Giachin v Sandon [2013] ACTSC 77

1. Prescribed blood alcohol concentration exceeded

(a) has been the driver of a motor vehicle on a public street or in a public place; and

(b) has, within the relevant period, a concentration of alcohol in his or her blood equal to or more than the prescribed concentration;

commits an offence punishable, on conviction, by a penalty ascertained in accordance with section 26.

(2) In proceedings for an offence against subsection (1), evidence may be given of the concentration of alcohol in the person's blood as determined by -

(a) an analysis of a sample of the person's breath carried out in accordance with this Act; or

(b) an analysis of a sample of the person's blood carried out at an approved laboratory and certified accurate by an approved analyst; or

relevant period means the period beginning when the person ceased to be the driver of the vehicle and ending at the latest time when -

(a) a breath analysis of the person may be carried out in accordance with this Act; or

(b) if section 15 or section 15AA applies - a sample of the person's blood may be taken in accordance with that section.

3. The legislation was subsequently amended by the Road Transport (Alcohol and Drugs) Legislation Amendment Act 2010 (ACT) in two relevant respects.

4. First, s 19 was remade within the meaning of s 8 of the Criminal Code 2002 (ACT) so as to render it subject to Chapter 2 of the Criminal Code, which by s 36 excludes criminal responsibility for a designated strict liability offence where a person is under a mistaken but reasonable belief about relevant facts.

5. Secondly, a new s19(2) was inserted specifying that the offence created by s 19 was a strict liability offence.

6. The Explanatory Statement for the Road Transport (Alcohol and Drugs) Legislation Amendment Act 2010 (at p 5) explained that the identification of offences, including that created by s 19, as strict liability offences was not inconsistent with the Human Rights Act 2004 (ACT), and referred (at p 23) to Hausmann v Shute [2006] ACTSC 54 as finding that a similar offence was an offence of either strict or absolute liability. The Explanatory Statement said at p 23:

In re-enacting section 19, the intention is that the remade provision will continue to operate in much the same way as the provision that it replaces, subject to the new concept of 'prescribed concentration' mentioned above.

7. These subsequent amendments were of course not directly relevant to the appellant's matter, but as will become apparent they have influenced me in my interpretation of s 19(1) as in force on the date of the appellant's alleged offence.

8. The informant gave evidence that the appellant was breathalysed at about 12.26 am on Sunday 29 August 2010 in Commonwealth Avenue in Parkes. She was then taken to the City Police Station, where breath analysis conducted at about 1.20 am produced a blood alcohol reading of 0.107.

9. The appellant gave evidence in the Magistrates Court that:

(a) she and her friend Mr Wiley had gone to Debacle, a bar in Braddon, shortly after 8.00 pm, and there she had had one drink, being a glass of wine, after which they left Debacle because "It was very noisy, so we didn't want to stay";

(b) she had later made inquiries at Debacle and been told that the glass of wine would have involved a "standard pour" of 100 ml using a measured glass;

(c) at about 9.30 pm she and Mr Wiley had gone to a restaurant in Dickson where they had dinner, during which the appellant drank mineral water and a coffee;

(d) at around 10.00 pm they had gone to Trinity, a nightclub in Dickson, where she had two vodka and cranberry drinks bought for her by Mr Wiley;

(e) she had watched the first of these drinks being poured and observed the bar staff member "pour the drink with a nip", and had since checked that Trinity also used a "standard pour";

(f) she was probably at Trinity for about an hour and a half;

(g) by the time she left Trinity she had consumed three drinks over a period of three hours;

(h) when she left Trinity she felt fine, she had no doubt at all that she was in a fit state to drive, and when she was subjected to roadside breath testing she "felt confident that [she] was okay".

(a) she was sure the wine at Debacle was a standard drink;

(b) she arrived at Trinity at about 10.00 pm and left around 11.00 pm or 11.30 pm;

(c) she had seen the barman at Trinity pour her first vodka, and it didn't appear to be other than an exact nip;

(d) she was fairly sure that both drinks had the standard 15 ml pour of vodka, because she "would have noticed by taste if they were any stronger";

(e) she was aware that alcohol affects different people differently, and that everybody's metabolism is different, and that "you can never be sure how alcohol will affect you on any given day".

