R v Mokbel [2006] VSC 137

Supreme Court of Victoria|2006-03-16|Before: GILLARD J

CRIMINAL LAW - Foreign law - Proof of - Question of fact - To be decided by Judge as a question of law - See s.39 of Supreme Court Act 1986 - Onus on accused - Balance of probabilities - Inadequate proofs.

1. The package containing cocaine was seized by Officer Mullally and thereby forfeited.

2. The effect of this seizure is that the packages became the property of the United States of America.

3. As a result, the act of importation was not the one in which the accused was knowingly concerned.

12 The real dispute in this case between Crown and defence concerns the fifth element that the Crown must prove, namely, that the accused was knowingly concerned in the prohibited import. It is clear that the Crown does not have to prove that he was responsible in any way for the import in the sense of being involved in any of the organisation or performance of the act of importing. The evidence leads to the conclusion that the accused knew that there was a quantity of cocaine to come from Mexico City, that it was to be sent by the UPS service and that it was to come into Australia and end up in the UPS warehouse at Ascot Vale, where Mr Cassar, the senior manager, was to take steps to intercept the packages and remove the prohibited import. There is no evidence to suggest that the accused knew anything more than that. It is open on the evidence to conclude that he was not aware of Sonny Schmidt, the person who took the money to Mexico City, and what Sonny Schmidt did, nor the actual route the packages would follow to arrive in Australia.

13 Although it is a question of law for the judge, the application of the rules and principles of the foreign law are issues of fact to be decided by the judge. On the other hand, and this is an important point, the effect of the application of those rules and principles to the particular circumstances of the case before the Court is a question for the court of the forum, that is, this Court, on which evidence is not receivable. This is a matter for the jury in this prosecution.

14 I interpolate to observe that the importation into this country was a controlled operation within the meaning of Part 1AB of the Crimes Act 1914 (Cth). I am satisfied under s.15H that it was a controlled operation, that the law enforcement officers, including the American agents who brought the packages to Australia, did not commit any offence. Nevertheless by reason of s.15I(6), even though the persons who brought the goods into Australia did not commit an offence, for the purposes of s.233B of the Customs Act 1901 it is to be taken that the goods were imported into Australia in contravention of that Act. There is also evidence before the Court that the necessary certificate was signed authorising the controlled operation. See ss.15J, K, L, M and N.

15 The principles canvassing foreign law were discussed by Gummow J in National Mutual Holdings Pty Ltd v Sentry Corp.[1] His Honour said:

"The existence, the nature and the scope of any rules and principles of the law of a foreign jurisdiction are to be treated as an issue of fact upon which evidence is receivable; on the other hand, the effect of the application of those rules and principles, as so ascertained, to the particular facts and circumstances of the instant case is a question of law for the court or the forum, upon which evidence is not receivable: United States Surgical Corp v Hospital Products International Pty Ltd (unreported, Supreme Court, NSW, McLelland J 19 April 1982). Where the relevant rules and principles of foreign law are so framed as to confer discretions upon the courts which administer them, then, in my view, evidence is receivable as to the manner in which those discretions are exercised, with reference to any pattern or course of decision."

16 Although it is a question of fact as to what is the foreign law, the actual determination is a question of law for the judge and hence it is somewhat an unusual question. In this State the legislature has provided for the function of a trial judge in such circumstances. Section 39 of the Supreme Court Act 1986 provides:

"39. Foreign Law

If on a trial with a jury it is necessary to ascertain the law of any other country which is applicable to the facts of the case, any question as to the effect of the evidence given with respect to that law must, instead of being submitted to the jury, be decided by the judge alone."

17 Section 39 of the Act is based upon s.102 of the English Supreme Court of Judicature Act 1925. That section replaced s.15 of the Administration of Justice Act 1920. The original provision was held to apply to criminal trials. See R v Hammer.[2] There is no doubt that the amendment to the English Act made in 1925 confirmed this and there is no doubt on a plain reading of s.39 that it does apply to a criminal proceeding. It is for the judge to decide what the foreign law is with reference to the particular factual matter that is in dispute in the proceeding.

