HIGH COURT OF AUSTRALIA
GLEESON CJ,
McHUGH, HAYNE, CALLINAN AND HEYDON JJGRAHAM VICTOR TABE APPELLANT
AND
THE QUEEN RESPONDENT
Tabe v The Queen
[2005] HCA 59
6 October 2005
B67/2004ORDER
Appeal dismissed.
On appeal from the Supreme Court of Queensland
Representation:
B W Walker SC with A W Moynihan for the appellant (instructed by Legal Aid Queensland)
L J Clare with M J Copley for the respondent (instructed by Director of Public Prosecutions (Queensland))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Tabe v The Queen
Criminal law – Attempted possession of dangerous drug – Unopened parcel contained dangerous drug – Innocuous substance substituted by police for drug – Principal offender obtained custody of unopened parcel – Appellant charged with aiding, abetting or counselling attempted possession of dangerous drug – Whether possession of a dangerous drug pursuant to s 9 Drugs Misuse Act 1986 (Q) requires proof of a mental element – Whether attempting to possess a dangerous drug pursuant to s 4(1) of the Criminal Code (Q) requires proof of a mental element – Whether custody of a dangerous drug without knowledge of its contents is sufficient to establish possession or an attempt to possess – Whether requisite state of knowledge differs between principal offender and accessory alleged to have aided, counselled or procured custody of receptacle.
Criminal law – Onus of proof – Whether possession of a dangerous drug pursuant to s 9 Drugs Misuse Act requires Crown to prove a mental element – Whether s 57(d) Drugs Misuse Act requires accused to prove absence of a mental element.
Criminal Code (Q), ss 4(1), 7(1), 24, 36(1), 535, 536, 583
Drugs Misuse Act 1986 (Q), ss 9, 44, 44A, 57(c), 57(d), 117(1)Words and Phrases – "possession", "[a]ttempts to commit offences".
GLEESON CJ. This appeal raises questions of the construction of Queensland legislation concerning unlawful possession of dangerous drugs. The appellant and a companion, Ms Briggs, went to a post office to collect an envelope which had been sent by mail. The envelope they wanted to collect contained methylamphetamine, a dangerous drug within the meaning of the legislation. There had been a police interception. A substitute envelope was handed to Ms Briggs, but it contained no drugs. The two were arrested. Ms Briggs pleaded guilty to an offence and was sentenced. The appellant was charged with possession of a dangerous drug. The case against the appellant was put on the basis that there was an attempt by Ms Briggs to possess the dangerous drug, and that the appellant counselled or procured Ms Briggs to make that attempt. If both of those allegations were sustained, then the appellant was guilty of the offence charged.
The detailed facts, and the relevant legislative provisions, are set out in the reasons of Hayne J and the joint reasons of Callinan and Heydon J. It is clear that Ms Briggs never obtained possession of the dangerous drug; hence the allegation of attempt to possess which, by statute, is the equivalent of possession. Neither the appellant nor Ms Briggs gave evidence. Witnesses were called in the defence case in an attempt to show that the envelope was being collected merely as a favour to a third party. This was treated as raising a defence that the appellant honestly and reasonably believed that the envelope did not contain a dangerous drug. By virtue of s 57(d) of the Drugs Misuse Act 1986 (Q)[1], and its operation in relation to s 24 of the Criminal Code (Q), the onus of making out a defence of honest and reasonable mistake was on the appellant[2]. The trial judge so directed the jury, and no objection was, or is, taken to that direction.
[1]This Act has been amended and some provisions renumbered by the Drugs Misuse Amendment Act 2002 (Q). All references are made to the provisions as in force at the time of the alleged offence.
[2]R v Clare [1994] 2 Qd R 619.
There was, however, another question, which may be identified more clearly in relation to the role of Ms Briggs. As the case against the appellant (counselling and procuring Ms Briggs to attempt to possess the dangerous drug) was put, it was necessary for the prosecution to show, against the appellant, that Ms Briggs was guilty of attempting to possess the drug. The trial judge told the jury that the charge against the appellant involved three elements: first, that Ms Briggs attempted to possess a dangerous drug; secondly, that the appellant did some act for the purpose of enabling her to commit that offence; thirdly, that the appellant knew that Ms Briggs intended to attempt to obtain possession of the envelope and its contents.
The reference to possession of the envelope and its contents was related to what the trial judge said as to the elements of Ms Briggs' offence. The judge explained that, by statute, a person who attempts to commit a crime is deemed to be guilty of the intended crime. She said:
"Now, there is actually one inference that you are going to have to draw in this case in order to accept the prosecution case and that would be that when Ms Briggs went to collect the envelope, which is exhibit 1, including its contents that she knew that the envelope had contents. That's an inference that I don't think is really in dispute but you can see that you've had no evidence of Ms Briggs' state of mind ... but I will be telling you that you need to be satisfied that when she went to collect that envelope she knew that she was going to get something inside the envelope. I'll just add here as a matter of law, the prosecution does not have to prove that Ms Briggs had knowledge that the contents of the envelope were methylamphetamine."
The trial judge also said:
"There is evidence that Ms Briggs ... attempted to commit the offence of the possession of the dangerous drug ... You've heard the evidence about how she went to the Post Office ... and handed over the card and got the dummy envelope, and it probably won't trouble you to infer that she knew that when she was collecting the envelope that there would be something in it, and it's not an issue that that possession would have been unlawful and we know that the quantity exceeded 2 grams. So we have Ms Briggs guilty of the offence."
When it came to the role of the appellant, the trial judge referred briefly to evidence that made it obvious that the appellant had procured Ms Briggs to attempt to obtain the envelope, had intended that she would do so, and had assisted her. The substantial question for consideration by the jury was said to be the defence of honest and reasonable but mistaken belief, which was based on the evidence of the defence witnesses, and which raised an issue on which the appellant carried the onus of proof. The judge said:
"If you were persuaded that Mr Tabe believed honestly and reasonably that the envelope did not contain the dangerous drug methylamphetamine then Mr Tabe is not guilty."
The primary issue raised in this appeal concerns the extent of the knowledge necessary for the offence of attempting to possess a dangerous drug where a person attempts to obtain custody or control of an envelope (or package, or suitcase, or other container) which in fact contains a dangerous drug. It is convenient to deal with that issue by reference to the position of Ms Briggs, because the position of the appellant is complicated by questions of accessorial liability, and by the defence raised in his case. Ms Briggs was absent from the trial of the appellant. The jurors were presented with a discrete issue as to whether she was proved to have committed the principal offence of attempting to possess methylamphetamine. They were told that what the prosecution had to establish was that she attempted to obtain delivery of the envelope, exhibit 1, that she knew that the envelope contained something, and that what it in fact contained was methylamphetamine. All of those facts were clearly established.
