Plaintiff v Defendant

...

(c) without reasonable excuse (proof whereof shall lie upon him) has in his possession any prohibited imports to which this section applies which have been imported into Australia in contravention of this Act;

...

shall be guilty of an offence."

"For the purposes of an offence against paragraph 1(c) ... absolute liability applies to the physical element of circumstance of the offence, that the prohibited imports have been imported into Australia in contravention of this Act."

The Criminal Code Act 1995

4 Chapter 2 of the Criminal Code Act 1995 ("the Code") applies to offences under the Act as from 15 December 2001. Thus, the Code applies to the prosecution of the accused of the offence of possession of prohibited imports under the Act, the offence in question being alleged to have occurred in April 2003.

5 The Code provides that an offence to which it applies consists of physical elements and fault elements.[1] The Code distinguishes between the physical and the fault elements of offences. Physical elements are specified in the Code as being conduct, or a circumstance in which conduct occurs, or a result of conduct.[2] Fault elements are specified in the Code as being intention, or knowledge, or recklessness, or negligence.[3]

6 Section 233B(1)(c) does not specify a fault element.

7 Where the law creating the offence fails to specify a fault element for a physical element that consists only of conduct, intention is the relevant fault element.[4] However, where the law creating the offence does not specify a fault element for a physical element that consists of a circumstance, or a result, as distinct from conduct, then recklessness is the fault element for that physical element.[5]

The Prosecution submission in relation to the elements of Possession

8 The prosecution contends that there are three elements which must be proved. First, it must prove the physical element of possession of "a thing". This physical element, is conduct and thus the fault element under the Code is intention. The second element which must be proved, it is contended, is that "the thing" is a prohibited import to which s.233B of the Act applies. The prosecution submits that by reason of this physical element being a circumstance, recklessness is the relevant fault element. It is submitted further that the third element to be proved is that the prohibited import to which s.233B of the Act applies, must have been brought into Australia in contravention of the Act, and that if that physical element of circumstance is proved, absolute liability applies by reason of the provisions of s.233B(1AB) of the Act.

9 The prosecution submits that there is a distinction between the offence of importation of prohibited imports into Australia (the importing offence) and the offence of possession of prohibited imports (the possession offence) under the Act. The prosecution accepts that it is now established that the importing offence under s.233B(1)(b) of the Act is a single element offence consisting of the physical element of conduct only.[6] However, it is submitted by the prosecution that the distinction is that the possession offence is not comprised simply of a single physical element as is the importing offence (i.e. of importation of a prohibited import).

10 In support of this submission the prosecution relies upon the statement of Brennan J in He Kaw Teh[7] when he said in reference to the then applicable s.233B(1)(c) of the Act:

"The offence created and defined in par. (c) can be distinguished from the offence of importing in three significant respects. First, 'possession' is a term which implies a state of mind with respect to the thing possessed whereas importing does not. Secondly, the thing possessed must be not only narcotic goods but narcotic goods 'which have been imported into Australia in contravention of this Act', an element which is arguably a mere circumstance attendant on possession of narcotic goods. Thirdly, a person who would otherwise be criminally liable for offence under par. (c) is entitled, on proof by him that he had a reasonable excuse, to be acquitted. These three features warrant separate consideration."

11 The prosecution submits that it is clear that the language of the provisions of part 2.2 of the Code entitled "Elements of the Offence" draws heavily upon the judgment of Brennan J in He Kaw Teh. The prosecution relies upon the conclusion of Brennan J, that the possession of narcotic goods which have been imported into Australia is "a mere circumstance attendant on possession of narcotic goods". On that basis it contends that by reason of s.5.6(2) of the Code, which provides that recklessness is the fault element for the physical element of circumstance where no fault element is specified, it does not need to prove that the accused intended to possess a prohibited import, in this case a narcotic substance. It needs only to prove that the accused was reckless as to whether the thing possessed was a narcotic substance.

12 Thus, as I understand the basis upon which the prosecution puts the argument, an accused person would be guilty of the possession offence if he intentionally possessed the "thing", being aware that there was a substantial risk that "the thing" was a narcotic substance.

The Defence Submissions

13 Mr Meredith of Counsel for Lam, and Mr Georgiou of Counsel for Teng, have each made submissions which have been adopted by Mr Shwartz of Counsel who appears for Lee, as to the elements of the offence of possession under s.233B of the Act.