11. The appellant's companion on the evening in question, Mr Wiley, gave evidence that:

(a) he thought the appellant had a glass of wine at Debacle;

(b) they then went to the restaurant in Dickson, where he had a drink with his dinner;

(c) he could not recall the appellant drinking alcohol at dinner, but there was water on the table;

(d) after dinner they walked to Trinity, but he could not recall what time they got there, agreeing that it was 10.00 pm or "later in the evening";

(e) he was at home at Campbell by midnight, so he supposed they had left Trinity at about 11.30 pm;

(f) he did not notice anything unusual about the appellant's driving but he did "ask her if she was okay to drive and she replied that she was".

12. The Magistrate found that, having regard to the appellant's evidence of what she had drunk, her claimed belief that she had less than the applicable prescribed concentration of alcohol when she drove was not reasonable; her Honour's finding about whether that belief was honest is not entirely clear, since her Honour's conclusion was:

people [who had drunk what the appellant said she had drunk within the period before driving to which the appellant had admitted] cannot honestly believe - and if they do honestly believe that they're fit to drive, then they're fooling themselves.

13. Her Honour went on to find the offence proven.

14. The appellant appealed her conviction on the single ground that "the learned Magistrate's findings of fact cannot be sustained on the evidence". The basis of her appeal was that she had an honest and reasonable belief that her blood alcohol level was below the applicable prescribed concentration of alcohol and that this entitled her to be found not guilty of the offence (Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536).

15. To succeed in this appeal, the appellant needed to establish three propositions:

(a) that s 19 of the Alcohol and Drugs Act as in force at the relevant time created an offence of strict rather than absolute liability, so as to render a Proudman v Dayman "defence" applicable;

(b) that the time at which the appellant's belief had to be examined for honesty and reasonableness was not the point at which she first drove after leaving Trinity but a time closer to the point at which she produced the relevant blood alcohol reading; and

(c) that the evidence before the Magistrate raised the possibility that the appellant had the necessary honest and reasonable belief at the relevant time, and did so to a sufficient degree to put the onus onto the prosecution to exclude the existence of such a belief, and that the prosecution had not done so.

16. Before considering whether the appellant has established those propositions, it is useful to analyse the evidence given in the Magistrates Court.

17. I note first that there was no hint of any challenge, either in the Magistrates Court or before me, to the accuracy of the blood alcohol level recorded as an indication of how much alcohol the appellant had actually consumed.

18. The difficulty for the appellant is, first, that the chronology emerging from the evidence set out at [9] to [11] above is fairly vague but, secondly that to the extent that it can be narrowed down it is generally unhelpful to her.

19. The evidence is that the appellant's first drink, the glass of wine in Debacle, was started not long after 8.00 pm; the evidence that she and Mr Wiley left Debacle quite early because it was too noisy suggests that the glass of wine was finished fairly quickly (and therefore several hours before the appellant was stopped by police).

20. However, the trip from Braddon to Dickson (adjoining suburbs, although the hospitality areas of the suburbs do not adjoin each other) involves a distance of only a few kilometres and a travel time of no more than about 10 minutes in non-peak traffic; the evidence of reaching Dickson at about 9.30 pm, in the absence of evidence of anything else that happened between leaving Debacle and arriving in Dickson, raises the possibility that the appellant and Mr Wiley stayed at Debacle longer than implied and therefore that the glass of wine might have been finished a lot closer to 9.15 pm than to, say, 8.30 pm.

21. The appellant's evidence that she and Mr Wiley, having had dinner and, in the appellant's case at least, coffee, then left the restaurant to go to Trinity at about 10.00 pm is surprising given the evidence that they had only arrived at the restaurant at about 9.30 pm. Mr Wiley's evidence on when they went to Trinity was ambiguous, but may well have been meant to indicate that they went to Trinity somewhat later than 10.00 pm:

Do you remember about what time you arrived at Trinity?---No.

If I were to say that you arrived there about 10 o'clock in the evening, would that sound consistent?---Well, the restaurant had emptied out, so we would have left with the bulk of the patrons, so - - -

So it was later in the evening?---Later in the evening, yes.

22. The trip from Dickson to Parkes via Campbell is further than the trip from Braddon to Dickson, but counsel for the appellant, in argument, agreed that it would take less than an hour "in the middle of the night". By reference to the appellant's evidence that they might have left Dickson as early as 11.00 pm, he sought to argue that the appellant must have stopped in Campbell when she dropped Mr Wiley at home. However, it seems to me at least as arguable that in fact the appellant had left Trinity rather later than she realised; this is supported by the fact that Mr Wiley in evidence in the Magistrates Court offered 11.30 pm as a rough estimate of when they left Trinity, which he calculated by working back from his memory that he was at home by midnight. Furthermore, neither the appellant nor Mr Wiley gave any evidence that even implied that the appellant had spent any more time in Campbell than it took to simply drop Mr Wiley off at his home.

