Whilst it was previously thought that the defence of ‘honest and reasonable mistake of fact‘ was
available for offences of driving with an illicit substance in your
system, a District Court Judge has ruled that this is not the
case.
The defence of an honest and reasonable mistake of fact defence,
whilst it is available for strict liability offences, it is not
available for absolute liability offences.
The decision (Narouz v R [2023] NSWDC 293) ultimately
held that the offence is one of ‘absolute liability’ and
that all that needs to be proven is the presence of an illicit
substance in a person’s oral fluid, blood, or urine.
DRIVING WITH AN ILLICIT SUBSTANCE IN YOUR SYSTEM | DRUG DRIVING
OFFENCES IN NEW SOUTH WALES
In New South Wales, you do not need to be impaired by drugs to
be charged with a drug driving offence. This means that you can
face penalties including a conviction, fines, and loss of licence,
even where your driving is completely unaffected by the drug.
Section 111 of the Road Transport Act 2013 (
NSW) provides that it is an offence to have an illicit
substance in your system (i.e., in your saliva, blood, or urine)
and drive a motor vehicle, or occupy the driving seat of a motor
vehicle and attempt to put the motor vehicle in motion.
It is also applicable where you occupy the seat in a motor
vehicle next to a learner driver who is driving the vehicle.
The prescribed illicit drugs referred to in the Act are cannabis
(delta-9-tetrahydrocannabinol), speed (methylamphetamine), ecstasy
(3,4-methylenedioxymethylamphetamine) and cocaine.
A maximum penalty of a conviction and fine of $2,200 is
applicable for a first offence. It also carries an automatic
licence disqualification for 6 months, which may be lowered to a
minimum of 3 months, if the court thinks that it is suitable to
order a shorter period.
In the case of a first offence, police may use their discretion
to issue a penalty infringement notice of $603 instead of charging
you. Payment of this fine does not result in a criminal record,
however, it will result in a 3-month licence suspension of your
driver licence.
For a second or subsequent offence, a maximum penalty of a
conviction and a $3,300 fine is applicable. It will also carry an
automatic licence disqualification for 12 months, which may be
lowered to a minimum of 6 months, if the court deems this is
suitable.
WHAT IS THE HONEST AND REASONABLE MISTAKE OF FACT
DEFENCE?
In criminal proceedings, the prosecution is generally required
to prove that you had the criminal intent (referred to as
‘mens rea‘), and that you also committed the
offending act(s), both being essential elements of a criminal
offence. Failure to prove any one of those elements will result in
the charge being dismissed by a court, thus resulting in an
unsuccessful prosecution.
As for the criminal intent requirement- this can include that
you had the intention to do the relevant conduct or cause a
particular consequence, knowledge of the ‘wrongness’ of an
act, that you were reckless as to causing certain consequences, or
had wilful blindness.
However, some offences do not require the prosecution to prove
that you had any criminal intent. These types of offences are
called ‘strict liability’ offences.
A ‘strict liability’ offence is any
offence where there is also no requirement to have a guilty
mind.
Offences where there is no requirement of proving the criminal
intent (‘mens rea’) will be ordinarily proven solely by
establishing the offending conduct.
However, the defence of an ‘honest and reasonable mistake of
fact’ has normally been available for such offences.
The honest and reasonable mistake of fact defence refers to
circumstances in which a person will not be guilty of a criminal
offence on the basis that they held an honest and reasonable
belief, although mistaken, in a state of facts which, if they
existed, would have made the accused person’s act
‘innocent’.
Examples of an honest and reasonable mistake of fact defence
include where a person drives whilst suspended but is entirely
unaware that their licence was suspended. They would need to
demonstrate that they had an honest and reasonable belief that
their licence was valid, including for reasons such as never
receiving the suspension notice.
The accused person is required to raise the defence in evidence,
with the prosecution then required to prove that they did not
honestly hold such a belief or that it was not on reasonable
grounds.
Whether it was reasonable will be assessed objectively. This
defence only applies to mistakes as to facts, and not as to the
law.
‘Absolute liability’ offences are
another category in which there is no requirement to prove
‘mens rea’. However, the defence of an ‘honest and
reasonable mistake of fact’ is not available for absolute
liability offences.
Again, all that is required to be established for an absolute
liability offence is the act constituting the offence.
What did the Case in Narouz v R [2023] Say?
The Decision of Narouz v R [2023] NSWDC 293 held that drug
driving is an absolute liability offence.
Mina Narouz was convicted in the Local Court for
the offence of driving with an illicit substance, being cocaine, in
his system.
Narouz appealed his conviction to the District Court. He
ultimately sought to argue that the defence of honest and
reasonable mistake of fact was applicable to his circumstance.
Whilst his saliva had tested positive for cocaine, he claimed
that he had not used cocaine since the year prior. During the Local
Court hearing, he gave evidence that he had drunk out of a Gatorade
or Powerade bottle which was on the floor of his friend’s
vehicle that he was driving at the time, which might explain the
presence of the drug.
Ultimately, District Court Judge Buscombe dismissed the appeal
upon finding that driving with an illicit substance in your system
is an ‘absolute liability’ offence, and the defence was not
available.
This was determined through close reading of the relevant
section. His Honour ultimately pointed to section 111(2)(b) which
notes that: “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 as described
in the court attendance notice.
His Honour deemed that this left “no scope for the
operation of an honest and reasonable mistake of fact to
operate” and highlighted “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 court attendance notice, in
a defendant’s oral fluid, blood or urine.”
This interpretation of the section was also found to be
consistent with the intended purpose of the offence, as described
by the then Minister for Roads.
Justice Buscombe disagreed with prior findings that the defence
was available, including reference to the case of NSW Police v
Carrall [2016] NSWLC 4.
In this matter, Magistrate David Heilpern held that the
defendant, Joseph Carrall, was able to raise the defence of honest
and reasonable mistake.
Carrall was pulled over by was pulled over by Senior Constable
Foster for a random drug test.
The officer asked the driver whether he’d taken any illicit
drugs within the last 48 hours, to which Mr Carrall replied:
“I had a smoke over a week ago.”
Foster took a sample of saliva, which tested positive for the
presence of THC. Carrall was arrested and taken to the police
station to be tested again, which also returned positive.
Notably, a month earlier Foster had also pulled Carrall over and
who recorded a positive test then as well. Whilst he pleaded guilty
to this incident, he defended the subsequent offence.
During the hearing, the Carrall gave evidence that when he was
first arrested, Foster advised him: “if you had waited a week,
you would have been fine.”
Callan claimed that he had relied on this statement before
seeking to drive again, and Magistrate Heilpern held that the
defendant honestly believed that the cannabis was no longer present
in his system.
Justice Buscombe noted that if he had found that the defence was
applicable to such offences, that he would have upheld Narouz’s
appeal on the basis that it was open to raise an honest and
reasonable mistake of fact as to the presence of the illicit drug
cocaine, and that the prosecution had not negatived that belief
beyond reasonable doubt.
