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Local Court 26 October 2023

R v Salim

[2023] NSWLC 8

DrugsTraffic & driving
CRIMINAL LAW ROAD TRANSPORT ACT 2013, S 111 INSTANT CASE

Citation: R v Salim [2023] NSWLC 8
Court: Local Court of NSW
Date: 26 October 2023
Judge: Donnelly LCM

Background

The defendant was charged with driving a motor vehicle while a prescribed illicit drug (Delta-9-Tetrahydrocannabinol, a cannabinoid derived from cannabis) was present in his oral fluid, contrary to s 111 of the Road Transport Act 2013 (NSW). It was not disputed that he had recently smoked cannabis and that the drug was detected in his oral fluid at the time of driving.

The defendant sought to rely on the common law ground of exculpation of honest and reasonable mistake of fact. In broad terms, this principle allows an accused to avoid criminal liability where they genuinely and reasonably believed in a state of facts which, if true, would mean their conduct fell outside the scope of the offence. Importantly, this is not a "defence" in the technical sense: it does not require the accused to prove anything on the balance of probabilities. Rather, the accused bears only an evidentiary burden of raising the issue, after which the prosecution must disprove it beyond reasonable doubt.

The prosecution opposed the defendant relying on the ground at all, arguing the offence was one of absolute liability, meaning no such ground is available regardless of the circumstances.

  • Whether the offence under s 111 of the Road Transport Act 2013 is one of strict liability (where honest and reasonable mistake of fact is available as a ground of exculpation) or absolute liability (where it is not).
  • Whether, if the ground of exculpation is available, the defendant's belief was honest and reasonable on the facts.
  • Which of the conflicting District Court authorities the Local Court should follow.

Decision

The liability question: strict, not absolute

Donnelly LCM acknowledged a direct conflict in District Court authority. In Narouz v R [2023] NSWDC 293, Buscombe DCJ had held the offence was one of absolute liability, foreclosing the ground of exculpation entirely. Earlier decisions, including R v Delbridge [2019] NSWDC 450 and Chandiran v R [2022] NSWDC 576, had reached the opposite conclusion. The Local Court is not bound by District Court decisions, and the Magistrate elected to follow the line of authority treating the offence as one of strict liability.

Six reasons supported that conclusion. First, the common law presumes the ground of exculpation is available for any new offence unless Parliament removes it by express language or necessary implication, and Parliament had not done so here. Second, the legislation's second reading speech showed the law was directed at motorists who voluntarily and intentionally take drugs and then drive, suggesting Parliament did not intend to capture those who did not knowingly or reasonably ingest the substance. Third, courts have consistently held the ground available for a wide range of other driving offences under road transport legislation. Fourth, the specific language used in s 111 did not, on analysis, clearly displace the common law principle. Fifth, unlike prescribed concentration of alcohol offences, the drug testing scheme involves a different character of conduct. Sixth, extrinsic material offered no support for the absolute liability interpretation.

The defendant's specific claim

Having held the ground of exculpation was available in principle, the Magistrate turned to whether this defendant's belief was both honest and reasonable. The defendant's account was accepted as honestly held. However, having regard to all the circumstances, the court found the belief was not reasonable. The defendant therefore failed to meet the evidentiary standard required to raise the ground.

Result

Because the ground of exculpation was not established, the prosecution had proved all elements of the charge beyond reasonable doubt. The defendant was found guilty.

Orders Made

• The defendant is found guilty of the charge under s 111 Road Transport Act 2013

Key Takeaways

  • At the time of this Local Court decision, there was a genuine conflict among NSW District Court decisions on whether s 111 of the Road Transport Act 2013 creates an offence of strict or absolute liability. The Local Court was not bound by either line of authority.
  • The common law presumption, confirmed by the High Court in CTM v The Queen (2008) 236 CLR 440, is that honest and reasonable mistake of fact remains available as a ground of exculpation unless Parliament displaces it by express language or necessary implication.
  • A finding that a belief was honestly held does not automatically mean it was also reasonable: both elements must be established to engage the ground of exculpation.
  • Critically, this decision has been superseded. A note appended to the judgment records that the Court of Criminal Appeal, in R v Narouz [2024] NSWCCA 14 (handed down 19 February 2024), held that the s 111 offence is one of absolute liability. The ground of exculpation of honest and reasonable mistake of fact is therefore not available for this offence.
  • The distinction between a "defence" (which places a burden of proof on the accused) and a "ground of exculpation" (which imposes only an evidentiary burden) remains significant across a range of criminal liability questions.

Legislation and Cases Referenced

Legislation
- Road Transport Act 2013 (NSW), s 111
- Interpretation Act 1987 (NSW), s 34
- Road Transport Legislation Amendment (Drug Testing) Act 2006 (NSW) (rep.)
- Road Transport (General) Act 1999 (NSW) (rep.)
- Road Traffic Act 1934–1939 (SA)

Cases
- R v Narouz [2024] NSWCCA 14 (CCA decision superseding this judgment on the liability question)
- Narouz v R [2023] NSWDC 293
- Chandiran v R [2022] NSWDC 576
- R v Delbridge [2019] NSWDC 450
- Parker v R [2023] NSWCCA 234
- Prineas v R (2018) 86 MVR 148; [2018] NSWCCA 221
- CTM v The Queen (2008) 236 CLR 440; [2008] HCA 25
- DPP v Kailahi (2008) 191 A Crim R 145; [2008] NSWSC 752
- Appeal of Francesco Mendolicchiu [2008] NSWDC 182
- NSW Police v Carrall [2016] NSWLC 4
- DPP v Bone [2005] NSWSC 1239
- RTA of NSW v Jara Transport Pty Limited [2005] NSWSC 1021
- Ostrowski v Palmer (2004) 218 CLR 493; [2004] HCA 30
- El Hassan v NSW DPP [2000] NSWCA 330
- Proudman v Dayman (1941) 67 CLR 536
- Valentine v Eid (1992) 27 NSWLR 615
- Woolmington v Director of Public Prosecutions [1935] UKHL 1; [1935] AC 462