[2008] NSWSC 752
Narouz v R [2023] NSWDC 293
NSW Police v Carrall [2016] NSWLC 4
Ostrowski v Palmer (2004) 218 CLR 493
[2004] HCA 30
Parker v R [2023] NSWCCA 234
Prineas v R (2018) 86 MVR 148
Source
Original judgment source is linked above.
Catchwords
[2008] NSWSC 752
Narouz v R [2023] NSWDC 293
NSW Police v Carrall [2016] NSWLC 4
Ostrowski v Palmer (2004) 218 CLR 493[2004] HCA 30
Parker v R [2023] NSWCCA 234
Prineas v R (2018) 86 MVR 148
Judgment (3 paragraphs)
[1]
JUDGMENT
Ibrahim Salim (hereafter the defendant) has pleaded not guilty to a charge that on 2 December 2022 he drove a motor vehicle while there was present, in his oral fluid, a prescribed illicit drug contrary to s 111 of the Road Transport Act 2013 (NSW). It is not in dispute that the defendant was driving whilst an illicit drug was present in his oral fluid, that being Delta-9-Tetrahydrocannabinol (a cannabinoid from cannabis), and that the drug was present because he had recently smoked cannabis.
The defendant sought to rely upon the common law ground of exculpation of honest and reasonable mistake of fact. The prosecution submitted that he could not do so because the offence was one of absolute liability. The submission relied upon the recent District Court decision of Narouz v R [2023] NSWDC 293 where Buscombe DCJ held that the offence is one of absolute liability and consequently the "defence" of honest and reasonable mistake of fact is not available. Mr Khatiz, on behalf of the defendant, submitted that the court should not follow the decision of Narouz v R [2023] NSWDC 293 but rather other District Court and Local Court decisions of R v Delbridge [2019] NSWDC 450, Chandiran v R [2022] NSWDC 576 and NSW Police v Carrall [2016] NSWLC 4 which all held that the offence is one of strict liability and therefore the "defence" is available.
It is important to emphasise that an honest and reasonable mistake of fact is not a "defence" as that term is applied to the criminal law following the decision of Woolmington v Director of Public Prosecutions [1935] UKHL 1; [1935] AC 462. A defence requires an accused to establish a matter on the balance of probabilities and the example in Woolmington v Director of Public Prosecutions was the defence of insanity. Honest and reasonable mistake of fact is a ground of exculpation and not a defence. This was a point stressed by Gleeson CJ, Gummow, Crennan and Kiefel JJ in CTM v The Queen (2008) 236 CLR 440 [2008] HCA 25 at [6]-[8]:
"…Questions of onus and standard of proof now need to be considered in the light of later developments in the law. References to arguments raised on behalf of the accused at a criminal trial as a defence, or a ground of exculpation, may be harmless enough if they do not pre-empt questions of onus of proof. People understandably feel the need to call them something, and the adversarial setting of a trial leads judges and practitioners sometimes to refer to any point relied upon by an accused as a defence. So, for example, in the plurality judgment in this Court in Jiminez v The Queen [fn 10 [1992] HCA 14; (1992) 173 CLR 572 at 581-582], honest and reasonable mistake was referred to as an "excuse" and a "defence". By reference to a leading decision of this Court on the subject, it is sometimes called "the Proudman v Dayman defence". Such descriptions have their dangers, but the shorthand may be convenient provided it is understood for what it is.
…
[8]…In the case of an offence, or a series of offences, defined by statute, it means that, if the belief were true, the conduct of the accused would be "outside the operation of the enactment".
Given the difference of judicial opinion in the District Court, the issue must now ultimately be decided by the Supreme Court and, if necessary, the appellate courts. Unfortunately, there is not a Stated Case statutory provision which can be utilised by the Local Court to have the question asked of, and answered by, the Supreme Court.
This Court is not bound to apply any of the conflicting decisions of the District Court or the Local Court. In Valentine v Eid (1992) 27 NSWLR 615 at 622 Grove J concluded after reviewing the authorities on the subject:
"…the doctrine of stare decisis does not apply as between two inferior courts, the District Court and the Local Court, even though the former stands higher in curial gradation".
Therefore, the preliminary question to be determined is whether the common law ground of exculpation of honest and reasonable mistake of fact is available for an offence under s 111 of the Road Transport Act 2013. After careful consideration of the authorities, this Court will proceed on the basis that the ground of exculpation is available to the defendant. The decision of Narouz v R [2023] NSWDC 293 will not be followed. The rationale for doing so is based on the following six reasons.
Firstly, there is a common law presumption that a ground of exculpation of an honest and reasonable mistake of fact is available where a new offence is added to the general criminal law (emphasis added). Dixon CJ said in Proudman v Dayman (1941) 67 CLR 536 at 537:
"…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".
