Criminal law: March 2024

R v Narouz [2024] NSWCCA 14

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 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 a prescribed illicit drug (in this case, cocaine) present in his oral fluid. His case in the Local Court was that he had been driving a friend’s car, he had not had cocaine in the days or weeks before being tested, but 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 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).