23. I note also Mr Wiley's evidence that at Trinity he bought two drinks, he had to queue up twice, and "it was quite a long wait".

24. Thus, the evidence before the Magistrate suggested a scenario in which the appellant had consumed two standard measures of vodkas in a period that was unlikely to be more than an hour (between 10.00 pm and 11.00 pm on the appellant's evidence, or between "later than 10.00 pm" and about 11.30 pm on Mr Wiley's evidence), and might have been even shorter depending on how long Mr Wiley had to queue to buy the first round of drinks. As well, on Mr Wiley's evidence, the end of that period might have been less than an hour before the appellant was stopped by police.

25. It is also possible that the appellant's first drink, the glass of wine at Debacle, had been finished closer to about 9.15 pm than to 8.30 pm (at [19] to [20] above).

26. In considering this evidence, it is important to note that, quite apart from variations in the rate at which alcohol is metabolised, there are infinite variations in the rate at which alcohol is consumed, and in the way that consumption can be described. The fact that there is an accurate and benign description of a person's rate of consumption available may be of no significance at all. In the present case, it might have been entirely accurate to describe the appellant's alcohol consumption on the night in question as "three drinks in three and a half hours" immediately before she began driving; but this does not help her if that consumption could, equally accurately, be described as "two drinks in an hour" immediately before she began driving.

27. In R v Wampfler (1987) 11 NSWLR 541; 34 A Crim R 218, Street CJ at 546; 222 summarised the effect of R v He Kaw Teh [1985] HCA 43; (1985) 157 CLR 523 (He Kaw Teh) as follows:

He Kaw Teh is authority for the proposition 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 of the existence of 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.

28. The "defence" described in para (2) of the extracted summary of He Kaw Teh was articulated by Dixon J in Proudman v Dayman as follows:

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.

29. An offence to which this principle applies is referred to as a strict liability offence.

30. An offence to which the description in para (3) of the extracted summary of He Kaw Teh applies is referred to as an absolute liability offence.

31. The expression "strict liability" and "absolute liability" are used in the Criminal Code as defined terms that, if used in legislation creating an offence, carry specified consequences for what if anything must be proved about an accused person's state of mind. Those consequences reflect (although not using identical terms) paras (2) and (3) of the extracted summary from He Kaw Teh (see Criminal Code, ss 35 and 36).

32. The availability of the Proudman v Dayman "defence" in a prosecution for a drink-driving offence was considered by Adams J in DPP v Bone [2005] NSWSC 1239; (2005) 64 NSWLR 735. The charge in that case arose under s 9(3)(a) of the Road Transport (Safety and Traffic Management) Act 1999 (NSW) (the NSW Act), which was at the relevant time 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.

33. His Honour concluded, after an extensive review of the Australian authorities as well as decisions from the United Kingdom and New Zealand, that the NSW provision created an offence of strict liability rather than absolute liability. I have, with some reservations, reached the same conclusion about s 19 of the Alcohol and Drugs Act.

34. However, for reasons which will emerge, it is useful at this stage to refer to Adams J's consideration of the issues in more detail. His Honour began his consideration of the defence of honest and reasonable mistake by referring to Proudman v Dayman, saying at 741:

17 In Australia, the invariable starting point in the consideration of the nature of this principle is Proudman v Dayman, 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 (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."

35. Adams J then reviewed the UK and Australian cases, noting at [24] the summary in R v Wampfler of the significance of the High Court's decision in He Kaw Teh. At [26] to [29] his Honour referred to a large number of other Australian and New Zealand cases in which the "defence" of reasonable and honest mistake of fact had been held to apply to a range of statutory offences. He mentioned in particular three New Zealand cases (Flyger v Auckland City Council [1979] 1 NZLR 161 (Flyger); Rooke v Auckland City Council [1980] NZHC 39 (Rooke); [1980] 1 NZLR 680; O'Neill v Ministry of Transport [1985] 2 NZLR 513 (O'Neill)) which dealt with drink-driving offences, as well as the Tasmanian case of F v Ling [1985] TASRp 10; [1985] 21 A Crim R 55 (Ling).

36. In Ling, Underwood J had concluded that the "defence" applied to s 6(2) of the Road Safety (Alcohol and Drugs) Act 1970 (Tas), which said, relevantly, that "A person ... who drives a motor vehicle while alcohol is present in his body is guilty of an offence."

