R v Narouz

Court of Criminal Appeal (NSW)|2024-02-02|Before: Bell CJ, Harrison CJ, Chen J

The principles of construction: classifying an offence

There was no dispute about the relevant principles that apply to construing the section. They are well-known, and well-established.
The starting point is that the RTA is to be interpreted against the background of the general principles of the common law governing criminal responsibility.
One such principle is that mens rea is "an essential ingredient in every offence": Sherras v De Rutzen [1895] 1 QB 918, 921 ('Sherras'); He Kaw Teh at 528, 565, 594. This principle has been described as a legal presumption - viz., a presumption that it is an element of the offence that the accused knew of the wrongfulness of their act - and its justification is said to lie in the avoidance of the "public scandal of convicting on a serious charge persons who are in no way blameworthy" (Sweet v Parsley [1970] AC 132, 150, cited in He Kaw Teh at 565 and CTM v The Queen (2008) 236 CLR 440; [2008] HCA 25 at [148] ('CTM')) or by providing "a humane protection for persons who unwittingly engage in prohibited conduct": He Kaw Teh at 568. Another principle is that the presumption can be displaced either expressly or by necessary implication: He Kaw Teh at 528-529, 566-567 and 594; Hawthorne (Department of Health) v Morcam Pty Ltd (1992) 29 NSWLR 120, 131 ('Hawthorne'); CTM at [5].
A number of other principles have emerged to assist in ascertaining the intent of the legislature and determining whether the common law presumption has been displaced. Those considerations can principally be sourced to (or are otherwise referred to in) the decision in He Kaw Teh, and include the following.
First, the words of the statute itself. That is, regard must be had "to the words of the statute creating the offence": He Kaw Teh at 529. As was emphasised in CTM at [5], the language of the statute is "controlling", and rules and presumptions must yield to expressions of legislative intent ascertained in the conventional way.
Secondly, the subject matter with which the statute deals: He Kaw Teh at 529, 567 and 594. Statutes dealing with or regulating a particular activity for public welfare (Lim Chin Aik v The Queen [1963] AC 160, 174) or "regulating social or industrial conditions or to protect the revenue" (He Kaw Teh at 595) may more readily be accepted to weaken the presumption, as are acts which "are not criminal in any real sense, but are acts which in the public interest are prohibited under a penalty": Sherras at 922; He Kaw Teh at 529-530. That is particularly where "the penalty is monetary and not too large": He Kaw Teh at 595. On the other hand, where serious consequences follow from the commission of an offence, this pulls in the other direction: He Kaw Teh at 530.
Thirdly, whether absolute liability will assist in overcoming "the mischief at which the statute is aimed". That is, by enabling an individual to do something "directly or indirectly" so as to promote the observance of the statute and prevent the commission of the prohibited act: Lim Chin Aik v The Queen [1963] AC 160, 174; He Kaw Teh at 530, 567. This consideration was said to reflect the purpose of the criminal law "to deter a person from engaging in prohibited conduct": He Kaw Teh at 567.
Fourthly, whether an offence carries serious penal consequences, or whether the offences "are not criminal in any real sense": He Kaw Teh at 530. Put another way, the gravity of the offence, indicated by the penalties available to be imposed, may serve to suggest "that a guilty mind (rather than merely a deliberate act) was intended to be an element" of the offence: Environment Protection Authority v N (1992) 26 NSWLR 352, 357; He Kaw Teh at 535, 583.

Question 1: is s 111 of the RTA an offence of absolute liability?

Introduction

The appellant argued that, properly construed, s 111 of the RTA was not an offence of absolute liability, but one of strict liability only, a conclusion that is said to be reinforced by the following five matters. First, the absence of express provision classifying the offence as one of absolute liability. Secondly, construing the offence as one of absolute liability was contrary to the "clear intention" of the legislation evident from the Second Reading Speech, and the legislation more generally. Thirdly, and contrary to the approach of Buscombe DCJ, s 111(2) serves a procedural function only but does not otherwise "qualify the requirements of criminal liability in subsection (1)". Fourthly, the decision in Bone "provide[s] a basis for support of the appellant's argument" because the only material difference is s 111(2) which serves only "to accommodate an aspect of drug use by a person that involves multiple drugs" and does not "undermine" the ground of exculpation, honest and reasonable mistake of fact. Finally, construing the offence as one of absolute liability would not promote the object of the legislation in circumstances "where a person is unaware they had an illicit substance" in their oral fluid, blood or urine.
I address each of the submissions in what follows, albeit in a slightly different order, as well as other matters that I consider bear upon the proper construction of s 111(1) of the RTA.

