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Supreme Court of Victoria Decisions |
Last Updated: 19 April 2006
AT MELBOURNE
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JUDGE:
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WHERE HELD:
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Melbourne
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DATE OF HEARING:
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CASE MAY BE CITED AS:
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CRIMINAL LAW – Submission of no case – Offence contrary to s.233B(1)(d) Customs Act 1901 – Knowingly concerned in importation – Intercept of narcotics by foreign law enforcement officers – Whether there was a change in character of importation - Controlled operation – Part 1AB of Crimes Act (Cth) – No change in character of importation – Case to answer.
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APPEARANCES:
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Counsel
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Solicitors
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For the Crown
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Mr D.A. Parsons, SC
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Commonwealth Director of Public Prosecutions
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For the Accused
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Mr. C. Heliotis, QC with
Ms N. Gobbo |
McNamaras
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Submission of no case1 The Crown has closed its case. Counsel for the accused, Antonios Sajih Mokbel, have submitted that there is no case to answer and that the jury should be directed to bring in a verdict of not guilty.
2 The accused was charged with the following offence –
That between 13 October 2000 and 1 December 2000 at Melbourne contrary to paragraph 233B(1)(d) of the Customs Act 1901 the accused was knowingly concerned in the importation into Australia of narcotic goods consisting of not less than a traffickable quantity of cocaine which arrived on 6 November 2000.
3 In order to prove the charge, it is necessary for the Crown to prove beyond reasonable doubt the following elements of the offence –
(i) That an importation occurred;(ii) That the thing imported was cocaine;
(iii) That cocaine is a prohibited import;
(iv) That the quantity of cocaine imported was not less than a traffickable quantity;
(v) The accused was "knowingly concerned" in the importation of the prohibited import.
4 The Crown has adduced a substantial body of evidence. All told some 42 witnesses have been called and 49 exhibits have been tendered in evidence. One of the exhibits, PR17, comprises 157 intercepted telephone calls made between a co-accused called Mr U and others, including the accused.5 In order to understand the submission, it is necessary to briefly outline the Crown case against the accused. The Crown alleges that five men were involved in an arrangement to import a substantial quantity of cocaine into Australia from Mexico. Each of the persons involved had a part to play in the importation. The first man was Mr U, who played a central role in the organisation of the import. He travelled to Mexico twice in the latter part of the year 2000 and tentatively made arrangements to import a substantial quantity of cocaine into Australia. The second person was a man called Sonny Schmidt, who was known to Mr U and who was the brother of Pale Schmidt, a friend of Mr U’s. Sonny Schmidt had contacts in Mexico who were involved in selling drugs including cocaine. He travelled with Mr U to Mexico in August 2000 to make arrangements concerning the importation of drugs. Mr U travelled to Mexico on 29 September 2000 and remained there until approximately 10 October 2000. During this time he had discussions concerning the importation of a quantity of cocaine. He also gave evidence that he raised the question with suppliers in Mexico concerning the forwarding of a sample to Australia.
6 On 26 October 2000, Sonny Schmidt left Australia to go to Mexico with a substantial quantity of US money said to be in the order of US$37,000. Nothing was heard from him over a number of days, much to the annoyance of Mr U, and eventually he returned, arriving on the morning of Thursday 2 November 2000. Mr U picked him up at the airport. Sonny Schmidt indicated that arrangements had been made to send the cocaine to Australia.
7 The arrangement made was for a package or packages containing the cocaine to be sent by United Parcel Service (UPS) to Melbourne. It is the Crown case that the accused man was involved in the arrangements. He knew Mr U and had a friendly relationship with him from about mid 2000. Mr U gave evidence that he had met Mr Mokbel some 15 years previously and that he again met him in mid 2000. Thereafter they saw each other regularly and especially at a gymnasium where both trained. Essential to the success of the venture was the involvement of a man inside the UPS warehouse in Ascot Vale in this State, whose function it was to intercept the parcel or parcels containing the cocaine, remove the cocaine and, it would appear, also to take steps to have the parcel or parcels collected. It was part of the plan that the parcel or parcels would be addressed to fictitious addressees in Melbourne, and it would be open to the jury to infer from the evidence given that it was part and parcel of the function of the man inside the UPS organisation to make the parcels in effect, "disappear".
8 The man inside the UPS organisation was a Mr Ron Cassar, who at the relevant time held a managerial position with the UPS organisation at Ascot Vale. He was the second-most senior man at the office. It is the Crown case that Mr Cassar was recruited by the accused to perform the duties I have stated. Mr U, as I have stated, was friendly and in contact with Mr Mokbel during the months of October and November 2000 but he was, according to his version of events, unaware of the existence of Mr Cassar until the morning of 12 November 2000. Mr U gave evidence that the involvement of the accused was to provide finances to effect the importation, which included not only the cost of the cocaine but expenses associated with travel to and from Mexico; that the accused recruited Mr Cassar to take possession of the cocaine in the UPS warehouse; and that the accused was to arrange the sale and distribution of the cocaine. In respect of the latter, it would appear that the accused man had recruited a well-known drug dealer who turned out to be a registered police informer ("Mr X").