14 Mr Georgiou contends that the prosecution submission that the offence of possession includes a physical element of circumstance should not be accepted. He submits that the offence of possession is broken up into two physical elements, not three as submitted by the prosecution. He argues that the first physical element is possession of a prohibited import to which the section applies, in this case narcotic substances. The second physical element he contends is the fact of the importation into Australia of the narcotic substance, which physical element, by reason of s.233B(1AB) of the Act is subject to the application of absolute liability. The first physical element is one of conduct alone he submits, and thus by operation of the Code, intention is the fault element.

15 Mr Georgiou of Counsel further submits that whilst it is true that in He Kaw Teh Brennan J said that the offence defined in s.233B(1)(c) can be distinguished from the offence of importing in three significant respects, his Honour also said:[8]

"To require knowledge of the existence and nature of narcotic goods that a person has in his possession gives to par. (c) an operation that is, in practical respects, in harmony with the operation of par. (b)."

16 Thus, Mr Georgiou submits, the offences of importation and possession both have a requirement of knowledge, and if recklessness were to be an element of knowledge as submitted by the prosecution that would be something less than knowledge. Mr Georgiou relies further on the statement of Brennan J in He Kaw Teh that:

"It is not possible to construe par. (c) as containing two elements - the existence of an object and its nature - and to require knowledge of only one of those elements ... The offence is committed only if the supposed offender knows that the object possessed is, or is likely to be, narcotic goods. ... The better view is stated by Aickin J in Williams v The Queen [1978] HCA 49; (1978) 140 CLR 591 at p.610:

'It is necessary to bear in mind that in possession there is a necessary mental element of intention, involving a sufficient knowledge of the presence of the drug by the accused. No doubt in many cases custody of an object may supply sufficient evidence of possession, including the necessary mental element, but that is because the inference of knowledge may often be properly drawn from the surrounding circumstances'." [9]

17 Thus, it is submitted by Mr Georgiou that Brennan J approved the above passage from Williams v The Queen which speaks of intention being the necessary mental element of the offence of possession. Mr Georgiou submits that had the Legislature intended to relax the required standard of knowledge, to one of recklessness, when the Legislature amended s.233B of the Customs Act after the enactment of the Code it would have done so in clear language.

18 Likewise, Mr Meredith of Counsel on behalf of Lam submits that the prosecution must establish that the accused at the relevant time had in his possession narcotic goods which had been imported into Australia and that such possession must be intentional. He submits that when the Code was introduced amendments were made to s.233B of the Customs Act, the effect of the amendments being to proscribe the fault element of absolute liability to the physical element of the circumstance of the offence that the prohibited goods had been imported into Australia. The amended section specified no fault element for the physical element of conduct and thus he submits intention is the fault element which must be proved by the prosecution. In this regard, Mr Meredith referred me to the explanatory memorandum to the amendments made to s.233B in 2000.[10] He notes that in the General Outline of the memorandum it is stated that:

"The amendments are to ensure that the relevant offences continue to have much the same meaning and to operate in the same manner as they do at present."

19 Furthermore, in dealing specifically with s.233B of the Act the memorandum states:

"These offences have attracted notable litigation, including the landmark High Court cases of He Kaw Teh v The Queen[11] and Kingswell[12]. While these cases are critical of the provision, the aim of this Bill is to make the provision work as it does now once the Criminal Code principles apply."

20 The memorandum dealt with the application of absolute liability in s.233B(1A) and stated: [13]

"... it is not necessary to prove that a person knew that the goods in his or her possession had been imported into Australia, but it is a defence if the person proves lack of knowledge."

21 This statement is accompanied by a further statement referring to absolute liability under s.233B(1A). [14]

"Clearly these are matters that describe the limits on Commonwealth jurisdiction in the regulation of drug trafficking and are in no way concerned with the actual culpability of the defendant under the Criminal Code and as under the existing law, the prosecution still has to prove the defendant intended to possess or convey prohibited imports."

22 Mr Meredith relies further upon the penal nature of the provision and submits that there is ambiguity and that the principles of interpretation referred to in Beckwith v The Queen[15] are applicable.

Is recklessness the fault element for the physical element of possession of a prohibited import?

23 It is apparent that if s.233B(1)(c) is construed according to the Code as is contended by the prosecution, the mental element required to be proved in respect of a possession offence under the section is different from what it was before the Code became applicable to the Act. The cases dealing with possession offences before that concentrated upon the existence of an intention to possess "the thing" together with proof of knowledge that the thing was, or contained, a narcotic drug. See R v Saad [16].