The language used

The appellant submitted that "[n]owhere in Chapter 5.1 of the [RTA] is there an express provision that asserts absolute liability applies, nor does the relevant section so specify". The argument essentially reduced to a submission that the absence of express wording should be taken to evince legislative intent for the presumption to prevail.
It is evident, as the appellant submitted, that the RTA does not expressly address whether the offence is one of absolute liability. It is also evident that the RTA (and s 111 in particular) does not expressly address whether the offence under that section is one to which mens rea applies. For example, using a word such as "knowingly" or "wilfully" or "intentionally". The use of language of that kind would tend to indicate mens rea was intended to be an element of the offence: He Kaw Teh at 528 and 594.
In my view, this argument only goes so far. That is for two reasons. First, although the task of classifying the offence under s 111(1) commences with an examination of the terms of the section itself, ultimately the issue of statutory interpretation requires consideration not only of the language of the section, but the broader context: "…the process of construction must always begin by examining the context of the provision that is being construed": Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] ('Project Blue Sky'). Secondly, and recognising the limits in carrying over a conclusion in relation to different statutory provisions to the present one, it should nevertheless be observed that the combined absence of these matters (referred to in [43], above) has been held to be a factor supportive of a construction of a statutory provision as involving absolute liability, particularly where the terms of the statutory provision are expressed (as it is in this case) in mandatory language: Wilson v Gahan [1999] VSC 72 at [16]; Stanojlovic v Director of Public Prosecutions (Vic) (2018) 273 A Crim R 215; [2018] VSCA 152 at [28] and [46].
It is for essentially those same reasons that little assistance is to be gleaned, in my view, from the use of the word "must" in s 111(1): although the use of that word is ordinarily construed as mandatory, the use of mandatory language, whilst relevant to the interpretive task, is invariably only one piece of the constructional puzzle. Thus, although I have referred to some decisions that considered the mandatory language of the offence to be significant, there are other decisions that have reached the opposite conclusion: that is, notwithstanding the use of mandatory language ("must" or, not uncommonly, "shall"), a construction that an offence was one involving strict, and not absolute, liability was nevertheless reached (see, for example, Hawthorne at 123, where the offence (relevantly) provided that "[n]o person shall sell any article of food which is adulterated or falsely described…"). Furthermore, and following on from the matter just noted, that analysis serves to emphasise that the weight to be attached to the word "must" ultimately depends upon its context: context, which is addressed next, is always critical.

The terms of s 111(2)(b)

