Evers v Lawrence
[2020] ACTSC 289
•12 October 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Evers v Lawrence |
Citation: | [2020] ACTSC 289 |
Hearing Date: | 12 October 2020 |
DecisionDate: | 12 October 2020 |
Before: | Mossop J |
Decision: | Appeal dismissed and conviction and sentence confirmed. |
Catchwords: | CRIMINAL LAW – APPEAL – Appeal from the Magistrates Court against conviction – negligent driving and driving with a prescribed drug in oral fluid or blood – whether an extension of time for the hearing of the information was properly granted for service of summons – it was – whether the magistrate established the cause of the motor vehicle accident and the circumstances of the negligent driving beyond reasonable doubt – he did – whether the magistrate incorrectly dealt with the defence of mistake – he did not – appeal dismissed CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Limitation of time for prosecution – appellant argued that the extension of time for the hearing was not properly granted under s 41(3) of the Magistrates Court Act 1930 – affidavit explained that the summons on the appellant was unable to be effected – proceeding must be “begun” within a year after the commission of the offences – appellant submitted that this required service upon the accused person – a proceeding is “begun” for the purposes of s 192 of the Legislation Act 2001 when it is “started” under s 25 of the Magistrates Court Act 1930 – requires the laying down of information – appeal dismissed |
Legislation Cited: | Criminal Code 2002 (ACT), ss 23, 35, 36 Legislation Act 2001 (ACT), s 192(2) Road Transport (Safety and Traffic Management) Act 1999 (ACT), s 6(1)(c) |
Cases Cited: | Burridge v Chief Magistrate of the Magistrates Court of the Australian Capital Territory [2016] ACTSC 332; 317 FLR 26 Lukatela v Birch [2008] ACTSC 99; 223 FLR 1 |
Parties: | Marnie Evers (Appellant) Troy Lawrence (Respondent) |
Representation: | Counsel J Keys (Appellant) K McCann (Respondent) |
| Solicitors ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 13 of 2020 |
Decision under appeal: | Court/Tribunal: Magistrates Court of the ACT Before: Acting Chief Magistrate Theakston Date of Decision: 19 February 2020 Case Title: The Police v Evers Court File Numbers: CC 7812 of 2018 CC 7813 of 2018 |
MOSSOP J:
Introduction
The appellant was charged with one count of negligent driving, contrary to s 6(1)(c) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT). The maximum penalty for this offence is a fine of $3200. She was also charged with one count of driving with a prescribed drug in her oral fluid or blood, contrary to s 20(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT). As the appellant was a repeat offender, the maximum penalty for this offence is a fine of $4000, three months’ imprisonment or both.
On 19 February 2020 a magistrate convicted the appellant of both counts. The appellant was fined $1000 in relation to the negligent driving and was fined $500 and disqualified from driving for 12 months in relation to the driving with a prescribed drug.
Grounds of appeal
The appeal is under Div 3.10.2 of the Magistrates Court Act 1930 (ACT). It is by way of rehearing. The appellant must establish error: see generally Lukatela v Birch [2008] ACTSC 99; 223 FLR 1 at [11]-[24]
The grounds of appeal set out in the Notice of Appeal are:
(a)An extension of time by the Court or a Magistrate or the registrar pursuant to section 41(3) of the Magistrates Court Act for the hearing on 31 July 2018 until 27 March 2019 was not properly obtained or granted; including that there has been no statement on oath or affidavit explaining why the Summons issued on 4 July 2018 was not able to be served 72 hours prior to the hearing on 31 July 2018 in accordance with section 41(1) and 41(2) of Act.
(b)In the event that the extension of time pursuant to section 41(3) of the Magistrates Court Act was validly obtained or granted –
(i)the Court failed to establish the cause of the motor vehicle accident on 23 February 2018 and the circumstances or particulars of the accused/ appellant’s negligent driving in that context, beyond a reasonable doubt;
(ii)the Court misapplied the circumstances where there is no criminal responsibility, specifically mistake and ignorance in Division 2.3.4 of the Criminal Code, to the strict liability offence under section 20(1) of the Road Transport (Alcohol and Drugs) Act 1977.
Although the Notice of Appeal stated that all of the orders made by the magistrate on 19 February 2020 were appealed from, there was no separate challenge to the sentences imposed.
