Sims v Elmer - [2019] TASSC 21

[2019] TASSC 21

COURT: SUPREME COURT OF TASMANIA

CITATION: Sims v Elmer [2019] TASSC 21

PARTIES:  SIMS, Jeremy Lance
  v
  ELMER, Michelle

FILE NO:  LCA 610/2018
DELIVERED ON:  22 May 2019
DELIVERED AT:  Launceston
HEARING DATE:  27 November 2018
JUDGMENT OF:  Brett J

CATCHWORDS:

Traffic Law – Offences – Particular offences – Alcohol and drug related offences – Tasmania – Driving with prescribed illicit drug in blood and other offences – Meaning of honest and reasonable belief –Applicant was charged with one count of driving a motor vehicle with a prescribed illicit drug present in his blood and gave evidence that he held an honest and reasonable belief that such drugs were not present in his blood – Magistrate accepted that he honestly held such a belief, but was not satisfied that it was a reasonable belief in the circumstances – Magistrate misapplied the burden of proof when considering the question of whether the belief was reasonable – Evidential onus on the accused had been satisfied – Onus was on the prosecution to satisfy the court beyond reasonable doubt that the belief was not held on reasonable grounds.

Road Safety (Alcohol and Drugs) Act 1970 (Tas), s 6A.
Hindrum v Lane [2014] TASFC 5, applied.
L v The Queen [1985] TASSC 44, referred to.
Aust Dig Traffic Law [1159]

REPRESENTATION:

Counsel:
             Applicant:  E Hughes
             Respondent:  E Bill
Solicitors:
             Applicant:  Rae & Partners
             Respondent:  Director of Public Prosecutions