Section 111 of the RTA creates two offences. The first is provided by s 111(1), which makes provision for it to be an offence for a person to have present in their oral fluid, blood or urine any prescribed illicit drug in the three situations provided by ss 111(1)(a)-(c). (The appeal concerns the first situation - namely "drive a motor vehicle": s 111(1)(a)). The second is provided by s 111(3) - which makes provision for it to be an offence for a person to have present in their blood or urine any morphine in the three situations provided by ss 111(3)(a)-(c).
Relevantly here, s 111(1)(a) creates an offence of which there are two elements: driving ("drive a motor vehicle") [2] and the presence of the prescribed illicit drug in the person's oral fluid, blood or urine at that time. As earlier noted, neither the fact of driving, nor that the appellant's oral fluid tested positive for cocaine, were in issue in the courts below.
Section 111(2) then applies "[i]f a person is charged with an offence" under s 111(1). Thereafter, expressed generally, s 111(2)(a) and (b) deals with two matters. First, it deals with where the court attendance notice alleges that more than one prescribed illicit drug was present in the oral fluid, blood or urine of the person. In that situation the "proceedings are not liable to be dismissed on the ground of uncertainty or duplicity": s 111(2)(a). Secondly, it provides that "the offence is proved if the court is satisfied beyond reasonable doubt that there was present in the oral fluid…of the defendant…a drug described in the court attendance notice…": s 111(2)(b).
Buscombe DCJ considered s 111(2)(b) to be highly significant. After noting the introductory words of s 111(2), that the section "applies whenever a person is charged with an offence against subsection (1)", his Honour focused upon the terms of ss 111(2)(b)(i) and (ii). His Honour considered that the separate provisions make it clear that the offence is proven when "there was present a drug described in the court attendance notice…or a combination of 'any one or more' drugs which are described in the [court attendance notice]" (underlining in original). Accordingly, his Honour concluded that the terms of s 111(2)(b) were a "clear statement by the Parliament" that the section excluded the ground of exculpation honest and reasonable mistake of fact "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 [court attendance notice]".
The appellant resisted that construction, essentially arguing that the function of s 111(2) was rather more confined and that his Honour was in error in his construction of s 111(2). He submitted that the section only applied where, in the court attendance notice, more than one prescribed illicit drug is described.
There are, in my view, a number of textual indicators suggesting the section is not confined in the way argued by the appellant and that it applies according to its terms, namely, to the offence under s 111(1) of the RTA irrespective of whether the offence involves the presence of one, or more than one, prescribed illicit drug. Those matters are as follows.
First, the chapeau to s 111(2) provides: "If a person is charged with an offence against subsection (1)…". Thus, the clear language of s 111(2) sits uneasily with the argument that the section is limited and only dealing with a particular class of offence under s 111(1), rather than all of them.
Secondly, the terms of s 111(2)(a) may be accepted to deal with particular issues arising where the court attendance notice alleges that more than one prescribed illicit drug was present in the oral fluid etc: the court attendance notice is not liable to be dismissed on the ground of uncertainty or duplicity "if each of those drugs is described in the court attendance notice". Nevertheless, that the subject matter of this sub-paragraph deals with issues arising where the court attendance notice alleges the presence of multiple prescribed illicit drugs does not, in my view, serve to remove from the clear words of the chapeau to s 111(2) of the RTA cases where the court attendance notice alleges that only one prescribed illicit drug was present. On that approach, no significance lies in the use of the conjunction "and" as it appears in s 111(2)(a), except in cases where the court attendance notice alleges the presence of multiple prescribed illicit drugs.
