Plaintiff v Defendants

1 Mr Faris of Senior Counsel for the Master of the Pong Su, Man Sun Song ("the Master") submits that if a quantity of heroin which was seized by police in Victoria on 16 April 2003 was at all relevant times prior thereto on board the Pong Su, as alleged, the act of importation occurred and was completed at the time and place when the ship first entered Australian waters.

2 There is evidence that on 7 April 2003 the Pong Su was within the 12 mile territorial limit of Australia near Shark Bay in Western Australia. Thus it is the submission of Mr Faris that the importation occurred at the time the ship entered Australian waters off the coast of Western Australia.

3 The submission of Mr Faris is that importation is not a continuing offence. It is not, he submits, an offence that covers a span of time. He submits that the offence is completed once prohibited goods are brought into Australian territory with an intention to do so. That submission, he contends, is reinforced by the Criminal Code (Cth) which has as its conceptual basis the necessity for proof of "acts".

4 Section 80 of the Constitution provides that the trial on indictment of any offence against any law of the Commonwealth shall be by jury and shall be heard in the State where the offence was committed. Thus one consequence of the submission of Mr Faris would be that the trial of this matter must take place in Western Australia. A further consequence would be that any aiding, abetting, counselling or procuring of the import of heroin by the Master would have occurred prior to and at the point of entry into Australian waters, and not near Boggaley Creek in Victoria as alleged by the prosecution. It is apparent that resolution of this issue is required forthwith because of the consequences which might flow to the way in which the trial is to be conducted by all parties if the act of importation occurred at a time and place other than that alleged.

5 Section 233B(1)(b) of the Customs Act 1901 provides merely that a person who imports prohibited goods into Australia is guilty of an offence. The Act provides no definition of the word "import".

6 The Oxford Concise Australian Dictionary defines the word "import" as to "bring in (especially foreign goods or services) to a country".

7 In Lyons v Smart[1] Griffith CJ said in relation to the then s.233 of the Customs Act 1901:

"I think the word 'import' in sec. 233 means 'bring into the Commonwealth', and refers to some contravention of the Act committed in the act of bringing them in, and not to a contravention committed after the goods have been reported to the Customs. The term 'import' therefore, includes any case in which goods are brought into the country ... ."

8 However, the issue of whether goods are brought into a country when they are landed or when they cross a territorial line was not determined by him.

9 Of more direct relevance to the issue now before me is the decision of the High Court in R v Bull & Ors[2]. The case concerned the alleged importation of a large quantity of cannabis into Australia by ship. The prosecution case was that after entry into Australian territorial waters off the coast of the Northern Territory the ship was approached by a helicopter. It was alleged that a significant quantity of cannabis was then jettisoned from the ship. There was no evidence that the cannabis reached the Australian mainland, as it was never found. The accused persons were charged, and convicted, of the offence of importing a prohibited import into Australia, contrary to s.233B(1)(b) of the Customs Act 1958. Upon appeal of the conviction to the High Court, Barwick CJ said:

"The question is what is involved according to the Act in importation into Australia. On that I have expressed my firm conclusion. Accordingly, I am of opinion that, in order to commit the offence of importing created by s.233B(1)(b), the goods in question must have been brought within the limits of a port with the intention of landing them or must have been landed in Australia.[3]

"The question that next falls to be considered is whether goods are imported within s.233B(1)(b), or importation occurs within s.233A, when the goods are brought across a line three nautical miles from the coast of Australia. Section 233B(1) further provides (inter alia) that any person who '(b) imports, or attempts to import, into Australia any prohibited imports to which this section applies' shall be guilty of an offence. ...

