Tabe v The Queen

[2005] HCATrans 206

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B67 of 2004

B e t w e e n -
GRAHAM VICTOR TABE
Appellant
and
THE QUEEN
Respondent

GLEESON CJ
McHUGH J
HAYNE J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 20 APRIL 2005, AT 10.18 AM

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR A.W. MOYNIHAN, for the appellant. (instructed by Legal Aid Queensland)

MRS L.J. CLARE: If the Court pleases, I appear with MR M.J. COPLEY, for the respondent. (instructed by Director of Public Prosecutions (Queensland))

GLEESON CJ: Yes, Mrs Clare. Yes, Mr Walker.

MR WALKER: Your Honours, this appeal turns on the interpretation of a number of statutory provisions in combination appearing in two statutes, namely the Drugs Misuse Act and the Criminal Code. It involves the context of those provisions themselves, that is their immediate text. It also involves the slightly broader context raised by the fact that, in particular, the expressions which are used in the provisions might be termed “terms of art” in the criminal law. They include, most particularly but not exhaustively, the word “possession”, the word “aid”, the word “counsel” and the word “procure”.

GLEESON CJ: Mr Walker, which reprint of the Drugs Misuse Act 1986 (Qld) should we be using?

MR WALKER: I am in your Honour’s hands for the following reason. In the Court of Appeal your Honours will note that the renumbering was adopted introduced as reflected in the 2004 reprint. Thus, for example, what was paragraph 57(d) of surpassing importance appears in their Honours’ reasons as paragraph 129(1)(d). There is no textual change. It is a renumbering change. I am content, your Honours, to use either the reprint version which appears as the first of those in the bundle of statutory materials or the second, depending upon the Court’s preference.

GLEESON CJ: What was the date of the offence?

MR WALKER: In terms of the date of the offence, it would be the first which would be appropriate.

HAYNE J: That is Reprint 4E?

MR WALKER: Yes.

GLEESON CJ: Thank you.

MR WALKER: And, your Honours, I will do that notwithstanding that the Court of Appeal reasons and thus our written submissions in deference to that have used the renumbered provisions. There are no changes.

I am told by my learned friend that she has copies of the whole of 4E if that would be convenient for your Honours. The importance of the exercise of interpretation was that it dictated the outcome of a no case submission on the basis of which, upon it being dismissed on the grounds revealed in the record, there was in due course a charge to the jury in which there were critical matters put concerning the requisite degree of knowledge in two aspects of the case which required to be proved first in relation to Ms Briggs, whom I shall call the principal offender, and second in relation to my client, whom I shall call the accessory.

In our submission, as your Honours have seen in writing, that charge to the jury, which, as I say, turned upon an earlier no case argument, which is why you do not see an objection to the charge after it was concluded, was defective because it failed to give the correct reading in particular to the word “possession” and failed to give the right consequence to the only possible reading of the words “aid, counsel and procure”.

This Court, however, is not, in our submission, seized, as it were, afresh of something which has between this Bench and the statutes nothing but the argument about text - context and purpose. Rather, this was a case in which there are three decisions – perhaps a fourth is also informative – of this Court which are not in question in this case and which, in our submission, were indistinguishable. As it happens, in each of those reasons of Sir Harry Gibbs provide, in our submission, not only a point of departure but the answer to the questions which were raised and which were adversely answered against my client in the courts below.

In our submission, there is nothing in the exchange of written argument before this Court which shows that there is in fact any distinguishing of those three decisions and, in particular, I am referring to He Kaw Teh and to Giorgianni. Williams is important but might be seen as a precursor to He Kaw Teh. There is nothing essayed in the exchange from the Crown which shows what, in our submission, would be a legitimate or cogent ground of distinguishing the reasoning of Sir Harry Gibbs and the other judges who joined in to the same or immaterially different extent in his Honour’s reasoning. If we are right, then this was a charge which was fundamentally wrong, and its importance lay in the fact that it was a charge concerning a finding of fact, or findings of fact, going to a matter which preternaturally lends itself to a jury reasoning inferentially. That is in the nature of the issue concerning knowledge of an accused. It is in itself obviously no bad thing that inferential reasoning is the way usually, in the absence of confession, that one finds these matters being approached by a jury, but because it is inference about a state of knowledge upon which turns the critical question of criminality or not, then in our submission, all the more importantly must the charge to the jury direct the jury to the correct destination or target for their inferential reasoning.

HEYDON J: The Court of Appeal does not seem to have referred to any of the authorities that you have just alluded to.

MR WALKER: No.

HEYDON J: Was that because they were not cited to the Court of Appeal?

MR WALKER: That is my understanding, yes, your Honour.

HEYDON J: That is an unfortunate state of affairs.

MR WALKER: It is.

HEYDON J: But obviously not fatal to your present position.

MR WALKER: It does mean, however, which I think was raised at the special leave, it certainly means that this Court was and remains deprived of the benefit of the reasoning in the Court of Appeal below on those points. May we say, however, that at least as to the second matter, the question of accessorial knowledge, it remains in our submission such a plain matter on the face of the authorities that paragraph [13] of the Chief Justice’s reasons requires, in our submission, correction by this Court.

Paragraph [13] in his Honour’s reasons may be found on pages 112 and 113 of the appeal book and – I will not read it – contains the proposition which appears to arise as a matter of either principle or first impression that the degree of knowledge – and in that expression I must obviously include the kind of knowledge – required of principal and accessory ought to be the same.

We say that if there is one thing that is crystal clear about the reasoning of this Court in Giorgianni picked up, repeated, and if anything, emphasised in the reasoning of this Court in Yorke v Lucas - and we have given references to these in our written submissions - it is that it by no means follows, either as a matter of principle or first impression, that the degree of knowledge of accessory and principal offender must be, or one would expect, to use the Chief Justice’s expression “to be the same”. There is nothing else I can offer, with respect, in palliation of the matter that your Honour Justice Heydon has raised.

HEYDON J: I suppose one can infer that those cases were not raised with the trial judge either.

MR WALKER: I do not think that is a safe inference. We do not have that record.

HEYDON J: No. It does not matter.

MR WALKER: I do not think one should necessarily assume that, your Honour.

HAYNE J: The premise for the debate is that the trial was conducted only on the basis that the present appellant was an accessory to a principal, Ms Briggs, is that right?

MR WALKER: Yes, it is right and it is also demonstrable from a passage in the summing‑up. Could I take your Honours to that immediately. It is in page 67 of the appeal book.

HAYNE J: The reason I raise it is it is not instantly apparent to me ‑ ‑ ‑

GLEESON CJ: It sounds a bit hard on Ms Briggs.

HAYNE J: ‑ ‑ ‑ that the person who goes into the post office armed with the collection ticket provided by the appellant, apparently to collect on behalf of the appellant, is properly characterised as the principal, but if that is the way the trial has gone that is the way the trial has gone.

MR WALKER: It is the way that the matter moved from investigation to prosecution. It was the way in which the prosecution was conducted and the argument thereafter, your Honour. I would not wish one iota to dissent from ‑ ‑ ‑

HAYNE J: I am sure you would not.

MR WALKER: ‑ ‑ ‑ or urge caution from what your Honour has raised by way of comment. I should point this out. There is an artificiality in any event regardless of the facts of this case in the use of the words “principal” and “accessory” which are at least time honoured and that is that ‑ ‑ ‑

HAYNE J: That artificiality is underpinning, I think, some matters of impression that seem to be reflected in the judgment below.

MR WALKER: That may be so, with respect, your Honour. May I point out that when one comes to those forms of accessorial involvement which in this case turn upon the meaning of the words “counsel” and “procure”, “procure” in particular, one sees that the so-called accessory may well be a dominant character in the narrative between the people involved so that accessory must not be understood in my argument - and it does not appear to be understood in the literature that uses that handy expression - must not be understood as meaning a bit player or somebody who is necessarily less culpable. As one knows in this very case the respective sentences – leaving aside what I will call subjective elements – the respective sentences visited penalty more harshly upon my client than upon the so-called principal.

GLEESON CJ: Are we here concerned with the no case submission or with the direction to the jury or both?

MR WALKER: The direction to the jury. I raised the no case so as to explain why your Honours will not find after the charge to the jury in answer to the traditional request the answer, yes and these are my objections.

GLEESON CJ: It just struck me that the no case submission might have been a bit ambitious, even on your view of what the relevant legal principles are.

MR WALKER: May I say simply, yes, bearing in mind that on my submissions there are jury questions.

GLEESON CJ: The idea that Ms Briggs would have had a better knowledge of what was in that parcel than your client ‑ ‑ ‑

MR WALKER: Is a matter for the jury ‑ ‑ ‑

GLEESON CJ: Is not obvious.

MR WALKER: And is one upon which the jury may have take certain strong views, yes.

GLEESON CJ: So, in all events, what we are concerned with is the direction to the jury and what you are heading for, if you win, is a new trial, is it?

MR WALKER: That is right and that is what I was just about to lead up to.

HEYDON J: Are you really? I thought your client had virtually served the sentence.

MR WALKER: No, I can only aim for the order of new trial. We have served the sentence. It is obvious and I might as well state it openly, it would obviously be disappointing to my client were he to be put to a fresh trial having served the sentence or served the requisite amount in custody of the sentence ordered against him but that is a matter, of course, for the Crown authorities.

HEYDON J: It is a matter of discretion for this Court whether to order a new trial.

MR WALKER: Yes, it is.

HEYDON J: I mean, there are two stages as it were, either of which will suit your client. I am just a bit surprised you are prepared to submit to a new trial.

MR WALKER: Your Honour, we obviously would embrace in the face of the circumstance of a serving in custody of the full requisite proportion of the sentence which would be set aside were we successful, we would obviously support the exercise of discretion by this Court to enter a verdict of acquittal.

GLEESON CJ: I was going to say, you might have a happier day without submitting that there should be a verdict of acquittal.

MR WALKER: Yes. Your Honour entirely anticipates this point. It is difficult in principle to justify when the whole of my argument attaches to the question of a charge to a jury with, if I may put it delicately, the facts standing as they appear to be. It is difficult for me in principle to say that this Court should do more than simply leave it now then to the Crown in what this Court would be entitled, we hope to expect as being the prudent exercise of the Crown discretion, as to whether there should in fact be a retrial. I think that exhausts what I can say about that matter, which of course looms very large for my client and is a matter which is within the discretion of this Court. For the reason the Chief Justice has raised, I seek to say nothing more about it than what I have just said.

Your Honours, bearing in mind that I have taken you to the charge, I wonder if it might be convenient, before embarking upon the statutory analysis – which is the whole, not merely the heart, of my argument – may I take you to those passages in particular to which we draw attention as those ‑ ‑ ‑

HEYDON J: I just noticed that in your written submissions you ask for an acquittal and not a new trial. Page 19, but I do not want to waste any more time on this.

MR WALKER: Yes. There has been a to and fro. The argument I have just put, that is, we would like an acquittal but we acknowledge that in principle a retrial is what flows from success on these arguments, is our position. If the Court wishes to acquit, of course we wish that to occur. Do I accept that there are the difficulties of the kind to which I have already adverted? Yes, of course we do. Beyond that I cannot take the matter.

Your Honours know the reason why we ask for acquittal. It is not because there was a wrong charge to a jury – that would be an absurd proposition. We ask for an acquittal because he served the sentence. That, however, is for the Crown to evaluate when it comes to consider both the retrial prospects on that ‑ ‑ ‑

HEYDON J: Well, they will not give you an acquittal. They may just refuse to press for a new trial.

MR WALKER: Quite. We entirely accept that. So when I say we do not accept that as the outcome that we want, but we accept that that is in the nature of the discretion of the Crown, which is that to which this Court ordinarily defers when there has been an error of the kind to which we have drawn attention. Could I take your Honours in the appeal book to page 61. At the passage commencing just after line 20 her Honour instructed the members of the jury in anodyne terms concerning the process of inference. In the following paragraph, about line 48 or so, the first and prime example of inference that her Honour gave to the jury concerned Ms Briggs, the principal’s knowledge, and about line 53:

when Ms Briggs went to collect the envelope –

that is the parcel or package ‑

including its contents that she knew that the envelope had contents.

That is the “not empty” concept that your Honours see picked up in the Court of Appeal. Page 62, about line 5 or so:

when she went to collect that envelope she knew that she was going to get something inside the envelope –

and then as a negative –

does not have to prove that Ms Briggs had knowledge that the contents of the envelope were methylamphetamine.

Then if I could take your Honours over to page 66, about line 35 or so:

the prosecution had to prove beyond reasonable doubt that Mr Tabe had possession of the dangerous drug methylamphetamine on 19 November 2001 at the Gold Coast –

That is the first of the three elements. Then on page 67, having touched upon the matter of “attempt”, to which I shall come in a moment, at about line 30 her Honour says:

what the Crown is relying on is not that Mr Tabe obtained possession or attempted to obtain possession of the package containing the methylamphetamine, but that Mr Tabe was aiding Ms Briggs or counselling or procuring her to do the act which amounted –

I insert the words “on her part” –

to the offence of possession of the dangerous drug methylamphetamine.

That notion of “amounting to” captures the question of “attempt”, to which I shall come, which involves the interpretation of those statutes.

McHUGH J: But it is surprising that the Crown did not allege that he possessed the drugs. After all ‑ ‑ ‑

MR WALKER: Your Honour, I cannot really ‑ ‑ ‑

McHUGH J: She may have had the custody of them but I would have thought he had the possession of them.

MR WALKER: Your Honour, in the course of the statutory provisions I am going to come to the word “place” which has a place in the definition of “possession” and which includes “vehicle”, that he was driving a vehicle. So, with respect, there is force in what your Honour has said but our point is that in a case so framed as it was, as recorded at page 67 in the passage I have just read, it is of the first importance that there is not an inexactness creak into the charge to the jury by reason in particular of uncharged ways of showing guilt.

HAYNE J: Uncharged ways?

MR WALKER: Yes, your Honour.

HAYNE J: Why uncharged on this indictment?

MR WALKER: Because the charge has to be understood according to the way in which the Crown set out to prove it.