37. At [37], Adams J declined to find that s 9(3) of the NSW Act created an offence of absolute liability, having said at [35] and [36]:

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 s 24(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.

38. I accept Adams J's conclusion that, in effect, there is no basis in policy considerations for treating drink-driving offences as necessarily offences of absolute liability.

39. However, since at least 1977 when the Alcohol and Drugs Act (then the Motor Traffic (Alcohol and Drugs Ordinance 1977) was made, the ACT's drink-driving offences have been created in a different form from the NSW offence considered by Adams J and the Tasmanian offence mentioned at [36] above.

40. Section 9(3) of the NSW Act, as well s 6(2) of the Tasmanian legislation considered in Ling, made it an offence for a person to "drive a motor vehicle" while the relevant concentration of alcohol was in the person's blood. In the specified circumstances, the offence is committed by driving a motor vehicle, although evidence of the circumstances rendering the driving an offence may only become available later. To the extent that the defendant's state of mind is relevant, it is clearly relevant at the time of the driving that, given the other required circumstances, constitutes the offence.

41. The ACT offence as created by s 19 has a different structure, requiring:

(a) first, that the offender has been the driver of a motor vehicle in public (s 19(1)(a)); and

(b) secondly, that the offender has, "within the relevant period", which begins when the driving ceases (s 19(3)) and ends, except where there has been a traffic accident, two hours after that time (s 14(1)), more than the prescribed concentration of alcohol in her blood (s 19(1)(b)).

42. That is, the defendant's act of driving the motor vehicle does not seem to be an offence when it is done; rather, the fact that the driving has been undertaken is the pre-condition for an offence to be committed by the presence, within a specified period after the driving, of a blood alcohol level exceeding the applicable prescribed concentration of alcohol. This seems to mean that the defendant's act of driving is innocent when it is undertaken, whatever the defendant's state of mind.

43. If the defendant's state of mind while driving were in fact relevant, the question would be whether, when the defendant drove, she honestly and reasonably believed that at no point during a period of two hours starting at the then unknowable point at which she stopped driving would she have an excessive blood alcohol level. Given the inevitable uncertainty about when the a person will stop driving (inevitable because the issue will almost always arise not when the person's journey is finished but when it is interrupted either by an accident or a random police approach), it would generally be difficult to establish that such a belief was held, and even more difficult to establish that such a belief was reasonable. This contrasts with what seems to be the position applying, for instance, to the relevant NSW and Tasmanian offences, which require a much more straightforward consideration of whether, at the time of driving, a person had an honest and reasonable belief about his or her immediate blood alcohol level.

44. If under the ACT legislation the defendant's belief at the time of driving is irrelevant, then it may be that the defendant's belief should be examined as at the time his or her blood alcohol level is tested. This would be consistent with the submission on behalf of the appellant in this case that her belief should have been examined not when she first drove after drinking alcohol but at some later time when she could reasonably have expected to have a lower blood alcohol content. It is also consistent with the submissions of counsel for the respondent that the defendant must in fact maintain the relevant belief after the blood alcohol reading has been obtained. The problem that I see with this approach is that by the time the testing of the defendant's blood alcohol level reveals the commission of the offence, there is no act for the defendant to undertake.

45. The Proudman v Dayman principle, where applicable, is that "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" (emphasis added). It is hard to see how a defendant's state of mind when his or her blood is tested, and long after he or she has stopped driving, could "[afford] an excuse" either:

(a) for the driving, which has previously been brought to an end; or

(b) for the condition of having an excessive blood alcohol level, which does not as such seem to involve "doing" anything that would otherwise be an offence.

46. Having regard to what I see as a real difficulty in applying the Proudman v Dayman proposition to an offence created in the form of s 19, I would, left to myself, have concluded that s 19(1) was intended to create an offence of absolute liability rather than strict liability.

Previous ACT consideration of equivalent provisions

47. In Hausmann v Shute [2006] ACTSC 54, Gray J considered an appeal by a person convicted of failing to provide a breath sample (Alcohol and Drugs Act, s 22). That offence also involved as its first element the accused having been the driver of a motor vehicle on a public street, but the offence was only committed at the point when the accused failed to provide a sample of breath in accordance with a reasonable direction. That is, unlike the s 19(1) offence, the offence being considered by Gray J required a particular act or omission by the accused to which an assessment of the accused's belief and whether it was reasonable could sensibly be attached. Gray J found in that case that there had been no evidentiary basis offered for a claim of a honest and reasonable belief in facts which, if true, would have excluded the conduct from constituting an offence.

