New South Wales District Court CITATION: Appeal of Francesco Mendolicchiu [2008] NSWDC 182 HEARING DATE(S): 20 August 2008 JUDGMENT DATE: 27 August 2008 JURISDICTION: Criminal JUDGMENT OF: Goldring DCJ DECISION: Allow appeal. Quash conviction. CATCHWORDS: CRIMINAL LAW - Road Traffic - driving with PCA - Defence of honest and reasonable mistake - Evidence - burden of proof - evidentiary burden Crimes (Appeal and Review ) Act 2001 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Road Transport (Safety & Traffic Management) Act 1999 CTM v The Queen [2008] HCA 25 CASES CITED: DPP v Bone [2005] NSWSC 1239 Elliott v Crawford TasSC 30 Nov 1989 PARTIES: Francesco Mendolicchiu (Appellant) NSW DPP (Respondent) FILE NUMBER(S): 08/12/0904 COUNSEL: J W Shaw QC (Appellant) L Coyle, solicitor (Respondent) SOLICITORS: The People's Solicitors (Appellant) NSW DPP (Respondent) JUDGMENT 1 The appellant pleaded guilty in the Balmain Local Court on 4 June 2008. He was charged with driving a vehicle with a low range concentration of alcohol in his blood. He was convicted and fined $900 plus costs and disqualified from driving for 12 months. 2 He seeks leave to appeal to this Court pursuant to Crimes (Appeal and Review) Act 2001, s 12. After hearing the application, I determined there was a significant point of law involved in the appeal and granted leave to appeal. I now grant leave for him to withdraw his plea of guilty. 3 There is no doubt that, at the time he was stopped by police and his breath was analysed, the concentration of alcohol in the appellant's blood was 0 .055. The appellant does not deny that he had been to dinner with some friends and had drunk some wine with dinner. Although he was surprised by the reading when he was breathalysed, he did not doubt or ever contest the accuracy of the reading. He was acutely aware of the offence because in evidence there are documents showing that, following a conviction for a low range PCA charge very recently, he completed a Traffic Offender Intervention Program successfully and was intending to drive responsibly. 4 The issues for me to decide on this appeal are: (i) whether the defence of honest and reasonable mistake of fact is available where the charge is driving with above the prescribed concentration of alcohol in the blood; (ii) whether he has made out a defence of honest and reasonable mistake to the charge and is not guilty; (iii) if he has committed the offence, whether the matter should be dealt with under the Crimes (Sentencing Procedure) Act 1999, section 10. 5 In the affidavit in support of his application, which was not challenged, he stated that at the time of the offence he was suffering from a bad cold and had taken cough mixture containing ethanol, a form of alcohol, at 6.30 p.m. He was apprehended about three hours later. It is not suggested that the cough mixture by itself would have been sufficient to raise the concentration of alcohol in his blood over the limit. He says also that by itself, the wine he consumed with his dinner would not have done so. His belief was that he had ingested wine in a quantity that was not enough to make his alcohol concentration above the limit. 6 Mr Shaw QC, on his behalf, advanced the proposition that the offence to which he pleaded guilty was not an offence of strict liability. If the appellant were given leave to withdraw his plea of guilty, Mr Shaw would then advance the proposition that the appellant did not know that his blood alcohol concentration was over the limit, and he had honest and reasonable grounds for believing that it was not, because he had been taking a cough medicine which in fact contained alcohol, but which, at that time, he did not know contained alcohol. 7 The relevant legislation reads as follows: Road Transport (Safety and Traffic Management) Act 1999, s 9 Offence - low range prescribed concentration of alcohol (2) A person must not, while there is present in his or her breath or blood the low range prescribed concentration of alcohol: (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 a drivers licence (other than a provisional licence or a learner licence) -occupy the seat in a motor vehicle next to a holder of a learner licence who is driving the vehicle. 8 On its face, this section appears to speak in absolute terms. The offence is committed if the accused person drives the vehicle and if he or she has the prescribed concentration of alcohol. How the alcohol got into the person is irrelevant. 9 To me, if the matter were free from authority, the words creating this offence appear to show an intention to establish an offence of strict liability. However, it is clear that the law leans against the creation of such offences without clear and express words in the statute. It was not suggested in this case that the prosecution must prove intention in ordinary circumstances. 10 In CTM v The Queen [2008] HCA 25 the High Court has affirmed the general principle that honest and reasonable belief in a state of events which, if true, would render a person not guilty of an offence, will be a defence to a charge of committing that offence if the accused proves, on the balance of probabilities, that he or she had such a belief. Mr Shaw says that here the appellant had taken the cough mixture, and therefore had honest and reasonable grounds for believing that his blood alcohol concentration was below the prescribed limit. 