Orders
132 The appellant submitted that if she succeeded in the appeal, the Court should not order a retrial but rather direct a verdict of acquittal. The appellant submitted that the Crown case on the issue of intention to export the extra boxes, once stripped of the impermissible reasoning left to the jury, was insufficient to justify a conviction. I do not agree with that submission.
133 There was evidence before the jury that could justify a conclusion that the appellant was a participant in a joint enterprise to import the goods, when the word "imports" is understood in the sense I have identified. There was clear evidence that before the container landed she expected this particular shipment to contain additional packages. The jury was not obliged to accept the appellant's evidence that she took steps to stop the addition of packages to her shipments of furniture. Further, it was open to the jury to infer, particularly from the telephone intercepts in which she expressed relief that there would be no interception, and her subsequent communications with Mr Rantesalu, that she had the requisite degree of involvement in the joint enterprise to import the substances.
134 The Court indicated that it did not wish to call on the appellant as respondent to the Crown appeal. She has served a substantial proportion of her sentence, however, I would not exercise the Court's discretion to refrain from ordering a new trial. Many of the subjective considerations which Berman DCJ took into account in imposing a very light sentence for such an offence indicate that, in such a case, particularly from the perspective of general deterrence and denunciation, the conviction itself, rather than the length of term, is a significant consideration.
135 In my opinion, this Court should allow the conviction appeal, but remit the matter for a new trial.
136 WEINBERG AJA: I have had the advantage of reading, in draft, the reasons for judgment prepared by Spigelman CJ. I agree with those reasons and with the orders proposed. I wish, however, to add some observations of my own.
137 It was common ground between the parties to this appeal that the physical and fault elements of an offence under the Criminal Code Act 1995 (Cth) must coincide in time. That view accords with the common law. See generally Thabo Meli v R [1954] 1 All ER 373 and R v Church [1966] 1 QB 59. The question is whether, in the circumstances of this case, that requirement has, in fact, been met.
138 In determining the meaning to be accorded to the term 'imports' in s 307.11(1)(a) of the Code, the starting point must, of course, be the text itself. However, the text is not confined to individual words, phrases or sentences considered in isolation from their context: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408. The text must also be read, in accordance with s 15AA of the Acts Interpretation Act 1901 (Cth), with a purposive construction in mind.
139 In ordinary parlance, to 'import' is to bring in something from a foreign country or some other outside source. Section 300.2 of the Code provides that 'import' includes 'bring into Australia'. The word has a protean quality and is capable of being given either a broad or narrow interpretation. The Chief Justice has reviewed the authorities which bear upon the matter, and I cannot usefully add to his Honour's analysis of the case law. I agree that the decisions which carry the greatest weight are those of the High Court in Wilson v Chambers & Co Pty Ltd (1926) 38 CLR 131 and The Queen v Bull (1974) 131 CLR 203. I also agree, however, that neither of these cases is determinative of this appeal.
140 The former Chief Justice of Australia, the Honourable Murray Gleeson, in his Victoria Law Foundation Oration entitled 'The Meaning of Legislation: Context, Purpose and Respect for Fundamental Rights' (31 July 2008), commented recently that the immediate context of a statutory provision may include the provisions which surround it and perhaps the entire Act as a whole. The wider context may also include the circumstances that prevailed at the time of its enactment, as well as the background provided by other legislation. That, with respect, is the approach that I consider should be taken to the resolution of this appeal.
141 In searching for the meaning to be imputed to the term 'imports' in s 307.11 of the Code, it may be useful to have regard to the provisions which governed the importation of narcotic drugs before that section came into effect. In doing so, however, it must be remembered that what is being interpreted is a code and not an Act of Parliament. This means that special rules of interpretation are applicable. The language of the Code should be construed according to its natural meaning and without any presumption that it was intended to do no more than restate the existing law. See Bank of England v Vagliano Brothers [1891] AC 107; Brennan v The King (1936) 55 CLR 253 at 263 per Dixon and Evatt JJ; and Vallance v The Queen (1961) 108 CLR 56 at 74-6 per Windeyer J.
