Saad v The Queen

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