By Paul Gregoire and Ugur Nedim
Eight years ago last Thursday, in Lismore Local Court, then NSW Magistrate David Heilpern ruled in favour of Joseph Carrall in regard to a drug driving charge, as he found the accused hadn’t consumed cannabis for “at least nine days prior” to testing positive for driving with its presence in his system.
The case held much significance then, as it still does today, as it lays bare the injustice of the NSW drug driving regime. Yet, those unjust laws continue to apply.
Indeed, both the NSW Greens and Legalise Cannabis NSW are continuing to push for law reform on this specific matter.
Carrall appeared before the court on 21 and 28 January 2016, facing two counts of drug driving relating to separate incidents on 26 May 2015 and 23 June 2015. And he pleaded guilty to the initial offence but plead not guilty to the second, on the basis of an honest and reasonable mistake of fact.
In his findings, Magistrate Heilpern outlined that elements of the offence were not in issue, as Carrall was driving on a road with the presence of cannabis in his system. But the issue was that NSW drug driving laws don’t require proof that a driver is affected by the substance present in their system.
Indeed, Magistrate Heilpern made several such rulings during his time on the bench, which revealed that NSW drivers are constantly having their licences suspended over having tested positive for cannabis whilst not being impaired, in direct contravention of the law’s purpose.
NSW drug driving law
Carrall pleaded guilty to one count and not guilty to a second count of presence of certain drugs (other than alcohol) in oral fluid, blood or urine, contrary to section 111 of the Road Transport Act 2013 (NSW) (the Act).
Since May 2019, a first-time offence can result in a 3-month licence disqualification and an on-the-spot fine of $572. This means an offender avoids going to court.
However, if a first-time offender decides to challenge the matter in court, it can result in a fine of $2,200 and a 6-month licence disqualification period. This period of licence suspension can be dropped to 3 months, but it can’t be raised.
A second or subsequent offence carries a $3,300 fine with a 12-month disqualification time frame, which the court can drop to 6 months or increase without limit.
In NSW, four prescribed illicit drugs are tested for: THC, the psychoactive substance in cannabis, MDMA or ecstasy, amphetamines and cocaine.
The issue with this method is it tests for “presence”, meaning small traces of a drug can garner a positive reading even when a driver is not impaired.
However, the laws regarding random breath testing for alcohol, contained in section 112 of the Act, outlaw driving under the influence or while intoxicated by alcohol.
The RBT regime can identify different levels of alcohol in a driver’s system. And these laws are not triggered by minute traces of the substance.
Advice where it can’t be given
NSW police senior constable Chayne Foster was the officer who tested Carrall on both occasions that he was appearing in relation to.
On the second testing occasion, Foster quizzed the driver as to whether he’d consumed any illegal drug over the course of the last 48 hours, to which Carrall admitted to having smoked cannabis “over a week ago”.
And on testing positive, Carrall was then arrested and taken into the local police station for a second backup test, which returned another positive cannabis reading.
“I thought it would be alright,” the arrestee told the constable at the time, “it was over a week ago.”
In cross-examination, Magistrate Heilpern outlined, it was put to the senior constable, that when he arrested Carrall on the May occasion, that he, on being asked, told the driver that in order to avoid the detection of the drug testing devices used by police, he should wait about a week after smoking.
His Honour explained that Foster “did not unequivocally deny” giving the advice, but said it was unlikely, as “he would not want to encourage an offence”, although he couldn’t remember. But he did tell the court that he believed testing devices can detect cannabis three to four days after use.
Carrall recalled that the officer had said, “If you had waited a week, you would have been fine to drive.” And acting on this advice, he hadn’t driven his car for a week since he’d last smoked cannabis on the second occasion he was caught, in fact, he’d waited a total of nine days to do so.
Honest and reasonable mistake
Magistrate Heilpern explained to the court on 1 February 2016, that given the “clear and unambiguous evidence”, of which his Honour was satisfied was accurate, the raising of the defence of honest and reasonable mistake of fact placed the burden of proof on the prosecution.
“I am also satisfied that the defendant is telling the truth when he says that the last cannabis he smoked was at least nine days prior,” his Honour made clear, “and he believed that all the cannabis would have been gone from his system by the date of the alleged offence.”
The magistrate then noted that drug driving is not an absolute liability offence: one whereby the prosecution doesn’t have to establish a mental fault and further, no defences based on mental fault are available to an accused.
Yet, during an appeal of a conviction last year, NSW District Court Judge Mark Buscombe set a new precedent, ruling that drug driving is an absolute liability offence, not, as long held, a strict liability offence: one where no mental fault need be established, but the mistake defence is available.
Heilpern notes in Carrall that when the 2006 laws were drafted, they were not supposed to be absolute liability, as then NSW transport secretary Matt Brown told NSW parliament that they were to improve road safety regarding people with “active” drugs in their system.
His Honour further sites then NSW transport minister Eric Roozendaal stating, on introducing the laws, that the reasons the then three drugs that were being targeted were the focus was they were the most popular drugs and they “affect the skills and sound judgment required for safe driving”.
Based on the fact that the same defence can be legitimately raised in regard to drinking if a device picked up traces outside of the usual timeframes, his Honour continued, the magistrate found that Carrall could raise the defence and that it held.
“I am satisfied that the belief was honest and reasonable,” the magistrate said. “More precisely, the prosecution have not negatived the defence.” And he determined to find Carrall guilty of the first offence, but not for the second offence, of which the honest mistake defence had been raised.
For medicinal use
Since giving up the gavel, former Magistrate Heilpern has been actively campaigning for drug driving reform in NSW, via the campaign Drive Change.
The Carrall ruling was significant at the time it was made, as it served to expose unjust drug driving laws, which have always been understood not to detect whether a driver is intoxicated on testing, and therefore, don’t improve road safety but rather serve to punish illegal drug use.
However, later that same year, in October 2016, medicinal cannabis was legalised. And this has meant that drivers are now being penalised for driving with traces of doctor-prescribed cannabis medication in their system and losing their licences because of this.
Former Magistrate David Heilpern, the Drive Change campaign, the NSW Greens and Legalise Cannabis have all been long prioritising a drug driving defence for medicinal cannabis users.
Yet, despite this campaigning, and that of other concerned citizens in jurisdictions where these laws are mirrored, politicians countrywide continue to refuse such just law reform, except for the parliamentarians of Tasmania, where a medicinal cannabis drug driving defence does exist.