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District Court 22 November 2022

Chandiran v R

[2022] NSWDC 576

Traffic & driving
CRIME CRIMINAL LIABILITY ABSOLUTE LIABILITY STRICT LIABILITY TRAFFIC LAW AND TRANSPORT TRAFFIC LAW

Citation: Chandiran v R [2022] NSWDC 576
Court: District Court of NSW
Date: 22 November 2022
Judge(s): Scotting DCJ

Background

The appellant was stopped for a random breath test in March 2021. A roadside oral fluid test returned a positive detection for cocaine, and a sample sent to the NSW Forensic and Analytical Science Service was confirmed to contain cocaine, although a secondary screening test at the police station had returned a negative result.

The appellant consistently denied ever using cocaine or any illicit drug. The magistrate in the Local Court made positive findings about the appellant's credibility and sincerity, but nonetheless convicted him, treating the certificate evidence as sufficient to establish the offence.

The appellant, represented by counsel on appeal, challenged his conviction in the District Court. The central question was whether the defence of honest and reasonable mistake of fact was available to him.

Legal Issues

  • Whether the offence of driving with a prescribed illicit drug present in oral fluid under s 111(1)(a) of the Road Transport Act 2013 is a strict liability offence (to which the defence of honest and reasonable mistake of fact is available) or an absolute liability offence (to which no such defence applies)
  • Whether, if the offence is one of strict liability, the defence applied on the facts as found by the magistrate

Decision

Issue 1: Nature of the offence

Scotting DCJ held that the s 111(1)(a) offence is a strict liability offence, and that the defence of honest and reasonable mistake of fact is available to a defendant (at [18]). His Honour drew heavily on Director of Public Prosecutions v Bone (2005) 64 NSWLR 735, in which Adams J reached the same conclusion in respect of the analogous mid-range drink driving offence under the predecessor legislation. Although Bone was not binding, his Honour found it highly persuasive and applicable (at [12]).

Several factors supported that conclusion. The language of s 111 closely mirrors that of s 110, which Bone had addressed, with no express words distinguishing the two as to the nature of liability (at [13]). The s 111(1) offence carries significant consequences including potential public disgrace, fines, and mandatory licence disqualification, comparable to the considerations identified in Bone (at [14]). Furthermore, a person can be exposed to illicit drugs inadvertently, making it possible to have traces of a substance in oral fluid through no deliberate act, as illustrated by Beattie v Potts [2015] ACTSC 350 (at [15]). The Crown did not point to any persuasive authority treating a comparable driving offence as one of absolute liability (at [17]).

Issue 2: Application of the defence on the facts

His Honour found that the magistrate had erred in reasoning that the certificate evidence left him no alternative but to convict despite accepting the appellant's account (at [20]). The appellant's evidence that he had never used cocaine, which the magistrate accepted, raised a reasonable possibility that the cocaine was present through a process other than intentional ingestion (at [23]).

The prosecution had not established that the appellant's evidence was false, nor proved any other inculpatory means of exposure to cocaine (at [24]). In those circumstances, a reasonable doubt as to guilt clearly existed and the appellant was entitled to be acquitted.

Orders Made

  • Appeal allowed
  • The conviction and the penalty imposed by the magistrate are set aside

Key Takeaways

  • The District Court held that the offence of driving with a prescribed illicit drug in oral fluid under s 111(1)(a) of the Road Transport Act 2013 is a strict liability offence, and that the common law defence of honest and reasonable mistake of fact (established in Proudman v Dayman) is available to a defendant charged under that provision (at [18]).
  • Following DPP v Bone, the court identified the similarity in statutory language between the drink driving and drug driving offence provisions, the severity of the consequences of conviction, and the possibility of inadvertent drug exposure as factors pointing against absolute liability (at [13]-[15]).
  • Where a magistrate accepts a defendant's evidence denying intentional drug use, but nonetheless convicts on the basis of certificate evidence alone, that reasoning discloses error: the prosecution bears the obligation to negative the reasonable possibility raised by the accepted evidence (at [20], [23]-[24]).
  • A defendant who raises, even informally, a credible denial of intentional drug use shifts the forensic burden to the prosecution to exclude that possibility; the mere existence of a positive forensic certificate does not automatically satisfy that burden once a reasonable alternative has been raised (at [23]-[24]).
  • Beattie v Potts [2015] ACTSC 350 was noted as authority for the proposition that inadvertent exposure, such as passive proximity to a drug being smoked, can result in detectable traces in oral fluid, reinforcing the policy rationale for treating the offence as strict rather than absolute liability (at [15]).

Legislation and Cases Referenced

Legislation
- Road Transport Act 2013
- Road Transport ( Safety and Traffic Management) Act 1999

Cases
- Beattie v Potts [2015] ACTSC 350
- Director of Public Prosecution v Bone (2005) 64 NSWLR 735
- He Kaw The v The Queen (1985) 157 CLR 523
- Proudman v Dayman (1941) 67 CLR 536