NSW Police v Carrall [2016] NSWLC 4

NSW Police v Carrall [2016] NSWLC 4

The offence under s 111 Road Transport Act 2013 is a strict liability offence, not an absolute liability offence, and the defence of honest and reasonable mistake of fact is available. The defendant's belief that he no longer had THC present in his oral fluid was a mistake of fact, was honestly held, and was reasonably held in the circumstances, including that he last smoked cannabis at least nine days earlier, passive ingestion was not established, and he relied on advice from the police officer that after a week he should be clear to drive. The prosecution did not negative the defence, so the June offence was not proved.

Jurisdiction
Australia
Judgment Date
01 February 2016
Procedural Posture
Criminal Proceedings for Driving With an Illicit Drug Present in Blood or Oral Fluid Under S 111 Road Transport Act 2013 / Reasons for Decision After Hearing; Defendant Pleaded Guilty to the May Offence and Not Guilty to the June Offence
Outcome
Defendant found not guilty of the June offence; the court will proceed to sentence on the May offence on a date to be fixed.
Legal Topics
['driving With Illicit Drug Present' 'cannabis Detected in Oral Fluid' 'strict Liability' 'honest and Reasonable Mistake of Fact']
['criminal Law' 'road Transport Offences'] ['driving With Illicit Drug Present' 'cannabis Detected in Oral Fluid' 'strict Liability' 'honest and Reasonable Mistake of Fact']

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Procedural Posture

Criminal Proceedings for Driving With an Illicit Drug Present in Blood or Oral Fluid Under S 111 Road Transport Act 2013 / Reasons for Decision After Hearing; Defendant Pleaded Guilty to the May Offence and Not Guilty to the June Offence

Legal Issues

  1. 1 ['Whether the defence of honest and reasonable mistake of fact is available to a charge under s 111 Road Transport Act 2013.' 'Whether the defendant honestly believed that cannabis was no longer present in his system when he drove on 23 June 2015.' 'Whether that belief was reasonably held, including in light of the time since cannabis use and police advice said to have been given after the May offence.' "Whether the defendant's asserted mistake was a mistake of fact rather than a mistake of law."]

Ratio Decidendi

The offence under s 111 Road Transport Act 2013 is a strict liability offence, not an absolute liability offence, and the defence of honest and reasonable mistake of fact is available. The defendant's belief that he no longer had THC present in his oral fluid was a mistake of fact, was honestly held, and was reasonably held in the circumstances, including that he last smoked cannabis at least nine days earlier, passive ingestion was not established, and he relied on advice from the police officer that after a week he should be clear to drive. The prosecution did not negative the defence, so the June offence was not proved.

Court Disposition

Defendant found not guilty of the June offence; the court will proceed to sentence on the May offence on a date to be fixed.

Orders

  • ['I find the defendant not guilty in respect to the June offence.' 'I will proceed to sentence on the May offence on a date to be fixed.']