HAYNE J: A different point. I understand that but not uncharged.

MR WALKER: In terms of the words of the indictment, they were broad enough to cover – I cannot do the count because my maths are not good enough – a large number of combinations and permutations that would have achieved guilt of an offence charged by that same form of words. From all of those, as was entirely proper – and, had it not been ventured by the Crown, could have been required by the court at the instance of the defence – the Crown restricted its case and said that it was seeking to prove guilt of the charge by those general words in the following manner revealed or thrown up by the interaction of the statutory provisions to which I am about to come. So yes, we entirely accept again what your Honour Justice Hayne has said, namely that there was clearly on the face of this material more than one way in which those words of indictment could have been attempted of proof by the Crown.

But that is in theory and history, which did not happen. What did happen was that the Crown set out to make a case before this jury against my client in the manner recorded in summary fashion in the middle of page 67. That is, in our submission, a reason why, not a reason why not, the Court would require exactness and accuracy in the charge. When the Crown has chosen a way of proving something which could be proven in a number of different ways, it is of the first importance that that discretion not continue on so as to make hazy or fuzzy what is acceptable in charges to the jury. Once the Crown adopts a specific route to proving guilt, everything in the trial must subserve that route of proving guilt because otherwise, in our submission, there is in particular a difficulty thrown up of a lack of unanimity among the jurors.

HAYNE J: Can I just understand at what point do you say the Crown nailed its colours to this particular mast for proving the case in this way? Does it open the case to the jury this way? Does it nail its colours to this mast only in final address, after the evidence has gone through? Is there some request for particulars which generates a response from the Crown?

MR WALKER: As to the last, the answer, on my researches, is no. As to the first, I have to take that on notice. As to the recorded ‑ ‑ ‑

HAYNE J: What is lurking behind it is something for which hours of innocent amusement lie before us all, the question of the method of charging aid and abet, particularly under the new Commonwealth Criminal Code. Do you charge the principal offence? Do you charge the principal offence in that you did aid and abet? Now, here, with this deeming provision, it has been treated as a matter of pleading – as plead the principal offence.

MR WALKER: Yes.

HAYNE J: Now, un‑particularised, where does that leave things?

MR WALKER: It leaves things, first, un‑particularised from among a wide array of possibilities which would threaten chaos, with respect, in any trial. What I cannot tell your Honour, in answer to your question, is what the word “Ultimately” on page 67, line 29, is referring to.

HAYNE J: And “it seems” that – “Ultimately it seems” that the Crown
is going this way.

MR WALKER: There is no dispute raised by the Crown, and we have certainly not seen any ground for any such dispute being raised by the Crown in the record available, as to that being the way in which the case required to be put to the jury, by dint of what had occurred up to then. I am sorry, your Honour, I can only give that compendious answer but, in our submission, as I am sure your Honours appreciate, it entirely suffices as a matter of principle and the good order of a criminal trial that if the point is reached only for the first time at the time of charge to the jury of the Crown case being pinned down in that fashion, then that is no reason to be less demanding of the charge to the jury.

GLEESON CJ: Ms Briggs pleaded guilty, is that right?

MR WALKER: Yes, at the beginning.

GLEESON CJ: Had she been sentenced by the time ‑ ‑ ‑

MR WALKER: No.

HEYDON J: It was stood over until the conclusion of your client’s trial.

MR WALKER: That is right.

HAYNE J: Justice Heydon points out to me that throughout the charge the judge is expressing the Crown argument with a degree of diffidence, “it seems that”, “it seems that”, “it seems that”.

MR WALKER: Yes, however, it is probably part of a trial judge’s duty, it is certainly proper for the trial judge to attempt to articulate the matter in a way which answers the possibilities raised in law and when the Crown accepts, as the Crown clearly did, the propriety of those ventured descriptions of the Crown’s case, then we have, in our submission, locked in that being the construct upon which the direction itself, the charge itself, to the jury is to be judged.

On page 67 of the record – and one of those examples that Justice Heydon has drawn to attention – about line 49 the prosecution seems to contend that although it was Ms Briggs, et cetera, et cetera, et cetera, there referring to an attempt to obtain possession, at the foot of that page:

and on the basis that Ms Briggs knew that there was something in the package that she was collecting, the Prosecution says, Mr Tabe is also guilty of that offence because he aided –

Now, there does not seem to be any diffidence there about what the prosecution says –

Ms Briggs to attempt to commit the offence or he did an act for the purpose of enabling . . . or he urged her to go and commit the offence.

Then there is a reference to the facts that the Crown relied upon there and then on page 68, about line 40 or so, the three things they needed to be satisfied of beyond reasonable doubt to find Mr Tabe guilty of the offence of possession of the dangerous drug. So the general words of the indictment, the jury is reminded of them and then they are told what are the three elements bearing in mind the way the Crown puts the case. The third was, about line 40 or so:

when Mr Tabe assisted Ms Briggs to do that act –

and that act has already been described –

Mr Tabe knew that Ms Briggs intended to attempt to obtain possession of the envelope . . . and its contents.

At the foot of that page, talking about what might be thought to be straightforward inferences, about line 60 or so:

probably won’t trouble you to infer that she knew that when she was collecting the envelope that there would be something in it ‑ ‑ ‑

GLEESON CJ: Well, there are only three logical possibilities. What it consisted of was some paper of no value.

MR WALKER: Yes.

GLEESON CJ: Some glass of no value and some powder.

MR WALKER: Yes.

GLEESON CJ: If you can put aside fairly quickly the possibility that either of them were after the paper or the glass, the inference is that they were after the powder.

MR WALKER: One starts first with, as your Honour has, noting that for all intents and purposes and certainly in the context of these laws and this charge, the packaging may be put to one side as not objects being sought for their own sake, the packaging and everything comprising the packaging. Indeed, we concede that the very notion of “envelope”, what that word means – see its etymology – “parcel, package”, these are words which, familiarly to the law, bespeak the likelihood – indeed it may be that is a rather modest way of describing it – perhaps the near certainty of there being contents. That is the nature of an envelope. There can be empty envelopes. Certainly the notion of a parcel or package undoubtedly there can be empty parcels and packages, but they really are exceptions that prove the rule.

So we do start with the process of thinking that the Chief Justice has drawn to attention. However, in a criminal prosecution – and these are serious offences – where the Crown does not prove that the accused either packed, commissioned the packing or witnessed the packing, there is a requirement that the jury’s attention be focused on the need to avoid guesses or speculation to employ inferential reasoning only upon proven facts, of course to call in aid their knowledge of the world and never to leave their commonsense behind – very important in a case of this kind – and then to ask themselves, in the circumstances proved – and that will differ as between, say, Ms Briggs and Mr Tabe – in the circumstances as proved, are you satisfied beyond doubt that she knew whatever the law requires her to know – and I am now focusing on the principle – what it contained.

We say the error most succinctly stated in the Court of Appeal in this case was not to examine the degrees of knowledge examined by this Court in He Kaw Teh which is a package case, but rather simply to stop at the first proposition which it may be conceded is an elementary and inescapable inference, namely that in the ordinary course one might even be tempted to say in practically every case an envelope, package or parcel, particularly if the envelope is one that appears to have been through the system, will have something in it.

GLEESON CJ: What if your state of mind is simply that you want possession of whatever is in it?

MR WALKER: Then, in our submission, that calls for distinctions and refinements of the kind that this Court has already, we submit, authoritatively expressed in He Kaw Teh and that it will not suffice if the height of the Crown case is that you were, in effect, curious to find what somebody had sent you, that being, of course, the case whenever any of us gets a notification from the post office that there is a parcel for us to pick up. Unless we decide that we do not wish to engage in that intercourse involved in receiving a package from somebody, then all of us going to or sending someone with a mandate to pick up for us that parcel might be said to have an interest in or to intend to have whatever it is in the package and whatever it is in the package, in a criminal context, the first matter of cardinal importance is to ensure that the words chosen by Parliament are not being interpreted so as to cover matters which could not possibly have been intended to constitute an offence.

That is why the package cases did throw up a problem, we say solved by a combination of Williams and He Kaw Teh, because unless you had your case being that the package had been one packed by the person or the person had knowledge prior to it being packed of what was going to be packed, unless you have that case, the point about a package is that you cannot see its contents in the ordinary case.

Now, in our submission, that means that if someone unfriendly to me sends me a parcel with a dangerous drug in it, the question arises whether, as on the Crown’s case in this Court, I am simply confined to hoping the jury believes I had a belief that it was innocent. Now, whether that could be a reasonable belief is a real problem because if it is an unsolicited parcel coming out of the blue, not having a bookshop logo on the outside of it, having no logo on the outside of it, how, in answer to sceptical questions, probing questions from the prosecutor, do I make good the proposition I had a reasonable belief that it was not anything at all and at that point, of course, in our submission, one is driven back to the fundamentals, we would say the elementary matters which were emphasised by this Court in Williams, in He Kaw Teh and they go back to earlier judgments by Sir Samuel Griffith to which reference is made in both judgments which make it clear that there needs to be more than knowledge that there is something in the packet or, to put it as the way the Court of Appeal put it, more than that the packet is not empty.

GLEESON CJ: Well, they use the expression, do they not, “sufficient knowledge”, which is a little imprecise.

MR WALKER: Yes.

GLEESON CJ: But in other jurisdictions – and Queensland may be different because of the legislation – as I understand it, “sufficient knowledge” in the context of drugs means you know that it has got, or might have, drugs there but you do not have to know it is methylamphetamine.

MR WALKER: That appears to be what comes out from He Kaw Teh – I will need to take your Honours, I am sorry, to those judgments. It is only on a possible reading of Justice Brennan’s reasons that one would derive a requirement of knowledge of the kind of drug it was, and properly understood, it is our respectful submission his Honour does not go so far. Certainly Justice Gibbs does not go so far.

May I just complete what I wanted to say about the passages in the summing up – we are on the last of those pages. On page 69, line 20 or thereabouts, again in relation to the assistance of Mr Tabe to Ms Briggs, her Honour points out:

if you’re satisfied that he did so assist Ms Briggs, he knew that Ms Briggs intended to attempt to obtain possession of the envelope . . . with a view to intending her to attempt –

I think that means intending her – that is, Ms Briggs –

to obtain possession of both the envelope and its contents.

At that point obviously the jury would be understanding that in a way raised by the Chief Justice this morning, namely, whatever those contents were. At line 40, again you see that reference “to pick up the envelope and its contents” in connection with what Mr Tabe had to know:

Mr Tabe knew that Ms Briggs was intending to obtain more than just an envelope, but she was intending to pick up the envelope and its contents -

and a repetition of that at lines 49 and 50 at the foot of that paragraph.

HAYNE J: Now, all this is in terms of an aid and abet an attempt.

MR WALKER: Can I now go to the provisions that get us to that rather etiolated version of a nonetheless serious offence. It would appear that my friend and I really are not at odds in relation to the role of attempt in this case. Your Honours have seen the last exchange in writing, the supplementary submission and our response to that. It may be there could have been debate about the proper form of the charge, in particular the principal offender, but we make no more of that than one sees in that exchange of written submissions. I will not need to develop that any further.

The way in which the matter falls out, we respectfully suggest, may be approached as follows. Starting with section 2 of the Criminal Code which simply says:

An act or omission which renders the person doing the act or making the omission liable to punishment is called an “offence”.

We then move to section 44 as it was at the time, of the Drugs Misuse Act - and this could have been inserted at any point, but is convenient here:

The Criminal Code shall, with all necessary adaptations, be read and construed with this Act.

There does not seem to be any difference about what that means. This is, as it were, a form of composite legislation by cognate statutes, and it is clear that the Drugs Misuse Act, therefore, is to be seen to be using concepts and words, as the Criminal Code uses or defines them, subject to the exceptions, to which we will come.

Section 9 of the Drugs Misuse Act – it has not changed its numbering – does what section 2 of the Criminal Code requires to create an offence – constitutes offence. Relevantly, it says, that:

A person who unlawfully has possession of a dangerous drug is guilty of a crime -

with penalties differing according to the nature of the drug, according to schedules. Notoriously, this drug has been elevated in the criminal calendar since these events. The next place to go is in the Criminal Code and is section 535. I draw to your Honours’ attention that is not section 536. Section 535 is:

Any person who attempts to commit any indictable offence is guilty of an indictable offence, which, unless otherwise stated, is a misdemeanour.

At that point – I am sorry about the word…..element of this. We are driven back to section 4 of the Criminal Code which contains the stipulation of what constitutes an attempt and that was significant in this case. Section 4(1) refers to:

a person, intending to commit an offence, begins to put the person’s intention into execution by means adapted to its fulfilment . . .
(2) It is immaterial, except so far as regards punishment –

an important note –

whether the offender does all that is necessary . . . or whether the complete fulfilment of the offender’s intention is prevented by circumstances independent of his or her will –

That applied in this case. Then subsection (3), which also applied in this case:

It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence.

They operated in this case by reason of the post office and police interception of the parcel and the removal of the nefarious substance so that when she went in with the card given by my client, Ms Briggs was facing an impossibility in terms of attempting to obtain possession of a dangerous drug. There was no dangerous drug in the parcel which would be given to her in response to her handing over the card.

GLEESON CJ: Is that card in evidence?

McHUGH J: Yes.

MR WALKER: Yes.

GLEESON CJ: Where can we see that?

MR WALKER: Page 57.

GLEESON CJ: Thank you. So that really is like an authority to collect. As far as the post office is concerned, it will hand over the parcel to whoever produces that card.

MR WALKER: Yes.

GLEESON CJ: That card was given by your client to Ms King?

MR WALKER: Yes.

CALLINAN J: Despite that his name was not the same name as the addressee?

MR WALKER: Yes. Your Honour is aware that there was evidence about that involving the gentleman, Mr Tabeler, a person other than my client.

McHUGH J: Is it suggested that Mr Tabeler does not exist?

MR WALKER: I think that might be the Crown’s suggestion.

McHUGH J: Yes, I thought it might.

CALLINAN J: And the address did not exist either.

