Offences in Australia that involve dealing in or use of prescribed drugs are contained in federal and state Legislation. Assuming that an indictment for Commonwealth purpose is the same as a presentment for Victorian purposes State and federal offences can be charged in the same document that satisfies the description of both indictment and presentment. 1

Background: compliance with the conventions There is some necessary overlap with Module 3 in this section to explain the relevance of Australian legislation

1961 Single Convention on Narcotic Drugs Australian federal and state drug laws are based on the 1961 Convention [including the amending Protocol in 1972], 1971 Psychotropic Substances Convention, and the 1988 UN Convention Against the Illicit Traffic in Narcotic and Psychotropic Substances. Before the 1953 New York Opium Protocol became operative in 1963, earlier treaties, with the exception of the majority of provisions of the 1936 Convention, were consolidated under the provisions of the 1961 Single Convention in order to codify and reinforce existing agreements. The Convention came into force in 1964 but did not become fully operative until 1968. Australia did not ratify the Convention until 1967.

The Single Convention symbolised the orthodoxy that prevailed in the international community, the power that community exercised over Australian policy, and the strength that the United States wielded within it. It was no mere pious codification of generalised platitudes and good intentions. It was the binding codification of Conventional wisdom. This wisdom Australia accepted as its own.2

Despite opposition from some states, the Commonwealth government subsequently enacted the Narcotic Drugs Act 1967 to ‘regulate the manufacture of and to make other provisions with respect to, Narcotic Drugs in accordance with the Single Convention on Narcotic Drugs 1961.’3 By this stage, ‘narcotic drugs’ were taken not just to mean the opiates but all illegal drugs. The act established a licensing and permit system for manufacture of drugs covered by the Single Convention, which would enable the Commonwealth to monitor domestic drug movement in compliance with its obligations under the Convention. Relevant amendments were also made to the Customs Act 1901.

The Psychotropic Substances Convention Subsequently in 1971, the Psychotropic Substances Convention extended the parameters of international control over illicit drugs to synthetic hallucinogens, stimulants and sedatives. The Convention distinguished between those substances that were completely prohibited apart from limited scientific and medical purposes and substances restricted to medical use. For the first time, however, it was recognised that enforcement alone might not be sufficient. Attention now had to be directed towards the ‘early identification, treatment, education, after-care, rehabilitation and social reintegration of the persons involved.’4

Psychotropic Substances Act 1976 (Cth) The Commonwealth Government enacted the Psychotropic Substances Act 1976 in response, which was an ‘[a]ct to Approve Ratification of the Convention on Psychotropic Substances and to give effect to that

Convention with respect to certain Psychotropic Substances and Psychotropic Preparations that enter Australia in the course of Consignment from one place outside Australia to another place outside Australia.’5

Protocol Amending the Single Convention In 1972, the Protocol Amending the Single Convention was signed. This also reflected a modified international perspective in similarly emphasising the need for treatment, education, rehabilitation and social re-integration of users as well as exploring non custodial alternatives for use offenders. The Protocol also reinforced existing measures providing for the prevention of production, traffic and use of narcotics thus marking the eventual division between low level and high level drug crimes which is reflected in current Australian policy. At the same time however, the INCB’s position of power became entrenched through increased powers to supply its own estimates for a party or to reduce a party’s estimates if the situation required.

1988 UN Convention against the Illicit Traffic in Narcotic and Psychotropic Substances The 1988 UN Convention Against the Illicit Traffic in Narcotic and Psychotropic Substances was concerned with the need to reinforce and supplement the measures provided in the Single Convention on Narcotic Drugs, 1961, the 1971 Convention on Psychotropic Substances, and the 1972 Protocol Amending the Single Convention on Narcotic Drugs, 1961, in order to counter the extent of illicit drug traffic and to recognise the need to enable legal means for international co-operation in dealing with the problem.

The Convention directed attention towards organised criminal activity deriving profits from the drug trade. New offences were added aimed at penalising offenders or accomplices who acquired assets derived though drug crimes and severe sanctions imposed. Sentencing considerations to be applied at a domestic level were outlined. Parties were also required to adopt measures enabling confiscation of proceeds” of criminal activities. The Commonwealth Government enacted the Crimes (Traffic in Narcotic Drugs and Psychotropic Substances Act 1990 in response to the 1988 Convention.

Commonwealth legislation Importation and exportation offences were previously located in s. 233B Customs Act. This was because Commonwealth legislation was based on the trade and commerce power in S. 51(i) of the Constitution and the external affairs power in section 51(xxix). These types of offences are now dealt with in Division 307, Part 9.1 Criminal Code as the result of the Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005 (Cth). Other relevant Commonwealth legislation includes the Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990 which was enacted following the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (the 1988 Convention) and the Narcotic Drugs Act 1967.

