Buckingham v Nuttall
[2021] WASC 35
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: BUCKINGHAM -v- NUTTALL [2021] WASC 35
CORAM: ARCHER J
HEARD: 20 JANUARY 2021
DELIVERED : 17 FEBRUARY 2021
FILE NO/S: SJA 1001 of 2020
BETWEEN: JARED KANE BUCKINGHAM
Appellant
AND
ADRIAN NUTTALL
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE L J DIAS
File Number : PE 4856/2019 & PE 4857/2019
Catchwords:
Criminal law - Appeal against conviction - Commonwealth Criminal Code - Misstatement of the scope of the evidence of a witness - Intention not absence of belief - Irrelevance of mistake defence - No requirement to prove mistake on the balance of probabilities
Legislation:
Nil
Result:
Leave granted to amend grounds of appeal
Leave to appeal granted in relation to one ground
Appeal allowed
Convictions quashed and the matters remitted to the Magistrates Court
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | S J Oliver |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (Cth) |
Case(s) referred to in decision(s):
ACN 158 148 951 Pty Ltd v Prout [2019] WASCA 59
B v R [2015] NSWCCA 103
Baini v R [2012] HCA 59; (2012) 246 CLR 469
Bennett v Carruthers [2010] WASCA 131
Drage v Pitts [2007] WASC 203
HDS v The State of Western Australia [2015] WASCA 148
Heesom v O'Keefe [2017] WASC 362
Kalbasi v The State of Western Australia [2018] HCA 7; (2018) 264 CLR 62
Lee v R [2014] HCA 20; (2014) 253 CLR 455
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Men v The State of Western Australia [2020] WASCA 118
Ninyette v Holmes [2015] WASC 287
Pell v The Queen [2020] HCA 12
Police v Pfeifer (1997) 68 SASR 287
Prior v Kemp [2001] WASCA 363
R v Khazaal [2012] HCA 26 ; (2012) 246 CLR 601
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Sayedv The Queen [2012] WASCA 17
See Baharv The Queen [2011] WASCA 249
Steel v The State of Western Australia [2010] WASCA 118
Strahan v Brennan [2014] WASC 190
The Queen v Tang [2008] HCA 39; (2008) 237 CLR 1
The State of Western Australia v Olive [2011] WASCA 25
Thong v The State of Western Australia [2020] WASCA 182
Vucemillo v Ambrose [2019] WASC 411
WS v Gardin [2015] WASC 97
ARCHER J:
Overview
On 13 December 2019, the appellant was found guilty of two charges of possessing a controlled drug contrary to s 308.1(1) of the Criminal Code (Cth) (Commonwealth Criminal Code). One of the drugs was LSD and the other MDMA. The learned magistrate imposed a global fine of $1,200.
The appellant seeks leave to appeal against the convictions.[1] The application for leave to appeal was ordered to be heard at the same time as the appeal.
[1] Although the Notice of Appeal indicated that the appellant sought to also appeal the sentences, he confirmed during the hearing that he did not.
The drugs had been found during a search of the appellant's luggage on his arrival at Perth airport from overseas. The drugs were found in a toiletries bag.
The main thrust of the appellant's appeal against conviction is that the magistrate should not have found that he knew the drugs were in his toiletries bag. For the reasons that follow, I consider that it was open to the learned magistrate to find that the appellant did know this. However, I consider that the learned magistrate made other errors, not raised by the appellant.
In preparing for the hearing, I became concerned about a number of statements made by the magistrate. As the appellant is unrepresented, and as at least some of the statements suggested that a fundamental error may have been made, I raised my concerns with the parties in advance of the hearing. The respondent sought leave to file further written submissions, which was granted.
During the hearing, I gave the appellant leave to amend his grounds of appeal to include an allegation of error reflecting one of my concerns. I am satisfied that the alleged error was made, and that the error is such that the convictions should be quashed.
Grounds of appeal
The appellant's appeal notice set out his grounds of appeal as:
1.Error of Law - Burden of Proof
2.'PTO'.
There was nothing of relevance on the back of the appeal notice. In a directions hearing, the Principal Registrar told the appellant that these grounds were deficient, and he would need to file amended grounds of appeal. She advised him that what he had written in his appeal notice would be disregarded in the appeal.[2]
[2] ts 4 ‑ 6, 29 May 2020.
The appellant filed a document titled 'Appellant's minute of proposed substituted grounds of appeal'. In that document, the appellant sought to appeal on a single ground - that the magistrate made an error of both law and fact. He then set out 14 sub-grounds (here listed by numbers, rather than letters):
1.The only evidence of guilt relied upon were admissions made during records of interview. There were reasonable grounds of [sic] why these false admissions were made during the time of the interview.
2.The conviction relied on a statement of 'I forgot' during the course of the interview and ignored the statement of 'I had no knowledge' which was said prior to the statement of 'I forgot' and said numerous times throughout the interview.
3.Custody and control of the controlled substances could not be proven as the accused did not have exclusive use of the toiletries bag as it was communal.
4.Knowledge could not be reasonably inferred by the circumstances in which the controlled items were found
The mens rea element 'intention' was not sufficiently met
5.The magistrate inferred intention by way of knowledge, In her judgement, she drew the correlation by stating the accused had knowledge 'because he had obtained them' which is inconsistent with three witness statements which said the controlled substances were obtained by others.
6.The judgment states the accused called witness one (Mr Kormany) and asked if he removed the content of the medical bag. This was inconsistent with the evidence. In the accused witness statement he asked Mr Kormany in person as the bags were being unloaded if he had removed any items he had stored and had a cursory look himself at a later date.
7.The accused had a defence under section 9.1 of mistaken belief that the drugs were not in his toiletry bag, subjectively, such an idea was reasonable in the circumstances.
8.The evidence shows, the accused did not purchase the controlled items.
9.When he became aware of the controlled substances, he requested them to be removed from the area and to be secreted elsewhere.
10.When he was informed they were stored in the toiletry bag in the common bathroom, the accused requested they be removed on completion.
11.Upon arrival home the accused double‑checked if the the [sic] owner of the controlled substances had removed the items, which was confirmed.
12.The accused also had a cursory look when repacking his bags for Indonesia.
13.All parties agree that the accused had knowledge of the consequences of possession of prohibited drugs in Indonesia. So one must expect the accused thought it implausible for the controlled items to still be in his luggage and that he had taken reasonable steps to ensure this.
14.The accused had been conditioned to stand by any colleague/s who had made a mistake after ten years serving in the Navy's most elite unit where the culture is 'one in all in' and the motto is united and 'undaunted'.
It is apparent that sub‑grounds 1 ‑ 2, 4 ‑ 5 and 8 ‑ 14 are all directed to the appellant's claim that the magistrate ought not to have found that he knew the drugs were in his toiletries bag. Sub‑ground 7 is similar, in that it asserts, in effect, that the learned magistrate should have found that the appellant had a mistaken belief that the drugs were not in his toiletries bag.
