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Drug Driving

Updated: 2 days ago


Drug Driving, DUI, Drive Under Influence Drug

Published by Geoff Harrison | 13 July 2023


Drug driving or the presence of prescribed drugs in oral fluid is an offence under s111 Road Transport Act 2013.


Mobile drug testing currently detects four common or prescribed illicit drugs namely, ecstasy, cannabis, cocaine and methamphetamine. There is no prescribed amount or concentration necessary to ground the offence, simply that a person is driving, occupying the driver's seat attempting to put the vehicle in motion or supervising a learner driver and there is present a prescribed illicit drug in the person's oral fluid, blood or urine. The maximum penalty for this offence is a fine of $2200 (first offence) and a fine of $3300 (for a second or subsequent offence). Upon conviction, the person is disqualified for an automatic period of 6 months, which can be reduced but not below 3 months for a first offence and 12 months with a minimum of 6 months for a second or seubseqne offence.


Initially the courts had applied the defence of honest and reasonable mistake of fact to this offence: see NSW Police v Carrall [2016] NSWLC 4 below. However, a more recent decion questions whether the offence is one of strict or absolut liability given both the maximum penalty available being a fine only and the wording of the section, in that the offence is proven if the court is satisfied beyond reasonable doubt that there was present in the oral fluid, blood or urine of the defendant a drug described in the court attendance notice (s111(2)(b)): see Narouz v R [2023] NSWDC 293, as per Buscombe DCJ at [31-38] below. Buscombe DCJ finding that the offence is one of absolute liability and that the defence of honest and reasonable mistake of fact is not available. This approach that the section is one of strict liability has been confirmed by Chen J in R v Narouz [2024] NSWCCA 14.


Other Sources:


Cases:

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ROAD TRANSPORT ACT 2013 - SECT 111


111 PRESENCE OF CERTAIN DRUGS (OTHER THAN ALCOHOL) IN ORAL FLUID, BLOOD OR URINE


(cf STM Act, s 11B)


(1) Presence of prescribed illicit drug in person's oral fluid, blood or urine A person must not, while there is present in the person's oral fluid, blood or urine any prescribed illicit drug--

(a) drive a motor vehicle, or

(b) occupy the driving seat of a motor vehicle and attempt to put the motor vehicle in motion, or

(c) if the person is the holder of an applicable driver licence (other than an applicable provisional licence or applicable learner licence)--occupy the seat in a motor vehicle next to a learner driver who is driving the vehicle.

Maximum penalty--20 penalty units (in the case of a first offence) or 30 penalty units (in the case of a second or subsequent offence).


(2) If a person is charged with an offence against subsection (1)--

(a) the court attendance notice may allege that more than one prescribed illicit drug was present in the oral fluid, blood or urine of the person and the proceedings are not liable to be dismissed on the ground of uncertainty or duplicity if each of those drugs is described in the court attendance notice, and


(b) the offence is proved if the court is satisfied beyond reasonable doubt that there was present in the oral fluid, blood or urine of the defendant--

(i) a drug described in the court attendance notice, or

(ii) a combination of drugs any one or more of which was or were described in the court attendance notice.


(3) Presence of morphine in person's blood or urine A person must not, while there is present in the person's blood or urine any morphine--

(a) drive a motor vehicle, or

(b) occupy the driving seat of a motor vehicle and attempt to put the motor vehicle in motion, or

(c) if the person is the holder of an applicable driver licence (other than an applicable provisional licence or applicable learner licence)--occupy the seat in a motor vehicle next to a learner driver who is driving the vehicle.

Maximum penalty--20 penalty units (in the case of a first offence) or 30 penalty units (in the case of a second or subsequent offence).


(4) If a person is charged with an offence against subsection (3), the offence is proved if the court is satisfied beyond reasonable doubt that morphine was present in the blood or urine of the defendant (whether or not in combination with any other drugs).


(5) Defence for offence relating to presence of morphine in person's blood or urine It is a defence to a prosecution for an offence against subsection (3) if the defendant proves to the court's satisfaction that, at the time the defendant engaged in the conduct that is alleged to have contravened the subsection, the presence in the defendant's blood or urine of morphine was caused by the consumption of a substance for medicinal purposes.


(6) Meaning of consumption for medicinal purposes In this section, a substance is consumed for medicinal purposes only if it is--

(a) a drug prescribed by a medical practitioner taken in accordance with a medical practitioner's prescription, or

(b) a codeine-based medicinal drug purchased from a pharmacy that has been taken in accordance with the manufacturer's instructions.

Note : Division 1 of Part 7.4 provides for the disqualification of persons from holding driver licences for certain offences (including offences against this section).


The offences of driving with a prescribed concentration of alcohol in the blood, and of driving under the influence of alcohol or any other drug, are dealt with in sections 110 and 112, respectively.


4. Definitions:

...

"prescribed illicit drug" means any of the following--

(a) delta-9-tetrahydrocannabinol (also known as THC),

(b) methylamphetamine (also known as speed),

(c) 3,4-methylenedioxymethylamphetamine (also known as ecstasy),

(d) cocaine.


205 DISQUALIFICATION FOR CERTAIN MAJOR OFFENCES

....

(2) Disqualification if no previous major offence If, at the time of the conviction of the convicted person or during the period of 5 years before the conviction (whether that period commenced before or commences after the commencement of this section), the convicted person is not or has not been convicted of any other major offence or committed a major offence during that period that was dealt with by way of penalty notice (whether of the same or a different kind)--

(a) where the conviction is for an offence against section 110(1), (2) or (3) or 111(1) or (3)--

(i) the person is automatically disqualified for 6 months from holding a driver licence, or

(ii) if the court that convicts the person thinks fit to order a shorter period (but not shorter than 3 months) of disqualification--the person is disqualified from holding a driver licence for such shorter period as may be specified in the order, or

....