24 Further, and in relation to proof of knowledge, Brennan J said:

"On a count of possession under par. (c) the onus is on the prosecution to prove that the accused at the time when he had physical custody or control of narcotic goods, knew of the existence and nature, or of the likely existence and likely nature, of the narcotic goods in question and that onus is discharged only by proof beyond a reasonable doubt. Again, dependent on the circumstances, proof that narcotic goods are in the physical custody or control of an accused may be sufficient to discharge the onus of proving the knowledge which is an element of the offence." [17]

25 However, as much as the prosecution relies upon the statement of Brennan J referred to in paragraph 10 above, the prosecution contends that reliance upon pre Code cases is otherwise of assistance in limited circumstances only. It is submitted that in interpreting the provisions of a code, recourse should not normally be had to what the law was before the inception of the Code. It submits that that principle was established in The Governor and Company of the Bank of England v Vagliano[18] by Lord Herschell when he said: [19]

"I think the proper course is in the first instance to examine the language of the statute and to ask what is its natural meaning, uninfluenced by any considerations derived from the previous state of the law, and not to start with inquiring how the law previously stood, and then assuming that it was probably intended to leave it unaltered, to see if the words of the enactment will bear an interpretation in conformity with this view."

26 The above principle upon which the prosecution relies was approved by Dixon and Evatt JJ in Brennan v R[20] when they said in relation to a provision of the Western Australian Criminal Code:

"But it forms part of a code intended to replace the common law, and its language should be construed according to its natural meaning and without any presumption that it was intended to do no more than re-state the existing law. It is not the proper course to begin by finding how the law stood before the Code, and then to see if the Code will bear an interpretation which will leave the law unaltered."

27 Nevertheless, it is clear that it is permissible to refer to the common law in certain circumstances. In Stuart v The Queen[21] Gibbs J referred to the above passage expressed in Brennan v The King and said:[22]

"This passage does not mean that it is never necessary to resort to the common law for the purpose of aiding in the construction of the Code - it may be justifiable to turn back to the common law where the Code contains provisions of doubtful import."

28 The High Court in R v Barlow[23] gave consideration to the means by which a code should be interpreted. Kirby J[24] summarised a number of "the rules which have been established for the construction of provisions of a code". First, he said that courts must give the language of a code like other legislation its natural meaning and if that meaning is clear and unambiguous it must be given effect. He said that it would be only where the meaning is doubtful either because of the inherent ambiguity of the language used or because the words used have previously acquired a technical or special meaning that a court will look externally to other sources. Secondly, he said that the meaning of a code "is to be ascertained". He said, "Thus the first loyalty is to the code" but he said that "in certain circumstances regard may be had to the pre-existing common law and to parallel developments in non-code jurisdictions". In relation to this matter he said, "Where there is ambiguity and where alternative constructions of a code appear arguable, this court has said that it will ordinarily favour the meaning which achieves consistency in the interpretation of like language in the codes of other Australian jurisdictions". A fourth principle was said by Kirby J to be the importance of reading a particular phrase or word "in the context of the Code taken as a whole".

29 Thus it is submitted by the prosecution that the common theme from the decided cases is that the Code should be given its natural meaning derived from its own context. The Code is not to be taken as merely re-stating the pre-existing common law, and the first step is to examine the language of the document rather than to establish what the pre-existing common law was, and then attempt to make the Code fit with what the law was. I accept that such an approach is required of me.

30 However, in my view the language of the Code in relation to the issue of possession of a prohibited import is far from being entirely clear. This view is supported by others who have had cause to consider the Code, although to my knowledge it has yet to be judicially considered by any superior court. In a paper given by Howie J headed "Unravelling the Commonwealth Criminal Code"[25] his Honour (who it should be noted chaired the Model Criminal Code Officers Committee from 1994 to 2001) said:

"The Commonwealth Criminal Code operates on all federal offences, whether within the Code or not. In particular Chapter 2, which deals with the principles of criminal responsibility, specifies the elements that go to make a criminal offence and generally the manner in which an offence-creating provision should be construed. However, there may be some room for judicial intervention in respect of defining the physical elements of an offence, which may affect the applicable fault element for the offence or an element of it. An example of this can be seen in a possible interpretation of some offences under the Customs Act by applying the provisions of Chapter 2 of the Code contrary to the view taken of similar offences by the majority of the High Court in He Kaw Teh v The Queen."

31 In his paper, his Honour raised the question of construction of s.233B(1)(c) when he said:

"A question of construction arises ... when one considers the ... physical element of the offence 'having in possession any prohibited imports to which the section applies'. The issue arises as to whether there is one or more than one physical element present in that phrase, that is a sole physical element of conduct or a physical element of conduct with an accompanying physical element of circumstances. Brennan J in He Kaw Teh at 571 referred to this as 'one of the intractable difficulties in the process of identifying the particular category of mens rea that applies to the respective external elements of an offence'."