MR WALKER: The address is what I think is called in the industry “undeliverable”; it did not exist.

GLEESON CJ: But one thing that the card demonstrates quite clearly is who was doing what on behalf of whom.

MR WALKER: The “on behalf of whom”, your Honour, that was a matter for the jury. The jury had the evidence about Mr Tabeler as opposed to Mr Tabe. They had the evidence about the meat tray raffle at the Miami Hotel and Mr Tabeler having to leave.

GLEESON CJ: I just meant as between your client and Ms King.

MR WALKER: There is no question that he gave the card to her rather than vice versa. There is no question he drove the car and she made the walk to the post office and the walk back; no doubt about that and there was no contest about it. Indeed, the narrative offered in defence is a narrative which embraces all of those steps.

I had drawn to your Honours’ attention section 4. Your Honours will remember that in subsection (2) there had been an exception for one of the rendering of certain circumstances immaterial, an exception as regards punishment. That is where one goes back to section 536 and sees that under section 536 of the Code there was, as it were, a moity approach, including a convention in relation to life sentences and sentences more than 14 years long, adopted in relation to the punishment of those who attempt.

One then goes to section 44A of the Drugs Misuse Act as it then existed in its numbering. Significantly, one might think, following immediately upon section 44, their current numbers are sections 116 and 117 ‑ ‑ ‑

GLEESON CJ: What is the one we are now looking at, Mr Walker?

MR WALKER: Section 44A of the Drugs Misuse Act as it then stood. It is 117 in the current numbering and it says that:

(1) In lieu of the Criminal Code, section 536 the following provision shall apply –

which, at least until one considers some of the words that follow, would appear that 535, section 4 are entirely unaltered in the operation required by section 44 of the Act. We submit that is, in fact, the proper position, ultimately. The words that shall apply in lieu of that punishment provision for attempt would be straightforward, but for the expression in the middle of it, “is deemed to be guilty of the intended crime and”, because the rest of it simply says:

is liable to the same punishment and forfeiture as a person who commits the intended crime.’.

GLEESON CJ: Does that not mean that if your client aided and abetted Ms Briggs, and Ms Briggs was deemed to be guilty of possession of the drugs, your client was aiding and abetting possession of the drugs?

MR WALKER: Yes. Your Honours will have seen the word “notional” bandied about. That is an attempt to capture – as one probably cannot – in one word the deemed outcome in section 44A(1), section 117(1) as now is. Now, there are these circumstances about the principal’s offence. She could never have got hold of the drug after the police had removed it. She did steps which answer the description in section 4(1) of the Criminal Code being an attempt, and the reasons why it was impossible – it had nothing to do with her and were unknown to her, subsection (2), subsection (3), whereby there was the full blown attempt.

In relation to punishment for the offence, in place of section 536, the moity idea, 44A(1) said you will be liable for the whole of the penalty that could apply to somebody who commits the intended crime as opposed to attempts to commit the intended crime. As I say, in the middle of that expression, there is this notion of “is deemed to be guilty of the intended crime” and one reading of that is that this is a legislative explanation of the equivalence of penalty imposed on someone who attempts rather then commits a crime.

GLEESON CJ: Is there a separate offence of incitement?

MR WALKER: There is certainly counselling and procuring but when your Honour says “separate offence”, I am about to come to section 7. In our submission, yes, they can be charged as separate offences. It raises a question that Justice Hayne noted in the context of current Commonwealth legislation. There are discretions available in charging under section 7 of the Criminal Code to which I will come ‑ ‑ ‑

HAYNE J: That is not discretion, it is how you plead it. What the indictment should read.

MR WALKER: Yes, your Honour, but there is a “may” there, which is the only reason why I say discretion. I am going to come to it. I should not be taken as suggesting that this is an admirable state of affairs, but it does appear to be that which is clear in section 7. It means my answer to the Chief Justice’s question is that it could be a separate offence. Certainly, it is a separate or distinct route of being found guilty of the offence of possession.

GLEESON CJ: Take a completely different crime, homicide. Suppose A encourages and assists B whose objective is to kill C, but B shoots at C and misses, or is in some other way frustrated from achieving the purpose. What is the offence that A has committed?

MR WALKER: A is the inciter, inciting an attempt.

GLEESON CJ: Not aiding and abetting?

MR WALKER: Sorry, no, it would be actually inciting the offence.

GLEESON CJ: Not aiding and abetting.

MR WALKER: And it would be aiding and abetting an attempt. The intention for the aid and abet is the intention not to attempt, but to commit the offence, to have the offence committed.

GLEESON CJ: Certainly, your client was not counselling or procuring Ms Briggs to attempt to get hold of drugs.

MR WALKER: As a matter of English, of course, he was; that is, “I want you to get out of the car and try and get this parcel”. So, as a matter of English, yes, but, as a matter of law, the way your Honour asked the question, no, of course not. He was – the intention, as charged, was that he aided and abetted the commission of the offence.

GLEESON CJ: This could be of some relevance to the point you are coming to in due course, that is, the question of the comparative mental states from Ms Briggs and your client.

MR WALKER: Yes, it is. That is a critical point, yes. Your Honours, I am going to now come to section 7 of the Criminal Code, this being, as your Honours have seen, the source of the route by which my client was prosecuted for possession. You have seen in 44A of the Drugs Misuse Act that you are deemed to have committed the offence and be liable to the same punishment as a person who commits the offence if you attempt. Now, one comes to the all important “CHAPTER 2 – PARTIES TO OFFENCES” part of Sir Samuel’s work. In section 7, heading “Principal Offenders” – I am sorry that that term is ambiguous – one has treated as a principal those who might be regarded as having accessorial liability, to use the expression employed by this Court in Yorke v Lucas.

So that there is a deeming at the heart of this in order to advance the policy of the criminal law that there be recognised the criminal responsibility of those other than simply the trigger man. So in section 7(1) one starts with the postulative, “an offence being committed”, bearing in mind that an offence (see section 2) is constituted by defined acts and omissions:

each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it –

that is, notwithstanding that in the following ways you did not actually carry out the acts and omissions which constitute it, section 2. So you have tautologously, perhaps, paragraph (a) being the trigger man:

who actually does the act or makes the omission which constitutes the offence –

the section 2 concept. Then those three, from which selections were made to advance the case against my client in this case. Paragraph (b):

(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;
(c) every person who aids another person in committing the offence –

It has been held that (b) and (c) do not introduce any difference of intention in the persons to whom they apply, and that is not contested by the Crown in this argument; that is, the notion of aid has purposive intention notwithstanding that in paragraph (b) the notion of purpose is actually explicit. In paragraph (d) one has the final words, which were used in the particularised mode of prosecution against my client, namely:

(d) any person who counsel or procures any other person to commit the offence.

Those were the ways in which my client was prosecuted.

HAYNE J: Now, can I come back to what continues to trouble me at the very root of this whole argument. In what circumstance, if your argument is right, could there be an aiding, counselling or procuring of an attempt to possession that did not itself fall within the attempt provision?

MR WALKER: At the basis of things is the requirement of section 2 reflected in section 7 and not expelled by section 44A(1).

HAYNE J: We have got dealing upon dealing upon dealing happening here.

MR WALKER: We do, we do, we do.

HAYNE J: So as a matter of fact ‑ ‑ ‑

MR WALKER: Yes. I am trying to start with – the law requires acts or omissions, which will not, of course, appear in the case of a mere attempt. So the accomplished offence is the only one that will answer the section 2 description, section 9 of the Drugs Misuse Act in this case being the particular provision that does the section 2 thing. So that a person who is attempting has their guilt, their susceptibility to an offence, being proved against them measured by the matters set out in section 4 of the Code, which are obviously called up by section 44A(1) of the Drugs Misuse Act because it simply uses the expression “attempt”.

They, in section 4, see subsection (1), involve intention to commit an offence which is ex hypothesi not actually committed. Not all acts and omissions, not all the circumstances have occurred which render that an offence. It may be nearly all of them have. Now, 44A(1) for punishment purposes renders such a person liable to the same punishment as someone who actually commits the offence – the intended offence.

Section 4 of the Code, giving its content to section 535 of the Code creates an offence of attempt. Section 535 creates the offence of attempt and that is the provision under which Ms Briggs had committed an offence, 535. Given content by section 4, rendered liable to punishment in accordance with – not 536 of the Code, it was displaced – instead 44A(1). Now, on that understanding of the interaction of the provisions, the person who aids and abets, et cetera, can, because section 7 is adapted to apply to all manner of offences – it is a general provision – can be seen to be capable of applying as well to a section 535 offence as to an offence such as that created by section 9 of the Drugs Misuse Act.

GLEESON CJ: May there be a difference between paragraphs (b) and (c) of section 7. Note the opening words of section 7:

When an offence is committed ‑ ‑ ‑

MR WALKER: Yes.

GLEESON CJ: We are here dealing with a deemed offence.

MR WALKER: An attempt.

GLEESON CJ: Well, a deemed offence of possession. It may be that the language of paragraphs (b) or (d) of 7(1) could accommodate a deemed offence. It is a little difficult at the moment to see how you could aid somebody to commit a deemed offence.

MR WALKER: Yes, but you can aid someone to commit an attempt. There is nothing deemed about an attempt.

GLEESON CJ: You can do an act for the purpose of enabling someone, perhaps, to commit a deemed offence or you can counsel or procure someone to commit a deemed offence.

MR WALKER: Your Honour is referring to the deemed offence that appears from the middle words of section 44A(1) of the Drugs Misuse Act.

GLEESON CJ: Yes.

MR WALKER: Those are the words which start with something which is an offence, an attempt. Section 535 of the Code tells us that. That is an offence. There is the non‑deemed – I am trying to think of the right word – there is the real offence attempt. For the purposes of providing for the extent of punishment to which such an offender is liable Parliament expresses its will that they are deemed to have committed the offence which is, after all, similar to the policy of the law you see in section 4 of the Criminal Code regulating attempts.

GLEESON CJ: But does the Criminal Code deal separately with incitement or is incitement within section 7?

MR WALKER: I think the answer to that is, in terms of incitement, generally speaking, rather than for particular offences I think it is within section 7. I am told that is right. That is my understanding, your Honour.

CALLINAN J: If you incite somebody you at least counsel them, do you not?

MR WALKER: Yes, quite so. That is as we understand it at the moment. I think I can conclude – I hope I can – my answer to Justice Hayne’s, with respect, very difficult question as follows, that section 7 therefore contemplates you must identify an offence having being committed. We would respectfully offer in this case that the proper analysis would be the 535 attempt. However, in order to do the things in relation to the attempt to answer the descriptions in paragraph 7(1)(b), (c), and (d) of the Code there is, we respectfully submit, absolutely no distinction at all, factually, and therefore in law between what one does to aid an attempt and what one does to aid the commission of the attempted – or to use the statute’s expression “intended” offence.

Now, “intended” offence comes from the opening word of section 4(1) of the Code and it is picked up in 44A(1) of the Drugs Misuse Act. It is obviously not a sensible distinction to propose that anybody has in their mind, bearing in mind that “attempts” is defined in section 4 so as not to include self‑consciously futile conduct that would not answer the descriptions in section 4(2) and (3). It cannot really contemplate somebody intending to aid and attempt but not intending to aid the commission of the attempted – that is intended offence.

For those reasons, although this was an attempt by Ms Briggs, that has no effect on the cogency of the claimed application of section 7 of the Code by the Crown to my client. It made no difference, it did not attenuate in any way the involvement alleged against him leading to the criminal responsibility imposed as on a principal offender by section 7 for people who, generally speaking, have been conveniently labelled “accessories”.

Now, your Honours, that leaves then the provisions which are at the heart of the argument of interpretation concerning the degree of knowledge required of the principal offender, and that is a separate issue from the degree of knowledge which is required of my client, the accessory. I am going to deal with them each as briefly as I may. In relation to the principal offender, it is the provisions as they then stood of paragraph 57(d) of the Drugs Misuse Act which are at the heart of the argument against us. They are now numbered paragraph 129(1)(d). They were 57(d) at the time.

Now, that is what is called an evidentiary provision. In paragraph (a) there is a dispensation of certain forms of particularising which was no merely procedural matter. It obviously has a substantive effect and it goes to very important matters in relation to knowledge of what I call chemical analysis. It does not play any part, apart from the context it provides, in this argument. Paragraph (b) refers to liability to conviction notwithstanding something not being proved. The word “proved” is one I will call in aid contextually. Paragraph (c) makes provision for proof of certain facts showing conclusively that a drug:

was then in the person’s possession unless the person shows –

something and I will call in aid, in particular, the word “proof”, but I am bound to note as well the word “shows” in that provision, contextually.

Now, that is the provision to which I referred earlier in answer to a question from Justice McHugh. The word “place” appears there. That is defined so as to include vehicle, but the Crown did not choose to use Mr Tabe’s occupation or being “concerned in the management or control” of the vehicle as being any part of its case. The offence to which he was accessory appears to be that committed between the post office, the Commonwealth place, and the vehicle apparently managed by Mr Tabe.

GLEESON CJ: They were both standing outside the vehicle when they were arrested, were they not?

MR WALKER: Eventually, yes, but they were apprehended while in the vehicle.

GLEESON CJ: They were apprehended while in the vehicle?

MR WALKER: Yes, they got out.

HAYNE J: The package was in the passenger side floor.

MR WALKER: But “place” includes vehicle. Now, I draw it to attention, it is another example of one of these permutations or computations not pursued by the prosecution. I need to draw it to attention.

Now, paragraph (d) is the critical one. These are, as it were, a miscellany of provisions. They do not follow a standard, conceptual or intellectual approach. Paragraph (d) says:

the operation of the Criminal Code, section 24 is excluded –

That conjures up section 44 of the Act, to which I have already drawn attention, and what would otherwise be the case – perhaps even without section 44 – simply by reference to the fact that the Criminal Code would not have been impliedly repealed by the Drugs Misuse Act, but it is excluded. So we are talking now about a non‑application; that is, something that is not to be “read and construed with this Act”, to use the language of section 44. It is excluded unless something is true, or unless something happens. We have submitted, as it were, that is an exception to an exclusion. So section 24 is not excluded if, is the reading we offer of the ordinary English, used legally, meaning of the word “unless”.

