Mokbel v The Queen

[2010] HCATrans 329

[2010] HCATrans 329

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M21 of 2010

B e t w e e n -

ANTONIOS SAJITH MOKBEL

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

FRENCH CJ
BELL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 DECEMBER 2010, AT 12.55 PM

Copyright in the High Court of Australia

MR S.A. SHIRREFS, SC:   If the Court pleases, I appear on behalf of the applicant.  (instructed by Robert Stary Lawyers)

MS W.J. ABRAHAM, QC:   May it please the Court, I appear with my learned friend, MS D.D. GURVICH, for the respondent.  (instructed by Director of Public Prosecutions (Cth))

FRENCH CJ:   Yes, Mr Shirrefs.

MR SHIRREFS:   If the Court pleases, this application is concerned with the meaning of “importation”.  It is a very confined point, but nonetheless, one that we submit is of importance, in particular, of importance in relation to the criminal law of the Commonwealth.

FRENCH CJ:   Does it not turn on the extent to which it could be said that your client was knowingly concerned in the importation?

MR SHIRREFS: It turns on what is the importation, with which he is said to be knowingly concerned - that is the question and, notwithstanding, in our submission, the repeal of the offence of being knowingly concerned in the importation the offence that now replaces it, which is defined in section 300.2 of the Criminal Code (Cth), which is that “import” means:

in relation to a substance, means import the substance into Australia and includes:

(a)bring the substance into Australia –

and then these are the important words –

(b)deal with the substance in connection with its importation.

So the section that now replaces what was previously knowingly concerned in the importation extends to a person dealing with the substance in connection with its importation.  In the new form of the offence, what is the importation is central to what is to be determined by a jury in relation to a criminal offence.

BELL J:   The new form of the offence is not knowingly concerned.

MR SHIRREFS:   It is not knowingly concerned, it is ‑ ‑ ‑

BELL J:   That concept has slipped out of the Commonwealth’s armoury.

MR SHIRREFS:   Yes, but that is not ‑ ‑ ‑

BELL J:   Well, it is significant for this application.

MR SHIRREFS:   It is not, with respect, your Honour, for this reason, because in either form of the offence, be it knowingly concerned with the importation, or deal with the substance in connection with its importation, in both criminal provisions what is at focus and what is the issue is what is the importation and what is meant by that concept.  That is what we say is important in this application when one considers what was said by Chief Justice Barwick in Forbes v Traders’ Finance, and that is:

“importation” extends on both sides of the actual act of importing goods into the country –

but then went on to say that those acts must be –

sufficiently proximate to the act of importing –

Now in this case, the act of importing was the act performed by the Executive Government of the United States and Australia.  The question then is what are said to be the acts sufficiently proximate to that act of importing, to bring those acts within the concept of importation.  The point of dispute, or the point of controversy that we raise is concerned only with one paragraph in the judgment of the court below, paragraph 28, which is at application book 326, where the Court said:

The process of importation of the cocaine began with its dispatch from Mexico and ended with its collection by Ron Cassar in Melbourne.  The intermediate steps – seizure in the United States and then carriage to Australia by officials – did not terminate the process.  They were part of it.

We say that is where the error exists in this judgment.  If, on the facts, that is a correct application of principle, then we have no complaint.  What we say is, on the facts, and an appropriate application of principle, it is in error, because what it has done is conflate a process that has started in Mexico and terminated in the United States. 

That termination occurred when US Customs officials examined packages that were coming in because they had been tipped off.  They drilled into the packages, they found cocaine.  Pursuant to the lawful authority they had, they seized those goods because they were in violation of US federal law.  Having seized the goods, they then retained them as evidence of the commission of those offences.  There was, at that time, no plan in place in relation to that cocaine.  Had it remained in the United States, it would have been destroyed.  That is the evidence that was before the jury.

BELL J:   In the event that the law enforcement authorities had not become involved in this venture, would it have been open to the Crown to have led evidence to establish that the process of importation, with which your client was knowingly concerned, began with some conduct involving the dispatch of the goods from Mexico?

MR SHIRREFS:   Undoubtedly, because what would have occurred was the act of importation would have been by UPS, the independent agent acting as courier, pursuant to the arrangement, and the acts that set that in process go right back to Mexico.  There is no doubt.  That is unquestionable.  The point of departure here is that the plan that was later hatched following the seizure of the goods by US Customs officials was then a new process and a new venture, and was in fact the cause of the act of importing.

BELL J:   The intervention of the law enforcement authorities left open that the process of importation, with which your client was associated, could have been brought to an end, and was not, as the result of a decision of which he had no knowledge.

