Narouz v The King

[2023] NSWDC 293

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Narouz v R [2023] NSWDC 293

Hearing dates:

14 July 2023

Date of orders:

26 July 2023

Decision date:

26 July 2023

Jurisdiction:

Criminal

Before:

Buscombe DCJ

Decision:

Appeal dismissed

Catchwords:

CRIMINAL LAW – appeal against conviction – availability of defence of honest and reasonable mistake of fact

Legislation Cited:

Crimes (Appeal and Review) Act

Road Transport Act

Road Transport Legislation Amendment (Drug Testing) Bill

Cases Cited:

Lunneyv 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

Category:

Principal judgment

Parties:

Office of the Director of Public Prosecutions (NSW) (Crown)

Mina Narouz (Appellant)

Representation:

Counsel:
Mr Cavanagh (Crown)
Mr Todd (Appellant)

Solicitors:
Solicitor for the Office of the Director of Public Prosecutions (NSW)
Khan Law and Associates (Appellant)

File Number(s):

2020/00310709

 Decision under appeal 

Court or tribunal:

Liverpool Local Court

Jurisdiction:

Criminal

Date of Decision:

08 March 2023

Before:

Magistrate J Zaki

File Number(s):

2020/00310709

Judgment

1. The appellant, Mina Narouz, appeals his conviction in the Local Court for an offence that:

on 12 September 2020 at Horningsea Park he drove a motor vehicle on a road, being Cowpasture Road, whilst there was present in his oral fluid a prescribed illicit drug, being cocaine.

2. That is an offence under s.111(1) of the Road Transport Act.

General principles associated with conviction appeals

3. An appeal to this Court against a conviction in the Local Court is a rehearing under s.18 of the Crimes (Appeal and Review) Act. A s 18(1) appeal is not an appeal de novo. The judge is to form his or her judgment of the facts so far as able to do so, recognising the advantage enjoyed by the Magistrate who heard and saw the witnesses in the lower court. While the Magistrate’s reasons are not part of the transcript of evidence, recourse can be had to them on appeal.

4. The powers of the District Court on a s 18(1) rehearing are exercisable where the Appellant demonstrates that the order the subject of the appeal is the result of a legal, factual or discretionary error in which event the appellate court can substitute its own decision based on the facts and law as they then stand. Demonstration of error in relation to such an appeal means no more than satisfying a District Court Judge that the Magistrate should not have been satisfied beyond reasonable doubt as to an Appellant’s guilt. This approach to such appeals is consistent with the recent decisions in Lunney V DPP [2021] NSWCA 186 and in McNab v DPP [2021] NSWCA 298.

5. I have approached the current appeal in accordance with those principles.

The Evidence in the Local Court

6. There was little dispute in the evidence below in that much of the Prosecution case was adduced by way of agreed facts between the parties. In that regard it was agreed that at around 11.55pm on 12 September 2020, the Appellant came to the attention of the police due to his manner of driving, which was capable of being seen on video footage tendered in the prosecution case. The vehicle concerned was a utility. He was directed to pull over by the police which he did. The Appellant was subjected to a Random Breath Analysis at the scene which returned a negative reading. He was also required to take part at the scene in an oral fluid test for illicit drugs, and that test resulted in a positive detection for cocaine. It was an agreed fact that the Appellant vehemently denied that he had consumed any illicit drug when shown the positive finding of cocaine by Sergeant Mark Lewis. The Appellant also underwent a second oral fluid test on the side of the road which also resulted in a positive test for cocaine.

7. As a result of those positive readings the Appellant was conveyed to Green Valley Police Station. He was there requested to provide a second oral fluid sample and was submitted to a Drager Drug Test 5000 Device 0023 and returned a negative reading. While at the police station the Appellant was questioned by police and is recorded as saying in answer to the following questions the following responses: “When and Where did you last take the drug?” “Never took anything”. “How was the drug administered?” “Didn’t take any drugs”. “How frequently do you consume or administer this drug” “I don’t”.

8. The remaining oral fluid sample was sealed and sent off for analysis. A future court attendance notice was created on 24 October 2020 and was posted to the Appellant on 30 October 2020.

9. In addition to the Agreed Facts certain oral evidence was called in the Prosecution case.

10. Senior Constable Johnson from Liverpool Highway Patrol gave evidence, he being one of the police who were present when the Appellant was pulled over by police and through that officer an excerpt of the police in car video was tendered. An aid memoir as to what can be heard on the in car video was also provided to me on the Appeal.

11. The in car video captures the Appellant saying the following when told at the roadside that he had tested positive for cocaine: “I’ve not touched drugs for mate nothing. I thought maybe Valium, I won’t lie to ya. Once in a blue moon. But cocaine no way”, and requested that he be permitted to perform another road side test, which as the agreed facts make clear, was done. As the Agreed facts also make clear the Appellant during his interactions with the police as reflected in the in car video, was adamant that he had not used cocaine. Later when shown the result of the second road side test the Appellant is recorded as saying, “Nah nah. Last year. Last year yeah”.

12. The comments in the in car video support an inference that the Appellant had been a user of cocaine in the past, but not in a time period proximate to the time of his driving on this occasion.