There the expression “shows” – you will have seen that word “shows” towards the end of paragraph (c), but there is no reference to proof here. The words that ‑ ‑ ‑

GLEESON CJ: Well, what that does is reverse – to put it roughly, reverses the onus of proof in section 24, does it not?

MR WALKER: We submit not, but do so knowing that that is a difficult argument. Can I briefly put it this way. Section 24 does not reverse an onus.

GLEESON CJ: Section 24 requires the Crown to displace the possibility of honest and reasonable mistake of fact.

MR WALKER: Quite so. The words that follow “unless” are words that posit the inclusion, if I can use that expression, of section 24. Section 24 is not transformed; it simply applies or not. It is section 24 that governs if the words following “unless” can be fulfilled. Section 24 governing means no reversal of onus in accordance with unchallenged authority of this Court. So we have the question whether the words that follow “unless” have in fact transformed section 24 when it does apply. It would be a large thing to have accomplished, the reversal of an onus, and, in our submission, there are not sufficiently plain words to have accomplished that.

GLEESON CJ: Well, the word “shows” in paragraph (d) presumably means the same thing as the word “shows” in paragraph (c).

MR WALKER: It would be impossible for me to contend to the contrary.

GLEESON CJ: Well, who carries the onus of proof under paragraph (c)?

MR WALKER: In our submission, the Crown bears the ultimate onus to displace that answer.

McHUGH J: But does it not work this way? Paragraph (d) says “the operation of the Criminal Code . . . is excluded unless” ‑ ‑ ‑

MR WALKER: Yes.

McHUGH J: So why is not the proper construction that you have the onus of showing an “honest and reasonable belief” and then section 24 operates to hold that you are not criminally responsible for the act or omission?

MR WALKER: One, that is most certainly an available interpretation. Two, it has real cogency, we accept. Three, for these two reasons, it should not be preferred. I am in danger of repeating myself, but this will conclude what I want to say about this topic. Section 24 does not reverse an onus, and we are talking here about not applying it mutatis mutandis, but applying it. Second, at last, the words that follow “unless” in paragraph (d), read literally, are very odd indeed. They do not reproduce the elements in section 24. There is no reference to “mistake”, there is no requirement that the “state of things” be one which you might then invoke section 24 not being excluded. This notion of “things material to the charge” is an extremely compressed way of conjuring up that which section 24 conjures up by the far more plain language – and I quote from section 24(1) of the Criminal Code:

belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist.
In our submission, it is extremely compressed and, literally speaking, inaccurate to summarise that as it appears to be summarised in 57(d), namely, “existence of any state of things material to the charge”. Now, “an honest and reasonable belief in the existence of any state of things material to the charge” would literally include an honest and reasonable belief that it was methylamphetamine, for example. Literally, having shown that, whatever “shown” means – and we accept the difficulties there – section 24 is not excluded. Then you can come and show “an honest and reasonable, but mistaken, belief in . . . any state of things” which, had it existed, et cetera. That cannot be right and the question is, what has Parliament achieved here? In our submission, what it has not done is to achieve the gutting of an elementary and fundamental aspect of section 24, namely, that it is for the Crown to disprove it.

GLEESON CJ: Why does not paragraph (c) apply in this case?

MR WALKER: Because they did not mount that case. Your Honour, I have drawn to attention that provision precisely because on the facts one can see that it might have.

GLEESON CJ: They proved, did they not, that your client was concerned in the management or control of the vehicle, and the drugs were in the container. The package was in the vehicle.

MR WALKER: The notional drugs, to use very shorthand, yes, your Honour. That is why I have drawn it to attention. They did not run the case that way. That was a direct route to possession, section 9. They did not run it that way.

GLEESON CJ: However, it is also the case, is it not, that both paragraph (c) and paragraph (d) have been treated by the Queensland courts in past cases as ‑ ‑ ‑

MR WALKER: Reversal of onus.

GLEESON CJ: Yes, and as inconsistent with the He Kaw Teh approach to possession.

MR WALKER: Yes, that is why I say they are at the heart of the exercise. Now, the first question is, and I do not want to say anything more about reversing the onus, I am now going to accept for the purposes of the rest of my argument that they reverse the onus. That is important. It is indeed the case that in a number of decisions, including, implicitly, this one – not so implicitly this one – in a number of decisions, this is the provision, 57(d), 129(1)(d) as it now is, this is the provision that has been treated as subtracting from possession as used in section 9 elements of knowledge of the kind which were required by the majority of this Court in He Kaw Teh.

This notion of subtraction can best be seen as an approach to the interpretation of such as statute in the reasons of Sir Daryl Dawson in He Kaw Teh whereas your Honours remember there were words in that provision, paragraph 233B(1)(c) of the Customs Act upon which his Honour fastened to perform what I am calling this subtraction exercise from the knowledge inherent in the notion of possession.

McHUGH J: But are you attacking the authorities on what is required in relation to the principal offender or do you accept them?

MR WALKER: No, I accept them.

McHUGH J: If that is so, how do you get around the difficulty that, as a matter of principle, an aider only has to know all the material facts that constitute the offence?

MR WALKER: By pointing out that they include that it is a dangerous drug. The Crown must prove that as an element of the offence. There is no offence of possessing something you believe to be amphetamine if it is, in fact, talcum powder.

GLEESON CJ: Which are the authorities that you accept? The Queensland authorities or He Kaw Teh?

MR WALKER: No, He Kaw Teh and Williams, very importantly. Now, Williams includes, of course, Sir Keith Aickin’s expression in relation to the precursor legislation, Queensland precursor legislation. Same words, yet again different numbering from the then Health Act. That is what Williams concerned and Sir Keith Aickin’s approach, one can see quoted with apparent approval at 157 CLR 537 in the reasons of Chief Justice Gibbs and that is the sufficient knowledge quotation to which the Chief Justice referred this morning. There has to be “sufficient knowledge of the presence of the drug”.

McHUGH J: But your argument depends very much on regarding section 57 as no more than an evidentiary provision.

MR WALKER: No, I am not going to characterise it in order, as it were, to remove its importance. The word “evidentiary” is, in any event, a somewhat ambiguous expression here, even if one were to give it any weight in a heading. These, then, are in a very large sense evidentiary provisions, but they do not answer the technical description of “evidentiary”, I think, any of them. Perhaps (e), but that is a substantive question of the burden of proof in relation to an authorisation, but the others are, perhaps uneasily, called evidentiary. No, your Honour, I do not rely on the heading. I certainly do not rely on any tendentious characterisation of them being merely anything. They are part of the law to be taken into account. They are part of the text. It is a textual exercise upon which, in our submission, it can be seen that there was an analogy in He Kaw Teh which was perfect – not imperfect, but perfect.

Going back to what I was saying about Sir Keith Aickin’s passage in Williams, one will see, as I say, it quoted with apparent approval – that is, for the purposes of making out one of the propositions in his reasons – by Chief Justice Gibbs at the foot of page 537. One also sees it in Mr Justice Brennan’s reasons at 586 at the foot of that page, described there as “the better view”. That is a better view in a controversy in which, just after halfway down page 586, Sir Gerard said:

The offence is committed only if the supposed offender knows that the object possessed is, or is likely to be, narcotic goods.

Now, if one were to adopt what is probably an irregular – I do trust not an impertinent – spectrum approach to the reasons of Justices in the same majority, it could be said that Sir Gerard and Sir Daryl’s reasons stand further apart than any of the other reasons in the majority in this case.

McHUGH J: Well, what he says is contrary to the decision of the House of Lords in Lambert. Have you read Lambert?

MR WALKER: Yes, your Honour, but, in our submission, this – I am not going to rely upon Mr Justice Brennan’s reasons as – certainly read in a way which differentiates the most, for example, from Sir Daryl Dawson’s reasons. I am not going to suggest that that is what this Court should hold He Kaw Teh stands for. But, with respect, the combination of all of these reasons certainly produces sufficient knowledge of the presence or existence of the drug as required in a package case, and that is potentially, in terms of a jury’s inferential exercise, quite different from simply knowledge that the package had something in it, in that it was not empty.

It may be that in many cases, so guided, a jury will have no difficulty whatever in making the inferences of such knowledge, but that, with respect, is a reason for greater, not less, caution in examining the charges to a jury. In our submission, where the charge does not appear in terms which answer the requirements, to which I will come in a moment, to be discerned from He Kaw Teh, if they were indeed requirements, analogously to be applied, then when that happens there has been an error which requires correction.

HEYDON J: You rely on Justice Dawson’s quotation of Mr Justice Aickin as well, presumably?

MR WALKER: Page 598?

HEYDON J: Yes.

MR WALKER: I do. Now, I can deal with Williams very quickly. I do not want to take your Honours to it unless your Honours wish to raise something with me about it. The importance in Williams is that their Honours considered, not in the way that my learned friends raise it, the provisions of what was, at our time, paragraph 57D, now paragraph 129(1)(d), and was then 130J(2)(d). There was no argument in Williams that that subtracted from the requisite possession, but there are references in other contexts to that provision. From the point of view of requisite knowledge for possession, they were construing and applying the exact precursor of section 9 that was then in the Health Act.

In that case was concerned minute quantities found in a pocket of somebody who apparently very frankly said in answer to the suggestion, “What do you think this might be?”, he said, “It’s cannabis, if that’s my coat it’s cannabis”. The Court said the knowledge was not sufficiently proved by such evidence because it was too small an amount of which one could have possession. The knowledge in question, the knowledge which would be required for possession as being inherent in the concept of possession would be in a way that was not perhaps fully elaborated in the reasons, would be knowledge of a past possession and not knowledge of a possession at the time charged.

GLEESON CJ: Does sufficient knowledge include belief that it might be drugs?

MR WALKER: It would appear that Justice Brennan took that view by the reference to “likely” which probably does not mean balance of probabilities. It would appear that the drawing back from a requirement as to knowledge of so-called nature or quality by Chief Justice Gibbs also leads to practically the same position.

GLEESON CJ: So if you turn up at the post office and there is a parcel to you that you had not been expecting and you thought, “This might be a fruitcake or it might be drugs. I will have it.” That is sufficient knowledge if it turns out to be drugs?

MR WALKER: Probably not. What is interesting or difficult about this area is that there is no refined distinction between knowledge and belief. The insistence in the words of the majority are “is on knowledge” and in our submission well and good, bearing in mind the criminalisation of conduct that may involve dealings with all sorts of people who may not be either careful or charitable towards one and one comes to the standard, perhaps hackneyed example – if I can use that word “hackneyed” example – the taxi.

Taxi drivers surely would not be accepted by any jury if they said, “I proceed on the basis, made reasonable by my experience of mankind of my customers, that none of my customers ever carries anything illicit”. That would be absurd. There is a difference, however. The jury needs to be directed – the prosecution has to show that he knows that what was in the box, was in the vehicle he was managing or controlling, he knows sufficient about that to make that criminal rather than one of the multifarious possibilities a taxi driver will have with anybody who gets into a cab with a suitcase.

McHUGH J: Yes, but the taxi driver does not have possession of the suitcase. The most he has is custody.

MR WALKER: Is that subject, of course, to – let me go back. Yes, your Honour, because of knowledge. That is what He Kaw Teh says. That is the point. You only have custody of something rather than possession of it if you do not know of it. To paraphrase from expressions quoted in He Kaw Teh, you cannot possess something, the existence of which you remain unaware of.

GLEESON CJ: Well, the caution inherent in the expression “sufficient knowledge” is probably there because of the variety of shades of difference in the mental states that a person might possibly have towards the contents of something that is sent or given to the person to carry.

MR WALKER: Sir Daryl Dawson, for example, refers to sufficient knowledge to be able to produce knowledge of its presence or existence. They all draw back from knowing its chemical analysis, but you have to know about the thing rather than what I will call the potentiality of a thing because the package appears not to be empty. Not being empty is not the same as having knowledge of the presence or existence of a drug.

GLEESON CJ: Well, those people who are sometimes called mules are given things to carry and paid a large amount of money to carry them.

MR WALKER: Yes.

GLEESON CJ: In circumstances where it may be that all they know is that they are contraband of some kind.

MR WALKER: Yes.

GLEESON CJ: Without knowing whether they are jewels or drugs or something else.

MR WALKER: Your Honour, juries would normally not have a great deal of difficulty in inferring sufficient knowledge.

GLEESON CJ: But is it sufficient to know that it is contraband if it turns out to be drugs?

MR WALKER: Not contraband as such, but sufficient to know of the presence or existence of a drug without knowing what drug it was or what its chemical analysis was.

GLEESON CJ: What if you know that it could be a drug? It could be a drug, it could be jewellery, it could be birds. It is something that somebody is prepared to pay a lot of money to smuggle.

MR WALKER: Well, the first and proper answer is, assuming diamonds were contraband and some birds are definitely contraband, some drugs are definitely contraband, using those three examples, it would not be proper to convict of possession of a dangerous drug someone who – I do not know how the word “honestly” enters into this, but let me assume it might – someone who honestly and reasonably, but mistakenly, believed it was a diamond run that he or she was making.

GLEESON CJ: Yes, but I am talking about somebody ‑ ‑ ‑

MR WALKER: He or she should be convicted for something else.

GLEESON CJ: I am talking about somebody who does not know or care exactly what it is.

MR WALKER: Your Honour, that raises what is called in the books “wilful blindness” and we know that this Court has set its face against equating that with negligence or recklessness, although it must be that the upper reaches of recklessness will approach wilful blindness, see Giorgianni. The examples your Honour the Chief Justice has raised with me would be dealt with by a wilful blindness direction which would in such cases be appropriate.

You have been paid more money than you have ever been paid before. You have no skills. You are not a courier of a recognised commercial kind. It is a small packet. You are asked to deal with it in a hugger‑mugger fashion. The jury is not going to have much difficulty inferring, in answer to any suggestion, that for all the person knew it was a valuable postage stamp. They are not going to have much difficulty in finding a wilful blindness in relation to possession of a drug, or one might think so. That is a jury question.