In the decision of CTM v The Queen (2008) 236 CLR 440 [2008] HCA 25 Gleeson CJ, Gummow, Crennan and Kiefel JJ in a joint judgment at [5] referred to the common law ground of exculpation of honest and reasonable mistake of fact as a "…a basic legal principle of criminal responsibility which informs our understanding, and interpretation, of the criminal law." (emphasis added). The Joint Justices said at [35]:
"The courts should expect that, if Parliament intends to abrogate that principle, it will make its intention plain by express language or necessary implication."
In the case of the offence provision under s 111 Road Transport Act 2013, Parliament have not made its intention plain by "express language" or "necessary implication" that the principle is abrogated. Nor are there other any statutory references in the Road Transport Act or extrinsic material of the kind referred to in s 34 Interpretation Act 1987 (NSW) that suggests that the ground of exculpation is not available.
Secondly, the offence was created by the Road Transport Legislation Amendment (Drug Testing) Act 2006 (NSW) which amended what was then the Road Transport (Safety and Traffic Management) Act 1999 (NSW). In the second reading speech in the NSW Legislative Assembly Hansard and Papers on Tuesday 19 September 2006 the Hon Matt Brown introduced the Bill stating that the object of the amendment was:
"…to ensure that motorists who take drugs and drive can be detected and penalised just as those who drink-drive". (emphasis added)
The law was directed to people who voluntarily and intentionally take illicit drugs and then decide to drive a motor vehicle. If the ground of exculpation was not available, an accused could not raise the issue of whether the drug was voluntarily or intentionally ingested as was done in R v Delbridge [2019] NSWDC 450 and Chandiran v R [2022] NSWDC 576. The defendant in Narouz v R [2023] NSWDC 293 was prevented from raising the issue. Similarly, an accused could not raise issues concerning whether it was reasonable to drive after the ingestion of a drug with the effluxion of time. For example, in NSW Police v Carrall [2016] NSWLC 4 where the accused submitted it was reasonable to drive 9 days after smoking cannabis.
Thirdly, Dixon CJ said that in determining whether the ground of exculpation is not available the court is to look at the "words, context, subject matter, or general nature of the enactment". I will return to the issue of the "words" in the offence provision relied in Narouz v R [2023] NSWDC 293 used to abrogate the common law principle. The subject matter is a driving offence. There are many instances where it has been held that the ground of exculpation is available for offences under road transport legislation.
In Proudman v Dayman (1941) 67 CLR 536, although there was "no support in the circumstances of the case" (at 537) for the ground of exculpation, the Court held that it was available for an offence of permitting a person, not being the holder of a licence for the time being in force, to drive a motor vehicle on a road under s 30 of the Road Traffic Act 1934-1939 (SA). Similarly in RTA of NSW v Jara Transport Pty Limited [2005] NSWSC 1021 it was held to be available for the offences of failure to give driver's details under s 21 Road Transport (General) Act 1999 (NSW) and failure to produce driving records under clause 63 Road Transport (Safety and Traffic Management) (Driver Fatigue) Regulation 1999 (NSW).
It has been held to be available for other driving offences currently found in the Road Transport Act 2013 including high range p.c.a: DPP v Bone [2005] NSWSC 1239; low range p.c.a: Appeal of Francesco Mendolicchiu [2008] NSWDC 182; drive whilst disqualified: El Hassan v NSW DPP [2000] NSWCA 330, DPP v Kailahi [2008] NSWSC 75; and negligent driving: Prineas v R (2018) 86 MVR 148; [2018] NSWCCA 221; Parker v R [2023] NSWCCA 234. The detailed discussion of Adams J in DPP v Bone [2005] NSWSC 1239 also records other instances where it was held to be available for driving offences in Australia and in other jurisdictions.
Fourthly, to exclude the ground of exculpation for an offence under s 111 Road Transport Act 2013 it would create a significant inconsistency between the offence provisions in the Act such as drink driving offences. In the Second Reading Speech it was made clear that drivers who infringed s 111 were considered as equivalent to drivers who drink and drive. The purpose of the offence was to ensure that drivers who infringed s 111 would be "penalised just as those who drink-drive". It would also create an inconsistency between the offence and the Road Rules 2014 (NSW). The Road Rules are subordinate legislation made under the Road Transport Act 2013. The Road Rules declare that, in the absence of express language, all offences under the Road Rules are strict liability offences. Rule 10-1(2) is headed Offences are strict liability offences and provides:
10-1 NSW rule: determination of criminal responsibility
(2) An offence against these Rules is a strict liability offence for the purposes of Chapter 2 of the Commonwealth Criminal Code (as applied by subrule (1)), except where these Rules expressly provide otherwise.