13. In cross-examination of officer Johnson a document concerning the registration and primary owner of the vehicle the Appellant drove on the night he was stopped was tendered. It is not particularly clear but enough of it can be read to determine that a Pty Ltd company was registered as the primary owner of the vehicle. The officer said he heard the Appellant say in the in-car video recording that the car he drove was his mates car, although had no recollection of him saying it on the night the vehicle was stopped.

14. The prosecution also called evidence from an Allan Lin a forensic pharmacologist attached to the impaired driving research unit. He gave evidence that he formed the opinion that there had been 57 milligrams of cocaine per litre in the Appellant’s oral fluid. His evidence was that this was based on what another analyst had told him was the approximate level of the drug detected. The witness also expressed the opinion that the only scientific explanation for that level of cocaine was that there had been direct consumption of cocaine. He gave evidence that the volume of cocaine detected was suggestive of recent use of that drug.

15. In cross-examination, Mr Lin agreed that he did not know the manner of ingestion of the drug nor the time of ingestion. He also agreed that cocaine can be transported in fluid and that someone could consume cocaine by consuming a fluid that contained cocaine. The witness also agreed that he could not say when the cocaine had been consumed. Mr Lin was re-called after the Appellant gave evidence, and I will refer to that evidence shortly.

16. The Appellant gave evidence that the vehicle he drove that night was a friend’s and that he had entered the vehicle around 4.30 or 5 pm that afternoon. He denied that he had consumed cocaine that day or on any days or weeks prior to the driving. He detailed what he did with the car prior to being stopped by police. His evidence included that he had taken Valium that day pursuant to prescriptions for that drug that he held and that he takes that drug with a drink. He described having purchased a water and a coca cola that afternoon which had been consumed by the time the car had overheated and he had turned it off. His evidence was that at one point after that he took Valium and used a bottle of Gatorade or Powerade that he found on the floor of the vehicle when he took a tablet of Valium. The Appellant’s evidence was that occurred about 45 minutes before he was pulled over by the police. The Appellant also confirmed in his evidence that he had not taken cocaine at that time and that he had told the truth to the police that night.

17. The Appellant’s evidence was that when he was told at the police station that the test had returned a negative result at the station he thought the matter was over and done with.

18. The Appellant also tendered a urine test dated 7 December 2020 he had taken after he received the CAN. He also gave evidence that given the delay in receiving the CAN he didn’t know he needed to try and locate the bottle he drank from.

19. The cross-examination of the Appellant was relatively brief. He was asked to demonstrate how he drank from the Gatorade or Powerade bottle and said he had “taken a quick sip” which perhaps took less than a second.

20. The Appellant denied he had taken cocaine within 24 to 48 hours prior to being stopped and said he did not know how the cocaine got into his “system”.

21. As I indicated earlier, once the Appellant finished evidence Mr Lin was recalled by the Prosecution without objection. In further evidence in chief Mr Lin gave very nonspecific evidence about the possibility of the cocaine being transferred from a drink from the Powerade or Gatorade bottle as described by the Ap. His evidence was based on a number of assumptions, although he did say if a trace amount of cocaine was in the small amount of fluid consumed from the bottle, he wouldn’t expect an amount of cocaine to still be in the mouth of the Appellant as at the time of the positive oral fluid test.

22. In cross-examination, however, he agreed that he could not rule out the possibility that the ingestion of cocaine came from the bottle.

The Magistrate’s Decision

23. The central issue that was considered in the Local Court and again raised on the appeal was whether the Appellant had successfully raised an honest and reasonable mistake of fact, being that he honestly and reasonably believed there was no presence of the illicit drug cocaine in his oral fluid when he drove, when in fact that substance was present in his oral fluid. The Prosecution in the Local Court, and the Crown on the Appeal, accepted that the so-called defence was available as a matter of law for this offence, and was raised below, and that therefore the Prosecution was obliged to negative it beyond reasonable doubt before the Appellant could be found guilty of the offence.

24. The magistrate accepted that the so-called defence of honest and reasonable mistake of fact was available and raised by the Appellant in the Local Court.

25. The magistrate rejected the Appellant’s evidence and in doing so said as follows: “I find the version of events he gave about picking up a bottle in a shared vehicle that happened to be contaminated with fluid containing cocaine and taking one sip which left him with a cocaine reading high enough to be present in his blood three hours later, to be implausible on the evidence. It follows therefore, that I do not accept that the belief was reasonable, because I do not accept the initial premises, i.e., that he honestly held the belief”. In rejecting the Appellant’s evidence, the magistrate made no criticism of the Appellant’s manner of giving evidence and did not point to any inconsistencies in his evidence. She considered the evidence, however, in all the circumstances to be implausible, and rejected it.

Decision

26. 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.

27. 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.

28. 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.

29. 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.

30. A prescribed illicit drug is defined in s.4 of the RTA to include cocaine.

31. 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.

32. 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.

33. 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.”

1. NSW Legislative Council Hansard 18 October 2006.

34. 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.

35. 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.”

36. 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.

37. 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.

36. 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.

37. 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.

38. 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.

39. 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.

40. The Conviction appeal is dismissed for those reasons.

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Endnote

Amendments

03 August 2023 - Coversheet - corrected case name.

Decision last updated: 03 August 2023