The Narcotics Drugs Act 1967 The Narcotic Drugs Act 1967 provides for the regulation of the manufacture of Narcotic Drugs and related offences, in accordance with the Single Convention on Narcotic Drugs, 1961. The Single Convention on Narcotic Drugs 1961 is included as the First Schedule of the Act.

Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990 (Cth) This Act provides for traffic offences in narcotic drugs and psychotropic substances in accordance with the 1988 United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. The act extends Australia’s extra- territorial jurisdiction in compliance with Article 4. Accordingly, the circumstances in which Australia will have jurisdiction include where the prohibited conduct takes place outside Australia by an Australian national and the offender is present in Australia and where an offender is involved in some conduct outside Australia with the idea of committing a drug offence within Australia. The 1988 Convention is set out in Schedule 1. Schedule 2 lists drugs that are narcotics within the meaning of the convention. Schedule 3 lists drugs that are psychotropic substances within the meaning of the convention.

Crimes (Controlled Operations) Act – now Part 1AB of Crimes Act 1915 This legislation is expressly provided for by Article 11 of the 1988 Convention. It allows for police and other law enforcement personnel to take active involvement in what would otherwise be an unlawful activity such as enabling the importation of prohibited goods in order to gather sufficient evidence against the suspected offenders. Until 1995, however, Australia had not acted under the Convention to introduce complementary legislation. The issue was forced to the attention of the legislature following the decision in Ridgeway .v R (1995) 129 ALR 41, a case in which Australian and other international authorities were involved in the controlled delivery of heroin into Australia.. The target of the operation, Ridgeway, was convicted of possession of a prohibited import but this conviction was quashed on appeal to the High Court which held that the evidence of the importation should have been excluded on public policy grounds. Within four months, the Crimes (Controlled Operations) Amendment Bill was introduced. Ridgeway is discussed further below.

Criminal Code Act 1995 In addition to import and export drug offences, the Code provides for trafficking, commercial cultivation, commercial manufacture of controlled substances, possession offences, and drug offences involving children. 6 Import and export are defined in s. 300.2 :

"export" includes take from Australia. "import" , in relation to a substance, means import the substance into Australia and includes: (a) bring the substance into Australia; and (b) deal with the substance in connection with its importation. Import has a similar meaning to the meaning it had under the Customs Act

Victorian legislation Drugs, Poisons and Controlled Substances Act 1981

The Drugs Poisons and Controlled Substances Act 1981 is the major piece of Victorian legislation regulating drugs. Key offences are: Trafficking in drugs [ ss 71, 71AA, 71AB and 71AC]

Possession of prohibited equipment/materials [s. 71A, 71C, 71D]

Possession of a drug of dependence [s. 73]

Cultivation of narcotic plants [s. 72, 72A and 72B]

Use of drug of dependence [s. 75]

Supply of drug of dependence to a child [s. 71B]

Conspiring [s. 79]

Aiding and abetting etc [s. 80]

Extensive search powers with or without a warrant are given under the Act (ss. 81 & 82) Amendments to the Bail Act 1977, Sentencing Act 1991 and introduction of the Confiscation Act 1997 reflect the demarcation between low level drug offences, (where possession, use and cultivation relate to small amounts for personal use), and higher level drug crime engaged in for profit. Emphasis became firmly placed on the nature of the drug crime and the quantity involved.

Bail Act 1977 Bail provisions were amended in 1997 to restrict the circumstances in which persons charged with trafficking or cultivation of a commercial quantity of drugs or a conspiracy to commit both offences could be granted bail. An accused charged with these offences must show that ‘exceptional circumstances’ exist ‘which justify the grant of bail.’

Approaches to proceeds of crime Victoria In 1986, the Crimes (Confiscation of Profits) Act (Vic) was enacted to provide for the confiscation of the proceeds of crime including drug offences. There were, however, several perceived flaws in its operation. There were difficulties in establishing the necessary link between assets acquired and the criminal activities that funded those acquisitions. The legislation also tended to target profits generated from individual crimes rather than assets acquired over a long period of criminal activity and there was particular concern over the amount of profit to be gained in such criminal drug activities such as commercial trafficking. A further problem was that confiscation orders were based on the offender being convicted. The offender could also apply to pay for his or her ‘reasonable legal expenses’ to be paid from property which had been restrained under the legislation.

