Watson v Police
[2011] SASC 240
•22 December 2011
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
WATSON v POLICE
[2011] SASC 240
Judgment of The Honourable Justice Kelly
22 December 2011
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - DRIVING WITH PRESCRIBED CONCENTRATION OF ALCOHOL IN THE BLOOD
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - IGNORANCE AND MISTAKE OF FACT - AVAILABILITY OF DEFENCE OF HONEST AND REASONABLE MISTAKE
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - TRIVIAL OFFENCES OR EXTENUATING CIRCUMSTANCES
Appeal against conviction and sentence - appellant was convicted of driving while having prescribed concentration of alcohol in blood pursuant to s 47B(1)(a) of the Road Traffic Act 1961 (SA) - the appellant after the conviction made an application that the offending was trifling which was dismissed by the Magistrate - appellant applies for an extension of time for the appeal on the grounds of not being able to obtain the reasons of the Magistrate within the required time to appeal and personal illness suffered - appellant appeals on the grounds that the Magistrate should have found that the defence of honest and reasonable mistake applied to the appellant and in the alternative that the Magistrate should have found the appellant's conduct was trifling - whether an extension of time should be granted - whether the defence of honest and reasonable mistake of fact was open to the defendant - whether the Magistrate should have regarded the appellant's conduct as trifling.
Held: appeal dismissed - extension of time is granted - the defence of honest and reasonable mistake is not available – appellant’s belief regarding effect of her alcohol consumption not reasonable in all of the circumstances – Magistrate correctly found the appellant’s offending was not trifling.
Road Traffic Act 1961 (SA) s 47, s 47A, s 47B, s 47BA, referred to.
Davis v Bates (1986) 43 SASR 149; R v Sault Ste. Marie (1978) 2 SCR 1299; He Kaw Teh v The Queen (1985) 157 CLR 523; Cameron v Holt (1980) 142 CLR 342; Lim Chin Aik v The Queen [1963] AC 160; Sherras v De Rutzen [1895] 1 QB 918; Warner v Metropolitan Police Commissioner [1969] 2 AC 256; Gammon (Hong Kong) Ltd v Attorney-General of Hong Kong [1984] 3 WLR 437; CTM v The Queen (2008) 236 CLR 440; Jasinski v Police (2004) 234 LSJS 262; Siviour-Ashman v Police (2003) 85 SASR 23; Cooper Brookes (Wollongong) Pty Ltd v Commission of Taxation (Cth) (1981) 147 CLR 297; Metropolitan Gas Co v Federated Gas Employees’ Industrial Union (1924) 35 CLR 449; August v Fingleton [1964] SASR 22; DPP v Bone [2005] NSWSC 1239; Rooke v Auckland City Council [1980] 1 NZLR 680; O'Neill v Ministry of Transport [1985] 2 NZLR 513; Harmer v Grace, ex parte Harmer [1980] Qd R 395; Smith v Le Mura [1983] 1 Qd R 535; F v Ling (1985) 21 A Crim R 55; Blackburn v Davies (1993) 18 MVR 131 (Tas); Proudman v Dayman (1941) 67 CLR 536; Jiminez v The Queen (1992) 173 CLR 572; Gibbon v Fitzmaurice (1986) 23 A Crim R 12; Chard v Wallis (1988) 12 NSWLR 453; Mayer v Marchant (1973) 5 SASR 567; R v Falconer (1990) 171 CLR 30; Police v Ludlow (2008) 253 LSJS 272; Campbell v Fuss (1991) 55 SASR 355, considered.
WATSON v POLICE
[2011] SASC 240Magistrates Appeal: Criminal
KELLY J.
This is an appeal against conviction and sentence.
The defendant and appellant, Suzanne Necia Watson, was convicted following a trial in the Adelaide Magistrates Court of driving while having the prescribed concentration of alcohol in her blood contrary to s 47B(1)(a) of the Road Traffic Act 1961 (SA) (“the Act”). An application was unsuccessfully made for the matter to be considered trifling. The Magistrate imposed a fine of $700.00 and disqualified the defendant from holding or obtaining a driver’s licence for 12 months. This period of disqualification was reduced to 11 months and two weeks to take into account the fact that the defendant had been suspended from holding or obtaining a driver’s licence for the same offending for a period prior to sentencing.
At about 12:30 am on 22 May 2010, the vehicle that the defendant was driving in North Adelaide was stopped by police. The defendant was subjected to an alcotest which returned a positive result and at about 12:46 am an analysis of her breath disclosed a reading of 0.190 grams of alcohol in 100 millilitres of blood. The defendant was charged with driving while having the prescribed concentration of alcohol present in her blood. She pleaded not guilty to the charge and was convicted following a trial in June 2011.
Allen Gale, a physician and general practitioner, gave evidence as part of the defendant’s case. His evidence, which was accepted by the Magistrate, was that at the time of the alleged offence, the defendant had a liver dysfunction that was likely to have been exacerbated by prescribed medication. Further, Dr Gale gave evidence that the liver dysfunction may have slowed the rate of the defendant’s ability to metabolise alcohol. This was also accepted by the Magistrate. The liver dysfunction had not been diagnosed at the time of the offending.
Peter Felgate, a toxicologist, gave evidence in the form of oral testimony and a report. Based on the defendant’s reported alcohol consumption on the evening of the offending and using average and low alcohol elimination rates as well as making various assumptions identified in his report, Mr Felgate concluded that the breath analysis machine had exaggerated the reading of the defendant’s blood alcohol concentration.