Ground (a)
Having regard to what I said about the relationship between an information, a summons and the jurisdiction of the Magistrates Court in Burridge v Chief Magistrate of the Magistrates Court of the Australian Capital Territory [2016] ACTSC 332; 317 FLR 26 at [38]-[47], and the fact that the appellant appeared in response to the summons on 31 July 2018, it is not apparent that any defect in the process adopted under s 41 of the Magistrates Court Act could be of any consequence for the proceedings heard on 19 February 2020.
In support of this ground of appeal, the appellant submitted that an extension of time under s 41(3) of the Magistrates Court Act was not properly granted.
Section 41 relates to the service of a summons. It must be given to the person or left at the last-known or usual home or business address of the person with a person who appears to be at least 16 years old and to live or be employed at that address: s 41(1). Section 41(2) provides that it must be effected at least 72 hours before the time appointed in the summons for the hearing of the information. Section 41(3) allows a magistrate or the registrar to extend the time for the hearing. That can occur where “it appears to the court or a magistrate or the registrar, by statement on oath or by affidavit, that from any cause service in accordance with subsections (1) and (2) cannot be effected”. The effect of the provision is simply to put back the listed hearing date so as to enable continued efforts to serve the person in a way which would still comply with the 72 hour requirement.
The summons was dated 4 July 2018. The date listed for hearing was 31 July 2018. The summons in question is stamped as follows “Pursuant to S.41(3) of the Act the time for hearing is extended”. The bench sheet records that on 31 July 2018 there was no appearance by the appellant and there was no proof of service. On 7 March 2019 the appellant did appear, and the charge was read to her.
When the matter came on for hearing on 19 February 2020 the appellant and her counsel did not initially appear as they were late for court. When they did turn up Ms Keys, counsel for the appellant, raised the issue of an alleged failure to comply with s 41(3). The magistrate showed her an affidavit of Danielle Joy Lynch dated 29 January 2019. Despite being shown that affidavit, the application was pressed on the basis that “the affidavit that you have shown me does not adequately explain why that wasn’t served 72 hours before that date in July 2018, and therefore why the court order may extend the time for the hearing after that date”. His Honour pointed to the terms of the affidavit which said “Service of the information and summons on the defendant was unable to be effected at least 72 hours before the hearing of the summons because the defendant was unable to be located or contacted in time for court.” The submission was made that the statement was ambiguous because it did not say why the appellant could not be served.
His Honour then ruled and gave reasons as follows:
I note there’s an application to stay the proceedings on the basis of non-complainant [sic] with section 41 of the Magistrates’ Court Act 1930. It was on the basis that the summons was served after the initial return date was set and certainly well after the 72 hours before that initial date, and what has been put to me that while the documents contain a stamp that references section 41(3), there was no affidavit to support, or as required by that subsection, to allow the registrar or the court to extend the time for hearing.
On the court file there is an affidavit by Danielle Joy Leach [sic]. It is sworn on 29 January 2000 and probably 19, but it also contains the number 2018. It does, to my mind, adequately meet the requirements of section 41(3) and in those circumstances I cannot see a basis for the application. The application is dismissed.
There was then an application by counsel for the appellant to adjourn the proceedings “to allow the defendant to file an application under the Administrative Decisions (Judicial Review) Act for review of your decision”.
Obviously, that was a misconceived application, referring as it did to the procedure for reviewing administrative decisions. After some further submissions made by counsel for the appellant, none of which disclosed any coherent reason to grant an adjournment, his Honour declined to adjourn the proceedings and gave reasons for his decision.
The appellant’s first submission was that “the Magistrate made errors of fact in the context of his consideration of whether the requirements of section 41(3) … had been satisfied”. The first submission referred to the absence of the affidavit that his Honour referred to, and which was shown to Ms Keys at the hearing, from the material in the schedule of documents prepared for the purposes of the appeal. The absence of material from the schedule of documents does not provide a basis for interfering with the decision.
The second submission was that “the proceedings were not began [sic] within the period proscribed by section 192(2) of the Legislation Act, that is 1 year after the day of commission of the offence/s on 23 February 2018”.
The appellant’s first submission was misconceived. Section 41(3) has nothing to do with the commencement of the proceedings. The proceedings were commenced by the swearing of the information before the registrar on 4 July 2018. That is made clear by s 25 of the Magistrates Court Act, which provides “A proceeding may be started in the court by information laid by the informant or by a lawyer or anyone else representing the informant.” Section 30(3) provides that if a summons is intended to be issued in the first instance against the person charged, the information may be made orally and without oath. Section 38 relates to the form of the summons.