18 It is clear from that provision that although the actual law of America is a question of fact, the effect of the evidence given with respect to foreign law must be decided by the judge alone and not the jury.

19 On an analysis of s.39, in my opinion it is clear that the question of law for the judge is to determine the effect of the evidence concerning the foreign law. Once the judge determines the effect of the foreign law, the judge directs the jury as to what the foreign law is and its application and the jury decides what effect the law, as stated, has on the facts as found by them.

20 The law relating to proof of foreign law goes back many years and was developed in the civil area and not the criminal area. That is not to say that it was not relevant in relation to certain criminal offences. By way of example, in a bigamy trial it is necessary for the prosecution to prove beyond reasonable doubt that the accused had gone through a previous valid marriage ceremony and, whilst married, went through another ceremony of marriage. If the first marriage was one made in a foreign country, then it would be an element of proof of the Crown to prove that earlier foreign marriage by calling evidence of the applicable foreign law. But other than references in a number of cases to that situation, there is very little law on the proof and application of foreign law when raised in a criminal trial.

21 An issue which in my view has to be determined in the present proceeding is: which party has the burden of establishing the foreign law to the satisfaction of the Court? If a party in a civil claim does not plead the foreign law there is a presumption that it is the same as the law of the forum. In the civil law, the onus is upon the party who asserts that foreign law is relevant to an issue in the case to prove the foreign law as a fact. It is essential for the party asserting that foreign law is different to the law of the forum to prove that as a fact. In Marle v Roberts,[3] Lord Eldon made it clear that it is necessary to prove foreign law as fact. In a case where a defendant was an infant, his Lordship said:

"The law of the country where the contract arose, must govern the contract; and what that law is, should be given in evidence to me as a fact. No such evidence has been given; and I cannot take the fact of what the law is, without evidence."

22 In a later case of The King of Spain v Machado,[4] Lord Lyndhurst LC said that a particular document was to be construed in accordance with the law of England unless it is proven that the instrument which was executed in Spain was to be construed according to the laws of Spain. His Lordship said:

"The answer is obvious. The instrument is set out on the record, and we must construe that instrument according to the natural import of its terms. If it is to have a peculiar sense and construction, arising out of the laws of Spain, it was incumbent on those who intend that such construction should be given to it to have made a statement to that effect on the face of the bill. There being no such allegation, I must construe the instrument according to its obvious import; and after having perused it repeatedly with as much attention and care as I can give to it, I think that it is a mere power of attorney ... ".

23 In the civil law if there is no plea that the law is different to the law of the forum, then the Court must give a decision according to Australian law even though the case may be connected with some foreign country and indeed solely connected. See Warner Brothers v Nelson.[5]

24 Evidence of the foreign law is to be given by an expert who, of course, may be cross-examined. In this proceeding Professor Abraham Abramovsky gave evidence and was cross-examined. An expert is entitled to state his opinion based upon his knowledge and practical experience of the foreign law and of course he may refer to statutory provisions, decisions or codes for the purpose of doing so. But in any such event, the Court is at liberty to examine the particular law or code or decision in order to determine the correct statement of the law. In De Beeche v South American Stores Ltd and Chilean Stores Ltd,[6] Viscount Sankey LC stated:

"While it is true that witnesses called to prove foreign law may refer to any passages in the code of their country as containing the law applicable to the case, the Court is at liberty to look at those passages and consider what is their proper meaning."