The act was repealed by the Confiscation Act 1997 which was intended, in part, to improve the operation of existing provisions related to the detection, tracking and confiscation of proceeds of crime and to pursue wealth which had been accumulated over a long period of criminal activity. The legislation provides for forfeiture of assets that have been substantially derived from criminal activity. S. 35 provides for automatic forfeiture on conviction of certain offences set out in Schedule 2. Schedule 2 offences include trafficking, trafficking to a child, certain aid and abet and conspiracy offences relating to drugs, serious fraud offences and money laundering. The Act also provides for freezing of assets, 7destruction of illegal good and the preservation of assets for purposes of restitution or compensation. 8 Restraining orders may be made to ensure that the particular property is available to satisfy forfeiture or, pecuniary penalty orders, or orders for restitution and compensation.9

Other provisions that are not conviction based allow for an application for civil forfeiture of property, which has been restrained where a person has been charged regardless of whether the charge has been withdrawn or determined. In restraining property, courts are prohibited from making an allowance for legal expenses from the restrained assets (s. 14(5): (5) A court, in making a restraining order, must not provide for the payment of legal expenses in respect of any legal proceeding, whether criminal or civil, and whether in respect of a charge to which the restraining order relates or otherwise.

Federal

Reading AIC, ‘Confiscation of the proceeds of crime: federal overview’, Transnational crime brief no. 1, Jan 2008

Elements in drug offences The next few sections address different concepts associated with drug offences.

The mental element Many offences require that the prosecution establish that the defendant acted with a particular criminal state of mind- this is known as the mens rea. The necessary guilty state of mind may consist of intention, recklessness, or negligence. The requirement of mens rea at common law can be displaced by statute, which means in general that D may be convicted of conduct when he or she acted without intention or without being reckless or negligent. It is not always clear however whether parliament intended whether particular offences have no mental element Federal offences have physical and fault elements rather than actus reus and mens rea.

These are defined in the Commonwealth Criminal Code Act 1995: 4.1 Physical elements (1) A physical element of an offence may be: (a) conduct; or (b) a result of conduct; or (c) a circumstance in which conduct, or a result of conduct, occurs. 5.1 Fault elements

(1) A fault element for a particular physical element may be intention, knowledge’

Knowledge is defined in 5.3 as: A person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events. Consider the situation where drugs have been planted in the luggage of a person without that person’s knowledge. Should that person be guilty of an offence?

Different approaches as to mental element required for importation The courts have adopted different approaches in the past to the mental element required for the offence of importation of prohibited drugs. The offence could be treated as: one of absolute liability, which meant that there was no excuse open to the accused;

the offence could be interpreted as requiring men rea, for example an intention to import the goods or knowledge as to the nature of goods imported;

or treat the offence as a strict liability offence so that the accused could raise a defence of honest and reasonable mistake where he could establish that he was ignorant about the nature of the goods because of a mistake of fact and that if the facts were as he believed them (reasonably) to be, he would be innocent.

The Criminal Code Act 1995 (Cth) provides clear definitions of what is meant by strict liability and absolute liability in the code: s.6.1

Strict liability (1) If a law that creates an offence provides that the offence is an offence of strict liability: (a) there are no fault elements for any of the physical elements of the offence; and (b) the defence of mistake of fact under section 9.2 is available.

(2) If a law that creates an offence provides that strict liability applies to a particular physical element of the offence: (a) there are no fault elements for that physical element; and (b) the defence of mistake of fact under section 9.2 is available in relation to that physical element.

(3) The existence of strict liability does not make any other defense unavailable

s.6.2 Absolute liability (1) If a law that creates an offence provides that the offence is an offence of absolute liability: (a) there are no fault elements for any of the physical elements of the offence; and (b) the defence of mistake of fact under section 9.2 is unavailable.

(2) If a law that creates an offence provides that absolute liability applies to a particular physical element of the offence: (a) there are no fault elements for that physical element; and (b) the defence of mistake of fact under section 9.2 is unavailable in relation to that physical element.

(3) The existence of absolute liability does not make any other defence unavailable.

Example 307.1 Importing and exporting commercial quantities of border controlled drugs or border controlled plants (1) A person commits an offence if: (a) the person imports or exports a substance; and (b) the substance is a border controlled drug or border controlled plant; and (c) the quantity imported or exported is a commercial quantity. Penalty: Imprisonment for life or 7,500 penalty units, or both. (2) The fault element for paragraph (1)(b) is recklessness. (3) Absolute liability applies to paragraph (1)(c).

This means that the prosecution does not have to prove any fault element eg the prosecution does not have to prove that the defendant intended to import a commercial quantity or was reckless about whether or not he or she imported a commercial quantity. This also means that the defendant also cannot argue that he or she was mistaken about the quantity as a defence of mistake of fact will not be available.

Defences Section 9.2 Mistake of fact (strict liability) (1) A person is not criminally responsible for an offence that has a physical element for which there is no fault element if: (a) at or before the time of the conduct constituting the physical element, the person considered whether or not facts existed, and is under a mistaken but reasonable belief about those facts; and (b) had those facts existed, the conduct would not have constituted an offence. (2) A person may be regarded as having considered whether or not

facts existed if: (a) he or she had considered, on a previous occasion, whether those facts existed in the circumstances surrounding that occasion; and (b) he or she honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as those surrounding the previous occasion.

