Saad v The Queen

High Court of Australia|1987-07-01|Before: Mason CJ, Gaudron JJ, Dawson JJ, Hampel J, McGarvie JJ

The applicant was convicted on one count of being in possession of prohibited imports which were reasonably suspected of having been imported into Australia, contrary to s 233B(1)(ca) of the Customs Act 1901 Cth. The prohibited imports were narcotic goods consisting of 85.9 g of heroin.

The grounds upon which special leave is sought are essentially twofold:

(1) That the trial judge erred in failing to direct the jury that the Crown must prove that the applicant knew he was in possession of a parcel which to his knowledge contained narcotic goods.

(2) That the Court of Criminal Appeal erred in deciding that, although the directions of the trial judge were in error, the proviso to s 568(1) of the Crimes Act 1958 Vic should be applied and the conviction not quashed.

The direction complained of is substantially to be found in the following words:

In other words, proof to your satisfaction beyond reasonable doubt that the accused had heroin in his possession is sufficient to establish that he had in his possession a prohibited import to which s 233B of the said Act applies. However, there are two matters that the Crown does not have to establish .

Secondly, the Crown does not have to show that the accused knew that it was heroin that was in the parcel, although in this case it asserts that the accused obviously did know that. What the Crown has to show is that the substance in the parcel turned out to be heroin regardless of whether the accused knew that it was heroin or not that was in the parcel.

The trial judge's charge to the jury was delivered on 2 May 1985. On 11 July 1985 this Court handed down judgment in He Kaw Teh (1985) 157 CLR 523; 15 A Crim R 203. The court held that in a proceeding under s 233B(1)(c) of the Customs Act 1901 the prosecution bears the onus of proving that the accused knew of the existence and nature of the goods in his possession or over which he had exclusive physical control. In the light of the reasoning in He Kaw Teh, the direction that the Crown did not have to prove that the accused knew that what was in his possession was a prohibited import was clearly in error. Counsel for the Crown did not suggest otherwise and the hearing turned on whether the proviso to s 568(1) of the Crimes Act 1958 was properly applied.

If the proviso was properly applied then it cannot be said, in terms of s 35A(b) of the Judiciary Act 1903 Cth, that the interests of the administration of justice in the particular case require the grant of special leave. No other provision of the section is applicable in the present case, even though it may be said that He Kaw Teh reflects different approaches to what may constitute the knowledge necessary to sustain a conviction for an offence of possession of prohibited imports under s 233B(1)(ca) of the Customs Act 1901. This is not an appropriate case to explore those differences, for the question of knowledge was not in issue at the trial.

The Court of Criminal Appeal applied the proviso to s 568(1) because, in its view, "The evidence upon which the prosecution relied was overwhelming". The Crown case was that Nasr Abdullatif who lived in a flat in Carlton, had custody of a large quantity of heroin. On 7 March 1983 the applicant picked up about half of the heroin held at the flat. At the applicant's direction, he and Abdullatif went to a car where a bag containing bread and the heroin, carried down by Abdullatif, was handed to the applicant. These events were observed by federal police officers who followed the car and a chase ensued. During the chase the bag was thrown out of the passenger side window of the car where the applicant was seated and was picked up by the police. When apprehended the applicant denied that he knew Abdullatif, that he went to the flat, that he picked up the bag, that he had it in the car and that he threw the bag out during the chase. The Crown relied on the evidence of the police officers and on the evidence of Abdullatif that these denials were false. Abdullatif had been sentenced for possession of both the heroin picked up by the applicant and other heroin found in the flat. There was evidence that the applicant had attempted to set up a false alibi by seeking to explain his presence in the flats by a visit to a flat which was not that of Abdullatif.

Because of the way in which the Crown case was presented at trial and the applicant's defence to that case, the question of his knowledge of the contents of the bag was never directly canvassed. His unawareness that the bag contained heroin did not arise as a reasonable possibility. This is not to suggest in any way that there was an onus on the applicant to demonstrate his unawareness of the contents of the bag. It is simply to say that in all the circumstances no miscarriage of justice occurred. We agree with the conclusion expressed by Hampel J in the Court of Criminal Appeal, with whom Murray and McGarvie JJ concurred:

In the circumstances, I am not able to postulate any reasonable basis on which it could be said that the jury may have returned a different verdict had they been told that the prosecution has to establish beyond reasonable doubt that the applicant knew that what was in the bag was a narcotic substance.

For these reasons the application for special leave should be refused

High Court of Australia Mason CJ Deane, Dawson, Toohey and Gaudron JJ Saad v The Queen [1987] HCA 14

The appellant's trial, on which he was convicted of being in possession of prohibited imports (some 85.9 g of heroin) contrary to s 233B(1)(ca) of the Customs Act 1901 Cth, took place in the County Court (Vic) in late April and early May 1985. Understandably, in the light of then current authority (see for example Ditroia [1981] VR 247), the learned trial judge failed to direct the jury in accordance with what was subsequently decided by this Court in He Kaw Teh (1985) 157 CLR 523; 15 A Crim R 203, namely, that on a prosecution of such an offence, the prosecution bears the onus of proving that the accused acted with mens rea, that is to say, with a guilty mind. As the judgment of Hampel J (with whom Murray and McGarvie JJ agreed) in the Court of Criminal Appeal (Vic) and the joint judgment of Toohey and Gaudron JJ in this Court demonstrate however, it is quite fanciful, in the context of the trial and the unmistakable inferences to be drawn from the jury's verdict of guilty, to suggest that there has been a possible miscarriage of justice in the sense that that failure of the learned trial judge deprived the applicant of any real chance of acquittal which he otherwise might have possessed. The reason for that is that the issue between the applicant and the prosecution on the trial was whether the applicant was in possession of the drug. If, contrary to the whole of the applicant's case, he was found to have been in possession of the drug, there was simply no room for any suggestion that he was ignorant of either its existence or its nature. In these circumstances, the decision of the Court of Criminal Appeal (Vic) that the case was one in which the proviso of s 568(1) of the Crimes Act 1958 Vic should be applied, must be upheld.

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