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R v Salim

R v Salim

Case [2023] NSWLC 8 26 October 2023

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Local Court

New South Wales

Medium Neutral Citation: R v Salim [2023] NSWLC 8
Hearing dates: 03 September 2023
Date of orders: 26 October 2023
Decision date: 26 October 2023
Jurisdiction: Criminal
Before: Donnelly LCM
Decision:
(1) The defendant failed to meet the evidentiary standard of proof of an honest and reasonable mistake of fact.
(2) All ingredients of the charge were established beyond reasonable doubt.
(3) The defendant is found guilty of the charge under s 111 Road Transport Act 2013 (NSW).

Catchwords:
CRIMINAL LAW – Road Transport Act 2013, s 111 – drive with illicit drug present in blood – availability of ground of exculpation of honest and reasonable mistake of fact – conflicting District Court decisions as to whether the offence is one of absolute liability or strict liability – court followed the line of authority which held the offence under s 111 is one of strict liability and the ground of exculpation is available – instant case – the defendant’s belief was honestly held but not reasonable in the circumstances

Legislation Cited:
Interpretation Act 1987 (NSW) s 34
Road Transport Act 2013 (NSW) s 111
Road Rules 2014 (NSW) r 10
Road Traffic Act 1934-1939 (SA) s 30
Road Transport Legislation Amendment (Drug Testing) Act2006 (NSW) (Rep.)
Road Transport (General) Act1999 (Act) s 21 (Rep.)
Road Transport (Safety and Traffic Management) (Driver Fatigue) Regulation1999 cl 63 (Rep.)

Cases Cited:
Appeal of Francesco Mendolicchiu [2008] NSWDC 182
Application by Attorney General under s 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No. 3 of 2002) [2004] NSWCCA 303
Chandiran v R [2022] NSWDC 576
CTM v The Queen (2008) 236 CLR 440 [2008] HCA 25
DPP v Bone [2005] NSWSC 1239
El Hassan v NSW DPP [2000] NSWCA 330
DPP v Kailahi (2008) 191 A Crim R 145; [2008] NSWSC 752
Narouz v R [2023] NSWDC 293
NSW Police v Carrall [2016] NSWLC 4
Ostrowski v Palmer (2004) 218 CLR 493; [2004] HCA 30
Parker v R [2023] NSWCCA 234
Prineas v R (2018) 86 MVR 148; [2018] NSWCCA 221
Proudman v Dayman (1941) 67 CLR 536
R v Delbridge [2019] NSWDC 450
RTA of NSW v Jara Transport Pty Limited [2005] NSWSC 1021
Valentine v Eid (1992) 27 NSWLR 615
Woolmington v Director of Public Prosecutions [1935] UKHL 1; [1935] AC 462

Texts Cited:
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 17 October 2018

Category: Principal judgment
Parties: Police (Prosecution)
Ibrahim Salim (Defendant)
Representation: Counsel for the Defendant: Mr Z Khatiz
(Oxford Lawyers)
Counsel for the Prosecution: Sergeant Sanders

File Number(s): 2023/00052679
Publication restriction: Nil

JUDGMENT

Ibrahim Salim (hereafter the defendant) has pleaded not guilty to a charge that on 2 December 2022 he drove a motor vehicle while there was present, in his oral fluid, a prescribed illicit drug contrary to…

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.

Continue reading R v Salim

Details

AGLC: R v Salim [2023] NSWLC 8
Case: [2023] NSWLC 8
Decision Date: 26 October 2023

CaseChat Overview and Summary

The case of R v Salim involved a dispute under the Road Transport Act 2013, where the defendant was charged with driving with an illicit drug present in their blood. The nature of the dispute centred on whether the defendant could rely on the defence of honest and reasonable mistake of fact, a matter that had previously generated conflicting decisions in the District Court. The matter was ultimately decided by the court of appeal.

The court was required to determine whether the offence under section 111 of the Road Transport Act 2013 is one of absolute liability or strict liability, and whether the ground of exculpation of honest and reasonable mistake of fact is available. The court examined the legal precedent and determined that the offence is one of strict liability, which means that the ground of exculpation was available. The court then assessed whether the defendant’s belief was both honestly held and reasonable in the circumstances.