" ... Possession of an item is a state of affairs and, therefore 'conduct' for the purposes of a physical element under the Code. Sub-section 233B(1)(c) does not state a fault element in relation to this physical element so that sub-section 5.6(1) applies and intention is the fault element. The prosecution would have to prove that the accused intended to have possession of the particular item, be it a suitcase full of objects, a hollow candlestick, or powder in plastic bags. On this analysis, because there is no stated fault element attached to the physical element of circumstance, that the item possessed was a prohibited import, the fault element will be construed as recklessness. The accused would then be guilty if he intentionally possessed the item being aware that there was a substantial risk that the item was a prohibited drug and having regard to the circumstances known to him, it was unjustifiable to take that risk."

"The construction of 233B(1)(c) to which I have referred above is one which has regards to the terms of the criminal Code, the context in which the offence is created, the purpose of the provision and the result of the construction. ... Applying my ordinary man test to what is the conduct involved, the result is that the conduct observed is being in possession of the item in which the prohibited import is contained. Whether an item is a prohibited import for the purposes of the section can vary from time to time depending on what is prescribed to be a prohibited import. Therefore, the circumstance that a particular item is a prohibited import within the terms of the section can change from time to time, but the conduct remains the same."

34 Howie J observed that his interpretation of s.233B(1)(c) in the above passages, was to some extent the interpretation favoured by Dawson J in He Kaw Teh whereby Dawson J expressed the view that possession was proved if only the most limited element of knowledge was present, that being knowledge of the item possessed and not its nature as a narcotic drug.[26] However, Howie J acknowledged that his interpretation was not consistent with the way the section had been interpreted previously and that in particular Brennan J had rejected such an interpretation of s.233B(1)(c) in He Kaw Teh. Moreover, and of significance for current purposes, is the following statement appearing in the paper prepared by Howie J:

"However, the Commonwealth Parliament has, notwithstanding the existence of the Criminal Code, re-drafted the provision without making it clear, as it could have done, that the offence contained two physical elements in relation to the possession of a prohibited import. In light of the history of the section and its interpretation at common law, it might be taken to have been content to have the new provision interpreted in the same way. Such an interpretation and the application of the Criminal Code produce a result that is little different from that under the previous provision. If the physical element of conduct in the offence is 'having possession of a prohibited import to which this section applies' as the majority held in He Kaw Teh, the relevant fault element is intention. By sub-section 5.2(1) a person has intention in relation to conduct if the person 'means to engage in that conduct'. Therefore a person is guilty of the offence under sub-section 233B(1)(c) if he or she means to have possession of a prohibited import to which the section applies. In such a case it does not matter that he or she does not know positively that the item is or contains a narcotic drug. Belief of the existence of the narcotic drug would be sufficient, providing that the accused means to import or possess a narcotic drug. As is the case under the previous provision, the accused's intention (or what he meant to do) can be proved by what he knew was likely to be the case in relation to the existence of a narcotic drug."

35 The learned authors of Watson and Watson Australian Criminal Law Federal Offences[27] have also given consideration to the matter. They state:

"Sub-section 233(1AB) provides that absolute liability applies to the physical element of circumstance that the prohibited imports have been imported into Australia in contravention of the Customs Act 1901. But the Customs Act 1901 is otherwise silent on what are the fault elements for the other physical elements of this offence. The question then, is what those physical elements are and how they should be characterised.

On one view having in possession any prohibited imports to which the section applies comprises two physical elements the first being an element of conduct, that is being in possession of something and the second being the circumstance in which the conduct of possession occurs, namely, that the item possessed was a prohibited import to which the section applied. If this is so then the default element for the physical element of possession would be intention and the default fault element for the physical element of circumstance (the thing possessed being prohibited imports of the relevant kind) would be recklessness. On such an interpretation the prosecution would only need to prove recklessness as to a defendant's state of mind in relation to the nature of the goods possessed rather than intention. This is contrary to the interpretation by the courts of s.233B(1)(c) of the Customs Act 1901 prior to the commencement of the Criminal Code.

In view of the Commonwealth Parliament's re-drafting of s.233B(1)(c) of the Customs Act 1901 to harmonise it with the Criminal Code without clearly specifying that possession connotes the two physical elements referred to above, the better view appears to be that possession comprises one physical element of conduct, that being having custody and control of a prohibited import as defined. As there is no fault element specified for this physical element the applicable default element is intention. Such an interpretation is consistent with the previous interpretation of s.233B(1)(c) at common law. Thus a defendant commits the offence if she or he means to possess a prohibited import to which the section applies. This is the fault element of intention as defined for a physical element that consists only of conduct. Proof that the defendant believed the thing possessed was a narcotic good would be relevant to proof of whether the defendant meant to possess a narcotic good. The same analysis applies to the offence of importing prohibited imports contrary to s.233B(1)(b) of the Customs Act 1901."

