section did not displace the presumption that mens rea is a necessary element of the relevant offence. 21 Brennan J summarised the general principles applicable to the interpretation of s 233B as follows (ibid at 582) - "(1) There is a presumption that in every statutory offence, it is implied as an element of the offence that the person who commits the actus reus does the physical act to find in the offence voluntarily and with the intention of doing an act of the defined kind. (2) There is a further presumption in relation to the external elements of the statutory offence that are circumstances attendant on the doing of the physical act involved. It is implied as an element of the offence that, at the time when the person who commits the actus reus does the physical act involved, he either - (a) knows the circumstances which make the doing of that act an offence; or (b) does not believe honestly and on reasonable grounds that the circumstances which are attendant on the doing of that act are such as to make the doing of that act innocent. (3) The state of mind to be implied under (2) is the state of mind which is more consonant with the fulfilment of the purpose of the statute. Prima facie, knowledge is that state of mind. (4) The prosecution bears the onus of proving the elements referred to in (1) and (2) beyond reasonable doubt except in the case of insanity and except where statute otherwise provides." 22 Applying these general principles to s 233B(1)(b), Brennan J interpreted the provision as requiring some form of mens rea; that the offences "are truly criminal in character" and that the penalty for committing them was very severe, together with the public obloquy suffered by a person convicted of such an offence, was decisive (157 CLR at 583). 23 Dawson J summarised the position as follows (157 CLR at 591-3, omitting references) - "In this country it is well established by authority that whatever the presumption, if any, that mens rea , to be proved by the prosecution, is an ingredient of a statutory offence, there does exist a presumption that honest and reasonable mistake is to be treated as a ground of exculpation…That means that honest and reasonable mistake as a composite concept now has a part to play only in statutory offences where the legislature has excluded guilty intent as an ingredient of an offence to be proved by the prosecution, leaving the absence of mens rea to be raised by way of exculpation. Thus at common law, because intent is an ingredient of a crime, it must be proved by the prosecution and the mistaken belief in facts which are inconsistent with the required intent does not have to be based upon reasonable grounds. Either the accused has a guilty mind or he does not, and if an honest belief, whether reasonable or not, points to the absence of the required intent, then the prosecution fails to prove its case…But the position is different with statutory offences containing no mental element to be proved as an ingredient of the offence. There, if the offence is not one of absolute liability, honest and reasonable mistake survives by implication as a basis of exculpation. It is, therefore, understandable why it continues to be referred to as a defence: it must normally be raised by the accused on evidence adduced by him… …But it is not inconceivable that during the case for the prosecution sufficient evidence may be elicited by way of cross-examination or otherwise to establish honest and reasonable mistake or to cast sufficient doubt upon the prosecution case to entitle the accused to an acquittal. The governing principle must be that which applies generally in the criminal law. There is no onus upon the accused to prove honest and reasonable mistake upon the balance of probabilities. The prosecution must prove his guilt and the accused is not bound to establish his innocence. It is sufficient for him to raise a doubt about his guilt and this may be done, if the offence is not one of absolute liability, by raising the question of honest and reasonable mistake. If the prosecution at the end of the case has failed to dispel the doubt then the accused must be acquitted." 24 In R v Wampfler (1987) 11 NSWLR 541 the appellant had been convicted of publishing an indecent article namely a video cassette that was found in his premises when they were raided by police officers. The appellant sought to establish as part of his defence that the cassette in question had been approved by the Commonwealth Film Censorship Board and given an "X" rating in order to establish (at least in part) that such a classification precluded the commission of any offence in his dealing with the cassette as he did. Street CJ (with whom the other members of the Court agreed) stated (at 546) - " He Kaw Teh is authority for the proposition that that for the purpose of considering criminal intent, statutory offences fall into three categories: (1) those in which there is an original obligation on the prosecution to prove mens rea ; (2) those in which mens rea will be presumed to be present unless and until material is advanced by the defence the existence of an honest and reasonable belief that the conduct in question is not criminal in which case the prosecution must undertake the burden of negativing such belief beyond reasonable doubt; (3) those in which mens rea plays no part and guilt is established by proof of the objective ingredients of the offence." 