Judgment Number: [2019] TASSC 21
Number of paragraphs: 19

Serial No 21/2019
File No 610/2018

JEREMY LANCE SIMS
v SENIOR CONSTABLE MICHELLE ELMER

REASONS FOR JUDGMENT BRETT J

22 May 2019

The applicant was charged on complaint with one count of driving a motor vehicle with a prescribed illicit drug present in his blood, contrary to s 6A of the Road Safety (Alcohol and Drugs) Act 1970 ("the Act"). The complaint was heard by Magistrate McKee. The applicant did not challenge the prosecution evidence that he had been driving the vehicle in question, and that illicit drugs, namely methylamphetamine and amphetamine were present in his blood at the time. He gave evidence that he had not consumed any such drugs, and that he held an honest and reasonable belief that such drugs were not present in his blood. The magistrate accepted that he honestly held such a belief, but concluded that he was not satisfied that it was a reasonable belief in the circumstances. Accordingly, he concluded that the applicant had not satisfied his evidential onus with respect to the question of an honest and reasonable mistake of fact and found the applicant guilty of the charge.
The applicant has moved this Court to review the finding of guilt. The grounds of review include a ground which asserts that the learned magistrate erred in law by determining that the applicant had failed to discharge his evidential onus, and thereby failed to consider whether the prosecution had discharged its onus to prove guilt beyond reasonable doubt. This ground is conceded by the respondent. However, this Court, of course, is not bound by that concession. I will therefore consider the conceded ground. If it is made out, it will be determinative of the review. The parties did not address substantial argument to the remaining grounds.
At the hearing, the applicant did not contest the police evidence that he had been intercepted while driving, tested in accordance with the provisions of the Act, and that the drugs had been found in his body. He gave evidence to explain the events which led up to his interception by police. He was stopped by police in the early hours of the morning. His brother had attended a party that night and the applicant had agreed to collect him from the party when he was ready. The applicant was a provisional driver and was not drinking. He did not attend the party, although he had attended a related event in the afternoon. He waited at home until his brother called him. When he did, the applicant drove to the party to collect him. He said that this was between 3am and 4am. When he arrived at the party, he saw people drinking alcohol and taking drugs. Drugs were openly available and in plentiful supply. He stayed at the party for between an hour and an hour and a half, and eventually left by himself. His belief was that his brother had called him because he wanted him to attend the party, but his brother did not really want to leave. The only substance consumed by him at the party was one can of soft drink. The can was given to him by his brother. It was open and full when he received it, and he did not see it opened. His evidence was that at some time during the course of the party, he would have left the can unattended on a table for a short time. The applicant was stopped by police and tested as he was driving home from the party.
Although the applicant was not expressly asked by either party to give detail about his conduct prior to the party, the tenor of his evidence was that he had not taken drugs at any time, and certainly did not do so at the party. He did not consume alcohol. The effect of his evidence was that he was taking care to ensure that he did not consume such substances prior to driving. He gave evidence that in his employment he is regularly drug tested and those tests have always had negative results. The applicant expressed disbelief when he returned a positive drug test after he was stopped by police. The police evidence was consistent with his evidence about his reaction to the test. His brother gave evidence which generally supported the applicant's evidence as to the events at the party.
The explanation for the presence of drugs in the applicant's body, which was canvassed by both parties, and the magistrate, was that drugs may have been added to his drink without his knowledge while he was at the party. He and his brother denied any knowledge that the drink had been spiked. He was cross-examined at length about the care he took to ensure that this did not happen. His evidence was to the effect that he trusted his brother but otherwise did not consider that there was a significant risk that his drink would be spiked. Ultimately the prosecutor put to him that his drink had not been spiked, but that he had deliberately consumed drugs at the party. The applicant denied this suggestion.
The learned magistrate, in written reasons, expressed surprise that there was no evidence as to the applicant's movements earlier than the party, nor an express denial that he had ingested illicit substances in the days preceding the party. This comment did not fairly reflect the applicant's evidence. It is clear to me that he denied taking drugs at any time. He was not cross-examined as to having taken drugs at a time prior to the party. In any event, despite what the magistrate identified as "deficiencies" in the applicant's evidence, he expressed satisfaction that the applicant held an honest belief that he had not consumed any illicit substances, and that when he drove the motor vehicle he did not know that methylamphetamine and/or amphetamine were in his blood. The magistrate considered a number of decisions dealing with the criminal liability of the applicant on the basis of his claim that he had an honest and reasonable, but mistaken, belief that the drugs were not in his body. His Honour concluded that the offence created by s 6A of the Act is an offence of strict liability, and that accordingly, an honest and reasonable mistake of fact consistent with innocence will excuse liability for the offence. The parties are in agreement about this, and I agree that this conclusion accurately reflects the law as explained by Underwood J (as he then was) in L v The Queen [1985] TASSC 44. See also He Kaw Teh v The Queen (1985) 157 CLR 523. His Honour then considered cases dealing with the burden of proof in respect of this issue. He concluded that an evidential burden fell on the applicant, but once that burden has been discharged, the onus is on the prosecution to establish the guilt of the defendant beyond reasonable doubt, and this will include dispelling any doubt raised about an honest and reasonable mistake of fact.