The defendant’s evidence at trial was that on the night in question she had consumed a standard bottle of wine over a six hour period between about 6:00 pm and 12:15 am. On the previous night, she had consumed five glasses of wine. It was her evidence that she would not have driven if she had thought that she had the prescribed concentration of alcohol in her blood. On a previous occasion, the defendant had been breathalysed by police after consuming wine and had been informed that she did not have the prescribed concentration of alcohol in her blood.
The principal issues arising on appeal are whether the Magistrate erred in concluding that the defendant could not rely on the defence of honest and reasonable mistake of fact and whether her conduct should have been regarded by the Magistrate as trifling. The first of those issues requires the mental element of the offence created by s 47B(1) of the Act to be determined. The defendant also relied upon a number of other grounds of appeal which will be addressed later in these reasons.
An extension of time to appeal was sought on the basis, inter alia, that the defendant was ill and unable to prepare a notice of appeal, and that the defendant could not obtain a copy of the reasons for decision within the time required to appeal as the Magistrate was on leave. The extension of time was not opposed by the police. In my view, it is appropriate to grant the extension as sought.
Appeal Against Conviction
The Mental Element
An accurate determination of the mental element of the relevant statutory offence is essential to deciding the correct outcome of this appeal. As noted above, the defendant was charged with breaching s 47B(1)(a) of the Act. That section provides:
(1)A person must not—
(a) drive a motor vehicle; or
(b) attempt to put a motor vehicle in motion,
while there is present in his or her blood the prescribed concentration of alcohol as defined in section 47A.
Penalty:
For a first offence—
…
(c)being a category 3 offence—a fine of not less than $700 and not more than $1 200.
…
The prescribed concentration of alcohol set out in s 47A relevant to the present proceeding was “a concentration of .05 grams or more of alcohol in 100 millilitres of blood”. The defendant’s blood alcohol concentration caused her offending to fall into the third category.[1]
[1] Section 47A of the Road Traffic Act 1961 (SA) defines the categories as follows:
category 1 offence means an offence against section 47B(1) involving a concentration of alcohol of less than .08 grams in 100 millilitres of blood;
category 2 offence means an offence against section 47B(1) involving a concentration of alcohol of less than .15 grams, but not less than .08 grams, in 100 millilitres of blood;
category 3 offence means an offence against section 47B(1) involving a concentration of alcohol of .15 grams or more in 100 millilitres of blood;
The requisite mental element for a breach of s 47B(1) of the Act has not been decisively determined by this Court. There are three possible classes to be considered. In Davis v Bates, King CJ described those classes in the following terms:[2]
… The first class is that of offences an element of which is the relevant guilty knowledge or intention, which element the prosecution must prove in order to prove a charge of the commission of the offence. The second consists of offences of which guilty knowledge or intention is not an element to be proved by the prosecution but which are nevertheless not committed if the person doing the prohibited act believes on reasonable grounds in a state of facts which, if true, would render the doing of the act innocent. The third class consists of offences which are committed by the mere infringement of the statutory prohibition irrespective of knowledge or intention.
[2] Davis v Bates (1986) 43 SASR 149, 150. For another description of the three categories, see the Canadian decision of R v Sault Ste. Marie (1978) 2 SCR 1299, 1325-1326.
Offences which fall within the second class are commonly known as strict liability offences. Those which fall within the third class are commonly known as absolute liability offences.
As the mental element required for s 47B(1) has not been determined by this Court, I propose to address this issue in a little detail.
A convenient starting point for determining the mental element of offences created by statute is the High Court decision of He Kaw Teh v The Queen.[3] In that decision, the presumption for statutory offences established in Sherras v De Rutzen[4] that “mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence” was cited with approval.[5] However, the presumption can be rebutted by the wording of the statute or its subject matter.[6] Accordingly, whether the presumption has been rebutted is a matter of statutory interpretation.[7]
[3] He Kaw Teh v The Queen (1985) 157 CLR 523.
[4] Sherras v De Rutzen [1895] 1 QB 918.
[5] He Kaw Teh v The Queen (1985) 157 CLR 523, 528 (Gibbs CJ with whom Mason J agreed), 565-566 (Brennan J). As Gibbs CJ noted in He Kaw Teh v The Queen, this presumption has been reaffirmed in Cameron v Holt (1980) 142 CLR 342, 346; Lim Chin Aik v The Queen [1963] AC 160, 173; Warner v Metropolitan Police Commissioner [1969] 2 AC 256, 272; Gammon (Hong Kong) Ltd v Attorney-General of Hong Kong [1984] 3 WLR 437, 441-443.
[6] He Kaw Teh v The Queen (1985) 157 CLR 523, 528 (Gibbs CJ with whom Mason J agreed), 565-566 (Brennan J); see also, Sherras v De Rutzen [1895] 1 QB 918, 921.
[7] See He Kaw Teh v The Queen (1985) 157 CLR 523, 567 (Brennan J), 590 (Dawson J); see also, CTM v The Queen (2008) 236 CLR 440, [5] (Gleeson CJ, Gummow, Crennan and Kiefel JJ), [61] (Kirby J), [138], [149] (Hayne J), [200] (Heydon J).
The terms of s 47B do not contain a positive indication of the existence of a mens rea as words such as “knowingly” and “willingly” do not appear.[8] This is in contrast to s 47BA which establishes the offence of driving with a prescribed drug in oral fluid or blood. Section 47BA(2) provides:
Subject to subsection (3), it is a defence to a charge of an offence against subsection (1) if the defendant proves that he or she did not knowingly consume the prescribed drug present in his or her oral fluid or blood.
[Emphasis added]
[8] See the observations of Dawson J in He Kaw Teh v The Queen (1985) 157 CLR 523, 594.