25 The Chief Justice held that it was apparent from the cross-examination of the prosecution witnesses that was stopped by the trial judge's ruling and from his unsworn statement that the appellant had attempted "to establish an honest and reasonable belief that classification by the Commonwealth Film Censorship Board would preclude his being guilty of the offence charged against him [and it]…would then have rested upon the prosecution to negative that belief." (ibid at 548-549). It is the clear implication of the reasoning of Street CJ, allowing the appeal and quashing the conviction, that an honest and reasonable belief by the appellant that conferral by the Censorship Board of a rating on a film that might otherwise be regarded as indecent operated to decriminalise it entitled him to an acquittal. This authority shows the extent to which the defence might be applied. Although the appellant denied the indecency of the tape, the relevance of the rating was to establish the reasonable grounds for a belief that what he had done by possessing the film had been - to use the language of the Chief Justice - decriminalised. 26 The Director has cited a large number of authorities from courts in this country as well as New Zealand in which the defence of reasonable and honest mistake of fact has been held to apply to a range of statutory offences such as driving while suspended or disqualified (Kidd v Reeves [1972] VR 563; cf R v Vlahos (1975) 2 NSWLR 580 which was disapproved in Wampfler at p 549; Davis v Bates (1986) A Crim R 422 (South Australian Full Court); Millar v Ministry of Transport (1986) 1 NZLR 660), drug cultivation offences (R v Strawbridge [1970] NZLR 909); driving with excess alcohol (Flyger v Auckland City Council [1979] 1 NZLR 161; Rooke v Auckland City Council [1980] 1 NZLR 680; O'Neill v Ministry of Transport [1985] 2 NZLR 513; Harmer v Grace, ex p Harmer [1980] Qd R 395; Smith v Le Mura [1983] 1 Qd R 535; Pascoe v Christie [1984] 1 Qd R 464; F v Ling [1985] 21 A Crim R 55 (Tasmania); and Blackburn v Davies (1993) 18 MVR 131 (Tasmania)); refusal or failure to answer questions, contrary to the Taxation Administration Act 1953 (Griffin v Marsh (1994) 34 NSWLR 104); provisions of the Companies Code relating to the protection of the investing public (Stewart v von Lieven (1988) 14 NSWLR 537; Von Lieven v Stewart (1990) 21 NSWLR 52); and driving an overweight vehicle contrary to the Local Government Act 1919 (Binskin v Watson (1990) 48 A Crim R 33). In relation to Queensland, it should be noted that s 24 of the Criminal Code provides for the defence of honest and reasonable mistake of fact to apply to offences which do not expressly or impliedly exclude the rule. This does not seem to be materially different from the common law. 27 I return to the New Zealand cases of Flyger, Rooke and O'Neill. In Flyger the appellant was charged with the offence of driving a car when the blood alcohol content of his blood exceeded the statutory limit. His defence was that he had not willingly consumed the liquor which had caused his blood alcohol level to exceed the maximum. The appellant admitted that he had consumed two shandies made up of about equal proportions of beer and lemonade but said that he then drank four or five half pints of what he believed to be Coca Cola which, unknown to him, his friends had laced with vodka. McMullen J concluded that mens rea was an element of the relevant defence but that it related only to the intention to do the act which is prohibited by the section, namely to drive a motor vehicle while the proportion of alcohol in the driver's blood exceeds the statutory limit. However, his Honour concluded that it was for the prosecution to prove beyond reasonable doubt that the appellant could not mistakenly but reasonably have held the view that his conduct did not offend the statute. The difficulty for the appellant was that the scientific evidence established that the appellant had drunk significantly more "unlaced" liquor than he had admitted and that quantity would have given rise to more than the prescribed concentration of alcohol in his blood at the relevant time. Moreover, his driving was so erratic as to indicate that he must have known that he was over the limit when he started to drive. Accordingly, he did not have the honest or, perhaps, a reasonable belief that his blood contained less than the prescribed quantity of alcohol. 28 By contrast, it was conceded by the prosecution in Rooke that the appellant had only consumed three glasses of beer at or about the relevant time and that such a quantity of alcohol could not have caused his blood to contain greater than the prescribed proportion of alcohol. It appeared that the appellant had been painting in an enclosed place, using paint that contained, unknown to him, alcohol which was absorbed into his blood stream. Holland J said (at [1980] 1 NZLR at 694) - "Parliament intended that the Crown should prove beyond reasonable doubt that an offender was driving a motor vehicle with a certain percentage of alcohol in his blood and there was no onus on the Crown to prove knowledge or intent as to the alcohol on the part of the offender. Should, however, the offender establish that the alcohol was in his blood without his knowledge, upon reasonable grounds, of facts from which such a percentage of alcohol could get into his blood or a defence of reasonable mistake of fact relating thereto, then he should be acquitted." 29 In O'Neill the appellant had consumed some cough mixture and two glasses of wine. The cough mixture contained alcohol and, although this fact was noted on the bottle, O'Neill claimed that he was unaware that this was so. The wine, alone, would not have produced an excess of the prescribed proportion of alcohol. It was accepted that there was a reasonable doubt whether O'Neill was aware that there was any alcohol in the cough mixture. Gallen J discussed various authorities dealing with the defence of honest and reasonable mistake of fact in the context of the offence of driving with more than the prescribed quantity of alcohol in the blood, characterising the particular circumstances here as establishing "an element of involuntariness", stating that this will be present "where a person consumes material which, without his knowledge, contains a sufficient quantity of alcohol to produce a prohibited level" even though such "a defence cannot succeed where a person concerned nevertheless knew, or should have known, that he was affected by alcohol" ([1985] 2 NZLR at 518). 