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Court of Criminal Appeal 19 February 2024

R v Narouz

[2024] NSWCCA 14

DrugsTraffic & driving
CRIME CRIMINAL LIABILITY ABSOLUTE LIABILITY STATUTORY OFFENCES

Citation: R v Narouz [2024] NSWCCA 14
Court: Court of Criminal Appeal
Date: 19 February 2024
Judges: Bell CJ; Harrison CJ at CL; Chen J

Background

The appellant was pulled over by police while driving in the early hours of 12 September 2020. He tested positive for cocaine in two roadside oral fluid tests, and a third sample sent for laboratory analysis also returned a positive result. He was charged under s 111(1)(a) of the Road Transport Act 2013 (NSW) with driving while a prescribed illicit drug was present in his oral fluid.

At the Local Court, the appellant did not dispute the driving or the positive test results. Instead, he sought to rely on the defence of honest and reasonable mistake of fact. His explanation was that he had taken a sip from a drink bottle left on the floor of a friend's car approximately 45 minutes before the stop, which he suggested might possibly account for the positive cocaine reading.

The Local Court magistrate accepted that the defence was available in principle but found the prosecution had proved beyond reasonable doubt that the appellant did not in fact hold that honest and reasonable belief, describing his evidence as "implausible." On appeal, the District Court took a different route: Judge Buscombe DCJ held that s 111(1) creates an offence of absolute liability, meaning the mistake of fact defence was never available in the first place. Judge Buscombe DCJ then submitted two questions of law to the Court of Criminal Appeal under s 5B of the Criminal Appeal Act 1912 (NSW).

  • Whether the offence under s 111(1) of the Road Transport Act 2013 (NSW) is one of absolute liability (meaning no mental element, and no defences based on mistake of fact) or strict liability (where an honest and reasonable mistake of fact remains available as a ground of exculpation).
  • If the offence is one of strict liability, whether the prosecution must prove beyond reasonable doubt that the accused did not hold an honest and reasonable belief that no illicit drug was present in his oral fluid.

Decision

Chen J (with Bell CJ and Harrison CJ at CL agreeing) confirmed that s 111(1) creates an offence of absolute liability. The Court reached this conclusion by examining the language, context, and internal structure of s 111 of the Road Transport Act. Those textual and structural features pointed clearly toward a legislative intention to exclude any mental element from the offence, including the availability of mistake of fact as a ground of exculpation.

The Court also weighed other interpretive considerations raised by the appellant. The Second Reading Speech and the earlier decision in DPP (NSW) v Bone (2005) 64 NSWLR 735 were found not to support a construction of strict (as opposed to absolute) liability. The objects of the Road Transport Act, the purely monetary nature of the maximum penalty, and the availability of prosecutorial and sentencing discretions to address any "hardship" cases were all treated as consistent with, and supportive of, the absolute liability construction.

Because the first question was answered in favour of absolute liability, the second question (concerning the prosecution's burden in a strict liability scenario) did not arise and was left unanswered.

Orders Made

  • Question 1: Is s 111(1) of the Road Transport Act 2013 (NSW) an offence of absolute liability? Answer: Yes.
  • Question 2: Is it necessary for the prosecution to prove beyond reasonable doubt that the accused did not drive under an honest and reasonable mistake of fact before guilt can be found? Answer: Unnecessary to answer.

Key Takeaways

  • Section 111(1) of the Road Transport Act 2013 (NSW) creates an offence of absolute liability: guilt is established by proof of the elements alone, and no mental element forms part of the offence.
  • Where an offence is one of absolute liability, the ground of exculpation for honest and reasonable mistake of fact is not available to an accused. That ground remains available only for offences of strict liability.
  • The distinction between strict and absolute liability carries significant practical weight: for a strict liability offence, the prosecution must disprove a raised mistake of fact beyond reasonable doubt; for an absolute liability offence, no such burden arises.
  • In construing s 111(1) as creating absolute liability, the Court emphasised the language, context, and internal coherence of s 111, rather than any single factor such as the Second Reading Speech or earlier analogous authority.
  • The fact that the maximum penalty is purely monetary, and that hardship cases can be addressed through prosecutorial and sentencing discretions, was treated as consistent with, rather than undermining, the absolute liability construction.

Legislation and Cases Referenced

Legislation:
- Road Transport Act 2013 (NSW), s 111(1)
- Criminal Appeal Act 1912 (NSW), s 5B
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Interpretation Act 1987 (NSW)
- Road Transport Legislation Amendment (Drug Testing) Act 2006 (NSW) (repealed)
- Road Transport Legislation (Repeal and Amendment) Act 2013 (NSW) (repealed)
- Road Transport (Safety and Traffic Management) Act 1999 (NSW) (repealed)

Cases:
- Director of Public Prosecutions (NSW) v Bone (2005) 64 NSWLR 735
- He Kaw Teh v The Queen (1985) 157 CLR 523
- CTM v The Queen (2008) 236 CLR 440
- Jiminez v The Queen (1992) 173 CLR 572
- Leichardt Municipal Council v Hunter (2013) 83 NSWLR 637
- Harrison v Melhem (2008) 72 NSWLR 380
- R v A2 (2019) 269 CLR 507
- Lim Chin Aik v The Queen [1963] AC 160
- Sherras v De Rutzen [1895] 1 QB 918
- Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
- Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252
- Re Bolton; Ex parte Beane (1987) 162 CLR 514