R v Campbell, Campbell and Baka (No 2)

[2007] NSWDC 168

CITATION:	R v CAMPBELL, CAMPBELL & BAKA (No 2) [2007] NSWDC 168
JUDGMENT DATE:	7 August 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	Directed verdict of acquittal in the cases of Mr Simon Phillip Campbell and Mr Judha Suryadhana Baka
CATCHWORDS:	Criminal law - Aiders and Abettors - Special Liability Provision - Reversal of Onus of Proof
LEGISLATION CITED:	Criminal Code Act (Cth) 1995
PARTIES:	Crown Belinda Mary Campbell Simon Phillip Campbell Judha Suryadhana Baka
FILE NUMBER(S):	07/11/0371; 07/11/0378
COUNSEL:	D Jordan - Crown R Bromwich - B M Campbell & S P Campbell N Steel - Baka
SOLICITORS:	Commonwealth DPP Giddy & Crittenden - B M Campbell & S P Campbell Legal Aid Commission - Baka

JUDGMENT

Introduction

1 HIS HONOUR: At the close of the Crown case against all three accused applications were made on behalf of two of them that I direct verdicts of acquittal. It was said on behalf of both Mr Campbell and Mr Baka that, taking the Crown case at its highest, the Crown could not prove an essential element of the offences with which they had been charged. The applications were based on submissions regarding the presumption to be found in s307.14 Criminal Code Act(Cth) 1995 (the Code). The jury in this matter are to return to court at 2.00 p.m. today and so I will give judgment immediately in order that the jurors’ journeys have not been wasted.

2 Ordinarily there would be two distinct phases to the consideration of this matter. The first concerns a finding of law as to whether the Crown is entitled to take advantage of the presumption where, as here, the two relevant accused are charged as aiders and abettors. The second phase is whether, even if the Crown is not so entitled, these cases are fit to go to the jury.

3 However, in this case, the Crown concedes that if it is not entitled to take advantage of the presumption in the cases of Mr Campbell and Mr Baka, then verdicts of acquittal in relation to them should be directed.

4 Much of the Crown case is not in dispute. What follows is a short summary of the evidence led in the Crown case in order that the decision I have to make regarding whether there is a case fit to go to the jury for Mr Campbell and Mr Baka can be put in its proper context.

The Facts

5 Mrs Belinda Campbell ran a furniture retail business. She obtained her stock from Indonesia. It was thus necessary for her to periodically import shipping container loads of furniture and household goods for resale.

6 On 17 June 2006 a container of furniture was delivered to Mrs Campbell’s business premises. It had been imported into Australia from Indonesia. By the time it was delivered the authorities had a well organised operation in place involving surveillance of that container, as well as Mrs Campbell and Mr Campbell. They had been alerted to the presence of things other than the furniture in the container when the container was X-rayed and an anomaly found.

7 At one end, the end furthest from the doors to the container, the X-ray revealed the presence of items which were not furniture or household goods. Further investigations of that anomaly revealed that, as well as furniture and household goods, the container had within it many boxes of Sudafed and Actifed tablets. These tablets contained pseudoephedrine which is a border controlled precursor. The evidence established that pseudoephedrine was a very much sought after drug by those who wish to produce methylamphetamine or methylamphetamine hydrochloride.

8 In those circumstances a controlled delivery proceeded, with many officers from both the Australian Customs Service and the Australian Federal Police performing surveillance duties. What they observed was that after the container was delivered to Mrs Campbell’s business premises, Mr and Mrs Campbell, and others, began to remove some or all of the furniture and household items from the container. By the time they had finished on the day the container was delivered the packages containing the Sudafed and Actifed tablets had not been removed. They remained in place in the container until Mr Baka arrived, together with another man, in a truck the following day. With Mr Campbell and the other man, Mr Baka removed the boxes of Sudafed and Actifed tablets from the container, put them in the truck and drove away. Mr Baka was arrested shortly after, as were Mr and Mrs Campbell.

