See also R v El Azzi (2001) 125 A Crim R 113 and R v El Azzi [2004] NSWCCA 455.
26 Thus, in my opinion, both Britten and Mai were correctly decided.
27 In Britten, the charge was one of attempting to import prohibited imports into Australia contrary to the Customs Act 1901 (Cth). The defendant believed he was importing, and intended to import, cannabis; but the substance which he believed to be cannabis was found to be another substance which was not a prohibited import. It was held that, in order to prove the statutory crime of attempting to import prohibited imports into Australia, what the Crown had to prove was that the accused intended to import something which was, as a matter of law, a prohibited import, as he knew, and that in pursuance of that intention he did acts sufficiently proximate to the intended commission of the crime; so that the magistrate had been in error to dismiss the information in reliance on Haughton v Smith [1975] AC 476.
28 In Mai the defendant was charged with attempting to obtain possession of heroin illegally imported into Australia. Heroin illegally imported into Australia had been removed from a suitcase by Federal Police and they had substituted plaster of Paris; and the defendant came to be in possession of plaster of Paris, believing it to be heroin. The Court of Criminal Appeal held he was properly convicted.
29 Mr Stratton submitted that Mai was distinguishable from the present case, because in Mai the substitution did not take place until after the heroin arrived in Australia; so that there was in truth a substance illegally imported into Australia, possession of which the accused attempted to obtain.
30 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. (However, as appears below, the distinction between the facts of this case and those of Mai could possibly have significance in relation to the defence provided by s 307.6(5) of the Code.)
31 Mr Stratton also submitted that the approach supported by Mai would produce unsatisfactory results:
16. Consider the case of a man who marries a woman believing that her husband is still alive. In fact the husband has recently died (see Haughton v Smith [1975] AC 476 at 500). On the reasoning of Regina v Mai , the man could be convicted of attempted bigamy.
17. Consider the case of a man who has sexual intercourse with a girl who he believes is under the age of 16, whereas in truth she is over the age of 16. On the reasoning of Regina v Mai, he could not be convicted of sexual intercourse with a child under the age of 16 (s.66C), but he could be convicted of attempting to have sexual intercourse with the girl (see Regina v Barbouttis at 261, per Gleeson CJ).
18. Consider the case of a man who takes an umbrella from an umbrella stand, intending to steal it, and believing it not to be his own. However, it turns out that in truth the umbrella belonged to him (see Regina v Collins (1864) 9 Cox CC 497). On the reasoning of Regina v Mai, he would be guilty of attempted larceny even though objectively no larceny had taken place.
32 I accept that, on the approach supported by Mai, there could be conviction for attempt in these three cases; although it does seem unlikely that in cases such as these there would be evidence capable of proving intent beyond reasonable doubt.
33 So far, I have dealt with the question of attempt on the basis of case law; but in the present case it must be determined on the basis of s 11.1. In my opinion, the effect of s 11.1(2), (3) and (4)(a) is no different from that of the general law, as expounded in the cases and judgments referred to above which I consider to be correct. Thus, subject to what I say about s 11.1(6), a conviction for attempt was available in this case.
34 However, a question arises whether s 11.1(6) has some different effect. Mr Stratton referred the Court to a publication of the Commonwealth Attorney-General's Department entitled "The Commonwealth Criminal Code - a Guide for Practitioners", which at pages 241 and 243 contains the following commentary on s 11.1(6):
Most applications of the principle are obvious: self defence, duress and sudden or extraordinary emergency will excuse both assault and attempted assault. If Parliament chooses to impose a limitation period for prosecution of an offence, the limitation applies equally to the pendant offence of attempt. Applications of the principle cause no problem in these cases because the distinction between defences or procedural rules and the elements of an offence are obvious. Applications of the principle in cases involving "limitations" or "qualifying provisions" require more care. Take a simple example first of all. In state and territorial jurisdictions the traditional form of the prohibition against unlawful abortion takes the following form: "Whosoever, being a woman with child, unlawfully administers to herself...&c." A woman who took an abortifacient drug in the mistaken belief that she was pregnant cannot be held guilty of the offence of course: pregnancy is an essential circumstantial element of the offence. Suppose she is charged instead with an attempt to commit the offence. It seems highly unlikely that the common law would permit conviction of an attempt in these circumstances. Since the attempt and completed offence are equally punishable at common law, the legislative rationale for restricting the offence to pregnant women applies with equal force to the attempt. If a provision such as s 11.1(6) were to govern the interpretation of the offence it would reinforce that inference of legislative intention. The pregnancy limitation is a "limitation or qualifying provision" which governs the offence and the attempt alike. The Commonwealth Customs Act provisions on narcotic drugs contain a similar, though more contentious example. There is no doubt that a person who packs a parcel of oregano in a hollow walking stick and brings it into Australia, in the mistaken belief that it is cannabis, is guilty of an attempt to import cannabis, a prohibited import; impossibility of success is no answer to a charge of attempted importation. Suppose, however, that this incompetent is charged with one of the offences of attempted possession of a prohibited drug contrary to s233B(1). In each of these possession offences, conviction of the principal offence requires proof that the drug was "imported into Australia in contravention of this Act". That limitation or qualification on liability for the principal offence should equally apply to the attempt so as to bar the possibility of conviction. The legislative rationale for the exception is the same, whether the attempt, or completed offence is in issue.