48. Gray J's reasons implied an assumption that s 22 created an offence of absolute liability; however, he did contemplate the possibility that the offence was subject to strict liability, saying at [14]:

Even if the offence created by s 22 could be said to not be an offence involving absolute liability, but one of strict liability and thereby admitting the proposition that the person charged with the offence could have acted in an honest and reasonable belief in a state of facts which, if true, would not make the conduct an offence (Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536, and particularly see He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523), then there is just no evidentiary foundation that the appellant can point to that gives rise to that proposition.

49. In Maher v Carpenter [2012] ACTSC 38, an appeal from the Magistrates Court relating to an offence alleged to have been committed on 3 July 2010 (when s 19 of the Alcohol and Drugs Act was in the same form as at the date relevant in this appeal), Refshauge J said:

45 The 'defence' of mistake of fact in this context has been considered in some detail by Adams J in Director of Public Prosecutions v Bone [2005] NSWSC 1239; (2005) 64 NSWLR 735. I respectfully adopt what his Honour there said about it. It seems to me that Mr Maher, were he to raise this issue so as to require the prosecution to disprove it (He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523 at 582, 592-3), must raise by evidence a real question as to whether he believed that the amount of alcohol he had consumed could not reasonably have caused him to have the prescribed concentration of alcohol in his blood, and that such a belief was reasonable in the circumstances.

46 Mr Maher would, for this purpose, have to assert an actual and positive belief in the exculpatory facts: Proudman v Dayman at 538, 541. That is to say, he would have to have asserted a belief that his consumption of alcohol on that day would not have resulted in the prescribed concentration of alcohol in his blood.

47 In addition, of course, he would have had to raise the issue of whether such a belief was reasonable. That may not have been impossible if he could have said he was aware of the information given in the very public campaign about drink driving. As Higgins CJ said in Green v Tongs [2005] ACTSC 7; (2005) 188 FLR 363 at 370; [56]:

[G]iven the intense publicity over many years, the public will be aware of the general level of safe drinking before driving. Alcoholic drinks are marked with the alcoholic content and their 'standard drink' equivalent. It has been emphasised time and time again that an average male person could expect to be under .05 if consuming no more than two standard drinks in one hour and no more than one each hour thereafter. Thus, if the respondent had consumed six standard drinks over three hours, he might at the conclusion of that drinking session have reached a peak of .06. He would not expect to reach a peak of 0.165.

48 Of course, to raise this issue, Mr Maher would have to have given some evidence of his knowledge of that campaign and what it provided. See, eg, Director of Public Prosecutions v Bone (at 738; [3]). He may be able to raise the issue in many other ways.

50. In adopting what was said by Adams J in DPP v Bone about the defence of mistake of fact in relation to drink-driving offences, Refshauge J did not advert to the different form of the NSW provision, as already described. Nor, in explaining what Mr Maher would have needed to raise before the Magistrate, did he need to consider the time at which Mr Maher's claimed belief needed to have been held.

51. Nevertheless, having regard to the subsequent amendment of s 19 to make it explicitly an offence of strict liability, coupled with the extract from the Explanatory Statement quoted at [6] above, I accept that s 19 as in force at the time the appellant was charged was intended to be a strict liability offence. It is, however, unfortunate that in making the offence explicitly a strict liability offence, the legislature did not seek to address the question of what act of the defendant was relevant, and when it was done, so as to enable a sensible application of the test of whether the defendant had an honest and reasonable belief in a state of facts, which, if they existed, would have made the defendant's act innocent.

When did the honest and reasonable belief have to be held?

52. For the purpose of dealing with this appeal, then, I accept that s 19(1) at the time of the alleged offence was an offence of strict rather than absolute liability, and that some sense needs to be made of the provision.

53. The next issue to be addressed, given the way the appeal has been put, is that of the time at which the defendant must have held the honest and reasonable belief that is said to have rendered her innocent.

54. Counsel for the appellant submitted that the appellant's state of mind should have been assessed at a point that was "proximate to when the offence is said to commence". He relied on the assumption that the appellant had at least brought her car to a stop in order to let Mr Wiley out at his home to identify that point as the earliest time at which her state of mind could have been relevant, but he conceded that there was no authority for his proposition that the defendant's state of mind needs to be assessed at a point "proximate" to the point at which the offence is completed by the finding of a an excessive prescribed concentration of alcohol, rather than at a point related to any act of the defendant.

