NSW court ruling will make it almost impossible to contest drug driving charges, legal experts claim

Legal experts have argued a New South Wales district court judgment will make it almost impossible for people facing drug driving charges to defend themselves, no matter the circumstances.

The decision, handed down on 26 July, involved a Sydney man who lost his licence after testing positive for cocaine at a roadside drug test.

After being convicted in the NSW local court, the man took the case to the district court, which threw out his appeal.

The man’s lawyers are now considering a second appeal to the supreme court over concerns the lower court’s decision will have wide-reaching ramifications by changing the threshold of liability for drug driving charges – an argument that has been backed by other experts.

According to the district court judgment, which summarises the facts of the case, police pulled the man over in western Sydney in September 2020 “due to his manner of driving”.

He was breath tested for alcohol and returned a negative result before undergoing two saliva drug tests, which detected cocaine in his system. He was taken to Green Valley police station, where he took another saliva test and returned a negative result.

The man said he didn’t know how cocaine had got into his “system” and that he had been driving his friend’s ute when he was pulled over, according to summary of the evidence he gave the police and the courts included in the district court judgment.

He said last time he had used cocaine had been the previous year. On the day he was pulled over, he said he had taken Valium that day, with a prescription, and that he had used a bottle of “Gatorade or Powerade” that he found on the floor of the car to wash it down about 45 minutes before he was stopped by police.

In the local and district courts, the man raised the defence of “honest and reasonable mistake”, saying he did not know he had cocaine in his system.

The local court convicted him, rejecting his version of events as “implausible” and finding he hadn’t honestly held the belief that he didn’t have cocaine in his saliva before driving.

However, the district court judge who heard the man’s appeal said the man’s evidence was “straightforward and consistent”.

He said he would have overturned the man’s conviction but could not because he had determined the offence of drug driving was not one of “strict liability” but one of “absolute liability”.

This meant the only thing that would need to be established beyond reasonable doubt to prove someone’s guilt is the presence of an illicit drug in their saliva, blood or urine, not whether they honestly or reasonably believed they hadn’t taken the drug.

Prof Luke McNamara from the University of NSW’s Centre for Crime, Law and Justice said the decision was likely to attract the scrutiny of a higher court but, if it stood, it would make drug driving offences “additionally punitive”.

“A person might otherwise want to say in the future, ‘Look, I used cannabis eight days ago or seven days ago or three days ago, I had no idea it was still in my system and I’m certainly not still affected by it,’” McNamara said.

“But if this judge is right, or if this judge’s interpretation stands, a person won’t even be able to make that argument.”

McNamara said it was extremely rare for a criminal offence to be characterised as an absolute liability offence, which “in essence” left an accused person with very little basis for challenging their charge.

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The judgment comes as state parliament re-examines drug driving laws ahead of the Minns government’s promised drug summit next year.

David Heilpern, a former magistrate who retired in 2020 in large part because of his concerns NSW’s drug driving laws were too punitive, described the judge’s decision as “extraordinary” and precedent-setting.

“In other words, he accepted the defendant’s evidence as evidence of truth that he had no knowledge [of having taken cocaine] yet still finds him guilty,” Heilpern said.

“If this decision stands, it means that the criminal liability has been broadened in my view to a completely unreasonable, unprecedented level.”

Heilpern said the state government should “immediately and urgently” amend the road laws to make it “crystal clear” that low-range drink and drug driving offences were strict liability offences.

“Because if they don’t, there is going to be a net widening effect with a huge number of people caught up in this system who are completely blameless,” he said.

The man’s solicitor, Sarah Khan from Khan Law and Associates, said the judge’s interpretation of the state’s road laws was problematic for both prosecutors and the defence.

“In both the local court and on appeal there was a joint position that the defence of honest and reasonable mistake of fact was available to [the man] and the matter proceeded accordingly,” Khan said.

The upper house MP Jeremy Buckingham, who is pushing for reform, urged the government to consider the judge’s decision in this case.

“When it comes to [roadside drug testing] there are clearly some failings, in that the Act isn’t keeping up with community expectations,” Buckingham said.