No definition of 'import' or of any derivative of the word is contained in the Act. Its ordinary dictionary meaning is 'To bring in, or cause to be brought in (goods or merchandise) from a foreign country, in international commerce' (Oxford English Dictionary). In accordance with this meaning it has been said that the word 'import' in various sections of the Act means 'bring in to the Commonwealth': Lyons v Smart [1908] HCA 34; (1908) 6 CLR 143 at p 150; Election Importing Co Pty Ltd v Courtice [1949] HCA 20; (1949) 80 CLR 657 at p 662. On the basis of these statements, and on the assumption that Australia includes the surrounding sea at least to a distance of three nautical miles, it was submitted by the Crown that to bring goods across the three-mile limit is to bring them into Australia and therefore to import them. However, whether or not the sea within three nautical miles of the coast should be regarded as part of Australia for other purposes, it is, in my opinion, clear that goods are not imported simply by bringing them within the three-mile limit. It does not conform to ordinary usage to say that goods are imported into a place if they are brought there in the course of transit but with no intention that they should be unloaded there. For example, in ordinary understanding goods would not be thought to have been imported into Australia if they were carried through the waters within three miles of the Australian coast by a ship which did not put into port. Even if goods are brought into port they are not necessarily imported; for example, a cargo being carried from New England to New Zealand is not imported into Australia when the ship on which it is carried puts into an Australian port en route: Wilson v Chambers & Co Pty Ltd [1926] HCA 15; (1926) 38 CLR 131 at pp 138-139, 147, 150. Similarly, goods are not 'imported into a harbour' by being carried through the limits of the harbour and then landed elsewhere: Wilson v Robertson (1855) 24 LJQB 185. However, if goods are brought into port with the intention of being discharged there they are imported: Wilson v Chambers & Co Pty Ltd (1926) 38 CLR at pp 136, 147, 150; and see also Forbes v Traders Finance Corporation Ltd [1971] HCA 60; (1971) 126 CLR 429 at pp 443-444. The words of the Act themselves make it clear that the mere entry into port is not necessarily an importation. Section 30 provides (inter alia) that goods shall be subject to the control of Customs '(a) as to all goods imported - from the time of importation ...' However, s.31 provides (inter alia) that all goods on board any ship from parts beyond the seas shall be subject to the control of Customs while the ship is within the limits of any port in Australia. If goods were imported once a vessel entered port, the provisions of s.31 to which I have just referred would be quite unnecessary. Of course it is not necessary, to constitute an importation, that the goods should be brought into port - they may be landed in some other way. The remarks made by Isaacs J in Wilson v Chambers (1926) 38 CLR at p 139 with regard to s.68 appear to be a correct general statement of the meaning of importation for the purposes of the Act. After saying that 'the expression 'imported goods', in s.68, means goods which in fact are brought from abroad into Australian territory, and in respect to which the carriage is ended or its continuity in some way in fact broken', Isaacs J went on to say (1926) 38 CLR at p 139:

'The underlying concept appears to me to be as follows: Where, within our territory, some act takes place with regard to goods arriving from abroad, whether in fact they are or are not dutiable or prohibited, which in the absence of some new or further arrangement for carrying them away would make the place of arrival their destination and would therefore result in the goods remaining in Australia, then they are 'imported goods' and it is the duty of the 'owner' to comply with the provisions of s.68'.

In the present case the ship was intercepted before it reached its destination and before it had entered port or arrived at the place where it was intended to land the goods. For the reasons I have given, the goods were not imported when they were brought on the ship across a line three nautical miles from the coast and to the place of interception. The fact that the goods were thrown into the sea - with the obvious intention of abandoning and destroying them - did not in my opinion mean that they were thereupon imported.

The convictions under ss.233B(1)(b) and 233A therefore cannot stand and should be set aside under the power given by s.73(b) of the Judiciary Act."[4]

10 Mr Faris contends however that the case of R v Bull, and the cases referred to therein are not applicable to the present circumstance, first because the offence there under consideration was in terms different from the present s.233B(1)(b) of the Customs Act and secondly, because the enactment of the Criminal Code makes it clear that the offence in question is the actual act of importing. He submits that once the prohibited import enters Australian territory and there is an intention to land it in Australia, then the importation is complete.

11 The prosecution submits that R v Bull is applicable to the factual circumstances now before me.

12 In my view, the submission of the prosecution in relation to this issue is correct. Clearly, R v Bull is authority for the proposition that the prohibited import must have landed or at least entered the limits of a port for it to be so imported pursuant to s.233B(1)(b) of the Customs Act. The fact that there is a slight variation in the wording of s.233B(1)(b) as considered by the High Court in R v Bull, and the present legislation is not sufficient to justify a different approach by me. It may well be, as Mr Faris submits, that the person or persons responsible had the requisite intention to import the goods at the time they entered Australian waters, but the decision in R v Bull, in my view is clear and applies to the factual circumstances in this case.

13 It follows that I am bound to conclude that the alleged importation of the heroin took place at a point when the carriage of the heroin, in this case, by sea, ended. That point was reached, the prosecution alleges, at the time the heroin was unloaded from the Pong Su and landed on the beach at Boggaley Creek in Victoria. Accordingly I do not accept the argument made on behalf of the Master that the act of importation of heroin occurred and was completed in Western Australia at the time the Pong Su was first known to have entered Australian territorial waters.

Importation of heroin contrary to s.233B(1)(b) of the Customs Act 1901

14 The accused Ta Song Wong (Wong) is indicted with the offence of importing prohibited imports to which s.233B(1)(b) of the Customs Act 1901 applies. Written submissions were provided by the prosecution as to the elements of the offence, and by Mr Meredith of counsel on behalf of Yan Kim Lam (who is indicted with aiding, abetting, counselling or procuring the importation of heroin and with possession of a prohibited import). Mr Lewis of counsel made oral submissions on behalf of the accused man. Counsel for Chin Kwang Lee adopted the submissions made by Mr Meredith.