55. There are two further related issues to be addressed, not raised by counsel's arguments but in my view fundamental to making sense of the concept of strict liability at least in relation to drink-driving offences in the form of s 19. Those issues are:

(a) the nature of the fact as to which the defendant must have an honest and reasonable belief; and

(b) the circumstances in which a belief about a relevant fact might be reasonable.

56. Most of the cases already mentioned in this judgment in which honest and reasonable mistake was successfully raised appear to have involved a belief in the defendant's level of sobriety that was objectively soundly-based having regard to the alcohol known or suspected to have been consumed by the defendant. That is, defendants were successful in raising honest and reasonable mistake if the evidence accepted by the court raised the real possibility that the blood alcohol reading produced by the defendant resulted from something other than the defendant's conscious ingestion of alcohol.

57. In DPP v Bone Adams J set out Mr Bone's circumstances at [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. ... Mr Fuchs confirmed that he had brought [sic] 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.

58. His Honour also described the New Zealand cases of Flyger, Rooke and O'Neill:

27 ... In Flyger 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. ... 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. ...

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 ... [characterised] 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". (citations omitted)

59. In Appeal of Francesco Mendolicchiu [2008] NSWDC 182, Goldring DJC at [5] described the circumstances of the appellant's alcohol consumption:

In the affidavit in support of his application, which was not challenged, he stated that at the time of the offence he was suffering from a bad cold and had taken cough mixture containing ethanol, a form of alcohol, at 6.30 p.m. He was apprehended about three hours later. It is not suggested that the cough mixture by itself would have been sufficient to raise the concentration of alcohol in his blood over the limit. He says also that by itself, the wine he consumed with his dinner would not have done so. His belief was that he had ingested wine in a quantity that was not enough to make his alcohol concentration above the limit.

60. In Ling, Underwood J described the facts at [61]:

On the evening in question the appellant went to a hotel. He knew he was not allowed to drive with any alcohol in his body. He arrived at about 10.00 pm. and left at about 1.00am the following morning. According to his evidence he consumed two six ounce beers whilst there, waited for about thirty minutes after consuming the last and then blew into a machine which he called a breathalyser machine fixed to a wall in the hotel. He said the machine registered .000 and he thought the alcohol had left his blood. He claimed to have no knowledge of the rate of metabolism of alcohol in the body. At 1.55am the concentration of alcohol in his body was determined by breath analysis in accordance with the Act to be .04 per cent. No evidence about the machine in the hotel was adduced other than a description of what appeared upon its face. The appellant inserted some coins and blew with the aid of a straw into the space provided. He said the machine indicated a blood alcohol concentration of .000 and on this information he believed he had no alcohol in his body.

61. It is unnecessary for present purposes to set out Underwood J's detailed description of the operations of the machine and how the appellant had used it. His Honour concluded at [62]:

... In the absence of acceptable evidence, that used at the time it was and in the manner it was the machine accurately recorded the concentration of alcohol in the appellant's blood, it could not be said that any belief he held was based on reasonable grounds. The appellant's belief was based upon the mere use of a machine loosely referred to by him as a breathalyser machine. The uncontradicted facts were that:-

(1) the appellant had consumed alcohol;

(2) the appellant drove a motor vehicle;

(3) at 1.55am the concentration of alcohol in his blood was .04 per cent.

It would require very cogent evidence indeed to raise a reasonable doubt as to whether the appellant honestly held a mistaken belief based on reasonable grounds that there was no alcohol in his blood at the relevant time. The use of any machine, even strictly in accordance with instructions written on it could not, in the absence of evidence relating to its accuracy, give rise to any such reasonable doubt.

62. Thus, acquittals may result from likely drink-spiking (Bone), or the ingestion of excess alcohol by other, usually unrecognised, methods, such as from using paint in an enclosed space (Rooke) or consuming cough medicine (ONeill; Mendolicchiu). A claim to have held a reasonable belief is likely to be rejected if the defendant was observably affected by alcohol (Flyger) or if the belief was said to have been formed based on the use of some kind of unofficial blood alcohol testing apparatus (Ling). A belief formed, as in the present case, on the basis of a vague idea of how much alcohol had been consumed and in what period, coupled with an equally vague set of assumptions about how much alcohol could be consumed at what sort of pace to avoid exceeding the prescribed concentration of alcohol, is not in my view sufficient to point to not just an honest but also a reasonable belief in the existence of circumstances that would have rendered the defendant innocent of the offence charged.