Possession, knowledge and intention
Earl Jowitt said, in 1952, that "the English law has never worked out a completely logical and exhaustive definition of 'possession'"[3]. Lord Diplock said that in ordinary usage, "one has in one's possession whatever is, to one's own knowledge, physically in one's custody or under one's physical control"[4]. The concept of "knowledge", however, is imprecise. This, no doubt, is why Aickin J spoke of "sufficient knowledge of the presence of the drug" in Williams v The Queen[5]. The answer to a question as to what constitutes "sufficient knowledge" for possession depends upon the purpose for which, and the context in which, the question is asked. If the context is a dispute as to whether, for the purposes of the law of larceny, one person was in possession of goods when another allegedly stole them[6], or whether a person has possession of valuable articles buried in or hidden on land owned by that person[7], the extent of sufficient knowledge may be different from that necessary to reach a conclusion that a person has contravened a law making it a criminal offence to possess an article or substance of a certain kind.
[3]United States of America and Republic of France v Dollfus Mieg et Cie SA and Bank of England [1952] AC 582 at 605.
[4]Director of Public Prosecutions v Brooks [1974] AC 862 at 866.
[5](1978) 140 CLR 591 at 610.
[6]eg Hibbert v McKiernan [1948] 2 KB 142; Moors v Burke (1919) 26 CLR 265.
[7]eg South Staffordshire Water Company v Sharman [1896] 2 QB 44.
It is not disputed that the trial judge was right to tell the jury that it was not necessary for the prosecution to show that Ms Briggs believed that the envelope of which she was attempting to obtain delivery contained methylamphetamine, as distinct from, for example, cannabis or cocaine. Was it sufficient for the prosecution to show that she believed it contained something?
This was not a case in which there was a possibility that some third party had slipped contraband into an article of clothing without the wearer knowing of its presence[8]. Nor was it a case where a container had a hidden compartment, with the possibility that the person in possession of the container might not have been aware of some of its contents[9]. Ms Briggs undoubtedly attempted to obtain delivery of the envelope, exhibit 1, and her evident purpose in doing so was related to the contents of the envelope. No one could have suggested seriously that she wanted the envelope for its own sake. In attempting to obtain the envelope, she was attempting to obtain its contents. The contents in fact consisted of a dangerous drug. Was it necessary to show that she knew that?
[8]cf Williams v The Queen (1978) 140 CLR 591.
[9]cf He Kaw Teh v The Queen (1985) 157 CLR 523.
In the context of a criminal law that prohibits possession of an article of a certain kind, and leaving to one side any special statutory regime that might alter the case, the concept of knowledge requires further definition. What is it that amounts to knowledge? And what is it that must be known? In He Kaw Teh v The Queen[10], Gibbs CJ, after reviewing the authorities, concluded that:
"[W]here 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 of the offence, because the words describing the offence ('in his possession') themselves necessarily import a mental element".
The fact in issue, knowledge, is not limited to knowledge gained from personal observation, or certainty based upon belief in information obtained from a third party, although those states of mind would suffice. The word "awareness" is sometimes used as a synonym. A belief in the likelihood, "in the sense that there was a significant or real chance", of the fact to be known, will suffice[11].
[10](1985) 157 CLR 523 at 539.
[11]Saadv The Queen (1987) 61 ALJR 243 at 244; 70 ALR 667 at 668-669 per Mason CJ, Deane and Dawson JJ.
What is it, then, that must, in the relevant sense, be known? The judgments in He Kaw Teh, which concerned the meaning of the Customs Act 1901 (Cth), illustrate a range of different possible conclusions as to the extent of knowledge involved in the concept of possession[12]. One possibility is that, to be in possession of a drug of a particular kind, a person must know that he or she is in possession of the substance, and that the substance is a dangerous drug, without necessarily knowing that it is methylamphetamine, as distinct from, say, cocaine or heroin. Another possibility is that the person must know that he or she is in possession of a substance, (which is in fact a dangerous drug), and that knowledge that the substance is a dangerous drug is not something that need be shown. Other possibilities exist as well. Similar possibilities apply to attempting to possess.
[12]Compare (1985) 157 CLR 523 at 545 per Gibbs CJ with 589 per Brennan J, and 602 per Dawson J.
The appellant submits that the first of the two possibilities mentioned in the preceding paragraph applies to the present case. On that approach, for the prosecution to establish (for the purposes of the case against the appellant) that Ms Briggs attempted to possess a dangerous drug, it was necessary to prove that, when Ms Briggs applied to the post office for delivery to her of the envelope, exhibit 1, she either knew or believed that it contained, or at least that there was a significant or real chance that it contained, some kind of dangerous drug. On the facts of the case, that might not have been a difficult inference. Even so, the case that was left to the jury was significantly different.
A similar process of reasoning, it is said, applies to the alleged accessorial liability of the appellant. Even assuming, as the Queensland Court of Appeal held, that his liability was "coordinate" with that of Ms Briggs, the prosecution would have to show a state of knowledge or belief in the appellant, concerning the contents of the envelope, of the same kind.
As the trial was conducted, these questions were subsumed in the defence case of honest and reasonable mistake of fact. The evidence about the request made by a third party that the appellant collect the envelope for him was relevant to the conduct of Ms Briggs as well as to the conduct of the appellant. Nevertheless, if the submissions for the appellant are correct, the defence argument about honest and reasonable mistake distracted everyone at trial, and caused them to overlook the full implication of the concepts of possession, and attempt to possess.
The respondent submits that, to the contrary, the defence reliance on honest and reasonable mistake reflected the Queensland statutory scheme, and the trial judge's directions were precisely in accordance with that scheme. According to the respondent, whether one was considering Ms Briggs' attempt to possess, or the appellant's procuring of that attempt, the statutory concept of possession required no proof of knowledge of the nature of the contents of the envelope. Any questions about that matter arose under the rubric of mistake, and were to be dealt with accordingly.