25 His Lordship referred to Concha v Murietta.[7] If there is a conflict of testimony, and there is not in this case, the Court must reach its own interpretation of the foreign law taking into account the evidence given. See Lazard Bros v Midland Bank.[8] Lord Wright in that case summarised the law as follows:[9]

"What the Russian Soviet law is in that respect is a question of fact, of which the English court cannot take judicial cognisance even though the foreign law has already been proved before it in another case. The court must act upon the evidence before it in the actual case. The recent enactment of s.102 of the Supreme Court of Judicature (Consolidation) Act, 1925, which provides that this question of fact must be decided by the judge alone instead of by the jury, if there be a jury, expressly treats the question as depending on the evidence given with respect to the foreign law. No earlier decision of the court can relieve the judge of the duty of deciding the question on the actual evidence given in the particular case. On what evidence of the foreign law a court can act has been often discussed. The evidence it is clear must be that of a qualified expert in the foreign law. If the law is contained in a code or written form, the question is not as to the language of the written law, but what the law is as shown by its exposition interpretation and adjudication: so in effect it was laid down by Coleridge J in Baron de Bode's case. In the Sussex peerage case, Lord Denman stated his opinion as to the same effect as he had done in the Bardon de Bode's case. He said that if there be a conflict of evidence of the experts, 'you (the judge) must decide as well as you can on the conflicting testimony, but you must take the evidence from the witnesses.' Hence the court is not entitled to construe a foreign code itself: it has not 'organs to know and to deal with the text of that law' (as was said by Lord Brougham in the Sussex peerage case). The text of the foreign law if put in evidence by the experts may be considered, if at all, only as part of the evidence and is a help to decide between conflicting expert testimony."

(Emphases added.)

26 In my respectful opinion, that summarises the law and the principles that must be applied in this proceeding.

27 In Royer Guillet v Royer Guillet and Co Ltd,[10] Lord Green MR, speaking for the Court, had this to say about foreign law. His Lordship said:

"I must make it clear that the evidence of French law is subject to a certain differentiation as between the evidence of the meaning of the law of 1925 and the evidence of the meaning of the articles. As I understand the law of England, evidence as to the meaning of the statute is to be obtained from the evidence of expert French witnesses and the decisions of the French courts. On a matter of French law the decision of a French court would be most persuasive. On the other hand evidence on the construction of a private document such as articles of association is admissible so far as it deals with French rules of construction or French rules of law or the explanation of French technical terms but evidence as to its meaning after those aids have been taken into account is not admissible. It is for the court to construe the document having fortified itself with permissible evidence. I would add that when you come to the statute law itself, although it is right that prima facie what must be considered is the evidence of experts and not the text of the law, when the experts differ as to its meaning an English court is entitled and, if it is to perform its function properly, is, indeed, bound, to apply its own mind fortified by the opinion of the witnesses in giving what weight it thinks ought to be given to it, to the text itself and to examine it in order to make up its mind on the question of interpretation as between the two sets of witnesses."

28 The principles that I have stated have been developed in English and Australian law and apply to civil proceedings. Section 39 of the Supreme Court Act applies to both civil and criminal proceedings.

29 There is no doubt that both the section and the authorities establish that what the foreign law is, is a question of law for the judge in a jury trial based on the evidence called as to foreign law, but the application of the foreign law to the facts of the particular case is a matter for the forum to determine. That is, this Court constituted as it is by judge and jury. See United States Trust Co of New York v Australia New Zealand Banking Group.[11] In my opinion, it is a question for the jury to determine the factual issue taking into account the foreign law as stated by the judge.

30 If the foreign law actually confers a discretion on the courts, then one may consider the authorities relating to how the courts in that country have applied the discretion.

31 A draft affidavit was provided by defence counsel late last Thursday, setting out what the professor was going to say.

32 Professor Abramovsky gave viva voce evidence on 14 March 2006 and was cross-examined. His evidence was in accordance with the draft affidavit and it was tendered in evidence as his statement of evidence. The professor swore that the affidavit was true and correct and that the opinions stated were held by him.