Thirdly, the reference in s 111(2)(b) is to "the offence", which, given the chapeau, is the offence under s 111(1), and the section recognises that the offence can be prosecuted by a court attendance notice alleging the presence of one prescribed illicit drug being present in the oral fluid etc, or more than one being present. That is clearly reflected in s 111(2)(a) and the two limbs of s 111(2)(b): s 111(2)(b)(i) deals with when "a drug" is described in the court attendance notice; s 111(2)(b)(ii) deals with when "a combination of drugs" is described in the court attendance notice.
Thus, the section operates as follows. For an offence under s 111(1), where only one prescribed illicit drug is alleged to be present, "the offence is proved" by the means described in s 111(2)(b)(i): that is to say, the court is satisfied beyond reasonable doubt that there was present in the oral fluid etc of the person "a drug described in the court attendance notice". For an offence under s 111(1) where more than one prescribed illicit drug is alleged to be present, and noting that 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" (s 111(2)(a)), "the offence is proved" by the means described in s 111(2)(b)(ii), that is to say, the court is satisfied beyond reasonable doubt that there was present in the oral fluid etc of the person "a combination of drugs any one or more of which was or were described in the court attendance notice".
The appellant advanced a contrary construction for s 111(2), essentially arguing that s 111(2) serves a procedural function, applying only to situations where the court attendance notice alleges that multiple drugs are present in the oral fluid etc of the person. Thus, for s 111(2)(a), its function is to provide that 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, for s 111(2)(b), its function was said to be where "multiple illicit drugs are found, proof beyond reasonable doubt of one (s 111(2)(b)(i)) or a combination (s 111(2)(b)(ii)) of those drugs specified in the court attendance notice is required…".
Proceeding, presently, upon the assumption that this submission in connection with s 111(2)(a) is correct, there is, in my view, a difficulty with accepting its correctness when directed to the construction of s 111(2)(b). In my view, the argument does not grapple with, and involves a re-drafting of, the words "the offence is proved if" as they appear in the introduction to s 111(2)(b). On the appellant's submission, these words should (and, in fact, do) mean "it is a requirement that" the court is satisfied beyond reasonable doubt that there was present one prescribed illicit drug, or multiple prescribed illicit drugs, as described in the court attendance notice. There is, in my view, no principled basis to depart from the clear words of s 111(2)(b) to construe the section in the manner argued by the appellant.
Fourthly, that s 111(2) operates in the way explained in [55], above, is to my mind, reinforced by, and aligns with, the offence created by s 111(3), and the manner in which that offence is proven by s 111(4). I will explain this.
Section 111(3) creates an offence relating to the presence of morphine in a person's blood or urine: a person must not, while there is present in that person's blood or urine any morphine, (relevantly) drive a motor vehicle: s 111(3)(a). [3] Section 111(4) then makes provision for the offence being proved, in a way I consider mirrors the operation of s 111(2)(b), namely, if a person is charged with an offence against s 111(3), "the offence is proved if the court is satisfied beyond reasonable doubt that morphine was present in the blood or urine of the defendant (whether or not in combination with any other drugs)" (underlining added). Put simply, in my view, considerations of internal coherence serve to reinforce the meaning of s 111(2) earlier reached.
The structure and language of s 111(2) - notably, the chapeau, the words "the offence is proved" in s 111(2)(b) and the separate consideration given to when one, or more than one, prescribed illicit drug are alleged to be present in ss 111(2)(b)(i) and (ii) - manifest legislative intent to displace the presumption that there is a mens rea element to the offence under s 111(1) and to create an offence of absolute liability.
It remains, however, to consider the other matters raised by the appellant in order to determine whether they dictate a different conclusion.

