Narouz v R

Decision

While it was accepted by both parties in the Local Court and on the appeal that the offence is one of strict liability and that therefore it was open for the Appellant to raise the so-called defence of honest and reasonable mistake of fact, I consider that it is a preliminary issue for me to consider. That is really the issue of whether the offence is one of strict liability such that an honest and reasonable mistake of fact can be raised, and not one of absolute liability. I specifically raised the issue with the parties and heard submissions on the issue, noting that the Crown agreed with the Appellant's counsel that the offence was one of strict liability and that therefore it was open to raise an honest and reasonable mistake of fact about the presence of an illicit substance in a person's oral fluid when a person is prosecuted for the offence.
The issue is essentially one of statutory interpretation of the offence creating provision. Where an offence carries serious penal consequences, the courts look to Parliament to "spell out in clear terms any intention to make a person criminally responsible for conduct which is based on an honest and reasonable mistake"; see CTM v The Queen [2008] HCA 25 and RTA of NSW v Jara Transport Pty Ltd [2005] NSWSC 1021.
Here, the penalty that is provided for the offence is a fine only, even in the case of a second or subsequent offence; s.111(1) RTA. I accept that upon recording of a conviction there is a mandatory period of licence disqualification; s205 RTA. To my mind, it cannot be said, however, that such an offence is one that carries "serious penal consequences", although I accept that licence disqualification for most people is a significant consequence of being convicted.
The offence under s.111 (1) of the Road Transport Act is relevantly in the following terms: (1) A person must not, while there is present in the person's oral fluid, blood or urine any prescribed illicit drug-- (a) drive a motor vehicle, (2) If a person is charged with an offence against subsection (1)-- (a) the court attendance notice may allege that more than one prescribed illicit drug was present in the oral fluid, blood or urine of the person and the proceedings are not liable to be dismissed on the ground of uncertainty or duplicity if each of those drugs is described in the court attendance notice, and (b) the offence is proved if the court is satisfied beyond reasonable doubt that there was present in the oral fluid, blood or urine of the defendant-- (i) a drug described in the court attendance notice, or (ii) a combination of drugs any one or more of which was or were described in the court attendance notice.
A prescribed illicit drug is defined in s.4 of the RTA to include cocaine.
In my view, contrary to submissions advanced on behalf of the Ap, and contrary to the decision of the Local Court in NSW Police v Carrall [2016] NSWLC 4, which I drew the parties' attention to, I do not consider that subsection (2) of s111 of the RTA is limited to those cases where more than one drug is described in the CAN. That is because subsection (2) applies whenever a person is charged with an offence against subsection (1). I also consider that the wording of (ii) in subsection (2)(b) to be of real importance to this issue. To my mind, the presence of both (i) and (ii) in subsection (2)(b) makes it clear that the offence is proved if a court is satisfied beyond reasonable doubt that there was present a drug described in the court attendance notice, where only one drug is described in the CAN, or a combination of "any one or more" drugs which are described in the CAN.
In my opinion, the terms of sub section (2)(b) leave no scope for the operation of an honest and reasonable mistake of fact to operate, because "the offence is proved if the court is satisfied beyond reasonable doubt that there was present in the oral fluid, blood or urine of the defendant" an illicit drug described in the CAN. In my opinion, that is a clear statement by the Parliament that the only matter that needs to be proved beyond reasonable doubt by the prosecution to prove the offence is the presence of a drug, referred to in the CAN, in a defendant's oral fluid, blood or urine. It is a clear statement by the Parliament, in my opinion, that the prosecution does not have to prove beyond reasonable doubt that a defendant did not drive under an honest and reasonable mistake of fact as to the presence of an illicit drug in his oral fluid, blood or urine.
In my opinion, this construction is consistent with the intended purpose of the offence creating provision which was described by the then Minister for Roads in the second reading speech in the NSW Legislative Council for the Road Transport Legislation Amendment (Drug Testing) Bill as follows [1] : "Police can prosecute the driver for the new offence of driving with the presence of one or more of the three illicit drugs, if the result from the laboratory is positive. There will be no need for Police to prove that a person's driving was impaired. It need only be proved that the drug was present in the person's sample. This sends a clear message to motorists that driving with any amount of these illegal drugs in the body is not tolerated in New South Wales."
I am of the opinion that the offence under s.111(1) of the RTA is one of absolute liability and that it was not necessary for the prosecution to negative beyond reasonable doubt the issue of honest and reasonable mistake raised by the Appellant in the Local Court. In coming to the conclusion that it is not open to raise an honest and reasonable mistake, I noted earlier the Local Court decision of NSW Police v Carrall where Magistrate Heilpern reached a different conclusion. I have already indicated an aspect of His Honour's reasoning with which I disagree. Another aspect of His Honour's reasoning was His Honour's reliance upon the decision of DPP v Bone [2005] NSWSC 1239 which is authority for the proposition that honest and reasonable mistake of fact may be raised in a prosecution for a high range prescribed concentration of alcohol offence. His Honour also referred to the fact that Bone had been applied to a low range prescribed concentration of alcohol offence in the decision of Appeal of Francesco Mendolicchiu [2008] NSWDC 182, noting that a low range prescribed concentration of alcohol offence was a fine only offence.