33 I must say that I had considerable difficulty in understanding his evidence and its application. He referred to a number of provisions of the law of the USA. He referred to various provisions of the Code of Federal Regulations governing the United States Customs Service. He also referred to provisions of the United States Code. This also governs the operations of Customs officials in America. In addition, the professor referred to the Controlled Substances Act, which now forms part of the Code. He informed the Court in his viva voce evidence that the Code was an Act of Congress and that the regulations were made pursuant to some power in the Code by some executive body. The executive body was not identified nor was the provision in the Code which authorised the enactment of the regulations. Mr Shirrefs SC, who was brought in to argue this matter on behalf of the defence, produced to the Court extracts from the Code and also extracts from the Federal Regulations. However, they do suffer from the fact that they are extracts and one is not in a position to look at the whole of the particular Code. Mr Heliotis on 6 March 2006 produced the Code being Title 21, Food and Drugs, Chapter 13, Drug Abuse Prevention and Control and Enforcement Provisions. All told, there were 102 pages of this Code.

34 The professor accepted that the approach to statutory interpretation in America was similar to the approach to interpreting legislative provisions in this country, namely, that one looked at the context and the legislative provision as a whole, and sought to determine the purpose and to give effect to that purpose. Further, the professor stated that he thought there were some decisions of the courts in respect to some of the provisions to which he had referred, but that he had been instructed by the defence team not to look at those cases. I must say that there were a number of provisions to which he referred which in my view would depend upon a proper and complete understanding of the legislative instrument in order to determine what the particular words were referring to. In my view, the professor's evidence demonstrated that he had not considered the provisions in context and taking into account the whole enactment. Further, he accepted that the Code contained some definitions which he had not checked. He did not look at any relevant case law although he thought there was some.

35 The question arises as to who carries the burden of proof on this matter. It is an evidentiary matter. It is not an essential part of the Crown case to prove the foreign law as an element in the charge. In my view, in accordance with normal principle, the issue having been raised by the defence as an evidentiary matter which, it was submitted, applied to the facts in this case, the burden rests upon the defence to prove to the satisfaction of the Court the foreign law which was applicable to the facts before the jury. The decision of The King v Naguib[12] confirms that proposition. The accused in that proceeding went through a form of marriage in England in 1903 and then in 1914 married another woman. He was an Egyptian by birth and a Muslim. He stated he came to England in 1901 having previously married a woman in Egypt in 1898. He gave evidence that it was a valid marriage according to the laws of Egypt. He contended that as he was validly married according to Egyptian law to a woman who was still living, his marriage to the woman in 1903 in England was void and it followed therefore, he having divorced his Egyptian wife in 1913, that he was free to marry again, which he did in 1914.

36 At p.361 Viscount Reading CJ said:

"The appellant no doubt gave a description of a ceremony, but he was not qualified to give evidence of the essential requisites of a valid marriage in Egypt. ... There is no doubt that, where the prosecution relies upon a foreign marriage, it is incumbent upon the Crown to prove the essential requisites of a valid marriage according to the law of the foreign country, and that the foreign law can only be proved by someone conversant therewith."

37 His Lordship then referred to a number of cases which established that proposition and continued:

"Therefore we are clearly of the opinion that a claimant relying on a foreign marriage, or the Crown in a prosecution for bigamy alleging an earlier marriage in a foreign country, must adduce expert evidence to prove the validity of the marriage according to the law of the foreign country. We see no difference in the law applicable to defendants. In the judgment of the Exchequer Chamber delivered by Willes J in Lloyd v Guibert the following passage occurs:

'A party who relies upon a right or an exemption by foreign law, is bound to bring such law properly before the court, and to establish it in proof. Otherwise the court, not being entitled to notice such law without judicial proof, must proceed according to the law of England.'

In the present case, as there is no proper evidence of the essential requisites of a marriage in Egypt, and nothing to show that the alleged marriage was a valid marriage according to the law of that country, the appeal fails."

(Emphasis added.)

38 It is clear from that decision that it is an evidentiary matter; it is not essential to any element of proof of the Crown in this proceeding and accordingly the burden rests upon the defence to prove the foreign law as the defence seeks to rely upon it.

39 In the course of his evidence, the Court drew the professor's attention to a number of matters as to what particular words or phrases meant in the particular provision under discussion. Whilst on occasions he opined as to what he thought the meaning of those words or phrases might be, he was unable to refer to any definition in the provision, or any case law which in any way enabled him to speak with authority as to what the application of the particular provision meant or its effect.