Given that s 47B and s 47BA create equivalent offences, one relating to a concentration of a prescribed drug in blood or oral fluid and the other relating to a concentration of alcohol in blood, it can be inferred that the absence of the word “knowingly” in s 47B indicates that Parliament did not intend for a s 47B offence to fall into the first class of offences – those which require a mens rea.[9]
[9] See Wilson J’s observations in dissent in He Kaw Teh v The Queen (1985) 157 CLR 523, 557-558 where his Honour considers the consequence of the absence of the phrase “without reasonable excuse” in one subsection where that phrase is used in the description of the offence in the three other subsections. See further, He Kaw Teh v The Queen (1985) 157 CLR 523, 594 (Dawson J); Sherras v De Rutzen [1895] 1 QB 918, 921 (Day J).
It was submitted by the police that s 47B was enacted as a measure to effect public safety to prevent danger that may arise from persons with the prescribed concentration of alcohol in their blood driving motor vehicles on the road. This submission is supported by the following observations of Gray J in Jasinski v Police:[10]
…Road traffic laws addressing drink driving are important social regulatory legislation. The direct link between drink driving and road carnage is a matter of public knowledge and concern. The legislative provisions are ultimately designed to ensure safety on the road.
[10] Jasinski v Police (2004) 234 LSJS 262, [18].
The importance of road safety and the severe consequences which can occur from drink driving are illustrated by the following extracts from the second reading speech for an amending Act which, inter alia, introduced a mandatory loss of licence for all drivers who breach s 47B:[11]
Illegal concentrations of blood alcohol are involved in about 30 per cent of fatal road crashes in South Australia-about 47 people died last year because of illegal alcohol levels. About 15 per cent of serious injury crashes – which caused serious injuries to about 235 people last year – involved illegal concentrations of alcohol. The likelihood of having a crash doubles for every 0.05 per cent increase in blood alcohol concentration (BAC). Except for the Northern Territory, every other jurisdiction has licence disqualification as part of the penalty for drink driving offences of 0.05 BAC or more, whereas South Australia presently only imposes licence removal for offences of 0.08 or more.
Drink driving cannot be condoned. There is no acceptable reason for driving while affected by alcohol. The link between the road toll and drink driving has been vividly demonstrated over many years. The recent plateau in the number of drink driving offences detected and the ever escalating number of crashes involving alcohol affected drivers clearly reveals that a new approach is needed.
The Bill therefore provides for the mandatory loss of licence for persons caught driving a motor vehicle with a blood alcohol concentration of between 0.05 and 0.079. The first offence will involve a loss of licence for 3 months, the second for 6 months and the third for 12 months. The maximum fine of $700 will remain unchanged and will apply to a first, second or subsequent offence. The decision not to increase the monetary penalty has been taken to demonstrate that this initiative is totally about road safety.
[11] South Australia, Parliamentary Debates, House of Assembly, 16 October 2002, 1572 (the Hon. Michael Wright).
The remarks of Doyle CJ in Siviour-Ashman v Police in respect of s 47B(1) are also relevant to the present proceeding:[12]
…The offence in question is driving a motor vehicle when the prescribed concentration of alcohol is present in the driver's blood. It is not necessary to decide whether it is a defence to this charge for a defendant to establish that the defendant honestly believed on reasonable grounds in facts that, if they existed, would mean that no offence was committed. It may be that liability for this offence is absolute.
…
A provision such as s 47B(1) is intended to deter persons from driving when there is a risk of them having the prescribed concentration of alcohol in their blood. A number of cases have made it plain that not only is it not a defence, but it is not a significant mitigating factor, that the offender did not realise that he or she had or might have the prescribed concentration of alcohol in his or her blood. The provision is intended to set a standard which must be observed at the offender's peril, subject to the possibility of a so-called Proudman v Dayman defence: …
[Emphasis added]
[12] Siviour-Ashman v Police (2003) 85 SASR 23, [21], [33].
At this point it is convenient to note that if the defence of honest and reasonable mistake of fact, also known as the Proudman v Dayman defence, is available, then the offence in s 47B(1) is one of strict liability. Although Doyle CJ did not decisively determine the question whether s 47B(1) is a strict liability or an absolute liability offence, it is clear that s 47B(1) is not an offence in which guilty knowledge or intention must be proved as an element of the offence.
Taking into account the wording of s 47B in the context of the subject matter of the statute as a whole it is apparent that s 47B(1) does not require a mens rea.
The question whether the offence is one of strict or absolute liability is more difficult to determine. When considering this issue in Davis v Bates, King CJ relevantly observed:[13]
…The trend of the authorities is towards recognizing reasonable mistake of fact as a defence in the case of all statutory offences except that limited class of regulatory offences, usually relating to public health or safety, in respect of which, from the subject matter of the offence or the context in which the provision creating it is found, it is clear that the legislature intends to penalize the offending conduct irrespective of the subjective guilt of the offender.
[13] Davis v Bates (1986) 43 SASR 149, 151.
The purpose of s 47B is undoubtedly to protect public safety. However, other factors must also be considered.
It is settled that s 47B is to be construed in consideration of the Act as a whole.[14] In Davis v Bates, von Doussa J relevantly observed:[15]
…The context in which the particular section appears, and the way in which other sections deal with the knowledge or belief of a particular offender may be of considerable importance.
[14] See, Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297, 320; Metropolitan Gas Co v Federated Gas Employees’ Industrial Union (1924) 35 CLR 449, 455.
[15] Davis v Bates (1986) 43 SASR 149, 158.