111A PRESENCE OF BOTH PRESCRIBED ILLICIT DRUG IN PERSON'S ORAL FLUID, BLOOD OR URINE AND PRESCRIBED CONCENTRATION OF ALCOHOL IN PERSON'S BREATH OR BLOOD


(1) Offence--high range prescribed concentration of alcohol and presence of prescribed illicit drug A person must not, while there is present in the person's breath or blood the high range prescribed concentration of alcohol and present in the person's oral fluid, blood or urine a prescribed illicit drug--

(a) drive a motor vehicle, or

(b) occupy the driving seat of a motor vehicle and attempt to put the motor vehicle in motion, or

(c) if the person is the holder of an applicable driver licence, other than an applicable provisional licence or applicable learner licence--occupy the seat in a motor vehicle next to a learner driver who is driving the vehicle.

Maximum penalty--

(a) for a first offence--50 penalty units or imprisonment for 2 years or both, or

(b) for a second or subsequent offence--100 penalty units or imprisonment for 2 years or both.


(2) Offence--middle range prescribed concentration of alcohol and presence of prescribed illicit drug A person must not, while there is present in the person's breath or blood the middle range prescribed concentration of alcohol and present in the person's oral fluid, blood or urine a prescribed illicit drug--

(a) drive a motor vehicle, or

(b) occupy the driving seat of a motor vehicle and attempt to put the motor vehicle in motion, or

(c) if the person is the holder of an applicable driver licence, other than an applicable provisional licence or applicable learner licence--occupy the seat in a motor vehicle next to a learner driver who is driving the vehicle.

: Maximum penalty--

(a) for a first offence--30 penalty units or imprisonment for 18 months or both, or

(b) for a second or subsequent offence--60 penalty units or imprisonment for 2 years or both.


(3) Offence--second or subsequent offence of combined alcohol and drug driving offence A person commits an offence against this subsection if--

(a) the person commits an offence under section 110(1), (2) or (3), while there is present in the person's oral fluid, blood or urine, a prescribed illicit drug, and

(b) the person has been convicted of an offence against this subsection or subsection (1) or (2) in the previous 5 years.

Maximum penalty--50 penalty units or imprisonment for 18 months or both.


(4) A person cannot be convicted of an offence against this section and section 110, 111(1) or 112 in relation to the same conduct.


(5) Alternative verdicts If the court, on a prosecution of a person for an offence against a subsection of this section, is not satisfied that the offence is proven but is satisfied that the person has committed an offence against another subsection of this section or against section 110 or 111(1), having the same or a lesser maximum penalty, the court may acquit the person of the offence with which the person is charged and find the person guilty of the other offence, and the person is liable to be punished accordingly.


(6) Presence of higher concentration of alcohol not defence It is not a defence to a prosecution for an offence against a subsection of this section if the defendant proves that, at the time the defendant engaged in the conduct that is alleged to have contravened the subsection, a greater concentration of alcohol was present in the defendant's breath or blood than the prescribed concentration of alcohol referred to in the offence.


(7) Defence for offence relating to novice range prescribed concentration of alcohol It is a defence to a prosecution for an offence against subsection (3), if--

(a) an element of the offence under subsection (3) is that the person is alleged to have committed an offence under section 110(1), and

(b) the defendant proves to the court's satisfaction that, at the time the defendant engaged in the conduct that is alleged to have contravened section 110(1), the presence in the defendant's breath or blood of the novice range prescribed concentration of alcohol was not caused, in whole or in part, by--

(i) the consumption of an alcoholic beverage, other than for the purposes of religious observance, or

(ii) the consumption or use of another substance, for example, food or medicine, for the purpose of consuming alcohol.


_____________________________________________________________________________________



Hearing dates:

14 July 2023

Date of orders:

26 July 2023

Decision date:

26 July 2023

Jurisdiction:

Criminal

Before:

Buscombe DCJ

Decision:

Appeal dismissed

Catchwords:

CRIMINAL LAW – appeal against conviction – availability of defence of honest and reasonable mistake of fact

Legislation Cited:

Crimes (Appeal and Review) Act

Road Transport Act

Road Transport Legislation Amendment (Drug Testing) Bill

Cases Cited:

Lunney v DPP [2021] NSWCA 186

McNab v DPP (NSW) [2021] NSWCA 298

CTM v The Queen [2008] HCA 25

RTA of NSW v Jara Transport Pty Ltd [2005] NSWSC 1021

NSW Police v Carrall [2016] NSWLC 4

DPP v Bone [2005] NSWSC 1239

Appeal of Francesco Mendolicchiu [2008] NSWDC 182

Chandiran v R [2022] NSWDC 576

Category:

Principal judgment

Parties:

Office of the Director of Public Prosecutions (NSW) (Crown)


Mina Narouz (Appellant)

Representation:

Counsel:

Mr Cavanagh (Crown)

Mr Todd (Appellant)


Solicitors:

Solicitor for the Office of the Director of Public Prosecutions (NSW)

Khan Law and Associates (Appellant)

File Number(s):

2020/00310709

Decision under appeal

Court or tribunal:

Liverpool Local Court

Jurisdiction:

Criminal

Date of Decision:

08 March 2023

Before:

Magistrate J Zaki

File Number(s):

2020/00310709


JUDGMENT


1. The appellant, Mina Narouz, appeals his conviction in the Local Court for an offence that:


on 12 September 2020 at Horningsea Park he drove a motor vehicle on a road, being Cowpasture Road, whilst there was present in his oral fluid a prescribed illicit drug, being cocaine.


2. That is an offence under s.111(1) of the Road Transport Act.


General principles associated with conviction appeals


3. An appeal to this Court against a conviction in the Local Court is a rehearing under s.18 of the Crimes (Appeal and Review) Act. A s 18(1) appeal is not an appeal de novo. The judge is to form his or her judgment of the facts so far as able to do so, recognising the advantage enjoyed by the Magistrate who heard and saw the witnesses in the lower court. While the Magistrate’s reasons are not part of the transcript of evidence, recourse can be had to them on appeal.


4. The powers of the District Court on a s 18(1) rehearing are exercisable where the Appellant demonstrates that the order the subject of the appeal is the result of a legal, factual or discretionary error in which event the appellate court can substitute its own decision based on the facts and law as they then stand. Demonstration of error in relation to such an appeal means no more than satisfying a District Court Judge that the Magistrate should not have been satisfied beyond reasonable doubt as to an Appellant’s guilt. This approach to such appeals is consistent with the recent decisions in Lunney V DPP [2021] NSWCA 186 and in McNab v DPP [2021] NSWCA 298.


