R v Nozhat (No 2)

In the case of R v Nozhat, the respondent was convicted of the importation of a commercial quantity of a border controlled drug, namely heroin, under section 307.1 of the Criminal Code (Cth). The dispute centred on the fault element required for the offence, specifically whether the respondent had been reckless as to whether the substance was a border controlled drug. The matter was heard in the Federal Court of Australia.

The court was required to determine the point in time at which the respondent became reckless concerning the nature of the substance he was importing. The respondent contended that his recklessness only occurred after the heroin had been loaded onto the aircraft, while the prosecution argued that he had been reckless from the time he first became aware that the substance was heroin. The central issue was whether the prosecution had discharged the onus of proving that the respondent was reckless at the required time.

The court held that the prosecution had not discharged its onus of proving that the respondent had been reckless at the time of importation. The evidence showed that the respondent's awareness of the substance being heroin developed over time and that he only became certain of this fact after the heroin had been loaded onto the aircraft. Consequently, the court concluded that the respondent could not be held reckless at the time of importation, as required by the statutory provision. The appeal was allowed, and the conviction was quashed.

The court ordered that the conviction be quashed, and the appeal was allowed. The orders were made under the authority granted by section 136 of the Crimes Act 1914 (Cth).