Section10.1 Intervening conduct or event A person is not criminally responsible for an offence that has a physical element to which absolute liability or strict liability applies if: (a) the physical element is brought about by another person over whom the person has no control or by a non-human act or event over which the person has no control; and (b) the person could not reasonably be expected to guard against the bringing about of that physical element.

Other defences under Division 10 are: self defence10, duress11, sudden or extraordinary emergency 12 and where D is acting under lawful authority13. Illustrative cases Note these cases were decided under the provisions of the Customs Act 1901 (Cth) which was since been repealed. Drug importation offences are now found in the Commonwealth Criminal Code. For an overview of Federal drug offences : go to http://www.lawhandbook.org.au/handbook/ch04s01s03.php

He Kaw Teh v The Queen The decision of the High Court in He Kaw Teh made it clear that that the convictions for importation would require proof that the defendant or person charged with the offence knew about the drugs that were the subject of the charge. Previously state courts were generally agreed that proof of knowledge or intention was not required. 14In He Kaw Teh, 15 D (the defendant) was convicted of importation and possession of 2.788 kgs heroin under s. 233B(1)(b) and (c) Customs Act 1901 (Cth), which had been found by Melbourne Customs in the false bottom of his suitcase after he had flown in from Kuala Lampur. He was sentenced to 20 years. D argued on appeal that the trial judge had misdirected the jury that the prosecution did not need to prove that a person charged under s. 233B(1)(b) acted with guilty knowledge.

10 s10.4 11 s10.2 12 s10.3 13 s10.5 14 E.g. Ditroia v Tucci [1981] VR 247; Gardiner (1979) 1 A Crim R 265; Parsons [1983] 2 VR499 15 (1985) 157 CLR 523.

The High Court considered the issue of mens rea in statutory offences. A majority held that the offence of importation involved a mental element, however while Gibbs CJ and Mason J held that, the prosecution must prove beyond reasonable doubt that D had knowledge of the act of importation and that the substance that was imported was a narcotic,16 Brennan and Dawson JJ held that the mental element was one of intention: the prosecution must prove that the accused intended to

import good and that he/she intended to import narcotic goods. By implication however, D’s intention to import narcotic goods requires knowledge that narcotic goods are imported.17 Kural v The Queen The High Court applied and explained Teh’s case in Kural.18 In a majority judgement made up of Mason CJ, Deane and Dawson JJ, the judges acknowledged that there was some divergence in opinion between the majority judgements in The

The defendant (D) had brought heroin (more than 200 gms) into Australia from Turkey concealed in the base of a samovar, a Turkish tea urn, which was in a parcel in his suit case. The heroin was discovered at Tullamarine Airport and D agreed with the suggestion that the powder might be heroin. In an unsworn statement, he claimed that he had been given the parcel containing the samover and other items by a stranger at the Turkish airport for collection on his arrival. D said he was unaware that the samover concealed anything and had in fact, examined it at the airport as he had been concerned that there may have been drugs. This created problems for him because his awareness of the likelihood that a parcel handed to him by a stranger might contain drugs deprived him of saying that if it was established beyond reasonable doubt that there was a concealed substance, he was unaware of the likelihood of it being drugs. Therefore, the only issue at trial was mens rea. Was D aware that there was anything concealed at the bottom of the samovar?

The defendant objected to the trial judge’s direction in respect to knowledge. The trial judge had directed the jury that as long as the prosecution established beyond reasonable doubt that D was aware that the there was something in the samover, then the requirement of knowledge was satisfied: the prosecution did not have to prove that D knew that the something was heroin. Mason CJ, Deane and Dawson JJ were of the view that the directions overall favoured the accused as it required proof of actual knowledge that something was in the samover (not that the substance might have been heroin) whereas the likelihood of the presence of the substance would have sufficed. There was no miscarriage of justice re the direction in relation to intent which was really an inability to anticipate Teh’s case as it in fact favoured the accused. They refused leave to appeal.

The court held that the prosecution must prove D intended to import a narcotic, which meant that the prosecution must prove that D knew that the goods he/she brought intentionally into Australia were narcotics or contained narcotics19: the relevant intention to import could be inferred from D’s knowledge or awareness. The existence of the intention is a question of fact. Intention could also be inferred where it was established that D was aware of the likelihood that his/her conduct involved the prohibited act but nonetheless persisted in that conduct. .... But that is not to say that actual knowledge or awareness is an essential element in the guilty mind required for the commission of the offence. It is only to say that knowledge or awareness is relevant to the existence of the necessary intent. Belief, falling short of actual knowledge, that the articles comprised or contained narcotic drugs would obviously sustain an inference of intention. So also would proof that the forbidden act was done in circumstances where it appears beyond reasonable doubt that the accused was aware of the likelihood, in the sense that there was a significant or real chance, that his conduct involved that acts an nevertheless persisted in that conduct. 20

Offences that require actual knowledge cannot be satisfied by less than actual knowledge. It will not be enough to establish that D was aware that it was likely the

goods were narcotics. Actual knowledge may be inferred from the circumstances of the offence, but it must be the only rational inference available.’21 Application under Commonwealth Criminal Code The NSW Court of Criminal Appeal in R v Narongchai Saengsai-Or22 held that the principles in He Kaw Teh were still applicable under the Code. The prosecution must establish that D had a subjective intention to import.23 This means that the prosecution have to prove that the defendant intended to import. It would not be enough to prove that the defendant was aware there was ‘substantial risk’ that ‘the thing being imported contained narcotic goods.’24 Note, however that importation offences under the Code have a default position of recklessness.

