Nelson (a Pseudonym) v DPP

1 On 18 September 2012, the applicant arrived in Melbourne on a flight from Hong Kong with 271 wax-coated pellets containing diphenhydramine, an antihistamine, secreted within his alimentary canal. He now faces a single charge on an indictment filed in the County Court of attempting to import a border controlled drug.[2]

2 Diphenhydramine is not a border controlled drug. The applicant did not, accordingly, commit the substantive importation offence. The charge alleges that he attempted to do so.

3 In the law of attempt, where the conduct is more than preparatory, the emphasis lies on the criminal intent of the actor.[3] The Crown case is that the applicant intended to import a border controlled drug. That is said to be the only inference reasonably open given his conduct of ingesting the pellets and bringing them into Australia.

4 The applicant contends that the charge is 'foredoomed to fail' because the Crown cannot identify a particular border controlled drug as the subject of his attempted importation. On that basis, he has sought a permanent stay.

5 The judge at first instance refused the stay application. Leave is now sought to appeal from that decision. For reasons which follow, we would grant leave to appeal but dismiss the appeal.

6 A permanent stay of a charge on an indictment may be granted if the charge is foredoomed to fail - that is, must inevitably fail. To permit a prosecution to continue in such circumstances would be to condone an abuse of process.

7 The principles applicable to such an application were laid down by the Full Court in R v Smith.[4] Those principles have been applied in a number of cases in several jurisdictions.[5] Brooking J described the appropriate test:

The decision of the High Court in Walton v Gardiner shows that whether the proceedings are civil or criminal the test is the same when one is considering whether the proceedings are an abuse of process by reason of the fact that they cannot succeed. Civil or criminal proceedings are an abuse of process, not if it can be said of them only that they will very likely fail, but if it can be said of them that it is quite clear that they must inevitably fail. So it was laid down in Walton v Gardiner by Mason CJ, Deane and Dawson JJ that proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to failed.[6]

It is evident from the expressions used in the passages quoted above from Walton v Gardiner that, for a successful stay application of the kind before us, the case must be not merely incapable of success but 'clearly foredoomed to fail'; or in the words of Brennan J the vice is the institution of proceedings 'which will inevitably and manifestly fail'.[7]

For the purpose of this appeal counsel for the Director accepted, without conceding the point, that, in an appropriate case, the trial judge did have inherent power to stay a prosecution where it was established that the prosecution case was fatally flawed. Notwithstanding the reluctance of the Crown to concede that such power does indeed exist, the matter has been put beyond doubt by the High Court: Walton v Gardiner ... In that case, in the joint majority judgment, the court held that, irrespective of the purpose of the person responsible for the initiation and maintenance of the proceedings, it would be an abuse of process if the proceedings were clearly seen to be 'foredoomed to fail'.[8]

10 For the purposes of the present application, the Court should take the prosecution case at its highest. The Court must approach the application as if each of the critical facts in the prosecution's amended summary of prosecution opening were capable of being made out.

11 The applicant submitted that the charge against him was foredoomed to fail since, as a matter of law, no jury would be entitled to convict on the available evidence.

12 So far as relevant, s 307.3 of the Code provides:

307.3 Importing and exporting border controlled drugs or border controlled plants

(1) A person commits an offence if:

(a) the person imports ... a substance; and

(b) the substance is a border controlled drug ....

...

(2) The fault element for paragraph (1)(b) is recklessness.

(3) Subsection (1) does not apply if the person proves that he or she neither intended, nor believed that another person intended, to sell any of the border controlled drug or any of the border controlled plant or its products.

13 By virtue of ss 3.1(1) and 307.3 of the Code, the offence consists of physical elements[9] and fault elements.[10] Proof of this offence requires proof of two physical elements, namely, that:

• the accused imported a substance; and
• the substance was a border controlled drug.

As already noted, the applicant imported a substance, but it was not a border controlled drug. Hence the prosecution was compelled to charge him with attempt.

14 Section 11.1 of the Code deals with attempts. So far as is relevant, it provides as follows:

11.1 Attempt

(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.

(2) For the person to be guilty, the person's conduct must be more than merely preparatory to the commission of the offence. The question whether conduct is more than merely preparatory to the commission of the offence is one of fact.

(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.

Note: Under section 3.2, only one of the fault elements of intention or knowledge would need to be established in respect of each physical element of the offence attempted.

...

(4) A person may be found guilty even if:

(a) committing the offence attempted is impossible; or

(b) the person actually committed the offence attempted.