The "stated intent": the Second Reading Speech

The statutory predecessor of s 111 of the RTA was s 11B of the Road Transport (Safety and Traffic Management) Act 1999 (NSW) ('the Safety and Traffic Act'). That section was inserted into the Safety and Traffic Act by the Road Transport Legislation Amendment (Drug Testing) Act 2006 (NSW) ('the Amending Act').
The appellant invited this Court to consider the Second Reading Speech of the Amending Act. It was submitted that the terms of what was there said (or omitted to be said) did not support the construction of s 111(1) as creating an offence of absolute liability. [4] In particular, the appellant submitted that, given the terms of the Second Reading Speech, there was a "clear understanding that the intention was to police and punish those motorists 'who take drugs and drive'… Nowhere in the second reading speech… is there a clear intention to punish those who inadvertently consume an illegal drug, nor make liability absolute".
In relation to these submissions, it should be observed that although the appellant made reference to the Second Reading Speech from the Legislative Assembly, Buscombe DCJ made reference to the (later) Second Reading Speech in the Legislative Council (reasons at [33]). [5] Nevertheless, although there are differences in those speeches, the passage identified by his Honour as being "consistent with the intended purpose of the offence creating provision" described by the Minister for Roads, appears in both, and is in the following terms: 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.
Similarly, the extract relied upon by the appellant (referred to in [63], above), also appears in each Second Reading Speech.
The appellant challenged the reliance placed by Buscombe DCJ on that part of the Second Reading Speech and his conclusion, that the nature of the offence under s 111(1) of the RTA was one of absolute liability, as being "consistent" with the Second Reading Speech. The argument was that his Honour failed "to read the section and the entirety of the [S]econd [R]eading [S]peech as a whole". In aid of this ultimate submission, the appellant emphasised other parts of the Second Reading Speech, specifically by reference to what was said, but also by what was not said. In relation to the former, reliance was placed upon the statement in the Second Reading Speech that the bill amends the Safety and Traffic Act and other legislation "to ensure that motorists who take drugs and drive can be detected and penalised just as those who drink drive". In relation to the latter, reliance was placed upon the fact that "[n]owhere in the Second Reading Speech… is there a clear intention to punish those who inadvertently consume an illegal drug, nor make liability absolute".
Before dealing with this submission (and its parts), the following three matters should be noted in connection with the appellant's reliance upon the Second Reading Speech. First, in certain circumstances, regard may be had to extrinsic material, such as a second reading speech, to assist in the task of interpretation of a provision of an Act: s 34(1) of the Interpretation Act 1987 (NSW). Extrinsic material that can permissibly be considered includes a Second Reading Speech: s 34(2)(f) of the Interpretation Act. Nevertheless, there are preconditions to using extrinsic material: in order for regard to be had to such material, s 34(1) provides that the Court must form "an opinion that extrinsic material is 'capable of assisting in the ascertainment of the meaning of' a provision": Shorten v David Hurst Constructions Pty Ltd (2008) 72 NSWLR 211; [2008] NSWCA 134 at [25] ('Shorten'). Further, if satisfied that the material is capable of assisting in the interpretive task, then, as Basten JA explained in Shorten (by reference to ss 34(1)(b)(i) and (ii) of the Interpretation Act), there are further limits on the use of the extrinsic material (at [25]): "…where the ordinary meaning is tolerably clear and does not lead to absurd or unreasonable results, then the extrinsic material cannot be considered under s 34 if it is inconsistent with that ordinary meaning". Secondly, "[s]tatements as to legislative intention made in explanatory memoranda or by Ministers, however clear or emphatic, cannot overcome the need to carefully consider the words of the statute to ascertain its meaning": Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23 at [31] ('Saeed'). This principle of restraint is sometimes expressed as: "The words of a Minister must not be substituted for the text of the law": Re Bolton; Ex parte Beane (1987) 162 CLR 514, 518; [1987] HCA 12. Thirdly, "it is erroneous to look at extrinsic materials before exhausting the application of the ordinary rules of statutory construction": Catlow v Accident Compensation Commission (1989) 167 CLR 543, 550; [1989] HCA 43; Saeed at [33].
Speaking generally, one can readily envisage cases where consideration of extrinsic material of the kind relied upon here could well assist. For example, in cases where amending legislation is designed to overcome a particular lacuna in existing legislation or, by way of further example, where legislation is introduced so as to override a construction of existing legislation determined by a court. But these situations are somewhat removed from the present one. Here, the Second Reading Speech, not unexpectedly, was expressed in general terms relating to the broad aims and objectives of the legislation (of which it is of some, albeit limited, use in that it emphasised the public and road safety purpose of the amendments). However, no particular attention, again not unexpectedly, was given to the nature of the offences or the particular text used in the amending legislation (of which it is, in my view, of no use). This is unsurprising. As Spigelman CJ noted in Harrison v Melhem (2008) 72 NSWLR 380; [2008] NSWCA 67 at [12] ('Harrison'): Statements of intention as to the meaning of words by ministers in a Second Reading Speech, let alone other statements in parliamentary speeches are virtually never useful. Relevantly, in my opinion, they are rarely, if ever, "capable of assisting in the ascertainment of the meaning of the provisions" within s 34(1) of the Interpretation Act 1987. I only refrain from using the word "never" to allow for a truly exceptional case, which I am not at present able to envisage.
Given these matters, I do not consider that the use of the extrinsic material is capable of assisting in the interpretive task and, even if that were not so, I consider the ordinary meaning of the section is "tolerably clear". Separately, relying upon a snippet of what was said in the Second Reading Speech, that the legislation is "to ensure that motorists who take drugs and drive can be detected and penalised just as those who drink-drive", is a less than profitable exercise particularly where there are competing snippets that arguably pull in the other direction, as Buscombe DCJ noted.
Additionally, there is a well-recognised distinction between using the extrinsic material to assist in identifying purpose, and using that material to assist in what I have described as the interpretive task. This distinction was emphasised by Mason P in Harrison in these terms (at [162]): "Statements in Parliament, even by ministers during the Second Reading debate, will however seldom be available to elucidate the meaning of the later-enacted text. Identification of mischief and purpose is one thing, statement of meaning is another". In my view, the focus of the appellant's reliance upon the Second Reading Speech went no further than providing some limited assistance in reinforcing what was otherwise agreed or apparent, namely, that the amendments brought about by the introduction of these provisions had as a purpose both public and road safety.
The appellant also placed some emphasis upon what was not said in the Second Reading Speech: the submission, in effect, was that the absence of reference to the offence being one of absolute liability provided support for the construction that the offence created by s 111(1) of the RTA was not of that character. I am unable to accept that submission. The fact that a Second Reading Speech is silent on a particular issue does not mandate a conclusion that the legislature should, in and of itself, be taken implicitly to support the construction argued by the appellant. To approach the matter in this way would be to subvert the process of statutory construction reflected in the principles earlier referred to: what is to be construed are the terms of s 111 of the RTA, not the Second Reading Speech.

