Offences for drink driving or driving with illicit drugs in your system, have always and continue to exist as separate offences.  Until recently, there had not been an offence that penalised a driver for having both alcohol and drugs in their system.

As at 27 June 2021 however, if you are caught with both alcohol and drugs in your system you will be charged under the new combined offence – Section 111A of the Road Transport Act.

For first time offenders, the new combined offence applies only to those found to have drugs in their system, along with a blood alcohol reading higher than 0.08 (i.e. above middle range). This means that if you are caught with drugs in your system and a blood alcohol level above 0.05 (the low range) but below 0.08, the combined offence does not apply, however you can still be charged separately.

The above exception is not available to those who have been convicted in the past 5 years for drink driving (at any blood alcohol range). That means where a person has had a previous conviction for drink driving (even without any drugs in their system), if they are caught again with both drugs and alcohol in their system, then the combined offence applies to them regardless of their blood alcohol level.

A table below summarises the penalties and varying circumstances of the s111A combined offence:

In addition to the penalties listed above, any person who is convicted under the combined offence may also be subject to a mandatory disqualification period and may have to participate in an alcohol interlock program. 

Mandatory Disqualification Period

A mandatory disqualification period is the period for which a person convicted of certain traffic offences will be disqualified from holding a drivers licence. A person who has been convicted of a drink driving or drug driving offence within the last 5 years will be liable to a higher disqualification period.

For a person with no convictions in the last 5 years, a conviction of a combined offence with a blood alcohol level in the middle range, will occasion a 2‑year disqualification period, and 4 years for a high range blood alcohol level.

Mandatory Interlock Order

A mandatory interlock order imposed by the court involves 2 main components:

1. A minimum disqualification period in which a person is prohibited from driving; and then
2. A period of participation in the interlock program, where a person may drive under the conditions of an interlock device installed to the vehicle (an electronic breath testing device which requires the driver to provide a breath sample for the presence of alcohol before the vehicle will start).

For a combined offence, the disqualification period ranges from 1 month to 9 months, depending on the blood alcohol level and history. An interlock period may range 1 year to 4 years for the same reasons.

Police Procedures in Practice

The amendments do not introduce anything new to how drivers in NSW are tested for alcohol and drugs. A driver who is breath-tested and returns a middle or high range alcohol level, will then undergo a roadside drug test. A driver who tests for a low‑range result, is also asked to undergo a drug test if they have a previous offence.

You should also be aware that, depending on the blood alcohol level detected, police also carry the discretion to suspend a person’s drivers licence on the spot.

If you have been charged with a combined offence (or a separate alcohol or drug driving offence), and would like to obtain legal advice on your matter, please do not hesitate to contact our office for an initial obligation-free consultation.

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This involves amendments to Part 3, Division 10 of the Crimes Act 1900 (NSW).

How rape is defined at law?

Rather confusingly, NSW is the only jurisdiction in Australia where the offence of rape is legally referred to as ‘sexual assault’.  This is commonly mistaken with the separate offence referred to as ‘sexual touching’, which involves touching another person with any part of the body or anything else where the touching would be reasonably considered as sexual.

Sexual assault on the other hand, is when a person is engaged in an act of sexual intercourse without the consent of the other person.  Sexual intercourse is penetration of the vagina or anus by any part of another person’s body or any object, and this also includes oral sex. 

Since sexual assault can be a single or continuous act, consent can be withdrawn by the other person at any time.

Consent

The central issue around any sexual assault case is usually the question of consent. Consent is defined as an agreement to sexual activity, “freely and voluntarily” given, and (apart from certain exceptions) it is assessed only from the perspective of the accused person. In other words, what is key is the accused’s knowledge about consent.  

The accused’s knowledge about the consent (or the lack of consent) of the victim is considered from 3 perspectives:

1. Whether the accused actually knew that the victim that did not consent.
2. Whether the accused considered the possibility that consent might be in doubt but went ahead with the act anyway.
3. Whether the accused had any reasonable grounds to believe that the victim did consent.

