Tabe v The Queen

Tabe v The Queen - [2005] HCA 59 - HCA 2005 case summary — Zoe

[9]

GLEESON CJ. This appeal raises questions of the construction of Queensland legislation concerning unlawful possession of dangerous drugs. The appellant and a companion, Ms Briggs, went to a post office to collect an envelope which had been sent by mail. The envelope they wanted to collect contained methylamphetamine, a dangerous drug within the meaning of the legislation. There had been a police interception. A substitute envelope was handed to Ms Briggs, but it contained no drugs. The two were arrested. Ms Briggs pleaded guilty to an offence and was sentenced. The appellant was charged with possession of a dangerous drug. The case against the appellant was put on the basis that there was an attempt by Ms Briggs to possess the dangerous drug, and that the appellant counselled or procured Ms Briggs to make that attempt. If both of those allegations were sustained, then the appellant was guilty of the offence charged.
The detailed facts, and the relevant legislative provisions, are set out in the reasons of Hayne J and the joint reasons of Callinan and Heydon J. It is clear that Ms Briggs never obtained possession of the dangerous drug; hence the allegation of attempt to possess which, by statute, is the equivalent of possession. Neither the appellant nor Ms Briggs gave evidence. Witnesses were called in the defence case in an attempt to show that the envelope was being collected merely as a favour to a third party. This was treated as raising a defence that the appellant honestly and reasonably believed that the envelope did not contain a dangerous drug. By virtue of s 57(d) of the Drugs Misuse Act 1986 (Q)[1], and its operation in relation to s 24 of the Criminal Code (Q), the onus of making out a defence of honest and reasonable mistake was on the appellant[2]. The trial judge so directed the jury, and no objection was, or is, taken to that direction.
There was, however, another question, which may be identified more clearly in relation to the role of Ms Briggs. As the case against the appellant (counselling and procuring Ms Briggs to attempt to possess the dangerous drug) was put, it was necessary for the prosecution to show, against the appellant, that Ms Briggs was guilty of attempting to possess the drug. The trial judge told the jury that the charge against the appellant involved three elements: first, that Ms Briggs attempted to possess a dangerous drug; secondly, that the appellant did some act for the purpose of enabling her to commit that offence; thirdly, that the appellant knew that Ms Briggs intended to attempt to obtain possession of the envelope and its contents.
The reference to possession of the envelope and its contents was related to what the trial judge said as to the elements of Ms Briggs' offence. The judge explained that, by statute, a person who attempts to commit a crime is deemed to be guilty of the intended crime. She said:

[15]

Earl Jowitt said, in 1952, that "the English law has never worked out a completely logical and exhaustive definition of 'possession'"[3]. Lord Diplock said that in ordinary usage, "one has in one's possession whatever is, to one's own knowledge, physically in one's custody or under one's physical control"[4]. The concept of "knowledge", however, is imprecise. This, no doubt, is why Aickin J spoke of "sufficient knowledge of the presence of the drug" in Williams v The Queen[5]. The answer to a question as to what constitutes "sufficient knowledge" for possession depends upon the purpose for which, and the context in which, the question is asked. If the context is a dispute as to whether, for the purposes of the law of larceny, one person was in possession of goods when another allegedly stole them[6], or whether a person has possession of valuable articles buried in or hidden on land owned by that person[7], the extent of sufficient knowledge may be different from that necessary to reach a conclusion that a person has contravened a law making it a criminal offence to possess an article or substance of a certain kind.
It is not disputed that the trial judge was right to tell the jury that it was not necessary for the prosecution to show that Ms Briggs believed that the envelope of which she was attempting to obtain delivery contained methylamphetamine, as distinct from, for example, cannabis or cocaine. Was it sufficient for the prosecution to show that she believed it contained something?
This was not a case in which there was a possibility that some third party had slipped contraband into an article of clothing without the wearer knowing of its presence[8]. Nor was it a case where a container had a hidden compartment, with the possibility that the person in possession of the container might not have been aware of some of its contents[9]. Ms Briggs undoubtedly attempted to obtain delivery of the envelope, exhibit 1, and her evident purpose in doing so was related to the contents of the envelope. No one could have suggested seriously that she wanted the envelope for its own sake. In attempting to obtain the envelope, she was attempting to obtain its contents. The contents in fact consisted of a dangerous drug. Was it necessary to show that she knew that?
In the context of a criminal law that prohibits possession of an article of a certain kind, and leaving to one side any special statutory regime that might alter the case, the concept of knowledge requires further definition. What is it that amounts to knowledge? And what is it that must be known? In He Kaw Teh v The Queen[10], Gibbs CJ, after reviewing the authorities, concluded that:

[18]