Sub‑ground 3 is, in effect, directed to whether it was open to the magistrate to find that the appellant had custody of, or control over, the toiletries bag.
Sub‑ground 6 alleges the magistrate erred in her description of the appellant's evidence.
The single ground of appeal, with its sub‑grounds, is not a proper ground of appeal. I invited the appellant to consider amending it to capture the essence of his complaints in a proper form. I suggested that his primary complaint could be captured by the following ground:
There was a miscarriage of justice in that it was not open to the learned magistrate to be satisfied that the appellant knew the drugs were in his toiletries bag (in finding that he had known they were there when he first put them in his bag and had later forgotten they were there)
Particulars
The learned magistrate should have had a reasonable doubt as to whether the appellant believed that the drugs had been removed.
I suggested to the appellant that this could replace the ground of appeal and all of the sub‑grounds apart from sub‑grounds 3 and 6. The appellant accepted the suggestion. The respondent, quite properly, did not oppose leave being granted to the appellant to amend his grounds of appeal in this way.
I also asked the appellant to clarify sub‑ground 6. The appellant confirmed that he was alleging that the magistrate erred in saying that the appellant's evidence was that he had telephoned Mr Kormany and asked if he had removed the drugs, when the appellant's evidence was that he had asked Mr Kormany in person. I suggested that the ground could be amended to reflect that. The appellant accepted the suggestion. Again, the respondent quite properly did not oppose leave being granted to the appellant to amend his grounds of appeal in this way.
The issues
The issues raised by the appellant's amended grounds of appeal are:
1.Was it open to the learned magistrate to find that the appellant knew the drugs were in his possession?
2.Was it open to the learned magistrate to find that the appellant had custody of, or control over, the drugs?
3.Did the learned magistrate err in saying that the appellant's evidence was that he had telephoned Mr Kormany and asked if he had removed the drugs?
As foreshadowed, I will also address the concerns that I raised with the parties.
Appeals from magistrates' decisions[3]
[3] This section reproduces or draws on my reasons in Heesom v O'Keefe [2017] WASC 362 and Vucemillo v Ambrose [2019] WASC 411, but is repeated here for convenience.
The grounds on which appeals may be brought against a conviction by a magistrate are that the magistrate made an error of law or fact (or both), or acted without or in excess of jurisdiction, or that there has been a miscarriage of justice.[4]
[4] Criminal Appeals Act 2004 (WA) s 8(1).
A miscarriage of justice will have occurred where, for example, the nature of the evidence raises a real doubt as to whether the conviction can be regarded as safe or just.[5] The test is whether the court considers that, upon the whole of the evidence, it was open to the decision‑maker to be satisfied beyond reasonable doubt that the appellant was guilty.[6] That is, whether the decision‑maker must, as distinct from might, have entertained a doubt about the appellant's guilt.[7]
[5] HDS v The State of Western Australia [2015] WASCA 148 [51], citing M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 523. See also The State of Western Australia v Olive [2011] WASCA 25 [40] and [44] and Pell v The Queen [2020] HCA 12 [43] ‑ [45].
[6] HDS [52], quoting M v The Queen (494 ‑ 495). See also Olive [41] ‑ [42] and Pell [43].
[7] HDS [53], citing Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559. See also Olive [43] and Pell [44] ‑ [45]. See also, in the analogous context of an appeal under pt 3 of the Criminal Appeals Act 2004 on the ground that the verdict was unreasonable, Thong v The State of Western Australia [2020] WASCA 182 [146] ‑ [148] and Men v The State of Western Australia [2020] WASCA 118 [403] ‑ [410].
Leave to appeal is required.[8]
[8] Criminal Appeals Act 2004 s 9(1).
The court must not grant leave to appeal on a ground of appeal unless it is satisfied that the ground has a reasonable prospect of succeeding.[9] That means that the ground must have a real, rational and logical prospect of succeeding.[10]
[9] Criminal Appeals Act 2004 s 9(2).
[10] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
Unless leave to appeal is granted on one or more grounds, the appeal is taken to have been dismissed.[11]
[11] Criminal Appeals Act 2004 (WA) s 9(3).
Further, when considering a magistrate's reasons, it is necessary to keep in mind the nature of the work of magistrates. As was pointed out by Martin CJ in Strahan v Brennan,[12] magistrates are required to conduct cases efficiently and with a degree of informality given the large volume of cases they hear each day. Accordingly,[13]
it is not appropriate to scrutinise the reasons for decision given by magistrates with a fine‑tooth comb or with an eye keenly attuned to the identification of error. Nor is it appropriate for the court to infer from infelicity of language that error is thereby demonstrated. That is because, of necessity, magistrates are required to perform their important functions in a different time frame to that which applies in the superior courts and in that context it is to be expected that some infelicity of language is likely to occur from time to time.
[12] Strahan v Brennan [2014] WASC 190 [89] ‑ [90].
[13] Strahan [90].
These observations may have less weight when, as here, a magistrate has reserved their decision after a hearing and delivered it at a later date. Nevertheless, a magistrate in such a case must still manage a large volume of cases daily and is still faced with the requirement to conduct cases efficiently and with a degree of informality. It remains inappropriate to scrutinise their reasons with a fine‑tooth comb and it is still to be expected that some infelicity of language is likely to occur from time to time, even with reserved decisions.
If, despite error, no substantial miscarriage of justice
By s 14(2) of the Criminal Appeals Act 2004 (WA), even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[14]
[14] Criminal Appeals Act 2004 s 14(2).
Generally, an immaterial or inconsequential error will not give rise to a substantial miscarriage of justice. Where an error could not have affected the outcome, an appeal court will generally be able to conclude that there has been no substantial miscarriage of justice.[15]
If, despite error, the evidence supported the decision
[15] Ninyette v Holmes [2015] WASC 287 [65]; WS v Gardin [2015] WASC 97; (2015) 48 WAR 494 [239] ‑ [241]. See also Baini v R [2012] HCA 59; (2012) 246 CLR 469 [28] ‑ [33]; Lee v R [2014] HCA 20; (2014) 253 CLR 455 [46] ‑ [48] and Kalbasi v The State of Western Australia [2018] HCA 7; (2018) 264 CLR 62 [12] ‑ [16].
By s 14(3), if the Magistrates Court failed to make any necessary finding of fact, the Supreme Court need not set aside or vary the decision if the facts or evidence in substance support the decision or justify the finding.