The Queensland legislation
The legislation is set out in the reasons of Hayne J and Callinan and Heydon JJ. The parliamentary history shows that what was intended was a reversal of the onus of proof. That, however, does not conclude the matter. That the legislation places the onus of proof of certain matters upon an accused person, in certain circumstances, is not in doubt. It is clear that, if there had been no interception in this case, and the envelope, exhibit 1, had found its way into the appellant's car, with the methylamphetamine in it, then s 57(c) would have required the conclusion that the appellant was in possession of the drugs unless the appellant showed that he neither knew nor had reason to suspect that the envelope contained drugs. But that is not what occurred. One of the circumstances in which the legislation provided for a reversal of the onus of proof simply did not apply. Again, the case has been conducted upon an acceptance of the proposition that, if and insofar as the appellant wished to rely upon s 24 of the Criminal Code, and the defence of honest and reasonable mistake, he carried the onus of showing an honest and reasonable belief in the existence of any state of things material to the charge. The appellant argues, however, that there is an anterior question arising out of the meaning of the concept of possession.
The essential problem is whether the provisions of s 57, and, in particular, s 57(d), provide an indication of statutory intention which leads to a conclusion that the word "possession" in s 9 of the Drugs Misuse Act does not include the element of knowledge that the envelope, exhibit 1, contained a dangerous drug.
The decision of the Queensland Court of Appeal in R v Clare[13] was regarded by the Court of Appeal in this case as supporting the respondent. There, the accused was handed, by another person, packets of white powder, which he said he was requested to transport from the Gold Coast to Sydney. In fact, the packets contained heroin. The accused said that he believed that the white powder was a perfume base. The accused was aware of, and intended to possess, the white powder. His case was that he was mistaken as to the nature of the powder. The trial judge told the jury that, in order to convict the accused, they must be satisfied either that he knew the white powder was a dangerous drug, or that he knew the white powder was likely to be a dangerous drug, or that he had reason to suspect that it contained a dangerous drug. The argument in the Court of Appeal was that the second and third alternatives were insufficient, and that only the first would suffice. That argument was rejected. The Court of Appeal went further, and held that the directions were unduly favourable to the accused. Fitzgerald P concluded that all that the prosecution had to show was that the accused had, and knew that he had, a substance (the white powder), and that the substance was in fact a dangerous drug[14]. Davies JA said that the judge should have directed the jury that it was sufficient that the accused knew he had in his physical control the white powder, and that it was then for the accused, pursuant to s 24 of the Criminal Code as modified by s 57(d) of the Drugs Misuse Act, to show that he honestly and reasonably believed it was a perfume base[15]. Pincus JA said that there was no question but that the appellant knowingly had possession of the powder; the only issue was as to his knowledge of the nature of the powder, and that was to be resolved by reference to s 24 of the Criminal Code and s 57(d) of the Drugs Misuse Act[16].
[13][1994] 2 Qd R 619.
[14][1994] 2 Qd R 619 at 639.
[15][1994] 2 Qd R 619 at 646.
[16][1994] 2 Qd R 619 at 643.
In Clare, the accused squarely raised an issue of mistake of fact. He undoubtedly intended to possess the white powder. The question was whether, reading the Drugs Misuse Act as a whole, including s 57(d), the word "possession" in s 9 should be understood as requiring that he knew (in the sense earlier discussed) the nature of the powder. He said he thought he knew, but was mistaken. The Court of Appeal said that brought s 57(d) into play. What if he had said that he had no idea what the white powder was; that he did not know and did not care? Or what if he had said nothing? If the decision in Clare provides the answer to the present case, it must be because it goes further in its application than the particular facts, involving an assertion of a specific, but mistaken, belief. It must be because, on the true construction of the Drugs Misuse Act, where an accused person knowingly and intentionally has custody or control of a substance, to the exclusion of others except anyone with whom he or she is acting in concert, then a question as to belief in the nature of the substance can arise for consideration only under the rubric of mistake, and hence under s 24 of the Criminal Code as modified by s 57(d) of the Drugs Misuse Act.
Depending upon context, "possession" is undoubtedly capable of bearing the meaning given to it in Clare. The Court of Appeal's conclusion that it had that meaning in s 9 of the Drugs Misuse Act was influenced powerfully by the presence in the Act of s 57. The argument for the respondent in the present case, supporting that conclusion, may be summarised as follows. An honest and reasonable, but mistaken, belief in a state of things, for the purpose of the application of s 24 of the Criminal Code, as modified by s 57(d) of the Drugs Misuse Act, might involve a specific belief (such as that a white powder is a perfume base, whereas in truth it is heroin) or a more general belief (such as that a white powder is a harmless substance). The more general belief might even take the form (as evidently was claimed in the present case) of a negative assumption that an article is an unidentified, but unremarkable, item of personal property. In many cases, where a person is found to have custody or control of a substance, to the exclusion of others, being fully aware of its existence, and the substance is in fact a dangerous drug, then the person will claim to entertain an innocent belief, either of the specific or general nature considered above, as to the nature of the substance. That will not necessarily be so in all cases; there is a difference between not knowing that a substance is a drug and believing that it is not a drug. A person might entertain no belief at all, even of the general and negative kind earlier described. Even so, in practice, many people found to have custody of an illegal substance, of which they were aware, will seek to explain themselves by saying they were mistaken as to its nature, as the appellant did in this case, or as the accused did in Clare. How can it be consistent with s 57(d) of the Drugs Misuse Act, in such a common case, to require the prosecution to prove knowledge that the substance was a dangerous drug in order to establish possession? Such a construction of "possession" either nullifies the effect of s 57(d) or confines its operation to such a small number of cases (such as a mistaken belief in the existence of a licence to possess drugs of a certain kind) that it is difficult to understand why the legislature troubled itself to enact the provision. Counsel for the respondent argued that since, in a case where an accused person knows that he has a substance in his custody but says that he does not know its nature, (a case of the kind with which Gibbs CJ said he was not concerned in He Kaw Teh[17]), mistake and knowledge cannot co-exist, so that to put the onus of proof of mistake on the accused (as in s 57(d)) reflects a legislative contemplation that the prosecution need not prove knowledge of the nature of the substance in order to establish possession.
[17](1985) 157 CLR 523 at 538.
Although s 57(c) is not directly relevant to the present case, it also is relied upon by the respondent as an indication of the intention with which s 9 uses the word "possession". In particular, the concluding words negative the evidentiary effect of the provision only where it is shown that an accused did not know or have reason to suspect that the drug (that is, the substance) was in or on the place referred to. It does not have that operation where the accused knew that the drug was in or on a place but did not know its nature. Furthermore, in a case to which s 57(c) applies, presence of a substance is made conclusive evidence of possession, subject to demonstration by the accused of knowledge or reason to suspect such presence. This is not easy to reconcile with a concept of possession that requires knowledge of the nature of the substance possessed.