The Relevant Statutory Provisions

9 Mrs Campbell is facing trial for an offence under s307.11 of the Code. It is in the following terms:

307.11 Importing and Exporting Commercial Quantities of Border Controlled Precursors

(1) a person commits an offence if:

(a) the person imports or exports a substance; and

(b) either or both of the following apply:

(i)the person intends to use any of the substance to manufacture a controlled drug;

(ii)the person believes that another person intends to use any of the substance to manufacture a controlled drug; and

(c) the substance is a border controlled precursor, and

(d) the quantity imported or exported is a commercial quantity.

10 There is no dispute that as far as Mrs Campbell is concerned the Crown is entitled to rely on the provisions of s307.14 which provides for a presumption in relation to one aspect of what the Crown has to prove for the offence under s307.11. Section 307.14 is in the following terms:

307.14 Presumption for Importing and Exporting Border Controlled Precursors

(1)For the purposes of proving an offence against this Subdivision, if:

(a) a person has imported or exported a substance; and

(b) a law of the Commonwealth required the import or export to be authorised (however described); and

(c) the import or export was not so authorised;

the person is taken to have imported or exported the substance with the intention of using some or all of the substance to manufacture a controlled drug.

(2) Subsection (1) does not apply if the person proves that he or she did not have that intention

(3) For the purposes of proving an offence against this Subdivision, if:

(a) a person has imported or exported a substance; and

(b) the law of the Commonwealth required the import or export to be authorised (however described): and

(c) the import or export was not so authorised;

the person is taken to have imported or exported the substance believing that another person intends to use some or all of the substance to manufacture a controlled drug.

(4) Subsection (3) does not apply if the person proves that he or she did not have that belief.

11 As I mentioned, there is no dispute that s 307.14 applies to the case involving Mrs Campbell. What is in dispute, and the issue of law that I have to resolve, is whether that presumption also applies to the case of those charged as aiders and abettors such as Mr Campbell and Mr Baka? Aiders and abettors are dealt with in the Code in s11.2 in the following terms:

(1) A person who aids, abets, counsels or procures the commission of an offence by an other person is taken to have committed that offence and is punishable accordingly.

(2) For the person to be guilty:

(a) the person’s conduct must have in fact aided, abetted, counselled or procured the commission of the offence by the other person; and

(b) the offence must have been committed by the other person.

(3) For that person to be guilty, the person must have intended that:

(a) his or her conduct would aid, abet, counsel or procure the commission of any offence (including its fault elements) of the type the other person committed; or

(b) his or her conduct would aid, abet, counsel or procure the commission of an offence and have been reckless about the commission of the offence (including its fault elements) that the other person in fact committed.

(3A) Subsection (3) has effect subject to subsection (6)

(4) A person cannot be found guilty of aiding, abetting, counselling or procuring the commission of an offence if, before the offence was committed, the person:

(a) terminated his or her involvement

(b) took all reasonable steps to prevent the commission of the offence.

(5) A person may be found guilty of aiding, abetting, counselling or procuring the commission of an offence even if the principal offender has not been prosecuted or has not been found guilty.

(6) Any special liability provisions that apply to an offence apply also to the offence of aiding, abetting, counselling or procuring the commission of that offence.

(7) If the trier of fact is satisfied beyond reasonable doubt that a person either

(a) is guilty of a particular offence otherwise than because of the operation of subsection (1);

(b) is guilty of that offence because of the operation of subsection (1);

but is not able to determine which, the trier of fact may nonetheless find the person guilty of that offence.

12 The “special liability provision” phrase as it is used in s6 is defined in the Code dictionary. The definition appears later in this judgment.

Does The Rebuttable Presumption Apply To Aiders And Abettors?