In our submission, what this Court requires is that there be no stepping back from the requirement inherent in the notion of possession of some degree of knowledge of the presence or existence of the thing whose nature and quality renders the matter an offence, not of that nature and quality, but of that thing.

If I may just give your Honours a catalogue, rather than take you to the pages, one finds the discussion of nature and quality not being necessary in Chief Justice Gibbs at 531 at the bottom of the page; the expression “existence of the thing” is in 537; “existence”, “nature” and “qualities” are referred to at the top of page 538; at 542 “existence of the thing possessed”; at 544 “qualities” and “existence” is referred to; 545 further discussion of that in the passage that is the culmination of his Honour’s reasons. At 545:

I hold that in a proceeding . . . the prosecution bears the onus of proving that the accused knew of the existence of the goods which he brought into Australia, or which were in a suitcase or other container over which he had exclusive physical control, as the case may be. The proper direction on the first charge –

that is the importation charge –

was that the prosecution had to prove that the applicant brought the suitcase into Australia, knowing that the heroin was in the case.

There is no refinement on that concept there. This is a charge to a jury, after all, to guide them in inferential reasoning.

On the second charge –

that was the possession charge –

the jury should have been told that they could not find that the applicant had the heroin in his possession, unless they were satisfied –

then his Honour puts it very plainly and entirely appropriately, with respect, for a jury charge –

that he knew that it was in the suitcase.

The antecedent of it is the heroin but, as the passages to which I have already given reference show, that did not involve him being or pretending to be a chemist.

At 589 Justice Brennan similarly culminates his reasoning on the matter just after halfway:

On a count of possession . . . the onus is on the prosecution to prove that an accused, at the time when he had physical custody or control of narcotic goods, knew of the existence and nature, or of the likely existence and likely nature –

and that does not include chemical analysis –

of the narcotic goods in question ‑ ‑ ‑

McHUGH J: But that goes beyond the authorities, does it not, to talk about the nature?

MR WALKER: Your Honour, that is why I have already said what I have said about our reliance on his Honour’s reasons and we certainly do not embrace – if his Honour was to be read as meaning that that included its chemical description, if not chemical analysis, then we do not embrace it. We embrace the way the Chief Justice and Justice Mason put it. Then the corresponding passage in Justice Dawson’s reasons is at 602:

In my view, it comes to this. A person cannot, within the meaning of par (c), possess something when he is unaware of its existence or presence.

That picks up some very old ‑ ‑ ‑

McHUGH J: But the point in He Kaw Teh was that the accused alleged he did not even know there was anything in his suitcase.

MR WALKER: In the false bottom of his suitcase, yes.

McHUGH J: But what if you know there is something there? Why is that not possession? You do not have to know the nature or quality of it. You know there is something in the box. It is no use you saying afterwards, “I thought they were Aspros” and they turn out to be heroin.

MR WALKER: This is not a contrary answer to your Honour, but this has been dealt with by this Court. The holding in He Kaw Teh – and there is a holding; it is not a mere decision without a ratio.

McHUGH J: It is interesting in He Kaw Teh. I mean, seven years before the Court refused special leave in Rawcliffe which I argued in this case and the argument went on for some hours – I think it went into a second day. I cannot remember whether the Court gave a formal judgment, but the Court refused to grant leave and overrule Bush and Tawill, a Victorian case. Then seven years later, Chief Justice Barwick is gone, you have a different Court, and ‑ ‑ ‑

MR WALKER: Your Honour, I will not be drawn into speculating about refusals of special leave, and I will not say anything about ‑ ‑ ‑

McHUGH J: Well, in those days, special leaves were argued elaborately.

MR WALKER: And I will not say anything about composition of a Bench. Neither is an argument I can or would call in aid.

HEYDON J: Is not Justice Dawson against you? He says:

But he will, since possession is used in its barest sense, possess something if he has custody or control of the . . . place in which it is to be found provided that he knows of its presence.

MR WALKER: The answer is perhaps, your Honour ‑ ‑ ‑

HEYDON J: Now, here we postulate he knew that there was present something.

MR WALKER: Yes.

HEYDON J: And, had it not been intercepted, it would have turned out to be a drug.

MR WALKER: I referred to a spectrum earlier. Yes, on that spectrum, he is the least amenable to our position. However, I am going to rely upon both that attribute and what his Honour said on the key matter in just a moment because, ultimately, he is in our favour. The proviso in the sense to which your Honour has just drawn attention is really quite critical. Having said what I have just quoted, his Honour then proceeded in the way that Justice Heydon has just quoted, concluding, “provided that he knows of its presence”. Now, that is the thing contained rather than the container:

He need not know what it is (other than to the extent necessary to know of its presence) nor its qualities.

Nature has been used, qualities have been used –

Thus a person will possession narcotic goods if he has, to his knowledge, custody or control of something which is in fact a narcotic substance, even if its packaging prevents him from knowing what it is and even if he does not know its quality as a narcotic substance.

That is a sentence which is even more challenging for our position.

McHUGH J: Is that not orthodox doctrine?

MR WALKER: No, the orthodox doctrine is found in Chief Justice Gibbs. Now, it is useful if I then try to complete my answer about the holding in this case, as it applied here, by then staying on that paragraph at 602 in Mr Justice Dawson’s reasons, where there is a reference to “he may have a defence of reasonable excuse under par. (c)”. Your Honours appreciate that this was a case where, for present purposes, there are the following a fortiori indications. If I can take you for convenience to page 527, where the provision is set out, at paragraph 233B(1)(c) of the Customs Act of the Commonwealth, which rendered guilty of an offence any person who:

Without reasonable excuse (proof whereof shall lie upon him) has in his possession, or attempts to obtain possession of, any prohibited imports to which this section applies –

et cetera. The word used is “possession”, and the word used in section 9 in this case is “possession”, and no one has suggested, apart from what I will call the section 57(d) argument, that the word “possession” would fall to be construed differently, particularly as important common law and criminal law principles were called in aid by this Court in both Williams and in He Kaw Teh, not for the first time, in understanding “possession”. Indeed, an old reference that your Honours will remember, referred to in these authorities themselves, was to Chief Justice Griffith in Irving v Nishimura (1907) 5 CLR 233 at 237:

It is said, and very properly, that a man, who does not know that a thing is in his possession, cannot be convicted of having it unlawfully in his possession.

An example is having something slipped into your pocket. Now, that provision being construed in He Kaw Teh had, within its immediate context, integral to the elements constituted in the offence, an absence of “reasonable excuse” with an onus reversal. That is why we argue this assuming that I am wrong on the onus reversal in 57(d).

Without reasonable excuse was treated by their Honours, with respect, appropriately, as being something which of course included the existence of an honest and reasonable but mistaken belief as to a state of things which would affect criminality. and going broader, so that the onus of proof was reversed on matters of answer to possession which were broader even than what section 24 with its onus reversed by 57(d) would do in this case, notwithstanding that textual reference which was both in the actual provision, unlike section 24 which is a general provision, and went broader, had a greater range of answers available - reasonable excuse will include somebody who suffers from no mistaken belief at all but is doing something such as a law enforcement officer might do - their Honours declined to treat that as subtracting or extracting from possession all elements of knowledge.

The largest subtraction exercise was performed by Justice Dawson. Your Honours have the passages to which we have drawn attention. His Honour used the expression “minimal” to describe the result of the process of interpretation in which he did take into account the reversed onus reasonable excuse defence. Could I take your Honours then to page 603 of 157 CLR. This is the passage which is the high‑water mark of the same approach to interpretation as the Crown uses in this case to take away all knowledge, as we submit is the effect of the argument against us. Sir Daryl declined to do that in very round terms halfway down the page:

As I have said, the availability of the defence of reasonable excuse justifies the conclusion that knowledge, admittedly a matter of degree, was intended to be limited to the minimum by the paragraph. But to go further would amount to more than a refusal to read into the paragraph a requirement of knowledge; it would be to read out a requirement which is already there.

That “which is already there” captures what all the judges in the majority hold, namely, that one does not need to resort to the doctrinal area of mens rea in criminal law in order to have the requirement of knowledge held to be requisite in that case. It was inherent in the notion of possession. Hence, Sir Samuel’s dictum to which I have made earlier reference.

The corresponding passages, which of course are different, of the majority of the majority is to be found in Chief Justice Gibbs at page 539 where his Honour rejects the notion that the reasonable excuse provision alters the requisite knowledge. That paragraph commencing:

Before I turn to the authorities –

concludes with this sentence:

It does not relive the prosecution of the burden of proving that the goods were in his possession and that involves proving that he knew of their existence.

In the course of that paragraph his Honour rejects the notion that such a construction would render the reasonable excuse provision meaningless or nugatory for reasons then explicated. Justice Brennan at 589 takes a similar approach. The first full paragraph commencing:

It follows that –

ends with this sentence:

The exempting phrase does not exclude the ordinary connotation of the term “possession”.

What is that? Go to the immediately preceding sentence:

the inherent requirement in “possession” of knowledge of what is possessed.

Now, in our submission, that is persuasive and authoritative holdings in this Court as to how the approach to interpretation should have been approached. Of course they are different statutes, but we say there is a perfect analogy making allowance for a fortiori matters because we have possession being used in a way that cannot be distinguished. We have integral to the provision a reasonable excuse defence which includes and is broader, thus a fortiori, than the honest and reasonable but mistaken belief defence and we have a reversal of onus. Those were, in our submission, factors which meant that He Kaw Teh governed the matter.

Now, of course, for the reasons that the Chief Justice has noted, this does not mean that the no case submission should have been upheld because the gist, the gravamen of what Chief Justice Gibbs, agreed in by Justice Mason and Justice Brennan, the points of commonality between those reasons, and indeed the points of commonality with Justice Dawson, what they require ultimately is the jury to answer the question, nearly always, by the application of inferential reasoning concerning knowledge. But no one in that case was willing to move away from the notion of knowledge which was inherent in possession, notwithstanding provisions textually which were an even greater spur, according to the respondent’s argument in this case, to subtracting or extracting that notion of knowledge.

Your Honours, that then leaves the second and critical matter in relation to my client’s responsibility under the way in which the Crown alleged the case and sought to prove the case and was content for the judge to put the case to the jury.

CALLINAN J: Your whole argument really depends upon that, does it not? It is the first plank in your argument that this is a counselling, aiding or procuring case.

MR WALKER: It is impossible for me to step away from that, your Honour.

CALLINAN J: Yes.

MR WALKER: I have put it that way from the beginning. We maintain that, that it is crystal clear in the record that that is the way in which the case was put and that is the way in which the argument, admittedly on a doomed no case point, was had which led to the charge to the jury about which we complain.

CALLINAN J: Well, that is the next step, otherwise what Justice McHugh put to you some time ago would have been the position that this was evidence of possession and if that had gone to the jury then they may well have convicted on that, if it had been put that way, actual possession.

MR WALKER: That provision to which I drew attention, paragraph 57(c), now paragraph 129(1)(c), that provision contains within its own terms the factual issue to which the accused must turn for an answer be it onus reversed or not. The case was not fought in that way whereby, for example, this could not be a proviso position because the case was fought in a way that did not throw that up as the short route, absolutely short route, to possession under section 9. It is for those reasons that answering affirmatively the suggestions made to me by Justice McHugh does not kill our appeal because our appeal is from the way in which the case was run and the appearance in it of a defective direction for that way of running the case. I fear I am demonstrating even more cogently than my concession earlier did that retrial rather than acquittal is the way this kind of argument, if successful, might conclude.

Your Honours, I then, as I say, simply conclude by observing that perhaps the quickest way is to go to the way in which the argument is put against us in relation to what is to be gathered from this Court’s decision in Giorgianni. In Giorgianni it is clear to demonstration that no objection was taken by their Honours to a form of reasoning that said the accessory needs to have different or more knowledge proved against him or her than does the principal. We have yoked this, as your Honours understand, with the later decision of this Court applying Giorgianni, treating Giorgianni as clear on the matter, namely, Yorke v Lucas.

No matter can be taken, no point of distinction arises, because Yorke v Lucas is a civil case, because it was decided by reference to the statute’s employment of time‑honoured terms of art of criminal jurisprudence, and section 75B – it is misprinted as 73B in our submissions – section 75B of the Trade Practices Act used language which included all the words which appear in paragraphs 7(1)(b), (c) and (d) of the Criminal Code in this case.

HEYDON J: You are attacking paragraph 5.26 of the first ‑ ‑ ‑

MR WALKER: I am. Now, 5.25 says simply that:

It is submitted that generally the level of knowledge that must be established for the accessory should be the same as that required for the principal, no more and no less.

That is a normative statement which flies in the face of the holdings in Giorgianni and Yorke v Lucas.

McHUGH J: Yes, but the mental elements can be quite different.

MR WALKER: Yes, that is our point, your Honour.

McHUGH J: Well, I know, but, for instance, if I give somebody a gun knowing the person is going to kill somebody, I am guilty of aiding and abetting even though I have no intention myself of that person being killed. It is sufficient that I knew the facts that ‑ ‑ ‑

MR WALKER: Your Honour, none of our argument contradicts those propositions. None of our argument. We are doing nothing other than applying to this case what Giorgianni and, if it be necessary, Yorke v Lucas make clear, namely, that contrary to paragraph 13 of Chief Justice de Jersey’s reasons and contrary to paragraph 5.25 of the submissions against us, there is no expectation as a matter of principle or first impression and certainly no authority that equilibrates the knowledge, the level of knowledge – we would say that means degree of knowledge – between the accessory and the principal. Giorgianni is an authority to the contrary, as is Yorke v Lucas. The reasons expressly refer to the immateriality for the outcome of the case that this means that there is more knowledge, different knowledge, required of a section 75B accessorial defendant than for the section 52 principal perpetrator.

HEYDON J: In the joint judgment in Giorgianni it commences – this is at the bottom of page 504 – with postulating “where a statutory offence requires no proof of intent”.

MR WALKER: Yes.