MR SHIRREFS:   The point we make is that it did come to an end.  It did come to an end as a result of the seizure.  It came to an end ‑ ‑ ‑

BELL J:   How one characterises it.

MR SHIRREFS:   And there is characterisation.  The US Customs officials who testified said “We seized it pursuant to our lawful authority, it was in violation of US federal law.  We seized it as an exhibit”, and in fact, the Customs seizure record that was tendered stated that it was seized as evidence for violation of US law.

It was not until some 18 hours later, through subsequent negotiations between the United States and the Australian officials, that a new venture was implemented.  That was when the control operation certificate was signed by an Australian Federal Police commissioner some 18 hours later, which then commenced what was, we say, in terms of this characterisation, the initiation of the venture, that venture being implemented by the Executive of both the United States and Australia to cause the act of importing into Australia. 

You cannot, in the manner in which we say the court below erred, extend that process back to a point prior to that decision being made.  That was, to adopt the words of Justice Stephen in White v Ridley, a wholly new cause, which was the cause of this importation.  It was the cause of the act of importing the goods into Australia. 

The only manner in which it could then be said that Mr Mokbel, the applicant here, was knowingly concerned, if one – we say, impermissibly – extended that venture back to some anterior process commenced out of Mexico, or some later matter where many, many days later, after the goods had been brought in by US Customs officials, delivered to Australian police pursuant to their agreement, three days later the packages were deconstructed, the cocaine was removed, it was then reconstructed with a small amount put into it, and then delivered to Tullamarine Airport here in Melbourne so it could then go back into the UPS Customs stream, so that some days later Mr Cassar went and collected it, that it was, again, a wholly new cause.

On the evidence in this case, and it would not take much to come to this conclusion, had Mr Mokbel known what was taking place he would have had no concern in it, no interest in it, and would not want to be associated with it.  In terms of the characterisation, what occurred here was as a result of a wholly new cause created by the decision between the Executives of the United States and Australia. 

The point of issue in relation to this case, in terms of its importance, is that on the facts as the court below has applied the appropriate principles, it has broadened the concept of importation.  It has broadened the concept of importation contrary to the passage that I just directed the Court out of Forbes v Traders’ Finance, the passage of Chief Justice Barwick, and also in that case, Justice Windeyer expressed the same view, that importation extends on either sides of the act of importing, but it must be sufficiently proximate to the act of importing to be considered to be part of the venture. 

What we submit here is that the error that was made by the court below was to conclude that the concept of importation is sufficiently flexible to extend to activities occurring prior to the commencement of the process that brought the act of importing into being.  If one then considers that conclusion in light of what is now the offence under the Criminal Code (Cth), although it does not say “knowingly concerned”, it focuses on the importation, which is deals:

with the substance in connection with its importation.

The point of contention here is what is meant by the importation, and the judgment of the court below would be equally applicable to the manifestation of the offence that is now embodied in the Criminal Code (Cth). That is why it is a matter of importance. If the Court pleases.

FRENCH CJ:   Yes, thank you, Mr Shirrefs.  Yes, Ms Abraham.

MS ABRAHAM:   In our submission, in reality, the issue that is raised by this application is whether in relation to the now repealed offence of being knowingly concerned in the importation of drugs, intervention by the authorities terminates that process.  In the Crown’s submission, it does not. 

Principally, the respondent opposes leave on two bases.  The first, in our submission, the judgment of the Court of Appeal is clearly correct.  It has applied well‑established principles in relation to the concepts of “knowingly concerned” in the importation of drugs to the facts of this case, and secondly, the offence provision has been repealed.  It was in fact repealed in 2001 – I think we have in our submissions it is 2005 – it is 2001, that that aspect of 233B was repealed, the “knowingly concerned” aspect, when Part 2 came into play.  Then in 2005, the drug offences were inserted into the Code, and there is no equivalent offence.

BELL J:   But you have been without “knowingly concerned” since the general principles of criminal responsibility.

MS ABRAHAM:   Yes, that is correct.

BELL J:   Yes.

MS ABRAHAM:   And the provision my friend has referred to that is said to be the basis of general application now is the definition of “imports” for the importing offence, which is clearly not an offence of “knowingly concerned”, and can I pause there.  Obviously the elements of importing are different to the elements of a “knowingly concerned” in an importation.  The new provision has not yet been the subject of any intermediate appellate decisions.  It has only been that definition since early 2010. 

In my submission, it is an important starting point to consider what the offence actually is with which this man is charged, and that is knowingly concerned in the importation, not with importing.  That was an important distinction in the court below and, in our submission, clearly a correct distinction.

FRENCH CJ:   But do you accept that the decision of the Court of Appeal depends critically upon there being one importation, rather than two separate importations?

MS ABRAHAM:   Yes.  It is based on the fact there is an importation, yes.