The decision in DPP v Bone

The appellant next submitted that to construe the offence as one of absolute liability would run counter to the decision in Bone, where it was concluded that, in relation to the drink driving offence considered in that case (a person driving a motor vehicle with a middle range prescribed concentration of alcohol in their blood), the offence was one of strict, not absolute, liability. It was submitted that, given the terms of the statute creating the "drink-driving" offence considered in that case was expressed in similar language to s 111(1) of the RTA, the same result should apply here: the appellant argued that it would be "illogical and wrong" for that not to result.
The legislation considered in Bone was the Safety and Traffic Act, and the defendant in that case was charged with an offence under s 9(3)(a) - driving a motor vehicle whilst there was present in his blood the middle range prescribed concentration of alcohol. [6]
The Safety and Traffic Act was repealed effective 1 July 2013 (see Schedule 1, Road Transport Legislation (Repeal and Amendment) Act 2013 (NSW)), and thereafter the driving offences involving the presence of a prescribed concentration of alcohol in a person's breath or blood were contained in Chapter 5, Part 5.1, Division 2 of the RTA - specifically within s 110 of the RTA. The terms of s 110(4) of the RTA (which deals with middle range drink-driving) are relevantly indistinguishable from s 9(3) of the Safety and Traffic Act (which dealt with that same offence): to the extent there are differences, they are minor and of no particular consequence. [7]
It is, undoubtedly, important to construe legislation to ensure internal coherence: the "primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute": Project Blue Sky at [69]. That broader principle is reflected in a further one, namely, that a particular form of words used in legislation should be construed so as to give them the same meaning throughout the Act, "unless there is reason to do otherwise": Registrar of Titles (WA) v Franzon (1975) 132 CLR 611, 618; [1975] HCA 41. Nevertheless, contrary to what the appellant submitted, considerations of internal coherence within the RTA do not dictate construing the offence as one involving strict, rather than absolute, liability and nothing in the decision in Bone tells against that construction.
It is important to understand what was decided in Bone and why. I have already set out the essential holding, namely, that s 9(3) of the Safety and Traffic Act (and, necessarily, its analogue in s 110(4) of the RTA) was an offence of strict liability. The reasons for why that conclusion was reached critically turned upon two, partly overlapping, matters.
The first was the fact that, following conviction for that offence, a person was liable to be sentenced to a period of imprisonment, a matter that Adams J considered "strongly" favoured construing the section as involving strict liability (Bone at [35]). That approach is consistent with the authorities earlier referred to (see [37], above). The second was that there was "a carefully graduated hierarchy of consequences" in relation to the drink driving offences under the Safety and Traffic Act: for some of the offences (for example, low range drink-driving), a convicted driver was only liable to the imposition of a pecuniary penalty, and not imprisonment (Bone at [36]). The thrust of the reasoning of Adams J on this issue was essentially that the legislature could be taken to evince an intention to differentiate between concentrations of alcohol, and the consequences that should apply where the provisions are contravened.
Although it may be accepted that the language of s 9 of the Safety and Traffic Act is similar to s 110 of the RTA and s 110 is broadly similar to s 111 of the RTA, there are important differences that should be noted. One difference is that, under s 9 of the Safety and Traffic Act, there is no section similar to s 111(2), nor is there one in s 110 of the RTA. Another difference is the penalty provided by the offence under s 9(3): the maximum penalty for a person convicted of that offence was 20 penalty units or imprisonment for 9 months or both for a first offence or 30 penalty units or imprisonment for 12 months or both in the case of a second or subsequent offence (which is the same maximum penalty prescribed for the offence of middle range drink-driving provided by s 110(4) of the RTA), whereas following a conviction for an offence under s 111(1) of the RTA, a person is liable only to a fine of a maximum of 20 penalty units (in the case of a first offence) or 30 penalty units (in the case of a second or subsequent offence), although the person is also liable to have their licence suspended.
In my view, these differences illustrate why the decision in Bone does not dictate (or inform) the result in this case and why, in the end, s 111 must be construed by reference to the language used and in its own legislative context.