What are the proposed changes to the new Bill?

The changes to the sexual assault laws in New South Wales are going to be implemented through the Crimes Amendment (Enthusiastic Consent) Bill 2021. We anticipate that the Bill will likely be made into law by November 2021.

Two radical changes which are anticipated include:

1. Imposing a condition whereby a person does not consent to sexual activity unless consent is communicated through act or speech; and,
2. The accused’s belief that there was consent will not be reasonable unless they have first made an attempt to determine (through either speech or an act) whether or not consent has been given.

Alongside these changes in the law are new jury directions for trial judges overseeing sexual assault cases. Trial judges would be obligated to remind jurors that:

1. Sexual assault can occur in all sorts of different situations and relationships. This includes acquaintances or people who are married.
2. Sexual assault does not need to be accompanied by threats or violence.
3. There is no typical or normal response to being sexually assaulted, and jurors should not rely on any preconceived ideas.
4. The different ways people respond to trauma mean that some people may be emotionally distressed whilst giving evidence, and some may not. This should not be a point of bias.
5. It cannot be assumed that consent was implied by the way a person was dressed, or the fact that they have consumed alcohol or drugs.

What will the offence of rape look like moving forward?

The incoming reforms are radical in the sense that they will change the way courts look at the offence of sexual assault. Whereas before the main legal question was the mind of the accused as to actual consent, or whether there was a reasonable ground(s) to believe consent was given, now the legal question will be whether there was actual consent from the view of the victim.

Essentially, the question has shifted from looking at the perspective of the accused to that of the victim. Or more accurately, from the accused’s knowledge of consent, to the victim’s communication of consent. In doing so, it is clear that the State Parliament is looking to close ‘loop-holes’ in the current law of not guilty verdicts because the jurors could not agree as to whether the accused had reasonable grounds to believe consent had been given.  

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Under the current powers afforded to NSW Police, the Law provides that a warrant is to be obtained before a police officer can search a premises.

Section 47 of the Law Enforcement (Powers and Responsibilities) Act 2002, provides that a police officer can apply for a search warrant under a reasonable belief that there is, or will be within 72 hours, a thing in a premises connected to a searchable offence. This includes a drug-related offence.

Expansion of Police Powers

The recently elected NSW Coalition government seeks to expand police powers in an effort to combat the continuing supply of illegal drugs by organised crime gangs.

With the introduction of a Drug Supply Prohibition Order, a police officer will have the power to search homes and cars of convicted drug dealers at any time without a warrant, if they are suspected of continuing to engage in drug-related crime.

Police will be able to apply to the Court for a Drug Supply Prohibition Order against a person who has in the last 10 years, been convicted of a serious drug-related offence, such as the supply or manufacture of prohibited drugs.

The Drug Supply Prohibition program is to operate as a two-year pilot program in four police commands: Bankstown, Coffs-Clarence, Hunter Valley and Orana Mid-Western. After its initial 2-year phase, the effectiveness of the program is to be assessed for a potentially broader application across the State.

What does this change mean?

Premier Gladys Berejiklian said in relation to the proposed changes that, “Community safety is the highest priority of the NSW Liberals & Nationals Government, and I want convicted drug dealers to know that they will have nowhere to hide if they want to prey on, and profit from, the people of NSW”.

Minister for Police Troy Grant also spoke in support of the changes, stating “As a former police officer, I’ve seen the harsh reality of illegal drugs in our communities, and I’m confident that these orders will help our police take the fight to drug dealers, and show them that we will not tolerate having this filth on our streets”.

Equally as important however, is the protection of civil liberties enjoyed by each and every member of our community, and ensuring that such liberties are not infringed upon. This is a difficult balancing exercise which calls for the introduction of appropriate measures ensuring strict adherence to both existing and any expansion of police powers.

Baraa Saddiq and Ian Wang.

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