Chandiran v The The King

[2022] NSWDC 576

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…