11 The case of DPP v Bone [ 2005] NSWSC 1239 is binding on me. There, Adams J considered that the defence of honest and reasonable mistake was available to an offence under the Road Transport (Safety and Traffic Management) Act 1999, s 9 (3). It was not necessary for him to decide whether the offence was made out: [37]. His Honour purported to follow and apply Elliott v Crawford (Supreme Court of Tasmania, 30 November 1989) a decision of Underwood J, upon which Mr Shaw also relied. 12 The prosecution points out that where an accused person is charged under s 9 (1A), the provision dealing with holders of provisional licences or learners permits, an offence is committed if any concentration of alcohol at all is present. A specific defence is provided for a driver who has ingested alcohol because it is contained in medicine. The relevant provision reads: 11A Defence for offence relating to novice range prescribed concentration of alcohol It is a defence to a prosecution for an offence under section 9 (1A) if the defendant proves that, at the time the defendant did the act referred to in section 9 (1A) (a) or (b), 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 any of the following: (a) the consumption of an alcoholic beverage (otherwise than for the purposes of religious observance), (b) the consumption or use of any other substance (for example, food or medicine) for the purpose of consuming alcohol. 13 The prosecution case is that it could not be the intention of Parliament to allow a defence similar to that provided by s 11 where a person is charged under s 9(2). If Parliament had intended that there should be such a defence, it would have made a similar specific provision. 14 This argument appears to be similar to the argument rejected by the majority of the High Court in CTM. The absence of a specific defence does not mean that the general common law principle does not apply. 15 I find, albeit reluctantly, that the defence of honest and reasonable mistake of fact is available. 16 The next issue is whether the appellant has discharged the evidentiary burden that falls on him. His unchallenged evidence is that the cough mixture he had taken contained alcohol, and the inference that must be drawn is that that alcohol would have been reflected in the concentration of alcohol measured by the police. Having raised the possibility that the ingestion of medicine had an effect on his blood alcohol concentration, must the appellant then show that his belief, that he was below the limit, was reasonable ? 17 The prosecution case is that he has not done so. It is necessary, it says, for the appellant to adduce evidence to demonstrate the effect of taking the cough mixture. The appellant says that, by asserting that at the time he was apprehended, he had consumed a cough mixture without knowing that it contained alcohol, he has raised the possibility of a defence. Therefore, in the appellant's submission, the evidentiary burden shifts to the prosecution to negative the defence. 18 There is a great deal of merit in this argument, as a matter of general principle. If, in general terms, a defence is available, it is not incumbent on the accused to do more than raise the possibility of its existence. The evidentiary burden shifts to the prosecution to negative the defence, and to do so beyond reasonable doubt. It is a fundamental principle of criminal law that an accused person, in the absence of a specific requirement of the law, need not prove anything. There is no reason why that general proposition does not apply in the circumstances of this case. 19 In my view, the position of the prosecution would have been stronger if it had challenged the assertion made by the appellant in his affidavit, or at least required him for cross-examination, so that the strength of his assertion about honest and reasonable belief might be tested. By failing to do so, the prosecution accepts the truth of the assertions made by the appellant. It would be open to the prosecution to test the strength of the evidence adduced by the appellant, and if necessary to call evidence to rebut any assertion made by the appellant. It may have been difficult in the circumstances in which I dealt with this appeal for the prosecution to have done so, because it was necessary for me to hear the whole of the appellant's case in order to determine whether leave should be granted. However, it would have been open to the prosecution to seek to have the matter adjourned as soon as I announced my determination to grant leave. 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. 21 I therefore allow the appeal and quash the conviction. 22 I should say that even if the decision on the point of law had been different, notwithstanding the fact that the appellant has a previous conviction for driving with a low range concentration of alcohol, which is quite recent, the circumstances of this offence, raised the possibility that his commission of the offence, though technically proved by the presence of the relevant level of alcohol concentration, is sufficiently explained by his consumption of the cough medicine to constitute circumstances which are completely different from the arguments one commonly hears in such cases. 23 The appellant, despite some historical offences, appears to be a well-regarded member of the community and performs many useful functions in the community and particularly the Italian community. However, the main reason which leads me to make this statement are the circumstances of the offence. It would in my view be an appropriate case in which to dismiss the charges pursuant to the Crimes (Sentencing Procedure) Act, section 10. ********** 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.