Bone was relied upon in the Local Court and on this appeal, in support of the argument that an honest and reasonable mistake about the presence of an illicit drug, can be raised as a so-called defence to a charge under s.111(1) of the RTA. I do not consider that Bone has any relevance to the issue of whether an honest and reasonable mistake of fact can be raised in defence of a prosecution under s.111(1) of the RTA. That is because Bone concerned a different statutory provision and the issue is really one to be resolved by way of statutory interpretation of the provision concerned. The legislation considered in Bone did not contain a provision similar to s111(2)(b). I also note that Bone concerned an offence which carried a term of imprisonment as a possible penalty, whereas s.111(1) of the RTA does not. In that regard, while Goldring DCJ in Mendolicchiu did follow and apply Bone to an offence of low range prescribed concentration of alcohol, I note that at [15] His Honour said: "I find, albeit reluctantly, that the defence of honest and reasonable mistake of fact is available."
In the circumstances where Mendolicchiu concerned a different statutory provision, and the judge applied Bone reluctantly, I do not consider that it has any real relevance to the issue of whether an honest and reasonable mistake of fact can be raised in relation to a prosecution under s.111 of the RTA.
I also note that Scotting DCJ in Chandiran v R [2022] NSWDC 576 has held that it is open to a defendant to a s.111(1)RTA prosecution to raise an honest and reasonable mistake of fact. His Honour considered that while Bone was not binding, he thought it should be applied to the offence under s.111(1) of the RTA. For the reasons I have given, I do not think it should be. His Honour also considered that one factor which led to him being of that view was that "it may be difficult for a person to avoid liability for having very small traces of an illicit drug in their system, if they are honestly and reasonably unaware of how they are exposed to the illicit drug and how it came to into their system;" [15]. In my view, those sentiments cannot overcome the clear words of the provision which sets out that only one matter need be established beyond reasonable doubt before the offence is proved, and that is the presence of an illicit drug described in the CAN in a persons oral fluid, blood or urine. Those factors referred to by His Honour can clearly be considered on penalty in determining whether to record a conviction and impose a fine and disqualification.
As I am of the opinion that it was not open to the Appellant to raise an honest and reasonable mistake of fact about the presence of the illicit drug cocaine in his oral fluid as a so-called defence to the charge, and it being established beyond reasonable doubt that the illicit drug cocaine was present in his oral fluid at the time of his driving, the appeal against conviction must be dismissed.
If I had been of the opinion it was open to raise an honest and reasonable mistake of fact about the presence of the drug cocaine in the Appellant's oral fluid, in "defence" of his prosecution, I would have upheld the appeal. As the appeal is to be dismissed for the reasons I have given, I will briefly explain why I would have found that the Prosecution had not negatived his honest and reasonable mistake of fact beyond reasonable doubt.
The Appellant from the moment he was stopped by the police was consistent and adamant in his denial of having used cocaine in any period proximate to his driving. He did, in the in-car video, admit to having in the past used cocaine, during the previous year, but was steadfast and unshaken on his denials about having used it more recently. He was also unshaken on his evidence that as the test at the police station had been negative, he thought that he was in effect not to be prosecuted until he received the CAN some months later. His ability in those circumstances to advance any reason apart from actual deliberate consumption of cocaine, to explain the presence of the substance was extremely limited because of the passage of time. He gave evidence of an event which, on his evidence, might explain the presence of the drug. It must also be remembered that the Appellant was not actually saying in his evidence that his use of the Gatorade or Powerade bottle was the reason for the presence of the cocaine, but was seeking, it seems to me, to raise possible explanations for its presence. He was unshaken in the evidence he gave about what he had consumed that night and how. He was unshaken on his evidence that the vehicle was a friend's and that he found the Gatorade or Powerade bottle on the floor and drank from it when taking a Valium pill. As I observed earlier, the magistrate made no demeanour findings adverse to the Appellant nor did she point to any inconsistencies in his evidence. I do not consider there are any inconsistencies in his evidence, and it reads as a straightforward, consistent account.
To the extent that the magistrate relied upon the expert's evidence to find that the Appellant's account was implausible, there are two issues that concern me in that regard. The first is that the expert's evidence was dependant to a significant degree upon an estimation of the concentration of cocaine he had been given by another analyst who was not called to give evidence. Nor does the magistrate appear to have given any weight to the expert's evidence in cross-examination that he could not exclude the possibility that the source of the cocaine was from the drink the Appellant had taken from that bottle. For those reasons, I would have upheld the appeal if I had been of the view that it was open to raise an honest and reasonable mistake of fact as to the presence of the illicit drug cocaine. I would not have found that the prosecution had negatived that belief beyond reasonable doubt. However, for the reasons I have given it was not open to the Appellant to raise an honest and reasonable mistake of fact as to the presence of the illicit drug cocaine in his oral fluid.
The Conviction appeal is dismissed for those reasons.

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Judgment (8 paragraphs)

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