142 As a matter of ordinary usage of language, the term 'imports' seems to have implicit within it the idea of both a beginning and an end. The same is true of the term 'exports', which appears immediately adjacent to 'imports' in s 307.11(1)(a). The High Court in Bull determined the point at which the act of importing commences. A person does not import goods until they are either landed in this country or brought within a port for the purpose of being so landed. The case was silent, however, as to when the act of importing ends.
143 In Wilson v Chambers, Isaacs J addressed that very issue. His Honour postulated that imported goods meant goods that were in fact brought from abroad into Australian territory and, in respect of which, the carriage was ended or its continuity had in some way in fact been broken. See also R v Hancox [1989] 3 NZLR 60 at 62.
144 In the context of this appeal, if the Crown's contention that an importation continues until the goods reach their 'final destination' (an expression of some indeterminacy) were to be accepted, a person could be guilty of importing prohibited drugs by doing an act far removed from the actual landing of the drugs in this country. That act could take place weeks, months or even years after the drugs had been brought into Australia. Such a wide notion of the word would not accord with ordinary usage of language and would be foreign to most people's understanding of that term. In addition, an interpretation of such breadth would not sit well with the approach normally taken to the construction of penal statutes: Beckwith v The Queen (1976) 135 CLR 569 at 576.
145 It is true that there are a number of cases which have held that the process of importation extends well beyond the period of the goods being landed in this country. These include the cases to which the Chief Justice has referred in his reasons for judgment: R v Lam (1990) 46 A Crim R 402; R v Courtney-Smith (No 2) (1990) 48 A Crim R 49; R v Cheung (1997) 97 A Crim R 283; R v Sukkar [2005] NSWCCA 54; and Calderwood v R (2007) 172 A Crim R 208. There are others as well.
146 One such example is Doney v The Queen (1990) 171 CLR 207. There the High Court upheld a conviction of being knowingly concerned in the importation of cannabis resin. The case concerned a note said to be in the handwriting of the applicant, which had been given to a taxi driver some four weeks after a shipping container containing cannabis resin arrived in Australia. The note required the taxi driver to collect some boxes from an address at which the container was located, take them to a panel van in Balmain, and leave them there. It was accepted as being corroborative evidence of an accomplice as to the applicant's involvement in the importation.
147 In a joint judgment, the Court observed at 210:
"It was argued that the handwritten note could not corroborate the evidence of Freeman because, although it linked the applicant to the contents of the container, it did so only at a time when the importation was complete. The note, it was said, was consistent with his involvement in the distribution of the cannabis resin but it did not implicate him in the offence charged, namely importation."
148 In the course of rejecting that submission, the Court said at 212:
"The note given to the taxi driver, if accepted by the jury as having been written by the applicant, connected him with the cannabis resin imported into the country some few weeks earlier. The note and its employment in the transaction with the taxi driver might be capable of explanation on some basis other than its author was knowingly concerned in the importation of the cannabis resin. But, given that it was only a matter of some few weeks since the container had been landed in Sydney, it was open to the jury to reason that it was likely, although not inevitable, that the person who wrote the note, thus exercising dominion over the boxes from the container by directing the removal of some of them to some other place, was a person who had been knowingly concerned in the importation of its contents."
149 Doney is instructive because the evidence against the accused, taken at its highest, did not disclose any involvement on his part in the importation until long after the container had been landed in Sydney. The accomplice gave evidence that Doney had asked him to arrange customs clearance. However, that was well after the goods had been released to shipping agents. It was hardly surprising, in those circumstances, that Doney was charged not with having imported the drugs but rather with having been knowingly concerned in their importation.
150 There are other examples of an extended meaning being accorded to the notion of importation in the context of the offence of being knowingly concerned. In R v Shin Nan Yong (1975) 7 ALR 271, the New South Wales Court of Criminal Appeal held that a conviction for the offence of being knowingly concerned did not depend upon a conviction for the principal offence of importing, although the act of importation had to be proved as an element of the offence. The Court said that it was not essential that the concern in the importation be made 'manifest in a physical sense' whilst the importation was in progress. It was sufficient if the concern was manifested in 'the venture which centres upon the importation'.
