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Local Court 1 February 2016

NSW Police v Carrall

[2016] NSWLC 4

DrugsTraffic & driving
CRIMINAL PROCEEDINGS POSITIVE TEST TO CANNABIS AVAILABILITY

Citation: NSW Police v Carrall [2016] NSWLC 4
Court: Local Court
Date: 1 February 2016
Judge(s): Heilpern LCM

Background

The defendant faced two charges of driving with an illicit drug (THC) present in his oral fluid, contrary to s 111 of the Road Transport Act 2013. The first charge arose from an apprehension in May 2015, to which the defendant pleaded guilty. The second arose from an apprehension in June 2015, to which he pleaded not guilty.

The defendant's defence to the June charge rested on an honest and reasonable mistake of fact. He said that when the apprehending officer stopped him in May, the officer told him he would have been fine to drive had he waited a week after smoking cannabis. Relying on that advice, the defendant smoked cannabis on a Sunday and then waited approximately nine days before driving. He believed the THC would no longer be detectable in his system by the date of the June offence.

The prosecution disputed both that the officer gave that advice and that the defence of honest and reasonable mistake of fact was available at all for this type of offence.

Legal Issues

  • Whether the defence of honest and reasonable mistake of fact is available for the offence of driving with an illicit drug present under s 111 of the Road Transport Act 2013, or whether that offence imposes absolute liability.
  • Whether the defendant's belief that THC was no longer present in his system was honestly and reasonably held.
  • Whether the defence is unavailable because the initiating act (consuming cannabis) was itself unlawful.
  • Whether the defendant's reliance on advice from a police officer as to detection windows was reasonable.

Decision

Issue 1: Is the offence one of strict or absolute liability?

Heilpern LCM held that the offence under s 111 is one of strict, not absolute, liability, and that the defence of honest and reasonable mistake of fact is therefore available (at [42]). The court drew on the established position for High Range PCA offences, confirmed in DPP v Bone [2005] NSWSC 1239, that the absence of words such as "knowingly" or "wilfully," and the absence of a custodial penalty, do not alone render an offence one of absolute liability (at [37]-[38]). The court also noted that parliament had not used clear unequivocal language to make the offence absolute in the decade since the legislation was enacted (at [27]).

The second reading speeches supported this conclusion. Ministers described the mischief as drugs that are "active" and "affect the skills" of drivers, consistent with a strict rather than absolute liability framework (at [33]-[35]).

Issue 2: Did the defendant honestly and reasonably hold the relevant belief?

The court accepted the defendant's evidence that the apprehending officer told him, during the May apprehension, that waiting a week would have been sufficient. The officer could not unequivocally deny making that statement (at [20]). The court was satisfied the defendant last smoked cannabis at least nine days before the June offence and genuinely believed THC would no longer be detectable (at [21]). The passive smoking episode was eliminated as a source of ingestion (at [23]).

The court found that reliance on the officer's advice was not unreasonable, noting the absence of accessible and reliable government information about how long THC remains detectable (at [67]-[68]).

Issue 3: Does prior unlawful conduct (cannabis use) preclude the defence?

The prosecution argued the defence was unavailable because the defendant's initial act of consuming cannabis was itself unlawful. The court rejected this argument (at [54]). Heilpern LCM reasoned that the defence relates to the act constituting the offence charged, namely driving with THC present, not to any prior criminal conduct (at [54]). The court also observed that the criminal law does not generally require "clean hands" from those who raise a defence (at [56]). Several hypotheticals were considered to illustrate that the legality of a prior act is not the relevant focus (at [57]-[63]).

Issue 4: Application to the facts

The prosecution failed to negate the defence. Given the nine-day gap since ingestion, the elimination of passive smoking as a source, and the police officer's own advice on detection windows, the court was satisfied the defendant's belief was both honest and reasonable (at [69]). The defendant was found not guilty of the June offence (at [70]).

Orders Made

  • The defendant is found not guilty in respect of the June 2015 offence.
  • The matter is to proceed to sentencing on the May 2015 offence on a date to be fixed.

Key Takeaways

  • The offence of driving with an illicit drug present under s 111 of the Road Transport Act 2013 is a strict liability offence, not an absolute liability offence. The defence of honest and reasonable mistake of fact is therefore available (at [42]).

  • A defendant raises the defence by adducing sufficient evidence of the honest and reasonable belief; the prosecution then bears the burden of disproving it (at [19]).

  • Prior unlawful conduct that led to the presence of the drug does not, of itself, preclude reliance on the defence. The relevant focus is on the defendant's belief at the time of driving, not on the legality of any earlier act (at [54]).

  • Where a defendant relies on a mistaken belief about a factual matter, namely whether a drug remains detectable in their system, that belief can be "reasonable" even where it originated in a prior unlawful act, provided the time elapsed is well beyond any period of likely effect or detectability (at [63]).

  • Reliance on advice from a police officer about detection windows may support a finding of reasonable belief, particularly where accessible government information on the topic is sparse or unhelpful (at [67]-[69]).

Legislation and Cases Referenced

Legislation
- Road Transport Act 2013, s 111

Cases
- Appeal of Francesco Mendilicchiu [2008] NSWDC 182
- Application by the Attorney General under Section 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
- Bergin v Stack [1953] HCA 53
- CTM v The Queen [2008] HCA 25
- DPP v Bone [2005] NSWSC 1239
- Giachin v Sandon [2013] ACTSC 77
- Ostrowski v Palmer (2004) 218 CLR 493
- Proudman v Dayman [1941] HCA 28
- R v Duong [2015] QCA 170
- RTA v O’Reilly & Ors [2009] NSWSC 134