Section 47(1) of the Act creates the offence of driving under the influence of intoxicating liquor or a drug. It prevents a person from driving a vehicle “while so much under the influence of intoxicating liquor or drug as to be incapable of exercising effective control of the vehicle”.[16] The penalty includes a fine and a licence disqualification and may include a period of imprisonment.
[16] Road Traffic Act 1961 (SA) s 47(1).
In August v Fingleton,[17] s 47 was defined as an absolute liability offence. In reaching this conclusion, Napier CJ, Travers and Bright JJ observed:[18]
The act of driving a motor vehicle on a public highway is one that involves a grave risk to life and limb as well as to the property of other people, unless it is done with the appropriate degree of care and skill. The purpose of the rules laid down by the Road Traffic Act is to keep this risk down to the, more or less, irreducible minimum. It follows that, in prohibiting such things as driving without due care (see R v Coventry), or to the danger of the public (see Hill v Baxter), or by persons incapable of exercising effective control of the vehicle, the legislature is not concerned with the moral quality of the act, but with the risk of injury to others.
[Footnotes omitted]
[17] August v Fingleton [1964] SASR 22.
[18] August v Fingleton [1964] SASR 22, 25.
On the one hand, it is arguable that given s 47B is an offence of a similar nature to s 47 and given that s 47B has a lower penalty as imprisonment cannot be imposed, it is likely that Parliament intended for s 47B also to be an absolute liability offence. However, if this were correct, one would expect the same logic to apply to s 47BA of the Act. To the contrary s 47BA contains the word “knowingly” which is a key indication that it requires a mens rea.[19] Therefore, consideration of the mental element in s 47 is of little assistance in conclusively determining whether s 47B is an offence of strict or absolute liability.
[19] See, He Kaw Teh v The Queen (1985) 157 CLR 523, 594 where Dawson J observed: “Where some such word as "knowingly" or "wilfully" is used in the description of an offence, there is no difficulty in concluding that guilty intent is required”.
I turn now to consider the circumstances where a person has breached s 47B but had no intention of doing anything wrong and had no knowledge of doing anything wrong. In the present proceeding, an example of such a person would be a person who drove a motor vehicle after consuming drinks in which the person believed to be non-alcoholic, but which did in fact contain alcohol due to an act of another.[20] It is possible to envisage a person with a blood alcohol concentration of 0.05 per cent or just above who has not noticed any effects from the alcohol. The same cannot be said about a person who has breached s 47 by being “so much under the influence of intoxicating liquor or a drug as to be incapable of exercising effective control of the vehicle”. Therefore, it is open to infer that Parliament intended for s 47B to be a strict liability offence in order to protect a class of persons who would be unfairly penalised if the offence was one of absolute liability. This view is supported by the following remarks of Besanko J in Siviour-Ashman:[21]
In this case, the appellant was in many respects quite blameless and there are powerful mitigating circumstances in her favour. It was not an offence for the appellant to drive a motor vehicle with a concentration of alcohol in her blood. It was an offence to drive a motor vehicle with the prescribed concentration of alcohol in her blood. The appellant was careful in her approach to drinking alcohol on the night in question, and but for the consumption of what she thought was a non-alcoholic fruit drink, she would not have committed an offence. The appellant was in no way careless in accepting the fruit drink instead of a glass of water, and there was no fault on her part in failing to detect the fact that the drink contained alcohol. She was not driving in a careless manner and she presented to the police as a sober person who was genuinely shocked when told of her blood alcohol reading. In fact, there are powerful reasons for thinking that in the circumstances of this case (that is, where the offending conduct was in essence caused by the intervention of a third party) a defence to the charge should be available. However, whether such a defence can be accommodated within the statutory scheme is not an issue before the court and I express no view on it.
[Emphasis added]
[20] See for example, Siviour-Ashman v Police (2003) 85 SASR 23.
[21] Siviour-Ashman v Police (2003) 85 SASR 23, 34-35.
Offences equivalent to s 47B(1) have been defined in other jurisdictions as strict liability offences.[22] Although they form part of different legislative schemes, the determination of the mental element of those offences supports the conclusion that s 47B(1) of the Act is a strict liability offence.
[22] DPP v Bone [2005] NSWSC 1239; Rooke v Auckland City Council [1980] 1 NZLR 680; O’Neill v Ministry of Transport [1985] 2 NZLR 513; Harmer v Grace, ex parte Harmer [1980] Qd R 395; Smith v Le Mura [1983] 1 Qd R 535; F v Ling (1985) 21 A Crim R 55; Blackburn v Davies (1993) 18 MVR 131 (Tasmania).
As the authorities show, there are arguments which point both ways and thus far the Full Court has not found it necessary to determine the point, however in my view it is prudent to determine the issues on this appeal on the basis that s 47B(1) is a strict liability offence. This conclusion was not challenged by either party to this appeal.
Honest and Reasonable Mistake of Fact
The defendant sought to rely on the defence of honest and reasonable mistake of fact. This is available as a defence to offences of strict liability.[23]
[23] Proudman v Dayman (1941) 67 CLR 536, 540; He Kaw Teh v The Queen (1985) 157 CLR 523, 532 (Gibbs CJ, with Mason J agreeing), 591-592 (Dawson J).
The Proudman v Dayman defence as it is commonly referred to[24] was described by Dixon J in the following terms:[25]
…As a general rule an honest and reasonable belief in a state of facts which, if they existed, would make the defendant's act innocent affords an excuse for doing what would otherwise be an offence.
[24] See the discussion of Dawson J in He Kaw Teh v The Queen (1985) 157 CLR 523, 591-593; CTM v The Queen (2008) 236 CLR 440, [61] (Kirby J), [200] (Heydon J).