63. This suggests to me that in the normal course of events the kind of belief that can be relied on to raise a Proudman v Dayman question is a belief about a "fact" that can reasonably be accepted as being within the knowledge of the defendant, such as the actual amount of alcohol consumed over a particular period. Evidence of that belief, if necessary backed up by expert evidence that the alcohol knowingly consumed should not have produced the relevant reading and evidence about where the other alcohol apparently consumed might have come from, may be sufficient to raise the possibility of an honest and reasonable mistake and prevent the prosecution proving the offence.

64. In contrast, a belief about a person's blood alcohol level over time that has been formed purely by reference to how much alcohol has been consumed by the person and over what period, is harder to accept as a belief in a state of facts. The facts as to blood alcohol levels over a period are not only unable to be known to the defendant (unless he or she is undergoing repeated testing over that period) but are also generally unable to be estimated by the defendant on the basis of any knowledge of his or her actual or even usual metabolic processes in the particular circumstances. In very few cases will a person's actual blood alcohol level from time to time be a "state of facts" as to which the person can convincingly claim a reasonable belief.

65. The comments of Adams J in DPP v Bone seem to support this kind of approach:

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. (emphasis added)

66. If my analysis of the relevance of a person's subjective assessment of their concentration of alcohol (at [63] and [64] above) is correct, then the time at which the defendant's belief is to be considered is unlikely to be an issue. The defendant's belief about what alcohol he or she has consumed over what period will not usually change between when the defendant begins to drive and when his or her blood alcohol level is tested, unlike the defendant's belief about his or her blood alcohol level from time to time.

67. The distinction thus suggested between situations in which a person's excessive blood alcohol level is caused by matters unknown to the person and those in which the person's claimed reasonable belief reflects simply their own non-expert opinion, unaffected by any honest mistake about matters they might be expected to know, is not as clear-cut as would be desirable. In most of the cases mentioned above in which the defendant had taken in more alcohol than he realised, the successful defence of the charge implied acceptance by the court that, but for the unrecognised alcohol ingestion, the defendant's blood alcohol level would not have been excessive, but also that his assessment of that level would have been sufficiently reliable to justify him in driving. It is interesting if unprofitable to speculate whether the court would have been willing to dismiss a drink-driving charge against any of those defendants if there had been a blood alcohol reading of just over the prescribed concentration, no evidence of unintentional ingestion of alcohol, and a claim of a genuinely-held belief that the defendant could legally drive. After all, one can only assume that a reasonable proportion of the people who are charged in respect of blood alcohol levels just over the prescribed concentration have genuinely but mistakenly believed that they were under the relevant limit before deciding to drive.

68. A variation of this question was discussed in DPP v Bone (at [6] and [7]), and dealt with by Adams J at [42] as follows:

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. (emphasis added)

69. The emphasised passage above is also consistent with the proposition I have advanced at [64] above to the effect that a person's mistaken opinion about whether the person's blood alcohol level exceeds or will exceed the prescribed concentration, based on accurate knowledge about his or her alcohol consumption but no specific knowledge about the workings of his or her metabolism in the particular circumstances, is unlikely to be a reasonable belief for relevant purposes, however honestly held.

70. Of course, the significance of the passage of time in the body's processing of alcohol cannot be completely ignored. A person who correctly believes that he or she has not consumed alcohol for a week but whose blood contains alcohol at the end of that week because of some previously undiagnosed metabolic disorder might well be able to make out a Proudman v Dayman "defence". That is not this case.

Was honest and reasonable mistake raised in the Magistrates Court?

71. In Mendolicchiu, Goldring DJC held at [18] that:

...If, in general terms, a defence is available, it is not incumbent on the accused to do more than raise the possibility of its existence. The evidentiary burden shifts to the prosecution to negative the defence, and to do so beyond reasonable doubt. It is a fundamental principle of criminal law that an accused person, in the absence of a specific requirement of the law, need not prove anything. There is no reason why that general proposition does not apply in the circumstances of this case. ...

20 I find that, once the appellant raised the defence of an honest and reasonable belief by asserting facts, that, if true, would have exonerated him from guilt of the offence, the evidentiary burden of disproving that defence shifted to the prosecution. The prosecution has not discharged its evidentiary burden. (emphasis added)

72. In the Magistrates Court, the appellant gave the evidence outlined at [9] to [10] above. There was no suggestion that the alcohol she knowingly consumed could not have produced the blood alcohol reading found when she was tested. The "state of facts" relied on by the appellant to make her act innocent was not the amount of alcohol she had consumed but her opinion of her likely blood alcohol content having regard to what alcohol she had consumed and when.