(5) A person who is found guilty of attempting to commit an offence cannot be subsequently charged with the completed offence.

(6) Any defences, procedures, limitations or qualifying provisions that apply to an offence apply also to the offence of attempting to commit that offence.

...

• an accused person's conduct must have been more than merely preparatory;
• with respect to the each physical element of the attempted offence, the fault elements are intention and knowledge (one of these being sufficient); and
• an accused person may be found guilty even if committing the offence attempted is impossible.

16 There is no doubt that the applicant's conduct was more than merely preparatory, since he had actually imported a substance. Moreover, with respect to the first physical element - 'the person imports' - there is little doubt that the applicant possessed the requisite intention[11] or knowledge.[12] The applicant plainly intended to import the substance that was concealed within his body.

17 The point at issue concerns the second physical element - 'the substance [was] a border controlled drug'. Before we consider the competing arguments, it is necessary to refer to the key authorities relied on.

18 In Britten,[13] the accused had brought a substance, procaine, into Australia in a false-bottomed suitcase. He mistakenly believed that what he was importing was cannabis. He was charged with attempting to import a prohibited import, cannabis, pursuant to s 233B of the Customs Act 1901 (Cth). Although cannabis was a prohibited import, the substance in fact imported, procaine, was not. A magistrate dismissed the information on the basis that the defendant could not be convicted of an attempt to import cannabis where what he had in fact imported was not cannabis.[14]

19 The Full Court held that the magistrate had been wrong to do so. Murphy J (with whom Fullagar and Gray JJ agreed) said:[15]

It follows, in my view, that to prove the statutory crime created by s 233B(1)(b) of the Customs Act, of attempting to import prohibited imports into Australia, the Crown must prove that the accused at all material times intended to import something which was as a matter of law a prohibited import and known by him to be so, and that pursuant to this intention he did an act or acts (including omissions) not merely preparatory but sufficiently proximate to the intended commission of the crime.

In this case, the false bottom in the suitcase, the secreting therein of packets containing a powdery substance, the consignment of the suitcase from Turkey to Melbourne, the failure to declare the packages believed by the accused to be cannabis, the collection of the suitcase from the carousel, all provide sufficiently proximate acts to constitute the actus reus and to manifest the intention to import a prohibited import. Cannabis is as a matter of law a prohibited import within the meaning of s 233B(1)(b). The accused admits that he intended to import cannabis. He stated that he knew that he had 'made one big mistake' and that he was 'prepared to suffer the consequences'.

If these matters are proven, there is established both the mens rea (the intention to import a known prohibited import, cannabis) and the actus reus (sufficiently proximate unequivocal acts or omissions) of the crime of attempting to import a prohibited import, namely cannabis.

... Attempts are not to be confined to acts which if not interrupted would result in the commission of the crime itself.

Attempts are crimes because of the criminal intent of the actor. A man who intends to kill V, and who picks up a gun believing it to be loaded, and who points it at V and pulls the trigger is guilty of an attempt to murder V, even if it transpires that the gun was not loaded. Why is this an attempt? Because if the facts had been as the actor believed them to be, he would have committed the intended crime; he intended to murder V, but failed because of a mistake of fact. He is punishable for an attempt, not because of any harm that he has actually done by his conduct, but because of his evil mind accompanied by acts manifesting that intent. The criminality comes from the conduct intended to be done. That conduct intended must amount to an actual and not an imagined crime, but if it does, then it matters not that the gun is in fact unloaded, or the police intervene, or the victim is too far away, or the girl is in fact over 16, or the pocket is empty, or the safe is too strong, or the goods are not cannabis.

20 In Weng v The Queen,[16] the applicant had been convicted of attempting to possess a marketable quantity of a border controlled drug, namely methamphetamine, it having been unlawfully imported.[17] A package containing methamphetamine had arrived in Australia from China. Before it was delivered to the applicant, the Australian Federal Police had substituted an inert substance for the drug inside the package. One of the grounds of appeal was that the applicant could only have been convicted if the prosecution had established beyond reasonable doubt that she knew or believed that the package contained methamphetamine. The judge had given no such direction to the jury. To the contrary, she had directed the jury that they did not need to be satisfied that the accused had knowledge or belief as to the identity of the particular drug.