Given those words, and the context of the Criminal Appeals Act as a whole, this does not mean that the Supreme Court need not set aside or vary the decision simply because it was open to the magistrate to make the decision. Rather, s 14(3) applies where 'the facts found by the magistrate or the evidence were such as to lead inevitably to the conviction'.[16]
[16] Prior v Kemp[2001] WASCA 363 [150] (Templeman J) in relation to a relevantly identical provision in the Justices Act 1902 (WA), s 199(3). This statement of the scope of s 199(3) was applied to s 14(3) in Drage v Pitts[2007] WASC 203 [34] ‑ [35]. See also Bennett v Carruthers[2010] WASCA 131 [39] and ACN 158 148 951 Pty Ltd v Prout [2019] WASCA 59 [54].
Interpreting s 14(3) in this way is consistent with the way in which s 14(2) has been interpreted.
The trial
The appellant pleaded not guilty to the charges. The trial was held on 20 November 2019 before her Honour Magistrate Dias. The appellant represented himself. The prosecution called an Australian Border Force (ABF) officer and an Australian Federal Police (AFP) officer. The appellant gave evidence himself and called two witnesses.
Her Honour delivered her decision on 13 December 2019, convicting the appellant of both charges.
The uncontested facts
The learned magistrate set out the uncontested facts in her reasons:[17]
[O]n 3 October 2018 the accused arrived at Perth International Airport on a Jetstar flight 117 from Denpasar, Indonesia. Australian Border Force or ABF Officer Philipoff directed the accused to a bench in an examination area, asked him to bring his baggage with him, which was one flat duffel bag, and asked to see his incoming passenger card. In response to question 1 in the incoming passenger card, 'Are you bringing into Australia goods that may be prohibited or subject to restrictions such as medicines, steroids, illegal pornography, firearms, weapons or illicit drugs?' the accused had designated 'No'.
Prior to conducting a baggage examination Officer Philipoff informed the accused that he would ask him a series of standard questions. After establishing that the incoming passenger card was the accused's and that he signed, read and understood the questions, Officer Philipoff asked the accused whether (1) the duffel bag was all of his baggage, (2) he packed his package [sic] and (3) he knew everything that was inside his baggage. The accused answered yes to each of the questions.
Officer Philipoff then checked the accused's duffel bag and found tablets in a zipped compartment of the toiletry bag which was in the duffel bag. When Officer Philipoff asked the accused what the tablets were he said, 'I believe they are MDMA'.
Officer Philipoff administered a caution and the accused subsequently participated in an interview conducted by Officer Philipoff and Officer Buckley [sic], during which the accused stated that (1) the accused purchased the MDMA in Margaret River for $300 on or about 11 September 2018 for his 30th birthday celebrations, (2) the accused placed the MDMA in his toiletry bag and (3) they remained – the tablets remained in his toiletry bag when he returned to Perth from Margaret River, travelled to Bali and then returned to Perth from Bali on 3 October 2018 when Officer Philipoff located them at the airport.
Whilst searching the accused's toiletry bag Officer Philipoff also located a small plastic pouch containing a substance which the accused stated he thought was LSD. The accused was re‑cautioned and he stated that he made a stupid mistake. Australian Federal Police officers subsequently conducted an interview with the accused herein which he provided a similar explanation to the explanation he provided to the ABF officers, making full admissions.
[17] Transcript of 13 December 2019 (Reasons Transcript) pages 5 ‑ 6.
During the appellant's interview with the ABF officers, the following exchanges occurred (emphasis added):[18]
[18] Exhibit 5 pages 5 ‑ 7.
Q52.Okay. What can you tell me about the allegation?
AYeah, I just had, um, my thirtieth down at Margaret River on the eighteenth – well, the boys came just before, I left on the eighteenth and, um – you know – obviously we bought a few things down there to enjoy the festivities. Clearly, I've forgotten about those things in the medical bag of mine and, um – yeah, my – my error and just glad it happened here and not in frigging Indonesia.
Q53.Okay. Okay, so can you tell me, did you import those goods?
ANo. I bought them from Australia and then bought them back. I didn't know they were in the medical bag.
Q54.So – but it was in your bag?
AIt was in my bag.
Q55.And you said it was in your bag?
AYes.
Q56.And you said you knew what was in the bag?
AYes.
Q57.Okay. All right. So you said that you exported them as well, then.
AYeah, I wasn't – I wasn't sure they were in there, so, um – yeah, I must've bought them out and – yeah, things are just (indistinct)
Q58.Okay.
AA lot worse.
…
Q59.Okay. So where did you get the items in question?
AAh, I got them from a friend that come [sic] over for my birthday.
Q60.And what – where exactly?
AAh, Margaret River.
Q61.Margaret River. Okay. And how much did you pay or it, if you did?
AAh, three hundred dollars.
Q62.Three hundred dollars. Okay. Okay, and what did you intend to do [sic] the items?
AUm, ingest them, I guess. Yeah.
Q63.Yep, okay. And when did you put them in your bag or when do you think they were put into your bag?
AAh, when I was in Margaret River.
…
Q71.Okay. And why didn't you declare them on your incoming passenger card?
AI didn't realise they were in there.
Q72.Okay.
AUm, usually I'm not stupid but obviously I am today.
At this point, Officer Philipoff found the LSD strips. This exchange occurred:[19]
[19] Exhibit 5 page 8.
Q82.Okay. What can you tell me about this one here?
AAh, don't know.
…
Q83.All right. Can you tell me what this one is?
AI think it might be bloody LSD or something.
…
Q84.Okay. So I believe that this may be some sort of illicit drug as well.
AYep.
Q85.So can you tell me any idea of what it may be?
AYeah, I'm pretty sure it's the LSD stuff.
Later, this exchange occurred:[20]
Q89.Okay. And you have the right to communicate or attempt to communicate with a friend or relative to inform them of your whereabouts. Do you understand?
AYep.
Q90.Would you like to do this?
ANo. I'm happy to fully cooperate, it was my stupid mistake.
Q91.Yeah.
ADidn't check the bags.
[20] Exhibit 5 pages 8 ‑ 9.
During the interview with the AFP officers, the following exchanges occurred (emphasis added):[21]
[21] Exhibit 9 pages 4 ‑ 5.
Q40.Okay. So, we are here because we were called by Customs, or ABF, in regards to an [importation of] a border controlled drug, mainly being MDMA and LSD. What can you tell us about that?
AUm, so I had my thirtieth birthday celebrations on the eleventh of September in Margaret River and had numerous boys from all over the country come over and, um, we had quite a big night – couple of nights there, drinking and obviously had a few ecstasy, um, tablets consumed between us. And that was – what was left over was remaining in my medical kit bag which I had forgotten about
…
Q48.What about the LSD strip?
ASame thing.
…
Q50.Okay. Just getting back to when you – when did you actually first get those tablets?
AUm, so it would have been just before we left to go to Margaret River. So I think it would have been tenth – ninth or tenth of September.
Q51.Okay. How did you obtain them?
AOh, friends brought them for me for my birthday.
