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R v Narouz

R v Narouz

Case [2024] NSWCCA 14 19 February 2024

Criminal Liability

Statutory Interpretation

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Narouz [2024] NSWCCA 14
Hearing dates: 2 February 2024
Date of orders: 19 February 2024
Decision date: 19 February 2024
Before: Bell CJ at [1];
Harrison CJ at CL at [2];
Chen J at [3]
Decision:
The first question of law on case stated should be answered “Yes”. The second question of law on case stated should be answered “Unnecessary to answer”.

Catchwords:
CRIME – criminal liability – absolute liability – statutory offences – whether the offence of driving a motor vehicle while there is present in the person’s oral fluid, blood or urine any prescribed illicit drug is an offence of strict or absolute liability – statutory interpretation of s 111(1) of the Road Transport Act 2013 (NSW)

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Interpretation Act 1987 (NSW)
Road Transport Act 2013 (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Road Transport Legislation Amendment (Drug Testing) Act 2006 (NSW) (repealed)
Road Transport Legislation (Repeal and Amendment) Act 2013 (NSW) (repealed)
Road Transport (Safety and Traffic Management) Act 1999 (NSW) (repealed)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 Cited:
Catlow v Accident Compensation Commission (1989) 167 CLR 543; [1989] HCA 43
CTM v The Queen (2008) 236 CLR 440; [2008] HCA 25
Director of Public Prosecutions (NSW) v Bone (2005) 64 NSWLR 735; [2005] NSWSC 1239
Environment Protection Authority v N (1992) 26 NSWLR 352
Franklin v Stacey (1981) 27 SASR 490
Harrison v Melhem (2008) 72 NSWLR 380; [2008] NSWCA 67
Hawthorne (Department of Health) v Morcam Pty Ltd (1992) 29 NSWLR 120
He Kaw Teh v The Queen (1985) 157 CLR 523; [1985] HCA 43
Jiminez v The Queen (1992) 173 CLR 572
Kearon v Grant [1991] 1 VR 321
Leichardt Municipal Council v Hunter (2013) 83 NSWLR 637; [2013] NSWCCA 87
Lim Chin Aik v The Queen [1963] AC 160
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
R v A2 (2019) 269 CLR 507; [2019] HCA 35
R v Wampfler (1987) 11 NSWLR 541
Re Bolton; Ex parte Beane (1987) 162 CLR 514; [1987] HCA 12
Registrar of Titles (WA) v Franzon (1975) 132 CLR 611; [1975] HCA 41
Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23
Sherras v De Rutzen [1895] 1 QB 918
Shorten v David Hurst Constructions Pty Ltd (2008) 72 NSWLR 211; [2008] NSWCA 134
Stanojlovic v Director of Public Prosecutions (Vic) (2018) 273 A Crim R 215; [2018] VSCA 152
Sweet v Parsley [1970] AC 132
Tsolacis v McKinnon (2012) 38 VR 260; [2012] VSC 627
Wilson v Gahan [1999] VSC 72

Texts Cited:
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 19 September 2006
New South Wales Legislative Council, Parliamentary Debates (Hansard), 18 October 2006

Category: Principal judgment
Parties: Mina Narouz (Appellant)
Director of Public Prosecutions (NSW) (Respondent)
Representation:
Counsel:
I Todd (Appellant)
B Hatfield SC (Respondent)
Solicitors:

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 R v Narouz

Details

AGLC: R v Narouz [2024] NSWCCA 14
Case: [2024] NSWCCA 14
Decision Date: 19 February 2024

CaseChat Overview and Summary

The case of R v Narouz involved a dispute over criminal liability for driving a motor vehicle while there was a prescribed illicit drug present in the driver's oral fluid, blood, or urine. The defendant was charged under section 111(1) of the Road Transport Act 2013 (NSW). The central legal issue was whether the offence constituted strict or absolute liability, meaning whether the prosecution needed to prove mens rea (guilty mind) or if the mere fact of the drug presence sufficed. This question was brought before the court for clarification on statutory interpretation.

The court examined the language and structure of section 111(1) of the Road Transport Act 2013 (NSW) to determine the nature of the offence. It considered whether the statute imposed absolute liability, which would mean the defendant's knowledge or intent was irrelevant. The court evaluated whether the statute's wording and context supported an interpretation that omitted the need for mens rea. This involved a detailed analysis of legislative intent and the consequences of interpreting the offence as either strict or absolute liability.

In its judgment, the court concluded that the offence under section 111(1) was one of strict liability, not absolute liability. This meant that while the prosecution did not need to prove the defendant's knowledge or intent, they still had to establish the presence of the illicit drug in the driver's body. The court found that the statutory language and the overall context of the Road Transport Act 2013 (NSW) indicated a requirement for the prosecution to prove the drug presence, but not the defendant's state of mind. This decision provided clarity on the scope of criminal liability in such cases.

The final orders of the court reflected its interpretation of the statutory offence, affirming that the defendant's conviction could stand on the basis of strict liability. The court's decision ensured that while the prosecution did not need to prove mens rea, they were required to establish the factual presence of the illicit drug. This ruling balanced the objectives of public safety with the principles of criminal justice, providing a clear framework for future cases involving similar statutory offences.

Orders