35 This discussion raises the question of whether the absence of an element of an offence could give rise to a defence, limitation or qualifying provision that applies to the offence, within s 11.1(6). In my opinion, generally it could not: those expressions in s 11.1(6) are apt to refer to matters extrinsic to the elements of the offence, rather than to the requirement on the prosecution to prove all the elements of the offence.
36 Where it is only a limited class of persons who can commit the offence, such as a woman with child, then it is arguable that this is not so much an element of the offence as a limitation or qualifying provision; in which case, arguably, a person who is not a woman with child could not be guilty of an attempt in the circumstances described in the quoted passage. Another example might be an offence that can only be committed by breaching something of the nature of an apprehended violence order: if a person mistakenly believes that he or she is affected by such an order, intends to breach that (supposed) order, and does an act that would be in breach of the order if it existed, it is arguable that this would not amount to a criminal offence of attempting to breach an apprehended violence order, because the limitation of the offence to the particular class of persons is a limitation or qualifying provision within s 11.1(6). (Indeed, I am inclined to think the same would apply at general law: where what is made criminal is not conduct by persons at large but only conduct by a limited class of persons, it is arguable that it is not intended that attempts other than by persons who are in fact within the limited class should also be criminal.)
37 As regards s 233B of the Customs Act, that section, as it was in 1975, was considered in Beckwith v The Queen [1976] HCA 55; (1976) 135 CLR 569; and it was held that s 233B disclosed an intention that an attempt to commit an offence against s 233B(1)(ca) should not be an offence. At that time, s 233B(1)(ca) provided that any person who without reasonable excuse (proof of which shall lie upon him) has in his possession any prohibited imports to which this section applies which are reasonably suspected of being imported into Australia in contravention of this Act, shall be guilty of an offence. A defence to such a charge was provided by s 233B(1B) if "the person proves that the goods were not imported into Australia or were not imported into Australia in contravention of this Act".
38 If (contrary to the decision in Beckwith) there could have been a charge of attempting to commit an offence against s 233B(1)(ca) as it then was, then the defence under s 233B(1B) would in my opinion have been a defence as the word is used in s 11.1(6), and thus according to s 11.1(6) a defence to a charge of attempt. However, if "importation into Australia in contravention of this Act" is truly an element of an offence (rather than a defence of the kind provided by s 233(1B) as it then was), then in my opinion the absence of that element would not be a defence, limitation or qualification that applies to the offence, within s 11.1(6). To that extent, I would disagree with the comment towards the end of the quotation set out above.
39 However, the above discussion points to a possible significance of s 307.6(5), which in my opinion is plainly a defence within s 11.1(6) and thus would apply to attempts to commit a s 307.6 offence.
40 It could be argued that it was in this case established that there was no border-controlled drug that the appellant knew was unlawfully imported. Thus, it could be argued, the appellant fell within the words of s 307.6(5) in that he "did not know that the border-controlled drug was unlawfully imported"; so that by reason of s 11.1(6), the appellant had a defence to the charge of attempt. It could be contended that while the appellant believed and intended that the package received in Australia contained a border-controlled drug that was unlawfully imported, he did not and could not know this, because it was not the fact. It could be contended that the appellant also believed and intended that the border-controlled drug that had been seized in Venezuela was unlawfully imported into Australia, but for the same reason he did not and could not know this.
41 The contrary position is that s 307.6(5) is directed to, and limited to, the situation where there is in fact a border-controlled drug that has been unlawfully imported, but the accused proves he or she did not know this fact.
42 In support of the availability of s 307.6(5) as a defence in the present case, it can be said that the literal requirements of s 307.6(5) are met in the way set out above, with the accused's onus of proof being satisfied by evidence led in the prosecution case; that while in its application to a substantive offence under s 307.6, s 307.6(5) operates in a situation where there is in fact a border-controlled drug that has been unlawfully imported, that does not mean it can only operate in that way in its application to an attempt; and that any doubt about the application of s 307.6(5) should be resolved in favour of the accused (cf Beckwith at 576-577, R v Adams [1935] HCA 62; (1935) 53 CLR 563 at 567-568).
43 However, in my opinion the better view (which I adopt) is that s 307.6(5) is not available as a defence in a case like the present, for the following reasons:
(1) The language of s 307.6(5), in the context of s 307.6 as a whole, strongly implies that it operates only where there is in fact a border-controlled drug that has been unlawfully imported, but the accused did not know this: that is, that it should be read as if it applied if the accused "did not know that the border-controlled drug (that is, the border-controlled drug which was in fact unlawfully imported) was unlawfully imported".
(2) This implication has strong confirmation from the consideration that, under s 307.6(5), it is the accused who must prove lack of knowledge, whereas exclusion of "knowledge" because of the non-existence of the fact can arise (as it did in this case) from the prosecution evidence.
(3) The whole rationale of the s 307.6(5) defence has to do with lack of mens rea, which would not apply in relation to a case such as the present.
44 For those reasons, in my opinion, the appeal against conviction should be dismissed.