5. I have approached the current appeal in accordance with those principles.


The Evidence in the Local Court


6. There was little dispute in the evidence below in that much of the Prosecution case was adduced by way of agreed facts between the parties. In that regard it was agreed that at around 11.55pm on 12 September 2020, the Appellant came to the attention of the police due to his manner of driving, which was capable of being seen on video footage tendered in the prosecution case. The vehicle concerned was a utility. He was directed to pull over by the police which he did. The Appellant was subjected to a Random Breath Analysis at the scene which returned a negative reading. He was also required to take part at the scene in an oral fluid test for illicit drugs, and that test resulted in a positive detection for cocaine. It was an agreed fact that the Appellant vehemently denied that he had consumed any illicit drug when shown the positive finding of cocaine by Sergeant Mark Lewis. The Appellant also underwent a second oral fluid test on the side of the road which also resulted in a positive test for cocaine.


7. As a result of those positive readings the Appellant was conveyed to Green Valley Police Station. He was there requested to provide a second oral fluid sample and was submitted to a Drager Drug Test 5000 Device 0023 and returned a negative reading. While at the police station the Appellant was questioned by police and is recorded as saying in answer to the following questions the following responses: “When and Where did you last take the drug?” “Never took anything”. “How was the drug administered?” “Didn’t take any drugs”. “How frequently do you consume or administer this drug” “I don’t”.


8. The remaining oral fluid sample was sealed and sent off for analysis. A future court attendance notice was created on 24 October 2020 and was posted to the Appellant on 30 October 2020.


9. In addition to the Agreed Facts certain oral evidence was called in the Prosecution case.


10. Senior Constable Johnson from Liverpool Highway Patrol gave evidence, he being one of the police who were present when the Appellant was pulled over by police and through that officer an excerpt of the police in car video was tendered. An aid memoir as to what can be heard on the in car video was also provided to me on the Appeal.


11. The in car video captures the Appellant saying the following when told at the roadside that he had tested positive for cocaine: “I’ve not touched drugs for mate nothing. I thought maybe Valium, I won’t lie to ya. Once in a blue moon. But cocaine no way”, and requested that he be permitted to perform another road side test, which as the agreed facts make clear, was done. As the Agreed facts also make clear the Appellant during his interactions with the police as reflected in the in car video, was adamant that he had not used cocaine. Later when shown the result of the second road side test the Appellant is recorded as saying, “Nah nah. Last year. Last year yeah”.


12. The comments in the in car video support an inference that the Appellant had been a user of cocaine in the past, but not in a time period proximate to the time of his driving on this occasion.


13. In cross-examination of officer Johnson a document concerning the registration and primary owner of the vehicle the Appellant drove on the night he was stopped was tendered. It is not particularly clear but enough of it can be read to determine that a Pty Ltd company was registered as the primary owner of the vehicle. The officer said he heard the Appellant say in the in-car video recording that the car he drove was his mates car, although had no recollection of him saying it on the night the vehicle was stopped.


14. The prosecution also called evidence from an Allan Lin a forensic pharmacologist attached to the impaired driving research unit. He gave evidence that he formed the opinion that there had been 57 milligrams of cocaine per litre in the Appellant’s oral fluid. His evidence was that this was based on what another analyst had told him was the approximate level of the drug detected. The witness also expressed the opinion that the only scientific explanation for that level of cocaine was that there had been direct consumption of cocaine. He gave evidence that the volume of cocaine detected was suggestive of recent use of that drug.


15. In cross-examination, Mr Lin agreed that he did not know the manner of ingestion of the drug nor the time of ingestion. He also agreed that cocaine can be transported in fluid and that someone could consume cocaine by consuming a fluid that contained cocaine. The witness also agreed that he could not say when the cocaine had been consumed. Mr Lin was re-called after the Appellant gave evidence, and I will refer to that evidence shortly.


16. The Appellant gave evidence that the vehicle he drove that night was a friend’s and that he had entered the vehicle around 4.30 or 5 pm that afternoon. He denied that he had consumed cocaine that day or on any days or weeks prior to the driving. He detailed what he did with the car prior to being stopped by police. His evidence included that he had taken Valium that day pursuant to prescriptions for that drug that he held and that he takes that drug with a drink. He described having purchased a water and a coca cola that afternoon which had been consumed by the time the car had overheated and he had turned it off. His evidence was that at one point after that he took Valium and used a bottle of Gatorade or Powerade that he found on the floor of the vehicle when he took a tablet of Valium. The Appellant’s evidence was that occurred about 45 minutes before he was pulled over by the police. The Appellant also confirmed in his evidence that he had not taken cocaine at that time and that he had told the truth to the police that night.


17. The Appellant’s evidence was that when he was told at the police station that the test had returned a negative result at the station he thought the matter was over and done with.


18. The Appellant also tendered a urine test dated 7 December 2020 he had taken after he received the CAN. He also gave evidence that given the delay in receiving the CAN he didn’t know he needed to try and locate the bottle he drank from.


19. The cross-examination of the Appellant was relatively brief. He was asked to demonstrate how he drank from the Gatorade or Powerade bottle and said he had “taken a quick sip” which perhaps took less than a second.


20. The Appellant denied he had taken cocaine within 24 to 48 hours prior to being stopped and said he did not know how the cocaine got into his “system”.


21. As I indicated earlier, once the Appellant finished evidence Mr Lin was recalled by the Prosecution without objection. In further evidence in chief Mr Lin gave very nonspecific evidence about the possibility of the cocaine being transferred from a drink from the Powerade or Gatorade bottle as described by the Ap. His evidence was based on a number of assumptions, although he did say if a trace amount of cocaine was in the small amount of fluid consumed from the bottle, he wouldn’t expect an amount of cocaine to still be in the mouth of the Appellant as at the time of the positive oral fluid test.


22. In cross-examination, however, he agreed that he could not rule out the possibility that the ingestion of cocaine came from the bottle.