40 I do not wish to be critical of the professor. In my opinion, he was not directed to the important issues and further had been told not to consider the case law. In addition, it became apparent that whilst he was aware of regulations that were made by the US Drug Enforcement Administration and that further, according to paragraph 12.36 of the 19 Code of Federal Regulations, the customs officers were obliged to abide by such regulations and laws, he had not seen the regulations and was not able to say what effect, if any, they may have had in determining the law which applied to the actions of Messrs Walton, Mullally and Sheard on the morning of 4 November 2000. As a result of the cross-examination of the professor and questions asked of him by the Court, it was obvious to all who heard his evidence that there were serious gaps in it. Application was made the following day on behalf of the defence to recall the professor to give further evidence. He had not been finally excused as a witness because the Crown had indicated that they were labouring under problems in ascertaining the law in America because of the late notice, and accordingly had reserved the right to ask further questions of the professor when better informed. The right was not given to the defence team to adduce further evidence. After considering the matters that were raised I refused the application of the defence to adduce further evidence through the professor. One of the number of reasons that I relied upon was the fact that it had been asserted from the Bar table that the professor was not going to give any evidence in relation to the DEA regulations which apparently bound their officers.

41 The ultimate decision as to the foreign law, and its meaning and effect, is a matter for me. The expert witness provides the evidence to inform me but does not decide that issue. See Di Sorav v Phillips.[13] Where it is difficult to determine what the law is, it is open to the Court itself to examine the sources of foreign law which have been referred to in order to resolve, if possible, any ambiguity or uncertainty or indeed any conflict in the evidence. It is open to the judge to reject the evidence of the witnesses and arrive at his own conclusion. See Russian Commercial and Industrial Bank v Comptoir D'Escompte de Mulhouse.[14] The Court may of course also refer to the text upon which the witness relied. As a general proposition the Court should be slow to reject any uncontradicted evidence of a foreign law. See Sharif v Azad.[15]

42 In my opinion, R v Naguib stands for the proposition, absent any element that requires proof by the Crown, that the onus rests upon the accused, if raised by him that foreign law applies, to prove as a fact what the relevant law is, its application and effect in respect of the facts.

43 The Crown did not call any evidence in response to the evidence of the professor. Because of the way in which the defence has raised this issue and the late stage at which it has done so, it is very clear to me that the Crown was disadvantaged by the approach taken by the defence, which was contrary to directions given by the Court and provisions of the Crimes (Trials) Act 1997. As I stated in my reasons when I refused the application to call further evidence, the defence should have raised the issue well prior to the beginning of the trial. As I stated during the course of argument, the failure to bring out the issue into the open until the end of the evidence given by defence witnesses - even though there was some cross-examination which may have hinted at what was intended - shows a degree of uncertainty as to the strength of the point. This is not a question of tactics between Crown and defence. It is a question for the Court to decide and it is absolutely important that the Court be given all the assistance it can when deciding what is the foreign law, its application and effect. I am not prepared in the circumstances to draw any adverse inference from the fact that the Crown has not called any evidence in opposition.

44 In my view, the standard of proof is on the balance of probabilities.

45 Whilst it has been said that a court should be reluctant to reject uncontradicted evidence on the factual question of what was the relevant foreign law - see Sharif v Azad[16] - nevertheless in the end it is a question of fact for the judge. Hence the Court would not accept evidence that is unpersuasive, or reveals that the whole law which bears on the factual matters has not been placed before the Court. Like any other finding of fact, the Court must do its best on the evidence but if the evidence does not satisfy the Court as to what the relevant law was, its application and effect, then the defence, as the party seeking to prove the foreign law, fails. I respectfully agree with what is said in paragraph 9-016 of Darcey and Morris, The Conflict of Laws, 13th edition, where the learned authors say:

"But while the court will normally accept such evidence it will not do so if it is 'obviously false', 'obscure', 'extravagant', or 'patently absurd' or if 'he never applied his mind to the real point of law' or if 'the matters stated by [the expert] did not support his conclusion according to any stated or implied process of reasoning'; or if the relevant foreign court would not employ the reasoning of the expert even it agreed with the conclusion. In such cases the court may reject the evidence and examine the foreign sources to form its own conclusion as to their effect."