The appellant’s second submission was also misconceived. The offence was alleged to have occurred on 23 February 2018. The summons was issued on 4 July 2018. That was clearly within the period of one year after the offence and hence it was within the one-year period prescribed by s 192(2) of the Legislation Act 2001 (ACT).
At the hearing of the appeal the appellant submitted that the reference in s 192(2) of the Legislation Act to “begun” is different to the proceedings being “started’ in s 25 of the Magistrates Court Act. Counsel submitted that to be “begun” the accused person needed to be served. No authority was cited for this proposition. I do not accept it. As a matter of ordinary language “starting” proceedings is the same as “beginning” them. A proceeding is “begun” for the purposes of s 192 when it is “started” under s 25.
Therefore, even though the summons was only served on 25 February 2019, one year and two days after the commission of the offences, the proceedings were still commenced within the time required by s 192 of the Legislation Act.
Ground (b)(i)
The appellant submitted that the court failed to establish the cause of the motor vehicle accident and the circumstances of the appellant’s negligent driving beyond reasonable doubt. The relevant part of the magistrate’s decision is as follows:
To my mind, the negligent driving commenced before the vehicle in front stopped. It occurred because the defendant was driving either too close to the vehicle or not paying enough attention. In any event, it is clear that she did not slow her vehicle down enough to avoid the collision in circumstances where she was approaching a line of traffic that was slowing down and/or stopped at a red traffic light.
I have no hesitation in making the finding he [sic] defendant was negligent when she drove her truck at a speed in such a way that she was unable to pull the truck up, to stop the truck in circumstances where traffic pulled up quickly in front of her, and I make that finding noting that Mr Bionda’s evidence was that he did stop abruptly and that, to my mind, does not remove the need or in any way in this case negate the finding that the defendant was driving negligently.
I say that because this is not a case where a single car suddenly land [sic] surprisingly and abruptly stops in front of the truck. The car in question stops because the car in front of it stopped, and that car stopped because the car in front of it stopped. This whole concertinaed stopping was something that should have been anticipated and hence why I find the defendant was in fact driving negligently.
The appellant relied upon:
(a)The evidence of Kelvin Bionda that he had stopped abruptly and just in time.
(b)The evidence of Alexander Barrett that it was a quick stop, but he did not have to use his emergency braking, and that he heard a loud screeching noise before he heard a loud crash behind him. The appellant submitted that this did not lend support to the magistrate’s finding that it was not a case where a single car suddenly, surprisingly and abruptly stopped in front of the truck.
(c)The evidence of the appellant that when she saw the car in front of her “sort of swerving trying to stop” she realised that she was not going to have enough time to stop and she hit the brakes until the impact.
(d)The photographs of the scene showing that Mr Bionda’s vehicle came to a stop at a slight angle facing toward the side of Gundaroo Drive when it was shunted from behind by the appellant’s truck. The predominant damage to Mr Bionda’s vehicle was on the front driver side and the appellant submitted that this was consistent with Mr Bionda’s car swerving when he was trying to stop urgently and abruptly. Similarly, the photographs of the truck show more significant damage on the passenger side of the cabin, which the appellant submitted was consistent with Mr Bionda’s vehicle having been swerving before it came to an urgent and abrupt stop.
The appellant submitted that this was a case where a single car suddenly, surprisingly and abruptly stopped in front of her truck, and that the appellant’s desperate attempt to stop in that sudden and immediate emergency did not involve any departure from the standard of care expected of the ordinary prudent driver in those circumstances.
The accident in question occurred at about 11:40am on 23 February 2018. The appellant was driving her white Hino 300 truck on Gundaroo Drive, Gungahlin. There were roadworks on that road and the traffic was slow and had come to a stop. However, the appellant did not stop and collided with the rear of a grey Holden Colorado motor vehicle, which was stationary in the line of traffic. The Holden Colorado then collided with the cars in front of it.
The prosecution needed to establish that the appellant drove in a manner which involved a departure from the standard of care for other road users to be expected of an ordinary prudent driver in the circumstances.