HEYDON J: Now, of course, this case does require – your case does require proof of intent.

MR WALKER: And that is picked up, it would appear, in 526 of the argument in writing against us. That is the last point with which I should deal. The question ‑ ‑ ‑

McHUGH J: Well, an aider and abettor has to have knowledge even though, in a strict liability offence, the principal does not have to have ‑ ‑ ‑

MR WALKER: That is right, and that is Giorgianni.

McHUGH J: Well, you can go back to Callow’s Case back at the turn of the century.

MR WALKER: Yes. In other words, Giorgianni and Yorke v Lucas were not breaking new ground. Yorke v Lucas expressly said it was not, Giorgianni expressly said it was not. Yes. That is the best way, the strict liability case, of illustrating that even if a case where there is no specific intention, for example, required – well, there may be some knowledge in order to avoid automatism and the like – but no specific intention required for the principal, the notion of the accessorial liabilities – aid, abet, counsel, procure, all of those words – involved such volitional intention, such purpose, as to require knowledge that what you were helping, whether as the taxi driver, parcel maker or whatever, courier, what you were involved in doing was a crime, not that you knew that it was in a criminal calendar ‑ ‑ ‑

McHUGH J: Callow is the classic case. There the butcher is found guilty of selling unfit meat, and the person who supplied the meat was held not guilty because the prosecution did not prove – I forget whether it was that he knew it was unfit or that it was for sale.

MR WALKER: That is right. Now, when I said he has to know it is a crime, I need to retract that. I do not mean that he knew that it was in the criminal calendar – ignorance of the law is no defence – see section 22 of the Criminal Code – but, rather, that he knew of the things which make it a crime, as it happens. In this case, that involved the dangerousness of the drug. There is no stepping around that, in our submission. One can see a similar approach for the principle in relation to the knowledge required when one considers the early decision – again discussed in the authorities to which we have given reference – I will not take your Honours to it at all, but one sees the requirement of knowledge that something had been illegally imported required by this Court in the earlier decision of Hill v Donohoe (1911) 13 CLR 224.

Now, the distinction offered in 526 turns upon the matter to which Justice Heydon has drawn attention. Their Honours were referring to the cases which could conveniently be categorised, on the facts before them, as principal strict liability. Question, “Does the accessory need to know more than the principal?” Answer, “Yes, of course”. That is in the nature of the particular accessorial nexuses which were relied upon by the Crown.

However, that not only does not provide a distinction, it is again an a fortiori case because if you do require knowledge of that which makes it wrong in an offence which is created by Parliament in such a way as to make principals liable without knowledge of those matters, then, in our submission, it follows that the policy of the law could not possibly require that you have less knowledge as an accessory where the offence does require knowledge in the principal.

McHUGH J: Yes, but that is why I asked you earlier whether or not you had some argument about section 57 really being an evidentiary provision. Why is not an offence committed by your client here in these circumstances? He armed Ms Briggs with the authority to collect the parcel. The inference is plain that he was picking up something that contained something, so why is not that sufficient? Why, given the terms of the statute? I mean, you want to cut section 57 out of it.

MR WALKER: No, not at all. It is taken into account in an interpretive exercise the same way the opening words, plus parenthesis, of paragraph 233B(1)(c) of the Customs Act was taken into account in He Kaw Teh. It has to be taken into account. It is an interpretative exercise. Stronger words better placed to achieve that subtraction of possession of extraction of knowledge from possession were considered by this Court not to accomplish that. That approach governs the approach to exactly analogous provisions in this case.

GLEESON CJ: What do you say is the direction the jury should have been given?

MR WALKER: In accordance with that which Chief Justice Gibbs at 545 ‑ ‑ ‑

GLEESON CJ: Which, as applied to the circumstances of this case, would be what?

MR WALKER: That he knew that there was the drug in the package, without needing to know that it was ‑ ‑ ‑

GLEESON CJ: There was not drug in the package. Is it that he thought he knew what was in the package?

MR WALKER: Your Honour, I said earlier that refinements have not been introduced in this area between knowledge and belief. The example your Honour raises suggests perhaps there is a call for some such refinement.

GLEESON CJ: But this is a very common case, substitution of some inert substance for a dangerous drug. Now, it cannot have been necessary, can it, to direct a jury that he knew there was methylamphetamine in the parcel because, in fact, there was not.

MR WALKER: Yes, it would have to be “knew” in the sense of ‑ ‑ ‑

GLEESON CJ: Thought he knew?

MR WALKER: Well, thought – your Honour, I cannot offer sensible distinctions between ‑ ‑ ‑

HEYDON J: Believed that there was.

MR WALKER: That is right, between thinking you know and believing.

HAYNE J: None of that takes account of the fact that he is, you say, put forward as aiding and abetting.

MR WALKER: That is right.

HAYNE J: So he is doing something to assist Ms Briggs in her attempt to gain possession of something that he thinks?

MR WALKER: Yes, he thinks.

HAYNE J: She thinks? Both think?

MR WALKER: She has to think in order for – she has to have the requisite knowledge for possession, otherwise there is not an aid and abet.

HAYNE J: What is his state of knowledge? That he is?

MR WALKER: Picking up the package with a drug in it. He does not need to know its nature or chemical analysis. Not picking up something else, be they contraband of another kind or something innocent. That is left for jury inference and that is no bad thing. Certainly, to adapt the language of Chief Justice Gibbs at the end of his reasons in He Kaw Teh, this is no charter for drug dealers.

McHUGH J: No, I know, but why is it not his case, why is it not sufficient that he knew the material facts that would make her liable?

MR WALKER: Well, the material facts that make her liable include that it is a dangerous drug, your Honour.

McHUGH J: No, no. No, it was sufficient that he knew that she was intending to pick up a parcel that contained something.

MR WALKER: She cannot be guilty. The offence is not constituted unless she possesses something which is a dangerous drug.

McHUGH J: Yes, but the statute says it is conclusive proof unless certain things are proved.

MR WALKER: Your Honour is talking about 57 ‑ ‑ ‑

McHUGH J: Yes. That is why I do not think you can – I think 57 is really a matter of substance in this case.

MR WALKER: Your Honour is talking about 57(c), as I understand it?

McHUGH J: Yes.

MR WALKER: Well, my first answer is that, as Justice Callinan has noted, that I depend on, and I do depend on, the fact the case was not run on that basis.

McHUGH J: No, no, but as against her. You have to prove the material facts that constituted her offence. Just as in ‑ ‑ ‑

MR WALKER: But that requires ‑ ‑ ‑

McHUGH J: I mean, somebody could be found guilty of aiding and abetting manslaughter by dangerous and unlawful act. You do not have to know it was dangerous, you do not have to know it was unlawful, but it is sufficient that you know what the facts are that the person is doing and ‑ ‑ ‑

MR WALKER: Well, those distinctions are at the heart of Giorgianni. The extent of the knowledge necessary in the abetter in relation to dangerous driving. They involved in that case real knowledge on behalf of the accessory being required to be proved by the Crown, real knowledge, not something perfunctory or slight.

McHUGH J: You could have real knowledge of the facts. But in this case, as a matter of principle, what you have to show is that your client knew the material facts that made her guilty of the offence.

MR WALKER: And all I am saying, your Honour, is that ‑ ‑ ‑

McHUGH J: And is that not what Chief Justice de Jersey said?

MR WALKER: No, your Honour. All I am saying is that under 57(c) you start with the notion of proof that a dangerous drug was at the material time, et cetera. You must prove it is a dangerous drug. Section 57(c) does not operate until there is proof that a dangerous drug was at the material time in a place, et cetera.

McHUGH J: But if the true principle be that the aider is guilty if that person gives aid and knows all the material facts that constitutes the offence by the principal, why do you not seek to identify what are the facts that make the principal liable in this particular case?

MR WALKER: And in Giorgianni the facts that made the principal liable were that there has been a death, et cetera, occasioned through impact with a motor vehicle that at the time of the impact was being driven by another person in a manner dangerous. It was held that part of the reasoning in that case that the manner dangerous was not something that was required to be in the knowledge of the principal. That was a so-called objective matter, to be proved without any element of knowledge on the part of the driver.

The abetting provision has all the words of technical criminal art which are relevant in this case; aid, abet, counsel, procure. That was the abetting provision of the Crimes Act and it was held that for Giorgianni to be liable it was necessary for the Crown to prove that he knew about the dangerousness.

McHUGH J: Is that right? I thought Justice Mason said the opposite.

MR WALKER: The difficulty is that you have the reasons of the Chief Justice and the reasons of the plurality which do differ from Justice Mason but when such differences emerge, one does not prefer the lonely one. In our submission, the majority certainly says what I have just put. It is for those reasons ‑ ‑ ‑

HAYNE J: Does it come then to adapt what appears at 506 of Giorgianni in the last, say, eight or 10 lines? The direction you say was necessary was that he the accused knew or believed that what he was assisting – perhaps there was an encouragement case – was Ms Briggs attempting to gain possession of dangerous drugs.

MR WALKER: Yes. That is because that last matter, “contained within the knowledge”, emerges from this description in that very same passage:

the facts which constitute the commission of the relevant criminal offence.

McHUGH J: Yes, but that is your problem, is it not?

MR WALKER: I do not want to repeat myself, your Honour. All I am saying is the facts include that it is a dangerous drug, that it is not icing sugar. That is all.

Your Honours, I can give an answer to an earlier question. According to the record not before this Court but before the Court of Appeal – and I refer to the trial record transcript pages 94 and 95 for the benefit of my learned friend – her Honour elicited from the learned Crown that he opened that he is relying on section 7(1)(b), (c) and (d) and that was confirmed.

HAYNE J: He was relying on but relying exclusively on.

MR WALKER: That is far as I can take it, your Honour.

GLEESON CJ: Yes, Mrs Clare.

MRS CLARE: If the Court pleases. Our submission is in relation to section 9 of the Drugs Misuse Act – that is the use of the word “possession” in section 9 must be given its ordinary meaning as confirmed by the statutory scheme of both the Drugs Misuse Act and its combination with the Criminal Code and in particular by reference to section 57 of the Drugs Misuse Act, the evidentiary provision.

It is accepted that the ordinary meaning of “possession” imports some concept of knowledge, that a person cannot possess that which he does not know he has, but conversely a person who possesses something, knowing that that thing is in his or her possession, possesses the thing in fact regardless of whether he is aware of the nature of the thing. An example of that category is given by Justice Pincus in the case of Clare regarding an example of talcum powder where a person possessed the talcum powder, had custody of the talcum powder believing that it was heroin. The fact that he was mistaken about it being heroin instead of talcum powder would not detract in the ordinary sense from the reality that such a person was in possession. That appears at page 639, that example at about line 5. It is a simple example which brings home, in our submission, the ordinary meaning of “possession”, that it is not the expansive term going to the nature and quality of the thing possessed but rather the existence of it.

Insofar as the appellant seeks to rely upon He Kaw Teh, we say that that is a case, really, where only one judge, that is, Justice Brennan, can be positively stated to support the appellant’s argument today about the narrower interpretation of possession. In Clare the Court of Appeal sought to distinguish it on the basis that it was, firstly, infected by the concept of mens rea, which, of course, does not apply in the instance of the Code. But the second point to be made in relation to that case is that it needs to be considered in light of what it was actually deciding.

It was a case, as your Honour the Chief Justice has pointed out, that concerned something hidden in a false bottom of a suitcase, so the issue was not whether or not the man ought to have known that the substance that he possessed was in fact a narcotic, but, rather, whether he in fact knew of the existence of anything in the false bottom at all. That was the way in which the case was presented.

Furthermore, Chief Justice Gibbs in that case identified that it was not necessary in the context of that case to decide the issue which is now being argued, that is, whether it ought to have been knowledge going to the nature and quality of the thing as opposed to the mere existence of it. And that is clear at 157 CLR 523 page 538 of the Chief Justice’s judgment.

CALLINAN J: Mrs Clare, sorry to interrupt you, can I just ask you a question about 57(c), please?

MRS CLARE: Yes.

CALLINAN J: Is it your submission that in order to avoid the operation of that provision ultimately against the appellant, there would have needed to have been evidence that Briggs neither knew nor had reason to suspect that the drug was in the package?

MRS CLARE: Yes, that springs from the ‑ ‑ ‑

CALLINAN J: You say that unless there is evidence of that, there is an unanswerable case of possession against Briggs and therefore the accessory provisions apply.

MRS CLARE: Would apply because section 7 applies when an offence has been committed.

CALLINAN J: Which is really to take up a suggestion, I think, that Justice McHugh made, that 57 is of substance and importance in this matter.

MRS CLARE: It is at the heart of this matter, in our submission. Our submission is that once one comes to the conclusion that 57(d) reverses the onus of proof, it follows that the meaning of “possession” in the Drugs Misuse Act must be only in that narrower form, limiting knowledge to the existence of the thing rather than its nature.

CALLINAN J: And if that is correct, then what Williams and the other case say is beside the point?

MRS CLARE: Yes.

CALLINAN J: Is this governed by section 57, ultimately?

MRS CLARE: Yes. We would say that Williams does not go, even on its face, as far as the appellant would seek ‑ ‑ ‑

CALLINAN J: But it does not matter, because it does not purport to deal with something like section 57.

MRS CLARE: It did not expressly consider it, but it has to be said that the Health Act, which was under consideration, contained provisions equivalent to section 57(c) and section 57(d).

CALLINAN J: Are they referred to in Williams?

MRS CLARE: There might be some reference to ‑ ‑ ‑

CALLINAN J: Do not worry about it now, but perhaps you can tell me after lunch, thank you.

MRS CLARE: Yes, all right.

GLEESON CJ: Does that mean that leaving aside deeming provisions, if you know you possess an object and it is in fact a dangerous drug, it is beside the point that you do not know it is a dangerous drug unless you can show that you had a reasonable and honest belief that it was something else?

MRS CLARE: That is our submission. Yes, that is the ordinary concept of possession and that ‑ ‑ ‑

McHUGH J: That is not the ordinary concept and your submissions say it. Do not your submissions say that prima facie the offence of possession of a dangerous drug means that you have to know that the thing possessed was or was likely to be a dangerous drug? But then you go on to say that the statute operates on it.

