R v Salim [2023] NSWLC 8

Local Court New South Wales

Medium Neutral Citation: R v Salim [2023] NSWLC 8 Hearing dates: 03 September 2023 Date of orders: 26 October 2023 Decision date: 26 October 2023 Jurisdiction: Criminal Before: Donnelly LCM Decision: (1) The defendant failed to meet the evidentiary standard of proof of an honest and reasonable mistake of fact. (2) All ingredients of the charge were established beyond reasonable doubt. (3) The defendant is found guilty of the charge under s 111 Road Transport Act 2013 (NSW). Catchwords: CRIMINAL LAW – Road Transport Act 2013, s 111 – drive with illicit drug present in blood – availability of ground of exculpation of honest and reasonable mistake of fact – conflicting District Court decisions as to whether the offence is one of absolute liability or strict liability – court followed the line of authority which held the offence under s 111 is one of strict liability and the ground of exculpation is available – instant case – the defendant's belief was honestly held but not reasonable in the circumstances Legislation Cited: Interpretation Act 1987 (NSW) Road Transport Act 2013 (NSW) Road Rules 2014 (NSW) Road Traffic Act 1934-1939 (SA) Road Transport Legislation Amendment (Drug Testing) Act 2006 (NSW) (Rep.) Road Transport (General) Act 1999 (Act) (Rep.) Road Transport (Safety and Traffic Management) (Driver Fatigue) Regulation 1999 (NSW) (Rep.) Cases Cited: Appeal of Francesco Mendolicchiu [2008] NSWDC 182 Application by Attorney General under s 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 Chandiran v R [2022] NSWDC 576 CTM v The Queen (2008) 236 CLR 440 [2008] HCA 25 DPP v Bone [2005] NSWSC 1239 El Hassan v NSW DPP [2000] NSWCA 330 DPP v Kailahi (2008) 191 A Crim R 145; [2008] NSWSC 752 Narouz v R [2023] NSWDC 293 NSW Police v Carrall [2016] NSWLC 4 Ostrowski v Palmer (2004) 218 CLR 493; [2004] HCA 30 Parker v R [2023] NSWCCA 234 Prineas v R (2018) 86 MVR 148; [2018] NSWCCA 221 Proudman v Dayman (1941) 67 CLR 536 R v Delbridge [2019] NSWDC 450 RTA of NSW v Jara Transport Pty Limited [2005] NSWSC 1021 Valentine v Eid (1992) 27 NSWLR 615 Woolmington v Director of Public Prosecutions [1935] UKHL 1; [1935] AC 462 Texts Cited: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 17 October 2018 Category: Principal judgment Parties: Police (Prosecution) Ibrahim Salim (Defendant) Representation: Counsel for the Defendant: Mr Z Khatiz (Oxford Lawyers) Counsel for the Prosecution: Sergeant Sanders File Number(s): 2023/00052679 Publication restriction: Nil