Commercial supply/intent The Criminal Code reverses the onus of proof by providing that the defendant has the burden of proving his or her defence ‘relating to a lack of commercial intent.’25D will still be liable for an importation offence if he or she is successful in a defence that he/she did not intend to sell the goods, but the penalty will be reduced.

Being ‘knowingly concerned’ s. 233B(1)(d) Customs Act 1901 previously provided any person who’ aids, abets, counsels or procures, or is in any way knowingly concerned in, the importation , or bringing, into Australia of any prohibited imports to which this section applied, or the exportation from Australia of any prohibited exports to which this section applies.” is guilty of an offence. S. 233 B(2) identified the prohibited imports as narcotics. This concept was not initially addressed in the Criminal Code. S. 300.2 was amended in 2010 to include the following definition of import: "import" , in relation to a substance, means import the substance into Australia and includes:

(a) bring the substance into Australia; and (b)deal with the substance in connection with its importation.

This idea of ‘dealing with the substance in connection with its importation will include the following kind of behaviour: preparing or packing the drugs to import into Australia

bringing drugs into Australia

collecting or retrieving the imported drugs after they have landed

enabling another person to retrieve the drugs

In R v Kelly, 26 while the defendant (D) was in India, he agreed to notify two men on his return to Australia, when certain drugs could be sent to him. However, after he had returned to Australia but before he had sent the notification, , the two men had sent a package of drugs and a telegram to D

requesting confirmation that he had received the package and a letter. The package had been intercepted by customs but D cabled the men to reply that he had only received the letter. D wascharged and convicted of having been knowingly concerned in the importation into Australia of prohibited imports contrary to s. 233B(1)(d) Customs Act. One of the bases on which K appealed was that as the drugs were sent without the agreed notification, he had not been “knowingly concerned” in the importation The court held that in order to establish a charge of being “knowingly concerned” in the importation of prohibited imports, it was sufficient that D should have been ready and willing under a pre-concerted plan, to receive the goods. There was evidence that D was holding himself in readiness to receive the package and this was sufficient to constitute his being “knowingly concerned. It wasn’t necessary for D to be an active participant at that stage for him to fall within the scope of the section. The court noted however that if K had not sent his cable reporting the non arrival of the package, it may have been dangerous to leave to the jury the question whether his inaction amounted to holding himself ready. Arguably, Kelly would also have been caught by s. 300.2(b) Criminal Code Act 1995

Trafficking Trafficking at common law means “movement from source to ultimate user in the course of trade27. There should also be some aspect of commerciality to the activity, meaning that someone, not necessarily the accused, is making a profit out of the activity. 28 Trafficking may be established where D was involved in a ongoing trade in dealing in drugs. 29 S. 70 DPCSA 30defines trafficking as

s.70 traffick in relation to a drug of dependence includes- (a) prepare a drug of dependence for trafficking; (b) manufacture a drug of dependence; or (c) sell, exchange, agree to sell, offer for sale or have in possession for sale, a drug of dependence;.

D does not have to receive any reward to traffick in drugs. Accordingly where D bought Indian hemp at the request of another person and with money provided by her, without any reward for himself, he had trafficked in the hemp. 31 I think that the expression ‘traffick in’ is intended to encompass any association with a drug of addiction not otherwise dealt with and involves at least the handling of such a drug in a conscious manner in the course of dealing in it. I do not think it relevant in order to constitute trafficking in a drug that the person so accused acted without reward, but if some commercial quality is required for the transaction to constitute trafficking, I think that such an ingredient is supplied in this case by the fact that a sale and purchase o Indian hemp took place and the appellant was involved as the link between the parties to that transaction. The part he played was to obtain the order and the money from the buyer, convey the order and the money to the vendor, pay the vendor and receive the drug, convey the drug and deliver or arrange for the delivery of the drug to the purchase. The circumstances that only one such series of acts was proved is not material. A single incident in relation to one person may constitute trafficking.32

Possession of drugs is not enough at common law to constitute trafficking.33 S. 73(2) DPCSA however provides that the fact of possession of no less than a trafficable quantity of drugs will provide prima facie evidence of trafficking. Possession will however only be prima facie evidence of trafficking in the way or ways that are consistent with evidence in that case. 34 The Commonwealth Criminal Code provides for trafficking in controlled drugs: see Division 302.