MRS CLARE: We accept that, prima facie, an element of knowledge would be incorporated into an offence. Perhaps some reliance at the time of the outline was placed on an unconsidered reading of He Kaw Teh, but it is submitted that when one studies the individual judgments in He Kaw Teh, they do not go as far as to say that the ordinary concept of possession, the ordinary meaning of possession, requires the added knowledge of the nature of the thing.

GLEESON CJ: Is it that paragraphs (c) and (d) of section 57 might be dealing with two different kinds of problem?

MRS CLARE: Yes.

GLEESON CJ: Might paragraph (c) be dealing with the type of problem which arises or could arise where you say you did not even know that that suitcase was in your house?

MRS CLARE: Yes.

GLEESON CJ: And paragraph (d) addresses the problem that arises where you say you knew the suitcase was in your house, but you did not know that what was in it was a dangerous drug.

MRS CLARE: That is in fact what those two provisions would cover separately. Your Honour raised an earlier issue about whether or not 57(c) could have applied in this particular case.

GLEESON CJ: Yes.

MRS CLARE: It is accepted that it could not because it depends upon the actual possession of the dangerous drug. The possession in this case was - the actual possession was of a dummied envelope with the jar.

GLEESON CJ: So that is why it was not relied on in this case?

MRS CLARE: One can assume that is why it was not relied upon because it did not in fact amount to actual possession, and it is not dissimilar to the case of Krakouer in which this Court decided that the deeming provision for possession, to make an attempt of possession, did not then allow the Crown, the Western Australian Crown, to rely upon the evidentiary provision.

GLEESON CJ: But where section ‑ ‑ ‑

HAYNE J: Krakouer went off on burden of proof.

MRS CLARE: Yes.

GLEESON CJ: Where 57(c) would come into operation in a case like this is if there had been no interception, if the methylamphetamine had remained in the parcel, but the parcel had been found in the glove box of the car and the appellant had said, “Well, I didn’t know what was in the glove box”.

MRS CLARE: Yes.

GLEESON CJ: In a case such as that 57(c) would have had an operation.

MRS CLARE: Yes. In the case of 57(c) all the Crown needs to prove is that the person is in fact the person in control of the place, or the occupier of the place, and that there is in fact a dangerous drug in that place. There is no mental element that needs to be proved. That is clear on the face of the provision itself, that it is really only about physical custody of the drug. We say that by implication 57(c) means that there must be some greater knowledge, some element of knowledge, in the case of other acts of possession where a person is not proved to be the occupier, those cases where 57(c) does not apply, and we say, further, that the extent of the knowledge is limited by the necessary implication of section 57(d).

HAYNE J: Does it follow from your submission that an offence can be committed against section 9 carelessly?

MRS CLARE: Yes. That, we say, is the natural effect of the scheme under which the evidentiary provisions operate. The example of the taxi driver has been referred to at various points in argument here and on special leave, I believe, but in such a case, of course, the taxi driver would have to rely upon section 57(d) to prove honest and reasonable mistake if in fact he was charged.

HAYNE J: But, by reference to the reasonable element of that, the consequence is that carelessness might bar you from relying on that excusing provision, leaving you liable.

MRS CLARE: Yes, that is so. The situation would be worse, of course, if the taxi driver had a passenger who left the drug behind, because then the taxi driver would be confronted with 57(c), which would mean that the location of the drug in his taxi would be conclusive evidence that he was in fact in possession of it.

McHUGH J: Well, unless he had no reason to know or suspect that the drug was in the place.

MRS CLARE: That is so. That is so. It is the same position. My point is that it is really in the same position as if section 57(d) applied, except it is more onerous, because there is no mental element at all.

McHUGH J: Well, the classic case where negligence can arise is when somebody says, “Take this suitcase and carry it for me”, and the person actually has no belief one way or the other, never thinks about what might be in it, so that they cannot establish that they had a belief about the state of the thing.

MRS CLARE: That is so. So, in those sorts of cases, one would assume, if there was some evidence that a person was in fact – such as the taxi driver – although the onus is on the taxi driver, the reality in such a case would be that it would be so easy to establish that there was reasonable mistake that one would assume that ordinarily a person would not even be prosecuted, because there would be no prospects of obtaining a conviction.

McHUGH J: It was never an answer for somebody to say, “I never thought about what was in it, I never gave it any thought one way or the other, I just carried it”.

MRS CLARE: Yes.

McHUGH J: “I did not know what was in it”.

MRS CLARE: It is clear that the Drugs Misuse Act intends to impose an onerous scheme of liability and that that is a necessary consequence of that.

CALLINAN J: That follows from 51 and 52A which prescribes some very limited circumstances in which drugs can be held or used.

MRS CLARE: Yes. It was said against our argument in relation to the consequence of a reversal of the onus in 57(d), it was said against the argument that the consequence of that is to limit knowledge to its minimum, that the decision in He Kaw Teh was against the respondent. That was a case where under the Customs Act there was a reversal of the onus in respect to reasonable excuse. That is of course a much broader concept than what is under consideration here, that is honest and reasonable mistake, mistake which goes precisely to the issue. Without reasonable excuse can incorporate, for example, duress, a lack of authority as well as mistake, but in our case we are considering a provision that reverses the onus in respect of that element or that issue of mistake. Knowledge and mistake cannot co‑exist if the onus for establishing mistake, even if it were not reasonable, if the onus for establishing mistake is put on to the accused then it must be contemplated that the Crown need not prove knowledge.

Further, when one considers the scope of what honest and reasonable mistake might apply to in the concept of the Drugs Misuse Act, it really only comes down to mistake about whether or not there was a licence or an authority to possess the drug or mistake about the nature of the substance, in fact, being a drug. It is not necessary for the Crown to prove the type of dangerous drug or to particularise the type of dangerous drug – that flows from 57(a) and (b). There are circumstances of aggravation within the legislation which relate to the quantity of the drug and the quality of the drug, but those are matters of objective fact that are unaffected by a person’s belief. They are not matters where liability for the circumstance of aggravation could be affected by whether or not a person was mistaken about the quantity of the drug, for example. In relation to the circumstances of aggravation it would be a matter of mitigation on sentence but not a factor which goes to determine the liability for the offence with the circumstance of aggravation.

GLEESON CJ: Is that a convenient time?

MRS CLARE: Thank you, your Honour.

GLEESON CJ: We will adjourn until 2.15.

AT 12.46 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

GLEESON CJ: Yes, Mrs Clare.

MRS CLARE: If I can just complete something that was raised before lunch in relation to the use of section 57(c) in this case, the prosecution in fact disavowed reliance upon it in the no case argument, so I just add that for completeness in relation to that topic.

GLEESON CJ: But, as you say, there was no proof that a dangerous drug was, at a material time, in the car.

MRS CLARE: No. If I can move to the issue of the accessory, this was a case where the prosecution could have argued that the appellant was in fact the principal offender by virtue of the fact that by the time the drug had come into the car he was in effective control of it, but that was not the way in which it was presented. It seems that the prosecutor particularised liability as an accessorial liability in the opening to the jury and it was on that basis that her Honour summed up to the jury in the way that she did.

The accessory needs to know the material facts which makes the principal liable. Here we say those material facts were the obtaining of the parcel with the intention of possessing the parcel and the contents which were mailed and sent through the post, but that they did not include knowledge that those contents were in fact a dangerous drug. We say that that flows from section 9 of the Drugs Misuse Act, the term “possession” and section 57(d) of the Drugs Misuse Act, as well as section 7 of the Code itself.

Section 7 defines liability of an accessory by reference to the offence or an offence committed by the principal. It also has as a consequence that where an accessory has aided in the commission of the offence, the accessory is deemed to have taken part in committing the offence. Furthermore, the term “offence” is defined in section 2 of the Code to be:

An act or omission which renders the person doing the act or making the omission liable to punishment –

That has been further explained or interpreted in Barlow (1997) 188 CLR 1 at 9 where the joint judgment referred to “offence” in the context of section 7 as referring to that “element of conduct” which, in conjunction with other circumstances, makes a person liable.

In the second‑last paragraph:

Section 2 of the Code makes it clear that “offence” is used in the Code to denote the element of conduct (an act or omission) which, if accompanied by prescribed circumstances, or if causing a prescribed result or if engaged in with a prescribed state of mind, renders a person engaging in the conduct liable to punishment. Section 7(a) confirms that “offence” is used to denote the element of conduct in that sense. By the ordinary rules of interpretation, the term must bear the same meaning in pars (b), (c) and (d) of s 7 as it bears in par (a).

We say the offence for the purposes of section 7, the punishable act that is, is the possession of the parcel and its contents, that the prescribed circumstances are the fact that it was in fact a dangerous drug and that all the principal needed to know in order to aid in the commission of the offence was that the principal intended to get possession of the parcel and its contents and that of course was in fact the direction that was given to the jury.

The appellant’s argument to expand the requirement of knowledge to the existence of the dangerous drug itself would be to exclude the operation of section 57(d) to the case of an accessory. It could have no meaningful operation in that sense. That would be contrary to what seems to be the very clear scheme of the Drugs Misuse Act.

One can easily understand why that is so when one considers, particularly in relation to drugs, that the larger the player, the more sophisticated the organisation, the more likely it is that there is a protective buffer between the actual doing of the act and the person responsible for organising it. Your Honour the Chief Justice earlier referred to the position of a mule – again, a position that is not uncommon in these sorts of cases.

In this particular case it seems more likely that the appellant was a person who had procured Ms Briggs to get the parcel, but, even if that were not so, if the two of them together had planned to get possession of the parcel, it was he who drove her there and gave her the necessary card to get it, to be able to get the possession of the parcel, and she who went in to get it. Neither of them could establish a reasonable mistake as to the substance being a drug. Certainly, on our argument, it was sufficient, if we are correct in what we say about section 9 – that was sufficient to establish liability for Ms Briggs. It would be a very odd result if more was required for the appellant – that is, more evidence going to knowledge was required in relation to the appellant. Two players with the same moral culpability ‑ ‑ ‑

CALLINAN J: I put something to you before lunch about 57(c).

MRS CLARE: Yes.

CALLINAN J: I think I was wrong about that and I think you corrected me and referred to 57(d). The position was that unless there was evidence capable of showing a defence being available to Briggs under 57(d), then she was in possession and, therefore, aiding and abetting could be made out. If in fact there had been evidence of that kind, and there was not, but if there had been an attempt to call evidence of her state of mind, then I suppose you may have been able to prove that she had pleaded guilty to possession, which would negate any state of mind on her part.

MRS CLARE: It would still be incumbent on the Crown to prove it. That flows from the decision of Kirkby, I think. It is not enough to rely upon the conviction of another offender.

CALLINAN J: No, but you would be proving her state of mind, would you not? If you proved that she ‑ ‑ ‑

MRS CLARE: That she pleaded ‑ ‑ ‑

CALLINAN J: ‑ ‑ ‑ that she pleaded guilty, you would be proving her state of mind, which would be ‑ ‑ ‑

MRS CLARE: An admission to ‑ ‑ ‑

CALLINAN J: ‑ ‑ ‑ a complete obverse of the evidence required under 57(d) to establish her innocence and, therefore, the availability of a defence to the appellant.

MRS CLARE: For her.

CALLINAN J: I do not know. Is that right? You tell me.

MRS CLARE: Yes, the Crown would have to prove that she was liable, she had committed an offence and, therefore ‑ ‑ ‑

CALLINAN J: But if you proved in fact that she had pleaded guilty, then you would not only prove ‑ ‑ ‑

MRS CLARE: If it was open to lead evidence as a plea of guilty, then that would obviously equal an admission by her that all of those necessary elements were made out.

CALLINAN J: That she had all the necessary states of mind, whatever they were.

MRS CLARE: Yes, but it is questionable as to how – there would be an argument that that would not be admissible, so it would just be a question of how and in what way it arose on the evidence.

CALLINAN J: Yes, depending upon what attempt had been made to make out a defence under 57(d).

MRS CLARE: That is right, if she gave evidence herself, for example. It would then follow, after having established that she was criminally responsible for the act of possession, that the Crown also had to establish criminal responsibility for the appellant. That is, that he had no reasonable mistaken belief as well, yes.

McHUGH J: There is a possibility that he could be convicted even though she was not because she may have a mistaken belief that he did not have. I mean, it is not unknown in this area for a person to be found guilty of being an accessory even though the principal cannot be guilty. The innocent agent cases are the classic cases, but so is the case of Bourne, that bestiality case, where the wife was held not guilty of an offence because of duress but the husband was held guilty as an accessory.

MRS CLARE: Section 74 actually envisages that a person who procures can be guilty in circumstances where the actor is either innocent or has a lower liability. Some reliance is placed by the appellant upon Giorgianni. That, of course, is a decision that was not interpreting the Code.

It also is a case where there was no requirement that all of the elements of the offence be known by the accessory – it did not go that far. The court referred to the essential facts, or the essential matters, constituting the offences but it certainly did not go as far as saying that all of the elements of the offence needed to be known by the accessory. Indeed, in the facts of that case, it was not necessary for the accessory to know that death or grievous bodily harm was likely to eventuate. An analogy can be made, perhaps even a closer analogy to the present case can be made with the instance of manslaughter where it is not necessary for an accessory to know that death will ensue, or even be likely to ensue, to be liable as an accessory, yet death, of course, is at the heart of that offence.

That is not dissimilar, in my submission, from the position that we argue in relation to the dangerous drug and the essential element being the fact of the possession of the package and its contents with the fact of the existence of the dangerous drug being an external circumstance.

Your Honour Justice Callinan raised a question in relation to Williams, and that was whether there was reference to the equivalent evidentiary provisions in that case. The joint judgment of the Chief Justice and Justice Mason set out section 130J(2)(b) at pages 596 over to 97, the bottom of 596 to 597, but there is no discussion in that case as to what effect they have, or what effect they had in that case. Of the decisions in Williams it was only the judgment of Justice Aickin, who made statements that could go to the heart of this issue. The rest of the Court really decided that case on the quantity of the drug and whether it was a case where it was possible to have knowledge, given the minute quality.