Fifthly, turning to the subject matter, the specific offence provision is a driving offence with a maximum penalty of a fine and disqualification. The fact that the offence does not carry imprisonment is not decisive. A conviction for the offence does have penal consequences. The loss of a driver's licence is a significant matter and this was acknowledged by the Court of Criminal Appeal in the high range p.c.a. guideline judgment of Application by Attorney General under s 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No. 3 of 2002) [2004] NSWCCA 303 where Howie J said at [116]:
"…Licence disqualification is such a significant matter and can have such a devastating effect upon a person's ability to derive income and to function appropriately within the community that it is a matter which, in my view, must be taken into account by a court when determining what the consequences should be, both penal and otherwise, for a particular offence committed by a particular offender".
When Gleeson CJ, Gummow, Crennan and Kiefel JJ in CTM v The Queen (2008) 236 CLR 440 at [7] referred to "an offence created by Parliament [which] carries serious penal consequences" (emphasis added), it was not an attempt to change the law. The observation of Dixon CJ in Proudman v Dayman that the statutory presumption "probably" applies to summary offences was not disapproved or even questioned by the court in CTM v The Queen. In fact, the joint Justices at [6] described Proudman v Dayman as "a leading decision of this Court." The statement in CTM v The Queen at [7] was made in the context of the court considering an offence provision which did carry serious penal consequences. It was a charge of sexual intercourse with a child under 16 years following the repeal of a limited defence in s 77(2) Crimes Act 1900 (NSW).
Finally, with unfeigned respect to His Honour Buscombe DCJ, the text of the offence provision in s 111(2) Road Transport Act 2013, in my view, does not evince - in the words of the High Court in CTM at [35] - a plain intention by express language or necessary implication to abrogate the principle. It is true the offence provision is tightly framed and borders on a deeming provision. However, the mere use of the word "present", in my view, falls short of what the High Court held that the courts should expect from the Parliament to abrogate the common law presumption.
The court will proceed on the basis that the offence is one of strict liability and the ground of exculpation is available. A person is not criminally liable for an act or omission if he or she holds an honest and reasonable belief in a state of facts, which, if true, would make the act or omission innocent. The word "innocent" in this context means not guilty of a criminal offence. The Court unanimously held in CTM v The Queen (2008) 236 CLR 440 that the evidential burden of establishing an honest and reasonable mistake of fact falls on the accused. If the accused satisfies the evidential burden, the prosecution must then negative it to the criminal standard of proof of beyond reasonable doubt. See Gleeson CJ, Gummow, Crennan and Kiefel JJ at [8], [35]; Kirby J at [78]- [79]; Hayne J at [135], [147], [189]. The joint Justices in CTM v The Queen at [7] held that there were limits to the application of the principle:
"Honest and reasonable mistakes of fact do not cover the whole field of risk of criminal liability to which a person may be exposed by making an error. Mistakes of law are not a ground of exculpation: ignorance of the law is no excuse [See, for example, Ostrowski v Palmer (2004) 218 CLR 493; [2004] HCA 30]."
[2]
The Instant Case
The issue is whether the defendant had an honest and reasonable belief that when he drove, he did not have an illicit drug present in his oral fluid. It is not in dispute that police pulled the defendant over on 2 December 2022. He was driving a Toyota. Constable Nicole Fowke administered a roadside drug test which returned a positive reading. The defendant was conveyed to Kogarah Police Station.
There was a conversation between the defendant and Constable Nicole Fowke at the station. It is set out in the statement of the officer admitted without objection as Exhibit 1. The officer told the defendant that the oral fluid test indicated he had a prescribed illicit drug in his system. She asked him when and where did he last consume a drug. The defendant replied: "2 days ago". The officer asked the defendant how the drug was administered. The defendant replied: "shared a joint". The officer asked the defendant how frequently he consumed or administered the drug. The defendant replied, "once a fortnight". The secondary test also returned a positive result. The defendant was then given a notice of prohibition from driving a motor vehicle for a period of 24 hours.
The defendant gave evidence in the proceedings. He said he was shocked by the result of the drug test. He said that he didn't feel "high" or under the influence. During examination in chief, he said that he consumed the drug the Tuesday before he was pulled over. Later in his evidence he said he had it 12:00 on the Wednesday prior to being pulled over. His evidence was he had "a joint" and that he took "5-6 puffs". He testified that he believed that he could drive because it was 48 hours later, and he didn't feel affected by the drug. The defendant also testified that on a previous occasion an unnamed police officer told him it would be safe to drive 24 to 48 hours after consuming cannabis. The prosecution objected to that evidence on the basis that it was hearsay. The officer was not called in the defendant's case as a witness.
Under cross examination the defendant was asked what information he relied upon which suggested he could drive after 48 hours. He said he looked at Google. He accepted under cross examination that research suggests that cannabis can affect people differently. He denied he consumed cannabis just before he drove.