The Magistrate’s Decision


23. The central issue that was considered in the Local Court and again raised on the appeal was whether the Appellant had successfully raised an honest and reasonable mistake of fact, being that he honestly and reasonably believed there was no presence of the illicit drug cocaine in his oral fluid when he drove, when in fact that substance was present in his oral fluid. The Prosecution in the Local Court, and the Crown on the Appeal, accepted that the so-called defence was available as a matter of law for this offence, and was raised below, and that therefore the Prosecution was obliged to negative it beyond reasonable doubt before the Appellant could be found guilty of the offence.


24. The magistrate accepted that the so-called defence of honest and reasonable mistake of fact was available and raised by the Appellant in the Local Court.


25. The magistrate rejected the Appellant’s evidence and in doing so said as follows: “I find the version of events he gave about picking up a bottle in a shared vehicle that happened to be contaminated with fluid containing cocaine and taking one sip which left him with a cocaine reading high enough to be present in his blood three hours later, to be implausible on the evidence. It follows therefore, that I do not accept that the belief was reasonable, because I do not accept the initial premises, i.e., that he honestly held the belief”. In rejecting the Appellant’s evidence, the magistrate made no criticism of the Appellant’s manner of giving evidence and did not point to any inconsistencies in his evidence. She considered the evidence, however, in all the circumstances to be implausible, and rejected it.


Decision


26. While it was accepted by both parties in the Local Court and on the appeal that the offence is one of strict liability and that therefore it was open for the Appellant to raise the so-called defence of honest and reasonable mistake of fact, I consider that it is a preliminary issue for me to consider. That is really the issue of whether the offence is one of strict liability such that an honest and reasonable mistake of fact can be raised, and not one of absolute liability. I specifically raised the issue with the parties and heard submissions on the issue, noting that the Crown agreed with the Appellant’s counsel that the offence was one of strict liability and that therefore it was open to raise an honest and reasonable mistake of fact about the presence of an illicit substance in a person’s oral fluid when a person is prosecuted for the offence.


27. The issue is essentially one of statutory interpretation of the offence creating provision. Where an offence carries serious penal consequences, the courts look to Parliament to “spell out in clear terms any intention to make a person criminally responsible for conduct which is based on an honest and reasonable mistake”; see CTM v The Queen [2008] HCA 25 and RTA of NSW v Jara Transport Pty Ltd [2005] NSWSC 1021.


28. Here, the penalty that is provided for the offence is a fine only, even in the case of a second or subsequent offence; s.111(1) RTA. I accept that upon recording of a conviction there is a mandatory period of licence disqualification; s205 RTA. To my mind, it cannot be said, however, that such an offence is one that carries “serious penal consequences”, although I accept that licence disqualification for most people is a significant consequence of being convicted.


29. The offence under s.111 (1) of the Road Transport Act is relevantly in the following terms:


(1) A person must not, while there is present in the person's oral fluid, blood or urine any prescribed illicit drug--


(a) drive a motor vehicle,


(2) If a person is charged with an offence against subsection (1)--


(a) the court attendance notice may allege that more than one prescribed illicit drug was present in the oral fluid, blood or urine of the person and the proceedings are not liable to be dismissed on the ground of uncertainty or duplicity if each of those drugs is described in the court attendance notice, and


(b) the offence is proved if the court is satisfied beyond reasonable doubt that there was present in the oral fluid, blood or urine of the defendant--


(i) a drug described in the court attendance notice, or


(ii) a combination of drugs any one or more of which was or were described in the court attendance notice.


30. A prescribed illicit drug is defined in s.4 of the RTA to include cocaine.


31. In my view, contrary to submissions advanced on behalf of the Ap, and contrary to the decision of the Local Court in NSW Police v Carrall [2016] NSWLC 4, which I drew the parties’ attention to, I do not consider that subsection (2) of s111 of the RTA is limited to those cases where more than one drug is described in the CAN. That is because subsection (2) applies whenever a person is charged with an offence against subsection (1). I also consider that the wording of (ii) in subsection (2)(b) to be of real importance to this issue. To my mind, the presence of both (i) and (ii) in subsection (2)(b) makes it clear that the offence is proved if a court is satisfied beyond reasonable doubt that there was present a drug described in the court attendance notice, where only one drug is described in the CAN, or a combination of “any one or more” drugs which are described in the CAN.


32. In my opinion, the terms of sub section (2)(b) leave no scope for the operation of an honest and reasonable mistake of fact to operate, because “the offence is proved if the court is satisfied beyond reasonable doubt that there was present in the oral fluid, blood or urine of the defendant” an illicit drug described in the CAN. In my opinion, 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, referred to in the CAN, in a defendant’s oral fluid, blood or urine. It is a clear statement by the Parliament, in my opinion, that the prosecution does not have to prove beyond reasonable doubt that a defendant did not drive under an honest and reasonable mistake of fact as to the presence of an illicit drug in his oral fluid, blood or urine.


33. In my opinion, this construction is consistent with the intended purpose of the offence creating provision which was described by the then Minister for Roads in the second reading speech in the NSW Legislative Council for the Road Transport Legislation Amendment (Drug Testing) Bill as follows [1] :


“Police can prosecute the driver for the new offence of driving with the presence of one or more of the three illicit drugs, if the result from the laboratory is positive. There will be no need for Police to prove that a person’s driving was impaired. It need only be proved that the drug was present in the person’s sample. This sends a clear message to motorists that driving with any amount of these illegal drugs in the body is not tolerated in New South Wales.”


34. I am of the opinion that the offence under s.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 by the Appellant in the Local Court. In coming to the conclusion that it is not open to raise an honest and reasonable mistake, I noted earlier the Local Court decision of NSW Police v Carrall where Magistrate Heilpern reached a different conclusion. I have already indicated an aspect of His Honour’s reasoning with which I disagree. Another aspect of His Honour’s reasoning was His Honour’s reliance upon the decision of DPP v Bone [2005] NSWSC 1239 which is authority for the proposition that honest and reasonable mistake of fact may be raised in a prosecution for a high range prescribed concentration of alcohol offence. His Honour also referred to the fact that Bone had been applied to a low range prescribed concentration of alcohol offence in the decision of Appeal of Francesco Mendolicchiu [2008] NSWDC 182, noting that a low range prescribed concentration of alcohol offence was a fine only offence.