In reaching its decision, the court followed the line of authority that held the offence under section 111 is one of strict liability and the ground of exculpation is available. However, the court found that the defendant’s belief was honestly held but not reasonable in the circumstances. The court concluded that the defendant had failed to meet the evidentiary standard of proof of an honest and reasonable mistake of fact. All ingredients of the charge were established beyond reasonable doubt, and the defendant was found guilty of the charge under section 111 of the Road Transport Act 2013 (NSW).

Orders

Orders of the court

(1) The defendant failed to meet the evidentiary standard of proof of an honest and reasonable mistake of fact.

(2) All ingredients of the charge were established beyond reasonable doubt.

(3) The defendant is found guilty of the charge under s 111 Road Transport Act 2013 (NSW).

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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Citations

AGLC Citation

R v Salim [2023] NSWLC 8

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 21 of 21 shown

Parker v R
[2023] NSWCCA 234 Para 14

…Hassan v NSW DPP [2000] NSWCA 330, DPP v Kailahi [2008] NSWSC 75; and negligent driving: Prineas v R (2018) 86 MVR 148; [2018] NSWCCA 221; Parker v R [2023] NSWCCA 234. The detailed discussion of Adams J in DPP v Bone [2005] NSWSC 1239 also records other instances where it was held to be available for driving offenc…
Narouz v The King
[2023] NSWDC 293 Para 2

…hat he could not do so because the offence was one of absolute liability. The submission relied upon the recent District Court decision of Narouz v R [2023] NSWDC 293 where Buscombe DCJ held that the offence is one of absolute liability and consequently the “defence” of honest and reasonable mistake of fact is not…
Chandiran v The The King
[2022] NSWDC 576 Para 2

…ecision of Narouz v R [2023] NSWDC 293 but rather other District Court and Local Court decisions of R v Delbridge [2019] NSWDC 450, Chandiran v R [2022] NSWDC 576 and NSW Police v Carrall [2016] NSWLC 4 which all held that the offence is one of strict liability and therefore the “defence” is available.…
Bell v Tasmania
[2021] HCA 42 Para 21

…essing cannabis, smoking a “joint” and then choosing to drive a motor vehicle. Edelman and Gleeson JJ in Bell v Tasmania (2021) 96 ALJR 22; [2021] HCA 42 referred to a “qualification upon the common law excuse” at [53].…
R v Delbridge
[2019] NSWDC 450 Para 2

…he court should not follow the decision of Narouz v R [2023] NSWDC 293 but rather other District Court and Local Court decisions of R v Delbridge [2019] NSWDC 450, Chandiran v R [2022] NSWDC 576 and NSW Police v Carrall [2016] NSWLC 4 which all held that the offence is one of strict liability and therefore the “def…
Prineas v R
[2018] NSWCCA 221 Para 14

…drive whilst disqualified: El Hassan v NSW DPP [2000] NSWCA 330, DPP v Kailahi [2008] NSWSC 75; and negligent driving: Prineas v R (2018) 86 MVR 148; [2018] NSWCCA 221; Parker v R [2023] NSWCCA 234. The detailed discussion of Adams J in DPP v Bone [2005] NSWSC 1239 also records other instances where it was held to b…
NSW Police v Carrall
[2016] NSWLC 4 Para 2

…rather other District Court and Local Court decisions of R v Delbridge [2019] NSWDC 450, Chandiran v R [2022] NSWDC 576 and NSW Police v Carrall [2016] NSWLC 4 which all held that the offence is one of strict liability and therefore the “defence” is available.…
Appeal of Francesco Mendolicchiu
[2008] NSWDC 182 Para 14

…ound in the Road Transport Act 2013 (NSW) including high range p.c.a: DPP v Bone [2005] NSWSC 1239; low range p.c.a: Appeal of Francesco Mendolicchiu [2008] NSWDC 182; drive whilst disqualified: El Hassan v NSW DPP [2000] NSWCA 330, DPP v Kailahi [2008] NSWSC 75; and negligent driving: Prineas v R (2018) 86 MVR 148…
Director of Public Prosecutions v Kailahi
[2008] NSWSC 752