The magistrate then considered whether the applicant had satisfied the evidential burden as to this issue. He concluded that he had done so "as to the subjective element". His Honour explained that he was satisfied that the applicant had an honest belief that he had not consumed any illicit substances, and that he was driving the motor vehicle without any knowledge that the drugs were in his blood. However, his Honour then considered whether or not the defendant had satisfied the evidential onus as to his belief being reasonable. He considered and made findings on the evidence concerning the applicant's knowledge of drugs at the party, his acceptance and handling of the soft drink can, and the possibility "that somebody may place illicit substances in his drink". He noted the applicant's evidence that he had not made enquiries of his brother before he accepted the can of soft drink, and commented that "he should not have blindly accepted an open can of soft drink provided by another to his brother". He was unimpressed in relation to the applicant's evidence concerning what happened at the party, and considered that his evidence about those questions "smacked of reconstruction". His Honour expressed his conclusion as follows:
"[53]The next question for determination is to whether or not the belief held by the defendant was a reasonable [sic] when all of the evidence is considered, in particular, in light of the findings I have made at paragraph 40.
[54]I am not satisfied that the belief held by the defendant was a reasonable one. The defendant attended a party to pick up his brother. Upon his arrival he was greeted by his brother who was clearly under the influence of drugs, and who advised him that he had been consuming drugs.
...
[61]The defendant at best was careless with his drink, he was also blasé in his attitude in accepting an open can of soft drink from persons at a party who were affected by alcohol and/or illicit substances.
[62]As I have unchallenged evidence that the defendant drove a motor vehicle on a street at Gawler Road while Methylamphetamine and Amphetamine were present in his blood, and I have accepted that he had an honest belief that when he drove that motor vehicle he did not have Methylamphetamine or Amphetamine in his blood, but I have accepted that such a belief was a reasonable one in all of the circumstances, I therefore find the defendant has failed to discharge the evidentiary burden placed upon him and I find the complaint proven."
There is obviously an error in the last line of his Honour finding. I infer that his Honour was expressing a positive conclusion that the belief held by the applicant was not a reasonable one in all of the circumstances.
The nature and operation of the effect of an honest and reasonable mistake of fact on liability for a statutory offence, including with respect to the relevant burden of proof, was explained in some detail by the Full Court in Hindrum v Lane [2014] TASFC 5. The Full Court's consideration of the question of the evidentiary burden is of significance to the determination of this case. The Court accepted the settled principle that the prosecution has the ultimate responsibility of proving guilt beyond reasonable doubt, and this includes excluding any circumstance which would provide an excuse for the conduct, including an honest and reasonable mistake of fact. However, the prosecution will only bear the burden of proof in respect of such an issue if the accused person satisfies an evidentiary onus raising the ground of exculpation. The primary issue for the consideration of the Full Court was the nature of the evidential onus and whether the primary judge had elevated the evidential burden beyond that which was necessary to raise the issue for the consideration of the court and thereby enliven the legal burden imposed on the prosecution.
Tennent and Pearce JJ were both of the view that the primary judge had erred in this respect. Tennent J said this of the decision of the primary judge at [22]:
"... It appears to me that he has elevated the degree to which the appellant was required to meet an evidential burden to a level higher than was necessary. He required that the appellant establish (my emphasis) certain matters. With respect, he only needs to raise the possibility of the 'defence'. In my view, the evidence of the appellant was sufficient to raise the issue which was all that was required to place an obligation upon the prosecution to negative the existence of the belief."
Pearce J agreed that the primary judge:
"... must have elevated the test to determine whether there was sufficient evidence to raise the issue beyond that which was required. An evidentiary burden is not an onus of disproof: Momcilovic v R(2011) 245 CLR 1, per Bell J at [665]. The appellant carried no onus to prove he held an honest and reasonable belief. There was sufficient evidence to raise the issue."
The context in which their Honours arrived at those conclusions is important. The reason why the primary judge had concluded that the evidential burden had not been discharged was because of his finding that the belief was not reasonable. All judgments in the Full Court made the point that the requirement that the belief be reasonable is a requirement that the belief honestly held by the accused person is a belief held on reasonable grounds, not that the belief itself must be objectively reasonable. The nature of the requirement that the belief be reasonable was explained by Tennent J, drawing on authority as follows at [27]:
"In Mei Ying Su at [104], Reeves J said at [104]-[106]:
'[104] In the Criminal Code jurisdictions of Queensland, Western Australia and Tasmania, the defence of acting under an honest and reasonable, but mistaken belief, has been said to reflect the common law with "complete accuracy": see Thomas at 305 – 306 per Dixon J and CTM at [3] per Gleeson CJ and Gummow, Crennan and Kiefel JJ. Different judges of the Western Australian Court of Appeal (and the Full Court) have described the expression "honest and reasonable belief" (in s 24 of the West Australian Criminal Code) in the following terms:
(a)"...it must be reasonable, which is to say that it must be based on his appreciation of primary objective fact which is in reason capable of sustaining the belief ...", in GJ Coles & Co Ltd v Goldsworthy [1985] WAR 183 at 187 per Burt CJ, Brinsden and Smith JJ;
(b)"... a reasonable man or woman in the position of the defendant carrying out the same actions in the same circumstances may make the same mistake", in O'Brien v Ostrowski [1999] WASCA 184 at [108] per McKechnie J;
(c)"It is that belief which must be reasonable; ie, in all the circumstances it must have been reasonable for the accused person to hold the belief which, in this case, would render his conduct innocent"; and "... it is the actual belief of the accused with which the section is concerned, in judging reasonableness it will always be necessary to advert to the circumstances as they existed at the time in so far as they were known to the accused", in BRK v R [2001] WASCA 161 at [34] and [36] per Murray J.
(d)"For there to be an operative mistake under s 24, an accused must have acted under an actual belief in the existence of a state of things (subjective element) and the accused belief must be reasonable (mixed element) ... the mixed element is not wholly objective; reasonableness is not to be judged by the standard of the hypothetical ordinary or reasonable person. The mixed element is a combination of subjective and objective aspects. The requirement that the belief be reasonable imports an objective standard. The subjective aspect is that the reasonableness is to be judged by reference to the personal attributes and characteristics of the accused that are capable of affecting his or her appreciation or perception of the circumstances in which he or she found himself or herself", in Aubertin v Western Australia (2006) 33 WAR 87; [2006] WASCA 229 at [43] per McLure JA (with whom Roberts-Smith JA and Buss JA agreed).
[105] The Queensland Court of Appeal considered the equivalent expression (in s 24 of the Queensland Criminal Code 1899 (Qld)) in R v Mrzljak (2005) 1 Qd R 308; (2004) 152 A Crim R 315; [2004] QCA 420, and described it as requiring:
(a)"...a consideration of whether there were reasonable grounds for the belief, not what a reasonable person would have believed" per McMurdo P at [21];
(b)"...that the critical focus is on the offender rather than the theoretical reasonable person. It is the information available to the offender which must determine whether the belief was honest and also was reasonable ..." per Williams JA at [53];
(c)that "[t]he section directs attention to the actual belief of the accused; nothing in its language invites reference to the reasonable man's putative belief. What must be considered, in my view, is the reasonableness of an accused's belief based on the circumstances as he perceived them to be", per Holmes JA at [81].
[106] From these authorities it is apparent that the word "reasonable" in s 9.2:
(a)does not involve the hypothetical ordinary or reasonable person test;
(b)requires that the belief be that of the accused;
(c)requires that the accused's belief be objectively reasonable ie rational, based on reason, or capable of sustaining belief; and
(d)requires the objective reasonableness of the accused's belief to be assessed by reference to the subjective circumstances in which the accused was placed, including the accused's personal attributes and the information available to him or her at the time'."
It is significant that both judges determined that the primary judge had misapplied the requirement concerning the evidential burden on the defendant, notwithstanding that they determined the appeal ought be dismissed because even if the onus had been correctly applied in the circumstances of the case, the only conclusion available to the magistrate, as a reasonable person, was that he must have been satisfied beyond reasonable doubt that the belief was not held on objectively reasonable grounds. The significance of this conclusion is that it demonstrates that the evidential burden will be satisfied if there is sufficient evidence to raise the issue, notwithstanding that the inevitable conclusion will be that any such belief cannot have been held on objectively reasonable grounds.
In this case, the applicant's evidence concerning the fact that he had not taken drugs, and from which an inference could be drawn that he had a positive belief that the drugs were not in his body, was sufficient to discharge the evidential onus. This evidence raised the possibility that the applicant had an honest belief in a positive state of facts, which, if true, would render him not guilty of the offence. The positive state of facts which was the subject of his belief was that there were no illicit drugs in his body when he was driving the motor vehicle. Although the applicant's express evidence did not go that far, the magistrate accepted, correctly in my view, that this was the effect and tenor of his evidence. That evidence was sufficient to discharge the evidential burden. An evidential burden is not a requirement to disprove or establish anything. It is the existence of evidence, and not its weight or quality, that is important. If such evidence raises the possibility of exculpation on the basis of an issue such as honest and reasonable mistake, then the assessment of that question and its effect on the defendant's liability for the offence, must be in accordance with the proper application of the presumption of innocence and the burden of proof. That burden will fall on the prosecution. His Honour was required to approach the assessment of that issue in that way.

