R v Narouz [2024] NSWCCA 14
R v Narouz [2024] NSWCCA 14 · Read the judgment on AustLII
Catchwords: Drive with drug in oral fluid – unavailability of defences
In this decision the Court of Criminal Appeal (‘CCA’) has determined that the offence of driving with illicit drug in oral fluid is an offence of absolute liability, so that the defence of honest and reasonable mistake of fact is not available.
The appellant was convicted in the Local Court for an offence under s 111(1)(a) of the Road Transport Act 2013 (NSW) of driving whilst there was present in his oral fluid a prescribed illicit drug (in this case, cocaine). His case in the Local Court had been that he had been driving a friend’s car, that he had not had cocaine in the days or weeks before being tested, but that about 45 minutes before he was pulled over he had taken a sip from an energy drink which had been left on the floor of the car. This, he suggested, might have been the explanation for the cocaine in his oral fluid. A Magistrate found that the defence of honest and reasonable mistake of fact was available in respect of that offence provision, but found the appellant’s evidence to be implausible. The appellant appealed to the District Court. There, the District Court judge raised with the parties the prospect that this might be an offence of absolute liability (in contradistinction to strict liability). If that was correct, then honest and reasonable mistake of fact would not be available as a defence. The District Court judge ultimately concluded that this was indeed an offence of absolute liability and dismissed the appeal – but also sent a stated case to the Court of Criminal Appeal (arguably a bold step, given the years-long string of appellate decisions making technical complaints about the stated case procedure).
The CCA was accordingly referred two questions by the District Court judge: first, is the offence in s 111(1) an offence of absolute liability; and secondly, a question which boiled down to asking whether, on the assumption that a defence of honest and reasonable mistake of fact is available for an offence under s 111(1), who bears the onus of proof?
The judgment was written by Chen J, with whom Bell CJ and Harrison CJ at CL agreed. The judgment commences with the common law presumption (derived from He Kaw Teh v The Queen (1985) 157 CLR 523 and other decisions) that all offences have an element of mens rea. But that presumption must give way to the express words of the statute or necessary implication, taking into account factors like the subject matter of the statute, the kind of conduct being regulated, and the seriousness of the penalty (at [32] to [39]).
Having analysed the words of the section (at [49] to [54]), the Court held that s 111 works so that, if a Court is satisfied beyond reasonable doubt that one (or more) drugs is identified in the oral fluid etc of the person, then the offence is established (at [55]). A number of other textual matters were held to support this conclusion. The most notable were the words of the chapeau to the section (that is, the introductory words at the top of the paragraph) which are expressed in the form ‘the offence is proved’ (at [60]). The extrinsic materials did not assist in the interpretive task, and in any event the words of the section are in any event ‘tolerably clear’ (at [69]). The defendant had also relied on the interpretation in an earlier case of what was said to be a similar offence (drink driving). In Director of Public Prosecutions (NSW) v Bone (2005) 64 NSWLR 735 the Court held that drink driving offence to be one of strict liability. However, the differences in the language between the sections, as well as the differences in maximum penalty meant that the decision in Bone neither dictated nor informed the result in the current case (at [79]). The conclusion was also supported by the fact that the penalty for s 111 is monetary only (in an amount said to be ‘moderately sized’ – up to $2,200 for a first offence and $3,300 for a second offence) (at [84]). The addition of the loss of licence as a penalty was further said not to undercut that conclusion (at [86]). That the conclusion about absolute liability might lead in some cases to injustice was said to be avoidable by ‘sound exercise of prosecutorial or sentencing discretions’ (at [83]).
In all those circumstances, the Court held that s 111 is an offence of absolute liability: if an illicit drug is found in the oral fluid etc of a driver, then the offence is made out, and there can be no defence of honest and reasonable mistake of fact. Given that conclusion, it wasn’t necessary to answer the question about who bears the onus of proving or disproving a defence which is in any event unavailable.