What is it, then, that must, in the relevant sense, be known? The judgments in He Kaw Teh, which concerned the meaning of the Customs Act 1901 (Cth), illustrate a range of different possible conclusions as to the extent of knowledge involved in the concept of possession[12]. One possibility is that, to be in possession of a drug of a particular kind, a person must know that he or she is in possession of the substance, and that the substance is a dangerous drug, without necessarily knowing that it is methylamphetamine, as distinct from, say, cocaine or heroin. Another possibility is that the person must know that he or she is in possession of a substance, (which is in fact a dangerous drug), and that knowledge that the substance is a dangerous drug is not something that need be shown. Other possibilities exist as well. Similar possibilities apply to attempting to possess.
The appellant submits that the first of the two possibilities mentioned in the preceding paragraph applies to the present case. On that approach, for the prosecution to establish (for the purposes of the case against the appellant) that Ms Briggs attempted to possess a dangerous drug, it was necessary to prove that, when Ms Briggs applied to the post office for delivery to her of the envelope, exhibit 1, she either knew or believed that it contained, or at least that there was a significant or real chance that it contained, some kind of dangerous drug. On the facts of the case, that might not have been a difficult inference. Even so, the case that was left to the jury was significantly different.
A similar process of reasoning, it is said, applies to the alleged accessorial liability of the appellant. Even assuming, as the Queensland Court of Appeal held, that his liability was "coordinate" with that of Ms Briggs, the prosecution would have to show a state of knowledge or belief in the appellant, concerning the contents of the envelope, of the same kind.
As the trial was conducted, these questions were subsumed in the defence case of honest and reasonable mistake of fact. The evidence about the request made by a third party that the appellant collect the envelope for him was relevant to the conduct of Ms Briggs as well as to the conduct of the appellant. Nevertheless, if the submissions for the appellant are correct, the defence argument about honest and reasonable mistake distracted everyone at trial, and caused them to overlook the full implication of the concepts of possession, and attempt to possess.
The respondent submits that, to the contrary, the defence reliance on honest and reasonable mistake reflected the Queensland statutory scheme, and the trial judge's directions were precisely in accordance with that scheme. According to the respondent, whether one was considering Ms Briggs' attempt to possess, or the appellant's procuring of that attempt, the statutory concept of possession required no proof of knowledge of the nature of the contents of the envelope. Any questions about that matter arose under the rubric of mistake, and were to be dealt with accordingly.

[20]

