District Court New South Wales Medium Neutral Citation: Chandiran v R [2022] NSWDC 576 Hearing dates: 12 October 2022 Date of orders: 22 November 2022 Decision date: 22 November 2022 Jurisdiction: Criminal Before: Scotting DCJ Decision: (1) Appeal allowed. (2) I set aside the conviction and the penalty imposed by the magistrate. Catchwords: CRIME – criminal liability – absolute liability – strict liability – availability of defence of honest and reasonable mistake of fact TRAFFIC LAW AND TRANSPORT – traffic law – offences – liability for offences – drive with a prescribed illicit drug in oral fluid Legislation Cited: Road Transport Act 2013 Road Transport (Safety and Traffic Management) Act 1999 Cases Cited: 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 Category: Principal judgment Parties: Niteshwaran Chandiran (Appellant) Rex (Crown) Representation: Counsel: B Green (Appellant) Solicitors: Swan and Associates (Appellant) Office of Director of Public Prosecutions (Crown) File Number(s): 2022/185833 Publication restriction: None Decision under appeal Court or tribunal: Newtown Local Court Jurisdiction: Local Court Date of Decision: 8 June 2022 Before: Acting Magistrate M Price JUDGMENT Introduction 1. On 8 June 2022, Niteshwaran Chandiran (the appellant) was convicted of an offence of driving a motor vehicle with an illicit drug, cocaine, present in his oral fluid contrary to s 111(1)(a) Road Transport Act 2013. The appellant brings this appeal as of right against the conviction. 2. The appellant represented himself in the Local Court but was represented by counsel on the appeal. 3. On 13 March 2021, the appellant was driving a motor vehicle when he was stopped for the purpose of a random breath test. After the random breath test returned a negative result, he was subjected to an oral fluid drug test. The roadside test registered a positive detection for cocaine. He was taken to Petersham Police Station to undergo a secondary oral fluid screening test, which returned a negative result. A portion of the sample was sent to the NSW Forensic and Analytical Science Service (FASS) for analysis. The analyst reported that the sample indicated the presence of cocaine. 4. On the night, the appellant told the police officer Senior Constable Conlon, that he had not used any illicit drugs. In the Local Court, the appellant gave evidence that he had never used cocaine. 5. The magistrate in his judgment recorded the appellant's categorical denial of using any illicit drugs. The magistrate made positive findings about the appellant's evidence, to the effect that he was left with little doubt about the sincerity of the appellant's evidence and that the overwhelming impression was that the appellant presented positively in his sworn account. 6. In this Court, the appellant contended that he was entitled to rely on the defence of honest and reasonable mistake of fact that he did not have cocaine in his system when he was driving on 13 March 2021 because he had never used cocaine: Proudman v Dayman (1941) 67 CLR 536. 7. The two issues in the appeal are: 1. Was the offence an absolute liability offence, for which the Proudman v Dayman defence is unavailable? and 2. If not, has the prosecution negatived the defence? 1. As a fallback position, the appellant sought to lead fresh evidence on the appeal about the possible contamination of the sample sent to FASS. It is unnecessary to consider this aspect of the appeal, because for the reasons that follow, I have decided that the appellant should succeed on his primary argument. Relevant law 1. Section 111(1)(a) Road Transport Act 2013 relevantly provides: (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 Maximum penalty—20 penalty units for a first offence 1. A conviction for an offence under s 111(1) also carries with it an automatic period of disqualification of 6 months reducible to a minimum period of 3 months: s 205 Road Transport Act 2013. 2. In Director of Public Prosecution v Bone (2005) 64 NSWLR 735, Adams J decided that the offence of drive with a mid-range of prescribed concentration of alcohol in a person's blood contrary to s 9(3)(a) Road Transport (Safety and Traffic Management) Act 1999 was a strict liability offence, to which the defence applied for the following reasons: 1. As a general rule, an honest and reasonable belief in a state of facts which, if they existed, would make the defendant's act innocent affords an excuse for doing what would otherwise be an offence: Proudman at 540. 2. The potential consequences of a conviction for drink driving including imprisonment for a mid-range offence, mandatory disqualification and public obloquy and disgrace, weighed against the imposition of absolute liability. 3. Whilst the legislation was intended to encourage drivers to be careful in their consumption of alcohol, it may be difficult for a person to avoid the risk if their drinks are spiked, unless they are subjectively aware of the effects of intoxication. Consideration Strict or absolute liability 1. Whilst the decision in Bone is not binding on me, I find it to be highly persuasive and that it should be applied in the circumstances of this case for the reasons that follow. 2. First, the language of the statute in Bone is very similar to the modern equivalent mid-range drink driving offence provided for by s 110(4) Road Transport Act 2013. The language used in s 110 is in turn very similar to s 111 Road Transport Act 2013. There are no express words in s 111(1) that distinguishes it as an offence from the offences provided for by s 110, other than different maximum penalties. 3. Second, whilst the possibility of imprisonment in Bone was a significant factor it was not decisive. The s 111(1) offence carries the same potential for public obloquy and disgrace as well as punishment by way of a fine and mandatory disqualification, referred to by Adams J. 4. Third, the purpose of the s 111 offences is to discourage the use of illicit drugs before driving. However, it is possible to be exposed to illicit drugs inadvertently and without the person being a willing user of those substances, such as being present when a drug is smoked by another person: Beattie v Potts [2015] ACTSC 350. It follows 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 were exposed to the illicit drug and thereby how it came into their system. 5. Fourth, Adams J conducted a comprehensive review of the relevant authorities with the benefit of detailed submissions on the issue, including the application of He Kaw The v The Queen (1985) 157 CLR 523 to the graduated scheme of drink driving offences. His decision is well-reasoned and compelling. 6. Finally, I was not referred by the Crown to any persuasive authority for the proposition that a driving offence of a similar nature was an absolute liability offence. To the contrary, every case I reviewed, decided or accepted that these offences were strict liability offences. Proudman v Dayman 1. Having found that the offence is a strict liability offence, I now turn to the application of the defence in the present case. 2. The appellant was unrepresented in the Local Court and unsurprisingly did not refer to the defence specifically. However, he denied ever using illicit substances, including cocaine. 3. On my reading of the magistrate's decision, he accepted the appellant's evidence, but felt that the appellant's argument was insufficient to overcome the prima facie evidence in the relevant certificate and therefore had no alternative but to find the offence proven. I am satisfied that the magistrate erred in this reasoning for the reasons that follow. 4. The effect of the appellant's evidence was that he had never used cocaine. He was cross-examined on this evidence on the basis that it was false and he had intentionally used cocaine. No other possible means of exposure to cocaine were suggested to him in cross-examination, to comment on. The appellant maintained his denial that he had never used cocaine. 5. The magistrate accepted the appellant's evidence and thereby accepted that the cocaine that was present in the appellant's oral fluid was not present as a result of the appellant's intentional use of cocaine. 6. The appellant's evidence, even before it was so emphatically accepted by the magistrate, raised reasonable possibility that the cocaine in his oral fluid was present through a process other than intentional ingestion. It fell to the prosecution to negative that possibility and it did not do so. 7. The prosecution did not establish that the appellant's evidence was false or prove some other inculpatory exposure to cocaine. In the circumstances, there was clearly a reasonable doubt as the appellant's guilt and the appellant was entitled to be acquitted. Orders 1. The orders I make are as follows: 1. Appeal allowed. 2. I set aside the conviction and the penalty imposed by the magistrate. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 November 2022