The evidence of Mr Bionda, who was driving the Holden Colorado, was that the traffic was slow, that there were roadworks happening at the time and that he had to hit his brakes pretty hard, because it was pretty abrupt, and he stopped just in time. He looked in his rear vision mirror and saw the truck coming towards him and braced himself. After the collision he spoke to the appellant who was “quite hysterical”. She said that she had hit the accelerator instead of the brake. He agreed that he had stopped his car quite urgently and the appellant would have had more difficulty stopping because she was behind him. In answer to a question asked by his Honour the witness said that, although it was hard to estimate the distance of the truck when he saw it, he thought it was 30 or 40 m away. He said “it looked like a – a fair amount of distance because I had time to, you know, brace myself for it”. In cross‑examination he said that the traffic lights were 60 or 70 m away, possibly less, and that he had stopped because the cars in front of him had stopped. He agreed that he had to stop quite urgently himself. He said that his tyres did not lock up and there was no screeching. He was taken through his police statement. It was suggested to him that the appellant did not say to him that she had hit the accelerator instead of the brake and his answer, “okay”, seemed to indicate that he accepted that it was being put to him but did not necessarily agree with that. The following exchange occurred:
And it would be reasonable or to assume that if you had difficulty stopping that the person behind you would have more difficulty stopping because there is less---?---Most definitely.
Less period, less distances to stopping.?---Yes, but – most definitely. That’s why I looked in the rear vision mirror because I did struggle to stop.
The next witness was Mr Barrett, who was driving a BMW sedan. He said that Gundaroo Drive was a single lane road heading down towards the lights and there was “a bit of roadwork”. He said that he had started stopping for the traffic lights which were red. He heard a noise behind him and he looked in his rear view mirror. He then got hit. His car then hit the car in front of him. In cross‑examination he estimated his distance from the lights as “maybe 40 metres”. He said that at the time he was hit he did not know whether the traffic lights were red. He said that as he pulled up, he believed that they were red but “there wasn’t that long of a lag period between when I pulled up and [the] crash”. He said that he heard a loud screeching noise behind him and that is what caused him to look up in his rear vision mirror. It was suggested to him that the loud screeching came from the car behind him, but he said he did not know. He was sure that the car behind him did not hit him until it was hit by the car behind it.
Kyle Larkins gave evidence that he was driving his work ute and, as he was approaching the traffic lights, he came to a set of cars that had already stopped. He looked into the mirror and saw two vehicles behind him slowly come to a stop. One of them was Mr Barrett’s BMW. He saw the truck and felt that it was not going to stop. He took his foot off the brake to prepare for a potential crash and then the crash occurred. His car ended up with a small dent in the back end of it. He recalled the appellant saying that she meant to press the brake but pressed the accelerator. In cross‑examination he said that “It was a normal slow and come to a stop” and this occurred in response to the traffic lights going red. He said he was about five to 10 cars back from the traffic lights.
Senior Constable Troy Lawrence gave evidence in cross‑examination that there were three lanes each way on Gundaroo Drive but at the time there were roadworks and only one lane either way.
Constable Craig Abbott said that he spoke to the appellant at the scene and she told him that she hit the accelerator instead of the brake. In cross-examination he denied that it was Mr Bionda who had told him that the appellant hit the accelerator instead of the brake.
The appellant gave evidence that she was driving along Gundaroo Drive following the traffic when she saw the car in front of her “sort of swerving trying to stop”. She realised that she would not have enough time to stop. She said that she hit the brakes, pushing on them until impact. She was asked whether she had told Mr Bionda that she had hit the accelerator rather than the brake and she said “I don’t remember saying that”. She was asked whether she had in fact hit the accelerator rather than the brake and she said “Not that I can recall. I can remember hitting the brakes, standing on the brakes for probably four car lengths trying to pull the truck up.” In cross‑examination she agreed that the collision had caused significant front‑end damage to her truck. She agreed that she did not remember saying to Constable Abbott that she had hit the accelerator rather than the brake. She agreed it could be possible that she said to Mr Bionda, Mr Larkins and Constable Abbott that she had pressed the accelerator rather than the brake. It was suggested to her that she had not left enough space between herself and the Holden Colorado to stop safely. In her answer, she made reference to the driving conditions. The following appears in the transcript:
And when you say the conditions of the road, do you mean the fact that there was a red light and traffic was banked up?---Yes, well, as I was going along the traffic was still all moving and then like I said, the fella in front of me, he pulled up like this and at that instance, because he was probably seeing the same instances of what I was seeing, but I was further behind, and being in the vehicle I had, I had four engines in the back of it, a gearbox and a diff housing, so the weight in the back of the truck, and it being an automatic, just for me to pull it up, it just wasn’t going to pull up.