[25] Proudman v Dayman (1941) 67 CLR 536, 540.
In order to rely on this defence, the defendant bears the evidentiary onus of raising the defence and once raised the prosecution has the burden of proving the absence of an honest and reasonable belief.[26] The evidentiary onus was discussed in CTM v The Queen:[27]
…The concept of evidentiary onus itself needs to be understood in the light of the subject matter to which it applies; here, honest and reasonable belief, a concept that has a subjective element of a kind that ordinarily is peculiarly within the knowledge of the accused, and an objective element that must be capable of being measured against the evidence by a tribunal of fact.
[26] CTM v The Queen (2008) 236 CLR 440, 447 (Gleeson CJ, Gummow, Crennan and Kiefel JJ); He Kaw Teh v The Queen (1985) 157 CLR 523, 534-535 (Gibbs CJ), 558 (Wilson J), 574-575 (Brennan J), 592-593 (Dawson J); Jiminez v The Queen (1992) 173 CLR 572, 582; see also Gibbon v Fitzmaurice (1986) 23 A Crim R 12, 19; Chard v Wallis (1988) 12 NSWLR 453, 455.
[27] CTM v The Queen (2008) 236 CLR 440, [8] (Gleeson CJ, Gummow, Crennan and Kiefel JJ).
At risk of stating the obvious, to make out the Proudman v Dayman defence “the belief must be reasonable as well as honest”.[28] As is evident from the remarks of Dixon J, the honest and reasonable belief must be with respect to a state of affairs and that state of affairs must be such that it would render the defendant’s conduct innocent.[29] This was further explained in the joint judgment of Gleeson CJ, Gummow, Crennan and Kiefel JJ in CTM:[30]
Where it is a ground of exculpation, the law in Australia requires that the honest and reasonable, but mistaken, belief be in a state of affairs such that, if the belief were correct, the conduct of the accused would be innocent. In that context, the word "innocent" means not guilty of a criminal offence. In the case of an offence, or a series of offences, defined by statute, it means that, if the belief were true, the conduct of the accused would be "outside the operation of the enactment".
[Footnote omitted]
[28] Mayer v Marchant (1973) 5 SASR 567, 572 (Bray CJ).
[29] See Proudman v Dayman (1941) 67 CLR 536, 540.
[30] CTM v The Queen (2008) 236 CLR 440, [8].
On appeal, the defendant raised three primary concerns with the Magistrate’s treatment of the defence of honest and reasonable mistake of fact. First, the defendant contended that the Magistrate erred in finding that the defence had not been made out as it was said that once the grounds of exculpation had been raised, the evidentiary burden and the onus of proving the absence of such a belief lay on the prosecution. Secondly, the defendant submitted that the Magistrate erred in finding the charge proved as, it was said, the police failed to disprove the grounds of exculpation and the absence of an honest and reasonable mistake of fact. Thirdly, it was contended that the Magistrate erred in finding that the defendant’s mistaken belief of alcohol in her blood was a mistaken belief rather than a mistake of fact.
The defendant did not challenge the accuracy of the blood alcohol concentration obtained during breath analysis or the correctness of the operation of the breath analysis machine.
The defendant gave evidence at trial that she did not believe that she was incapable of driving or that by driving, she would be committing an offence. Further, there was evidence that the defendant was unaware of her liver disease or dysfunction, was unaware of her reduced ability to metabolise alcohol and was unaware of the possibility of having residual alcohol in her system. Further, the defendant was taking medication that exacerbated her liver disease.
It was contended by the police that what the defendant mistakenly believed appears to have been that her liver was able to metabolise alcohol in the way that it would or should were she not suffering any liver disease or dysfunction. The defendant’s belief and the fact itself were not disputed by the police. However, on appeal, the police contended that the fact alone, if it is true, is not sufficient to render her conduct innocent.
The reasonableness of the belief was said to be based on an experience the defendant had about 18 months prior to the present offending. On that occasion, she was breath tested after consuming alcohol at a function. She had a blood alcohol concentration of less than the prescribed concentration.
The police contended that this earlier experience could not be used to establish a reasonable belief. It was said that there were many differences in the circumstances between the earlier occasion and the night of the present offending. The police submitted that the defendant consumed a different amount of wine over a different period of time, did so at a different time of day and presumably consumed different food.
The police conceded that a person seeking to rely on the defence of honest and reasonable mistake of fact is not required to apply his or her mind particularly to the circumstances each time a recurring act occurs as forming an honest and reasonable belief on one occasion is sufficient provided that the same set of circumstances is repeated. However, the police submitted that this principle was not applicable to the present proceeding due to the different circumstances on the two occasions.
In my view, the circumstances on the night of the present offending and those that occurred 18 months prior are clearly very different. The circumstances of the earlier event cannot be used as a basis for establishing the reasonableness of the defendant’s mistaken belief.
In establishing the reasonableness of her belief, the defendant also relied on expert evidence. As mentioned earlier, the effect of Dr Gale’s evidence, taken at its highest, was that at the time of the present offending, the defendant had undiagnosed liver damage exacerbated by her medication and that it was likely that this had reduced her ability to metabolise alcohol. The medication referred to was that which the defendant had been prescribed for anxiety and depression. Dr Gale was unable to indicate the degree to which the defendant’s alcohol metabolism was impaired nor was he able to indicate the extent of the defendant’s ability to metabolise alcohol prior to her consumption of the medication or prior to her liver disease or dysfunction.