The decision of the Queensland Court of Appeal in R v Clare[13] was regarded by the Court of Appeal in this case as supporting the respondent. There, the accused was handed, by another person, packets of white powder, which he said he was requested to transport from the Gold Coast to Sydney. In fact, the packets contained heroin. The accused said that he believed that the white powder was a perfume base. The accused was aware of, and intended to possess, the white powder. His case was that he was mistaken as to the nature of the powder. The trial judge told the jury that, in order to convict the accused, they must be satisfied either that he knew the white powder was a dangerous drug, or that he knew the white powder was likely to be a dangerous drug, or that he had reason to suspect that it contained a dangerous drug. The argument in the Court of Appeal was that the second and third alternatives were insufficient, and that only the first would suffice. That argument was rejected. The Court of Appeal went further, and held that the directions were unduly favourable to the accused. Fitzgerald P concluded that all that the prosecution had to show was that the accused had, and knew that he had, a substance (the white powder), and that the substance was in fact a dangerous drug[14]. Davies JA said that the judge should have directed the jury that it was sufficient that the accused knew he had in his physical control the white powder, and that it was then for the accused, pursuant to s 24 of the Criminal Code as modified by s 57(d) of the Drugs Misuse Act, to show that he honestly and reasonably believed it was a perfume base[15]. Pincus JA said that there was no question but that the appellant knowingly had possession of the powder; the only issue was as to his knowledge of the nature of the powder, and that was to be resolved by reference to s 24 of the Criminal Code and s 57(d) of the Drugs Misuse Act[16].
In Clare, the accused squarely raised an issue of mistake of fact. He undoubtedly intended to possess the white powder. The question was whether, reading the Drugs Misuse Act as a whole, including s 57(d), the word "possession" in s 9 should be understood as requiring that he knew (in the sense earlier discussed) the nature of the powder. He said he thought he knew, but was mistaken. The Court of Appeal said that brought s 57(d) into play. What if he had said that he had no idea what the white powder was; that he did not know and did not care? Or what if he had said nothing? If the decision in Clare provides the answer to the present case, it must be because it goes further in its application than the particular facts, involving an assertion of a specific, but mistaken, belief. It must be because, on the true construction of the Drugs Misuse Act, where an accused person knowingly and intentionally has custody or control of a substance, to the exclusion of others except anyone with whom he or she is acting in concert, then a question as to belief in the nature of the substance can arise for consideration only under the rubric of mistake, and hence under s 24 of the Criminal Code as modified by s 57(d) of the Drugs Misuse Act.
Depending upon context, "possession" is undoubtedly capable of bearing the meaning given to it in Clare. The Court of Appeal's conclusion that it had that meaning in s 9 of the Drugs Misuse Act was influenced powerfully by the presence in the Act of s 57. The argument for the respondent in the present case, supporting that conclusion, may be summarised as follows. An honest and reasonable, but mistaken, belief in a state of things, for the purpose of the application of s 24 of the Criminal Code, as modified by s 57(d) of the Drugs Misuse Act, might involve a specific belief (such as that a white powder is a perfume base, whereas in truth it is heroin) or a more general belief (such as that a white powder is a harmless substance). The more general belief might even take the form (as evidently was claimed in the present case) of a negative assumption that an article is an unidentified, but unremarkable, item of personal property. In many cases, where a person is found to have custody or control of a substance, to the exclusion of others, being fully aware of its existence, and the substance is in fact a dangerous drug, then the person will claim to entertain an innocent belief, either of the specific or general nature considered above, as to the nature of the substance. That will not necessarily be so in all cases; there is a difference between not knowing that a substance is a drug and believing that it is not a drug. A person might entertain no belief at all, even of the general and negative kind earlier described. Even so, in practice, many people found to have custody of an illegal substance, of which they were aware, will seek to explain themselves by saying they were mistaken as to its nature, as the appellant did in this case, or as the accused did in Clare. How can it be consistent with s 57(d) of the Drugs Misuse Act, in such a common case, to require the prosecution to prove knowledge that the substance was a dangerous drug in order to establish possession? Such a construction of "possession" either nullifies the effect of s 57(d) or confines its operation to such a small number of cases (such as a mistaken belief in the existence of a licence to possess drugs of a certain kind) that it is difficult to understand why the legislature troubled itself to enact the provision. Counsel for the respondent argued that since, in a case where an accused person knows that he has a substance in his custody but says that he does not know its nature, (a case of the kind with which Gibbs CJ said he was not concerned in He Kaw Teh[17]), mistake and knowledge cannot co-exist, so that to put the onus of proof of mistake on the accused (as in s 57(d)) reflects a legislative contemplation that the prosecution need not prove knowledge of the nature of the substance in order to establish possession.
Although s 57(c) is not directly relevant to the present case, it also is relied upon by the respondent as an indication of the intention with which s 9 uses the word "possession". In particular, the concluding words negative the evidentiary effect of the provision only where it is shown that an accused did not know or have reason to suspect that the drug (that is, the substance) was in or on the place referred to. It does not have that operation where the accused knew that the drug was in or on a place but did not know its nature. Furthermore, in a case to which s 57(c) applies, presence of a substance is made conclusive evidence of possession, subject to demonstration by the accused of knowledge or reason to suspect such presence. This is not easy to reconcile with a concept of possession that requires knowledge of the nature of the substance possessed.
If the argument for the appellant is correct, the legislative scheme appears to involve some curious inconsistencies. If an accused person is the occupier of a place (as defined), and a dangerous drug is found on the place, then that is conclusive evidence that the drug was in the person's possession, unless the person shows absence of knowledge or reason to suspect the presence of the drug (s 57(c)). However, if a white powder which is in fact heroin is found in a person's suitcase, in order to establish possession, the prosecution must show not only that the person knew (in the sense earlier explained) that the substance was there but also that the accused knew the nature of the substance. If the person who has custody and control of the suitcase, knowing that the white powder is in it, gives no innocent explanation, according to the appellant the prosecution must prove knowledge (in the relevant sense) that the white powder was a dangerous drug. If the person says: "I believed the white powder was a perfume base, because I was told that by a reliable informant", then there is a conundrum. On the face of it, s 57(d) appears to place on the accused person the burden of making out a defence of honest and reasonable mistake. Yet, on the appellant's argument, the prosecution must show that the accused knew that the powder was a dangerous drug, and the occasion to consider a defence of honest and reasonable mistake would thus not arise.
The appellant points out that, in a case where an accused person knows of the presence, in his or her custody and control, of the substance in question, the reasoning in Clare means that any question about knowledge of the nature of the substance will fall to be considered under the rubric of honest and reasonable mistake. On that approach, negligence or carelessness will be penalised. That is an important consideration, but it applies to a rather narrow issue. It assumes knowledge of the presence of the substance but ignorance of its true nature. When Gibbs CJ put this issue to one side in He Kaw Teh[18], he doubted its practical importance. (We know from the sentencing remarks in the present case that, in her plea of guilty, Ms Briggs said she thought the envelope contained cannabis - the kind of mistake that both sides agree is immaterial except perhaps on penalty).
The question is ultimately one of legislative intention. Like Fitzgerald P in Clare I have not found the task of construction easy, but I also would conclude that "the clear tenor of the evidentiary provisions in s 57 of the Act is to reverse the onus to oblige an accused person who is proved to knowingly have the custody or control of a thing or substance which is a dangerous drug to prove that his or her 'possession' is innocent"[19].