35. Bone was relied upon in the Local Court and on this appeal, in support of the argument that an honest and reasonable mistake about the presence of an illicit drug, can be raised as a so-called defence to a charge under s.111(1) of the RTA. I do not consider that Bone has any relevance to the issue of whether an honest and reasonable mistake of fact can be raised in defence of a prosecution under s.111(1) of the RTA. That is because Bone concerned a different statutory provision and the issue is really one to be resolved by way of statutory interpretation of the provision concerned. The legislation considered in Bone did not contain a provision similar to s111(2)(b). I also note that Bone concerned an offence which carried a term of imprisonment as a possible penalty, whereas s.111(1) of the RTA does not. In that regard, while Goldring DCJ in Mendolicchiu did follow and apply Bone to an offence of low range prescribed concentration of alcohol, I note that at [15] His Honour said:


“I find, albeit reluctantly, that the defence of honest and reasonable mistake of fact is available.”


36. In the circumstances where Mendolicchiu concerned a different statutory provision, and the judge applied Bone reluctantly, I do not consider that it has any real relevance to the issue of whether an honest and reasonable mistake of fact can be raised in relation to a prosecution under s.111 of the RTA.


37. I also note that Scotting DCJ in Chandiran v R [2022] NSWDC 576 has held that it is open to a defendant to a s.111(1)RTA prosecution to raise an honest and reasonable mistake of fact. His Honour considered that while Bone was not binding, he thought it should be applied to the offence under s.111(1) of the RTA. For the reasons I have given, I do not think it should be. His Honour also considered that one factor which led to him being of that view was that “it may be difficult for a person to avoid liability for having very small traces of an illicit drug in their system, if they are honestly and reasonably unaware of how they are exposed to the illicit drug and how it came to into their system;” [15]. In my view, those sentiments cannot overcome the clear words of the provision which sets out that only one matter need be established beyond reasonable doubt before the offence is proved, and that is the presence of an illicit drug described in the CAN in a persons oral fluid, blood or urine. Those factors referred to by His Honour can clearly be considered on penalty in determining whether to record a conviction and impose a fine and disqualification.


38. As I am of the opinion that it was not open to the Appellant to raise an honest and reasonable mistake of fact about the presence of the illicit drug cocaine in his oral fluid as a so-called defence to the charge, and it being established beyond reasonable doubt that the illicit drug cocaine was present in his oral fluid at the time of his driving, the appeal against conviction must be dismissed.


39. If I had been of the opinion it was open to raise an honest and reasonable mistake of fact about the presence of the drug cocaine in the Appellant’s oral fluid, in “defence” of his prosecution, I would have upheld the appeal. As the appeal is to be dismissed for the reasons I have given, I will briefly explain why I would have found that the Prosecution had not negatived his honest and reasonable mistake of fact beyond reasonable doubt.


40. The Appellant from the moment he was stopped by the police was consistent and adamant in his denial of having used cocaine in any period proximate to his driving. He did, in the in-car video, admit to having in the past used cocaine, during the previous year, but was steadfast and unshaken on his denials about having used it more recently. He was also unshaken on his evidence that as the test at the police station had been negative, he thought that he was in effect not to be prosecuted until he received the CAN some months later. His ability in those circumstances to advance any reason apart from actual deliberate consumption of cocaine, to explain the presence of the substance was extremely limited because of the passage of time. He gave evidence of an event which, on his evidence, might explain the presence of the drug. It must also be remembered that the Appellant was not actually saying in his evidence that his use of the Gatorade or Powerade bottle was the reason for the presence of the cocaine, but was seeking, it seems to me, to raise possible explanations for its presence. He was unshaken in the evidence he gave about what he had consumed that night and how. He was unshaken on his evidence that the vehicle was a friend’s and that he found the Gatorade or Powerade bottle on the floor and drank from it when taking a Valium pill. As I observed earlier, the magistrate made no demeanour findings adverse to the Appellant nor did she point to any inconsistencies in his evidence. I do not consider there are any inconsistencies in his evidence, and it reads as a straightforward, consistent account.


41. To the extent that the magistrate relied upon the expert’s evidence to find that the Appellant’s account was implausible, there are two issues that concern me in that regard. The first is that the expert’s evidence was dependant to a significant degree upon an estimation of the concentration of cocaine he had been given by another analyst who was not called to give evidence. Nor does the magistrate appear to have given any weight to the expert’s evidence in cross-examination that he could not exclude the possibility that the source of the cocaine was from the drink the Appellant had taken from that bottle. For those reasons, 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. 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.


42. The Conviction appeal is dismissed for those reasons.


**********


Endnote


1. NSW Legislative Council Hansard 18 October 2006.


____________________________________________________________________________


NSW Police v Carrall [2016] NSWLC 4


Hearing dates:

21, 28 January 2016

Decision date:

01 February 2016

Jurisdiction:

Criminal

Before:

Heilpern LCM


Decision:

I find the defendant not guilty in respect to the June offence, and will proceed to sentence on the May offence on a date to be fixed.

Catchwords:

CRIMINAL PROCEEDINGS – drive with illicit drug present in blood – positive test to cannabis – defence of honest and reasonable mistake of fact – availability

Legislation Cited:

Road Transport Act 2013, s 111

Cases Cited:

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

Category:

Principal judgment

Parties:

Joseph Ross Carrall (defendant)

NSW Police

Representation:

Solicitors:

Mr Costin-Neilson on 21/1/2016, Mr Huxtable on 28/1/2016 (for the prosecution)

Mr Bolt (for the defendant)

File Number(s):

2015/237138

JUDGMENT


Reasons for decision


1. The defendant has been apprehended for the offence of driving with an illicit drug present in his blood (s 111 Road Transport Act 2013) on two relevant occasions - 26 May 2015 and 23 June 2015. He pleads guilty to the May offence. He pleads not guilty to the June offence on the basis of an honest and reasonable mistake of fact.


2. This judgment is prepared without the benefit of a transcript.


3. There was no expert evidence for either the prosecution or defence.


4. The legislative provision is simple:


111(1) Presence of prescribed illicit drug in person’s oral fluid, blood or urineA person must not, while there is present in the person’s oral fluid, blood or urine any prescribed illicit drug:


(a) drive a motor vehicle….


5. The elements of the offence are not in issue – the defendant was driving a motor vehicle on a public street whilst there was present a detectable level of THC in his oral fluid.