If the argument for the appellant is correct, the legislative scheme appears to involve some curious inconsistencies. If an accused person is the occupier of a place (as defined), and a dangerous drug is found on the place, then that is conclusive evidence that the drug was in the person's possession, unless the person shows absence of knowledge or reason to suspect the presence of the drug (s 57(c)). However, if a white powder which is in fact heroin is found in a person's suitcase, in order to establish possession, the prosecution must show not only that the person knew (in the sense earlier explained) that the substance was there but also that the accused knew the nature of the substance. If the person who has custody and control of the suitcase, knowing that the white powder is in it, gives no innocent explanation, according to the appellant the prosecution must prove knowledge (in the relevant sense) that the white powder was a dangerous drug. If the person says: "I believed the white powder was a perfume base, because I was told that by a reliable informant", then there is a conundrum. On the face of it, s 57(d) appears to place on the accused person the burden of making out a defence of honest and reasonable mistake. Yet, on the appellant's argument, the prosecution must show that the accused knew that the powder was a dangerous drug, and the occasion to consider a defence of honest and reasonable mistake would thus not arise.
The appellant points out that, in a case where an accused person knows of the presence, in his or her custody and control, of the substance in question, the reasoning in Clare means that any question about knowledge of the nature of the substance will fall to be considered under the rubric of honest and reasonable mistake. On that approach, negligence or carelessness will be penalised. That is an important consideration, but it applies to a rather narrow issue. It assumes knowledge of the presence of the substance but ignorance of its true nature. When Gibbs CJ put this issue to one side in He Kaw Teh[18], he doubted its practical importance. (We know from the sentencing remarks in the present case that, in her plea of guilty, Ms Briggs said she thought the envelope contained cannabis – the kind of mistake that both sides agree is immaterial except perhaps on penalty).
[18](1985) 187 CLR 523 at 538.
The question is ultimately one of legislative intention. Like Fitzgerald P in Clare I have not found the task of construction easy, but I also would conclude that "the clear tenor of the evidentiary provisions in s 57 of the Act is to reverse the onus to oblige an accused person who is proved to knowingly have the custody or control of a thing or substance which is a dangerous drug to prove that his or her 'possession' is innocent"[19].
[19][1994] 2 Qd R 619 at 638-639.
The subsidiary issue
Section 7 of the Criminal Code provides that, where an offence is committed (here, by Ms Briggs), every person who aids, counsels or procures the commission of the offence is deemed to be guilty of the offence. The material facts which made Ms Briggs liable were an attempt to obtain delivery of an envelope which in fact contained methylamphetamine. The appellant requested Ms Briggs to make the attempt to obtain delivery of the envelope, and assisted her in that attempt. If, unlike Ms Briggs, his liability depended upon proof of his knowledge (in the relevant sense) of the nature of what was in the envelope she was attempting to obtain, that produces a disconformity which appears inconsistent with the legislative scheme. This disconformity is highlighted when it is remembered that in the case of drug offences the person who procures an act to be done is often more culpable than the person who does the act.
Conclusion
The appeal should be dismissed.
McHUGH J. The case concerns the conviction of the appellant of the offence of possession of a dangerous drug under s 9 of the Drugs Misuse Act 1986 (Q) ("the Act"). It arises in a context where a woman collected an envelope that had contained dangerous drugs but did not contain them at the time she collected the envelope. She pleaded guilty to attempting to possess those drugs. As a result, under Queensland law, she was "deemed to be guilty of the intended crime". The Crown contended that the appellant was an accessory to the woman's attempt to commit the crime and that, by reason of the combined operation of ss 9 and 117(1) of the Act and s 7 of the Criminal Code (Q) ("the Code"), he was also guilty of that offence. The Crown did not contend that the appellant or the woman ever possessed the dangerous drugs.
The issue in the appeal is whether the trial judge erred in law in directing the jury as to the mental element of the offence. The learned judge directed the jury that they could find the appellant guilty of the offence of possession of the dangerous drug, methylamphetamine in excess of two grams, only if:
(1) the woman had attempted to commit that same offence;
(2)the appellant in some way assisted her or did an act for the purpose of enabling her to attempt to commit the offence; and
(3)when the appellant assisted her to do that act, he knew that she intended to obtain possession of the envelope and its contents.
The learned trial judge directed the jury that the prosecution did not have to prove that the woman had knowledge that the contents of the envelope were methylamphetamine. This direction was erroneous for two reasons. First, the term "possession" in s 9 of the Act involves a mental element. There is no possession for the purpose of s 9 unless the person charged knows that he or she has custody of a substance that is or is likely to be a dangerous drug. Second, under Queensland law a person cannot be guilty of attempted possession of drugs unless that person intends to possess those drugs. That is because s 4(1) of the Code makes it an essential element of attempting to commit an offence that a person intends to commit the offence. Hence, the appellant could not be convicted under s 9 of the Act unless the woman he was aiding was "intending to commit an offence" of possessing dangerous drugs. In my view, she could not intend to commit that offence unless she intended to obtain possession of dangerous drugs. It was not sufficient that she intended to obtain possession of an envelope that had something inside it. Intending to collect an envelope that has something inside it is not intending to commit an offence under the law of Queensland. In this Court – and apparently in the courts below – the argument for the appellant paid no attention to the necessity to prove that the woman intended to commit the offence. But it was a fundamental element of the charge against the appellant.
The material facts
The appellant and Ms Nicole Janet Briggs were jointly charged in the Supreme Court of Queensland on an indictment that declared:
"[T]hat on the nineteenth day of November, 2001 at Gold Coast in the State of Queensland, NICOLE JANET BRIGGS and GRAHAM VICTOR TABE unlawfully had possession of the dangerous drug methylamphetamine.
And the quantity of the dangerous drug methylamphetamine exceeded 2.0 grams."
The indictment contained an additional count that charged Ms Briggs with unlawfully possessing the dangerous drug cannabis sativa.
The trial of the indictment took place before Mullins J and a jury. At the trial, the Crown contended that, on 19 November 2001, the appellant had driven Ms Briggs to the Gold Coast Mail Centre at Bundall. Ms Briggs picked up an envelope from a postal supervisor and then re-entered the passenger side of the vehicle that the appellant was driving. The envelope did not contain any dangerous drug. It would have done, though, but for the following course of events.