…
MR DYASON: So I’ll just repeat the question. So you’d agree that you didn’t leave yourself enough space between your vehicle and the vehicle in front of you to stop safely, would you not?---Well, as it worked out.
She described the vehicle in front as “fishtailing it down to try and stop”. It was suggested to her that she hit the accelerator instead of the brake and that was what caused the collision. She said that was not correct.
In re-examination she said she was travelling three or four car lengths behind the ute and that she was probably doing around 50 km an hour.
Having regard to the evidence, there is no error demonstrated in the conclusion reached by the magistrate. Indeed, it appears to be the correct conclusion. It was clearly open to his Honour to find beyond reasonable doubt that the appellant was either driving too close to the vehicle in front or not paying enough attention to the traffic that was slowing down and stopping. Such a conclusion was entirely unremarkable having regard to the fact that it was a rear end collision involving vehicles slowing down at a traffic light. That is precisely the sort of circumstance in which drivers have particular obligations to take care by leaving an appropriate distance between them and paying careful attention to the behaviour of other vehicles. That is particularly so for drivers of trucks carrying significant loads, as the appellant was. That the vehicle in front was required to stop abruptly (and managed to do so) does not demonstrate that the appellant did not breach her duty.
If anything, the approach taken by his Honour was generous to the appellant because he appeared to treat the evidence of admissions by the appellant, that she had pressed the accelerator rather than the brake, as if it precluded her from having used the brake at all. However, the alternative, and in my view more likely, interpretation of the evidence was that she had initially accidentally pressed the accelerator rather than the brake, before deploying the brake in order to attempt to stop. Had his Honour adopted that approach to the evidence, then that would have provided an additional basis upon which to conclude that the appellant was negligent. However, having regard to the fact that no error is disclosed in the conclusion that his Honour reached, and no notice of contention was filed, it is not necessary to reach a final conclusion on this issue.
Ground (b)(ii)
This ground asserts that the court dealt incorrectly with the issue of mistake in relation to the drug driving charge.
In relation to this issue the magistrate said:
I then move on to the drug driving matter, essentially what is relied upon is the [defence] of honest and reasonable mistake which is codified these days in chapter 2 of the Criminal Code at section 36. It is agreed that this chapter applies to the offence at section 20 of the Road Transport (Alcohol and Drugs) Act 1977, save for what’s been carved out at section 20(4) which relates to a mistake of fact due to the effect of consumption of a cannabis food product on the presence of THC in a defendant’s oral fluid or blood.
I am not sure if that provision applies strictly here. There is no suggestion she consumed a food product. I am going to proceed on the basis that it does not apply. In any event, I find that the mistake of fact requirement is not met, and I say that because during cross‑examination the defendant conceded that the first time she turned her mind to whether or not she may have cannabis, or she may have cannabis in her system, was after the accident and when she was at the hospital. This is not a case whereby she had hopped in the car and before she drove consciously conducted a calculation or an assessment and thought, “No, I should have enough time since the last time I smoked to not have cannabis”. That assessment, that thought process simply had not taken place.
In any event, in addition to that, I find that the mere fact that someone has a couple of puffs on a Saturday or Sunday and then believes that he or she should be right to drive some five or six days later on the Friday without any reference to any benchmark or other information to my mind is simply not a reasonable approach. I think that is all I probably need to say about that and I do not accept that that defence is made out.
The elements of that offence involve the defendant driving a motor vehicle, that is conceded. There is evidence before me that she had THC in her blood at the relevant time and at the relevant period, and in those circumstances I find that offence proved as well.
The appellant submitted that the magistrate was wrong in dealing with the matter by reference to s 36 of the Criminal Code, which she accepted was clearly not satisfied. Instead, she submitted that s 35 was available as a defence.
Section 20 of the Road Transport (Alcohol and Drugs) Act provides:
20Prescribed drug in oral fluid or blood—driver or driver trainer
(1)A person commits an offence if the person—
(a)has been––
(i) the driver of a motor vehicle on a road or road related area; or
(ii) the driver trainer in a motor vehicle on a road or road
related area; and
(b)has, within the relevant period, a prescribed drug in the person’s oral fluid or blood.
