B W Walker SC with A W Moynihan for the appellant (instructed by Legal Aid Queensland)
L J Clare with M J Copley for the respondent (instructed by Director of Public Prosecutions (Queensland))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Tabe v The Queen
Criminal law – Attempted possession of dangerous drug – Unopened parcel contained dangerous drug – Innocuous substance substituted by police for drug – Principal offender obtained custody of unopened parcel – Appellant charged with aiding, abetting or counselling attempted possession of dangerous drug – Whether possession of a dangerous drug pursuant to s 9 Drugs Misuse Act 1986 (Q) requires proof of a mental element – Whether attempting to possess a dangerous drug pursuant to s 4(1) of the Criminal Code (Q) requires proof of a mental element – Whether custody of a dangerous drug without knowledge of its contents is sufficient to establish possession or an attempt to possess – Whether requisite state of knowledge differs between principal offender and accessory alleged to have aided, counselled or procured custody of receptacle.
Criminal law – Onus of proof – Whether possession of a dangerous drug pursuant to s 9 Drugs Misuse Act requires Crown to prove a mental element – Whether s 57(d) Drugs Misuse Act requires accused to prove absence of a mental element.
Words and Phrases – "possession", "[a]ttempts to commit offences".
GLEESON CJ. This appeal raises questions of the construction of Queensland legislation concerning unlawful possession of dangerous drugs. The appellant and a companion, Ms Briggs, went to a post office to collect an envelope which had been sent by mail. The envelope they wanted to collect contained methylamphetamine, a dangerous drug within the meaning of the legislation. There had been a police interception. A substitute envelope was handed to Ms Briggs, but it contained no drugs. The two were arrested. Ms Briggs pleaded guilty to an offence and was sentenced. The appellant was charged with possession of a dangerous drug. The case against the appellant was put on the basis that there was an attempt by Ms Briggs to possess the dangerous drug, and that the appellant counselled or procured Ms Briggs to make that attempt. If both of those allegations were sustained, then the appellant was guilty of the offence charged.
The detailed facts, and the relevant legislative provisions, are set out in the reasons of Hayne J and the joint reasons of Callinan and Heydon J. It is clear that Ms Briggs never obtained possession of the dangerous…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Tabe v The Queen [2005] HCA 59
Case
[2005] HCA 59
Decision Date
CaseChat Overview and Summary
The case of *Tabe v The Queen* involved an appeal to the High Court of Australia concerning charges of unlawfully possessing a dangerous drug and attempting to possess a dangerous drug. The appellant, Graham Victor Tabe, was charged as an accessory to Ms Nicole Janet Briggs, who had pleaded guilty to attempting to possess methylamphetamine. The Crown contended that the appellant aided and abetted Ms Briggs in her attempt to possess the drug, and therefore was guilty of the offence. The central issue revolved around the mental element required for both possession and attempted possession of dangerous drugs under Queensland law.
The legal issues before the High Court were whether the offence of possession of a dangerous drug under s 9 of the *Drugs Misuse Act 1986* (Qld) required proof of a mental element, and whether the offence of attempting to possess a dangerous drug under s 4(1) of the *Criminal Code* (Qld) also necessitated proof of a mental element. Specifically, the court had to determine if custody of a dangerous drug without knowledge of its contents was sufficient to establish possession or an attempt to possess, and whether the requisite state of knowledge differed between a principal offender and an alleged accessory.
The High Court reasoned that the term "possession" under s 9 of the *Drugs Misuse Act* inherently involves a mental element, requiring the accused to know they have custody of a substance that is or is likely to be a dangerous drug. Furthermore, under Queensland law, an attempt to commit an offence requires an intention to commit that specific offence. Therefore, Ms Briggs could not be guilty of attempting to possess dangerous drugs unless she intended to obtain possession of dangerous drugs, not merely an envelope containing an unknown substance. The appellant, as an accessory, could only be convicted if Ms Briggs possessed the requisite intention to commit the principal offence. The Court noted that the arguments presented by the appellant had not adequately addressed this fundamental requirement of proving the principal offender's intent.