151 In D Sweeney and N Williams, Commonwealth Criminal Law (1990), the authors observe at 210:
"Concern in an importation may be manifested by a person travelling with the actual importer, by actions before the importation directed to arranging the importation, such as arranging travel of the courier, or meeting the importer in Australia when the narcotic goods have been landed with an intent to deal with them in some way. Although the Court in Shin Nan Yong 's case used the term 'the venture which centres upon the importation' it is likely that the concern, or involvement, cannot be too remote from the importation; however, it would be false to say that conduct showing concern in the importation cannot occur once the importation is complete."
152 This brings me to the significance of the fact that the offence of being knowingly concerned in the importation of prohibited imports no longer exists under the Code.
153 The Chief Justice, in his reasons for judgment, has summarised the history behind the decision to omit 'knowingly concerned' from the provisions dealing with the importation of narcotic substances. As his Honour notes, s 233B(1)(d) of the Customs Act 1901 (Cth) was repealed in 2001 when the Code was first applied to drug offences.
154 Section 11.2(1) of the Code, so applied, extends liability to a person who 'aids, abets, counsels or procures the commission of an offence by another person'. An aider or abettor, or counsellor or procurer, is taken to have committed the primary offence and is punished accordingly. However, liability as an accomplice is derivative in the sense that it depends on proof that another person or persons combined with the defendant to commit the offence. Unlike other ancillary offences such as attempt, incitement and conspiracy, complicity as an aider or abettor is not an independent offence.
155 Although s 11.2(1) is part of a code, the language employed is technical and essentially the same as that used at common law. The words are plainly intended to bear the same meaning as they do at common law.
156 The further extended form of accessorial liability that derived from 'knowingly concerned' was deliberately omitted from the Code because those who drafted the relevant provisions believed that this form of derivative liability was unnecessary. They considered that 'knowingly concerned' added nothing to complicity and common purpose as defined in s 11.2.
157 In that regard, the drafters of the Code differed from the Review of Commonwealth Criminal Law, a committee chaired by Sir Harry Gibbs, which in July 1990 presented its third interim report entitled 'Principles of Criminal Responsibility and Other Matters'. In that report, the committee gave careful consideration to the question whether the words 'or by any act or omission is in any way directly or indirectly knowingly concerned in or party to' should be deleted from s 5 of the Crimes Act 1914 (Cth).
158 The Gibbs Committee observed at 214 that the words 'knowingly concerned' had been judicially considered on a number of occasions. It referred to R v Goldie, ex parte Picklum (1937) 59 CLR 254; Mallan v Lee (1949) 80 CLR 198; Ashbury v Reid [1961] WAR 49; R v Hussain [1969] 2 QB 567; R v Kelly (1975) 12 SASR 388; Yorke v Lucas (1985) 158 CLR 661; and Trade Practices Commission v Australia Meat Holdings Pty Ltd (1988) 83 ALR 299. It regarded these decisions as having established that the act or omission of the accused had to implicate or involve him or her in the offence. It noted that in applying these cases to s 233B(1)(d) of the Customs Act 1901, the New South Wales Court of Criminal Appeal had held, in R v Tannous (1987) 32 A Crim R 301 and R v Haddad (1988) 33 A Crim R 400, that the trial judges' directions to the jury in both those cases were incorrect to the extent that it was held that 'knowingly concerned' meant mere 'concern, interest or anxiety'.
159 Haddad may unwittingly have been the source of some of the present difficulties. In that case (at 408), Roden J posed the question, perhaps rhetorically, 'in what circumstances would a person be knowingly concerned in an importation, so as to be guilty of the offence, other than by aiding, abetting, counselling, or procuring it?' Plainly, his Honour had doubts as to whether 'knowingly concerned' added anything to ordinary principles of complicity.
160 Taking his cue from his Honour's remarks, the Commonwealth Director of Public Prosecutions (in fact, myself) raised with the Gibbs Committee the question whether it was necessary to retain the words 'knowingly concerned' in any future codification of the general principles of criminal responsibility.
161 The Gibbs Committee had the acuity and foresight to observe that these words had the merit of ensuring that circumstances amounting to knowing involvement in an offence, which did not amount to participation as a principal and to which the expressions 'aid, abet, counsel or procure' (or whatever equivalents were used) were not obviously apt, would nevertheless fall within the reach of the provision. The Committee did, however, accept (at 215) the submission that the words 'by act or omission', 'in any way directly or indirectly' and 'or party to' appeared to be superfluous. It also favoured replacing the word 'concerned' with 'involved' as a more apt expression.