21 This Court rejected the argument. Osborn JA (with whom Buchanan and Neave JJA agreed) pointed out that, in the case of an attempt, an accused will have the relevant intention with respect to the circumstance in issue if he or she believes that it exists or will exist.[18] In his Honour's view:

[B]elief that a package contains border controlled drugs, falling short of belief as to the precise nature of such drugs, will constitute a proper basis for a finding that an accused intends to take possession of a border controlled drug.[19]

The experience of the courts is that referred to in Wong v the Queen:

It must be recognised that not all offenders will know or even suspect how much pure narcotic is to be imported. Apart from the extent to which the pure narcotic is diluted or cut (a matter about which those involved in the importation may know little or nothing), it is by no means uncommon for many of those involved in an importation of narcotics to know nothing at all about what they are dealing with, except that it is a quantity of narcotic.

The fact that the definition of border controlled drug embraces diverse substances does not assist the applicant. Rather, it would be anomalous if the jury could not convict because they could not be satisfied, for example, that an accused intended to take possession of a quantity of methaqualome as distinct from methamphetamine.

Likewise it is not to point that 'border controlled drug' is not a term in everyday usage. Neither is methamphetamine or the other drugs described in the relevant schedule. The question of whether an accused believed something to comprise a specific drug rather than an undefined border controlled drug may necessarily be seriously difficult to demonstrate beyond reasonable doubt because of the technical nature of the issue. The point can be illustrated this way. Most intermediaries involved in drug importation will not have a belief as to the nature of the drugs based on a certificate of chemical analysis. If they have a belief at all it will ordinarily be based on hearsay expressed in slang or street language.[20]

23 The Court also upheld an alternative argument based on s 300.5 of the Code, which relevantly provides as follows:

If, in a prosecution for an offence against this Part, it is necessary for the prosecution to prove that a person knew, or was reckless as to whether, a substance ... was a ... border controlled drug, ... it is not necessary for the prosecution to prove that the person knew, or was reckless as to, the particular identity of the ... border controlled drug.

24 The New South Wales Court of Criminal Appeal addressed similar questions in Inegbedion v The Queen.[21] As in Weng,[22] the offence was attempting to possess a marketable quantity of a border controlled drug, in this case heroin, it having been unlawfully imported. On this occasion, however, there had been no substitution. The question on appeal concerned the distinction between the two elements of attempt: intention and conduct.

25 Rothman J (with whom Hoeben CJ at CL and McCallum J agreed) said:

In order to prove that the accused is guilty of an attempt to commit a particular offence, the Crown must first prove, beyond reasonable doubt, that the accused intended to commit the crime, which the Crown alleges he attempted to commit. In other words, the accused must have intended to commit all of the physical acts which would constitute the crime attempted in circumstances which make those acts criminal.

Over and above the proof of an intention to commit the crime alleged, the Crown must also prove, beyond reasonable doubt, that the accused, with that intention, performed some act that went towards the commission of the offence, which act was more than merely preparatory of the crime and was immediately connected with the commission of that crime, having no reasonable purpose other than its commission.[23]

26 His Honour referred to the earlier decision of the New South Wales Court of Criminal Appeal in R v Onuorah,[24] where the offender had been convicted of the same offence - attempting to possess a substance, being a border controlled drug, namely cocaine, it having been unlawfully imported. In fact, the cocaine had never entered Australia. In that case, Hodgson JA said:

If one restricts attention to the elements of the attempted offence, then, in my opinion, in accordance with Britten, the question in truth turns on whether an accused person intends each element of the relevant crime to occur, and in pursuance of that intention does acts that are not merely preparatory but are sufficiently proximate to the intended commission of the crime. Where an element of the relevant offence is that there be a border-controlled drug that has been imported into Australia, then for there to be an attempt there must be an intention that there be such a drug that has been imported; but it is not necessary that this actually be the case.[25]

27 As was clarified in argument, the question for consideration is quite narrow. The Court is not concerned with the possible inferences to be drawn from the applicant's conduct and - in particular - with whether a reasonable jury could exclude a hypothesis consistent with innocence. That question, as counsel for the Crown correctly pointed out, could be sensibly addressed only after the close of the Crown case. Counsel alluded to the types of evidence (summarised in the amended Crown opening) which would be led, or sought to be led, in support of the argument that the jury could be satisfied beyond reasonable doubt that the applicant had the requisite state of mind.

28 Rather, the question raised by the application is as follows:

Is it necessary for the prosecution, in order to prove the offence of attempted importation of a border controlled drug, to identify the particular substance (being a border controlled drug) which the accused had in mind when engaged in the conduct constituting the attempt?

