The offence of Driving with Prescribed Illicit Drug NSW
It is an offence under s 111 of the Road Transport Act 2013 (NSW) to drive or attempt to drive a motor vehicle while you have a prescribed illicit drug or morphine in your system.
There are three separate elements that must be proved by the prosecution for a person to be found guilty of this offence:
- A person was driving, attempting to drive, or supervising an L plater who was driving;
- A motor vehicle; and
- They had a prescribed illicit drug OR morphine in their system.
All the elements listed here are 'physical' – i.e. they relate to what a person is doing or what physical state they are in at the time. There are no 'mental' elements – i.e. nothing which relates to what a person intends, knows or should have been expected to know.
This means the prosecution is not required to show anything about a person's knowledge or intentions to prove they have committed this offence. These kinds of offences are known either as strict liability or absolute liability offences.
Absolute versus strict liability
Absolute Liability
Absolute liability offences are those where there is no specified requirement of intention or a certain level of knowledge before an offence is found proven. A defendant also is unable to defend the charge by showing they did not know or intend to do a specific act. This means a person can commit an offence without any planning or awareness of what they were doing.
A common example of absolute liability offences are parking offences. A person may park their vehicle on a curb and not have noticed a 'No Stopping' sign. They had no intention to disobey a parking restriction and wouldn't have parked there had they known. But, because their vehicle is physically parked in the wrong area, they are guilty of the offence and cannot defend it at court based on the fact they didn't know or intend to disobey the sign.
Strict Liability
Strict liability offences are those where the defence of 'honest and reasonable mistake of fact' is available to a defendant. In these offences, the prosecution is still not required to prove a mental element, but a defendant has the option of raising the defence.
The circumstances in which an offence becomes one of strict versus absolute liability is often a matter of interpretation. At times it requires analysing the language of a particular statute or interpreting what the parliament (the creators of the law) intended when they first introduced the statute. For many offences, this interpretation has already been argued about in court and a judgment has been made.
What is the defence of 'honest and reasonable mistake'?
This concept comes from the High Court of Australia, who have made clear that in certain cases it would be unfair or illogical to not allow an option for people to defend themselves on the basis of an 'honest and reasonable' belief or mistake.
For example, a person cannot be found guilty of driving whilst on a suspended licence if they were 'honestly and reasonably mistaken' about their licence being valid. This can happen where the transport agency has failed to send out notification of an upcoming suspension. Whilst in reality they were found to be driving with a licence that was officially suspended, they had no reasonable way of knowing and it would be unjust to find them guilty of something they had no intention of doing.
It is important to note that this defence has two distinct parts, and both must be proven. That means the belief or mistake must be honest and reasonable, not just one or the other. It is often not too difficult for a court to find that a person did honestly believe in a mistaken set of circumstances, however they find it harder to accept that it was reasonable for a person to have this belief or to have made the mistake in the first place.
To use the example of driving while suspended again: A person may have moved house and forgotten to notify the transport agency of their new address. They personally may have never gotten notification of the suspension; however, they had failed to take all required steps to ensure their transport agency could contact them and let them know of changes to their licence. In those circumstances, their mistake is not reasonable, and the court would find they should have known they were suspended and are therefore guilty.
It should also be noted that there is a very clear difference between a mistake of fact and a mistake of law. It is never an excuse to show that a person was not aware that their actions were breaking the law. For example, "I didn't know my licence was suspended" is a mistake of fact. "I didn't know it was illegal to drive while suspended" is a mistake of law.
Driving with a prescribed illicit drug in your system and the defence of honest and reasonable mistake
Until recently, the defence of honest and reasonable mistake was available for the offence under s 111 of the Road Transport Act.
This was established in several NSW Local Court cases and one District Court case. Essentially, if a person could raise on the facts that they had no reason to expect drugs to be in their system, they could not be faulted for making the decision to drive.
These cases covered two different circumstances in which a person may mistakenly believe they would not have drugs in their system:
- Where they have consumed an illicit drug so long ago that it would be reasonably expected the drugs would have left their system:
- A successful raising of the defence in these circumstances happened where a person was told by a police officer to "wait a week" before driving after consuming cannabis. They did so and still produced a positive drug test.
- They were found to have held an honest and reasonable belief they were fine to drive on the basis of advice from a police officer.
- However, this defence has not always been successful – another person raised they thought 17 days should be long enough for the cannabis to leave their system but expressed to police an awareness that cannabis can remain in the body for multiple months. It was found they did not hold a reasonable belief.
- Where a person has not actively consumed drugs – passive inhalation or spiking:
- In 2019 a defendant made a successful argument that they honestly and reasonably thought there would be no THC in their system while driving. They gave evidence that they had last smoked cannabis over a month beforehand but had spent two hours in a room where people were smoking cannabis on the same day that they were drug tested.
- The court accepted that the defendant honestly and reasonably believed you could not test positive to a drug test without actively smoking cannabis and therefore was found not guilty of the offence.
- However, it is noted that there a controversial and often conflicting views on this subject. Scientific opinion on the ability of passive inhalation to generate a high enough concentration to show up on a drug test is not settled and many defendants have failed to convince the court with this excuse.
Absolute liability now applies to this offence
In July 2023 the District Court of NSW made a definitive ruling that the defence of 'honest and reasonable mistake of fact' does not apply to this offence. This was subsequently upheld by the NSW Criminal Court of Appeal in February 2024. There is no higher court in NSW to consider this matter – if a defendant wanted this decision to be overruled, they would need to make their case before the High Court of Australia.
Going forward, this means that none of the scenarios listed above will be accepted as a reasonable defence to the offence of driving with a prescribed illicit drug in your system. If the police can prove that you were driving and that they obtained a valid oral fluid and/or blood sample that tested positive for a prescribed illicit drug, that is all that is required.
Now when a person is charged with this offence and they didn't know and/or had no reason to expect there would be illicit drugs in their system, these matters will fall into the category of 'guilty with an explanation' rather than 'not guilty because of an honest and reasonable mistake'.
The Criminal Court of Appeal remarked in February that existing sentencing mechanisms allowing the court to exercise leniency on penalty (i.e a 'section 10' or 'non conviction') were sufficient to address any injustice that may occur when people are charged with unknowingly committing this offence. This means a person would still be found guilty but a conviction would not be recorded, no fine imposed and there would be no attached period of licence suspension or disqualification.
It is noted that this decision only applies to offences under s 111 of the Road Transport Act (i.e. driving with an illicit drug in your system). The defence of honest and reasonable mistake of fact is still available for other offences under the Road Transport Legislation, including: PCA offences, failing to submit to a breath analysis/drug test and driving while suspended/disqualified.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.