In my view, the learned magistrate's misapplication of the evidential burden is apparent not only from his treatment of whether the belief was reasonable, but also the manner in which he approached the subjective element of honesty. He made a positive finding that the applicant did in fact have the requisite honest belief. That finding was, of course, open to the magistrate, and it would ultimately have been necessary for him to give consideration to that question. However, he made that finding in the context of determining whether the applicant had discharged the evidential onus. This is demonstrative of his Honour's erroneous approach to the application of that requirement. Upon acceptance that the issue had been properly raised, and the evidential onus hence discharged, it was then necessary for the magistrate to consider the factual questions necessary to determine whether criminal liability is excused on the basis of the applicant holding an honest and reasonable belief in a state of facts. Those questions fell to be determined according to the correct application of the onus of proof, that is, has the prosecution proved beyond reasonable doubt that the applicant did not act pursuant to an honest belief, held on reasonable grounds, in a state of facts which, if true, would render him not guilty of the offence. In the event of any reasonable doubt about this question, the applicant was entitled to be found not guilty of the offence. Of course, in the determination of this question, it was entirely proper for the magistrate to make positive findings of fact in favour of the defence, if he so concluded. However, it was not necessary to make those findings in order to discharge the evidential onus.
It is apparent that the magistrate misapplied the burden of proof when considering the question of whether the belief was reasonable. He ought to have found that the evidential onus had been discharged on the basis of the applicant's testimony, and then assessed the question of reasonableness on the basis that the prosecution bore the onus of proof to the standard of beyond reasonable doubt. Instead, he considered whether he was satisfied that the applicant had established the reasonableness of his belief, as part of his determination as to whether he had discharged the evidential onus. In Hindrum v Lane, the only conclusion reasonably available on the evidence was that the belief was not reasonably held, but the Full Court still found that the evidential onus was discharged by the possibility being raised on the evidence. In this case, had the magistrate approached the assessment according to the correct application of the burden of proof, it is not inevitable that he would have reached the same conclusion on the question of whether the belief was held on reasonable grounds. There was a considerable body of evidence providing a basis for a finding in the applicant's favour on this question. This evidence included the applicant's awareness of and stated commitment to his responsibility not to drive with drugs in his body, that he had deliberately avoided taking any drugs, that he had only been at the party for a short time, and that he had requested the can of soft drink from his brother, in whom he obviously reposed trust. The proper application of the onus of proof could easily have resulted in a different conclusion than that reached by the magistrate. The onus was not on the applicant to establish that he had held the belief on reasonable grounds, the onus was on the prosecution to satisfy the court beyond reasonable doubt that the belief was not held on reasonable grounds. This is not how the magistrate approached this question, and he was in error in failing to do so.
Accordingly, I accept the respondent's concession that ground 2 has been made out. As counsel noted, it is not necessary in the light of this finding to consider the other grounds, and they were not argued in any significant detail. Further, given the potential for a different outcome upon the proper application of the onus of proof, the proviso will not apply.
The question of the appropriate consequential orders was also a matter of concession. It may well have been arguable that the proper course is to quash the finding and remit the matter for hearing by a different magistrate. However, the respondent conceded that, in view of the successful ground, it is appropriate to substitute a verdict of acquittal. In the circumstances which have transpired, I agree that this is the appropriate outcome. The hearing took place almost 2½ years ago. The applicant has paid the relevant fine and served the disqualification which was imposed on him. It is not in the interests of justice to return the matter for further hearing. A verdict of acquittal sits comfortably with the proper application of the onus of proof and the circumstances of the case in accordance with the underlying findings of the magistrate.
Accordingly, I order that the motion be upheld. The finding of the magistrate that the applicant is guilty of the charge is set aside and the conviction and penalties imposed are quashed. I order that the complaint be dismissed.