46 I observe, however, that if the Court seeks to examine the foreign sources to form some opinion, it would only reach a conclusion if the evidence established that the Court had all the law relevant to the topic in evidence and that the Court felt a degree of confidence that its decision on what was the foreign law was soundly based.

47 The evidence revealed that US Federal Customs Officer Mullally had been instructed by his superior to locate two packages, examine them and determine whether they contained cocaine. It is clear beyond doubt that the authorities in Australia had made the request of the authorities in the United States and that the latter had agreed and had given the instructions to Officer Mullally. Any person versed in Australian law would know that there were in Australian law provisions relating to a controlled operation for obtaining evidence in respect of Commonwealth offences. See Part 1AB of the Crimes Act 1914. In effect these provisions permit law enforcement officers to import into this country narcotic substances without committing an offence, but nevertheless ensure that those responsible for putting in train the importation of the narcotic substances were liable under the criminal law for the illegal act. One would immediately think that there may be provisions in the United States which were similar and which were available to customs officers in that country to take steps to assist some other law enforcement body in another country. The defence cross-examined Officer Mullally, seeking to adduce facts which would show that he seized the packages within the meaning of US law and thereby forfeited them to the United States. The effect of what he did was a matter of US law. But, on the other hand, one might infer that there may be provisions of that law which may permit him to take custody of the packages without taking any step to forfeit the packages within the meaning of US law. Indeed the evidence showed that after retaining the packages for some two hours he handed them to Agent Sheard, and on one version of the facts Agent Sheard had been alerted to the prospect of the packages being found and had been instructed to take them to Australia, which indeed he did.

48 Mr Sugimoto was called by the Crown. At the relevant time in 2000 he was an agent with the US Drug Enforcement Administration in Canberra. When he gave his evidence he had retired from that position and hence was asked questions about matters which occurred some five and a half years previously. He detailed what he had done. In the course of giving the evidence he stated that he understood that the DEA had rules and regulations which permitted a controlled delivery. He referred to Title 21 and the United Nations Convention of 1988, being the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1998, Article 10 of which dealt with controlled deliveries. He stated that he believed that the legal requirements were satisfied. He stated that under DEA procedures the case was classified as a category 3 pass through controlled delivery. He said it was part of the DEA's operational procedures; it was an internal rule. In cross-examination he stated that he believed the authorities had complied with the law, that the US authorities had complied with the rules and regulations, and that the DEA passed the regulations in accordance with the law. He asserted it would not do anything contrary to the law.

49 This evidence would have alerted the defence to the fact that there was some provision of US law which may have permitted a controlled pass through delivery.

50 Yet when Professor Abramovsky gave evidence, his evidence did not advert to these regulations. In cross-examination by Mr Parsons on behalf of the Crown, he admitted that he was aware of the regulations and that he had not referred to them. He suggested that he could not obtain the regulations because they were internal documents. However, I do not accept that these regulations could not be made available. It defies common sense to suggest that where a customs officer purports to act pursuant to some regulations in accordance with the law that any person seeking to attack his conduct would be denied access to the regulations which governed his authority.

51 These facts highlight the important function that a trial judge performs in a case such as the present. At the time the professor gave his evidence and during submissions on the following day, I indicated a number of times my uneasiness about what was the relevant US law. It was the contention of the defence that, by reason of US law and what Inspector Mullally had done, the goods had been forfeited to the United States and the property resided in the United States. It was argued that the importation into Australia was not the original importation and that the accused could therefore not be said to be knowingly concerned in what was described as "a US Customs import".