Mr Felgate prepared a report based on information provided by the defendant. Following the offending in question, the defendant undertook a simulation exercise to replicate the events on the night of the offending. The results of this exercise were provided to Mr Felgate and he performed a number of calculations. Mr Felgate used the minimum reported elimination rate of 0.006 per cent per hour to calculate the defendant’s blood alcohol concentration at the time of the breath analysis as being 0.12 per cent. This differed from the defendant’s actual reading of 0.19 per cent. In a separate calculation, Mr Felgate concluded that the defendant’s alcohol elimination rate was within the normal reported range.
Mr Felgate’s report relevantly provided:
The discrepancy between the estimated blood alcohol concentration on the 22 May 2010 based on the stated quantity of alcohol consumed (0.12%) and the actual breath analysis result (0.19%) may be explained by:
1. On the 21st/22nd May 2010 Ms Watson’s elimination rate was much less than the apparent rate calculated from the simulation experiment. Based on the quantity of alcohol consumed and assuming that the breath analysis result is correct then Ms Watson’s blood alcohol concentration of 0.19% cannot be explained by the normal processes of metabolism and elimination. It would suggest that there was some residual alcohol in Ms Watson’s blood prior to her starting to drink at 1700 hours on the 21 May 2010. This would suggest that Ms Watson was unable to metabolise alcohol at a normal rate.
2. The quantity of alcohol consumed on the 21 May 2010 was greater than that stated and Ms Watson’s elimination rate was similar to that determined by the simulation experiment (that is 0.015% per hour).
3. The breath analysis result of 0.19% was incorrect.
There are limitations to the use which can be made of Mr Felgate’s report. Mr Felgate assumed that the simulated exercise recreated exactly the circumstances on the night of the offending. This was not the case. The circumstances of the simulated exercise were inconsistent with the defendant’s evidence at trial as to the circumstances on the night of the offending – the period over which the defendant consumed alcohol was shorter in the simulated exercise than on the night of the offending, the defendant did not consume alcohol up until the time of the offending in the simulated exercise and the time of day of the consumption also differed, occurring earlier in the day in the simulated exercise.
Mr Felgate gave evidence at trial. He informed the Court that his opinion would be affected if the defendant had been drinking up until the time of the incident. Further, Mr Felgate testified that the same person can have different alcohol elimination rates at different times. In these circumstances, Mr Felgate’s report cannot be used to establish the contention that the Proudman v Dayman defence can be called to the defendant’s aid.
I accept that there is evidence that at the time of the offending, the defendant was suffering from a liver disease or dysfunction and that she was consuming medication prescribed for her depression and anxiety. I also accept that it is likely that her medication exacerbated her liver disease or dysfunction. I accept that there is evidence that liver disease or dysfunction can reduce a person’s ability to metabolise alcohol. Further, I accept that the defendant honestly and reasonably believed that her liver was functioning as it would without the effects of her medication or disease. This was accepted by the police. However, the defendant consumed a standard bottle of wine between 6:00 pm and 12:15 am on the night of the offending. In my view an honest mistaken belief on the part of the defendant as to the effect on her blood alcohol level of the bottle of wine consumed during the relevant period does not, and could not, provide a proper evidentiary foundation to raise the defence of honest and reasonable mistake of fact. I agree with the Magistrate.
Miscellaneous Matters
There are a number of further matters raised by the defendant in relation to her appeal against conviction which, in my view, have no substance. I propose to address each in turn.
Involuntariness
The defendant submitted that her offending was involuntary or was the result of automatism. It was said that the defendant had no control over her offending and could not have been expected to guard against it as the Magistrate found that she had an undiagnosed liver disease or dysfunction which was exacerbated by a prescribed drug and that, unknown to her, those factors inhibited her metabolism of alcohol at the relevant time.
In R v Falconer, the following pertinent remarks were made in the joint judgment of Mason CJ, Brennan and McHugh JJ:[31]
When an act is done by an apparently conscious actor, an inference that the act is willed must be drawn — not as a matter of law but as a matter of fact — unless it be shown that the actor, being of sound mind, has been deprived of the capacity to control his actions by some extraordinary event or unless the actor, being of unsound mind, has thereby lost the capacity to control his actions. The accused bears no ultimate onus of proving that his act was not willed, but he bears the evidential onus of rebutting the inference that his act was willed, and there is no occasion for the jury to consider the possibility of an unwilled act unless that evidential onus is discharged. The inference that an act is willed is thus supported by the presumption that all persons have the capacity to control their actions unless they be of unsound mind, and an accused bears an ultimate onus of proving that he was of unsound mind if he chooses to raise that issue.
[31] R v Falconer (1990) 171 CLR 30, 43.
The police contended that the defendant’s use of the concept of involuntariness is misconceived. Her ability to metabolise alcohol is not an act over which she would normally have control and is not something that is consciously done by the defendant. Further, it was contended that the concept of automatism cannot apply in the present proceeding as there was no evidence that the defendant was deprived of her capacity to control her actions. I accept these contentions.
Act of a Stranger
The defendant contended that her offending occurred as a result of an act of a stranger or as a result of non-human activity. The basis for this submission was similar to that contended in relation to involuntariness; that is, the defendant had no control over and could not be expected to guard against her undiagnosed liver disease or dysfunction which, unknown to her at the relevant time, had been exacerbated by a prescribed drug.
The defendant’s impaired ability to metabolise alcohol caused by her liver disease or dysfunction and exacerbated by the prescribed drug was not the sole contributing factor to the commission of the offence. In my view, there is no basis to suggest that had the defendant’s ability to metabolise alcohol not been impaired, she would not have committed an offence. I reject the submission that the defendant’s offending occurred as a result of an act of a stranger.