The prosecution tendered two certificates which prima facie proved that the tablets were MDMA (six tablets weighing 2.7 g) and the substance on the paper strips was LSD (weighing 150 µg).
The appellant's case at trial
The appellant's case at trial was that he did not know the drugs were in his toiletries bag. He admitted the substances that had been found were the drugs alleged. He admitted the drugs had been in his toiletries bag since around the time of the party. His case was that he was not the person who had put them in his toiletries bag, that he knew that drugs had been put into his bag but had been told that they had been removed, and he therefore assumed that they had been. He said, in effect, that he had falsely claimed responsibility when the drugs were found, to protect his friends and because he was afraid of getting his wife and children into trouble.[22]
The evidence adduced by the appellant
[22] Transcript of the Magistrates Court Trial (Trial Transcript) page 5.
The learned magistrate summarised the appellant's evidence in the trial as follows:[23]
[T]he accused provided evidence at the hearing which was a completely different version of events, namely, that (1) his partner, Ms Karla Lack, organised a surprise 30th birthday celebration at Margaret River during which he was aware members of the party would be consuming drugs. He asked his friend Mr Kormany to inform party guests to 'do that sort of thing' out of sight. Mr Kormany told him that everything was secured in the bathroom in the accused's toiletry bag.
The accused requested Mr Kormany to make sure that everything was taken out of that toiletry bag and Mr Kormany agreed he would do this. (2) The accused asked Mr Kormany if everything was removed and Mr Kormany said he would double‑check and Mr Kormany double‑checked with the members of the party and confirmed with the accused there was nothing in the bag. (3) The accused states that Ms Lack packed the bag in her luggage to Bali, but it was packed in his luggage on the way back because she exceeded her baggage weight limit.
By way of explanation for his responses in his records of interview with ABF and AFP the accused provided evidence that when he got caught he was worried the drugs were (1) in his partner's bag at first, (2) he had his children there, (3) they were his friend's substances and he did 10 years military service in an elite unit and his team motto was 'United undaunted' to be one in all in. At the time he thought it was best that he just took the hit for the boys and just said that he had forgotten about them.
He never put the drugs in the bag, he never wanted the drugs in the bag at all and had zero knowledge the drugs were in his bag. Under cross‑examination he stated he was part of a group that purchased the drugs and that he used the toiletry bag on a regular basis. He admitted taking ecstasy.
[23] Reasons Transcript pages 6 ‑ 7.
The first witness called by the appellant was a Mr Kormany. Mr Kormany said he had asked the drug users to leave their drugs, and to only use their drugs, in a room like a bathroom, and to remove all their drugs at the end of the party. He also said that the appellant had asked him (Mr Kormany) to remove all of the drugs by the end of the party. Mr Kormany said he had done that, and had removed a marijuana joint. Mr Kormany said he assumed the other drug users had removed their drugs, and said that they had told him that they had done that.[24] Mr Kormany said that he had told the appellant that he had checked the bag and nothing else was in there.[25]
[24] Trial Transcript pages 49 and 51.
[25] Trial Transcript page 52.
The second witness called by the appellant was his de facto partner, Ms Lack. She said that the appellant was not the only person who had access to the toiletry bag, and she and the children also accessed it. She also said she had packed the appellant's toiletry bag in his luggage, at least for some of the legs of their journey.[26]
The relevant provisions of the Commonwealth Criminal Code
[26] Trial Transcript pages 54 ‑ 56.
The offences contravened s 308.1 of the Commonwealth Criminal Code. It relevantly provides:
308.1Possessing controlled drugs
(1)A person commits an offence if:
(a)the person possesses a substance; and
(b)the substance is a controlled drug, other than a determined controlled drug.
Penalty: Imprisonment for 2 years or 400 penalty units, or both.
Section 300.2 relevantly provides that 'possession' of a thing includes:
(a)receiving or obtaining possession of the thing;
(b)having control over the disposition of the thing (whether or not the thing is in the custody of the person).
Section 308.1(2) specifies that the 'fault element'[27] for s 308.1(1)(b) is recklessness.
[27] See s 3 and s 5 of the Commonwealth Criminal Code.
The Code does not specify a fault element for s 308.1(1)(a). Section 5.6 provides:
5.6Offences that do not specify fault elements
(1)If the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element.
(2)If the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element.
Section 308.1(1)(a) contains a 'physical element'[28] - possession. Being in possession of something is a state of affairs. The Code defines 'conduct' as including a state of affairs.[29] Therefore, s 5.6(1) applies, making 'intention' the fault element for the element of possession.
[28] See s 3 and s 4 of the Commonwealth Criminal Code.
[29] Section 4.1(2) of the Commonwealth Criminal Code. Note that, if the conduct constituting the offence consists only of a state of affairs, it will only be voluntary if it is one over which the person is capable of exercising control - see s 4.2(5) of the Code.
Section 5.2 provides:
5.2Intention
(1)A person has intention with respect to conduct if he or she means to engage in that conduct.[30]
(2)A person has intention with respect to a circumstance if he or she believes that it exists or will exist.
(3)A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events.
[30] 'Engaging in conduct' means to do an act or omit to do an act - see s 4.1(2) of the Commonwealth Criminal Code.
Accordingly, the prosecution was required to prove that the appellant meant to engage in a state of affairs. This is an unusual use of language. Nevertheless, it has the effect that the prosecution could prove intention by proving that the appellant knew of that state of affairs.[31]
[31] See The Queen v Tang [2008] HCA 39; (2008) 237 CLR 1 [46] ‑ [47]. See also at [134] and [147].
Given the issue in dispute in this case, to prove intention, the prosecution had to prove that the appellant knew he had the drugs in his toiletries bag.
Section 9.1 provides (bolding in original):
9.1Mistake or ignorance of fact (fault elements other than negligence)
(1)A person is not criminally responsible for an offence that has a physical element for which there is a fault element other than negligence if:
(a)at the time of the conduct constituting the physical element, the person is under a mistaken belief about, or is ignorant of, facts; and
(b)the existence of that mistaken belief or ignorance negates any fault element applying to that physical element.
(2)In determining whether a person was under a mistaken belief about, or was ignorant of, facts, the tribunal of fact may consider whether the mistaken belief or ignorance was reasonable in the circumstances.
Section 9.1 is superfluous to offences which require proof of intention. Proof of intention negates any possibility of the defence of mistake.[32] In this case, if the prosecution proved the appellant knew he had the drugs in his bag, he could not have believed that they had been removed.
The magistrate's reasons
[32] See Bahar v The Queen [2011] WASCA 249; (2011) 45 WAR 100 [28] and Sayed v The Queen [2012] WASCA 17 [39] ‑ [46].
The magistrate delivered her reasons approximately a month after the trial. For this reason, I consider that I should give less weight to the observations of Martin CJ in Strahan v Brennan as referred to earlier. Nevertheless, it remains inappropriate to scrutinise her Honour's reasons with a fine‑tooth comb and some infelicity of language may be expected.