13 Before turning to the legislation in some detail, I will note immediately a curiosity which would arise if, as the Crown has submitted, it is entitled to rely on the presumption in the case of an aider and abettor. It is to be emphasised that the presumption in s307.14 is a rebuttable presumption. That is, Mrs Campbell will not be found guilty under s307.11 if she proves, on the balance of probabilities, that she did not have the requisite belief or intention. (The Crown case is not that Mrs Campbell intended to manufacture controlled drug but that she believed that others would. For this reason I will refer only to Mrs Campbell’s belief rather than her intentions in the rest of this judgment.)

14 Assume that an alleged aider and abettor was facing trial alone. Assume that this was because Mrs Campbell was dead. How then would the aider and abettor overcome the presumption in s307.14?

15 Even if there was overwhelming evidence to establish that Mrs Campbell did not believe that the substance she imported was to be used to manufacture a controlled drug, an alleged aider and abettor could not take advantage of that evidence because “the person” referred to in subs 307.14(4) is not him but Mrs Campbell. The Crown has an argument, which I will discuss later, that “the person” could be the aider and abettor facing trial. For reasons I will give later I reject that argument.

16 This raises the distinct but very uncomfortable possibility of Mr Baka or Mr Campbell being convicted of being an aider and abettor to an offence committed by Mrs Campbell where, if Mrs Campbell was facing trial, she would not be so convicted. Both the common law and the Code (see s11.2(2)(b)) suggest that such a result should only come about if the legislation clearly requires it. In my view not only does the legislation not clearly require that result but it clearly requires the opposite. There are a number of reasons for that conclusion.

The Precision Of The Definition Of "Special Liability Provision"

17 Section 11.2(6) provides that

“any special liability provisions that apply to an offence apply also to the offence of aiding and abetting, counselling or procuring the commission of that offence.”

18 It is the Crown’s argument that the reverse onus provision in s307.14 is a special liability provision and so the reverse onus provision applies to aiders and abettors.

19 The term special liability provision is defined in the dictionary to the code. The definition is –

(a) A provision that provides that absolute liability applies to one or more (but not all) of the physical elements of an offence: or
(b) A provision that provides that, in a prosecution for an offence, it is not necessary to prove that the defendant knew a particular thing: or
(c) A provision that provides that, in a prosecution for an offence, it is not necessary to prove that the defendant knew or believed a particular thing.

20 Paragraph (a) of the definition can be put to one side immediately. Absolute liability is not at issue here. The first thing to notice about the definition is the very curious but precise wording of paras (b) and(c). Para (b) refers to the situation where it is not necessary to prove that the defendant “knew” a particular thing. Para (c) does not refer to the situation where the defendant “believed” a particular thing. It refers instead to the situation where it is not necessary to prove that the defendant “knew or believed” a particular thing. Thus, to make the point obvious, the concept of it being not necessary to prove that the defendant “knew” something appears in both paras (b) and (c).

21 What is the explanation for such precise but, at first blush, curious drafting? The obvious answer is that the definition of “special liability provision” applies only to those provisions which refer precisely to situations where it would be otherwise necessary to prove that the defendant “knew” something or he “knew or believed” something.

22 Compare the concept to be found in s307.14. It does not deal with either of those states of mind. It does not deal with the state of mind of knowledge and it does not deal with the state of mind of knowledge or belief. It deals only with the state of mind of belief. Lest it be thought that this is an overly precise distinction to draw, it is to be noted that the definition of special liability provision is itself very precisely drawn.

23 So the first reason that I have decided that the Crown cannot take advantage of the reverse onus provision in s307.14 is that that provision is not a “special liability provision” within the meaning of that term as defined in the dictionary. Thus s11.2(6) does not apply s307.14 to the case of an aider and abettor.

24 The Crown suggested that I should read the phrase “knew or believed” in para (c) of the definition disjunctively. He pointed out that the concept of knowledge or belief as raised in para (c) of the definition of special liability provision was far from widespread in the code. The Crown pointed to s132.1(2A) as being the only place, apart from the intoxication provisions in part 8.4, where the phrase words “knew or believed” appear. However an examination of that provision, that is s132.1(2A), is instructive and in fact, in my view, supports an argument put by Mr Bromwich who appeared for Mr Campbell which was adopted by Mr Steel who appeared for Mr Baka. It is to be noted that the s132.1(2A) provides that it is not necessary to prove knowledge or belief that the property received belonged to a Commonwealth entity.