Miscarriage of Justice
The defendant submitted that convicting her in the circumstances where her ability to metabolise alcohol was impaired due to her undiagnosed liver disease or dysfunction exacerbated by the prescribed drug constituted a miscarriage of justice.
It was not suggested that the defendant did not receive a fair trial or that she was not given adequate opportunity to lead evidence relevant to an acquittal. Further, the Magistrate appears to have carefully considered the evidence relating to the defendant’s liver dysfunction. Having done so, the Magistrate decided that the evidence was insufficient to make out a defence to the charge. Convicting the defendant did not constitute a miscarriage of justice.
Errors of Fact
The defendant alleged that the Magistrate erred in finding that the defendant’s simulated test commenced at 6:00 pm rather than 5:00 pm. It was further said that the Magistrate erred in fact as the defendant’s evidence was that she consumed five glasses of wine between 6:00 pm and 12:15 am on the evening of the offending, rather than a bottle of wine over a period of 3.5 hours.
In this respect, it is relevant to set out the defendant’s evidence regarding her consumption of alcohol prior to the offending:
Q. Now you said that you drank at the function five glasses of wine.
A. That’s correct, white wine.
Q. Were they standard glasses, standard wine glasses.
A. Yes they were standard wine glasses.
Q. And you said that you drank them over the six hour period that you were there.
A. That’s correct.
Q. And prior to that the night before you said you’d had I think four or five glasses of wine.
A. Yes.
Q. How can you be certain Ms Watson that that was the amount of alcohol that you drank.
A. On the night in question?
Q. On the night in question yes.
A. Because there’s, I had a bottle of wine and as I understand a bottle of white wine, and that is all I had, and a standard bottle of wine contains five glasses of wine.
The defendant also gave evidence that on the night of the offending, she arrived at the function at 6:00 pm and was drinking over the six hour period until she left at about 12:15 am.
In his reasons, the Magistrate described his understanding of the mistake of fact being put to him as “by drinking a bottle of wine over a period of three and a half hours the defendant would be safe to drive in the sense that she would not be over the prescribed concentration of alcohol”. It is evident that the Magistrate made an error in relation to the time period over which the defendant consumed alcohol. This was conceded by the police. However, in my view, that error did not affect the Magistrate’s reasoning. The Magistrate correctly understood the effect of the defendant’s evidence that she had consumed a certain amount of wine prior to the offending and that her belief was that, absent her liver disease or dysfunction exacerbated by the prescribed medication, the amount of wine that she consumed should not have caused her to have a blood alcohol concentration exceeding the prescribed concentration set out in s 47A of the Act. In my view, the Magistrate’s error regarding the starting time of the simulated test also did not affect his reasoning.
The defendant further argued that her conduct and demeanour on the night of the offending causes her mistake to be reasonable. In particular, the defendant emphasised her conduct in the presence of police and submitted that she displayed no signs of unusual behaviour. This complaint has no basis. The offence of driving while having the prescribed concentration of alcohol in blood contrary to s 47B(1)(a) of the Act does not require consideration of the defendant’s conduct.[32] This point is illustrated by the following observations of Doyle CJ in Siviour-Ashman:[33]
…The fact that the appellant's driving was not apparently adversely affected by the alcohol is of no great significance. The offence in question is not concerned with the actual standard of the driving in question. It is concerned, as much as anything, with preventing the danger that can arise when motor vehicles are driven by persons with the prescribed concentration of alcohol in their blood.
[32] Cf s 47 of the Road Traffic Act 1961 (SA) which creates the offence of driving under the influence.
[33] Siviour-Ashman v Police (2003) 85 SASR 23, [26].
The appearance of being sober is irrelevant to whether a person’s blood alcohol concentration exceeds the prescribed concentration, particularly in light Mr Felgate’s expert opinion that the effect of alcohol may be less observable in a frequent heavy drinker.
Appeal Against Sentence - Section 47B(3) of the Act
Section 47B(3)(a) of the Act provides:
(3)Where a court convicts a person of an offence against subsection (1), the following provisions apply:
(a) the court must order that the person be disqualified from holding or obtaining a driver's licence—
(i)in the case of a first offence—
(AA)being a category 1 offence—for such period, being not less than 3 months, as the court thinks fit;
(A)being a category 2 offence—for such period, being not less than 6 months, as the court thinks fit;
(B)being a category 3 offence—for such period, being not less than 12 months, as the court thinks fit;
(ii)in the case of a second offence—
(A)being a category 1 offence—for such period, being not less than 6 months, as the court thinks fit;
(B)being a category 2 offence—for such period, being not less than 12 months, as the court thinks fit;
(C)being a category 3 offence—for such period, being not less than 3 years, as the court thinks fit;
(iii)in the case of a third offence—
(A)being a category 1 offence—for such period, being not less than 9 months, as the court thinks fit;
(B)being a category 2 offence—for such period, being not less than 2 years, as the court thinks fit;
(C)being a category 3 offence—for such period, being not less than 3 years, as the court thinks fit;
(iv)in the case of a subsequent offence—
(A)being a category 1 offence—for such period, being not less than 12 months, as the court thinks fit;
(B)being a category 2 offence—for such period, being not less than 2 years, as the court thinks fit;
(C)being a category 3 offence—for such period, being not less than 3 years, as the court thinks fit;
It is evident from the terms of s 47B(3)(a) that that provision imposes a mandatory driver’s licence disqualification and the minimum period imposed differs depending on the level of the person’s blood alcohol concentration and whether the offending is a first offence, second offence, third offence or subsequent offence. The minimum driver’s licence disqualification for the defendant’s offending is 12 months. However, s 47B(3)(b) prescribes a lesser penalty where the offending is considered trifling:
(b)the disqualification prescribed by paragraph (a) cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence unless, in the case of a first offence, the court is satisfied, by evidence given on oath, that the offence is trifling, in which case it may order a period of disqualification that is less than the prescribed minimum period but not less than one month;
The defendant contended that the Magistrate had erred in deciding that her offending was not trifling. The defendant identified a number of alleged errors in this respect.