…8) 236 CLR 440 [2008] HCA 25 DPP v Bone [2005] NSWSC 1239 El Hassan v NSW DPP [2000] NSWCA 330 DPP v Kailahi (2008) 191 A Crim R 145; [2008] NSWSC 752 Narouz v R [2023] NSWDC 293 NSW Police v Carrall [2016] NSWLC 4 Ostrowski v Palmer (2004) 218 CLR 493; [2004] HCA 30 Parker v R [2023] NSWCCA 234 Prineas v R (2018)…
CTM v The Queen
[2008] HCA 25 Para 3

…nd of exculpation and not a defence. This was a point stressed by Gleeson CJ, Gummow, Crennan and Kiefel JJ in CTM v The Queen (2008) 236 CLR 440 [2008] HCA 25 at [6]-[8]:…
Pacific Blue Australia Pty Ltd v Somalis
[2008] NSWSC 75 Para 14

…9; low range p.c.a: Appeal of Francesco Mendolicchiu [2008] NSWDC 182; drive whilst disqualified: El Hassan v NSW DPP [2000] NSWCA 330, DPP v Kailahi [2008] NSWSC 75; and negligent driving: Prineas v R (2018) 86 MVR 148; [2018] NSWCCA 221; Parker v R [2023] NSWCCA 234. The detailed discussion of Adams J in DPP v B…
Director of Public Prosecutions v Bone
[2005] NSWSC 1239 Para 14

…has been held to be available for other driving offences currently found in the Road Transport Act 2013 (NSW) including high range p.c.a: DPP v Bone [2005] NSWSC 1239; low range p.c.a: Appeal of Francesco Mendolicchiu [2008] NSWDC 182; drive whilst disqualified: El Hassan v NSW DPP [2000] NSWCA 330, DPP v Kailahi […
RTA of NSW v Jara Transport Pty Limited
[2005] NSWSC 1021 Para 13

…force, to drive a motor vehicle on a road under s 30 of the Road Traffic Act 1934-1939 (SA). Similarly in RTA of NSW v Jara Transport Pty Limited [2005] NSWSC 1021 it was held to be available for the offences of failure to give driver’s details under s 21 Road Transport (General) Act 1999 (NSW) and failure to produc…
Re Attorney-General's Application (No 3 of 2002) (NSW)
[2004] NSWCCA 303 Para 16

…of High Range Prescribed Concentration of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No. 3 of 2002) [2004] NSWCCA 303 where Howie J said at [116]:…
Ostrowski v Palmer
[2004] HCA 30

…A Crim R 145; [2008] NSWSC 752 Narouz v R [2023] NSWDC 293 NSW Police v Carrall [2016] NSWLC 4 Ostrowski v Palmer (2004) 218 CLR 493; [2004] HCA 30 Parker v R [2023] NSWCCA 234 Prineas v R (2018) 86 MVR 148; [2018] NSWCCA 221 Proudman v Dayman (1941) 67 CLR 536 R v Delbridge [2019] NSWDC 450 RTA of NSW v Jara Tr…
El Hassan v NSW Director of Public Prosecutions
[2000] NSWCA 330 Para 14

…c.a: DPP v Bone [2005] NSWSC 1239; low range p.c.a: Appeal of Francesco Mendolicchiu [2008] NSWDC 182; drive whilst disqualified: El Hassan v NSW DPP [2000] NSWCA 330, DPP v Kailahi [2008] NSWSC 75; and negligent driving: Prineas v R (2018) 86 MVR 148; [2018] NSWCCA 221; Parker v R [2023] NSWCCA 234. The detailed d…
La Macchia v Minister for Primary Industries and Energy
[1992] FCA 673 Para 5

…This Court is not bound to apply any of the conflicting decisions of the District Court or the Local Court. In Valentine v Eid (1992) 27 NSWLR 615 at 622 Grove J concluded after reviewing the authorities on the subject:…
Jiminez v the Queen
[1992] HCA 14

…refer to any point relied upon by an accused as a defence. So, for example, in the plurality judgment in this Court in Jiminez v The Queen [fn 10 [1992] HCA 14; (1992) 173 CLR 572 at 581-582], honest and reasonable mistake was referred to as an "excuse" and a "defence". By reference to a leading decision of this…
Proudman v Dayman
[1941] HCA 28 Para 7

…reasonable mistake of fact is available where a new offence is added to the general criminal law (emphasis added). Dixon CJ said in Proudman v Dayman (1941) 67 CLR 536 at 537:…
Woolmington v DPP
[1935] UKHL 1 Para 3

