Count 2
8 As to the second count, relating to the supply of the ecstasy tablets, Mr Odgers argued that his Honour misdirected the jury about the element of knowledge. The question posed for the jury was whether they were satisfied beyond reasonable doubt that the appellant:
… knew or was aware that there was a real or significant chance that his rental premises were being used for the storage of a prohibited drug, as part of the process of supplying that drug, and either he intentionally did nothing about preventing it, or he intentionally allowed it to occur.
9 That direction appears to have been derived from the judgment of Mason CJ, Deane and Dawson JJ in Bahri Kural v The Queen (1987) 162 CLR 502, a case concerned with the intent requisite to the offence of importing a prohibited drug (s 233(b)(1)(b) of the Customs Act 1901). Their Honours said (at 504-5):
Where, 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.
10 What their Honours then said (at 505) is important for the purposes of the present case:-
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. In this, as in other areas of the law, it is important not to succumb to the temptation of transforming matters of fact into propositions of law. In that regard, we would emphasise that the foregoing comments are not designed as a direction or instruction to be read by trial judges to juries. They are intended to give guidance to trial judges in order to enable them to formulate such directions as may be appropriate to the facts and circumstances of particular cases.
11 The same three justices repeated those statements of principle in Saad v The Queen (1987) 29 ACrim R 20 at 21. They were seen as applicable to cases of the deemed supply of a prohibited drug under the Drug Misuse and Trafficking Act (1985) in R v Greatorex (1994) 74 ACrim R 496, per Hunt CJ at CL at 498 and Simpson J at 503-4. In that case their Honours referred to He Kaw Teh v The Queen (1985) 157 CLR 253, Bahri Kural and Saad, but they did not refer to the later High Court decision of Pereira v Director of Public Prosecutions (1988) 63 ALJR 1.
12 In Pereira the Court considered the adequacy of a trial judge's directions in relation to charges of being knowingly concerned in the importation into Australia of cannabis resin and having in possession a quantity of cannabis resin which had been imported into Australia (both offences under the Customs Act). In a joint judgment, the Court referred to He Kaw Teh and Bahri Kural and continued (at p 3):
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 v The Queen (1985) 156 CLR 473 at 504-507; He Kaw Teh at 570. 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.
13 These principles were applied, and the requirement of proof of actual knowledge emphasised, by this Court in Histollo Pty Ltd v Director General of National Parks and Wildlife Service (1998) 45 NSWLR 661, a case concerned with the offence created by s90 of the National Parks and Wildlife Act 1974 of knowingly causing or permitting damage to aboriginal relics: in particular, per Spigelman CJ at 665-6, Sperling J at 667, and Greg James J at 695, 700-701.
14 It is one thing to say that the mental element of importation might be made out when a person brings into this country a bag in which he or she is aware that there is likely to be a narcotic drug, or that the mental element of possession is made out when a person has a container in which he or she is aware that there is likely to be a prohibited drug. It is quite another thing to say that the lessee of premises might be fixed with the knowledge required to establish the charge against the appellant on the basis only of his or her awareness of the likelihood that there is a prohibited drug in the premises. In my view, nothing less than actual knowledge of the presence of the drug, in this case the tablets, could be sufficient. Of course, if the appellant's knowledge of the presence of the tablets were proved, it would not be necessary to prove that he knew that they contained the drug ecstasy. Knowledge, or even belief, on his part that they contained a prohibited drug would be sufficient: cf Dunn (1988) 32 ACrim R 203, per Burt CJ at 205 and Pigeon J at 211.
15 Accordingly, his Honour's direction that the appellant's guilt of the second count might be founded upon proof that he was "aware that there was a real or significant chance that his rental premises were being used for the storage of a prohibited drug…" was erroneous. The jury would have understood that to mean that something less than actual knowledge, not only of the nature of the tablets but also of their presence in the unit, would be sufficient. This was a misdirection about an element of the offence charged, and one which was very much at issue in the trial. Although the direction was given with the assent of defence counsel, I would uphold this ground of appeal.
16 In support of the ground that the verdict of guilty of count two is unreasonable, Mr Odgers pointed to the evidence that the appellant did not live at the unit, that other men had access to it, and that the tablets were found in a place where they would not be immediately observable to anyone entering the unit. It is reasonably possible, he argued, that one of the other men had concealed the drug in the drawer in the course of some criminal activity of his own, of which the appellant had no knowledge. There is considerable force in this submission. However, I find it unnecessary to decide this ground because I have already determined that the conviction on count two must be quashed and, for reasons to which I shall turn later in this judgment, I do not consider it appropriate to order a new trial of that count.