30 I should particularly refer also to the careful and persuasive treatment (if I may respectfully say so) of this issue by Underwood J in F v Ling (supra) in the context of the Tasmanian equivalent of the New South Wales Act. Following a consideration of the English, New Zealand and Australian authorities, his Honour concluded that the defence applied. 31 By way of contrast, it is important to note R v Glennan (1970) 91 WN (NSW) 609, where the appellant was convicted of aiding and abetting an offence by the driver of a motor vehicle in which he was the passenger of having the prescribed concentration of alcohol in her blood while she was driving. The appellant admitted that he had been present while the driver had consumed a large quantity of alcohol and knew that she was well under the influence of intoxicating liquor although he did not know the concentration of alcohol in her blood. The matter came before the Court of Criminal Appeal by way of case stated under s 5B of the Criminal Appeal Act 1912. The Court held that, despite his ignorance of the actual concentration of alcohol in the driver's blood, the defendant knew all the facts which gave rise to the commission of the offence by the driver. It is clear that the defendant could not have honestly or reasonably believed that the driver had less than the prescribed concentration of alcohol in her blood and it was therefore not strictly necessary for the Court to consider the application of the defence of honest and reasonable mistake of fact. However, the Court made the following observation (at 611-612) - "It is apparent from an examination of s 4E(1) [of the Act] in the light of the context in which it appears, that mens rea is not an essential element in the two offences which it creates. In order to support a conviction under s 4E(1)(a) it is enough for the prosecution to establish that the defendant drove a motor vehicle and that at the time the defendant had the prescribed percentage of alcohol in his blood. Although there is a presumption that the general rule that an honest and reasonable belief in the state of facts which, if they existed, would make the defendant's act innocent is a defence to a statutory offence, there is less ground for supposing that the general rule was intended to apply to a statute which in order to promote road safety enacts a penal measure in order to cast on the individual the responsibility of so conducting his affairs that he does not commit the act which it prohibits (see Proudman v Dayman (1941) 67 CLR 536 at p 540 per Dixon J). Here the provisions of the section are such that, when considered in the light of the character of the offence and the evident purpose of the legislation, there is strong ground for thinking that the defence of honest and reasonable belief in the existence of circumstances which would not give rise to an offence has no application to s 4E(1)." (Emphasis added.) 32 I think it may fairly be said that the language chosen by the Court was calculated to leave open the question whether the defence indeed might apply, although obviously the Court was strongly inclined to think that it did not. The circumstances in Glennan did not raise in any sense the problem presented by the spiking of a person's drink, unbeknown to him or her, having the effect of increasing the concentration of alcohol in the blood to the prescribed quantity. In light of what appears to me to be the Court's express refusal to foreclose the question, I do not consider that I am bound by the passage to which I have referred to hold that the defence does not apply in those circumstances. (In Giorgianni v R (1985) 156 CLR 473 the High Court disapproved of some comments made in Glennan concerning the elements of aiding and abetting but this is not presently relevant.) 33 August v Fingleton [1964] SASR 22 is another case relied on by the Director. The appellant, who was a diabetic needing regular injections of insulin, drove a motor vehicle after he had given himself a normal dose. He suffered a hypoglycaemic episode as a result of ingesting the insulin, which led to erratic driving. He was charged with the offence of driving a motor vehicle whilst so much under the influence of a drug as to be incapable of exercising effective control. The Full Court held that the form of the offence was provided in the legislation and the purpose which it is intended to serve excluded mens rea as a constituent element (ibid at 25). However, it seems to me that the provision there under consideration is significantly different from that which I am considering. The Full Court observed that in light of "the medical evidence that an attack of this sort is liable to come on without warning, it follows that a diabetic, who takes insulin, drives at his peril [and he] has no right to impose this risk upon the public" (ibid at 28). It was not argued that the appellant was unaware of the risk of a hypoglycaemic attack and that speaking generally a patient will have warning of the reaction in ample time to ward it off although it might come on more or less without warning. 34 In Davis v Bates (1986) 25 A Crim R 422 the question for determination was whether a person charged with the offence of driving while disqualified is entitled to an acquittal if he or she raises a reasonable doubt that he or she entertained a reasonable belief that he or she was not disqualified. The Court held that the defence of an honest and reasonable mistake of fact is available. Von Doussa J said (at 429) that there had been a distinct shift in the approach of courts in the construction of statutory offences, citing with approval the observation of Zelling J in Mayer v Marchant (1973) 5 SASR 567 at 587 noting "how much the pendulum is swinging back to the reaffirmation of mens rea in summary offences". Von Doussa J added that the swing had been "emphasised even more recently by the High Court in Cameron v Holt (1980) 142 CLR 342 at 346, where Barwick CJ referred to there being 'strong presumption' that in creating a criminal offence the legislature intends a guilty intent appropriate to the nature of the offence, and He Kaw Teh…"