FRENCH CJ:   Yes.  In other words, that if he is knowingly concerned in an importation, it has to be an importation which began in Mexico and ended in Melbourne.

MS ABRAHAM:   Yes, and just pausing there on the facts for a moment, clearly what was ‑ ‑ ‑

FRENCH CJ:   I mean, that is the point of issue, whether the Court of Appeal was right to so characterise the importation, as Mr Shirrefs put it.

MS ABRAHAM:   Yes, that is correct.  On my friend’s argument, to be knowingly concerned, you would have to know all the steps involved in the actual importation and be responsible for the importation.

FRENCH CJ:   His argument is simpler than that, I think.  His argument is simply that the importation in which his client was knowingly concerned finished in the United States.

MS ABRAHAM:   I accept that, but the ‑ ‑ ‑

FRENCH CJ:   And his client had no interest in what happened thereafter, if you like.

MS ABRAHAM:   Of course, with respect, whenever the authorities are involved, why on earth, if anybody knew the authorities were involved covertly in an operation.  But the consequence of my friend’s submission is that it becomes, in effect, an element of the offence that you must know and agree to the terms of what occurred along the way.

BELL J:   Whereas the approach of the Court of Appeal was the process began with this quantity of cocaine in Mexico and it continued, albeit with a change to the disadvantage of the applicant, namely the intervention of the authorities.

MS ABRAHAM:   Yes, so that he financed and paid for the drugs that were posted in Mexico.  He had arranged for somebody to collect the drugs when they arrived, and did arrive, in Australia, so at two different ends.  In my submission, it is well‑established authority that in relation to the offence of knowingly concerned the intervention of the authorities does not terminate that process.  My friend’s argument here is that it has actually terminated twice, once in America and once in Australia, where the authorities in Australia take out the drugs and only put 20 grams back.

In my submission, the authorities are clear – and there is no valid point of distinction between this case factually and those cases – that because the concept is importation, and what one must prove is an importation to which you are knowingly concerned as opposed to “you are responsible for the importation”, the intervention by the authorities is not a terminating feature. 

For example, I think it was in Lam, the New South Wales Court of Criminal Appeal case, where the intervention was when the drugs arrived in Australia.  The process of importation, however, was said to continue, despite the fact it was in the control of the police and despite whatever happened thereafter.  It was obviously in the control of the police.  Lam involved sending somebody to a hotel in place of what was to be the courier, to meet up with the person who was to collect the drugs.  So the process of importation was not terminated, despite the fact that everything that occurred thereafter occurred at the direction of the authorities.

Similarly, Leff, which factually was different, there was a courier who continued at the instigation of the police to take phone calls, the police, had the drugs involved, the importation had not been terminated.  Similarly, cases like Courtney-Smith, where once the drugs were found…..was resealed, and the package passed on, or Sukkar, where the drugs were replaced and moved on. 

But the important thing, with respect, in relation to all those authorities, and there are others cited in our submissions, is that the court decided that given the nature of the particular offence the importation was not complete simply because the police gained custody of the drug in question and that what occurred thereafter was still the process of importation which had begun, obviously, with the drugs being sent from overseas.

In my submission, those authorities were correctly applied by the Court of Appeal in this case.  There is no valid point of distinction in this case and there has been, with respect, no attempt to make a point of distinction.  It is not an answer, with respect, to say it occurred in America.  Well, it did occur in America, but if the principle is correct, then in my submission, it makes not one iota of difference whether it occurred in America, whether it occurred on one side of Customs, the other side of Customs, whether it occurred in Mexico, in my submission.  The rationale behind those decisions would equally apply. 

So, in my submission, the decision of the court below is correct, most succinctly stated in paragraphs 22 and 28 of the judgment – that is at application books 325 and 326.  What is critical to that, in my submission, is the court quite correctly has concluded that the Crown was not required to prove he was responsible for the importation.  One is not talking about imputing any conduct to him of the authorities.  He is not charged with importing.  There simply must be an importation to which he is knowingly

concerned.  There was an importation.  He paid for the drugs, the drugs left Mexico, his drugs arrived in Australia.  He did acts at either end.

So, in my submission, the decision of the court below is clearly correct.  The argument of my friend ignores, with respect, the elements of the offence with which the accused is charged and, with respect, is inconsistent with well‑established authority.  As we said earlier, in our submission, obviously a matter of importance is that the offence provision no longer occurs.  I said 2001 – we are talking nearly 10 years ago that this offence provision was repealed.  In my submission, in those circumstances, this case has no issue of general application whatsoever.  Those are my submissions.

FRENCH CJ:   Thank you, Ms Abraham.

MR SHIRREFS:   If I can make three points.

