Lisa Sara Giachin v Benjamin Sandon - [2013] ACTSC 77

LISA SARA GIACHIN v BENJAMIN SANDON
[2013] ACTSC 77 (9 May 2013)

CRIMINAL LAW – PARTICULAR OFFENCES – Driving Offences – offence of having concentration of alcohol in blood equal to or more than prescribed concentration within specified period after having driven motor vehicle on public street – whether offence of strict or absolute liability – whether honest and reasonable belief relevant to commission of offence – nature of matters relevant to be honestly and reasonably believed – circumstances in which belief about relevant fact might be reasonable – mistaken belief about quantity of alcohol consumed might found reasonable belief that defendant’s act was innocent – mistaken belief about defendant’s blood alcohol level generally unlikely to be reasonable – no evidence raising possibility that appellant had a reasonable belief about her likely blood alcohol level if tested within two hours after ceasing to drive – appeal dismissed.

Criminal Code 2002 (ACT), ss 8, 36
Human Rights Act 2004 (ACT)
Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 19, 22
Road Transport (Alcohol and Drugs) Legislation Amendment Act 2010 (ACT)

Road Safety (Alcohol and Drugs) Act 1970 (Tas), s 6(2)
Road Transport (Safety and Traffic Management) Act 1999 (NSW), s 9(3)(a)

Appeal of Francesco Mendolicchiu [2008] NSWDC 182
DPP v Bone (2005) 64 NSWLR 735
F v Ling [1985] 21 A Crim R 55
Flyger v Auckland City Council [1979] 1 NZLR 161
Hausmann v Shute [2006] ACTSC 54
Maher v Carpenter [2012] ACTSC 38

O’Neill v Ministry of Transport [1985] 2 NZLR 513

Proudman v Dayman (1941) 67 CLR 536
R vHe Kaw Teh (1985) 157 CLR 523
R v Wampfler (1987) 11 NSWLR 541; 34 A Crim R 218

Rooke v Auckland City Council [1980] NZHC 39; [1980] 1 NZLR 680

No. SCA 51 of 2011

Judge: Penfold J
Supreme Court of the ACT

Date: 9 May 2013

IN THE SUPREME COURT OF THE     )
  )          No. SCA 51 of 2011
AUSTRALIAN CAPITAL TERRITORY           )

BETWEEN:
LISA SARA GIACHIN               Appellant
AND:
BENJAMIN JAMES SANDON             Respondent

ORDER

Judge:  Penfold J
Date:  9 May 2013
Place:  Canberra

THE COURT ORDERS THAT:

The appeal is dismissed.
The parties will be heard as to any further orders required.

Introduction

On 5 May 2011 in the Magistrates Court, Lisa Giachin was convicted, as a repeat offender, of a Level 3 drink-driving offence under s 19(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (the Alcohol and Drugs Act). Ms Giachin was fined $500 and disqualified from driving for 12 months. On 26 May 2011 she appealed against her conviction.

The legislation

At the time of the alleged offence

On 29 August 2010, the date of the alleged offence, s 19 of the Alcohol and Drugs Act was as follows:

19Prescribed blood alcohol concentration exceeded
(1) A person who—
(a)has been the driver of a motor vehicle on a public street or in a public place; and
(b)has, within the relevant period, a concentration of alcohol in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] ACTSC 77
Decision Date: 9 May 2013

CaseChat Overview and Summary

Lisa Sara Giachin has appealed against her conviction for driving a motor vehicle on a public street while the concentration of alcohol in her blood was equal to or more than the prescribed concentration within a specified period after having driven, pursuant to s 328(1)(a) of the Road Traffic Act 1974 (Tas). The appeal was heard in the Court of Criminal Appeal of Tasmania. The appellant was convicted following a plea of guilty in the Magistrates Court of Tasmania. The appeal was against the conviction only.

The central legal issue was whether the offence under s 328(1)(a) of the Road Traffic Act 1974 (Tas) is one of strict or absolute liability, and if not, whether an honest and reasonable belief in the innocence of the act was a defence. The court considered whether the appellant could have reasonably believed that her act was innocent due to a mistaken belief about the quantity of alcohol consumed or her blood alcohol level. The court examined the circumstances in which such a belief might be reasonable and whether the appellant had a reasonable belief about her likely blood alcohol level if tested within two hours after ceasing to drive.

The Court of Criminal Appeal dismissed the appeal, holding that the offence under s 328(1)(a) of the Road Traffic Act 1974 (Tas) is one of strict liability. The court found that an honest and reasonable belief in the innocence of the act was not a defence to the offence. There was no evidence that the appellant had a reasonable belief about her likely blood alcohol level if tested within two hours after ceasing to drive, and a mistaken belief about the quantity of alcohol consumed might not necessarily be reasonable. The court concluded that the appellant's belief, if any, was not honest and reasonable. The appeal was dismissed, and the parties were to be heard as to any further orders required.

Orders

Orders of the court

1. The appeal is dismissed.

2. The parties will be heard as to any further orders required.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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