Promoting the objects of the RTA and hardship

It is clear (and neither party disputed) that a purpose of the RTA includes public safety, and road safety in particular. This is apparent not only from the objects of the RTA (notably ss 3(a) and (d)), but also from a wider consideration of the statute. In this last respect, it may be observed that the particular offence of which the appellant was charged is contained within Chapter 5, which is headed, [8] and creates offences in relation to, "[s]afety and traffic management". Given the (accepted) purpose, that is a matter that may be taken to weaken the presumption that the offence created by s 111(1) requires demonstration of an element of mens rea.
To the extent that it was argued by the appellant that the construction favouring absolute liability would not serve to promote the objects of public safety, and road safety in particular, I do not accept the submission. A person can choose whether to engage in the conduct or not, and in my view imposing absolute liability would promote the observance of the statute. Further, given the objects involve public and road safety, it is unsurprising "that the legislature would choose to subordinate the interests of individuals to the public interest": Tsolacis v McKinnon (2012) 38 VR 260; [2012] VSC 627 at [110] ('Tsolacis'); Franklin v Stacey (1981) 27 SASR 490, 493.
The appellant emphasised one consequence of construing the offence as one of absolute liability would mean that, inevitably, "hardship" cases would arise. It was submitted that a person could "unknowingly or unwittingly" contravene s 111(1): for example, if a person's drink is spiked with a prescribed illicit drug. That this could occur was a matter that favoured preservation of the presumption that the offence involved the person knowing the "wrongfulness" of their act "in the absence of some explanatory wording in the legislation as to why this would be so".
Notwithstanding cases of that kind may arise, undoubtedly, aside from the example given, other situations may also arise, I am unpersuaded that the possibility of such cases should be taken to override the public safety objectives to which reference has been made. That is particularly so where, in a suitable case, any injustice could be avoided by sound exercise of prosecutorial or sentencing discretions: Tsolacis at [86] and [110].

The sanction is minor

The offence under s 111(1) is a fine only offence: a maximum penalty of 20 penalty units in the case of a first offence or 30 penalty units in the case of a second or subsequent offence. [9] Depending upon whether the driver has been convicted of a previous major offence during the five year period prior to conviction, the person is automatically disqualified from holding a drivers licence (subject to the Court specifying a shorter period) for either 6 or 12 months: ss 205(2) and (3) of the RTA.
In my view, given the penalty attached to the offence is monetary (and moderately sized), that is a further matter supportive of a construction that imposes absolute liability for the offence under s 111(1).
The fact that the penalty may involve, in addition, suspension of the driver's licence does not undercut that conclusion, nor the overall one that I favour. Whilst I accept that the suspension of a licence may bear heavily on a person, the loss or suspension of a licence "in the overall scheme of things… irksome though it may be, may be regarded as towards the bottom end of the scale of criminal punishment": Kearon v Grant [1991] 1 VR 321, 324.

Conclusion: question 1

Although in He Kaw Teh, Gibbs CJ (at 530) remarked that the various considerations that informed whether the relevant offence should be classified as one involving strict or absolute liability may "not all point in the same direction", in my view, in this case, they do.
I consider that, for the above reasons, the offence under s 111(1) of the RTA is an offence of absolute liability.
The answer to question 1 should, therefore, be: Yes.

Question 2: the availability of the ground of exculpation honest and reasonable mistake of fact in a prosecution for an offence under s 111(1) of the RTA

The second question of law, in simple terms, was directed to whether it was "necessary" for the prosecution to negative honest and reasonable mistake of fact before a finding of guilt can be made for an offence under s 111(1) of the RTA.
Given the conclusion that I favour, that question does not arise. It is also unnecessary to deal with any issue about whether the form of the question makes it unsuitable to be addressed.

Orders

For those reasons, I would answer the questions as follows: 1. Is section 111(1) of the Road Transport Act 2013 (NSW) an offence of absolute liability? Answer: Yes. 1. In a prosecution for an offence under s 111(1) of the Road Transport Act 2013 (NSW), is it necessary for the Prosecution to prove beyond a reasonable doubt that an Accused did not drive under an honest and reasonable mistake of fact, being that he believed that there was not present in his oral fluid an illicit drug, before a finding of guilt can be made? Answer: Unnecessary to answer.

Endnotes

In Leichhardt Municipal Council v Hunter (2013) 83 NSWLR 637; [2013] NSWCCA 87 at [19], it was said that, generally speaking, offences of this kind "require proof by the prosecution of an intention on the part of the defendant to commit the acts comprising the offence or proof of knowledge on the part of the defendant of the facts and circumstances comprising the offence."
Section 111(1)(a). The other situations are "occupy the driving seat of a motor vehicle and attempt to put the motor vehicle into motion" (s 111(1)(b)) or essentially when the holder of an unrestricted driver's licence occupies "the seat in a motor vehicle next to a learner driver who is driving the vehicle" (s 111(1)(c)).
The other situations are "occupy the driving seat of a motor vehicle and attempt to put the motor vehicle in motion" (s 111(3)(b)) or essentially when the holder of an unrestricted driver's licence occupies "the seat in a motor vehicle next to a learner driver who is driving the vehicle" (s 111(3)(c)).
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 19 September 2006 at 1854 - 1856 (Matt Brown, Parliamentary Secretary).
New South Wales Legislative Council, Parliamentary Debates (Hansard), 18 October 2006 at 2809 - 2810 (Eric Roozendaal, Minister for Roads).
Section 9(3) of the Safety and Traffic Act was relevantly in these terms:

