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District Court 27 August 2008

Appeal of Francesco Mendolicchiu

[2008] NSWDC 182

Traffic & driving
CRIMINAL LAW ROAD TRAFFIC DRIVING WITH PCA EVIDENCE BURDEN OF PROOF EVIDENTIARY BURDEN

Citation: Appeal of Francesco Mendolicchiu [2008] NSWDC 182
Court: District Court of New South Wales
Date: 27 August 2008
Judge(s): Goldring DCJ

Background

The appellant pleaded guilty in the Balmain Local Court to driving with a low-range prescribed concentration of alcohol (PCA) in his blood, returning a reading of 0.055. He was fined $900, ordered to pay costs, and disqualified from driving for 12 months. He had a recent prior conviction for the same offence and had completed a Traffic Offender Intervention Program.

The appellant sought leave to appeal to the District Court on a significant point of law. His case rested on the fact that, before driving, he had taken a cough mixture containing ethanol without knowing it contained alcohol. He maintained that the wine he consumed at dinner alone would not have pushed his blood alcohol over the limit, and that the cough medicine contributed to the reading in a way he did not anticipate.

The central dispute was whether, in those circumstances, the defence of honest and reasonable mistake of fact was available to a low-range PCA charge, and if so, whether the appellant had done enough to raise it.

  • Whether the defence of honest and reasonable mistake of fact is available to a charge of driving with a low-range PCA under the Road Transport (Safety and Traffic Management) Act 1999, s 9
  • Whether the appellant had discharged the evidentiary burden necessary to raise that defence
  • Whether, if the offence were technically made out, the matter should be dealt with under s 10 of the Crimes (Sentencing Procedure) Act 1999 (a provision allowing a court to dismiss charges without recording a conviction in appropriate circumstances)

Decision

Availability of the defence: Goldring DCJ found, albeit reluctantly, that the defence of honest and reasonable mistake of fact is available to a low-range PCA charge. Although the legislation appears on its face to create a strict liability offence, the law leans against strict liability without clear and express statutory language. The High Court's decision in CTM v The Queen [2008] HCA 25 reaffirmed the general common law principle that an honest and reasonable belief in a state of facts which, if true, would exonerate the accused, operates as a defence. The prosecution's argument that the existence of a specific statutory defence for novice-range offenders (s 11A) impliedly excluded any such defence for low-range offences was rejected, consistent with the majority reasoning in CTM. The decision in DPP v Bone [2005] NSWSC 1239, which was binding on the District Court, had already recognised the availability of this defence in the same statutory context.

The evidentiary burden: The appellant's unchallenged affidavit stated that he consumed a cough mixture containing alcohol without knowing it did so, and that the wine alone would not have produced a reading above the limit. The prosecution did not challenge this evidence or seek to cross-examine the appellant. Goldring DCJ held that once an accused raises facts which, if accepted, would support an honest and reasonable belief that he was not over the limit, the evidentiary burden shifts to the prosecution to disprove that defence beyond reasonable doubt. Because the prosecution neither challenged the affidavit nor adjourned to lead rebuttal evidence after leave was granted, it had not discharged that burden.

Section 10: The court observed that even had it found against the appellant on the law, this would have been an appropriate case for dismissal under s 10 of the Crimes (Sentencing Procedure) Act 1999. The circumstances differed markedly from the typical low-range PCA case, given the unexplained contribution of the cough medicine.

Orders Made

  • Appeal allowed
  • Conviction quashed
  • Leave granted to the appellant to withdraw his plea of guilty

Key Takeaways

  • The District Court held that the defence of honest and reasonable mistake of fact is available to a charge of low-range PCA under the Road Transport (Safety and Traffic Management) Act 1999, s 9, despite the provision appearing to impose strict liability on its face.
  • Under the general common law principle affirmed in CTM v The Queen [2008] HCA 25, an accused who establishes an honest and reasonable belief in facts that would render them not guilty carries only the burden of proof on the balance of probabilities; the threshold to raise the defence (the evidentiary burden) is lower.
  • Once an accused adduces evidence capable of supporting the defence, the evidentiary burden shifts to the prosecution to negative that defence beyond reasonable doubt.
  • The absence of a specific statutory defence in the relevant provision does not, without more, exclude the operation of the general common law defence of honest and reasonable mistake.
  • In dismissing the appeal, the court noted that even if the offence had been technically established, s 10 of the Crimes (Sentencing Procedure) Act 1999 would have been available where the ingestion of alcohol was partly unintentional and the circumstances were otherwise exceptional.

Legislation and Cases Referenced

Legislation:
- Road Transport (Safety and Traffic Management) Act 1999 (NSW), ss 9, 11A
- Crimes (Appeal and Review) Act 2001 (NSW), s 12
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10

Cases:
- CTM v The Queen [2008] HCA 25
- DPP v Bone [2005] NSWSC 1239
- Elliott v Crawford (Supreme Court of Tasmania, 30 November 1989, Underwood J)