BARKER -v- THE QUEEN [2012] WASCA 51

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASCA 51
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:160/2011	Heard:	7 FEBRUARY 2012
Coram:	McLURE P BUSS JA MAZZA JA	Delivered:	9/03/12
No of pages:	7	Judgment Part:	1 of 1
Result:	Leave to appeal refused Appeal dismissed
Category:	B
PDF Version

Parties:	DENNIS PETER BARKER THE QUEEN
Catchwords:	Criminal law Appeal against conviction Attempting to possess a commercial quantity of a substance that was reasonably suspected of having been unlawfully imported and was a border controlled drug Section 307.8(1) read with s 11.1(1) of the Criminal Code (Cth) Absolute liability applies to the element of the offence in s 307.8(1)(b) of the Criminal Code Proposed grounds of appeal hopeless Leave to appeal refused
Legislation:	Criminal Code (Cth), s 6.2(2), s 11.1, s 307.8
Case References:	Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : BARKER -v- THE QUEEN [2012] WASCA 51 CORAM : McLURE P

BUSS JA

MAZZA JA

HEARD : 7 FEBRUARY 2012 DELIVERED : 9 MARCH 2012 FILE NO/S : CACR 160 of 2011 BETWEEN : DENNIS PETER BARKER

Appellant

AND

THE QUEEN

Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : McKECHNIE J

File No : INS 34 of 2011

Catchwords:

Criminal law - Appeal against conviction - Attempting to possess a commercial quantity of a substance that was reasonably suspected of having been unlawfully imported and was a border controlled drug - Section 307.8(1) read with s 11.1(1) of the Criminal Code (Cth) - Absolute liability applies to the element of the

(Page 2)

offence in s 307.8(1)(b) of the Criminal Code - Proposed grounds of appeal hopeless - Leave to appeal refused

Legislation:

Criminal Code (Cth), s 6.2(2), s 11.1, s 307.8

Result:

Leave to appeal refused

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr A C McIntosh

Respondent : No Appearance

Solicitors:

Appellant : Thames Legal

Respondent : Director of Public Prosecutions (Cth)

Case(s) referred to in judgment(s):

Nil

(Page 3)

1 McLURE P: I agree with Buss JA.

2 BUSS JA: The appellant was convicted, after a trial in the Supreme Court before McKechnie J and a jury, of one count of attempting to possess a commercial quantity of a substance that was reasonably suspected of having been unlawfully imported, and was a border controlled drug, namely MDMA, contrary to s 307.8(1) read with s 11.1(1) of the Criminal Code (Cth) (the Code).

3 The appellant has applied for leave to appeal against his conviction.

The salient facts of the offending

4 The salient facts of the offending were these.

5 A package containing heavy duty bicycle suspension parts was intercepted by customs officials at Sydney International Airport. The package had been dispatched from Canada. It was addressed to 'Mr Doug Webber' at a residential address in Wellard, a suburb of Perth.

6 A total of 3,124…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Barker v The Queen

Details

AGLC: Barker v The Queen [2012] WASCA 51
Case: [2012] WASCA 51
Decision Date: 9 MARCH 2012

CaseChat Overview and Summary

The case of Barker v The Queen involves an appeal against the conviction of the appellant for attempting to possess a commercial quantity of a substance suspected to be a border controlled drug, unlawfully imported. The appeal was heard by the High Court of Australia, which was required to determine the legal issues surrounding the application of absolute liability to certain elements of the offence under the Criminal Code. The appellant contended that the trial judge erred in applying absolute liability to the element of the offence in s 307.8(1)(b) of the Criminal Code, which pertains to attempting to possess a commercial quantity of a border controlled drug.

The court considered whether absolute liability, which removes the need for the prosecution to prove mens rea, applies to the element of attempting to possess a commercial quantity of a border controlled drug as outlined in s 307.8(1)(b) of the Criminal Code. The court examined the language and structure of the relevant provisions, as well as the purpose of the legislation and the nature of the offence. The court held that absolute liability indeed applies to this element of the offence, as it is a strict liability offence intended to protect the community from the importation of dangerous substances.

In conclusion, the court found that the proposed grounds of appeal were hopeless and did not provide a valid basis for overturning the conviction. The High Court of Australia dismissed the appeal and refused the appellant leave to appeal. The conviction stands, and the appellant remains subject to the penalties imposed by the lower court.

Orders

Orders of the court

Leave to appeal refused

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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