Possession Note: possession offences under Commonwealth legislation are tied to importation offences This is the result of the division of powers between the states and the federal government. So possession can include possession of goods which are ‘reasonably suspected; of having been imported under s.307 subdiv. C Criminal Code 1995 (Cth) Common law possession is a wider concept than physical custody and includes situations where the object is hidden so that it is accessible by D or can be taken into his physical custody.

Is the prosecution required to prove exclusive possession? In R v Boyce,35 D36 had taken a suitcase, which he had identified as his from a airport baggage area. He was intercepted by police as he moved away and asked if the suitcase was his. He said yes. The suitcase was found to contain Indian hemp. D was convicted of possession. D had argued that D did not have exclusive physical control because the police were waiting for him to collect the suitcase. The court however held that ‘as long as he had hold of the case he had exclusive control of it until he was interrupted by the police’37 that is, he had had present personal physical control to the exclusion of others (until he was interrupted by police). Where a person has physical custody and control of a container and its contents and the intention to exclude anyone else from interference without his consent, he has animus possidendi of the contents even though he does not know what the contents are.In R v Van Swol 38 D was presented on a charge under the then s233B(1)(ca) Customs Act which provided 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 which are reasonably suspected of having been imported into Australia in contravention of this Act ’ shall be guilty of an offence. D was a waterside worker. Customs narcotic agents saw him hold out a white plastic shopping bag obviously containing something, to a car which had pulled up next to him. He put the bag behind the passenger seat and climbed in. The bag was similar to one found later that day to contain two blocks of opium. The agents visited D’s house, which was also occupied by the owner and two others, A and W. On searching the house, D resisted a search of the lounge which he and W usually occupied, although other members of the house visited occasionally. The agents found the white plastic bag in the tea chest belonging to W which had been found on the balcony used by D and W. The agent suspected the contents to be opium and of having been imported. D denied any knowledge of the bag or its contents.

There was evidence that the bag had been planted without W’s knowledge so where D could recover it when he wanted and that it was unlikely that W would discover it or dispose of it. The trial judge directed the jury in terms that a person could have prohibited imports in his “ possession” within the meaning of (Crimes Act) if he intended to exercise and does exercise, physical dominion and control over them in

some form, even though he does not have physical custody of them. This was argued to be a misdirection at the appeal but the Full Court disagreed. It was open to the jury to find that, on that basis, D had the opium in his possession at the time of the search. The court held that a person is in possession of a drug if he has physical control of custody of the drug to the exclusion of others who are not acting with the person. The prosecution must prove knowledge of the presence of the drug [and intention to possess the drug]. Knowledge may be inferred from the surrounding circumstances while custody of a drug may be sufficient evidence of possession. However, in R v Maio,39 D was placed under surveillance after his arrival at Tullamarine (Melbourne) Airport from WA. Two days later, he was arrested in a car while in the company of other people. D was seated in the front passenger seat. Prior to his arrest, the police had observed a co-accused enter the rear passenger side of the car with a sports bag .They saw D remove a white object from the bag and appear to taste something. When the police moved in, D was found holding a plastic bag containing heroin in his lap while more heroin was found in the sports bag between the two front bucket seats. D was charged under the Customs Act and convicted of possession of both lots of heroin. He appealed but that was dismissed.

The dispute was whether he was in possession of the goods, that is, whether the bag placed between the two seats was physically in his custody or under his physical control at the time of his arrest. The trial judge had correctly directed the jury that possession meant physical custody or control and that the question whether the defendant had the drugs in his custody or under his physical control at the relevant time was a question of fact to be decided by the jury. It was held that D has possession of property that he or she knows to be in his or her physical custody or under his or her physical control. There was no need to require exclusive possession- D intended to have possession of the goods and knew what it was or what it was likely to be. O’Bryan J however suggested that in circumstances where the drugs are in a container to which other people may have access [container possession] , a direction to the jury in terms of exclusive possession would be appropriate.40 It would not be appropriate in this case as the drugs were in D’s hands [manual possession].

Summary Accordingly, D will have possession of a drug at common law when: D has physical custody and control of the drug;

D intended to have custody or control over the drug and

D knew or was aware that it was likely that the property was a drug of dependence41

As long as these elements are satisfied, the prosecution does not have prove D had exclusive possession. 42 This means that D does not have to have the drug

Possession under DPCSA 1981 Possession can also be established under s. 5 Drugs, Poisons and Controlled Substances Act 1981 in Victoria43. In R v Clarke & Johnstone 44 C and J with two others were charged with trafficking pursuant to

the then s. 71 following a police raid on a farm where cannabis was being cultivated. The prosecution case was based on s. 5 and s. 73(2) Drugs Poisons and Controlled Substances Act 1981.