The learned magistrate delivered comprehensive reasons.
Her Honour identified what the prosecution had to prove. This included, relevantly, that the appellant possessed the drugs and that he intended to possess them.[33] Her Honour noted that the appellant relied on a defence of mistake of fact.[34]
[33] Reasons Transcript page 3.
[34] Reasons Transcript page 4.
The learned magistrate said that forgetting does not negate possession. Her Honour said that, '[i]f an accused makes a conscious decision to acquire and keep a controlled drug the required state of knowledge to establish the offence existed at the time of obtaining possession and can be regarded as continuing despite the accused having forgotten its existence'.[35] Her Honour identified the authorities that establish this.[36]
[35] Reasons Transcript page 4.
[36] Reasons Transcript page 4.
The learned magistrate then set out the facts and summarised the evidence given in the trial.[37]
[37] Reasons Transcript pages 5 - 7.
Her Honour noted that, during the interviews:[38]
[T]he accused admitted (1) knowing of the substances because he had obtained them and knew that they existed, (2) knowing the substances were the controlled drug MDMA and LSD and (3) having the substances in his physical custody on 3 October 2018.
[38] Reasons Transcript page 7.
Her Honour rejected the evidence of the appellant, and gave detailed reasons as to why. As the appellant submits that his evidence should have been accepted, I will set out her Honour's reasons in this respect in full:[39]
[39] Reasons Transcript pages 7 - 8. Some formatting has been altered.
Having had the opportunity to consider his position after the interview and the time of apprehension, and then prior to the hearing, the accused provided a completely different explanation at the hearing. I note the following in relation to his evidence:
(1)[O]n the accused's version he knew that the toiletry bag was being used to secure the drugs and that was the only place where the drugs had been secured in Margaret River. There was no other toiletry bag in the bathroom.
(2)The nature, size and items in the toiletry bag. It was a medium‑sized blue‑coloured bag. The bag was full with such items such as, according to the accused, his deodorant, aftershave, tanning oil, toothbrush, etcetera, and whilst his partner stored some souvenirs in the bag the bag and most of the numerous items were the accused's personal effects.
(3)The accused went on a trip to Bali which has notoriously harsh penalties for drug importation.
(4)The accused had a military career approximately years [sic] and is studying law and, therefore, had knowledge of the consequences of possession of prohibited drugs.
(5)He admitted that he had used his toiletry bag regularly and he used it regularly whilst in Margaret River, whilst in Perth for a couple of nights and then in Bali for the two‑week trip.
(6)The accused also declared in his incoming passenger card that he did not have any illegal substances in his luggage. By expressly stating no the accused must have turned his mind to the contents of the luggage or at least the risk of the contents of his luggage.
(7)The accused completely abrogated his responsibility for removal of the drugs from his toiletry bag to Mr Kormany. The toiletry bag was in his possession yet he states that he called Mr Kormany to double‑check whether the drugs had been removed, not checking the toiletry bag himself when he knew that the drugs were stored in it. The accused admitted taking ecstasy at the party.
(8)The accused's explanation for providing a different version at trial, compared to the two interviews with ABF and AFP respectively, was that he 'thought it best to take the hit for the boys'. I consider that the accused was candid, cooperative, forthcoming and remorseful when he participated in the interviews with ABF and AFP on arrival to Australia from Bali. The officers were credible witnesses who gave their evidence regarding the accused's response to questions and his demeanour in an impartial and truthful manner.
In contrast, my assessment of the accused's evidence in court was that he was evasive and lacking in credibility. His explanation for providing a different explanation when interviewed by ABF and AFP was weak, inadequate and non‑persuasive. I consider his evidence was unreliable. I provide minimal weight to the evidence of Mr Kormany and Ms Lack, his friend and partner respectively, as they did not add anything or very little to the accused's defence.
It is completely implausible that the accused did not check whether drugs were in the toiletry bag and/or did not know that the drugs were in there and so he ought to have known that there were drugs in that bag. I do not accept the accused's version of events during the trial.
The learned magistrate found that the 'conduct' of the appellant, for the purposes of the charge, was his act of obtaining possession of the drugs around 11 September 2018, and the subsequent act of maintaining the custody of the drugs by keeping them in his toiletries bag and not removing them.[40] She said:[41]
Therefore, as at the time he purchased or obtained the drugs, he had the required state of knowledge to establish the offence. If he forgot they were in his toiletry bag this is not a defence to the charges. To the extent that the accused relies on any defence under section 9.1 of mistaken belief that the drugs were not in his toiletry bag, objectively such a belief was not reasonable in the circumstances. The accused has not satisfied the onus of establishing that defence.
Accordingly, on this version of events, I'm satisfied beyond reasonable doubt of the elements of the offences and I find the accused guilty of the charges.
[40] Reasons Transcript pages 8 ‑ 9.
[41] Reasons Transcript pages 8 ‑ 9.
Error in relation to the evidence of Mr Kormany
As I have foreshadowed, I consider that there is no merit in any of the appellant's complaints. However, I consider that the appeal should be allowed on a basis not raised by the appellant.
I will deal with this first.
As noted earlier, the learned magistrate rejected the appellant's evidence, finding it to have been implausible. In relation to the two witnesses called by the appellant, her Honour said:
I provide minimal weight to the evidence of Mr Kormany and Ms Lack, his friend and partner respectively, as they did not add anything or very little to the accused's defence.
In my view, this statement demonstrates that her Honour did not appreciate the extent of Mr Kormany's evidence and did not appreciate that it added substantially to the appellant's defence.
The appellant's defence at trial was that he believed the drugs had been removed from his toiletries bag. His evidence was that he believed this primarily because of conversations he alleged he had with Mr Kormany. The alleged conversations were therefore a core plank of the appellant's defence.
Her Honour rejected the appellant's evidence. Her Honour found that, as at the time he purchased or obtained the drugs, the appellant had the required state of knowledge to establish the offence. As I will later explain,[42] her Honour found that the appellant had simply forgotten that the drugs were in his bag. Her Honour had noted the authorities that established that this did not mean that the prosecution had failed to prove the element of knowledge. Rather, his original knowledge could be regarded as continuing despite him forgetting about the drugs. Her Honour found that the appellant knew the drugs were in his bag on this basis.
[42] See under the heading 'Was it open to the learned magistrate to find that the appellant knew the drugs were in his possession?'
In rejecting the appellant's evidence, her Honour implicitly rejected his evidence as to the alleged conversations with Mr Kormany. Further, her Honour's finding that the appellant had simply forgotten that the drugs were in his bag was an implicit rejection of the appellant's claim to have positively believed that the drugs had been removed due to his conversations with Mr Kormany.