Offence - middle range prescribed concentration of alcohol A person must not, while there is present in his or her blood the middle range prescribed concentration of alcohol: (a) drive a motor vehicle, or (b) occupy the driving seat of a motor vehicle and attempt to put the motor vehicle in motion, or (c) if the person is the holder of a driver licence (other than a provisional licence or a learner licence issued under the Road Transport (Driver Licensing) Act 1998) - occupy the seat in a motor vehicle next to a holder of a learner licence who is driving the vehicle. Maximum penalty: 20 penalty units or imprisonment for 9 months or both (in the case of a first offence) or 30 penalty units or imprisonment for 12 months or both (in the case of a second or subsequent offence). 7. The differences include: (a) the words "his or her" in s 9(3) of the Safety and Traffic Act have been replaced by the word "person" in s 110 of the RTA; and (b) the offence created by s 9(3) was directed to the presence of the prescribed concentration of alcohol in the blood of the driver, whereas the offences in ss 110(1)-(5) inclusive of the RTA are directed to the presence of the prescribed concentration of alcohol in the person's "breath or blood". 8. As to the use to which headings may assist in the process of statutory construction, see s 35 of the Interpretation Act and R v A2 (2019) 269 CLR 507; [2019] HCA 35 at [40] - where, amongst other matters, it was said that a "modern approach to statutory construction may take account of headings". 9. A penalty unit is $110: s 17 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

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Road Transport Legislation Amendment (Drug Testing) Act 2006(NSW)

Road Transport Legislation (Repeal and Amendment) Act 2013(NSW)

Road Transport (Safety and Traffic Management) Act 1999(NSW)

Solicitors: Khan Law & Associates (Appellant) Solicitor for Public Prosecutions (NSW) (Respondent) File Number(s): 2020/00310709 Publication restriction: Nil Referred questions Court or tribunal: District Court Jurisdiction: Criminal Citation: Narouz v R [2023] NSWDC 293 Date of Decision: 26 July 2023 Before: Buscombe DCJ File Number(s): 2020/00310709

The conviction appeal to the District Court

The appellant appealed against his conviction to the District Court.
Prior to the hearing of the appeal, Buscombe DCJ raised with the parties whether, in relation to the offence under s 111(1)(a) of the RTA, it was necessary for the Crown to prove beyond reasonable doubt that the appellant did not have an honest and reasonable belief that there was not an illicit drug present in his oral fluid at the time of driving, before a finding of guilt could be made. At the hearing of the appeal, the parties made submissions directed to this issue.
Buscombe DCJ concluded that the offence was one of absolute, not strict, liability, with the consequence that it was not open for the appellant to raise an honest and reasonable mistake of fact. Accordingly, given it was accepted that, subject to the ground of exculpation, the elements of the offence had been established, the appeal was dismissed.
His Honour's reasons for this conclusion were informed by the following matters: (a) the nature of the penalty - being a fine only, albeit Buscombe DCJ recognised that this would also involve a period of licence disqualification (reasons at [28]); (b) the terms of s 111(2)(b) - which Buscombe DCJ considered "leave no scope for the operation of an honest and reasonable mistake of fact to operate" (reasons at [32]); (c) that construing the offence as one involving absolute liability was "consistent with the intended purpose of the offence creating provision", as 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 2006 (NSW) (reasons at [33]); and (d) given the different statutory provisions (and the absence of a provision similar to s 111(2)(b)), the decision in Director of Public Prosecutions (NSW) v Bone (2005) 64 NSWLR 735; [2005] NSWSC 1239 ('Bone') - a decision that construed the "drink driving provisions" (a driver driving with a middle range prescribed concentration of alcohol in their blood, contrary to s 9(3) of the Road Transport (Safety and Traffic Management) Act 1999 (NSW)) - did not dictate a contrary result.

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