15 The Criminal Code Act (Cth) 1995, ("the Code") applies to the prosecution of each of the offences appearing on the indictment.

16 The Code distinguishes between proof of the physical elements and the fault elements of an offence in defining criminal responsibility.

17 Under the Code the physical elements of an offence may be conduct, a result of conduct, and a circumstance in which conduct, or a result of conduct occurs. (s.4.1).

18 The Code provides that the fault elements of an offence may be intention, knowledge, recklessness and negligence. (s.5.1).

19 Under the Code a person has intention with respect to conduct if he or she means to engage in that conduct. (s.5.2(1)). The Code does not adopt the common law concepts of actus reus and mens rea.

20 The fault element of knowledge requires proof of actual knowledge, in that a person has knowledge of a circumstance or a result if he or she is aware that it exists or that it will exist in the ordinary course of events. (s.5.3).

21 Recklessness requires proof that the person is aware of a substantial risk that the relevant circumstances exist or will exist and having regard to such circumstances as are known by that person to exist, the risk of engaging in the conduct is not justified. (s.5.4(1)).

22 Section 233B(1)(b) of the Customs Act 1901 does not state the fault elements or the physical elements which constitute the offence of importation of a prohibited import.

23 In the case of the law creating the offence, not specifying a fault element for a physical element, the Code makes provision for default fault elements. (s.5.6).

24 Intention is the default element for a physical element which consists of conduct. (s.5.6(1)).

25 Where a physical element consists of a circumstance or a result, recklessness is the default element. (s.5.6(2)).

26 The issue of the elements which constitute the offence of importation under s.233B(1)(b) of the Customs Act 1901 has been settled by the decision of the New South Wales Court of Appeal in R v Narongchai Saengsai-Or[5]. That case, involved amongst other things, the question of whether or not a direction given to a jury by a District Court judge in relation to a charge of importation under s.233B(1)(b) of the Customs Act 1901 in terms of recklessness, pursuant to s.5.4(1) of the Code, was erroneous. The New South Wales Court of Appeal held that the physical element of the offence created by s.233B(1)(b) is one of conduct and that conduct is the act of importing into Australia any prohibited import to which the section applies. It was held that in respect of that physical element the provisions of s.5.6(1) of the Code apply. Thus intention is the fault element for such an offence, and not the fault element of recklessness.

27 However, as is clear from Saengsai-Or, it is appropriate for a judge in directing a jury as to the issue of proof of intention under the Code, to provide assistance as to how the prosecution may establish intention, by inferential reasoning in the same way as intention may be proved at common law.

28 It is apparent from Kural v The Queen[6] that in considering whether an accused person possessed the requisite intention to commit the offence of importation of a prohibited import, it is permissible to consider whether or not the accused was aware of the likelihood that narcotic goods would be contained in the item being imported by the accused person, and notwithstanding this knowledge the accused nevertheless imported the item. In their joint judgment Mason CJ, Deane and Dawson JJ said[7]:

"There, as here, it is necessary to show an intention on the part of the accused to import a narcotic drug, that intent is established if the accused knew or was aware that an article which he intentionally brought into Australia comprised or contained narcotic drugs. But that is not to say that actual knowledge or awareness is an essential element in 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 narcotic drugs would obviously sustain an inference of intention. So also would proof that the forbidden act was done 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 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 importation of narcotic drugs if it is proved beyond reasonable doubt that the accused actually imported the drugs 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 what he was importing and of the likelihood that it was a narcotic drug. What we have said is designed to emphasise that the existence of the requisite intention is a question of fact and that in most cases the outcome will depend on an inference to be drawn from primary facts found by the tribunal of fact."

29 I will of course at a later stage in this proceeding provide counsel with the opportunity to make submissions as to matters which should be the subject of an appropriate direction to the jury as to the charge of importation of prohibited imports appearing in the indictment against the accused man Ta Song Wong. However it is appropriate to say at this stage that I do not consider it necessary for a jury to be directed by use of the language of "physical and fault elements" used in the Criminal Code. In my view it will be sufficient for directions of law to be tailored to meet the issues in the case, in language capable of being understood by the jury, but which will make it clear that the prosecution must prove beyond reasonable doubt that Ta Song Wong carried out the act of importing prohibited imports in the nature of narcotic goods, and that the prosecution must prove beyond reasonable doubt that Ta Song Wong intended to import narcotic goods and that the general directions in law should be consistent with the reasoning expressed in Kural v The Queen as to the manner in which such intention may be proved.

[1] [1908] HCA 34; [1908] 6 CLR 143 at 150.

[2] [1974] HCA 23; [1974] 131 CLR 203.

[3] At 220.

[4] At 253-255.

[5] [2004] NSW CCA 108.

[6] [1987] HCA 16; [1987] 162 CLR 502 at 505 and 512.

[7] At p 404 and 505.