…ke of fact is not a “defence” as that term is applied to the criminal law following the decision of Woolmington v Director of Public Prosecutions [1935] UKHL 1; [1935] AC 462. A defence requires an accused to establish a matter on the balance of probabilities and the example in Woolmington v Director of Public P…
[1935] AC 462
[1935] AC 462 Para 3

…ot a “defence” as that term is applied to the criminal law following the decision of Woolmington v Director of Public Prosecutions [1935] UKHL 1; [1935] AC 462. A defence requires an accused to establish a matter on the balance of probabilities and the example in Woolmington v Director of Public Prosecutions was…

Legislation cited in this decision · 7

Interpretation Act 1987 (NSW)
34 2 mentions (from Para 9)
Road Rules 2014 (NSW)
10 2 mentions (from Para 15)
Road Transport (General) Act 1999 (ACT)
21 2 mentions (from Para 13)
Road Transport Act 2013 (NSW)
111 2 mentions (from Para 1)
Crimes Act 1900 (ACT)
1 mention (from Para 17)
Road Transport (Safety and Traffic Management) Act 1999 (ACT)
1 mention (from Para 10)
Road Transport Legislation Amendment (Drug Testing) Act 2006 (NSW)
1 mention (from Para 10)

Medium Neutral Citation:	R v Salim [2023] NSWLC 8
Hearing dates:	03 September 2023
Date of orders:	26 October 2023
Decision date:	26 October 2023
Jurisdiction:	Criminal
Before:	Donnelly LCM
Decision:	(1) The defendant failed to meet the evidentiary standard of proof of an honest and reasonable mistake of fact. (2) All ingredients of the charge were established beyond reasonable doubt. (3) The defendant is found guilty of the charge under s 111 Road Transport Act 2013 (NSW).
Catchwords:	CRIMINAL LAW – Road Transport Act 2013, s 111 – drive with illicit drug present in blood – availability of ground of exculpation of honest and reasonable mistake of fact – conflicting District Court decisions as to whether the offence is one of absolute liability or strict liability – court followed the line of authority which held the offence under s 111 is one of strict liability and the ground of exculpation is available – instant case – the defendant’s belief was honestly held but not reasonable in the circumstances
Legislation Cited:	Interpretation Act 1987 (NSW) s 34 Road Transport Act 2013 (NSW) s 111 Road Rules 2014 (NSW) r 10 Road Traffic Act 1934-1939 (SA) s 30 Road Transport Legislation Amendment (Drug Testing) Act2006 (NSW) (Rep.) Road Transport (General) Act1999 (Act) s 21 (Rep.) Road Transport (Safety and Traffic Management) (Driver Fatigue) Regulation1999 cl 63 (Rep.)
Cases Cited:	Appeal of Francesco Mendolicchiu [2008] NSWDC 182 Application by Attorney General under s 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No. 3 of 2002) [2004] NSWCCA 303 Chandiran v R [2022] NSWDC 576 CTM v The Queen (2008) 236 CLR 440 [2008] HCA 25 DPP v Bone [2005] NSWSC 1239 El Hassan v NSW DPP [2000] NSWCA 330 DPP v Kailahi (2008) 191 A Crim R 145; [2008] NSWSC 752 Narouz v R [2023] NSWDC 293 NSW Police v Carrall [2016] NSWLC 4 Ostrowski v Palmer (2004) 218 CLR 493; [2004] HCA 30 Parker v R [2023] NSWCCA 234 Prineas v R (2018) 86 MVR 148; [2018] NSWCCA 221 Proudman v Dayman (1941) 67 CLR 536 R v Delbridge [2019] NSWDC 450 RTA of NSW v Jara Transport Pty Limited [2005] NSWSC 1021 Valentine v Eid (1992) 27 NSWLR 615 Woolmington v Director of Public Prosecutions [1935] UKHL 1; [1935] AC 462
Texts Cited:	New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 17 October 2018
Category:	Principal judgment
Parties:	Police (Prosecution) Ibrahim Salim (Defendant)
Representation:	Counsel for the Defendant: Mr Z Khatiz (Oxford Lawyers) Counsel for the Prosecution: Sergeant Sanders
File Number(s):	2023/00052679
Publication restriction:	Nil