6. It is important to note that there need not be any affect proven – the mere presence of a minute or residual presence of THC is sufficient. There is a separate offence of driving under the influence of a drug for which affect must be proven.


Prosecution case


7. The apprehending officer for the May and June offences was Senior Constable Chayne Foster. His evidence-in-chief relating to the June offence was by way of statement which relied on the audio recording from the highway patrol vehicle. There was some other conversation not recorded.


8. First the defendant was breath tested for alcohol, and that was negative. In accordance with standing orders, the defendant was asked prior to the test:


Have you had any alcohol today?


9. The defendant was then subjected to a second test, this time for illicit drugs. The officer said:


I am now going to subject you to a drug test. Have you taken any illicit substances in the past 48 hours?


10. The defendant said:


I had a smoke over a week ago, Sunday week ago.


11. The first indicative roadside test came back positive to cannabis, and the defendant was arrested and taken to the police station for the purpose of conducting the second test. The defendant said:


I thought I would be right, it was over a week ago.


12. The second test also proved positive to cannabis, and so a sample was sent to the Forensic and Analytical Science Service. That sample was tested and a certificate was issued that the defendant's oral sample had cannabis present.


13. In cross-examination it was put to Senior Constable Foster that when he apprehended the defendant on the May occasion, the defendant and he had discussed how long after a smoke before he could drive and not be detected, and the officer had said that he would be required to wait a week.


14. The officer did not unequivocally deny that, but said that he would have been unlikely to say those words, as he would not want to encourage an offence. He did acknowledge a lack of specific memory of that conversation, understandable given the hundreds of tests he must have conducted before and after that occasion.


15. When pressed, he stated that he believed the equipment detected cannabis three to four days after use, but that it depended on a range of factors including the amount consumed, how it was consumed, and the regularity of use leading up to the last occasion.


16. He also stated, from my notes, that “a line had been drawn and that now you could be a smoker and not drive, or a driver and not smoke and that that was the effect of the new laws”.


The evidence of the defendant


17. The defendant stated that when he was apprehended by the Senior Constable in May, the officer had said to him "If you had waited a week you would have been fine to drive". He had relied on this information and had last had a smoke of cannabis on the Sunday, almost a week and a half prior to being apprehended the second time. He had been in the same house as another person who had smoked on one occasion in the interim, but that person had been in a closed separate room. The prosecution took this no further once it was apparent that the possibility that this led to further ingestion was remote.


18. Given the length of time, and the police officer’s advice, the defendant stated he was convinced that he was right to drive and would not have THC in his system. He made it clear that in his view he did not consume any cannabis from the potential passive smoking episode.


Burden and onus of proof


19. There is an evidential burden to raise the defence. This has been achieved by the evidence above. The prosecution then bear the burden of disproving 'honest and reasonable mistake of fact'.

The test is stated clearly in the concluding remarks of Goldring J in Appeal of Francesco Mendolicchiu [2008] NSWDC 182 at [20]:


I find that, once the appellant raised the defence of an honest and reasonable belief by asserting facts, that, if true, would have exonerated him from guilt of the offence, the evidentiary burden of disproving that defence shifted to the prosecution. The prosecution has not discharged its evidentiary burden.


Factual resolution


20. Given the clear and unambiguous evidence of the defendant I am satisfied that the conversation as he recollects it is accurate. He was not shaken in cross-examination. The officer’s evidence was equivocal, and he was not in a position with any certainty to deny what was said.


21. 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, and he believed that all the cannabis would have been gone from his system by the date of the alleged offence.


22. The community may be curious as to why the issue of passive smoking was the subject of some focus in cross-examination and examination-in-chief. This court deals with about fifty of these offences each week, and the issue of passive smoking has been canvassed in numerous cases, where people plead guilty even though they are not cannabis users themselves.


23. I am satisfied that the defendant honestly and reasonably believed he did not consume any smoke from the potential passive episode given the location and timing of that occurrence.


Does the defence apply to s 111 of the Road Transport Act?


24. It is clear that the defence applies to High Range PCA due to the key and binding case of DPP v Bone [2005] NSWSC 1239. The context of that legislation was described as follows at [16]:


It can easily be accepted that the reason for the legislation in the first place and its increased severity is a reaction to the perceived need in the public interest to deal with the havoc caused when persons who have been drinking also drive.


25. The court accepted that in the case of High Range PCA the offence is one of strict, not absolute liability, and thus the defence of honest and reasonable mistake of fact does apply.


This case has been applied in the District Court in Appeal of Francesco Mendolicchiu [2008] NSWDC 182 where the appellant took cough mixture which ‘topped him up’ to a low range reading. The defendant was acquitted.


27. Bone was determined more than a year prior to the legislation creating the current offence under s 111. If parliament had wanted to make drug driving an absolute offence it could have by clear unequivocal language in the decade since.


28. In Proudman v Dayman [1941] HCA 28 the court found that when dealing with ‘a new crime’ it is necessary to look at the purpose of the legislation to determine whether the defence would apply.


29. Having carefully read the legislation, the second reading speech when it was introduced, and the above cases there is no reason to differentiate this offence from the drink driving offences.


30. The second reading speeches are interesting for a related purpose - they illustrate the reasoning behind the legislation some ten years ago. The bill which introduced the amendment was the Road Transport Legislation Amendment (Drug Testing) Bill 2006. It was first introduced by Mr Matt Brown, Parliamentary Secretary for Transport in the Legislative Assembly. The aim in general was road safety, and he said on 19 September 2006 (my emphasis):


People who have active drugs present in their system should not be driving on our roads.


31. In the Legislative Council the Bill was introduced by The Hon. Eric Roozendaal, the Minister for Roads, who said on 18 October 2006 (my emphasis):


The bill allows police to randomly test drivers for the presence of three illicit drugs in oral fluid. These are speed, ecstasy and THC, the active ingredient in cannabis. These drugs are illegal, they are the most commonly used drugs in the community and they all affect the skills and sound judgment required for safe driving.