Before turning to consider the merits of the defendant’s contention, it is appropriate to set out the relevant law. The term “trifling” is not defined in the Act. However, a number of considerations relevant to deciding whether an offence against s 47B of the Act is trifling were summarised by White J in Police v Ludlow:[34]
(a)the word “trifling” in s 47B of the [Road Traffic Act] is used to mean of slight importance, insignificant or of little moment;[35]
(b)the focus of the Court’s consideration must be on the conduct constituting the offence but regard may also be had to the circumstances which explain how the offence came to be committed;[36]
(c)regard should be had to the purpose of s 47B, ie, the promotion of safe driving conditions;[37]
(d)an offence which is a normal or typical example of its type will not be trifling.[38] Section 47B(3)(b) must be understood as intended to deal with the unusual or exceptional case, the circumstances of which call for the usual minimum to be put to one side.[39] Campbell v Fuss[40] was such a case as the defendant, who had not earlier been driving the vehicle, was intending only to adjust the position in which it was parked;
(e)a lack of realisation by the defendant that he/she had or might have the prescribed concentration of alcohol is generally not relevant, but a soundly based belief falsified by events over which the defendant had no control may be relevant;[41]
(f)a belief that circumstances exist justifying the conduct engaged in might make an offence trifling, eg, driving in necessitous circumstances to fulfil some humanitarian purpose;[42]
(g)it has been said that when the breach is deliberate it can rarely be described as trifling[43] but this proposition may not be applicable when the driving is for some humanitarian or other urgent purpose.
[34] Police v Ludlow (2008) 253 LSJS 272, [13].
[35] Siviour-Ashman v Police at [24], 27 Doyle CJ.
[36] Siviour-Ashman v Police at [29], 28 per Doyle CJ; [61], 34-5 per Besanko J; Police v Fargher [1999] SASC 206 at [15] per Perry J.
[37] Police v Hodge (1996) 89 A Crim R 290 at 291 per Debelle J; Siviour-Ashman v Police at [63], 35 per Besanko J; Police v Mutton [2006] SASC 328 at [17]; (2006) 246 LSJS 153 at 156 per Sulan J.
[38] Siviour-Ashman v Police at [25], 27-8 per Doyle CJ. See also Mancini v Vallelonga (1981) 28 SASR 236 at 239 per Mitchell J.
[39] Verran v Roberts [1938] SASR 256 at 259-60 per Napier J; Mancini v Vallelonga (1981) 28 SASR 236 at 239; Siviour-Ashman v Police at [25], 25-8 per Doyle CJ.
[40] (1991) 55 SASR 355.
[41] Siviour-Ashman v Police at [35], 30 per Doyle CJ.
[42] Siviour-Ashman v Police at [36]-[37], 30 per Doyle CJ, at [61], 34-5 per Besanko J.
[43] Mancini v Vallalonga (1981) 28 SASR 236 at 239 per Mitchell J.
In Siviour-Ashman, Besanko J made the following remarks in deciding that the offending was not trifling:[44]
The conduct which constitutes the offence in this case is in no way atypical. The appellant was driving on a main road with greater than the prescribed concentration of alcohol in her blood. In fact, her blood alcohol reading was well over twice the prescribed limit. The circumstances which explain how that came about are relevant, but I think the focus in considering the application of s 47B(3)(b) must be on the conduct which constitutes the offence. I say that because an important purpose, if not the most important purpose, behind the legislative provisions which create the offence is, to use the words of Debelle J in Police v Hodge "the establishment of safe driving conditions".
In my opinion, despite the powerful mitigating circumstances in this case, in determining whether the offence is trifling the focus must be on the conduct which constitutes the offence. Such an approach leads to the conclusion that the offence is not trifling within s 47B(3)(b) of the Road Traffic Act.
[44] Siviour-Ashman v Police (2003) 85 SASR 23, [63]-[64].
The defendant in the present proceeding was, like the defendant in Siviour-Ashman, driving on a main road with greater than the prescribed concentration of alcohol in her blood. In the present proceeding, the defendant’s blood alcohol concentration was more than three times the prescribed concentration. She was driving a vehicle from a function at the Hilton Hotel in Adelaide to her house in Bowden. It is not a case in which the driving of the vehicle was atypical as the defendant was simply parking the vehicle or moving it a short distance.[45] Nor is it a case where the defendant was driving to achieve a humanitarian purpose. In these circumstances, to categorise the defendant’s offending as trifling would offend against the purposes for which s 47B(1) was created; that is, to protect the community by promoting safe driving conditions. In my view, the Magistrate correctly concluded that there was nothing about the actual offending itself that could be regarded as trifling. The defendant’s liver disease or dysfunction exacerbated by the prescribed medication was an insufficient basis to result in her offending being trifling.
[45] See eg, Campbell v Fuss (1991) 55 SASR 355.
Conclusion
The extension of time to appeal is granted. However, after consideration of the evidence as a whole, in my view, none of the grounds raised by the defendant on appeal can succeed. The appeal against the decision of the Magistrate in relation to both the conviction and sentence is dismissed.
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