The availability of the defence 35 The Director submits that the subject matter with which the Act deals, namely the safety of the public, strongly points to an interpretation of s 9 excluding altogether the element of mens rea, either as such or in the sense of requiring the prosecution to disprove (where the matter is raised) the defendant's honest and reasonable mistake of facts which, if true, would make his conduct innocent. It seems to me that the potential consequence of conviction, namely imprisonment, quite apart from the effects of mandatory disqualifications from driving, points strongly in the other direction. I think it must now be accepted that conviction for an offence of driving whilst having a prohibited range of PCA in one's blood will result in public obloquy and disgrace, especially for a mid range or high range offence. Nor is this much or sufficiently ameliorated by the possibility that, in certain cases, the court may not move to convict (as to which, see s24(6)(c) of the Road Transport (General) Act 1999). 36 One of the important purposes of the legislation is to warn drivers that, whatever their subjective judgment might be as to their fitness to drive, they are objectively a danger to themselves and to other members of the public if they drive with a prescribed concentration of alcohol in their blood. Accordingly, persons who drink drive at their peril as well as the peril of other road users. However, the law itself differentiates between different concentrations of alcohol in the blood and provides a carefully graduated hierarchy of consequences once the nominated thresholds are passed. It is one thing to require drivers to be careful and to avoid risk but where a drink is spiked it is difficult to see how any driver can avoid the risk unless, of course, he or she is subjectively aware, because of experienced difficulties, that they might be over the lower range limit. This is simply to point out that circumstances are multifarious and the prosecution will often be able to exclude the defence, even in a case where drinks are spiked. 37 I do not accept the submission that offences under s 9 are absolute offences.

The availability of the defence in this case 38 The Director submits that the mistake of fact must be such that the defendant believes he or she is innocent rather than is guilty of some other or lesser offence. (As the foregoing shows, Mr Bone did actually believe - whatever the form of his plea might have been had he been charged with a lower range PCA - that he was indeed innocent of both the lower range and higher range offences. I return to this point below.) The Director relies on a number of authorities, of which the first is Bergin v Stack (1953) 88 CLR 248 where an employed barman was charged with selling liquor to the members of an unregistered club believing that the club possessed the necessary licence but at a time where, if it had a licence, the sale was unlawful because it occurred outside lawful trading hours for a club. Fullagar J stated (at 262) - "…[even] if it could be said that he entertained an honest and reasonable belief that the club was a registered club entitled under the Act to sell liquor to its members, it could not in this case, in my opinion, be an answer to the charge…If his belief had been true, the only result would have been that he was guilty of an offence under s 266 of the Act [selling liquor outside lawful trading hours]. The rule as to the effect of an honest and reasonable mistake of fact means, I think, that such a belief excuses if its truth would have meant that no offence was being committed, not if its truth would have meant that some other and different offence was being committed…The rule is generally stated in terms which mean that the existence of the fact mistakenly believed must be such as to render the act an innocent act: see eg Bank of New South Wales v Piper (1897) AC at 389-390). Kenny (Outlines of Criminal Law , 11th Ed, 1922) at 65) takes as an instance the case of a man who is charged with burglary, and proves that he honestly and on reasonable grounds, believed that his breaking and entering occurred before 9 pm. He would not be entitled to an acquittal on that ground, although, if his belief had been well-founded he would not have been guilty of burglary. In the present case the defendant said that he "did not know that trading hours for clubs were universally restricted to 6 pm". But this, of course, is merely a statement that he did not know the law. If the facts established an offence against s 161, the existence of a belief which, if well-founded, would mean that his offence was not against s 161 but against s 266, affords him, in my opinion, no defence." 