By Paul Gregoire and Ugur Nedim
A man was driving along Cowpasture Road in southwest Sydney’s Horningsea Park, close to midnight on 12 September 2020, when the manner of his driving caught the attention of some NSW police officers, who promptly directed him to pull his utility over.
The officers subjected the driver to a random breath test (RBT) for alcohol, which produced a negative result, and they then conducted an oral fluid test for drugs, which turned up a positive reading for cocaine. And as per protocol, a second required roadside test applied produced the same outcome.
The driver was then taken to Green Valley Police Station, where he was made to take another saliva test using a Drager Drug Test 5000 Device, which turned up a negative result for any of the four drugs police regularly test drivers in regard to, which includes cocaine.
The driver considered that this final test would result in officers dropping any drug driving charge. However, the remaining saliva sample was sent off for further testing, and a court attendance notice (CAN) was issued in October 2020.
Questions around his use of cocaine established that the man was in the habit of taking the drug. And footage from within the police vehicle has the subject denying he had been using cocaine recently but had used it the year prior. He added that he didn’t take any drugs except Valium.
The driver also explained that he’d been driving for seven hours in the utility, which was a mate’s vehicle, and 45 minutes before being pulled over, he’d taken a Valium, as he’s prescribed to, and took “a quick sip” of a bottle of sports drink he found on the floor of the vehicle to wash it down.
The charge before the Local Court
On 3 March 2023, the man appeared in Liverpool Local Court in relation to one count of drug driving, contrary to section 111 of the Roads Transport Act 2013 (NSW) (RTA), which is a law that criminalises driving with any presence of cannabis, amphetamine, MDMA or cocaine in one’s system.
Drink driving vs drug driving
The difference between New South Wales drink driving offences and those relating to drug driving is that RBT tests for levels of alcohol in a driver’s system, which reveals whether they’re intoxicated, whilst roadside drug testing picks up any trace of an illicit substance, with no indication of impairment.
Penalties for drug driving
A person who is allegedly detected for drug driving and has no conviction for a major traffic offence within the past 5 years (known as a ‘fist offender’) can receive an on-the-spot driver licence disqualification of 3 months as well as a fine.
However, if police choose to send the driver to court or the driver chooses to challenge the penalty in court and pleads guilty or is found guilty, they can receive a 6 month disqualification which can be reduced by the magistrate to as low as 3 months, as well as a fine of $2,200.
If it is a driver’s second or subsequent major traffic offence in 5 years, the matter must be sent to court where a 12 month driver licence disqualification applies, which the court can reduce to 6 months or increase without limit. There is also a maximum fine of $3,300.
In these cases, the magistrate also has discretion to deal with the case without proceeding to a conviction. If a ‘non conviction order’ is made – such as a section 10(1)(a) dismissal or conditional release order without conviction – there will be no driver licence disqualification and no fine.
Defence of honest and reasonable mistake
The driver pleaded not guilty to the charge brought against him and took the matter to a defended hearing, where he relied on the defence of honest and reasonable mistake to the court.
His argument was essentially that he believed there was no cocaine in his system, and that his belief was reasonable in the circumstances.
To support that argument, defence tendered expert evidence the drug could be present in his system as a result of taking a sip of a contaminated drink hours earlier.
Magistrate rejects the defence
However, Magistrate Julie Zaki rejected the defence, as she found it implausible that a driver having taken a sip of a contaminated drink hours earlier would still produce a cocaine reading high enough to trigger a testing device.
Her Honour therefore found the man guilty as charged.
District Court appeal
The defendant then appealed his conviction to the NSW District Court last month.
In his final findings, Judge Mark Buscombe posited that the case boiled down to whether the offence of drug driving is one of strict liability or one of absolute liability.
Strict liability vs absolute liability
An offence of strict liability is a crime whereby the prosecution does not need to prove a mental fault element – such as intention, knowledge, recklessness or negligence.
The legal defence of honest and reasonable mistake is available in these cases, and has been applied in relation to drug driving charges for many years.
In terms absolute liability offences, not only does the prosecution not have to establish a mental fault element, but no legal defences based on mental elements are available.
On raising the issue of strict versus absolute liability, Judge Buscombe found that the man’s defence lawyers and the Crown both considered this crime to be one of strict liability.
But the District Court Judge didn’t agree as , on his reading, subsection 111(1) of the RTA makes it illegal to drive with the presence of any of the aforementioned four illicit substances in a person’s system.
Subsection 111(2)(a) provides that a CAN may contain more than one drug and that such a charge can’t be dismissed on grounds of uncertainty, while subsection 111(2)(b) provides that a crime is proven if the court’s satisfied beyond reasonable doubt that one or more drugs were present.
Judge Buscombe explained that contrary to earlier rulings finding the non-dismissal clause in subsection 111(2) only applies to cases where the presence of more than one drug is involved, he considers it to also apply with one drug involved, which he found is supported by the provisions of subsection 111(2)(b).
“That is a clear statement by the parliament that the only matter that needs to be proved beyond reasonable doubt by the prosecution to prove the offence is the presence of a drug,” his Honour said and added that the prosecution does not have to refute a defence of honest mistake.
“I am of the opinion that the offence under section 111(1) of the RTA is one of absolute liability and that it was not necessary for the prosecution to negative beyond reasonable doubt the issue of honest and reasonable mistake raised,” his Honour made clear.
Confined by statute
Judge Buscombe reiterated that he considers the section 111 drug driving offence is one of absolute liability, as the wording within it clearly stipulates that cases involving one substance, as well as those that involve more than one, are exempt from any honest and reasonable mistake defence.
And he noted that his ruling is in direct contrast to the ruling former NSW Magistrate David Heilpern delivered in the landmark 2016 case NSW Police versus Carrall, in which it was found that the defendant was not guilty of drug driving, due to a successful reasonable mistake defence.
His Honour then set out in his 26 July findings that the appeal against conviction must be dismissed because it was not open for the defendant to raise the point that he’d made an honest mistake as NSW drug driving laws don’t permit any leeway in this regard.
But the NSW District Court judge added that he did find issue with Magistrate Zaki’s reliance upon the evidence of forensic pharmacologist Allan Lin to rule that the sports drink scenario was implausible.
His Honour explained that Lin had relied on estimates regarding the sports drink and not concrete evidence, while on cross-examination, he’d also explained that he could not exclude the possibility that there was a discarded and spiked sports drink that did lead to a positive result.
“I would have upheld the appeal if I had been of the view that it was open to raise an honest and reasonable mistake of fact as to the presence of the illicit drug cocaine,” Judge Buscombe said. “I would not have found that the prosecution had negatived that belief beyond reasonable doubt.”
“However, for the reasons I have given it was not open to the appellant to raise an honest and reasonable mistake of fact as to the presence of the illicit drug cocaine in his oral fluid,” his Honour concluded.
Supreme Court appeal?
His Honour’s interpretation of the law flies in the face of many years of courts categorising drug driving as a strict liability offence, and many in the legal profession are hopeful the curious interpretation of the judge in this case will be appealed to the Supreme Court for determination and clarification.