25 The narrowness of this provision supports the point Mr Bromwich makes about the use to which special liability provisions are to be put: They are designed to facilitate proof of subsidiary elements which are necessary to ground Commonwealth jurisdiction. The fact that the words “knew or believed” appear in a provision relating to the jurisdiction of the Commonwealth supports Mr Bromwich’s submission that special liability provisions do not include those provisions which have a much wider purpose such as s307.14.

The Absence Of The Concept Of Intention

26 The next reason for finding that the Crown is not entitled to take advantage of the reverse onus provision also requires close examination of the Code. As I mentioned above s307.11, the section which creates the offence, has within it (as one of two alternatives) an element that the person who imports a substance intends to use it to manufacture a controlled drug (although the Crown does not suggest that Mrs Campbell was going to manufacture the drug herself, the fact that the section covers the situation where the person does intend to do that is relevant to determining the legal issue that I am currently considering.)

27 Having established the importance of an intention to use any of the substance to manufacture a controlled drug for the purposes of the offence let me turn to what the definition of “special liability provisions” says about the concept of intention. It says nothing about that concept. The specific concept of intention is not picked up as any part of the definition of “special liability provision”. It is unlikely in the extreme that the legislature would have intended that the special liability provision would have covered the case of an aider and abettor where the Crown is relying on the importer’s belief, but not where the Crown was relying on the importer’s intention. Such an anomaly would be glaring, yet such an anomaly is unavoidable if the reverse onus provision applies to aiders and abettors through s11.2(6). The Crown responded to this argument by attempting to explain to me why the legislature would allow reverse onus to apply where what was at issue was the principal’s belief but not where what was at issue was the principal’s intention. But I was unable to discern any rational reason why that would be the case.

28 Mr Bromwich referred to two different sources of extrinsic material as an aid to the interpretation of the definition of special liability provision. The first was a document entitled the Commonwealth Criminal Code, A Guide for Practitioners, published by the Commonwealth Attorney General’s Department in March 2002. It was prepared by Mr Ian Leader-Elliott who was heavily involved in the work of the Model Criminal Code Officers Committee in its efforts to create a new criminal code.

29 At p 263 of the document the guide notes,

“Special liability provisions have only one purpose in the code. They relieve the prosecution from the need to prove fault with respect to the elements of the offence which establish Commonwealth jurisdiction.”

30 Those last words are important says Mr Bromwich. In the course of his submissions Mr Bromwich referred to such offences, and as I have noted the Crown referred me to another. One can understand why a reverse onus provision would be necessary in such circumstances. The reverse onus is not necessary in the present case to establish Commonwealth jurisdiction and thus, according to the author of the guide, the definition of “special liability provision” does not apply.

31 The other pieces of extrinsic material referred to by Mr Bromwich in support of his submissions were the supplementary explanatory memorandum and the revised explanatory memorandum to the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Bill 2000, that being the Bill, which became the Act, which introduced s 11.2(6) and the concept of the special liability provision.

32 Both memoranda suggest that the special liability provision will not be necessary where what is concerned is a “subsidiary element”. It is hard to describe the element of belief that the substance is to be used to manufacture a drug as a “subsidiary element”.

33 Further, the supplementary explanatory memorandum gives an example as to where the special liability provision would operate. Para 9 reads:

“It is also proposed that the definition of ‘special liability provision’ include those special provisions which provide that it is not necessary to prove the defendant knew or believed a particular thing. An example of this is proposed in s141.1(2) which concerns bribery. It provides it is not necessary to prove that the defendant knew the official bribe was a Commonwealth public official. The amendments will mean it will not be necessary to prove knowledge about the Commonwealth characteristic of the public official providing the defendant was attempting to bribe a public official of some kind.”