73. It is appropriate to set out the appellant's evidence about her belief in full:

And did you have any thought about when you got into the car, about whether you were risking driving over the limit?---I actually felt fine and I would not have hopped in the car feeling, you know, intoxicated or unable to drive. I felt completely fine.

So there was no doubts in your mind about you being - - -?---No doubt at all. No doubt at all.

Okay. And when you were subjected to the roadside breath test, you made no attempt to evade the police officer?---Not at all, no.

Because you assumed that your screening would be - - -?---I felt confident that I was okay.

74. In the absence of any evidence of "facts" that appeared inconsistent with the appellant's actual blood alcohol level, I do not consider that there was evidence of a reasonable mistake needing to be excluded by the prosecution. However, if the appellant's evidence did raise the possibility of honest and reasonable mistake, I consider that the prosecution dealt with that evidence in the cross-examination referred to at [10(e)] above.

75. As to the timing of the appellant's belief, I note that the evidence about what alcohol the appellant had drunk, and at least as significantly the period over which she had drunk it, was quite vague. If the appellant's belief about those questions of fact was relevant to anything, then the time at which she had that belief did not matter, because there is no basis for finding that the belief changed at any point during the evening concerned.

76. Much less vague was the appellant's evidence (at [10(e)] above) that she was aware that alcohol affects different people differently, that everybody's metabolism is different, and that "you can never be sure how alcohol will affect you on any given day".

77. There was no evidence raising the possibility that the appellant formed a new belief at some point after leaving Dickson and before being stopped by police in Parkes, or that any such belief would have been any more soundly-based and potentially reasonable than the belief of which she did give evidence.

78. For the reasons summarised at [64] above, and having regard to the evidence of what alcohol she had drunk and when, and of her understanding that the effect of alcohol consumption on blood alcohol levels is unpredictable, the appellant's opinion about her blood alcohol level, however honestly held, could not on any view have been identified as a reasonable belief in a "state of facts". Thus, there was in my view no call for the prosecution to negate the possibility that the appellant had, at any point from when she left Dickson to when her blood alcohol level was tested, a reasonable belief that as a matter of fact she had a blood alcohol level lower than the applicable prescribed concentration of alcohol. I see no basis for finding that the Magistrate applied the wrong test in considering the significance of the appellant's beliefs.

(a) with some hesitation, that s 19(1) of the Alcohol and Drugs Act as in force on 29 August 2010 created an offence of strict liability;

(b) that a state of facts that would have made the appellant's actions innocent (being that her blood alcohol level would be below the prescribed concentration if it were tested within two hours after she stopped driving) could not have been within her knowledge at any point between when she left Dickson and before she was tested, and therefore that there was no time between when she left Dickson and when she was subjected to random breath-testing in respect of which the Magistrate could or should have found that she had a reasonable belief in a state of facts that would have made her innocent of the charge;

(c) that accordingly there was no need for the prosecution to explicitly exclude the possibility of the appellant having held not only an honest but also a reasonable belief in a state of facts that would have made her innocent; but

(d) that in any case the prosecutor's cross-examination of the appellant in the Magistrates Court was sufficient having regard to the other evidence to rule out the possibility that the appellant's belief about her blood alcohol level at any relevant time was reasonable.

80. The evidence referred to at [10(d)] above was given during the appellant's cross-examination by the prosecutor, and was recorded in the transcript as follows:

And it's actually the case that you can't be sure that both your vodka cranberries had the standard 15 mil [sic] pour, is that correct? - - - Well, I'm confident that they did. I mean, I would have noticed by taste if they were any stronger.

81. This exchange may reflect a shared mistake on the part of the prosecutor and the appellant, in that it seems that a "standard drink" of spirits, which appears to cover vodka, is in fact 30 ml rather than the 15 ml referred to by the prosecutor (http://www.alcohol.gov.au/internet/alcohol/publishing.nsf/Content/drinksguide-cnt). If I had been willing to accept that the appellant had had the other knowledge necessary for her to make a convincing assessment of her blood alcohol level, the possibility that she had made that assessment on a mistaken view of the volume of alcohol in the drinks she had consumed might have become relevant.

82. The Magistrate's finding of guilt was justified and the appeal is accordingly dismissed.

83. I shall hear the parties as to any further orders required.

I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.

Solicitor for the appellant: Rachel Bird & Co Solicitors

Solicitor for the respondent: ACT Director of Public Prosecutions