[30]

The indictment contained an additional count that charged Ms Briggs with unlawfully possessing the dangerous drug cannabis sativa.
The trial of the indictment took place before Mullins J and a jury. At the trial, the Crown contended that, on 19 November 2001, the appellant had driven Ms Briggs to the Gold Coast Mail Centre at Bundall. Ms Briggs picked up an envelope from a postal supervisor and then re-entered the passenger side of the vehicle that the appellant was driving. The envelope did not contain any dangerous drug. It would have done, though, but for the following course of events.
On Friday 16 November 2001, an envelope arrived at the Mail Centre that was addressed to a "Mr Tabler" at 1 Markeri Street, Mermaid Beach. Because that address is nonexistent, and the envelope did not contain a return address, the envelope was opened by a postal officer, in accordance with authorised procedures. The officer found that the envelope contained a jar, which contained white powder. The officer reported the matter to police, who collected the envelope that day. Before that officer reported the matter to police however, a person arrived at the Mail Centre and inquired about a parcel that the person said was addressed to "Mr Tabler, 1 Makeri Street". The officer told the person to return later that afternoon.
On Monday 19 November 2001, the same Australia Post officer received a phone call from a person who said that he had attended the Mail Centre on Friday and that a friend would come in to collect the parcel. The officer contacted the police who told the officer to prepare an envelope that resembled the original envelope. Soon after, the police arrived at the Mail Centre. And soon after that, Ms Briggs attended the Mail Centre, presented a card and requested and collected the envelope.
At the trial, but in the absence of the jury, Ms Briggs pleaded guilty to the charge of possession of methylamphetamine and possession of cannabis. Subsequently the jury convicted the appellant of the charge against him.

[73]

The jury could only find that the appellant aided or abetted Ms Briggs' attempt to obtain possession of a dangerous drug if the jury were satisfied that Ms Briggs attempted to commit the offence of possession of a dangerous drug. Proof of the attempt required the jury to be satisfied of each of the elements contained in s 4(1) of the Code.
In R v Barbeler[28], the Court of Criminal Appeal outlined the four components of s 4(1). On a charge of attempting to possess a dangerous drug, those components required the prosecution to prove that Ms Briggs:
intended to commit the offence of possession of a dangerous drug;
had begun to put her intention "into execution by means adapted to its fulfilment";
had manifested her intention "by some overt act"; and
did not fulfil her intention "to such an extent as to commit the offence" of possession of a dangerous drug.
The jury could have been satisfied that the prosecution had proved the second and third components of the s 4(1) definition of "attempt". As the trial judge noted in summing-up, the jury had "heard the evidence about how [Ms Briggs] went to the Post Office on the 19th and handed over the card and got the dummy envelope". The conduct of the police and the postal officer in replacing the parcel that contained the dangerous drug with a dummy envelope meant that Ms Briggs was unable to actually come into possession of the dangerous drug. Yet, s 4(2) of the Code makes clear that "[i]t is immaterial ... whether the complete fulfilment of the offender's intention is prevented by circumstances independent of his or her will".
The fourth component was also satisfied because the envelope of which she had possession did not contain a dangerous drug and so she did not commit the offence of possession of a dangerous drug. Section 117(1) of the Act deems a person who attempted to commit an offence to be guilty of the attempted offence. But the section is not relevant to the fourth component of the s 4(1) definition of "attempt" because s 117(1) only operates after the prosecution has shown that a person has "attempt[ed] to commit a crime" and so, only after the four components have been satisfied.
However, the trial judge erred in law in failing to direct the jury as to the first component of the Code's s 4(1) definition of "attempts to commit offences". Her Honour directed the jury that:

[75]