S.5 Without restricting the meaning of the word “possession” , any substance shall be deemed for the purpose of this Act to be in the possession of a person so long as it is upon any land or premises occupied by him or is used , enjoyed or controlled by him in any place whatsoever, unless the person satisfies the court to the contrary.

s.73(2) ( 2) Where a person has in his possession, without being authorized by or licensed under this Act or the regulations to do so, a drug of dependence in a quantity that is not less than the traffickable quantity applicable to that drug of dependence, the possession of that drug of dependence in that quantity is prima facie evidence of trafficking by that person in that drug of dependence.

The prosecution argued that the accused were occupiers of the farm under s. 5 and therefore deemed to be in possession of the cannabis and possession of a trafficable quantity was prime facie evidence of trafficking under s. 73(2). “Prima facie evidence of trafficking” means that it is a presumption of trafficking. As it is a presumption, it is rebuttable by evidence to the contrary. C had pleaded guilty before trial and sentenced. He appealed his sentence and J appealed his conviction and sentence. J had contributed to the purchase of the farm, which was held in the name of a co-accused and also bought items for use on the farm. J argued that he had no knowledge of the existence of the crop.

The Victorian Full Court held that s.5: .....clearly casts upon the prosecution the onus of proving either occupation of the relevant land or that the prohibited substance was used, enjoyed or controlled by the accused. The legislature could not have intended to enact that an accused person was called upon to disprove occupation or to prove that he did not use, enjoy or control the substance. If the latter words of the section are to be given any meaning at all it must follow that a person proved to be in occupation of relevant land is deemed to be in possession of the substance

unless he proves that he was not in possession of it . That can only mean possession as it is known in common law. 45

Vincent JA pointed out in R v Phung:

The word ‘occupied’ in s.5 does not stand alone. It is used in conjunction with ‘used, enjoyed or controlled’ to encompass a wide variety of factual situations46 Note that s. 5 reverses the onus of proof to the accused once the prosecution has established that D occupied the land or used, enjoyed or controlled the drug. See comments in R v Momcilovic.47

Importation and Territoriality When a ship was intercepted by Customs within 3 miles of the NT coast, a large quantity of marijuana was thrown overboard. Included in the charges were possession of prohibited imports on board ship (s. 233B(1)(a) Customs Act 1901 (Cth)and importation ( previously s. 233B(1)(b). The master was also convicted under s. 233A- knowingly allowing the ship to be used in importation of goods. Could these offences be committed on the sea within 3 miles of NT coast?48 The High Court held that the words of the section were read literally. This was not an importation offence under s. 233B(1)(b) into Australia because commission of that offence required goods to be landed or brought into port with intention of being landed.

The ship had been intercepted before it reached its destination and before it had entered port so they were not ‘imported’ when they were brought across the three nautical mile line. Whether or not the sea within three nautical miles of the coast should be regarded as part of Australia for other purposes, it is… clear that goods are not imported simply by bringing them within the three mile limit. It does not accord to ordinary usage to say that goods are imported into a place if they are brought there in the course of transit but with no intention that they should be unloaded there… the words of the Act themselves make it clear that the mere entry into port is not necessarily an importation.49 Accordingly, the goods were not imported when brought within port limits unless there was an intention to discharge the goods at that location. Re s. 233B(1)(a) Customs Act 1901 (Cth) The offence of possession of a prohibited drug under on a ship or aircraft ( s. 233B(1)(a) could however, be committed in these circumstances because this would be consistent with powers under the Customs Act to board , search and seize ships within the 3 mile limit. S. 233B(1)(a) was not limited to possession of prohibited imports that had been imported into Australia but extended to waters within the three nautical mile line. This interpretation was supported by the fact that s. 233B(1)(c) was expressly limited to possession of prohibited imports which had been imported into Australia.

Entrapment and controlled operations Entrapment consists of some conduct by police with the intention that the accused will, as a result, engage in criminal behaviour. Covert police operations frequently involve police in normally illegal conduct, such a posing as a drug supplier, with the object of gathering sufficient evidence to charge an accused There are problems when investigators engage in otherwise criminal conduct in order to tempt the accused into committing an offence. One issue is the illegality of the police actions; another is the potential for the police conduct to tempt the accused into behaviour he would not otherwise have

engaged in. Australian courts however, have regularly stated that there is no defence of entrapment. 50

