Mistake of Fact Is Not a Legal Defence to Drug Driving Charges

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By Paul Gregoire and Ugur Nedim

The NSW Court of Criminal Appeal (NSWCCA) confirmed in a 19 February 2024 ruling that the offence of the offence of drug driving in New South Wales is an absolute liability offence, which means the long relied upon legal defence of honest and reasonable mistake of fact is not available to those charged with the crime.

The appeal contested a 26 July 2023 NSW District Court ruling, which determined that there are no excuses for drivers testing positive to a roadside drug test, a regime underpinned by unjust laws, as such readings don’t indicate intoxication, but rather reflect any presence of select illicit drugs.

Since the regime began in 2007, and prior to last week’s ruling, drug driving has been considered a strict liability offence, meaning a reasonable mistake is available as a defence.

However, as it is now found to be an absolute offence, intent is a given that doesn’t have to be proven. Therefore, there are no excuses for drug driving.

Judge Buscombe finding that Mina Narouz’s defence, which asserted that he’d tested positive for cocaine driving in 2020,not due to his taking the drug but rather as a result of sipping someone else’s drink, was implausible on appeal of his earlier Local Court conviction over this matter in March 2023.

And in handing down his findings, his Honour ruled that, despite the established understanding that there is a defence of reasonable mistake for drug driving, there’s actually none, and the judge then submitted questions to the NSWCCA to confirm that the ruling was correct.

Drug driving in NSW

The crime of drug driving, or driving with the presence of certain drugs (other than alcohol) in oral fluid, blood or urine is contained in section 111 of the Road Transport Act 2013 (NSW), which outlaws driving with any presence of four illicit substances in an individual’s system.

The illegal substances tested for are cocaine, the psychoactive part of cannabis THC, MDMA and amphetamines.

And on testing positive, a first-time offender will receive a 3-month licence disqualification and an on-the-spot fine of $572. This means an offender avoids going to court.

Yet, if a first-time offender decides to challenge the matter in court, it can result in a fine of $2,200 and a 6-month licence disqualification period. And the timeframe of licence suspension can be dropped to 3 months, but it can’t be raised.

A second or subsequent offence carries a $3,300 fine with a 12-month disqualification time period, which the court can drop to 6 months or increase without limit.

The NSWCCA confirmation that drug driving is an absolute liability offence means that unimpaired drivers will continue to lose their licences over testing positive when they’re not intoxicated, which differs from random breath testing for alcohol, as it provides an alcohol concentration reading.

Deliberations on the offence

Judge Buscombe put two questions to the NSWCCA to answer, which involved whether the section 111 offence is, indeed, an absolute liability crime, and whether it is necessary for the prosecution to negate an assertion of reasonable mistake to prove the law has been broken.

“In relation to an offence of strict liability, the ground of exculpation – honest and reasonable mistake of fact – is available, such that if raised by an accused… it must be negatived by the prosecution in order for the offence to be established,” NSWCCA Justice Nicholas Chen explained.

“On the other hand, if the offence is one of absolute liability, where mens rea forms no part of the offence and guilt is established by proof of the elements, that ground of exculpation is not available to an accused,” he added.

On first standing trial, NSW Local Court Magistrate Julie Zaki found that Narouz did not have an honest and reasonable excuse open to him to explain away the presence of cocaine in his system, as that provided, which involved his sipping someone else’s sports drink, didn’t hold.

His Honour further set out that the essential question as to whether drug driving is an absolute or strict liability offence must be established, which boils down to does the prosecution have to prove intent? And this could be ascertained by scrutinising the construction of the offence in section 111.

According to the NSWCCA justice, section 111 contains two offences. The first, subsection 111(1), outlaws driving with the presence of the four select illicit substances, whilst subsection 111(3) criminalises driving with the presence of morphine in one’s system.

Subsection 111(2)(a) outlines that if a driver has the presence of more than one of the illicit drugs in their system, then there is no defence, whilst subsection 111(2)(b) outlines that a defendant is guilty if the court is satisfied beyond reasonable doubt that the drug was present in oral fluid.

Buscombe found that the question of absolute liability came down to the (i) and (ii) clauses relating to subsection 111(2)(b).

Subsection 111(2)(b)(i) outlines that drug driving is proven if the court attendance notice (CAN) states that a prescribed drug was in their system and the court is satisfied it was, or, as stated under subsection 111(2)(b)(ii), guilt is shown if the CAN reflects a combination of drugs tested positive for.

Justice Chen agreed with this, as he found that as subsection 111(2)(a) rules out being able to defend oneself due to “uncertainty or duplicity”, and this does not change the fact that subsection 111(2)(b) holds that the offence is proven if satisfied that the drug noted on the CAN was present.

His Honour further set out that notably subsection 111(2)(b) contains the clear phrase that “the offence is proven”, and he outlines that the section further makes certain that the offence is shown whether it be in regard to one prescribed illicit drug listed on the CAN or multiple such substances.

No excuse for drug driving

Justice Chen explained that the appellant asserted that finding that drug driving is an absolute liability doesn’t improve road safety. 

But the judge found the opposite, as he considered ensuring that intent doesn’t have to be shown in relation to drug driving will ensure more people abide by the law.

Further reasons as to why consideration of the section 111 offence is an absolute liability crime, Justice Chen continued, is that the monetary penalties applying to it are moderate, so this too reinforces the opinion that the law was designed to be an absolute liability offence.

So, in answer to Judge Buscombe’s questions, the NSWCCA Justice Chen found that drug driving is an absolute liability offence. And as for the second query, since the crime is an absolute liability, there is no reason to answer whether the prosecution has to disprove the honest mistake defence.

And on 19 February, NSWCCA Justices Andrew Bell and Ian Harrison agreed with their colleague’s findings.

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