32. Whilst not relevant to the issue at hand, but of interest given one of the submissions from Mr Bolt, I note that the Greens also supported the legislation (Ms Lee Rhiannon, Legislative Council, 18 October 2006 at 2815) on the basis that:


... the screening devices have been shown to only detect THC which is the intoxicating element at very high levels and the window of detection is about one hour. The tests cannot pick up the non-active component, which stays in a person’s body for a longer period. Therefore, those who smoke cannabis the day before will not test positive according to the advice I have received.


33. It is clear that the second reading speech Ministers had in mind that it would be drugs that were 'active' and 'affect the skills' that were the mischief. References to ‘no tolerance for any drugs’ in the speeches need to be viewed in this context. Whist the police do not have to prove affect, and no bottom limit was set, the target was those who were 'drug driving' just like 'drunk driving'.


34. Clearly, in 2006, the technology was not nearly as advanced as it is now. Certainly it was not the aim of the Ministers that if you consume cannabis (at all) you cannot drive (ever), or that those who had been around other smokers could be caught in the net.


35. There is no indication that these offences were to be absolute liability in the wording of the legislation or in the second reading speeches.


36. The prosecution point to some features of the Road Transport Act to suggest that the offence is absolute. The prosecution contend that the wording of the legislation, particularly s 111(2), precludes the defence of honest and reasonable mistake of fact. In my view this is not correct; s 111(2) relates solely to the issue of multiple drugs in the saliva.


37. The prosecution contends that the very nature of the offence dictates that it ought to be viewed as absolute liability in that it does not use words such as “knowingly” or “wilfully” and the maximum penalty is a fine and disqualification with no prison term.


38. The Appeal of Francesco Mendilicchiu is authority for the proposition that the defence applies to Low Range PCA, which also does not carry a prison term, and has identical disqualification periods. Low Range PCA provisions also do not mention intent. A mandatory disqualification is a serious and significant punishment. This was recognised by Howie J in the guideline judgment [1] at [116]:


Licence disqualification is such a significant matter and can have such a devastating effect upon a person’s ability to derive income and to function appropriately within the community that it is a matter which, in my view, must be taken into account by a court when determining what the consequences should be, both penal and otherwise, for a particular offence committed by a particular offender.


39. The prosecution contend that the existence of a statutory defence for medicinal purposes for morphine based drugs points to the absolute nature of the s 111 offence. As pointed out in Appeal of Francesco Mendilicchiu at [12] to [14], the existence of a medical defence and the absence of a specific defence do not mean that the defence is unavailable.


40. The prosecution contend that the importation of the Criminal Code strict liability provisions to the regulations does not apply to the Act. I agree with this proposition. The provisions only apply to the regulations, and thus do not affect the Act.


41. The prosecution did graciously and properly alert me to a very recent unreported spiking case determined in Byron Bay Local Court by Magistrate Dakin, where he dismissed a s 111 offence relating to methamphetamine on the basis of an honest and reasonable mistake of fact. That is not binding, but is highly persuasive, and accords with my view.


42. For the reasons above in my view the defence of honest and reasonable mistake of fact is available for the offence charged in the present case. It is a strict liability offence.


Application to the present case


43. I have accepted in this case that the last ingestion of cannabis was at least nine days prior. No-one is seriously contending that the defendant was still in any way affected by the drug. I have found that the informant Senior Constable from the highway patrol asks questions about a 48 hour period, believes the presence generally can be detected for three to four days, and told the defendant that after a week he should be clear to drive.


44. Of course it can never be the law that a person can rely on mistake where they made a miscalculation as to their driving ability based upon a misconceived analysis of their own level of intoxication. Every day in every court in the land defendants say: “I thought I was sober enough to drive”. And that is because alcohol and other drugs intoxicate and dull the judgement. The defence of honest and reasonable mistake is not a drunk (or drug) driver’s charter.


45. The comments of Adams J in DPP v Bone reinforce this at [36]:


One of the important purposes of the legislation is to warn drivers that, whatever their subjective judgment might be as to their fitness to drive, they are objectively a danger to themselves and to other members of the public if they drive with a prescribed concentration of alcohol in their blood. Accordingly, persons who drink drive at their peril as well as the peril of other road users.


Was the defendant's belief honestly held?


46. As a question of fact, I find that it was the defendant's truly held belief that he had no detectable level of cannabis. More precisely, the prosecution have not disproved the defendant's evidence in this regard.


Was it a mistake of fact, or a mistake of law?


47. The leading case on this issue is RTA v O’Reilly & Ors [2009] NSWSC 134 handed up by the prosecutor. In that case the appellant honestly and reasonably believed speed limit was 70kph not 60kph. That was found to be a mistake of law, not of fact. Whilst there are grey areas relating to the distinction between fact and law (see Ostrowski v Palmer (2004) 218 CLR 493), in this case, in my view, the belief was clearly one of fact. The defendant knew the law; he believed that he no longer had the presence of THC in his saliva.


Was the defendant's belief reasonably held?


48. This is a difficult question to answer, and I have wavered in my opinion. In particular, I am aware that parliament’s intention is only relevant to the issue of whether the defence applies. Further, I was originally attracted to the contention that a mistaken honest belief about an action (driving) may never be reasonable if it originated in a crime (smoking cannabis).


49. Mr Huxtable stated that to have a detectable level of THC the defendant, absent spiking or accidental consumption, must have knowingly committed the offences of possession of a prohibited drug, and self-administration of a prohibited drug. He stated that those who flout the law cannot then rely on a reasonable mistake.


50. Mr Huxtable further stated that alcohol is regulated, legal and it is easy to assess the quantity consumed in almost all cases due to the standardisation of drinks and percentage labelling. It is impossible to assess the quantity or quality of cannabis in an illegal market.


51. These are each valid points. However, consideration of the hypotheticals canvassed during submissions, in the authorities, and discussed below, as well as application of the onus of proof, has led me to the conclusion that prosecution have not negatived reasonable mistake.


Lack of Precedent


52. I have been unable to locate a single authority on this issue – whether a belief can be reasonable where the initiating action was a separate preliminary criminal act committed many days before. The only relevant cases deal with the legality of the same act at the same time. In the joint judgment of Gleeson CJ, Gummow, Crennan and Kiefel JJ in CTM v The Queen [2008] HCA 25 at [8] (footnotes omitted):


Where it is a ground of exculpation, the law in Australia requires that the honest and reasonable, but mistaken, belief be in a state of affairs such that, if the belief were correct, the conduct of the accused would be innocent. In that context, the word “innocent” means not guilty of a criminal offence. In the case of an offence, or a series of offences, defined by statute, it means that, if the belief were true, the conduct of the accused would be “outside the operation of the enactment”.