However, the first component of the Code's s 4(1) definition of "attempt" required the prosecution to show that Ms Briggs "intend[ed] to commit an offence". In Vallance v The Queen[29], Windeyer J said that "a man, who actually realizes what must be, or very probably will be, the consequence of what he does, does it intending that consequence." Analogously, a person intends a consequence, even if the consequence is impossible, if he or she believes that that consequence must be, or very probably will be, the outcome of his or her act. As a result, a person may do an act "intending to commit an offence", for the purposes of s 4(1) of the Code, when the person believes that the very probable consequence of his or her action is the commission of an offence.
In this case, it was impossible for Ms Briggs to obtain possession of a dangerous drug because the police had removed the envelope that contained the methylamphetamine from the Mail Centre before she arrived to collect the envelope. Nonetheless, the jury could have found that Ms Briggs intended to obtain possession of a dangerous drug if they found that she believed that the very probable consequence of her attending "the Post Office on the 19th and hand[ing] over the card and [getting] the dummy envelope" was that she would thereby take possession of a dangerous drug.
But the prosecution had to do more than prove that she intended to possess an envelope with something in it. The prosecution had to prove that she intended to commit the offence. And that meant that the prosecution had to prove that Ms Briggs intended to possess a dangerous drug. A general intent to possess an envelope with something in it is not an intent "to commit an offence". In English[30], a decision under s 4 of the Criminal Code (WA) (which is in terms similar to s 4 of the Queensland Code), the Western Australian Court of Criminal Appeal held that "the act which constitutes the commission of [the] offence" of receiving stolen goods was the act of having the thing in his possession, so long as that act was "done with respect to property of a particular character, ie, in this case that it has been stolen." Similarly, the act that amounts to the s 9 offence of possession of a dangerous drug is an act of taking or retaining possession that is done with respect to a dangerous drug. Thus, the prosecution had to prove that Ms Briggs believed that, in taking possession of the envelope, she was taking possession of a dangerous drug.
Section 57(d) of the Act shifts the incidence of proving that an accused had "an honest and reasonable belief in the existence of any state of things material to the charge" from the prosecution onto the accused. However, that section has no effect on the incidence of the burden of proving that Ms Briggs "intend[ed] to commit an offence". The purpose of s 57(d) is to exclude the operation of s 24 of the Code. If the legislature intended s 57(d) to also affect the scope of s 4 of the Code, it would have said so. It is not relevant - but it is consistent with other provisions in the Code (eg, ss 306(a) and 302(c)) - that the mental element of an attempt under s 4(1) of the Code may be more substantial than the mental element of the principal offence of possession of a dangerous drug.
As a matter of law, then, the prosecution had to prove that Ms Briggs knew that the contents of the envelope of which she took possession were a dangerous drug. The prosecution had to do so for two reasons. First, proof of knowledge was necessary to prove the element of "possession" for the purpose of s 9 of the Act. Second, proof of knowledge was an indispensable step in proving, for the purpose of s 4(1) of the Code, that Ms Briggs was "intending to commit an offence". Consequently, the trial judge failed to give the jury the necessary directions from which they could conclude that Ms Briggs had attempted to possess a dangerous drug. Thus, the jury's finding that the appellant was guilty of possession of a dangerous drug - by reason of his aiding or abetting Ms Briggs' attempt to possess a dangerous drug - cannot stand.

[103]

First, it is necessary to put s 57(c) to one side. It had no application in the present case.
Section 57(c) could be engaged only upon "proof that a dangerous drug was at the material time in or on a place of which [the accused] was the occupier or concerned in the management or control of". It was proof of those facts that the section provided was conclusive evidence of a further fact (possession by the accused) unless the accused showed that he or she at the relevant time neither knew nor had reason to suspect that the drug was in or on that place. At once it will be seen that it is not possible to apply s 57(c) to cases of attempt like the present, where the drug in question was never in or on a place of which the accused was occupier, or a place of which the accused was concerned in the management or control. At no time was a dangerous drug ever in a place of which either the appellant or Ms Briggs was occupier or in or on a place of which either was concerned in the management or control. The drug, having been identified in the post office, never left those premises.
But what of s 57(d)? That provision which, as noted earlier, reversed the burden of proving honest and reasonable belief in the existence of any state of things material to the charge, applied "[i]n respect of a charge against a person of having committed an offence defined in part 2" of the Drugs Misuse Act. Did it apply to the charge brought against the appellant?
In the present matter, the indictment preferred against the appellant charged him with an offence defined in Pt 2 of the Drugs Misuse Act - the offence of possession of a dangerous drug contrary to s 9. If attention is confined to the form of indictment it follows that s 57(d) was engaged in this matter. It is as well, however, to look beyond the form of the indictment.
In this connection due account must be taken of, first, the provisions of s 44A concerning attempts to commit offences under the Drugs Misuse Act and, secondly, s 7(1) of the Criminal Code concerning accessorial liability.