162 With the benefit of hindsight, it is perhaps regrettable that the Gibbs Committee recommendations were not accepted when, in December 1992, the Criminal Law Officers Committee of the Standing Committee of Attorneys-General produced its Report, 'Chapters 1 and 2 - General Principles Of Criminal Responsibility'. That Report regarded the term 'knowingly involved' as adding nothing of substance to ordinary principles of complicity. It may be that those responsible for the Report were influenced, in that regard, by the views expressed in Howard's Criminal Law (5th ed, 1990) at 318-9. The learned author of that text commented that 'knowingly concerned' did not seem to add anything to the scope of accessorial liability.
163 The drafters of the Model Criminal Code had an additional reason for rejecting the notion of 'knowingly concerned' as a basis for criminal liability. They regarded that expression as being too vague to be appropriate for a general provision defining the ambit of criminal responsibility in a new code. The Gibbs Committee did not share that sentiment.
164 In considering whether the Criminal Law Officers Committee was correct in its conclusion that it was unnecessary to retain 'knowingly concerned', it may be useful to go back to the origins of that expression from the time of its introduction into the Customs Act.
165 As enacted in 1901, s 233 of the Customs Act made it an offence to smuggle or unlawfully import any goods. Section 233B did not exist at that stage. The Customs Act was amended in 1910 by repealing s 233 in its entirety and substituting a new s 233, as well as introducing ss 233A and 233B. It was s 233B(1)(d) which, for the first time, made it an offence to be 'in any way knowingly concerned in' the importation into Australia of prohibited imports.
166 References to these new provisions in the Commonwealth Hansard of 1910 are sparse. The debates made it plain that they were intended to combat opium smuggling. However, they did not indicate whether the new offences were drawn from the criminal law of some other jurisdiction.
167 In fact, United Kingdom law contains a number of offences where a person will be liable for being 'knowingly concerned' or 'knowingly involved' in the commission of some other offence. See for example, the Foreign Enlistment Act 1870 (c 90) (UK). It is perhaps speculative, but the phrase 'knowingly concerned', as introduced in the Customs Act in 1910, may derive from that statute.
168 The phrase appears regularly in current United Kingdom statutes dealing with matters involving customs. See, for example, Customs and Excise Management Act 1979 (c 2) (UK), ss 68, 68A, 170, and 170B.
169 A number of other United Kingdom statutes also contain offences where phrases such as 'knowingly concerned' or 'knowingly involved' are employed. These include the Immigration Act 1971 (c 77); Fair Trading Act 1973 (c 41); Alcoholic Liquor Duties Act 1979 (c 4); Value Added Tax Act 1994 (c 23); Financial Services and Market Act 2000 (c 8); and Tax Credits Act 2002 (c 21).
170 New Zealand has also adopted the phrase 'knowingly concerned' or 'knowingly involved' as the basis for accessorial liability in relation to customs offences. See, for example, the Customs and Excise Act 1996, ss 209 and 210 and the Imports and Exports (Restrictions) Act 1988, s 4. In addition, s 9 of the Secret Commissions Act 1910 uses the 'knowingly concerned' formula.
171 The expression 'knowingly concerned' has a lengthy pedigree in relation to trade practices law. Section 75B of the Trade Practices Act 1974 (Cth) provides that an individual may be party to a contravention by a corporation of a provision of the Act if that person is knowingly concerned in that contravention. Once again, there is a significant body of jurisprudence dealing with the expression 'knowingly concerned' in that context. See for example Yorke v Lucas (1985) 158 CLR 661 at 670.
172 In Trade Practices Commission v Australia Meat Holdings Pty Ltd, Wilcox J cited Ashbury v Reid at 51, where the Full Court of the Supreme Court of Western Australia said, in a different context:
"The question which a court should ask itself … is whether on the facts it can reasonably be said that the act … shown to have been done … by the defendant does in truth implicate or involve him in the offence, whether it does show a practical connection between him and the offence."