On Friday 16 November 2001, an envelope arrived at the Mail Centre that was addressed to a "Mr Tabler" at 1 Markeri Street, Mermaid Beach. Because that address is nonexistent, and the envelope did not contain a return address, the envelope was opened by a postal officer, in accordance with authorised procedures. The officer found that the envelope contained a jar, which contained white powder. The officer reported the matter to police, who collected the envelope that day. Before that officer reported the matter to police however, a person arrived at the Mail Centre and inquired about a parcel that the person said was addressed to "Mr Tabler, 1 Makeri Street". The officer told the person to return later that afternoon.
On Monday 19 November 2001, the same Australia Post officer received a phone call from a person who said that he had attended the Mail Centre on Friday and that a friend would come in to collect the parcel. The officer contacted the police who told the officer to prepare an envelope that resembled the original envelope. Soon after, the police arrived at the Mail Centre. And soon after that, Ms Briggs attended the Mail Centre, presented a card and requested and collected the envelope.
At the trial, but in the absence of the jury, Ms Briggs pleaded guilty to the charge of possession of methylamphetamine and possession of cannabis. Subsequently the jury convicted the appellant of the charge against him.
The relevant enactments
The offence
Section 9, which is in Pt 2 of the Act, enacts:
"A person who unlawfully has possession of a dangerous drug is guilty of a crime."
While neither the appellant nor Ms Briggs ever had possession of a dangerous drug, the Crown contended that Ms Briggs had attempted to gain possession of the envelope that contained a dangerous drug. Section 4(1) of the Code defines the elements of the offence of attempting to commit an offence. It declares:
"When a person, intending to commit an offence, begins to put the person's intention into execution by means adapted to its fulfilment, and manifests the person's intention by some overt act, but does not fulfil the person's intention to such an extent as to commit the offence, the person is said to attempt to commit the offence."
By force of s 117(1) of the Act, upon pleading guilty to the offence of attempting to possess the dangerous drug, Ms Briggs was deemed guilty of an offence against s 9 of the Act. Section 117(1) declares:
"In lieu of the Criminal Code, section 536 the following provision shall apply –
'A person who attempts to commit a crime defined in part 2 is deemed to be guilty of the intended crime and is liable to the same punishment and forfeiture as a person who commits the intended crime.'"
The Crown contended that the appellant was also guilty of an offence against s 9 because of the operation of s 7 of the Code, which enacts:
"(1) When an offence is committed, 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 to say –
(a)every person who actually does the act or makes the omission which constitutes the offence;
(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;
(d)any person who counsels or procures any other person to commit the offence.
(2) Under subsection (1)(d) the person may be charged either with committing the offence or with counselling or procuring its commission."
Mens rea in respect of the s 9 offence
Certain provisions of the Act and the Code bear upon the mental state of a person charged with an offence against s 9 of the Act. Section 57 of the Act, at that time (now s 129), declares:
"In respect of a charge against a person of having committed an offence defined in part 2 –
...
(c)proof that a dangerous drug was at the material time in or on a place of which that person was the occupier or concerned in the management or control of is conclusive evidence that the drug was then in the person's possession unless the person shows that he or she then neither knew nor had reason to suspect that the drug was in or on that place;
(d)the operation of the Criminal Code, section 24 is excluded unless that person shows an honest and reasonable belief in the existence of any state of things material to the charge."
Section 24 of the Code, which is in Ch 5 of the Code and which s 57(d) of the Act excludes in respect of offences defined in Pt 2 of the Act, declares:
"(1)A person who does or omits to do an act under an honest and reasonable, but mistaken, 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.
(2)The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject."
Section 36(1) of the Code enacts:
"The provisions of this chapter [5] apply to all persons charged with any criminal offence against the statute law of Queensland."
Directions of the trial judge
The trial judge directed the jury:
"[Y]ou may find [the appellant] guilty of the offence of possession of the dangerous drug, methylamphetamine in excess of 2 grams, only if you're satisfied beyond reasonable doubt of three things. The first is that Ms Briggs attempted to commit that same offence. The second is that [the appellant] in some way assisted Ms Briggs, or did an act for the purpose of enabling Ms Briggs to attempt to commit the offence. And the third is that when [the appellant] assisted Ms Briggs to do that act, [the appellant] knew that Ms Briggs intended to attempt to obtain possession of the envelope ..."
As to the first element of the offence, namely, that Ms Briggs attempted to commit the offence of possession of a dangerous drug, the trial judge told the jury:
"There is evidence that Ms Briggs committed, or attempted to commit the offence of the possession of the dangerous drug, methylamphetamine in excess of 2 grams ... [I]t probably won't trouble you to infer that she knew that when she was collecting the envelope that there would be something in it, and it's not an issue that that possession would have been unlawful and we know that the quantity exceeded 2 grams. So we have Ms Briggs guilty of the offence."
Her Honour directed the jury as to the requisite state of mind of Ms Briggs as follows:
"[Y]ou need to be satisfied that when [Ms Briggs] went to collect that envelope she knew that she was going to get something inside the envelope. I'll just add here as a matter of law, the prosecution does not have to prove that Ms Briggs had knowledge that the contents of the envelope were methylamphetamine."
As to the second element of the Crown case, the trial judge noted that:
"the Crown's relying on the fact that [the appellant] drove Ms Briggs to the Bundall Post Office on the 19th of November, and that he gave her the card ... that was used to obtain, or attempt to obtain Exhibit 1 [the envelope] and its contents."
The trial judge then elaborated upon the third element of the offence, which concerned the appellant's state of mind:
"[T]he last element wouldn't trouble you, I wouldn't think for very long because that's the one that you've got to be satisfied that when [the appellant] assisted Ms Briggs ... he knew that Ms Briggs intended to attempt to obtain possession of the envelope, and that's something that you probably infer from the fact that [the appellant] handed the card to Ms Briggs, or you would infer [the appellant] handed the card to Ms Briggs and infer from that he did so with a view to intending her to attempt to obtain possession of both the envelope and its contents.
You would need to infer, as well, that [the appellant] 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. So you can only find [the appellant] guilty of the offence if you are satisfied beyond reasonable doubt that when he drove Ms Briggs to the Bundall Mail Centre and gave the card to her ... that he knew Ms Briggs was going to seek to obtain the parcel and its contents."
The trial judge left the defence of honest and reasonable mistake to the jury. She directed them that:
"If you were persuaded that [the appellant] believed honestly and reasonably that the envelope did not contain the dangerous drug methylamphetamine then [the appellant] is not guilty."
As I have indicated, the jury convicted the appellant of the offence of possessing the dangerous drug methylamphetamine.
