What have you been charged with?

1.1The provision

Section 111 of the Road Transport Act 2013 (NSW) makes it an offence to drive a motor vehicle, occupy the driving seat and attempt to put it in motion, or supervise a learner, while there is present in the person's oral fluid, blood or urine any prescribed illicit drug [review: current text of s 111(1) and the definition of prescribed illicit drug in s 4 and the regulation]. The prescribed illicit drugs are delta-9-tetrahydrocannabinol, methylamphetamine, 3,4-methylenedioxymethylamphetamine and cocaine [review: cocaine was added to the roadside testing regime in 2018]. Morphine is dealt with separately under s 111(1)(b) and carries its own prescription defence in s 111(5) [review].

1.2The structure of the offence

The offence is one of presence. There is no impairment element, no concentration threshold for the three original drugs, and no requirement that the driving be affected in any way. The student should contrast this with s 112, driving under the influence, which requires the prosecution to prove that the person was under the influence of a drug, and with s 110, which sets concentration bands for alcohol. The choice of a presence model was deliberate: it removes the evidentiary contest about impairment that made s 112 prosecutions difficult, and it shifts the whole weight of the matter to sentence.

The practical consequence for advice is stated once and repeated throughout the course: the client's belief that they were fit to drive is irrelevant to guilt and, if voiced in court, is damaging to the subjective case, because it reads as a failure to understand the charge.

1.3Honest and reasonable mistake of fact

Section 111 is a strict liability offence, so the defence of honest and reasonable mistake of fact under Proudman v Dayman (1941) 67 CLR 536 is available in principle. Its operation is narrow. The mistake must be one of fact, not of law, and it must be reasonable. A belief that the drug had cleared the body is a belief about a fact, but the reported decisions treat it as unreasonable where the person knowingly consumed the drug, because the person who chooses to consume an illicit drug takes the risk of its persistence. The defence has real purchase only where the consumption itself was unknowing: a spiked drink, passive exposure in a confined space, a substance the person reasonably believed to be something else. [review: identify the NSW authorities on the defence in the s 111 context; the s 110 line of authority on ignorance of the reading is the usual analogy and is uniformly against the accused]

1.4Related charges and the wrong-course test

A CAN that pleads s 112 (under the influence), s 110 (prescribed concentration of alcohol) or s 111 alongside a collision-related charge (negligent driving, dangerous driving) is not a matter this course addresses. Those matters carry different maximums, different disqualification regimes and, for the collision cases, a real prospect of custody, and the self-represented reader is told so in the first lesson. The practitioner reads the offence line and the facts sheet before anything else, because the drug reading is often the least significant feature of a matter that has been charged as something more.

1.5What this course is for

For a first-offence s 111 matter with no aggravating feature the questions are two: will a conviction be recorded, and if so for how long will the licence be lost. Every lesson that follows is aimed at those two questions.