For the purposes of finding facts, I accept the evidence that the defendant ingested the drug 2 days prior to being pulled over by police. He had 5-6 puffs of what he described as a "joint" and that he smokes cannabis each fortnight. The prosecution submitted that even if his belief that he could drive was honestly held, it was not a reasonable one in the circumstances.
In determining whether the defendant has met his evidentiary standard of proof the court first decides whether the belief was one honestly held and secondly, whether the mistake of fact was a reasonable one in the circumstances.
I find that the defendant's belief was honestly held based on the evidence that he gave in court. In determining whether it was a reasonably held belief the court can take into account the sources of the information/belief and any other matters that the defendant relied upon. He said he Googled for information about the subject. However, he did not refer to any literature or other medical information concerning how long THC remains in a person's system after smoking cannabis. He also relied upon a conversation with a police officer who told him that he could drive within 24 to 48 hours after consuming cannabis. Given the nature of that evidence was hearsay it had very little weight. The other matter he relied upon was the fact he was given a 24-hour suspension notice by police. Again, that evidence has very limited weight because it was issued after the offence. It had little bearing on his state of mind at the time he was driving.
I find that the defendant has failed to meet the evidentiary standard of proof on the basis that although his belief may have been honestly held, it was not a reasonable mistake of fact. The steps he took to ascertain whether he could drive were insufficient. It was not reasonable for him to be mistaken that he could drive 2 days after consuming cannabis. If he Googled the issue, he must not have comprehended or read the literature on the subject. It is widely known that THC stays in a person's system longer than other drugs. His erroneous belief that THC would no longer be in his system is no different to a drink driver who holds an erroneous belief that they can drive despite what is later found to be an excessive prescribed concentration of alcohol reading.
This case was strictly decided on the question of whether the conduct of driving by the defendant in the circumstances was "…outside the operation of the enactment" (CTM at [7]) of s 111 Road Transport Act 2013. However, the ground of exculpation relied upon by the defendant involved asking the court to accept a series of events that included illegally possessing cannabis, smoking a "joint" and then choosing to drive a motor vehicle. Edelman and Gleeson JJ in Bell v Tasmania (2021) 96 ALJR 22; [2021] HCA 42 referred to a "qualification upon the common law excuse" at [53].
"…The sole issue on this appeal concerns the qualification upon the common law excuse that the facts as honestly and reasonably believed must make the act of an accused person an "innocent act". The authorities have taken four different approaches. Must the person's act, on the facts as honestly and reasonably believed by them, make the person: (i) innocent of any offence, civil wrongdoing or immoral conduct? (ii) innocent of any offence or civil wrongdoing? (iii) innocent of any offence? (iv) innocent of the particular offence charged?".
I note the narrowness of the expression "the act of an accused person an "innocent act"". The act of the appellant in Bell v Tasmania of injecting a 15-year-old female with methylamphetamine and supplying a controlled drug was an illegal act. It did not matter whether the appellant believed that the recipient was an adult because he had committed the offence of supply simpliciter as opposed to a more serious offence involving a child.
Given the findings in this case, the Court does not have to decide whether the word "innocent" has any broader application. More particularly, whether the qualification referred to Bell v Tasmania extends to a series of events like the case before the court. It may be an issue for resolution in the higher courts because the ground of exculpation is often relied upon in the Local Court for prescribed illicit drugs taken in a recreational context.
It is not in dispute that the defendant was driving whilst an illicit drug was present in his oral fluid. Given that he has failed to meet his evidentiary standard of proof of an honest and reasonable mistake of fact, all the ingredients of the charge have been established by the prosecution beyond reasonable doubt. I find him guilty of the charge under s 111 Road Transport Act 2013.
Note: Since the delivery of this judgment on 26 October 2023, the Court of Criminal Appeal has handed down the decision in R v Narouz [2024] NSWCCA 14 on 19 February 2024, in which it was held that the offence of 'Drive Motor Vehicle with Illicit Drug Present in Blood or Oral Sample', contrary to s.111(1) of the Road Transport Act 2013 (NSW), is an offence of absolute liability.
[3]
Amendments
21 June 2024 - Added in a notation at the end of the judgment in light of the recent CCA decision of R v Narouz [2024] NSWCCA 14.
08 July 2024 - Amended formatting.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 13 August 2024
Parties
Applicant/Plaintiff:
R
Respondent/Defendant:
Salim
Legislation Cited (9)
Road Transport Legislation Amendment (Drug Testing) Act 2006(NSW)
(Rep.) Road Transport (Safety and Traffic Management) (Driver Fatigue) Regulation 1999(NSW)
Road Transport (Safety and Traffic Management) Act 1999(NSW)
Road Transport (General) Act 1999(NSW)
Road Transport (Safety and Traffic Management) (Driver Fatigue) Regulation 1999(NSW)