Decision of the Court of Appeal
The appellant appealed against his conviction to the Court of Appeal. He contended that the trial judge "erred in law in ruling that the Crown did not have to prove guilty knowledge on a charge of possession of a dangerous drug". He also contended that the judge "erred in law in directing the jury that all the Crown had to prove was knowledge by the accused that there was something in the relevant package." The Court of Appeal (de Jersey CJ, Davies JA and Mackenzie J) unanimously dismissed the appeal. After referring to a number of authorities including R v Clare[20], de Jersey CJ said[21]:
"In Clare, the Court considered whether a general law mental element should be imported into the offence of possession of a dangerous drug under the Drugs Misuse Act ... The Court took the view that the mental element was much more limited than would ordinarily apply under the general law, and was apparently influenced to that position both by the content of the concept of possession as ordinarily understood, and by the reversal of onus provision, now s 129, casting on to an accused the need to establish an honest and reasonable belief that the relevant material did not constitute dangerous drugs. Hence the need for the Crown to establish only conscious possession of something which is in fact dangerous drugs – in the case of a parcel, necessarily encompassing a belief that it is not empty but contains something."
[20][1994] 2 Qd R 619 at 639.
[21]R v Tabe (2003) 139 A Crim R 417 at 420 [15].
The Chief Justice went on to say[22]:
"If guilt of the principal offence may be established by proof of conscious possession of (only) something, being something which is in fact dangerous drugs, then the accessory will, in my view, likewise be guilty of possession if it is established that the accessory aided the principal offender to secure possession of that something, albeit the Crown cannot establish that the accessory believed it constituted dangerous drugs."
[22](2003) 139 A Crim R 417 at 420 [17].
His Honour said that "[i]t would, as a matter of first impression, be odd if, in a case like this, proof of relevant elements of the offence to be established by the Crown differed as between principal offender and accessory."[23]
[23](2003) 139 A Crim R 417 at 420 [19].
Davies JA agreed with the reasons of the Chief Justice.
In his judgment, Mackenzie J held[24] that the directions of the trial judge accorded with the construction placed on the Act in Clare where a majority of the Court of Appeal held that[25]:
"all that the prosecution needs to show to establish possession is that an accused person has and knows that he or she has a thing or substance which is in fact a dangerous drug."
[24](2003) 139 A Crim R 417 at 425 [43].
[25][1994] 2 Qd R 619 at 639.
On that basis, Mackenzie J held that[26]:
"once physical possession of the drug is established a presumption of knowledge will in practice lead to the conclusion that the possession is unlawful unless there is something in the evidence raising some category of excuse."
[26](2003) 139 A Crim R 417 at 425 [45].
The issue
As I have indicated, the decision of the Court of Appeal and the parties' argument on appeal to this Court focused on the "necessary mental element"[27] that is entailed in the offence of possession under s 9 of the Act. However, in my opinion, the mental element that is entailed in the offence of an attempt to commit the offence of possession under s 9 of the Act is equally important. In the context of this case, it covers much the same ground as the mental element in possession, the only distinction being between knowledge of the drugs and the intent to possess them. In the context of this case that is a distinction without a difference.
[27]Williams v The Queen (1978) 140 CLR 591 at 610.
The mental element of possession in s 9 of the Act
Questions of statutory construction are notorious for generating divisions of opinion between courts and between members of the same court. The judgments of Gleeson CJ and Callinan and Heydon JJ and the judgments of the Court of Appeal in this case and in Clare show that persuasive arguments support the correctness of the trial judge's directions as to the elements of "possession" in s 9 of the Act. Like Hayne J, however, I am of opinion that the term "possession" in s 9 has its ordinary meaning and requires proof that a person charged under that section knows that he or she has custody of a substance that is or is likely to be a dangerous drug. I agree completely with his Honour's analysis of the issue, and there is nothing I can usefully add to the reasons that he gives for this conclusion.
Ms Briggs' attempt to commit the s 9 offence
The jury could only find that the appellant aided or abetted Ms Briggs' attempt to obtain possession of a dangerous drug if the jury were satisfied that Ms Briggs attempted to commit the offence of possession of a dangerous drug. Proof of the attempt required the jury to be satisfied of each of the elements contained in s 4(1) of the Code.
In R v Barbeler[28], the Court of Criminal Appeal outlined the four components of s 4(1). On a charge of attempting to possess a dangerous drug, those components required the prosecution to prove that Ms Briggs:
(i)intended to commit the offence of possession of a dangerous drug;
(ii)had begun to put her intention "into execution by means adapted to its fulfilment";
(iii)had manifested her intention "by some overt act"; and
(iv)did not fulfil her intention "to such an extent as to commit the offence" of possession of a dangerous drug.
[28][1977] Qd R 80 at 82.
The jury could have been satisfied that the prosecution had proved the second and third components of the s 4(1) definition of "attempt". As the trial judge noted in summing-up, the jury had "heard the evidence about how [Ms Briggs] went to the Post Office on the 19th and handed over the card and got the dummy envelope". The conduct of the police and the postal officer in replacing the parcel that contained the dangerous drug with a dummy envelope meant that Ms Briggs was unable to actually come into possession of the dangerous drug. Yet, s 4(2) of the Code makes clear that "[i]t is immaterial ... whether the complete fulfilment of the offender's intention is prevented by circumstances independent of his or her will".
The fourth component was also satisfied because the envelope of which she had possession did not contain a dangerous drug and so she did not commit the offence of possession of a dangerous drug. Section 117(1) of the Act deems a person who attempted to commit an offence to be guilty of the attempted offence. But the section is not relevant to the fourth component of the s 4(1) definition of "attempt" because s 117(1) only operates after the prosecution has shown that a person has "attempt[ed] to commit a crime" and so, only after the four components have been satisfied.
However, the trial judge erred in law in failing to direct the jury as to the first component of the Code's s 4(1) definition of "attempts to commit offences". Her Honour directed the jury that:
"you need to be satisfied that when [Ms Briggs] went to collect that envelope she knew that she was going to get something inside the envelope. I'll just add here as a matter of law, the prosecution does not have to prove that Ms Briggs had knowledge that the contents of the envelope were methylamphetamine."
However, the first component of the Code's s 4(1) definition of "attempt" required the prosecution to show that Ms Briggs "intend[ed] to commit an offence". In Vallance v The Queen[29], Windeyer J said that "a man, who actually realizes what must be, or very probably will be, the consequence of what he does, does it intending that consequence." Analogously, a person intends a consequence, even if the consequence is impossible, if he or she believes that that consequence must be, or very probably will be, the outcome of his or her act. As a result, a person may do an act "intending to commit an offence", for the purposes of s 4(1) of the Code, when the person believes that the very probable consequence of his or her action is the commission of an offence.