34 This example is consistent with the view expressed as to the purpose of the concept of a special liability provision in the guide prepared by Mr Leader-Elliott.

Conclusion Regarding The Application Of S307.14 To Aiders And Abettors

35 I consider that s11.2(6) and the accompanying definition of “special liability provision” should be read according to their terms and not beyond their terms. It is clear that they have been drafted very carefully and that their function is to facilitate the prosecution of people where there would be significant problems of proof. But that is not the present case. There are no significant problems of proving a person’s belief when that belief concerns whether pseudoephedrine or some other precursor is to be used to make methylamphetamine or some other drug.

36 It may make it easier for the prosecution to convict aiders and abettors if the provisions I have been discussing were interpreted as the Crown wants me to, but that can hardly justify the uncomfortable and perhaps even bizarre result which would come about on a trial of an aider and abettor if the person said to be the principal offender were not available or compellable to rebut the presumption in s307(14).

37 In response to the suggestion that an aider and an abettor would have difficulty overcoming the presumption in s307.14 where the principal offender was dead, (the example I raised earlier in this judgment), the Crown said that the special liability provision definition applied such that an alleged aider and abettor was able to prove the belief the principal - that is, the Crown submission was that the relevant provision should be interpreted so that the reference to “the person” in s307.14(4) would be in the example I am discussing, the aider and abettor.

38 However there are two things to be said about that argument. Firstly, the interpretation advanced by the Crown is an uncomfortable one given the words which follow the words “the person”. Subs(4) reads in full, “Subs 3 does not apply if the person proves that he or she did not have that belief” (emphasis added). If the Crown’s argument is correct “the person” is the aider and abettor but “he or she” is the principal. That does a lot of violence to the grammar of subs (4).

39 The second thing to say about the Crown’s argument on this aspect is that whilst using the special liability provision to give the aider and abettor the ability to prove the principal’s belief may go some way to alleviate the problems faced by the aider and abettor at trial, it does not overcome the practical problems of proving a person’s belief where that person is not available, perhaps through death, to give that evidence himself or herself. It is likely in fact that the aider and abettor would not even know that such evidence was available.

40 The Crown accurately identified a concerned lingering behind this entire argument, namely the concern that those who were not truly morally culpable would be convicted of an offence carrying a maximum penalty of twenty-five years imprisonment. The Crown pointed out that the fault elements applying to aiders and abettors would prevent those with no moral culpability being convicted. I accept that submission as far as it goes but I remain concerned that the Crown’s argument would allow an aider and abettor to be convicted when the principal should be acquitted.

41 There may be no strict legal barrier to that occurring of course but the undesirability of that outcome is a matter which I have taken into account.

42 It is one thing to say that it is appropriate that those who believe that they are assisting someone who is committing a crime should themselves be found guilty of a crime, but it is another to say that a person who aids a person who is himself or herself not committing a crime, in the mistaken belief that the person is committing a crime, should be convicted and sent to gaol for a period of up to twenty-five years.

43 The concept of criminal liability for an aider and abettor is sometimes included under the broader concept of derivative liability. I am satisfied that the Crown’s argument would allow an aider and abettor to be convicted of a crime despite his or her liability having no other crime from which it could be derived.

44 For these reasons I am satisfied that the Crown is not entitled to take advantage of the presumption in s 307.14 against a person charged as an aider and abettor s307.11.

45 I am satisfied that in such a case the Crown needs to prove and prove beyond reasonable doubt of course that the alleged principal intended to use any of the substance to manufacture a controlled drug or believe that another person intended to use any substance to manufacture a controlled drug. If the Crown is unable to do so then the alleged aider and abettor must be acquitted.

46 As I mentioned earlier the Crown quite properly conceded that there was no case to go to the jury if it cannot rely on s307.14.

47 For the reasons that I have given above I propose to direct the jury to acquit Mr Campbell and Mr Baka.

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