39 It seems to me that this analysis does not apply to the present case. The problem facing the barman was that his belief that the club was registered with a licence to sell liquor meant that this very fact meant that the sale was unlawful, albeit upon a different ground, namely the time of sale. In the present case, Mr Bone's honest and reasonable belief that he did not have the prescribed concentration of alcohol in his blood for which he had been charged did not lead to the conclusion that, therefore, he had the lower range concentration. Put perhaps somewhat more precisely, his belief that he had only consumed the quantity of alcohol that he knew about did not, if true, mean that he was guilty of the lower range offence. Had there been evidence (which in the circumstances must have come from an expert) that such a quantity must have led to a lower range PCA when he was driving, it may be that the defence would not have been available. The mere fact that, if Mr Bone did have that lower range, his honest belief that he did not was not reasonable and hence would have afforded him no defence to that charge, does not logically lead to the conclusion that his honest and reasonable belief that he drank only the quantity of which he was aware meant that he was guilty of the lower range offence. It only means that, if he did have that lower range, he did not have a defence to a charge to that effect. 40 In R v Reynhoudt (1962) 107 CLR 381, the majority held that it was not necessary to prove that a person who assaulted a police officer in the execution of the officer's duty was aware either that the person was a police office or that he or she was acting in the execution of their duty. This conclusion rested upon the interpretation of the provision creating the offence. Dixon J dissented as to this interpretation but, in the course of his judgment, stated (107 CLR at 385) - "It is perhaps proper to add that no one denied that a defendant might set up honest and reasonable mistake but the facts that in which he honestly and reasonably believed must be such as would make his act innocent, eg a justification of the assault." (Emphasis added.)

It is submitted on Mr Bone's behalf that this passage shows that the question is limited to whether the facts that the alleged offender's believed to be true would render him innocent, if true, of the offence with which he was charged. I am doubtful that the passage is directed to this issue. The problem was whether, though not having a defence to the assault itself, the defendant could rely on his belief as to the status and duty of the victim and it was to this distinction to which Dixon J was directing the quoted observation. 41 R v Iannazzone [1983] VR 649 and R v Dibb [2002] NSWSC 934 were somewhat unusual cases where the accused were charged with murder and sought acquittal upon the ground that they had an honest and reasonable belief in a state of facts which, if they existed, would have made them guilty of manslaughter rather than of murder, on the ground of provocation. In both cases, the application of the defence was rejected as inapplicable. I do not see that these cases deal with the present problem. They depended upon the particular character of the effect of possible provocation on the offence of murder and the inter-relationship of the elements of both crimes. 42 The Director submits that Mr Bone did not believe that he was innocent of the lesser offence of having in his blood low range concentration of alcohol. There is no evidentiary basis for this submission. Indeed, the evidence was to the contrary. However, the question is not whether he believed he was innocent of driving with a lower range PCA but whether the facts that he believed, if true, rendered him (if not guilty of the offence charged) guilty of that offence. This resolves itself into the question whether the quantity of alcohol, absent the vodka, consumed by the applicant over the relevant period would have caused him to have the lower range PCA in his blood when he was driving. There was no evidence that could justify such a conclusion. It may be that, if it had been established that he would have had such a concentration of alcohol in his blood, his belief that he did not consume enough alcohol to have that result would not have provided him with a defence, since it would not have been reasonable. But an unreasonable belief that he did not have a low range PCA did not make him guilty of having that PCA: it simply would not have given him a defence if the other elements of that offence were proved. Conclusion 43 It is not necessary for me to determine whether the principle enunciated in Bergin v Stack applies where the basis for the mistaken belief is constituted by the actions of another person of which the defendant is unaware and which he or she could not reasonably anticipate. It is sufficient to conclude, as I do, that the defence of honest and reasonable mistake is not precluded here by the mere possibility that Mr Bone may have had the lower range PCA in his blood if the facts that he believed to be true were actually true. 44 It will be observed from the preceding discussion that the arguments presently advanced were not made to the learned Magistrate. The approach taken by the prosecution below would have been relevant, indeed decisive to my mind, in the exercise by this Court of its discretion under s 59(2) the Crimes (Local Courts Appeal and Review Act) Act 2001 in connection with the orders that might be made determining the appeal, had the Director succeeded here. Whether, in that event, the appropriate order would have been to set aside the dismissal and make further orders to ensure that no further prosecution was undertaken or simply to have dismissed the appeal is not, in the circumstances, a matter that requires determination. 45 The appeal is dismissed with costs.

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