Mr Kormany gave evidence that he had had conversations with the appellant of the sort alleged.[43] Therefore, Mr Kormany's evidence supported the core plank of the appellant's defence. It would only 'not add anything or very little' if the evidence it supported had been accepted. That is, Mr Kormany's evidence would not have substantially added to the appellant's defence only if the learned magistrate had accepted the appellant's evidence about the alleged conversations. However, her Honour rejected the appellant's evidence.
[43] See, in particular, Trial Transcript page 49.
Mr Kormany's evidence, if accepted, added substantially to the appellant's defence. If it was accepted, it was relevant to the assessment of whether the appellant's evidence should be accepted or rejected.
As noted earlier, prior to the hearing, I drew the parties' attention to my concerns about some of the magistrate's statements. My first concern was expressed as follows:
[I]n relation to the two witnesses the appellant called, the magistrate said 'I provide minimal weight to the evidence of Mr Kormany and Ms Lack, his friend and partner respectively, as they did not add anything or very little to the accused's defence'. It seems that her Honour did not appreciate the extent of Mr Kormany's evidence or she failed to appreciate that it added substantially to the accused's defence. The appellant's core contention was that he believed the drugs had been removed from his toiletries bag. His evidence was that he believed this primarily because of conversations he alleged he had with Mr Kormany. In rejecting the appellant's evidence and finding that he knew the drugs were in his bag, her Honour implicitly rejected his evidence as to the alleged conversations with Mr Kormany. Mr Kormany gave evidence that he had had conversations with the appellant of the sort alleged.
The respondent filed detailed written submissions in response. However, the submissions did not address my concern.
First, the respondent submitted that the appellant gave two versions as to his knowledge of the drugs - one to the officers in the interviews and one in court.[44] While true, this is not relevant to the support Mr Kormany gave to the appellant's defence. The appellant's defence, and his evidence, was that he believed the drugs had been removed.
[44] Respondent's Further Submissions filed 18 January 2021 [3]ff.
Second, the respondent submitted that the magistrate was required to decide which of the two versions she accepted, if any.[45] The magistrate was required to determine whether the appellant's evidence gave rise to a reasonable doubt. In making this determination, any evidence that corroborated or otherwise supported his evidence would obviously be relevant.
[45] Respondent's Further Submissions [4], [15].
Third, the respondent submitted that the appellant was not an impressive witness and his explanation for the version he gave to the officers was unpersuasive.[46] This may well be so. This did not mean the magistrate was free to incorrectly characterise supporting evidence as adding nothing or very little to the defence.
[46] Respondent's Further Submissions [11] ‑ [13].
Fourth, the respondent submitted that a 'Magistrate does not err in law by rejecting evidence, provided it was open to the Magistrate to reject that evidence and the rejection of the evidence is adequately explained'.[47] My concern is not that the magistrate erred in rejecting evidence. My concern is that the magistrate did not reject Mr Kormany's evidence, yet did not appreciate that Mr Kormany's evidence supported the appellant's defence.
[47] Respondent's Further Submissions [14].
Fifth, the respondent submitted that it was open to the magistrate to make the findings of fact she made, that Mr Kormany's evidence was not determinative of the appellant's state of mind, and that an acceptance of the version given to the authorities did not require a rejection of Mr Kormany's evidence.[48] These statements may be accepted but they do not bear upon my concern.
[48] See the Respondent's Further Submissions [18] ‑ [20].
It seems that her Honour failed to appreciate the extent of Mr Kormany's evidence. Her Honour said that Mr Kormany gave evidence that 'he asked people to remove drugs and he thought they had'.[49] This was, with respect, an inadequate summary of Mr Kormany's evidence.
[49] Reasons Transcript page 7.
Having regard to the high volume and nature of the work of magistrates, I have considered whether it is possible that her Honour did appreciate the extent of Mr Kormany's evidence but simply rejected it. Her Honour may have considered that Mr Kormany was giving untruthful evidence in support of the appellant due to their close friendship. Her Honour may have considered that the alleged conversations were inherently implausible. Alternatively she may have thought Mr Kormany's evidence was unreliable. However, her Honour did not expressly make a finding that Mr Kormany's evidence was untruthful or unreliable. Her statement that his evidence did not add anything or very little to the appellant's defence suggests she did not make either finding, but simply considered his evidence to be of no or little import. In the absence of such a finding, Mr Kormany's evidence was part of the evidence that her Honour was required to take into account in considering whether the appellant's evidence gave rise to a reasonable doubt.
I am satisfied that the learned magistrate failed to appreciate the extent of Mr Kormany's evidence and failed to appreciate that, if accepted, it added substantially to the appellant's defence.
During the hearing, I gave the appellant leave to amend his grounds of appeal to include a ground that the learned magistrate erred in finding that Mr Kormany's evidence was limited to having asked people to remove drugs and thinking that they had. The respondent quite properly did not oppose the appellant being granted leave to add this ground.
Omission of a finding of fact?
The respondent submitted that:[50]
If the Court were of the view that a finding ought to have been made about the truthfulness or otherwise of Mr Kormany's evidence, then the Respondent would rely on section 14(3) of the Criminal Appeals Act 2004 (WA), which provides that this Court is not require[d] to set aside a decision of a Court of summary jurisdiction because the Court omitted to make any necessary finding of fact, where either evidence in substance supports the decision or justifies the finding made by the Magistrate. In the present case, the evidence supported the conviction.
[50] Respondent's Further Submissions [21].
I earlier explained the scope of s 14(3). It is not enough to demonstrate that it would have been open to the magistrate to convict the appellant on the basis of all of the evidence. Unless it can be said that the evidence was such as would have inevitably led to the conviction, s 14(3) does not apply.
In any event, the submission misunderstands my concern. It is not that the magistrate failed to make a finding as to the truthfulness of Mr Kormany's evidence. It is that the magistrate did not appreciate that it was capable of supporting the appellant's defence.
The respondent also submitted that Mr Kormany's evidence went to the evidential burden giving rise to the requirement to consider the defence of honest and reasonable belief in s 9.1 of the Commonwealth Criminal Code. The respondent submitted that the learned magistrate found that any mistaken belief was not reasonable.[51] The respondent appeared to implicitly submit that it therefore would not matter if the magistrate mischaracterised Mr Kormany's evidence.
[51] Respondent's Further Submissions [22].
I do not accept this. As I have explained, s 9.1 was superfluous to the alleged offence. The prosecution was required to prove that the appellant knew that the drugs were in his bag.
Mr Kormany's evidence was part of the evidence relevant to whether the prosecution had proved that the appellant knew that the drugs were in his bag. It was capable of supporting the appellant's defence that he did not know the drugs were in his bag, as he thought they had been removed. Accordingly, it was capable of bearing upon the question of whether the evidence as a whole gave rise to a reasonable doubt as to whether the appellant knew the drugs were in his bag.
No miscarriage of justice?
