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Supreme Court 2 December 2005

DPP v BONE

[2005] NSWSC 1239

Also reported as 158 A Crim R 215
Traffic & driving
HIGH RANGE PCA WHETHER ABSOLUTE OFFENCE NATURE OF BELIEF

Citation: DPP v Bone [2005] NSWSC 1239
Court: Supreme Court of New South Wales (Common Law Division)
Date: 2 December 2005
Judge(s): Adams J

Background

The respondent, Mr Bone, was charged with driving with a middle range prescribed concentration of alcohol (PCA) after a random breath test returned a reading of 0.095 grams per 100 millilitres of blood. He pleaded not guilty in the Local Court, arguing that his drinks had been spiked with vodka without his knowledge by a friend who was celebrating a win on poker machines. Mr Bone believed at the time he was driving that he had consumed only beer and was within the legal limit.

The Local Court Magistrate acquitted Mr Bone. The Director of Public Prosecutions then appealed to the Supreme Court on a pure question of law, contending that the Magistrate had erred in permitting the defence of honest and reasonable mistake of fact to apply to a PCA offence.

  • Whether a high range (or middle range) PCA offence under the Road Transport (Safety and Traffic Management) Act 1999 is an absolute offence, or whether a defendant can rely on the defence of honest and reasonable mistake of fact
  • Whether the prosecution is required to disprove an honest and reasonable mistake of fact to secure a conviction for a PCA offence
  • Whether the possibility that Mr Bone may have been guilty of a lower range PCA offence, even absent the spiking, defeated his reliance on the honest and reasonable mistake defence

Decision

Adams J dismissed the appeal. His Honour confirmed that a PCA offence is not an absolute offence and that the defence of honest and reasonable mistake of fact, as recognised in Proudman v Dayman (1941) 67 CLR 536, is available to a defendant charged with such an offence. The prosecution therefore bears the burden of disproving the defence beyond reasonable doubt once it is raised on the evidence.

The prosecution argued that Mr Bone could not rely on the defence because, even without the spiked drinks, he may still have had a low range PCA in his blood. This argument draws on a principle that a mistaken belief cannot be "honest and reasonable" if the true facts, as the defendant believed them to be, would still constitute a criminal offence. Adams J rejected this argument on the facts. There was simply no evidence to establish that, absent the vodka, Mr Bone's blood alcohol level would have reached even the low range PCA threshold. That conclusion would have required expert evidence, and none was led.

Adams J also rejected the prosecution's contention that statements made by defence counsel in the Local Court about a possible guilty plea to low range PCA amounted to an admission that Mr Bone's blood did contain the lower range concentration. On the judge's reading of the transcript, no such concession had been made.

Finally, the Court noted that the arguments advanced on appeal had not been put to the Magistrate below. Had the DPP succeeded on the legal question, this circumstance would have been relevant to the exercise of discretion about what orders to make under s 59(2) of the Crimes (Local Courts Appeal and Review) Act 2001.

Orders Made

  • Appeal dismissed with costs.

Key Takeaways

  • A PCA offence under the Road Transport (Safety and Traffic Management) Act 1999 is not an absolute offence; the defence of honest and reasonable mistake of fact remains available to defendants charged with such an offence.
  • Where a defendant raises the defence, the prosecution must disprove the honest and reasonable mistake beyond reasonable doubt.
  • The principle that a mistaken belief cannot found a defence where the true facts as believed would still constitute an offence only operates if those alternative facts are actually established by evidence. A mere possibility that a lesser offence may have been committed is insufficient.
  • No factual concession arises from defence counsel's indication in the Local Court that a client might plead guilty to a lesser charge if that charge were substituted; such a statement cannot be used as evidence against the defendant.
  • In dismissing the appeal, the Supreme Court signalled that arguments not advanced before the trial court are also relevant to the exercise of the court's discretion about appropriate orders on appeal, even where the appeal might otherwise succeed.

Legislation and Cases Referenced

Legislation:
- Road Transport (Safety and Traffic Management) Act 1999 (NSW), s 9(3)(a)
- Crimes (Local Courts Appeal and Review) Act 2001 (NSW), ss 56, 59(2)
- Criminal Appeal Act 1912 (NSW)
- Road Transport (General) Act 1999 (NSW)
- Road Transport (Driver Licensing) Act 1998 (NSW)

Key Cases:
- Proudman v Dayman (1941) 67 CLR 536 (honest and reasonable mistake of fact)
- Bergin v Stack (1953) 88 CLR 248
- R v He Kaw Teh (1985) 157 CLR 523
- Cameron v Holt (1980) 142 CLR 342
- Sweet v Parsley [1970] AC 132
- Lim Chin Aik v The Queen [1963] AC 160
- Bank of NSW v Piper [1897] AC 383
- Griffin v Marsh (1994) 34 NSWLR 104
- R v Wampfler (1987) 11 NSWLR 541
- Von Lieven v Stewart (1990) 21 NSWLR 52
- R v Dibb [2002] NSWSC 934