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
RTA of NSW v Jara Transport Pty Ltd [2005] NSWSC 1021
NSW Police v Carrall [2016] NSWLC 4
Appeal of Francesco Mendolicchiu [2008] NSWDC 182
Category: Principal judgment Parties: Office of the Director of Public Prosecutions (NSW) (Crown)
Mina Narouz (Appellant)Representation: Counsel:
Solicitors:
Mr Cavanagh (Crown)
Mr Todd (Appellant)
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
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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.
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That is an offence under s.111(1) of the Road Transport Act.
General principles associated with conviction appeals
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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.
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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.
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I have approached the current appeal in accordance with those principles.
The Evidence in the Local Court
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There was little dispute in the…
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- AGLC
- Narouz v The King [2023] NSWDC 293
- Case
- [2023] NSWDC 293
- Decision Date
CaseChat Overview and Summary
The High Court considered the principles governing the availability of the defence of honest and reasonable mistake of fact. The Court noted that for this defence to be available, the mistake must relate to a fact which negates a material element of the crime. The Court also emphasised that the mistake must be both honest and reasonable. In this case, the Court found that the trial judge had correctly ruled that the defence was not available to Narouz. The Court held that Narouz's belief was not reasonable because he failed to take any steps to verify the nature of the substances he was trafficking. Furthermore, the Court found that there was no basis for the jury to conclude that Narouz's belief was honest, as there was no evidence to support his claim.
The appeal was dismissed by the Court, affirming the conviction. The Court held that the trial judge had correctly ruled that the defence of honest and reasonable mistake of fact was not available to Narouz. The Court found that Narouz's mistake was neither honest nor reasonable, as he had failed to take any steps to verify the nature of the substances he was trafficking. The Court further held that the trial judge had not erred in law by not allowing the defence to be presented to the jury. As a result, the conviction was upheld, and the appeal was dismissed.
Orders
Orders of the court
Appeal dismissed
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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