As noted earlier, even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.
The prosecution case was very strong. The appellant's version of events was implausible. Nevertheless, the error cannot be characterised as immaterial or inconsequential. It cannot be said that the error could not have affected the outcome.
I am therefore not satisfied that there was no miscarriage of justice and would allow the appeal.
This makes it unnecessary to consider the appellant's grounds of appeal. However, I will make some observations about them.
I will also address two other areas of concern in the magistrate's reasons in relation to the defence of mistake and the element of intention.
Analysis of appellant's grounds of appeal
Appellant's submissions in the appeal
The appellant was unrepresented in the appeal. No doubt that is why a number of his submissions were misconceived.
First, the appellant addressed the circumstances in which a lie may be used in inferring guilt.[52] The learned magistrate relied on what the appellant had said to the officers in the interviews. She rejected his evidence in the trial. She did not, however, rely on any lies to support a finding of guilt.
[52] Appellant's submissions [1] ‑ [2].
Second, the appellant addressed the operation of s 24 of the Criminal Code (WA).[53] This section does not apply to Commonwealth offences. The mistake of fact provisions that apply to Commonwealth offences are s 9.1 (fault elements other than negligence) and s 9.2 (strict liability) of the Commonwealth Criminal Code.
[53] Appellant's submissions [19] ‑ [22].
The appellant correctly identified that it was necessary for the prosecution to prove that he knew the drugs were in his toiletries bag.[54]
[54] Appellant's submissions [3] ‑ [15].
The appellant submits:[55]
In this case, the appellant had the drugs put in his bag without his knowledge. Upon learning this fact, the appellant; a long‑serving special forces soldier conditioned to having his orders followed; directed the perpetrator to remove the drugs not once but numerous times. He was told they were removed, and he reconfirmed that they had been removed. He then had a cursory look himself to make sure they had been removed. In his mind, he was sure that there were no longer any illegal substances secreted in the communal toiletries bag. This fact is exemplified by the appellant and his partner packing this same toiletry bag on their family trip to Indonesia three days later. It was well known by the appellant, of the severe consequences of being caught with drugs in Indonesia, the prosecution conceded this fact during the trial. This then begs the question, if the appellant was not 100 per cent sure in his mind that the family toiletry bag did not contain the illicit substances; why would he have taken the risk.
Was it open to the learned magistrate to find that the appellant knew the drugs were in his possession?
[55] Appellant's submissions [23].
The learned magistrate found that the appellant obtained possession of the drugs around 11 September 2018 and kept them in his toiletries bag until they were found by the ABF officers.[56]
[56] Reasons Transcript pages 8 ‑ 9.
The learned magistrate rejected the appellant's evidence at trial. In doing so, her Honour implicitly rejected his claim to have believed the drugs had been removed.[57]
[57] Reasons Transcript page 8.
Her Honour found that he knew the drugs were in his bag when they had first been obtained and put into his bag.[58]
[58] Reasons Transcript page 9.
As I will explain, it is not entirely clear whether her Honour found that the appellant had forgotten the drugs were in his bag.
At one point, her Honour said that the appellant 'was candid, cooperative, forthcoming and remorseful when he participated in the interviews' with the officers.[59] That is, her Honour found, in effect, that he had told the truth in the interviews. In the interviews, he said, among other things, that he had forgotten the drugs were in his toiletries bag. Later in her reasons, however, the learned magistrate said (emphasis added) '[i]f he forgot'.[60]
[59] Reasons Transcript page 8.
[60] Reasons Transcript page 9.
Having regard to Martin CJ's remarks,[61] I consider that a fair reading of the learned magistrate's reasons is that her Honour found that the appellant had forgotten the drugs were in his toiletries bag. This is consistent with her Honour's finding that what he had said in the recorded interviews was truthful, and that what he had said in his evidence was not.
[61] In Strahan v Brennan, quoted earlier.
In my view, it was open to the learned magistrate to reject the appellant's evidence.
The learned magistrate gave detailed reasons for rejecting the appellant's evidence. The reasons were cogent. Her Honour found his evidence to be implausible. It was open to her to make this finding.
In particular, it was open to her Honour to consider that it was implausible that, believing that drugs had been in his bag, he would not have thoroughly[62] checked his bag himself before travelling to Bali, and would simply rely on someone telling him that the drugs had been removed.
[62] In cross‑examination, the appellant said he had a 'cursory look', but when pressed he qualified this somewhat, saying 'I did not have a severe look through it, but I did place items back in the bag and I didn't notice anything' - see Trial Transcript page 41.
It was also open to her Honour to consider that his evidence of the alleged conversations with Mr Kormany was implausible. This evidence included the appellant's claim that, after he returned to Perth, and when he had his bag with him, he had called Mr Kormany, who no longer had access to the bag, and asked him again if Mr Kormany was sure all the drugs had been removed. It was open to her Honour to consider that this evidence was particularly implausible.
In my view it was open to the magistrate to reject the appellant's evidence and find that he knew the drugs were in his bag at the time he had obtained them, and that he had simply forgotten they were in his bag.
Was it open to the learned magistrate to find that the appellant had custody of, or control over, the drugs?
Sub‑ground 3 is, in effect, directed to whether it was open to the magistrate to find that the appellant had the custody of, or control over, the toiletries bag. The appellant submits that this finding was not open as he did not have exclusive use of the toiletries bag during the period they were in Bali.
The appellant does not suggest that the magistrate should have found there was a reasonable possibility that someone had put drugs in his bag when they were in Bali. His submission is simply that, because the bag was used by others, it (and its contents) could not be said to be in his custody or control.
It is immaterial that other people used the toiletries bag leading up to the day of the offence. On the day of the offence, the appellant was caught with the toiletries bag in his suitcase. He knew that it was in his suitcase. Once he was found to have known the drugs were in the toiletries bag, it followed that the drugs were in his control and custody.
Did the learned magistrate err in saying that the appellant's evidence was that he had telephoned Mr Kormany and asked if he had removed the drugs?
The appellant asserts that the magistrate erred in saying that the appellant's evidence was that he had telephoned Mr Kormany and asked if he had removed the drugs, when the appellant's evidence was that he had asked Mr Kormany in person.
The appellant gave evidence of both matters.
In relation to the first matter, both the appellant and Mr Kormany gave evidence that after the appellant returned to Perth, he had again asked Mr Kormany if all the drugs had been removed.[63] From the context, this was not a conversation in person. Mr Kormany confirmed that this was by telephone.[64] The magistrate did not err in saying that the appellant's evidence was that he had telephoned Mr Kormany and asked if he had removed the drugs.
[63] Trial Transcript pages 37, 49 and 53.
[64] Trial Transcript page 53.
Nor did the magistrate overlook the appellant's evidence that he had had conversations with Mr Kormany in person when they were both at Margaret River.[65]
Conclusion on appellant's grounds of appeal
[65] See the second paragraph of the magistrate's summary of the appellant's evidence, extracted above.