We say in respect of Justice Aickin’s quote at 610, which has been relied upon, that it goes no further than saying that there needs to be a mental element for the offence of possession, and, indeed, that is the interpretation that seems to have been placed upon it by Justice Dawson in He Kaw Teh. Justice Dawson quoted from Justice Aickin and went on to say – this is in 157 CLR 523 at 602:

A person cannot, within the meaning of par. (c), possess something when he is unaware of its existence or presence. But he will, since possession is used in its barest sense, possess something if he has custody or control of the thing itself or of the receptacle or place in which it is to be found provided that he knows of its presence. He need not know what it is (other than to the extent necessary to know of its presence) nor its qualities. Thus a person will possess narcotic goods if he has, to his knowledge, custody or control of something which is in fact a narcotic substance, even if its packaging prevents him from knowing what it is and even if he does not know its quality as a narcotic substance.

That view seems to have been shared by his Honour Justice Wilson at page 561, and, as I said, their Chief Justice said that it was unnecessary to decide the issue, at page 538. So in that case the only judgment that really goes as far as the appellant seeks to argue is that of Justice Brennan.

HAYNE J: Just while you have He Kaw Teh, can I understand what I think is one way in which you put the argument, so that Mr Walker might have an opportunity in reply to deal directly with it. If you go to 539 in the judgment of Chief Justice Gibbs, at line 4 his Honour summarises what he takes to be the effect of the authorities that he had earlier discussed. He summarises the effect of the authorities as being:

where a statute makes it an offence to have possession of particular goods, knowledge by the accused that those goods are in his custody will, in the absence of a sufficient indication of a contrary intention, be a necessary ingredient –

His Honour then goes on later in the reasons, both in that paragraph and beyond, to consider whether “without reasonable excuse” in the Customs Act provisions constitutes that contrary intention.

MRS CLARE: Yes.

HAYNE J: Do I understand either a way or perhaps the way in which you put the argument for combining sections 9 and 57(d) to be that the requirement to know what is in the envelope or the package is taken away by 57(d)?

MRS CLARE: Yes.

HAYNE J: For otherwise, were it not so, were you not to read the provision in that way, what, 57(d) has no work to do? 57(d) has less work than its words would suggest? What is the tailpiece of the argument that I have just articulated?

MRS CLARE: The scope for 57(d) would be limited then to establishing the stake about authority, authority to have the drug or to sell it or ‑ ‑ ‑

HAYNE J: So do I understand the tailpiece to be that 57(d) is cast in general terms by reference to section 24, in particular? “State of things material to the charge” are words of generality.

MRS CLARE: That is so. The argument is that if Parliament was simply to intend that the mistake provision was to apply in the case of authority, for example, then it would have confined the ambit of mistake to that authority in the same way that it has in relation to the fact of the authority. In section 57(e):

the burden of proving any authorisation to do any act or make any omission lies on that person.

If mistake was only intended to apply to authorisation, then it would have been drafted in terms that made that clear, instead of more broadly applying to the state of things.

HAYNE J: And the understanding to be attached to 57(d), because it is tied to section 24, is an understanding informed by the place taken by 24

and related provisions in the criminal responsibility provisions of the Code. That is the way the argument runs, is it?

MRS CLARE: Yes. Perhaps the only other matter left for me to address is in relation to what order ought to be made should the Court find that there is a misdirection and warrant a quashing of the conviction. There has been no argument that there was insufficient evidence to establish the offence and so it follows that the appellant would not be entitled to a verdict of acquittal. There has been no argument that any conduct of the Crown has been oppressive and so, in all of those circumstances, it is submitted that should the conviction be quashed, no verdict of acquittal should be entered but the issue of a retrial should be really left for the prosecution, in the public interest.

GLEESON CJ: Yes, thank you, Mrs Clare. Yes, Mr Walker.

MR WALKER: Could I go directly to the question raised by Justice Hayne. We have put our argument in‑chief and do respond in reply to the matters raised by my learned friend in answer to Justice Hayne on the basis that the Crown’s position in argument does attribute to paragraph 59(d) and section 24 incorporated contingently by paragraph 57(d) the role which this Court was not prepared to give to the words in the very offence creating provision, the equivalent of section 9 in this case, in He Kaw Teh.

HAYNE J: The distinction being, or the difference being whether it is a distinction was the very point of the case between reasonable excuse for possession and honest and reasonable belief in existence of state of things material.

MR WALKER: Quite so, your Honour. On that difference could I first go in Justice Dawson’s reasons in 157 CLR 595 where in the middle of the page his Honour makes reference to the equivocal nature of:

the absence in par (b) of any defence of reasonable excuse . . . Reasonable excuse as a defence goes further than honest and reasonable mistake.

Then some examples are given of how that rate of breadth may be demonstrated. On page 598 his Honour picks up that matter at about an inch down from the top of that page:

As I have said, the paragraph places the onus of proving reasonable excuse upon the accused. The defence of reasonable excuse is, as pointed out earlier, wider than that of honest and reasonable mistake. It must, however, include honest and reasonable mistake –

et cetera.

HAYNE J: Why?

MR WALKER: Because nothing is more apt to excuse in the eyes of criminal law than that which the common law had already devised for answers to strict liability offences, namely, the presence of an honest and reasonable but mistaken belief as to a state of affairs critical to the criminality.

HAYNE J: But the discussion by Chief Justice Gibbs of these matters and particularly the discussion his Honour makes of the Canadian authorities at least examines the validity of the premise that honest and reasonable mistake is a notion having real work to do, perhaps, only in connection with regulatory offences.

MR WALKER: Yes.

HAYNE J: His Honour forms no final conclusion about that.

MR WALKER: No.

HAYNE J: But where, as here, we are concerned with Chapter 5 of the Code as varied by 57(d) what do we make of that fact for the argument considered by Chief Justice Gibbs about the need to demonstrate mens rea?

MR WALKER: One, the need to demonstrate mens rea is never absent from the informing principles underlaying his reasons and so they are referred to throughout his reasons. Two, he, like the others who reached the same conclusion, did not see the requirement of knowledge as stemming from the application of the doctrine of mens rea.

McHUGH J: Except this. Sir Samuel Griffith said, and it was repeated in Justice Pincus’ judgment in Clare, that under the Code you never have reason to have recourse to the concept of mens rea.

MR WALKER: Well, I do not think I am, with respect, putting something differently. This is not a Code case. He Kaw Teh is not a Code case. And one of the things I have to face is, is that affected? The answer is no, because what his Honour does is to say the knowledge requisite comes from the use of the word “possession” and it is inherent in possession. All of the judges in the majority say that. Mr Justice Dawson says so emphatically, as part of the process by which unquestionably he subtracts more of the degree of knowledge than the other judges in the majority preferred to do by reference to the exempting defence provisions. The reasonable excuse provisions in that case.

Now, it is not a point of distinction of He Kaw Teh in this case to note that it is reasonable excuse in He Kaw Teh and honest and reasonable mistaken belief in a state of things in this case because, in my submission, his Honour Mr Justice Dawson is right in taking the familiar, deliberately comprehensive expression “excuse”, construing that against the background of the role of mistake of fact in crime and rejecting the possibility that that could not amount to an excuse. It is absolutely correct, with great respect, that Chief Justice Gibbs does not say anything which can be treated as the equivalent of that or as accepting that premise.

GLEESON CJ: There are rather different problems, though, are there not? It might depend on what exactly the issue or the uncertainty is. You can possess something, although you do not know what it is, but the problem in He Kaw Teh was about possessing something although you did not know you had it.

MR WALKER: Yes.

GLEESON CJ: It is hard to say you can possess something if you do not know you had it.

MR WALKER: That is right.

GLEESON CJ: But it is not hard to say that you can possess an article even though you do not know what the article is.

MR WALKER: Quite so. It is ordinary English and must happen many times, including today, for somebody to hold something up and say, “What is this?”, as a genuine question. So you do not know what it is, but you have possession of it. We entirely accept that. And it may be that you can answer at different levels of generality. It is an object that appears to be round and shiny, another person can say that is a shot-put.

Now, the difference of knowledge then, which may have to do with knowledge of the world not merely knowledge of the object, is not going to affect whether you possess it because, to adapt the language upon which we rely for the directions that we have said in answer to the Chief Justice and which we would respectfully adopt from Justice Hayne, that should have happened in this case, is a world of difference between saying, “I do not know of the existence of something” and “I do not know what it is whose existence I do know”.

The Court of Appeal’s approach in this case, which justified the direction given in this case, says that knowledge that a package is not empty – and this is implicit – must satisfy or does say that you know that the thing in question is present, you know of its existence. In our submission, bearing in mind that what is being criminalised is possession of a dangerous drug, not possession of something which appears to have weight beyond cardboard and paper would give the other composite object, it is clear that something more is needed than knowing that the packet is not empty. It is in the nature of packets not to be empty.

McHUGH J: In this area, everything surely depends on context and the nature of the issue. In a civil case, it may fairly be said that a grazier has got possession of everything on his or her property and they intend to possess it.

MR WALKER: Not necessarily wild animals.

McHUGH J: But that is for a different reason, because of the rule of the common law. But it may be, in a criminal case, you would not read “possession” in that sense.

MR WALKER: No, I accept it is in all contexts and I started this appeal ‑ ‑ ‑

McHUGH J: And the same with reasonable excuse. This Court said in Taikato v The Queen, in effect, that “reasonable excuse” has no content until courts say what it means in applying it to certain facts.

MR WALKER: I accept that entirely. That is to our advantage that those words in this statute, particularly bearing in mind all the provisions upon which the parties have addressed your Honours, these words “reasonable excuse” in the Customs Act would not be read as excluding reasonable mistake of fact, that that is within the ambit of the law’s understanding as the judges would make that content, case by case. It is a reasonable excuse to have something because you thought it was aspirin.

McHUGH J: Yes, but it must follow from He Kaw Teh that reasonable mistake is not within reasonable excuse now, because the Crown has got the onus of proving ‑ ‑ ‑

MR WALKER: Well, no, the onus was reversed, explicitly, in He Kaw Teh.

McHUGH J: Yes, the Crown has to prove you have knowledge. There is no room for reasonable mistake in that honest and reasonable belief, is there?

MR WALKER: It depends upon what the mistake is about, your Honour, entirely. It is our submission that because an honest and reasonable – I stress “and reasonable” – but mistaken belief will not answer to all the taxi driver examples and other clearly innocent examples which it would be too much, for the reasons laid out by their Honours through He Kaw Teh, to read Parliament as having intended to criminalise. It is because section 24’s mistake defence does not operate appropriately for all those cases that it ought to have been construed as not subtracting or extracting the knowledge component of possession, just as even wider words of opportunity to exculpate did not do so in He Kaw Teh.

It need hardly be said that there will be many cases where a failure to have adverted to the question of what is in a receptacle, such as somebody’s suitcase, will mean that it will be very difficult to prove any belief at all. Second, with something as well known as suitcases, carryalls, overnight bags, particularly for people who deal with a vast variety of other people such as taxi drivers, such as porters, such as baggage handlers, it will be very difficult, one would have thought, to maintain the proposition that it is a reasonable belief that its contents could not include contraband.

In our submission, it is unthinkable that it would be left to prosecutorial discretion whether to charge, prosecutorial discretion as to the degree of scepticism and vigour of cross-examination or, worse, sentencing discretion to ameliorate the position where somebody has been found guilty of possessing a dangerous drug of which they did not know, where the whole of the Crown’s present answer to your Honours about that awful prospect is, “They will probably win in a reasonable mistake belief”. In our submission, focusing on “reasonable”, focusing on the ordinary position of not adverting to the content of things and focusing on the untenable proposition that people do not put contraband in suitcases makes it, in our submission, an extremely unattractive prospect and that is a legitimate aid to construction of the provisions to be interpreted, as we set out at the beginning of this appeal.

In relation to Giorgianni, may I simply say this. It is of course true, as in the manslaughter cases, that the culpable driving offence in that case, driving in a manner dangerous and a death resulting, is an offence constituted by acts and omissions on the one part with characteristics, manner dangerous, which were objective for the principal, and also an outcome or consequence: death. For somebody doing something to aid, that is before the commission, the result obviously cannot be something within knowledge. If you expand that slightly, it does not appear, as is clear from Giorgianni, that it is not required to be within the intention.

Their Honours cite English authority recognising or accepting there may be some illogicality to that but referring to the deep‑rooted nature of that aspect of offences which include in their constituent elements, not the conduct, an outcome. There is the world of difference between not requiring the aider to know – could not know – or to intend the outcome or consequence and what is occurring in this case. The death in Giorgianni was a consequence of the conduct, the objective nature of which caused an offence to be committed when that result ensued, otherwise it would have been a lesser driving offence.

In this case the fact that the drug is dangerous, that it is a drug and it is dangerous within the meaning of the statute, is not a consequence or outcome of any conduct. This is not an offence where the seriousness of the offence is constituted partly by results which it is accepted were not intended by the perpetrator. Rather, the dangerous drug is a pre‑existing condition required to pre‑exist the conduct that is the possession. It must be a dangerous drug in order that possession of it be an offence. So that the offending conduct, possession, has as its condition rather than as its consequence a pre‑existing dangerous drug rather than, in the driving case, a consequence of a death caused by it.

That, in our submission, suffices to eliminate the weight of the argument my learned friend has raised concerning the fact that not all elements of an offence – see Giorgianni itself – need to be known to the aider by reason of the law’s requirements of knowledge or intention on the aider’s part. Quite so, but in this case the dangerousness of the drug is something which is an essential element and also fact of the case in relation to the conduct for the reasons that we put in‑chief and I will not repeat. May it please your Honours.

GLEESON CJ: Thank you, Mr Walker. We will reserve our decision in this matter and we will adjourn until 10.00 am tomorrow.

AT 2.55 PM THE MATTER WAS ADJOURNED

[2005] HCATrans 206

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