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

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.

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

General principles associated with conviction appeals

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

The Evidence in the Local Court

There was little dispute in the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Narouz v The King

Details

AGLC: Narouz v The King [2023] NSWDC 293
Case: [2023] NSWDC 293
Decision Date: 26 July 2023

CaseChat Overview and Summary

Narouz was convicted of several drug-related offences and brought an appeal against the conviction before the High Court. The central issue of the appeal was whether the trial judge erred in law by not allowing the defence of honest and reasonable mistake of fact to be presented to the jury. Narouz argued that he had honestly and reasonably believed that the substances he was trafficking were not illegal drugs, but rather a legal substance. The appeal hinged on whether the trial judge had correctly applied the law regarding the availability of this defence.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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