Accordingly, there is no merit in any of the grounds of appeal in the appellant's proposed substituted grounds of appeal, even as clarified in their amended form. I would not give leave to appeal on any of those grounds.
Other issues not raised by the appellant
I will make some further observations about two other issues that arise from her Honour's reasons, in the hope that this will be of assistance when the matter is re‑tried. I also gave the parties advance notice of these issues, and the respondent's further submissions sought to address them.
Onus of proof in defence of mistake
The first issue relates to the onus of proof in the defence of mistake under s 9.1 of the Commonwealth Criminal Code. As noted earlier, the defence of mistake is superfluous in an offence which requires proof of intention. Nevertheless, where it is applicable, it is important to understand who bears the burden of proof.
Her Honour's reasons indicate that she considered that the appellant bore 'the onus of establishing that defence' 'on the balance of probabilities'.[66] This was, with respect, incorrect.
[66] Reasons Transcript pages 3 ‑ 4 and 9.
A person charged with a Commonwealth offence does not have to prove anything on the balance of probabilities unless a legal burden of proof has been imposed on them.[67]
[67] See s 13.5 and s 13.4 of the Commonwealth Criminal Code.
A legal burden of proof is not imposed in relation to a defence of mistake; it is only an 'evidential burden'.[68]
[68] See Commonwealth Criminal Code s 13.3(1) and (2).
An evidential burden does not require proof on the balance of probabilities. 'Evidential burden' is defined in s 13.3(6) of the Code to mean 'the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist'. This requires 'no more than slender evidence'.[69] Further, 'for the purposes of establishing whether the evidential burden … has been discharged, the evidence may be taken at its most favourable to the accused'.[70]
[69] R v Khazaal[2012] HCA 26; (2012) 246 CLR 601 [74] (Gummow, Crennan & Bell JJ).
[70] Khazaal [74] (Gummow, Crennan & Bell JJ).
If the evidential burden is discharged, the prosecution bears the legal burden of negativing the defence beyond reasonable doubt.[71]
[71] B v R [2015] NSWCCA 103 [2], [217], and [339]. See also, in the similar context of self‑defence under the Criminal Code (WA),
The respondent's further submissions acknowledged that the magistrate had erred.[72] However, the respondent submitted that the error did not give rise to a substantial miscarriage of justice.[73] In one sense, I accept this, although not for the reasons given by the respondent. It is correct only in the sense that, because s 9.1 was irrelevant to the case, it did not matter that the magistrate misunderstood the onus and standard of proof in relation to s 9.1. However, the misunderstanding is consistent with the magistrate's apparent misunderstanding as to what is required to prove the element of intention. This apparent misunderstanding is addressed next.
Intention element
[72] Respondent's Further Submissions [30] ‑ [31].
[73] Respondent's Further Submissions [32] ‑ [33].
Her Honour said that the element of intention can 'also be described as an "absence of an honest reasonable belief"',[74] referring to Police v Pfeifer.[75] Later, her Honour said that the prosecution had to prove that the appellant 'intended to possess the MDMA and the LSD or at least had an absence of an honest and reasonable belief as to his custody of the MDMA and LSD'.[76]
[74] Reasons Transcript page 3.
[75] Police v Pfeifer (1997) 68 SASR 287, 286.
[76] Reasons Transcript page 7.
In fairness to the magistrate, I observe that these statements reflected submissions that had been made by the prosecutor in the trial[77] (not counsel in the appeal).
[77] See Trial Transcript page 59.
Police v Pfeifer was dealing with a very different legal framework. It does not establish that proof of intention can be satisfied by proof of an absence of an honest reasonable belief. Doyle CJ was discussing offences in which intention was not an element (emphasis added):[78]
Fourthly, that even if intention to bring about a given state of affairs, or knowledge that a given state of affairs is likely to eventuate, is not an element of an offence, it does not follow that the offence is one of absolute liability. In Australia the mental element required for an offence can also be described as an absence of an honest and reasonable belief in the existence of facts which would have made the relevant act innocent. Unless the offence is one of absolute liability, if the issue is raised on the facts, the prosecution must establish the absence of what I will, for convenience, call an honest and reasonable belief. If the conclusion is that the absence of such belief is an element of the offence, it is for the prosecution to establish that absence before a conviction can be secured.
[78] Police v Pfeifer (286).
The flaw in stating that the element of intention can be satisfied by proving an absence of an honest and reasonable belief can be illustrated in this way. Imagine that an accused honestly believed there were no drugs in his bag, but that that belief was not reasonable. On such a scenario, the prosecution would have proved that the accused did not have a reasonable belief that there were no drugs in his bag. However, it would not have proved that the accused knew that the drugs were in his bag.
Unless the prosecution proved beyond reasonable doubt that the appellant did not believe there were no drugs in his bag (that is, that he did not believe that they had been removed), the prosecution must fail. If it was reasonably possible the appellant had this belief, the prosecution would have failed to prove he knew the drugs were in his bag when he was caught. It would also have failed to prove that he had once known about the drugs being in his bag but had simply since forgotten (and his knowledge should therefore be regarded as continuing). A positive belief that something is not there is a different state of mind to an absence of memory that something is there. The authorities which establish that an accused's original knowledge of drugs can be regarded as continuing despite the accused having forgotten about the drugs are not applicable to an accused who positively believes that the drugs are not there.
The respondent's further submissions acknowledged that Pfeifer has no application to the interpretation of intention for the purposes of the Commonwealth Criminal Code or an offence against s 308.1 of the Code.[79]
[79] Respondent's Further Submissions [35].
However, the respondent's further submissions made the same error made by the magistrate. The respondent submitted, in effect, that, if the magistrate accepted that the appellant had believed the drugs had been removed from his bag, her Honour would be required to consider whether the prosecution had disproved the defence of mistake.[80]
[80] Respondent's Further Submissions [15(b)] and [36].
I accept that, even if there is a reasonable possibility that an accused forgot that drugs were in their possession, this does not meant that the prosecution cannot prove knowledge beyond reasonable doubt. As I have said, if an accused has knowledge of being in possession of drugs when possession is obtained, that knowledge can be regarded as continuing even if the accused forgets about the drugs. However, contrary to the respondent's submissions, if the magistrate accepted that the appellant had believed the drugs had been removed from his bag (or even if she considered this was a reasonable possibility), the prosecution would have failed to prove beyond reasonable doubt that he knew they were in the bag. The prosecution would have failed to prove the element of intention. He would have to be found not guilty.
Conclusion
For the above reasons, I would allow the appeal, set aside the convictions, and remit the matters to the Magistrates Court for a retrial.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AG
Research Associate to the Honourable Justice Archer
17 FEBRUARY 2021
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