[106]

The appellant contended that, on its true construction, the word "possession" in s 9 of the Drugs Misuse Act required the prosecution to prove that the accused knew "at least of the existence of the drug in the unopened receptacle" and that "[i]t is not sufficient to know the receptacle is not empty or contains something". This conclusion was said to follow from, or at least be consistent with, what was decided in this Court in Williams v The Queen[44] and He Kaw Teh v The Queen[45], each of which was concerned with legislation other than the Act now in issue.
The appellant submitted that Clare did not stand for the proposition for which the Court of Appeal in the present matter took it to stand. The conclusion reached by Fitzgerald P in Clare[46] (that to establish possession the prosecution need show only that the accused had and knew that he or she had a thing or substance which was in fact a dangerous drug) was said to be unnecessary to the decision in Clare. Rather, so the appellant contended, s 57(d) "casts an evidential burden on the appellant to show an honest and reasonable belief in the existence of any state of things before s 24 [of the Criminal Code] applies".
Although it may be accepted that, in important respects, the legislation considered in Williams was similar to the provisions of the Drugs Misuse Act that are relevant in this matter, the factual circumstances under examination in Williams were radically different. There the central question was whether the accused had possession of a drug when a minute amount of that drug was found in the pockets of two of his coats, which were hanging in his room. It was in that context that Aickin J referred[47] to the need to establish "a necessary mental element of intention" in order to demonstrate possession of the drug.
Of more immediate relevance is the Court's decision in He Kaw Teh and, in particular, that part of the decision which concerned the offence under s 233B(1)(c) of the Customs Act 1901 (Cth). That provision of the Customs Act made it an offence for a person "without reasonable excuse (proof whereof shall lie upon him) [to have] in his possession" certain prohibited imports. In He Kaw Teh the accused had been found in possession of a suitcase in which heroin was secreted in a compartment beneath a false bottom of the case. The accused did not admit that he knew that there was anything secreted in the suitcase.
The majority of the Court in He Kaw Teh concluded[48] that in the absence of a sufficient indication of contrary intention, knowledge of the accused that he or she had custody of the prohibited goods is a necessary ingredient of an offence of having possession of those goods; the word "possession" necessarily imports a mental element. Dawson J, who agreed in the result, went rather further than the other members of the Court who joined in the orders allowing the appellant's appeal. His Honour said that, for the purposes of s 233B(1)(c), a person could not possess something when unaware of its existence or presence. Dawson J continued[49]:

[108]

His Honour's view of what will suffice to demonstrate the necessary mental element implicit in the use of the word "possession" did not command the assent of a majority of the Court. Rather, as is implicit in what was said in Pereira v Director of Public Prosecutions[50], a charge of possession of a prohibited import, contrary to s 233B(1)(c) of the Customs Act, requires proof of knowledge that the prohibited import was or was likely to be secreted in the article which contained it and which was shown to be in the custody of the accused. As He Kaw Teh and Pereira also demonstrate, proof of that knowledge may depend upon inference from primary facts but in some circumstances that inference may be irresistible[51].
A like construction of s 9 of the Drugs Misuse Act should be adopted. The construction adopted in the Court of Appeal in this case and by Fitzgerald P in Clare casts upon an accused a burden of proving innocence. That construction should not be adopted unless clearly required by the statutory text. "Possession" in s 9 should be understood as bearing its ordinary meaning, thus importing a mental element. And that mental element is to be related to the subject of possession - a dangerous drug. That is, the accused must be shown to know that the substance in possession is or is likely to be a dangerous drug.
Contrary to what was said by Fitzgerald P in Clare, neither s 57(c) nor s 57(d) of the Drugs Misuse Act permits, let alone requires, construing "possession" in s 9 of the Act as meaning no more than physical custody of something which is in fact a dangerous drug.
As explained earlier in these reasons, s 57(c) works one considerable qualification to the proposition that to demonstrate possession of a dangerous drug the prosecution must prove that the accused knew that what he or she had in his or her custody was or was likely to be a dangerous drug. Proof of possession may be established by proving that at the relevant time the accused was in occupation of or concerned in the management or control of a place where the dangerous drug was. Having made this provision for proof of possession in cases where drugs are found in a place over which the accused has the degree of control specified in s 57(c), it would be a curious drafting device to use the reversal of onus of proving honest and reasonable belief to achieve a result similar to that achieved in s 57(c) in cases where an accused person has control of an article within which a drug is secreted. Yet that, essentially, is the understanding of s 57(d) which was adopted in Clare and in the present matter. That should be rejected.
Because s 57(d) is concerned with mistake of fact, not reasonable excuse, it may not provide for cases of the kind to which Gibbs CJ referred in He Kaw Teh[52] - cases such as where a person has a dangerous drug in possession because he or she has taken it from an addict but is about to destroy it, or where a finder of drugs is taking them to the police. Rather, s 57(d) should be understood as providing for a defence of honest and reasonable belief in the existence of a state of things material to the charge that would fall for consideration only if it was otherwise established that, but for the excusing provision, the offence of possession would be made out. In cases in which s 57(c) is not engaged, that will require proof that the accused knew that he or she had in possession a substance that was or was likely to be a dangerous drug. Section 57(d) should not be read as casting upon the accused the burden of demonstrating that he or she had a positive belief that a substance in his or her possession neither was nor was likely to be a dangerous drug.
It follows that the direction given by the trial judge about what must be shown to establish possession of a dangerous drug, although consonant with authority then binding upon her Honour, was erroneous.
The appeal to this Court must be allowed, the orders of the Court of Appeal set aside and in their place there should be orders:

