Appeal of Francesco Mendolicchiu [2008] NSWDC 182

Appeal of Francesco Mendolicchiu [2008] NSWDC 182

The defence of honest and reasonable mistake of fact is available for the offence of driving with a prescribed concentration of alcohol under s 9(2). The appellant discharged his evidentiary burden by adducing unchallenged evidence of ingesting cough medicine containing alcohol without knowledge, thus raising the defence; the prosecution failed to rebut this beyond reasonable doubt. Conviction quashed and appeal allowed.

Parties
Appellant: Francesco Mendolicchiu; Respondent: NSW DPP
Jurisdiction
Australia
Judgment Date
27 August 2008
Procedural Posture
Criminal Appeal / Appeal From Local Court Conviction
Outcome
Appeal allowed, conviction quashed.
Legal Topics
Driving With Prescribed Concentration of Alcohol, Honest and Reasonable Mistake, Burden of Proof, Evidentiary Burden
Criminal Law Road Traffic Driving With Prescribed Concentration of Alcohol Honest and Reasonable Mistake Burden of Proof Evidentiary Burden

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Parties

Francesco Mendolicchiu

Appellant

NSW DPP

Respondent

Procedural Posture

Criminal Appeal / Appeal From Local Court Conviction

Legal Issues

  1. 1 Whether the defence of honest and reasonable mistake of fact is available to the offence of driving with a prescribed concentration of alcohol
  2. 2 Whether the appellant made out the defence of honest and reasonable mistake of fact to the charge
  3. 3 Whether the matter should be dealt with under section 10 of the Crimes (Sentencing Procedure) Act 1999 if the offence is otherwise established

Ratio Decidendi

The defence of honest and reasonable mistake of fact is available for the offence of driving with a prescribed concentration of alcohol under s 9(2). The appellant discharged his evidentiary burden by adducing unchallenged evidence of ingesting cough medicine containing alcohol without knowledge, thus raising the defence; the prosecution failed to rebut this beyond reasonable doubt. Conviction quashed and appeal allowed.

Court Disposition

Appeal allowed, conviction quashed.

Orders

  • Conviction quashed.