FRENCH CJ:   Yes, Mr Shirrefs.

MR SHIRREFS:   The first is, your Honour, and it flows somewhat from what my learned friend said towards the end and is in fact the issue which we say the court below erred.  The offence is not that the applicant is knowingly concerned in an importation.  The offence under the Customs Act, as it stood at the time, was that the applicant was knowingly concerned in the importation.  That is a matter that is relevant pursuant to the present offence under the Criminal Code (Cth), where “import” includes:

deal with the substance in connection with its importation –

the singular, not “an” importation, a particular importation.  The correct approach is not that which was made by the court below to see whether or not a process was commenced – in this case, a process which commenced in Mexico – but to look, applying the principles enunciated by Chief Justice Barwick and Justice Windeyer in Forbes v Traders’ Finance, at the act of importing the goods and to consider whether or not acts on either side of that act of importing are sufficiently proximate to it because that determines the parameters and boundaries of what is the importation.  That is the correct approach.

The cases to which my learned friend has referred, other cases of Lam, Leff, Courtney-Smith and the others, were cases in which the act of importing occurred pursuant to the joint criminal enterprise, so there was no issue of, as it was here factually, a process of a purported importation, an attempt to import, terminating on foreign soil, the goods being seized by officers of the Executive Government of that country and to be forfeited to that country, and then some later arrangement being entered into, as was the case here, to commence a wholly new venture.

The venture that was the cause of this act of importing was the decision to bring it into Australia for the purpose of law enforcement officers of the Australian Federal Police to see where it would end up.  If one looks at the act of importing, then looks on the acts of either side to see whether they are sufficiently proximate, they do not extend back to what occurred in Mexico days earlier.

BELL J:   It is always difficult characterising these things, but ‑ ‑ ‑

MR SHIRREFS:   That is the way it should be characterised, in my submission.

BELL J:   I understand that is your submission, but your acknowledgement that the process commenced ‑ ‑ ‑

MR SHIRREFS:   A process commenced.

BELL J:   A process commenced with the acts in Mexico, you can regard that process as being brought to an end and an entirely fresh process commenced or, for the purpose of the offence of being knowingly concerned in the importation, see the intervention of the law enforcement authorities as an unwelcome incident, but not breaking, as it were, the connection between your client involved in initiating the process and, indeed, at the Australian end.

MR SHIRREFS:   That latter approach, your Honour, blinds one from what is in fact the central issue as to what is the importation.

BELL J:   We can go round in circles ‑ ‑ ‑

MR SHIRREFS:   That is the point, because if you go to what is said in this Court by Chief Justice Barwick and Justice Windeyer and, indeed, it is picked up in the judgment of Justice James in Leff, to which my learned friend referred, that the expression “importation” is different to importing.  One looks at the act of importing and then considers whether or not actions or acts on either side of that act of importing are sufficiently proximate.  They define the boundaries of what is the importation. 

If you approach it correctly, which we say is that approach, one cannot go back earlier in time beyond what occurred in the United States, because the act of importing was when the two US Customs officers arrived at Sydney Airport on 6 November 2000.  If one goes back earlier in time to what acts are sufficiently proximate to have brought that about, it is the

decision which was arrived at in the United States 18 hours after the goods had been seized and forfeited that caused that to occur.

If one looks to the acts after it, as to when one could say the importation came to an end pursuant to that venture, that venture ceased once the goods were received by federal police, deconstructed, reconstructed, the cocaine in its bulk removed – except for a small portion – and ultimately for other reasons, in relation to criminal investigation, it was put back into the commercial stream.  That is the correct approach.  The approach of the court below broadens the meaning of “importation” and that has relevance to the current provisions.  If the Court pleases.

FRENCH CJ:   Thank you, Mr Shirrefs. 

It is not in dispute before the Court of Appeal that the applicant was a party to a criminal enterprise, the object of which was the importation of cocaine from Mexico to Australia and that pursuant to that enterprise the cocaine was dispatched from Mexico to the United States. However, the cocaine was discovered by officers of the United States Customs Service, who seized it, and was then imported into Australia under a controlled operation authorised pursuant to section 15M of the Crimes Act 1914.

The applicant contended that the importation of the cocaine from the United States to Australia under the control of law enforcement officials was a separate importation in which he was not knowingly concerned.  The Court of Appeal, however, held that the importation with which the applicant was said to have been knowingly concerned ended with the delivery of the cocaine in Melbourne.

In our opinion, the approach taken by the Court of Appeal to that question of characterisation is not attended by sufficient doubt to warrant the grant of special leave.  Special leave will be refused.

We will now adjourn until 2.15.

AT 1.22 PM THE MATTER WAS CONCLUDED