53. In my view, ‘the enactment’ refers to the substantive offence in issue, and does not require the court to peer back looking to another enactment. Similarly, the cases of Giachin v Sandon [2013] ACTSC 77 and R v Duong [2015] QCA 170 apply Bone interstate, but do not assist where a person is otherwise innocent but the initiating act is unlawful. See also Fullagar J at [14] in Bergin v Stack [1953] HCA 53.


54. In my view the focus ought not be on the original action – the smoking of the cannabis. The reasonableness of the belief ought to be focussed more sharply – at the time of or immediately before the action constituting this crime – driving with the presence of cannabis in the person’s saliva. After all, the defendant is not relying on the defence for the offence of consuming the cannabis, only for the driving offence.


55. Apart from timing, the issue is also partly dependent upon the nature of the originating offence. In this case it is the possession and personal use of cannabis. This crime is so minor, that the police have a unique statutory discretion to deal with it by the cannabis cautioning scheme and such an offence would rarely attract more than a minor fine. For a first offence it may well not lead to a conviction.


56. The criminal law does not as a rule require ‘clean hands’ from those who seek to rely on defences. For example, even a person who throws the first punch can in some circumstances rely on self-defence. Self-defence is also not closed off from a trespasser or a thief. A person who engages in an armed robbery to recover goods they believe to have been wrongfully detained may have a ‘claim of right’ that leads to acquittal.


Hypotheticals


57. Firstly, what if the cannabis was ingested lawfully, in Colorado or Portugal or elsewhere? It cannot be that the defence is not available in the present case, but available in those circumstances. This illustrates that the focus needs to be on the mistake with respect to the act which is said to constitute this offence (driving with presence) not any other offence prior (cannabis self-administration or possession).


58. Secondly, what if a 17 year old used fake identification to enter licenced premises and then drank a spiked soft-drink. The defence of honest and reasonable mistake would still be open to her despite the unlawful entry into the club sometime prior which has a direct causative link. Again, this illustrates that the focus needs to be on the legality of the act which is said to constitute the offence (driving) not any other offence (obtaining benefit by deception).


59. Thirdly, what if a person was driving a stolen car (plea of guilty) and was also driving unlicensed (plea of not guilty – honest and reasonable mistake of fact). The defence would still be available on the unlicensed offence, even though the vehicle was stolen. Again, the focus is on the licence issue, not on the theft.


60. Fourth, what if the technology improves even more, so that the THC can be detected after one month, or three, or even twelve? Mr Bolt chose the example of two years which I scoffed at. However, on reflection the question is valid. Surely at some point the defendant’s belief may be reasonable that there would no longer be the presence of THC in the saliva?


61. Fifth, a relevant hypothetical was raised in the case of Giachin v Sandon [2013] ACTSC 77 which applied Bone in that jurisdiction. Penfold J at [70] commented:


A person who correctly believes that he or she has not consumed alcohol for a week but whose blood contains alcohol at the end of that week because of some previously undiagnosed metabolic disorder might well be able to make out a Proudman v Dayman “defence”.


62. The court is clearly envisaging that the defence is available where a drink-driver believes that the alcohol would have exited his system, but is mistaken, so long as the period of time is beyond anything that the person would ordinarily and reasonably expect. That broadly corresponds to the current situation.


63. In my view, each of the above hypotheticals suggest that despite the illegality of the use in this case, provided the defendant honestly believed that the cannabis was no longer present, and the passing of time was sufficient, then the prosecution may not have disproved the ‘reasonable’ defence. The time can only be sufficient where it is completely outside the period of any affect. Nine days is well outside that period.


Lack of Information regarding testing levels


64. I did not allow the defence to tender a document from a member of parliament seeking to support the contention that the government/police force was not releasing information on the level of the tests. The reason for that rejection is that this was effectively conceded by the prosecution. Mr Huxtable and Mr Costin-Neilson both made the submission that should this defence succeed those who choose to use cannabis will not have to ‘run the gauntlet’ whereby they do not know if they are detectable. That gauntlet is apparently part of the mystery and uncertainty-by-design of the current testing regime. As expressed, the argument is that the floodgates may be opened and lessen the deterrent effect of this legislation on consumption of cannabis should the defence be applied.


65. As for floodgates, my duty is to apply the law as I see it in a given case and not determine that application based upon what could happen in other cases.


Police advice


66. The only further prosecution submission not dealt with above is the reasonableness of reliance on the police advice. The prosecution contend that it is not reasonable. The defence contend that it is reasonable, given the dearth of information as to how long the wait has to be before the presence cannot be detected.


67. Given the evidence in this case and the context in which the advice was proffered, I am not satisfied that the reliance upon it was unreasonable. In Ostrowski v Palmer (2004) 218 CLR 493, the reliance on the advice given by the government agency was not found unreasonable and the situation here is similar. After all, how else is a person to determine when they are ‘right to drive’? Mr Bolt suggested that government information is unhelpful - the NSW government website that I think he is referring to is the Centre for Road Safety (part of Transport For New South Wales) [2] where there is the surprisingly definitive, oft-quoted statement made (my emphasis):


Cannabis can be detected in saliva for up to 12 hours after use. Stimulants (speed, ice and pills) can be detected for one to two days.


68. Mr Bolt’s reference to ‘unhelpful’ is aptly restrained.


Conclusion


69. In my view there is no bar to raising the defence in the current circumstances. Given the length of time given following the ingestion of the cannabis, the elimination of passive ingestion as a source, and in addition the advice proffered by the police officer on the previous occasion, I am satisfied that the belief was honest and reasonable. More precisely, the prosecution have not negatived the defence.


70. Accordingly, I find the defendant not guilty in respect to the June offence, and will proceed to sentence on the May offence on a date to be fixed.

Magistrate David Heilpern


Lismore Local Court


1 February 2016


**********


Endnotes


1. 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 (8 September 2004)



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