Maximum penalty:
(a)for an offence by a first offender––10 penalty units; and
(b)for an offence by a repeat offender––
(i) if the offender is the driver—25 penalty units, imprisonment for 3 months or both; and
(ii) if the offender is the driver trainer—20 penalty units.
(2)Strict liability applies to subsection (1).
(3)A defendant in a prosecution for an offence against this section cannot rely on the Criminal Code, section 36 (Mistake of fact—strict liability) in relation to the identity of the prescribed drug if the defendant claims to have—
(a)considered, and been under a mistaken belief about, the identity of the prescribed drug; and
(b)believed that the prescribed drug was a controlled drug.
(4)A defendant in a prosecution for an offence against this section cannot rely on the Criminal Code, section 36 (Mistake of fact—strict liability) in relation to having delta-9-tetrahydrocannabinol in the defendant’s oral fluid or blood if the defendant’s mistake relates to the effect of consumption of a cannabis food product on the presence of delta-9-tetrahydrocannabinol in the defendant’s oral fluid or blood.
(5)In a proceeding for an offence against subsection (1), evidence may be given that a person has a prescribed drug in the person’s oral fluid or blood based on—
(a)for proof of the presence of a prescribed drug in the person’s oral fluid—an analysis of a part of a sample of the person’s oral fluid under section 13G (Oral fluid—confirmatory analysis) that indicates that a prescribed drug is present in the sample; or
(b)for proof of the presence of a prescribed drug in the person’s blood—an analysis of a part of a sample of the person’s blood under section 15A (Analysis of blood samples) that indicates that a prescribed drug is present in the sample.
(6)In this section:
cannabis food product—see the Drugs of Dependence Act 1989, section 6.
controlled drug—see the Criminal Code, section 600.
relevant period means the period beginning when the person stopped being the driver of the vehicle or the driver trainer in the vehicle and ending at the latest time when—
(a)a breath or oral fluid analysis of the person may be carried out under this Act; or
(b)if section 15 (Taking blood samples from people in custody) or section 15AA (Taking blood samples from people in hospital) applies—a sample of the person’s blood may be taken under that section.
Section 35 of the Criminal Code provides:
35Mistake or ignorance of fact—fault elements other than negligence
(1)A person is not criminally responsible for an offence that has a physical element for which there is a fault element other than negligence if—
(a)when carrying out the conduct making up the physical element, the person is under a mistaken belief about, or is ignorant of, facts; and
(b)the existence of the mistaken belief or ignorance negates a fault element applying to the physical element.
(2)In deciding whether a person was under a mistaken belief about facts, or was ignorant of facts, the trier of fact may consider whether the mistaken belief or ignorance was reasonable in the circumstances
Section 23 of the Criminal Code provides:
23 Strict liability
(1)If a law that creates an offence provides that the offence is a strict liability offence—
(a)there are no fault elements for any of the physical elements of the offence; and
(b)the defence of mistake of fact under section 36 (Mistake of fact—strict liability) is available.
(2)If a law that creates an offence provides that strict liability applies to a particular physical element of the offence—
(a)there are no fault elements for the physical element; and
(b)the defence of mistake of fact under section 36 is available in relation to the physical element.
(3)The existence of strict liability does not make any other defence unavailable
The appellant submitted that s 23(3) meant that, even though the offence was one of strict liability, s 35 was available. I do not accept that submission. Section 23(3) does not render available a defence that could not apply because of the absence of any fault element. Section 23(3) does not allow the notional reinstatement of a fault element, contrary to s 23(1)(a), in order to allow a defence under s 35 to apply. Section 35 allows fault elements other than negligence to be negated if the conditions in s 35(1)(a) and (b) are satisfied. The reference in s 23(3) to other defences remaining available does not include defences which rely upon there being fault elements for the physical elements, because strict liability offences have no such fault elements.
The appellant did make additional factual submissions in relation to the operation of s 35 but, as that provision has no application, those submissions cannot lead anywhere.
Conclusion
None of the grounds of appeal are made out. The appeal must be dismissed.
The order of the Court is:
1. Appeal dismissed and conviction and sentence confirmed.
| I certify that the preceding forty-four [44] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 22 October 2020 |
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