36 I consider that the argument advanced by the learned authors of Watson and Watson is correct. In particular the fact that Parliament redrafted s.233B(1)(c) of the Act to harmonise with the Criminal Code without making it apparent, as it could have done, that the offence contained two physical elements in relation to the possession of a prohibited import is a powerful argument that it did not intend to alter the common law approach to the section. This is all the more so in the circumstances of the history of the section, its interpretation at common law and the consideration given to the section by the Model Criminal Code Officers Committee. Moreover, the Explanatory Memorandum to the amendments to the Act made in 2000 supports such an argument.

37 Furthermore, R v Narongchai Saengsai-Or has now established that the importing offence is a single element offence consisting of the conduct of importing a prohibited import. As this case is not mentioned by either Howie J in his paper, nor in Watson and Watson, I conclude that the extracts from each publication set out by me above were written prior to the determination of that case. In my view, the same analysis applies to both the possession offence and the importing offence. Accordingly, in order to prove the possession offence under s.233B(1)(c) the prosecution must prove that the accused intended to have possession of a prohibited import to which the section applies, in this case a narcotic good. That is the first physical element. The second physical element is proof that the narcotic good has been imported into Australia, to which element absolute liability applies.

Proof of Intention

38 Furthermore and in any event, the prosecution submits that so far as the proof of intention is concerned, the pre Code law in respect of possession cases is consistent with the law expressed in importing cases. Mr Champion relies upon R v Saad[28] which case concerned possession of prohibited imports pursuant to the then provisions of the Act. He notes that R v Saad was decided by the High Court on the same day as R v Kural [29] which case related to the issue of proof of intention in relation to importing cases. Mason ACJ, Wilson, Brennan, Deane and Dawson JJ said:

"In a case such as the present where it is necessary to show an intention on the part of an accused to have in his possession a narcotic drug, that intent is established if the accused knew or was aware that an article which was intentionally in his possession comprised or contained a narcotic drug. That is not to say that actual knowledge or awareness is an essential element of the guilty mind required for the commission of the offence. It is only to say that knowledge or awareness is relevant to the existence of the necessary intent. Belief, falling short of actual knowledge, that the article comprised or contained a narcotic drug would obviously sustain an inference of intention. So also would proof of the possession of the forbidden drug in circumstances where it appears beyond reasonable doubt that the accused was aware of the likelihood, in the sense that there was a significant or real chance, that his conduct involved that act and he nevertheless persisted in that conduct. As a practical matter, the inference of mens rea or a guilty mind will ordinarily be irresistible in cases involving the possession of narcotic drugs if it is proved beyond reasonable doubt that the accused was actually in possession of the drug and that he was aware, at the time of the alleged commission of the offence, of the likelihood of the existence of the substance in question in his possession and of the likelihood that it was a narcotic drug."

39 Thus it is submitted that the reasoning of the High Court in He Kaw Teh and R v Kural and R v Saad with respect to the proof of intention is the same for both the importation and the possession offence. I accept that that is so.

[1] ss.4 and 5.

[2] s.4.1.

[3] s.5.

[4] s.5.6(1).

[5] s.5.6(2).

[6] R v Narongchai Saengsai-Or [2004] NSWCCA 108 at para 71-72.

[7] (1984-5) [1985] HCA 43; 157 CLR 523 at 585.

[8] At p.587.

[9] At p.586.

[10] Law and Justice Legislation Amendment (Application of Criminal Code) Bill 2000.

[11] [1985] HCA 43; (1985) 157 CLR 523.

[12] [1985] HCA 72; (1985) 159 CLR 264.

[13] Paragraph 741.

[14] Paragraph 742.

[15] [1976] HCA 55; (1976) 135 CLR 569 at 576 per Gibbs J.

[16] [1987] HCA 14; (1987) 70 ALR 667.

[17] At p.589.

[18] [1891] AC 107.

[19] At 144-145.

[20] [1936] HCA 24; (1936) 55 CLR 253 at 263.

[21] [1974] HCA 54; [1974] 48 ALJR 517.

[22] At 521.

[23] (1997) 93 A Crim R 113.

[24] At pp.136-137.

[25] A paper given by Howie J to the Criminal Law Section and Continuing Professional Development Program of the New South Wales Bar (undated).

[26] See p.601.

[27] Law Book Company loose leaf subscription service at 1-152/2 - 1/152/3.

[28] [1987] HCA 14; (1987) 70 ALR 667.

[29] [1987] HCA 16; (1987) 162 CLR 502.