The appeal was dismissed.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
The learned trial judge directed the jury that the prosecution did not have to prove that the woman had knowledge that the contents of the envelope were methylamphetamine. This direction was erroneous for two reasons. First, the term "possession" in s 9 of the Act involves a mental element. There is no possession for the purpose of s 9 unless the person charged knows that he or she has custody of a substance that is or is likely to be a dangerous drug. Second, under Queensland law a person cannot be guilty of attempted possession of drugs unless that person intends to possess those drugs. That is because s 4(1) of the Code makes it an essential element of attempting to commit an offence that a person intends to commit the offence. Hence, the appellant could not be convicted under s 9 of the Act unless the woman he was aiding was "intending to commit an offence" of possessing dangerous drugs. In my view, she could not intend to commit that offence unless she intended to obtain possession of dangerous drugs. It was not sufficient that she intended to obtain possession of an envelope that had something inside it. Intending to collect an envelope that has something inside it is not intending to commit an offence under the law of Queensland. In this Court – and apparently in the courts below – the argument for the appellant paid no attention to the necessity to prove that the woman intended to commit the offence. But it was a fundamental element of the charge against the appellant.The material facts The appellant and Ms Nicole Janet Briggs were jointly charged in the Supreme Court of Queensland on an indictment that declared:"[T]hat on the nineteenth day of November, 2001 at Gold Coast in the State of Queensland, NICOLE JANET BRIGGS and GRAHAM VICTOR TABE unlawfully had possession of the dangerous drug methylamphetamine.And the quantity of the dangerous drug methylamphetamine exceeded 2.0 grams." The indictment contained an additional count that charged Ms Briggs with unlawfully possessing the dangerous drug cannabis sativa. The trial of the indictment took place before Mullins J and a jury. At the trial, the Crown contended that, on 19 November 2001, the appellant had driven Ms Briggs to the Gold Coast Mail Centre at Bundall. Ms Briggs picked up an envelope from a postal supervisor and then re-entered the passenger side of the vehicle that the appellant was driving. The envelope did not contain any dangerous drug. It would have done, though, but for the following course of events. On Friday 16 November 2001, an envelope arrived at the Mail Centre that was addressed to a "Mr Tabler" at 1 Markeri Street, Mermaid Beach. Because that address is nonexistent, and the envelope did not contain a return address, the envelope was opened by a postal officer, in accordance with authorised procedures. The officer found that the envelope contained a jar, which contained white powder. The officer reported the matter to police, who collected the envelope that day. Before that officer reported the matter to police however, a person arrived at the Mail Centre and inquired about a parcel that the person said was addressed to "Mr Tabler, 1 Makeri Street". The officer told the person to return later that afternoon.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GLEESON CJ
HUGH J
HAYNE J
Section 7 of the Criminal Code provides that, where an offence is committed (here, by Ms Briggs), every person who aids, counsels or procures the commission of the offence is deemed to be guilty of the offence. The material facts which made Ms Briggs liable were an attempt to obtain delivery of an envelope which in fact contained methylamphetamine. The appellant requested Ms Briggs to make the attempt to obtain delivery of the envelope, and assisted her in that attempt. If, unlike Ms Briggs, his liability depended upon proof of his knowledge (in the relevant sense) of the nature of what was in the envelope she was attempting to obtain, that produces a disconformity which appears inconsistent with the legislative scheme. This disconformity is highlighted when it is remembered that in the case of drug offences the person who procures an act to be done is often more culpable than the person who does the act.Conclusion The appeal should be dismissed. Mc The case concerns the conviction of the appellant of the offence of possession of a dangerous drug under s 9 of the Drugs Misuse Act 1986 (Q) ("the Act"). It arises in a context where a woman collected an envelope that had contained dangerous drugs but did not contain them at the time she collected the envelope. She pleaded guilty to attempting to possess those drugs. As a result, under Queensland law, she was "deemed to be guilty of the intended crime". The Crown contended that the appellant was an accessory to the woman's attempt to commit the crime and that, by reason of the combined operation of ss 9 and 117(1) of the Act and s 7 of the Criminal Code (Q) ("the Code"), he was also guilty of that offence. The Crown did not contend that the appellant or the woman ever possessed the dangerous drugs. The issue in the appeal is whether the trial judge erred in law in directing the jury as to the mental element of the offence. The learned judge directed the jury that they could find the appellant guilty of the offence of possession of the dangerous drug, methylamphetamine in excess of two grams, only if:(1) the woman had attempted to commit that same offence;(2)the appellant in some way assisted her or did an act for the purpose of enabling her to attempt to commit the offence; and(3)when the appellant assisted her to do that act, he knew that she intended to obtain possession of the envelope and its contents. The learned trial judge directed the jury that the prosecution did not have to prove that the woman had knowledge that the contents of the envelope were methylamphetamine. This direction was erroneous for two reasons. First, the term "possession" in s 9 of the Act involves a mental element. There is no possession for the purpose of s 9 unless the person charged knows that he or she has custody of a substance that is or is likely to be a dangerous drug. Second, under Queensland law a person cannot be guilty of attempted possession of drugs unless that person intends to possess those drugs. That is because s 4(1) of the Code makes it an essential element of attempting to commit an offence that a person intends to commit the offence. Hence, the appellant could not be convicted under s 9 of the Act unless the woman he was aiding was "intending to commit an offence" of possessing dangerous drugs. In my view, she could not intend to commit that offence unless she intended to obtain possession of dangerous drugs. It was not sufficient that she intended to obtain possession of an envelope that had something inside it. Intending to collect an envelope that has something inside it is not intending to commit an offence under the law of Queensland. In this Court – and apparently in the courts below – the argument for the appellant paid no attention to the necessity to prove that the woman intended to commit the offence. But it was a fundamental element of the charge against the appellant.The material facts