29 The contention for the applicant is that it is a necessary part of the proof of the second physical element that the particular substance which he attempted to import be identified. Although the language of the offence is 'import a border controlled drug', the applicant contends, it is not enough - when the charge is attempt - for the prosecution to allege merely that the accused had in mind one or other of the drugs in the list of border controlled drugs, without specifying which.

30 According to the applicant's submission, identification of the particular drug can be done in one of two ways, as illustrated by the authorities. In the first type of case, the substance the subject of the attempt is shown to have been in fact a border controlled drug. The applicant refers to the decisions in Weng[26] and Onuorah[27] as examples of this. In those cases, the physical element of the offence - that the substance was a border controlled drug - was able to be established by direct proof. The live question in those cases was what needed to be proved in relation to the fault element, that is, the offender's knowledge or intention.

31 The second type of case is that exemplified by Britten,[28] where the offender has a mistaken belief that what he is attempting to import is a particular border controlled drug - in that case, cannabis. In such a case, the physical element can be proved on the basis of the accused's state of mind. In Britten,[29] as he had admitted to police, the offender believed that he was importing a particular substance (being a border controlled drug), although that was not in fact the case.

32 In the present case, the applicant points out, neither of those circumstances obtains. That is, what was imported was not in fact a border controlled drug, and there is no evidence from which any inference can be drawn (there being no admission) that the applicant believed he had imported a particular substance which was a border controlled drug. In those circumstances, he argues, the inference which is able to be drawn from his conduct does not 'rise high enough' to enable proof of the physical element.

33 The respondent's contention is that there is no real distinction between this case and Britten.[30] Of necessity, there is a difference in the means of proof - since the applicant has made no admission - but otherwise the case can be presented in exactly the same way.

34 The crux of the respondent's argument is that the conduct engaged in by the applicant - of ingesting the pellets - enables the inference to be drawn that he believed he had ingested, and was intending to import, a border controlled drug. It is immaterial, the respondent contends, that the prosecution cannot show which particular border controlled drug he believed it was.

35 The offence, the respondent points out, is to import a border controlled drug. The Crown is not required in laying the charge to specify which drug and, likewise, does not need to prove which drug in order to secure a conviction for attempt. The respondent maintains that the analysis in Weng[31] applies equally here. That is, it is not necessary to prove that the accused was aware of which border controlled drug he was attempting to import.

36 In essence, the prosecution argument is that a person who behaves in a way which demonstrates that he intended to import a border controlled drug can be convicted of attempting an unlawful importation, even though it cannot be shown which prohibited substance he believed he was importing. The basis of criminal liability is that the person intended to engage in unlawful conduct of a particular kind or character, that is, the conduct of importing something (unidentified) in the list of border controlled drugs.

37 In our view, this submission must be upheld. We see no material difference between Britten[32] and the present case on the critical issue of the accused's criminal intent. The assumption on which this case would go forward to the jury is that they could be satisfied beyond reasonable doubt that the applicant believed he was importing a border controlled drug. On that view, he had exactly the same criminal intent as the offender in Britten.[33] He believed that what he was ingesting was a border controlled drug, which he knew it was unlawful to import. He likely knew - in the sense discussed in Weng,[34] in the above-quoted passage - which border controlled drug it was, though that is not a necessary part of the Crown's proof.

38 On this analysis, it is immaterial that the particular drug cannot be identified. To use the language in Britten,[35] what the applicant was attempting to do would have been an offence if the facts had been as he believed them to be.[36] Hence there is the same justification for punishing him for attempt as there was for punishing the offender in Britten,[37] who had admitted that the particular drug he had in mind was cannabis.

39 Nothing said in Weng[38] or Onuorah[39] requires a different conclusion. On the contrary, the analysis of Osborn JA applies with equal force in the present circumstances. As his Honour held, proof of knowledge of the identity of the particular substance is required neither for the substantive offence nor for the attempt.

40 This conclusion is, we think, independently supported by s 300.5 of the Code. As noted earlier, it relevantly provides as follows:

If, in a prosecution for an offence against this Part, it is necessary for the prosecution to prove that a person knew, or was reckless as to whether, a substance ... was a ... border controlled drug, it is not necessary for the prosecution to prove that the person knew, or was reckless as to, the particular identity of the ... border controlled drug.

41 Read literally, this provision is concerned with proof of fault elements - knowledge and recklessness. What is in issue here is a physical element, namely, whether the substance was a border controlled drug. But, as we have explained, the substance imported was not a border controlled drug. That is precisely why the substantive offence was not committed.

