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District Court 26 July 2023

Narouz v R

[2023] NSWDC 293

DrugsTraffic & driving
CRIMINAL LAW APPEAL AGAINST CONVICTION

Citation: Narouz v R [2023] NSWDC 293
Court: District Court of New South Wales
Date: 26 July 2023
Judge: Buscombe DCJ

Background

The appellant was stopped by police shortly before midnight on 12 September 2020 at Horningsea Park due to his manner of driving. He returned a negative breath test but tested positive for cocaine twice at the roadside. A third test conducted at Green Valley Police Station returned a negative result.

Throughout his interactions with police, the appellant consistently denied having taken cocaine. He told police he had never taken cocaine and was adamant about this denial. He later gave evidence that he had been driving a friend's vehicle, had taken prescribed Valium that evening with a sip from a Gatorade or Powerade bottle he found on the floor of the car, and suggested this might explain the positive roadside readings.

The appellant was convicted in the Local Court of driving with a prescribed illicit drug (cocaine) present in his oral fluid, an offence under section 111(1) of the Road Transport Act. He appealed to the District Court on the basis that the Magistrate erred in failing to accept the defence of honest and reasonable mistake of fact.

  • Whether a conviction appeal under section 18 of the Crimes (Appeal and Review) Act demonstrated that the Magistrate erred in law, fact, or in the exercise of discretion.
  • Whether the defence of honest and reasonable mistake of fact was available to a defendant charged under section 111(1) of the Road Transport Act for driving with a prescribed illicit drug present in oral fluid.
  • If the defence was available, whether the prosecution had negatived beyond reasonable doubt that the appellant held an honest and reasonable belief that no illicit drug was present in his oral fluid.

Decision

Availability of the honest and reasonable mistake defence

The central question on appeal was whether the defence of honest and reasonable mistake of fact could be raised in response to a charge under section 111(1) of the Road Transport Act. Buscombe DCJ concluded that the defence was not available. The offence is one of strict liability: the prosecution need only prove that a prescribed illicit drug was present in the driver's oral fluid at the relevant time, and the defendant's state of knowledge or belief is not an element of the offence. The structure and purpose of the legislation, including its road safety objectives and the regulatory context in which it operates, supported this conclusion.

Assessment of the Magistrate's factual findings

Despite dismissing the appeal on the availability of the defence, Buscombe DCJ went on to consider what the outcome would have been had the defence been open. His Honour found that the Magistrate had made factual errors. The appellant gave consistent, unshaken evidence and the Magistrate made no adverse demeanour findings and identified no inconsistencies. The expert evidence relied on by the Magistrate to find the appellant's account implausible was itself problematic: it depended on a cocaine concentration figure supplied by another analyst who was not called to give evidence, and the expert acknowledged in cross-examination that he could not exclude the possibility that the cocaine came from the bottle the appellant drank from.

Outcome

Buscombe DCJ stated that, had the defence been available, the appeal would have been upheld because the prosecution had not negatived the appellant's honest and reasonable belief beyond reasonable doubt. However, because the defence was not available as a matter of law, the conviction appeal was dismissed.

Orders Made

• The Conviction appeal is dismissed

Key Takeaways

  • The District Court held that the defence of honest and reasonable mistake of fact is not available to a defendant charged under section 111(1) of the Road Transport Act with driving while a prescribed illicit drug is present in oral fluid, as the offence is one of strict liability.
  • A conviction appeal under section 18 of the Crimes (Appeal and Review) Act is not a hearing de novo; the appellate judge must form an independent view of the facts while recognising the advantage the Magistrate held in seeing and hearing witnesses.
  • Expert evidence relied on to undermine a defendant's account carries less weight where it depends on findings made by another analyst who was not called to give evidence and whose conclusions were therefore not tested.
  • In dismissing the appeal, Buscombe DCJ nonetheless found that the Magistrate should not have relied heavily on expert evidence where that expert conceded in cross-examination that he could not exclude the explanation the defendant advanced.
  • Where a defendant's account is internally consistent and unshaken in cross-examination, and no adverse demeanour findings are made, a factual finding that the account is implausible requires a firm evidentiary basis.

Legislation and Cases Referenced

Legislation
- Road Transport Act (NSW), s 111(1)
- Crimes (Appeal and Review) Act (NSW), s 18
- Road Transport Legislation Amendment (Drug Testing) Bill (NSW)

Cases
- Lunney v DPP [2021] NSWCA 186
- McNab v DPP (NSW) [2021] NSWCA 298
- CTM v The Queen [2008] HCA 25
- RTA of NSW v Jara Transport Pty Ltd [2005] NSWSC 1021
- NSW Police v Carrall [2016] NSWLC 4
- DPP v Bone [2005] NSWSC 1239
- Appeal of Francesco Mendolicchiu [2008] NSWDC 182
- Chandiran v R [2022] NSWDC 576