Pereira v Director Of Public Prosecutions

(b) on or about 1 August 1984 she, without reasonable excuse, had in her possession a quantity of cannabis resin not less than the traffickable quantity which had been imported into Australia in contravention of the Customs Act.

An appeal against those convictions was dismissed by the Court of Criminal Appeal of the Supreme Court (NSW). The applicant now seeks an extension of time within which to file and serve application for special leave to appeal from that decision.

The charges related to the same body of cannabis resin. The resin was contained in cricket balls and a jewellery case which, with other items, were in a parcel posted from Bombay, India. The parcel was addressed to Mr and Mrs J Caulfield, 14 Foxall Street, Elanora Heights, New South Wales, 2101. On 1 August 1984 the parcel was delivered to that address which had then been occupied by the applicant and her young son for some six weeks. The applicant took delivery of the parcel, but had not opened it when police executed a search warrant at her premises a little over an hour later.

The substantial issue in the trial was whether the applicant knew that cannabis resin was secreted in the parcel. Counsel for the applicant conceded that evidence as to her actions at the time of and subsequent to the delivery of the parcel was sufficient to support an inference of such knowledge. The issues raised by this application are whether it was permissible for the jury to be directed on "wilful blindness" and, if so, the adequacy of the direction given by the trial judge.

The jury was separately directed on the question of knowledge as it related to each charge. On the first charge of being knowingly concerned in the importation, the jury was instructed that if there was

evidence that would suggest to you as a rational inference that the person knew that the parcel was being imported and that it was going to contain or did contain, or was likely to contain prohibited imports in the nature of narcotic goods, then the proof of knowledge would be made, if you were satisfied with that inference being the only rational inference that you could come to.

On the charge of possession the jury was instructed of the necessity for the prosecution to prove knowledge. The trial judge indicated the matters upon which the prosecution relied to establish knowledge and added:

Of course, the law knowing how difficult it is to prove knowledge, sometimes does allow a jury to consider the fact that somebody has acted with wilful blindness. So the law says that if the suspicions of a recipient of a parcel from overseas would be aroused and the person refrains from making any enquiries for fear he might learn the truth, then it is wilful blindness and can be treated as equivalent to knowledge of the contents. So if there is something suspicious about the receipt, or of the appearance of the goods, the jury may well be satisfied that if you are so minded beyond any reasonable doubt that the recipient wilfully shut his eyes, or her eyes to the possibility that the parcel was containing narcotics, for that reason you can treat that as being guilty knowledge and the necessary guilty knowledge for possession.

It was submitted on behalf of the applicant that, as both charges were concerned with the same body of cannabis resin and the same issue - knowledge that cannabis resin was secreted in the parcel - was raised on each charge, the direction as to "wilful blindness" necessarily operated to taint the direction as to knowledge on the first charge.

Each charge required proof of knowledge that cannabis resin was or was likely to be secreted in the parcel: see generally He Kaw Teh (1985) 157 CLR 523; 15 A Crim R 203. But on the first charge it was necessary that that knowledge exist before or in the course of the process of importation, whereas on the second charge it was only necessary that that knowledge exist at a time between receipt of the parcel and arrest. It was thus possible, contrary to the submissions made on behalf of the applicant at all stages of these proceedings, for the jury to acquit on the first charge and to convict on the second charge. In these circumstances it was prudent for the trial judge to give, as his Honour did, separate directions on the issue of knowledge as it related to each charge. The separate directions having been given and the direction on "wilful blindness" having been expressly limited to the charge of possession, it is not possible for the applicant to maintain that the direction as to "wilful blindness", even if wrongly given on the charge of possession, deprived the applicant of a real chance of acquittal on the first charge.

The conclusion that the direction on "wilful blindness" did not taint the jury's deliberations on the first charge is sufficient to dispose of the present application. This is so because, although it was open to the jury to be unsatisfied as to the knowledge necessary to establish the first charge and to be satisfied as to the knowledge necessary for the second charge, once it was satisfied of the knowledge requisite for the first charge it must also have been satisfied of the knowledge necessary for the second charge.

Although the application must fail it is nevertheless appropriate that some observations be made on the direction relating to "wilful blindness". In Bahri Kural (1987) 162 CLR 502; 29 A Crim R 12 it was emphasised (at 505, 511-512; 13-14, 18-19) that in this area it is important not to transform matters of fact into propositions of law. That case was concerned not with what constituted "knowledge" as a distinct element of an offence but with the unspecified requirement that the accused had acted with mens rea or a guilty mind. It was pointed out in the joint judgment of Mason CJ, Deane and Dawson JJ (at 504; 13) that, depending upon the nature of the particular offence, "the requirement of a guilty mind may involve intention, foresight, knowledge or awareness with respect to some act, circumstance or consequence." Their Honours concluded (at 504-505; 13) that actual knowledge or awareness of the presence of the particular substance was not an essential element in the guilty mind required for the commission of the offence involved in that case, namely, the offence of importing a prohibited import.

Even where, as with the present charges, actual knowledge is either a specified element of the offence charged or a necessary element of the guilty mind required for the offence, it may be established as a matter of inference from the circumstances surrounding the commission of the alleged offence. However, three matters should be noted. First, in such cases the question remains one of actual knowledge: Giorgianni (1985) 156 CLR 473 at 504-507; 16 A Crim R 163 at 186-189; He Kaw Teh at 570; 237. It is never the case that something less than knowledge may be treated as satisfying a requirement of actual knowledge. Secondly, the question is that of the knowledge of the accused and not that which might be postulated of a hypothetical person in the position of the accused, although, of course, that may not be an irrelevant consideration. Finally, where knowledge is inferred from the circumstances surrounding the commission of the alleged offence, knowledge must be the only rational inference available. All that having been said, the fact remains that a combination of suspicious circumstances and failure to make inquiry may sustain an inference of knowledge of the actual or likely existence of the relevant matter. In a case where a jury is invited to draw such an inference, a failure to make inquiry may sometimes, as a matter of lawyer's shorthand, be referred to as wilful blindness. Where that expression is used, care should be taken to ensure that a jury is not distracted by it from a consideration of the matter in issue as a matter of fact to be proved beyond reasonable doubt.

There is a further matter which warrants mention. The prosecution relied, although not exclusively, upon the possession by the applicant of the cannabis resin after its delivery to her as involvement in its importation. In so far as the jury might have relied on that possession as an element of the first charge and as the actus reus of the second charge the applicant may have sustained two convictions for the one act. Whether or not this be so, if both charges relate to the one set of facts and the only issue appears to be the accused's knowledge of what is in his possession, the preferable course is to charge the second count in the indictment as alternative to the first count: cf Router (1977) 14 ALR 365 at 377. However, these issues need not be further explored. No point was taken despite the matter having been raised in the course of argument in this Court. That may have been because the sentence imposed on the second count was made concurrent with that imposed on the first count.

As there is no basis for disturbing the order of the court below, the appropriate course is to dismiss the application for extension of time within which to file and serve application for special leave to appeal.