Saad v R [1987] HCA 14; (1987) 70 ALR 667; (1987) 61 ALJR 243; (1987) 29 A Crim R 20 (7 May 1987)

HIGH COURT OF AUSTRALIA

ALAN SAAD v. THE QUEEN
F.C. 87/016

High Court of Australia
Mason C.J.(1), Deane(1), Dawson(1), Toohey(2) and Gaudron(2) JJ.

CATCHWORDS

HEARING

Canberra
7:5:1987
Solicitors for the Applicant: Zolis
Solicitors for the Respondent: Director of Public Prosecutions

DECISION

MASON C.J., DEANE AND DAWSON JJ.: The appellant's trial, on which he was convicted of being in possession of prohibited imports (some 85.9 grams of heroin) contrary to s.233B(1)(ca) of the Customs Act 1901 (Cth), took place in the County Court of Victoria in late April and early May 1985. Understandably, in the light of then current authority (see e.g. Reg. v. Ditroia and Tucci (1981) VR 247), the learned trial judge failed to direct the jury in accordance with what was subsequently decided by this Court in He Kaw Teh v. The Queen [1985] HCA 43; (1985) 157 CLR 523, namely, that on a prosecution of such an offence, the prosecution bears the onus of proving that the accused acted with mens rea, that is to say, with a guilty mind. As the judgment of Hampel J. (with whom Murray and McGarvie JJ. agreed) in the Victorian Court of Criminal Appeal and the joint judgment of Toohey and Gaudron JJ. in this Court demonstrate however, it is quite fanciful, in the context of the trial and the unmistakable inferences to be drawn from the jury's verdict of guilty, to suggest that there has been a possible miscarriage of justice in the sense that that failure of the learned trial judge deprived the applicant of any real chance of acquittal which he otherwise might have possessed. The reason for that is that the issue between the applicant and the prosecution on the trial was whether the applicant was in possession of the drug. If, contrary to the whole of the applicant's case, he was found to have been in possession of the drug, there was simply no room for any suggestion that he was ignorant of either its existence or its nature. In these circumstances, the decision of the Victorian Court of Criminal Appeal that the case was one in which the proviso of s.568(1) of the Crimes Act 1958 (Vict.) should be applied, must be upheld.

2. In the course of his judgment in the Court of Criminal Appeal, Hampel J. pointed to the divergence between the majority judgments in He Kaw Teh and the need to provide some guidance to trial judges about the approach to be adopted in formulating the directions to be given to juries in the light of the judgments in that case. In our judgment in Kural v. The Queen (unreported May 1987), we sought to give such guidance in a case where the alleged offence was the importing of a prohibited import. We emphasized then, and we do so again, that our comments were not designed as a direction or instruction to be read by trial judges to juries. Our comments are intended to give guidance to trial judges in order to enable them to formulate such directions as may be appropriate to the facts and circumstances of particular cases. In the following paragraph of this judgment, we apply what was said in Kural to an offence such as that involved in the present case.

3. In a case such as the present where it is necessary to show an intention on the part of an accused to have in his possession a narcotic drug, that intent is established if the accused knew or was aware that an article which was intentionally in his possession comprised or contained a narcotic drug. That is not to say that actual knowledge or awareness is an essential element of 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 article comprised or contained a narcotic drug would obviously sustain an inference of intention. So also would proof of the possession of the forbidden drug 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 act and he nevertheless persisted in that conduct. As a practical matter, the inference of mens rea or a guilty mind will ordinarily be irresistible in cases involving the possession of narcotic drugs if it is proved beyond reasonable doubt that the accused was actually in possession of the drug and that he was aware, at the time of the alleged commission of the offence, of the likelihood of the existence of the substance in question in his possession and of the likelihood that it was a narcotic drug.

4. As we have indicated, the previous paragraph involves no more than an application of what we said in our judgment in Kural. As in Kural, we would emphasize that the existence of the requisite intention is a question of fact and that in most cases the outcome will depend on an inference to be drawn from the facts established by the prosecution and that, in this as in other areas of the law, it is important not to succumb to the temptation of transforming matters of fact into propositions of law.

5. Special leave to appeal should be refused.

TOOHEY AND GAUDRON JJ.: This is an application for special leave to appeal from a judgment of the Court of Criminal Appeal of Victoria, dismissing an application for leave to appeal from the applicant's conviction by the County Court of Victoria on 2 May 1985. An application for special leave to appeal against the sentence imposed on the applicant was abandoned.