[29](1961) 108 CLR 56 at 82 (emphasis added).
In this case, it was impossible for Ms Briggs to obtain possession of a dangerous drug because the police had removed the envelope that contained the methylamphetamine from the Mail Centre before she arrived to collect the envelope. Nonetheless, the jury could have found that Ms Briggs intended to obtain possession of a dangerous drug if they found that she believed that the very probable consequence of her attending "the Post Office on the 19th and hand[ing] over the card and [getting] the dummy envelope" was that she would thereby take possession of a dangerous drug.
But the prosecution had to do more than prove that she intended to possess an envelope with something in it. The prosecution had to prove that she intended to commit the offence. And that meant that the prosecution had to prove that Ms Briggs intended to possess a dangerous drug. A general intent to possess an envelope with something in it is not an intent "to commit an offence". In English[30], a decision under s 4 of the Criminal Code (WA) (which is in terms similar to s 4 of the Queensland Code), the Western Australian Court of Criminal Appeal held that "the act which constitutes the commission of [the] offence" of receiving stolen goods was the act of having the thing in his possession, so long as that act was "done with respect to property of a particular character, ie, in this case that it has been stolen." Similarly, the act that amounts to the s 9 offence of possession of a dangerous drug is an act of taking or retaining possession that is done with respect to a dangerous drug. Thus, the prosecution had to prove that Ms Briggs believed that, in taking possession of the envelope, she was taking possession of a dangerous drug.
[30](1993) 68 A Crim R 96 at 102.
Section 57(d) of the Act shifts the incidence of proving that an accused had "an honest and reasonable belief in the existence of any state of things material to the charge" from the prosecution onto the accused. However, that section has no effect on the incidence of the burden of proving that Ms Briggs "intend[ed] to commit an offence". The purpose of s 57(d) is to exclude the operation of s 24 of the Code. If the legislature intended s 57(d) to also affect the scope of s 4 of the Code, it would have said so. It is not relevant – but it is consistent with other provisions in the Code (eg, ss 306(a) and 302(c)) – that the mental element of an attempt under s 4(1) of the Code may be more substantial than the mental element of the principal offence of possession of a dangerous drug.
As a matter of law, then, the prosecution had to prove that Ms Briggs knew that the contents of the envelope of which she took possession were a dangerous drug. The prosecution had to do so for two reasons. First, proof of knowledge was necessary to prove the element of "possession" for the purpose of s 9 of the Act. Second, proof of knowledge was an indispensable step in proving, for the purpose of s 4(1) of the Code, that Ms Briggs was "intending to commit an offence". Consequently, the trial judge failed to give the jury the necessary directions from which they could conclude that Ms Briggs had attempted to possess a dangerous drug. Thus, the jury's finding that the appellant was guilty of possession of a dangerous drug – by reason of his aiding or abetting Ms Briggs' attempt to possess a dangerous drug – cannot stand.
Orders
The appeal must be allowed and orders made in the form proposed by Hayne J.
HAYNE J. Section 9 of the Drugs Misuse Act 1986 (Q) provided that "[a] person who unlawfully has possession of a dangerous drug is guilty of a crime". The appellant and Nicole Janet Briggs were presented in the Supreme Court of Queensland on an indictment charging that on 19 November 2001, at the Gold Coast, they "unlawfully had possession of the dangerous drug methylamphetamine … [a]nd the quantity of [that] dangerous drug … exceeded 2.0 grams". Ms Briggs was charged with a second count alleging unlawful possession of cannabis.
Ms Briggs pleaded guilty to both counts charged against her. The appellant pleaded not guilty to the one count charged against him.
The immediate question in the appeal to this Court is whether the trial judge (Mullins J) erred in directing the jury about what the prosecution had to establish to demonstrate possession of a dangerous drug. In order to define the question more precisely, and to understand what the trial judge said about that question, it is necessary to recognise some features of the facts and then notice two particular aspects of the prosecution's case against the appellant.
The relevant facts
The authorities had intercepted an envelope in which drugs had been sent through the post, before the envelope was delivered. The authorities removed the drugs from the envelope and substituted another envelope. The substitute envelope contained no drugs but bore the same delivery address as the original envelope. That delivery address did not exist. Ms Briggs collected the substituted envelope from the post office. To collect that envelope she produced a postal card which the appellant had given her. Having collected the envelope, Ms Briggs took it to a motor car in which the appellant was waiting and put the envelope on the floor of the car at her feet. Ms Briggs and the appellant were arrested at once, before the appellant touched the envelope. Other facts revealed in the evidence given at trial are described in the reasons of Callinan and Heydon JJ and I do not repeat them.
The prosecution case
The prosecution's case at the appellant's trial was that Ms Briggs had attempted to possess the drugs contained in the original envelope, and that the appellant had aided and abetted her. The prosecution did not argue that the appellant was the principal offender and Ms Briggs had aided and abetted him in his attempt to possess the drugs.
Thus the issues for the jury were more complicated than the single question of what must be shown to demonstrate possession of a dangerous drug contrary to s 9 of the Drugs Misuse Act. That particular question is much affected by s 57 of that Act[31]. Identifying the relevant issues the jury had to deal with in this case requires consideration not only of questions about what must be proved to establish possession of a dangerous drug, but also requires consideration of issues about attempt and accessorial liability.
[31]The provisions of the Drugs Misuse Act 1986 (Q) were amended, and some were renumbered, by the Drugs Misuse Amendment Act 2002 (Q). These reasons refer to provisions as they stood at the time of the alleged offence.
It is necessary to begin by examining the relevant statutory provisions.
The relevant statutory provisions
Section 44 of the Drugs Misuse Act provided that the Criminal Code (Q), "with all necessary adaptations" was to "be read and construed with this Act". Special provision was made for attempts to commit offences against Pt 2 of the Drugs Misuse Act (of which possessing dangerous drugs contrary to s 9 was one such offence). Section 44A provided that in lieu of s 536 of the Criminal Code the following provision should apply:
"A person who attempts to commit a crime defined in part 2 is deemed to be guilty of the intended crime and is liable to the same punishment and forfeiture as a person who commits the intended crime."
What constituted an attempt to commit a crime defined in Pt 2 of the Drugs Misuse Act was identified by s 4 of the Criminal Code. In particular, s 4(1) of the Code provided that:
"When a person, intending to commit an offence, begins to put the person's intention into execution by means adapted to its fulfilment, and manifests the person's intention by some overt act, but does not fulfil the person's intention to such an extent as to commit the offence, the person is said to attempt to commit the offence."