173 The decision to omit the phrase 'knowingly concerned' from the various forms of complicity available under federal criminal law, and the extension of that decision to the offences now contained in the Code dealing with drugs, appears to me to have left a lacuna in the law that was certainly never intended.
174 As previously indicated, the Gibbs Committee foresaw the need to retain this variant of accessorial liability. In its report, it noted that Commonwealth prosecutors had frequently found the phrase a more apposite and convenient description of the offence to be charged than the remaining words of s 5 of the Crimes Act 1914. The convenience lay in the fact that charging 'knowingly concerned' avoided any possible question whether the offender was a principal in the second degree or an accessory before the fact, a matter that assumed importance in common law jurisdictions, though never really at the Commonwealth level. That was because s 5 had, from the time of its first enactment, applied to all Commonwealth offences, the distinction between felonies and misdemeanours never having been recognised under the Crimes Act itself.
175 All this goes some way towards explaining why the phrase 'knowingly concerned' no longer applies to offences involving the importation of drugs. It also puts the issues raised in this appeal into context.
176 The authorities upon which the Crown relied, in support of its submission that the word 'import' has the extended meaning for which it contended, are all cases that were decided under the rubric of 'knowingly concerned'. That phrase was always attached to the term 'importation'.
177 The Code now shifts from the noun 'importation' to the verb 'imports'. A change of that kind can have consequences. They may be unintended. To be 'knowingly concerned' in an importation is to be involved in an activity that is necessarily ambulatory. To import, or to aid and abet an importer, is to engage in a more finite activity, which is part of a broader process properly characterised as the process of importation.
178 A person can still be 'concerned in' an activity which, as a matter of strictness, has concluded while not, at the same time, being 'engaged in' that activity. Sweeney and Williams illustrate that proposition (at 210) in their discussion of 'knowingly concerned', to which I have previously referred. They cite Shin Nan Yong, in which Street CJ, delivering the judgment of the Court of Criminal Appeal, observed that it was by no means an essential part of the crime of being 'knowingly concerned' in the importation of prohibited imports that the 'concern' be made manifest in a physical sense whilst the importation was actually in progress. It was sufficient if that concern was manifested 'in the venture' which centres upon the importation.
179 Section 6 of the Crimes Act 1914 creates a specific offence of being an accessory after the fact. Any person who assists another who is, to his or her knowledge, guilty of any offence against a law of the Commonwealth, in order to enable him or her to escape punishment or to dispose of the proceeds of the offence, is guilty of an offence carrying a maximum of two years' imprisonment. There will, no doubt, be cases, of which the present might on one view be an example, in which the conduct of the offender falls outside the ambit of s 307.11 but gives rise to liability as an accessory after the fact.
180 In the instant case, there was ample evidence upon which the jury could have convicted the appellant of importing these precursor drugs or, at the very least, aiding and abetting their importation. The jury could only have done so, however, if satisfied that the Crown had established the relevant fault element on her part prior to the act of importing having been concluded. As previously indicated, the physical and fault elements had to coincide in time.
181 The difficulty lies in knowing whether the jury convicted on the basis of the evidence that pointed to the appellant's involvement in the importation while it was still ongoing, or whether they relied solely upon the Crown's alternative case, first put forward in the prosecutor's closing address, that she was guilty even if she only learned about the drugs when she first saw the boxes in the van. Whatever flexibility there may be built in to the verb 'imports' in s 307.11, having regard to the test laid down in Wilson v Chambers, the act of importing (as distinct from the broader venture which centred upon the importation) had, in my view, well and truly concluded by the Saturday when the appellant actually saw those boxes. To use the language of Isaacs J, by that stage, the carriage had ended or, at the very least, its continuity had been broken. That makes it impossible to allow this conviction to stand. There should be a new trial.
182 It is unnecessary in these circumstances to consider the appellant's second ground of appeal, which complains of the introduction by the prosecutor in his closing address of the alternative basis upon which the appellant might be convicted. See generally King v The Queen (1986) 161 CLR 423. Even if that ground were established, it would still be appropriate, in my view, to order that a new trial be had. There is no proper basis for entering a verdict of acquittal.
183 SIMPSON J: I agree with the orders proposed by the Chief Justice and with his reasons therefor. I also agree with the additional observations of Weinberg AJA.
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