2. The applicant was convicted on one count of being in possession of prohibited imports which were reasonably suspected of having been imported into Australia, contrary to s.233B(1)(ca) of the Customs Act 1901 (Cth). The prohibited imports were narcotic goods consisting of 85.9 grams of heroin.

3. The grounds upon which special leave is sought are essentially twofold:

1. That the trial judge erred in failing to direct the jury
that the Crown must prove that the applicant knew he was
in possession of a parcel which to his knowledge
contained narcotic goods.

that, although the directions of the trial judge were in
error, the proviso to s.568(1) of the Crimes Act 1958
(Vict.) should be applied and the conviction not
quashed.

4. The direction complained of is substantially to be found in the following words:

" In other words, proof to your satisfaction beyond
reasonable doubt that the accused had heroin in
his possession is sufficient to establish that he
had in his possession a prohibited import to
which s.233B of the said Act ... applies.
However, there are two matters that the Crown
does not have to establish ...

Secondly, the Crown does not have to show that
the accused knew that it was heroin that was in
the parcel, although in this case it asserts that
the accused obviously did know that. What the
Crown has to show is that the substance in the
parcel turned out to be heroin regardless of
whether the accused knew that it was heroin or
not that was in the parcel."

5. The trial judge's charge to the jury was delivered on 2 May 1985. On 11 July 1985 this Court handed down judgment in He Kaw Teh v. The Queen [1985] HCA 43; (1985) 157 CLR 523. The Court held that in a proceeding under s.233B(1)(c) of the Customs Act the prosecution bears the onus of proving that the accused knew of the existence and nature of the goods in his possession or over which he had exclusive physical control. In the light of the reasoning in He Kaw Teh, the direction that the Crown did not have to prove that the accused knew that what was in his possession was a prohibited import was clearly in error. Counsel for the Crown did not suggest otherwise and the hearing turned on whether the proviso to s.568(1) of the Crimes Act was properly applied.

6. If the proviso was properly applied then it cannot be said, in terms of s.35A(b) of the Judiciary Act 1903 (Cth), that the interests of the administration of justice in the particular case require the grant of special leave. No other provision of the section is applicable in the present case, even though it may be said that He Kaw Teh reflects different approaches to what may constitute the knowledge necessary to sustain a conviction for an offence of possession of prohibited imports under s.233B(1)(ca) of the Customs Act. This is not an appropriate case to explore those differences, for the question of knowledge was not in issue at the trial.

7. The Court of Criminal Appeal applied the proviso to s.568(1) because, in its view, "The evidence upon which the prosecution relied was overwhelming". The Crown case was that Nasr Abdullatif who lived in a flat in Carlton, had custody of a large quantity of heroin. On 7 March 1983 the applicant picked up about half of the heroin held at the flat. At the applicant's direction, he and Abdullatif went to a car where a bag containing bread and the heroin, carried down by Abdullatif, was handed to the applicant. These events were observed by Federal Police officers who followed the car and a chase ensued. During the chase the bag was thrown out of the passenger side window of the car where the applicant was seated and was picked up by the police. When apprehended the applicant denied that he knew Abdullatif, that he went to the flat, that he picked up the bag, that he had it in the car and that he threw the bag out during the chase. The Crown relied on the evidence of the police officers and on the evidence of Abdullatif that these denials were false. Abdullatif had been sentenced for possession of both the heroin picked up by the applicant and other heroin found in the flat. There was evidence that the applicant had attempted to set up a false alibi by seeking to explain his presence in the flats by a visit to a flat which was not that of Abdullatif.

8. Because of the way in which the Crown case was presented at trial and the applicant's defence to that case, the question of his knowledge of the contents of the bag was never directly canvassed. His unawareness that the bag contained heroin did not arise as a reasonable possibility. This is not to suggest in any way that there was an onus on the applicant to demonstrate his unawareness of the contents of the bag. It is simply to say that in all the circumstances no miscarriage of justice occurred. We agree with the conclusion expressed by Hampel J. in the Court of Criminal Appeal, with whom Murray and McGarvie JJ. concurred:

" In the circumstances, I am not able to
postulate any reasonable basis on which it could
be said that the jury may have returned a
different verdict had they been told that the
prosecution has to establish beyond reasonable
doubt that the applicant knew that what was in
the bag was a narcotic substance."

9. For these reasons the application for special leave should be refused.

ORDER

Application for special leave to appeal refused.