52 The function of the Court in an application such as the present is to determine on the evidence the relevant United States law and its application to the facts in question. I was not persuaded by the evidence of the professor that I had all relevant US law bearing on the subject. He admitted that he had not considered the provisions in the context of the total Code and total regulations, that he was unaware of any definition provisions, and further, because he was told not to do so, had not referred to any of the case law. But more importantly, he omitted to consider the application of any regulations of the DEA which may have borne on the subject. My uneasiness about whether the Court did have all the foreign law was exacerbated when it was pointed out that a folder of the Code which had been handed to the Court by defence counsel on 6 March 2006, being Exhibit AC37, did not contain an up to date version of the Code. Indeed, it was the Code as at 1996, and Mr Parsons on behalf of the Crown produced a print-out of s.881, which demonstrated that what had been handed to the Court did not accord with what the section provided for at the relevant date.

53 The Court requested Mr Shirrefs to provide an outline of his submissions as to what the Court should find on the evidence and he emphasised that the defence relied upon s.881. In the course of submissions the Court took him through s.881 as it appeared in Exhibit AC37. The importance of determining what the law is, is emphasised when it is appreciated that I as the trial judge have to state the law which applied at the relevant time. The professor has not assisted me in relation to interpretation of the various provisions because he clearly did not carry out that exercise himself. He did not refer to any case law on the provisions, and there is a gap in the evidence in so far as he has not referred to the DEA Regulations. All told, the Court is left in a complete state of uncertainty as to what was the relevant law at the time.

54 Mr Shirrefs in his submissions submitted that the Court could look at s.881 and that on the face of the section one could determine what the relevant law was at the time. Section 881 has ten subject parts. I discussed with counsel each particular subject and Mr Shirrefs responded by saying that the defence relied heavily on Part (f).

55 It provides:

"(f) Forfeiture of Schedule I or II Substances.

(1) All controlled substances in Schedule I or II that are possessed, transferred, sold or offered for sale in violation of the provisions of this Title; all dangerous, toxic, or hazardous raw materials or products subject to forfeiture under sub-section (a)(2) or (3) which cannot be separated safely from such raw materials or products shall be deemed contraband and seized and summarily forfeited to the United States. Similarly, all substances in Schedule I or II, which are seized or come into the possession of the United States, the owners of which are unknown, shall be deemed contraband and summarily forfeited to the United States."

56 Mr Shirrefs submitted that on a plain meaning of that provision, it was clear what the relevant law was at the time. He accepted that "all controlled substances in Schedule I or II" were the same as "all substances in Schedule I or II". It can be seen that there are two alternative bases for the provision to apply. The first one concerns whether the controlled substances were "possessed". It is very clear from earlier provisions of the Code that a person who does not have knowledge of the substance does not commit a violation of the provisions of the title. So, given the facts, which particular person possessed the goods in America in violation of the provisions of the title? There is no evidence of the application of the first part of (f)(1) and accordingly there is substantial doubt as to whether it applied or not. Mr Shirrefs submitted that it did apply and that the word "possessed" means taking into possession and hence somebody was possessing it at the relevant time. It was in the possession of UPS as a bailee at the relevant time but it could not be said that it was a possession in violation of the provisions of the Title. On the other hand, if the second part of the provision applied because Agent Mullally had "seized" the goods or they had "come into possession" of the United States, then the question then arose as to what was meant by the phrase "the owners of which are unknown" and at what point in time the forfeiture occurred to the United States. These are questions that in my opinion I could not resolve on the evidence.

57 In addition, there is ample evidence to suggest that there were some regulations which related to a controlled pass through. There is ample evidence to suggest that what was done was done pursuant to instructions and authority and Mr Sugimoto's evidence tends to suggest that the regulations applied. It follows from those observations that the Court does not have all the evidence before it to enable it to properly instruct the jury in relation to the facts.

58 In my opinion, the defence have not established what the foreign law was at the applicable time and the Court is not in a position to determine what was the applicable law at the time.

59 Accordingly, I find that the foreign law has not been proven and accordingly it is not open to the defence to rely upon any foreign law in relation to the issues in this case.

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