Criminal law - Appeal against conviction - Attempting to possess a commercial quantity of a substance that was reasonably suspected of having been unlawfully imported and was a border controlled drug - Section 307.8(1) read with s 11.1(1) of the Criminal Code (Cth) - Absolute liability applies to the element of the offence in s 307.8(1)(b) of the Criminal Code - Proposed grounds of appeal hopeless - Leave to appeal refused

2 BUSS JA: The appellant was convicted, after a trial in the Supreme Court before McKechnie J and a jury, of one count of attempting to possess a commercial quantity of a substance that was reasonably suspected of having been unlawfully imported, and was a border controlled drug, namely MDMA, contrary to s 307.8(1) read with s 11.1(1) of the Criminal Code (Cth) (the Code).

3 The appellant has applied for leave to appeal against his conviction.

5 A package containing heavy duty bicycle suspension parts was intercepted by customs officials at Sydney International Airport. The package had been dispatched from Canada. It was addressed to 'Mr Doug Webber' at a residential address in Wellard, a suburb of Perth.

6 A total of 3,124 g of MDMA was hidden in the bicycle suspension parts. It comprised 1.733 kg of pure MDMA. Law enforcement officers removed the MDMA and replaced it with an inert substance.

7 After the inert substance had been substituted for the MDMA, the package was delivered by a law enforcement officer to the specified address. The appellant was ordinarily resident at the premises in question. Two other people, who were illicit drug users, also ordinarily resided at the premises.

8 The law enforcement officer confirmed with the appellant that he was 'Doug Webber', and then handed him the package. The appellant signed a delivery docket acknowledging receipt. About three hours later, when police attended at the address in Wellard, the package was found, unopened, in a locked storeroom at the rear of the premises.

The proposed grounds of appeal and the written submissions

9 The appellant relies on two grounds of appeal. The grounds were settled by Mr S B Watters of counsel.

10 Ground 1 alleges that the trial judge erred 'both in law and fact, and there was a miscarriage of justice, when he withdrew from the jury's consideration an element in issue'.

11 The appellant's written submissions, signed by Mr Watters, assert that the prosecution was required to 'establish' s 307.8(1)(b) of the Code, and that his Honour had erroneously directed the jury that the appellant had 'admitted' s 307.8(1)(b).

12 At the commencement of the trial, defence counsel made a number of admissions, in the presence of the appellant, pursuant to s 32 of the Evidence Act 1906 (WA).

13 The admissions included that when the package was imported into Australia 1.733 kg of pure MDMA was concealed in the bicycle suspension parts (ts 62). Defence counsel elaborated:

Ladies and gentlemen, that means that we are not going to require people to come from the eastern states to say, 'I was on duty when this package came through Customs.' We are not going to dispute the writing that was on the address. We are not going to dispute what was inside the box, the red parts, that you saw the pictures of, that's not in dispute, and we don't dispute that concealed within the bicycle parts, the red frame that you have just seen the pictures of - we don't dispute that there was MDMA concealed within those parts or the amounts as well, ladies and gentlemen (ts 62).

14 The appellant's written submissions in support of this ground of appeal assert:

The admissions that were made were effectively confined to an acknowledgement on the part of the Appellant as to what had taken place at the point of entry into Australia in Sydney and an acceptance by [the appellant] that Customs/AFP officers had located the MDMA that they alleged was in the box when they examined it in Sydney.

Crucially, the admissions made were not to the effect that at the time the accused took possession of the package he reasonably suspected it had been unlawfully imported. (original emphasis)

15 The written submissions also assert that 'it was not admitted by [the appellant] that at the time he took possession of the package he knew, or was reckless as to whether, the substance had been unlawfully imported'.

16 According to the written submissions, 'if [the appellant] did not reasonably suspect that the substance had been unlawfully imported, or was not reckless as to that at the time he received the package, it could not be said the Crown had established s 307.8(1)(b) of the Code'. (original emphasis)

17 Ground 2 alleges that the trial judge erred 'both in law and fact, and there was a miscarriage of justice, when he failed to adequately direct the jury concerning the fault element in s 307.8(1)(b)'.

18 The written submissions assert that his Honour failed to direct the jury that the fault element was 'recklessness'.

19 Counsel who appeared for the appellant at the hearing did not add anything of substance to the written submissions.

(a) the person possesses a substance; and

(b) the substance is reasonably suspected of having been unlawfully imported; and

(c) the substance is a border controlled drug or border controlled plant; and

(d) the quantity possessed is a commercial quantity.

Penalty: Imprisonment for life or 7,500 penalty units, or both.

(2) Absolute liability applies to paragraphs (1)(b) and (d).

(3) The fault element for paragraph (1)(c) is recklessness.

(4) Subsection (1) does not apply if the person proves that the border controlled drug or border controlled plant was not unlawfully imported.

...

21 Chapter 2 of the Code is headed, 'General principles of criminal responsibility'. Chapter 2 comprises s 2.1 to s 16.4. By s 2.2(1), chapter 2 applies to all offences against the Code.

22 Section 6.2(2) provides:

If a law that creates an offence provides that absolute liability applies to a particular physical element of the offence:

(a) there are no fault elements for that physical element; and

(b) the defence of mistake of fact under section 9.2 is unavailable in relation to that physical element.

23 By s 11.1:

(1) A person who attempts to commit an offence is guilty of the offence of attempting to commit that offence and is punishable as if the offence attempted had been committed.

...

(3) For the offence of attempting to commit an offence, intention and knowledge are fault elements in relation to each physical element of the offence attempted.

(3A) Subsection (3) has effect subject to subsection (6A).

...

(6A) Any special liability provisions that apply to an offence apply also to the offence of attempting to commit that offence.

...

24 In the dictionary to the Code, the term 'special liability provision' is defined to mean:

(a) a provision that provides that absolute liability applies to one or more (but not all) of the physical elements of an offence; or

(b) a provision that provides that, in a prosecution for an offence, it is not necessary to prove that the defendant knew a particular thing; or

(c) a provision that provides that, in a prosecution for an offence, it is not necessary to prove that the defendant knew or believed a particular thing.

The merits of the proposed grounds of appeal

25 The proposed grounds of appeal and the written submissions in support of them are misconceived.

26 The written submissions do not refer to s 307.8(2), s 6.2(2), s 11.1(3A) or s 11.1(6A) of the Code or to the definition of 'special liability provision' in the dictionary to the Code.

27 It is apparent from these provisions that on a charge of attempting to possess a substance that is reasonably suspected of having been

unlawfully imported, that is a border controlled drug and that is of a commercial quantity, contrary to s 307.8(1) read with s 11.1(1) of the Code, absolute liability applies to the element of the offence in s 307.8(1)(b). No fault elements are applicable to that provision.

28 The proposed grounds of appeal are hopeless. Leave to appeal should be refused and the appeal dismissed.