This approach was confirmed by the High Court in Ridgeway.51

D52 was convicted in the South Australian District Court of an offence under s. 233B(1)(c) Customs Act. He appealed unsuccessfully to the Full Court of the SC of SA and then appealed to H.C. He had allegedly imported, without reasonable excuse, 140.4 gm heroin. D had contacted L not knowing he was a police informer in Malaysia about importing heroin into Australia. D made two trips to Malaysia in breach of parole and with a borrowed passport where he met L. L however was acting under the instructions of a senior police man in the Royal Malaysian Police who was in contact with an Australian liaison officer. L and C bought heroin in Malaysia where C then took possession and flew to Singapore where he delivered the heroin to the custody of the Singapore police. C collected the heroin the next day and flew with it to Australia. Consequently, the heroin was in C’s physical possession on arrival at Adelaide airport. L and C had visas issued on the application of the Australian Federal Police on the basis that they were involved in a controlled delivery and the Malaysian police force co-operated in the delivery. They were met at airport by the AFP. C cleared customs by a prior arrangement between the AFP and Australian Customs pursuant to a ministerial agreement, which provided for custom exemptions in certain circumstances.

L and D met several times. D however was under surveillance from time of importation and was caught on delivery with the heroin. D argued on appeal that his conviction should be quashed as the heroin had been illegally imported with the active involvement of the Australian Federal Police so that it could be supplied to him and so form the basis of the charge against him. He argued that he had been entrapped and that entrapment was a defence, that the proceedings should have been stayed because his prosecution in the circumstances was an abuse of process and also that the evidence should have been excluded by the trial judge who had a discretion to exclude evidence that had been improperly or illegally obtained.53 The High Court confirmed that there was no defence of entrapment in Australian law but held, however, that the law recognises a discretion to exclude evidence of an offence committed as a result of unlawful conduct on the part of law enforcement officers on public policy grounds, …namely the public interest in maintaining the integrity of the courts and of ensuring the observance of the law and minimum standards of propriety by those entrusted with powers of law enforcement, outweighed the obvious public interest in the conviction and punishment of the [offender]54 This discretion to exclude evidence will extend to circumstances in which a criminal offence has been induced by improper, though not unlawful, conduct by authorities. Accordingly, evidence tending to show that the heroin supplied to Ridgeway had been or was reasonably suspected of having been illegally imported should be rejected on public policy grounds.

As a result of this decision, the Crimes Amendment (Controlled Operations) Act 1996 (Cth) was introduced [now contained in Part 1AB Crimes Act 1914 (Cth) ] to enable authorised controlled operations and to provide protection for law enforcement officers involved in the importation or exportation of narcotic goods.

26 26 As a result of this decision, the Crimes Amendment (Controlled Operations) Act 1996 (Cth) was introduced [now contained in Part 1AB Crimes Act 1914 (Cth) ] to

enable authorised controlled operations and to provide protection for law enforcement officers involved in the importation or exportation of narcotic goods. Controlled operations in Victoria S. 51 DPSCA previously provided immunity of for police acting under instructions when they would otherwise be complicit in an offence. This was repealed by the Crimes (Controlled Operations) Act 2004, which provides for the authorisation, conduct and monitoring of controlled operations. S. 6 Crimes (Controlled Operations) Act 2004 provides: A controlled operation is an operation that-

(a) is conducted or intended to be conducted, for the purpose of obtaining evidence that may lead to the prosecution of a person for an offence; and

(b) involves, or may involve, controlled conduct.

s. 7 provides:

In this Act, controlled conduct means conduct for which a person would, but for section 28 or 35, be criminally responsible.

S. 28 provides protection from criminal responsibility for controlled conduct during authorised operations while .s 32 provides protection from criminal responsibility for certain ancillary conduct such as aiding and abetting the commission of an offence or conspiracy to commit an offence.

Drug Courts Supplementary Reading The Victorian Drug Court Weatherburn, Don; Jones, Craig, Snowball,and Hua, Jiuzhao, ‘The NSW Drug Court : a re-evaluation of its effectiveness’ Contemporary issues in Crime and Justice Number 121 Sep 2008

Generally drug courts are set up specifically to deal with the sentencing and treatment of drug offenders. Generally, the focus of the courts is to deal with underlying drug and alcohol causes of criminal offending and this involves offenders being legally coerced into treatment programs, imposing specific program conditions, close judicial supervision, some form of punishment for non-compliance, for example imposing more restrictive conditions. In Victoria, breaches of conditions imposed by a Drug treatment Order may result in cancelation of the order and the offender serving his or her remaining term in custody. Australia’s first trial of the drug court system started in Parramatta, west of Sydney on February 8, 1999. The court was based on the American drug court system and Heroin addicts guilty of non-violent crimes such as minor drug dealing or theft were eligible to appear before the Drug Court.

Victoria: The first Victorian Drug Court opened in 2002 at Dandenong.

The Drug Court is part of the Magistrates' Court of Victoria. The Drug Court sentences and supervises the treatment of serious offenders with drug and alcohol dependence who have committed offences under the influence of drugs, or to support a drug or alcohol habit. Offenders who plead guilty and meet other eligibility criteria can be sentenced to Drug Treatment Orders for two years and any custodial sentence will be suspended.