42 The focus is therefore on the applicant's state of mind: what conduct was he intending to engage in when he brought this substance into Australia? Thus analysed, proof of the offence of attempt requires proof of the applicant's knowledge or belief with respect to 'whether a substance was a border controlled drug', within the meaning of s 300.5 of the Code. The effect of that provision, clearly enough, is that it is not necessary for the prosecution to prove that the applicant knew the particular identity of the border controlled drug.

43 In the present case, the inference is irresistible that the applicant ingested the packages containing the substance, diphenhydramine. It is also an irresistible inference that he did so with the intention of importing the substance. Further, the jury would be entitled to infer that he must have believed the substance he intended to import was one that could not lawfully be imported.

44 The prosecution submits that the applicant must have been duped into believing the substance in his stomach was a border controlled substance as only such a substance would be likely to result in the applicant receiving a financial reward and be likely to cause the applicant to take the risks associated with his conduct. We agree that it would be open to the jury to infer that the applicant would not have taken the elaborate steps that he did unless he believed the substance he ingested to be a border controlled drug.

45 On the assumption that the prosecution case does not change, it would be open to the jury to reject the hypothesis that the applicant might have intended to import a substance that he believed to be other than a border controlled drug.[40] It will be a question for the jury whether they are prepared to draw the inference, on the criminal standard, that the applicant intended to import a border controlled drug, even though that drug cannot be specifically identified. Hence the prosecution case is not foredoomed to fail.

[1] To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

[2] Criminal Code Act 1995 (Cth) s 11.1(1) and s 307.3 (the 'Code').

[3] Britten v Alpogut [1987] VicRp 77; [1987] VR 929, 932 ('Britten').

1. [4] [1995] VicRp 2; [1995] 1 VR 10. Although the decision was later overturned by the High Court in Smith v The Queen [1994] HCA 60; (1994) 181 CLR 338, that was because it was held that the Full Court had no power to entertain an appeal by the Crown against the trial judge's decision to grant a stay. The principles upon which the Full Court purported to decide the case were not, however, put in doubt.
2. [5] R v Leece (1996) 65 FCR 544; R v Petroulias (No 1) [2006] NSWSC 788; (2006) 217 FLR 242 (Supreme Court of New South Wales); R v McGee [2008] SASC 328; (2008) 102 SASR 318 (Supreme Court of South Australia (Court of Criminal Appeal)); R v Azad [2007] VSC 115; DPP (Cth) v County Court of Victoria [2010] VSC 157; (2010) 239 FLR 139 (Supreme Court of Victoria).
3. [6] [1995] VicRp 2; [1995] 1 VR 10, 15 (emphasis added, citations omitted).
4. [7] Ibid 28 (emphasis added).
5. [8] Ibid 40 (emphasis added, citations omitted).

[13] [1987] VicRp 77; [1987] VR 929.

[14] Reliance was placed on Haughton v Smith [1975] AC 476 and R v Bugg [1978] VicRp 25; [1978] VR 251.

[15] [1987] VicRp 77; [1987] VR 929, 935 (emphasis added).

[16] [2013] VSCA 221; (2013) 279 FLR 119 ('Weng').

[19] Weng [2013] VSCA 221; (2013) 279 FLR 119, 134-5, [61].

[20] Ibid 136-7 [64]-[66] (citations omitted).

[21] [2013] NSWCCA 291 ('Inegbedion').

[22] [2013] VSCA 221; (2013) 279 FLR 119.

[23] Inegbedion [2013] NSWCCA 291, [16]-[17].

[24] [2009] NSWCCA 238; (2009) 76 NSWLR 1 ('Onuorah').

[26] [2013] VSCA 221; (2013) 279 FLR 119.

[27] [2009] NSWCCA 238; (2009) 76 NSWLR 1.

[28] [1987] VicRp 77; [1987] VR 929.

[31] [2013] VSCA 221; (2013) 279 FLR 119.

[32] [1987] VicRp 77; [1987] VR 929.

[34] [2013] VSCA 221; (2013) 279 FLR 119.

[35] [1987] VicRp 77; [1987] VR 929.

[37] [1987] VicRp 77; [1987] VR 929.

[38] [2013] VSCA 221; (2013) 279 FLR 119.

[39] [2009] NSWCCA 238; (2009) 76 NSWLR 1.

[40] See Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207, 214-15.