[111]

Shortly before 16 November 2001, a parcel addressed to "Mr Tabler" of "1 Makeri Street" containing methylamphetamine, a dangerous drug proscribed by the Act, arrived at the Bundall mail centre at the Gold Coast in Queensland. It was undeliverable because the address which it bore did not exist. In accordance with ordinary postal practice, an employee opened the parcel to try to discover the true address or the sender. He found a glass jar containing powder in it. Suspicious that the powder might be an unlawful drug, the employee contacted the police, who then collected it. Analysis proved the powder to be methylamphetamine.
On 16 November 2001, a man called at the Bundall mail centre to collect the parcel. Another employee told him that the parcel was not there and that it might be at the Robina delivery centre. The employee told the man that the parcel could however be collected after 2 pm at Bundall. The employee saw him leave the centre in a white car.
Three days later, a man telephoned the Bundall mail centre. He said that he had unsuccessfully attempted to collect a parcel on 16 November and he would now have a friend collect the parcel for him that day. He was told that some form of identification would be required before the parcel would be relinquished. Police officers were immediately informed of this conversation.
Later that day, the appellant and Ms Nicole Briggs called at the Bundall mail centre. While the appellant waited outside in a white car, Briggs went inside to collect the parcel. She spoke with an assistant there who asked her to wait while he retrieved it. The police, who were then present at the mail centre, provided a substitute parcel to be given to Briggs. Briggs produced a collection card signed in the name of Tabler authorising her to collect the parcel. After she was given the parcel she returned to the white car which the appellant entered on the driver's side. Briggs sat in the front passenger seat. At that point, they both alighted from the car as police officers came to arrest them. The parcel was lying unopened on the floor of the car. The car was the same one as the caller at the mail centre had used three days earlier.

[178]

This construction of s 57(c) still leaves some room for the operation of s 57(d) in cases to which the extended meaning of possession applies. Section 57(d) is concerned with an honest and reasonable belief in the existence of any state of things material to the charge. "Any state of things material to the charge" goes beyond and is capable of embracing matters other than knowledge[79]. It is unnecessary to explore the limits of the expression, but it may be, for example, that an honest and reasonable belief in the existence of duress or of an extraordinary emergency (s 25 of the Criminal Code) could suffice to exculpate an accused if he or she could establish that it was held.
If a person is charged with an attempt to possess, or of aiding, abetting or counselling an attempt, and the defence seeks to establish that the offender did not know, or had no reason to suspect that the object in respect of which possession was attempted was an unlawful drug, then s 57(d) of the Act and s 24 of the Code are the only excusatory provisions that can have a relevant operation. This was the case with the appellant, because neither the principal offender, Briggs, nor the appellant himself, ever had possession in fact of the drug. It had been removed by the police and replaced by an innocuous substitute. This appeared clearly from the prosecution case. Deeming a person who is guilty of only an attempt, to be guilty of a completed offence, as s 44A of the Act requires, does not mean that the presumptive provision contained in s 57(c), which is directed towards a principal offender, may apply to a person who attempts to commit an act of possession. On the ordinary construction of s 57(c) of the Act, it could not apply to the appellant, or indeed even to Briggs. The true facts would not satisfy the phrase in the opening words of that section "a dangerous drug was ... in or on a place". But s 57(d) can and does apply to both an attempt and an aiding, abetting or counselling of an attempt, both being offences within Pt 2 of the Act. The appellant clearly sought to obtain a parcel which did, until it was intercepted, contain the drug. It was the parcel with the contents before interception that the appellant tried to get and possess, and counselled Briggs to possess. Knowledge, or its absence, is a state of things within s 57(d) of the Act and s 24 of the Code. It was for the appellant to show a state of things, absence of knowledge, in order to be acquitted. This he tried to do and failed. Absence of knowledge is not to be singled out as the only state of things which the prosecution is obliged to negative and the appellant to prove. A state of things is a very broad expression. It should be given its ordinary meaning as such. If knowledge and absence of knowledge were intended to be excluded from its operation, s 57(d) should have in terms said so. It did not. If the prosecution were bound to prove even a slight degree of, or indeed any knowledge of a drug intended to be possessed, then there would be no occasion to require the accused to show absence of knowledge which is a state of things for the purpose of s 57(d). The construction is consonant with the balance of s 57. It is very unlikely that the legislature intended an aider to an attempt to be in a better position because of a fortuitous interception, than a person who has succeeded in gaining actual physical possession of a parcel with something in it. It may be that s 57(d) was inserted to cover cases of ordinary physical possession and not extended cases of possession to which s 57(c) is at least principally directed. Whether that is so does not matter. What is obvious is that the legislature clearly intended to reverse the onus in relation to mistake of fact comprehensively to offences under Pt 2 of the Act.
The construction that we prefer of s 57 of the Act accords generally with the construction and approach of Wilson J in He Kaw Teh even though the language there is not quite so explicit, and the structure of the relevant provisions differ from those of the Act. The preferred construction also conforms with the legislative intention, in relation no doubt to both attempts and completed offences, expressed in the second reading speech for the Bill[80] introducing the amendments for the insertion of the evidentiary provision s 130J as it appeared in the Health Act with which the Court was concerned in Williams. The Minister said[81]:

[192]

In our opinion therefore, s 57, including s 57(d), does manifest an intention to alter the common law with respect to knowledge as a necessary component of possession. The appellant's submission was that the prosecution was obliged to prove, as an element of the case against the appellant as an aider, abetter or counsellor, that the principal Briggs knew of the presence of the drug in the unopened parcel. The submission fails to pay due regard to the whole of s 57. Let it be assumed, for present purposes, that the innocuous substitute for the dangerous drug had not been made and that Briggs collected a parcel containing the latter and could have been charged as if she had committed a completed offence. There is no doubt that Briggs was a possessor of the parcel and its contents. She held the parcel in her hands and was, at the very least, concerned in the control or management of the place, the floor of the car, where the parcel was at the material time. To the extent then that Briggs' knowledge or reason to suspect the presence of a drug would have been, which we do not think it was, an element of the offence of the appellant as an aider, the prosecution would have had the benefit of the presumption raised by either or both of s 57(c) or s 57(d) of the Act. Such a presumption could only be displaced by evidence in the trial of the appellant showing an absence of the relevant knowledge, or reason to suspect, on the part of Briggs. If the evidence adduced on behalf of the appellant did go so far as to raise a question of absence of knowledge or reason to suspect, on the part of Briggs, it is likely that it was rejected, or would in the case of a completed offence equally have been rejected, having regard to the jury's rejection generally of the appellant's defence. It is hardly likely that the appellant would have conducted the defence on that basis. If he had, it may have been open for the prosecution to prove Briggs' knowledge, by proving her plea of guilty, embracing, as it must have, all elements of the offence including knowledge. The trial judge would have been right in those circumstances to tell the jury that the prosecution did not have to prove that Briggs knew that the parcel contained methylamphetamine.
In the circumstances of this case, however, of an attempt (on the part of both Briggs and the appellant), s 57(c) has no operation for the reasons that we have stated. But s 57(d) can and does have an operation. It left open the opportunity for the appellant to prove that he acted under an honest and reasonable, but mistaken, belief in a state of things (s 24 of the Code), that there was a parcel to be collected that he did not know had contained the, or a dangerous drug. The trial judge was right to tell the jury, as her Honour did, that the prosecution did not have to prove that Briggs had [ever] known that the parcel contained methlyamphetamine. It was for the appellant to disprove that if he could.
Contrary to the appellant's submissions however, Briggs' knowledge, whether presumed or actual, was not a necessary element of the case against the appellant. He was charged with possession. Section 7 of the Code deems him to be a principal offender. It was the appellant's knowledge that was relevant, and not Briggs'. The appellant, in calling the evidence that he did, assumed the burden imposed on him by s 57(d) of the Act of proving a relevant excusatory state of things, ignorance of the presence of the drug before interception. In this endeavour, as the verdict demonstrates, he failed.
The Chief Justice therefore did no injustice to the appellant when he said in the Court of Appeal that the mental state to be established against the accessory need not be more extensive than that which need be established against the principal offender[85].
The criticism made in submissions by the appellant that the Court of Appeal fell into error in not referring to and closely examining the reasons of this Court in He Kaw Teh, is not well founded. In considering, as they did, the reasoning of the Court of Appeal in Clare v The Queen[86], they necessarily had regard to He Kaw Teh which was discussed at some length in that case. We are unable to accept that in a case to which s 57(c) applies (which is not this case) the prosecution must prove that a principal offender knows that he or she possesses the thing which is in fact a dangerous drug. Section 57(c) does not require that. Once evidence is adduced that a dangerous drug was in fact at a place occupied by him or her, or in the management or control of that person, regardless of the state of the accused's knowledge, possession is presumed and the onus to disprove knowledge falls upon the accused. Neither He Kaw Teh, Williams, nor any of the other cases upon which the appellant seeks to rely is however determinative of this one.
There was no deficiency in proof of the prosecution case and no misdirection on the part of the trial judge. We would dismiss the appeal.

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