Accessorial liability under the Drugs Misuse Act was regulated by Ch 2 of the Criminal Code. In particular, s 7(1) of the Code provided:
"When an offence is committed, 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 to say –
(a)every person who actually does the act or makes the omission which constitutes the offence;
(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;
(d)any person who counsels or procures any other person to commit the offence."
As noted earlier, when it is alleged that a person had possession of dangerous drugs, account must be taken of s 57 of the Drugs Misuse Act, provisions described as "Evidentiary provisions". That section provided, so far as now relevant, that:
"In respect of a charge against a person of having committed an offence defined in part 2 –
…
(c)proof that a dangerous drug was at the material time in or on a place of which that person was the occupier or concerned in the management or control of is conclusive evidence that the drug was then in the person's possession unless the person shows that he or she then neither knew nor had reason to suspect that the drug was in or on that place;
(d)the operation of the Criminal Code, section 24 is excluded unless that person shows an honest and reasonable belief in the existence of any state of things material to the charge". (footnote omitted)
"Place" was defined in s 4 of the Drugs Misuse Act as including a vehicle.
Section 24 of the Criminal Code (the operation of which was affected by s 57(d) of the Drugs Misuse Act) dealt with mistakes of fact. Section 24(1) provided that a person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of a 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. The modification made by s 57(d) to that provision was to oblige the accused to show an honest and reasonable belief in the existence of some state of things material to the charge rather than, as would otherwise have been the case, require the prosecution to exclude such a belief beyond reasonable doubt.
The impugned directions
The trial judge directed the jury that to find the appellant guilty of possession of a dangerous drug three things must be established beyond reasonable doubt:
(a) Ms Briggs attempted to commit the offence;
(b)the appellant in some way assisted her, or did an act for the purpose of enabling her to commit that offence; and
(c)when the appellant assisted Ms Briggs to that act, he knew that Ms Briggs intended to attempt to obtain possession of the envelope and its contents.
Critically, the trial judge said that it was enough for the jury to be satisfied that when Ms Briggs went to collect the envelope "she knew that she was going to get something inside the envelope" and that "the prosecution does not have to prove that Ms Briggs had knowledge that the contents of the envelope were methylamphetamine" (emphasis added). It is this direction which the appellant challenged in the Court of Appeal and in the appeal to this Court.
The Court of Appeal
In our opinion therefore, s 57, including s 57(d), does manifest an intention to alter the common law with respect to knowledge as a necessary component of possession. The appellant's submission was that the prosecution was obliged to prove, as an element of the case against the appellant as an aider, abetter or counsellor, that the principal Briggs knew of the presence of the drug in the unopened parcel. The submission fails to pay due regard to the whole of s 57. Let it be assumed, for present purposes, that the innocuous substitute for the dangerous drug had not been made and that Briggs collected a parcel containing the latter and could have been charged as if she had committed a completed offence. There is no doubt that Briggs was a possessor of the parcel and its contents. She held the parcel in her hands and was, at the very least, concerned in the control or management of the place, the floor of the car, where the parcel was at the material time. To the extent then that Briggs' knowledge or reason to suspect the presence of a drug would have been, which we do not think it was, an element of the offence of the appellant as an aider, the prosecution would have had the benefit of the presumption raised by either or both of s 57(c) or s 57(d) of the Act. Such a presumption could only be displaced by evidence in the trial of the appellant showing an absence of the relevant knowledge, or reason to suspect, on the part of Briggs. If the evidence adduced on behalf of the appellant did go so far as to raise a question of absence of knowledge or reason to suspect, on the part of Briggs, it is likely that it was rejected, or would in the case of a completed offence equally have been rejected, having regard to the jury's rejection generally of the appellant's defence. It is hardly likely that the appellant would have conducted the defence on that basis. If he had, it may have been open for the prosecution to prove Briggs' knowledge, by proving her plea of guilty, embracing, as it must have, all elements of the offence including knowledge. The trial judge would have been right in those circumstances to tell the jury that the prosecution did not have to prove that Briggs knew that the parcel contained methylamphetamine.
In the circumstances of this case, however, of an attempt (on the part of both Briggs and the appellant), s 57(c) has no operation for the reasons that we have stated. But s 57(d) can and does have an operation. It left open the opportunity for the appellant to prove that he acted under an honest and reasonable, but mistaken, belief in a state of things (s 24 of the Code), that there was a parcel to be collected that he did not know had contained the, or a dangerous drug. The trial judge was right to tell the jury, as her Honour did, that the prosecution did not have to prove that Briggs had [ever] known that the parcel contained methlyamphetamine. It was for the appellant to disprove that if he could.
Contrary to the appellant's submissions however, Briggs' knowledge, whether presumed or actual, was not a necessary element of the case against the appellant. He was charged with possession. Section 7 of the Code deems him to be a principal offender. It was the appellant's knowledge that was relevant, and not Briggs'. The appellant, in calling the evidence that he did, assumed the burden imposed on him by s 57(d) of the Act of proving a relevant excusatory state of things, ignorance of the presence of the drug before interception. In this endeavour, as the verdict demonstrates, he failed.
The Chief Justice therefore did no injustice to the appellant when he said in the Court of Appeal that the mental state to be established against the accessory need not be more extensive than that which need be established against the principal offender[85].
[85]R v Tabe (2003) 139 A Crim R 417 at 420 [18].
The criticism made in submissions by the appellant that the Court of Appeal fell into error in not referring to and closely examining the reasons of this Court in He Kaw Teh, is not well founded. In considering, as they did, the reasoning of the Court of Appeal in Clare v The Queen[86], they necessarily had regard to He Kaw Teh which was discussed at some length in that case. We are unable to accept that in a case to which s 57(c) applies (which is not this case) the prosecution must prove that a principal offender knows that he or she possesses the thing which is in fact a dangerous drug. Section 57(c) does not require that. Once evidence is adduced that a dangerous drug was in fact at a place occupied by him or her, or in the management or control of that person, regardless of the state of the accused's knowledge, possession is presumed and the onus to disprove knowledge falls upon the accused. Neither He Kaw Teh, Williams, nor any of the other cases upon which the appellant seeks to rely is however determinative of this one.
[86][1994] 2 Qd R 619.
There was no deficiency in proof of the prosecution case and no misdirection on the part of the trial judge. We would dismiss the appeal.