Is an honest and reasonable mistake of fact a defence to driving under the influence of illicit drugs?

The Court of Criminal Appeal held that in R v Narouz [2024] NSW CCA 14 that the defence of honest and reasonable mistake of fact is NOT available for an offence of driving with illicit drugs in the system.

The Court held that:

(i)           The relevant Section of the Road Transport Act does not expressly indicate whether the offence is strict liability or absolute liability. Narouz had argued that the offence was a strict liability offence, meaning the Crown did not need to prove intention (or mens rea) but the defence of honest and reasonable mistake of fact was available. However, the Crown had argued that the offence was an offence of absolute liability, therefore the defence of honest and reasonable mistake of fact was not available.

(ii)          The structure and language of the Section indicates that the manifest legislative intent to displace the presumption that there is a mens rea element to the offence under Section 111(1) and to create an offence of absolute liability.

(iii)         Contrary to Narouz’s argument that the fact that a second reading speech is silent on a particular issue, does not mandate a conclusion that the legislation should, in and of itself, be taken implicitly to support the construction argued by the appellant.

(iv)         The Court was unpersuaded that the possibility of hardship cases should be taken to override the public safety objectives to which the reference was made.