9 It is the Crown case that not all members of the arrangement were aware of the existence of the other participants. It is clear on the evidence that the participants Sonny and Pale Schmidt were unknown to the accused and the accused was unknown to them. On the other hand, Mr U was known to the Schmidt brothers and the accused man but not, according to his version, to Mr Cassar until Sunday 12 November 2000. It was on that Sunday that a meeting was held between the accused and Messrs U and Cassar, and according to Mr U, Mr Cassar was introduced to him at the meeting at 10.00 on that morning. It was put to Mr U in cross-examination by defence counsel that he had in fact recruited Mr Cassar, was well aware of his involvement and had become annoyed with him some days prior to 12 November 2000. Mr U emphatically denied the suggestions.
10 In my opinion there is evidence open to the jury to conclude that Mr Mokbel provided finances for the importation, that he recruited Mr Cassar and that he was to obtain the cocaine and arrange the sale and distribution of it through a registered informer named Mr X. They are, of course, all questions of fact for the jury.
11 It is necessary to trace the transport of the cocaine from Mexico to Australia.
12 On Friday 3 November 2000, in Mexico, a man named Victor packed a number of artefacts into two cardboard boxes. The boxes were addressed to fictitious addressees in Carlton and Footscray. He arranged for the parcels to be taken to an office of UPS in Mexico and an office of Pakmail, also in Mexico. As things turned out, both packages were in UPS control and each was given a tracking number.
13 Around about this time Mr U made contact with Victor and was told the two tracking numbers. Unbeknown to Mr U, his calls were being intercepted by the Federal Police. Federal Police got in contact with US authorities, both law enforcement and customs authorities. At about 2.00am on Saturday 4 November 2000 (Kentucky time) in the USA, instructions were given to a United States Customs officer to cause a search to be made for two UPS containers which had been flown from Mexico to the Louiseville, Kentucky, premises. These premises are known as the UPS hub and according to the evidence, parcels wherever they may be in the world in the UPS system go the hub in Louiseville, Kentucky and are then sorted into various countries and transported by UPS transport to the particular country. The two packages which had been sent by Victor from Mexico were located by US Customs officers. As things turned out, the two containers were taken from the export operations area to the import operations area at the hub. This area is reserved for goods entering the United States. The two packages were located and Customs Inspector Mullally caused the packages to be x-rayed and one of them drilled, which revealed the presence of cocaine. He re-packed the packages and seized them. The search for and inspection of the packages by Inspector Mullally was a purported lawful exercise of coercive power. Having reported his find, Inspector Mullally was told to remain in possession of the seized packages, which he did for two hours, before handing them over to Officer Sheard of the US Customs Service at approximately 5.40am on 4 November 2000. The latter was instructed by his superiors to take the packages to Los Angeles and from there to accompany them to Australia. Sheard, together with another officer, boarded a Qantas flight departing Los Angeles for Australia at approximately 10.00pm US west coast time. in the meantime, there were discussions between Australian Federal Police and an American Drug Enforcement agent in Canberra concerning the proposed transport of the packages to Australia and their importation. Agent Sheard and the other agent arrived in Australia on Monday morning, 6 November 2000, at approximately 8.00am. He and the other agent changed planes and landed in Melbourne at 10.30am, where they were met by members of the Federal Police who took them to the headquarters in Melbourne. At approximately 12.07pm on that Monday, 6 November 2000, the packages were handed over to the Australian Federal Police. Over the next few days, the Australian Federal Police unpacked the packages, inspected the contents, removed all the cocaine from the artefacts in both packages, photographed all items and analysed the white powder, which showed that it was cocaine. A quantity of approximately 20 grams of the white powder was placed in two plastic bags and one bag was inserted back into an artefact in each package. The packages were then re-packed in a way which would allay any suspicion that they had been opened. The packages were then delivered to the Qantas freight area at Melbourne Airport and eventually on Friday, 10 November 2000, an employee of UPS obtained possession of both the packages and transported them in a van to the UPS warehouse in Ascot Vale, arriving at approximately 3.50pm.
14 On Sunday, 12 November 2000, according to Mr U, Mr Mokbel invited him to a meeting and at approximately 10.00am Mr U met Mr Cassar for the first time. He recognised him as a man whom he had met some 15 years previously. That is the version given by Mr U, that he had not met Mr Cassar in relation to this criminal enterprise until introduced to him by the accused, whereas it would appear from something that was put to Mr U in cross-examination that it is the contention of the accused that Mr Cassar had been introduced into the illegal enterprise by Mr U and not the accused. At 11.20am Mr Cassar was observed visiting the UPS premises at Ascot Vale. This was an unusual visit even though there were other employees of UPS working at that time. That evening, Mr Cassar returned to and entered the UPS premises and stopped an in-house TV recording device. Unbeknown to him, he was under video surveillance by the Australian Federal Police. He was observed obtaining the boxes, opening them, removing items and re-sealing them. He sought to drive away and he was then arrested. Later that evening Mr U, Sonny Schmidt and Pale Schmidt were all arrested and were charged with being knowingly concerned in the importation of cocaine into Australia.
15 In August the following year the accused was arrested and charged with the offence of being knowingly concerned in the importation of the cocaine.
The Submission
16 The submission can be conveniently summarised in propositional form –
• It is necessary for the Crown to prove beyond reasonable doubt that an importation of cocaine into Australia occurred and that the accused man was knowingly concerned in that importation.
• The importation into Australia which occurred between 8.00-11.00am on Monday, 6 November 2000, was not an importation in which the accused was knowingly concerned but was in fact an importation by the law enforcement bodies of the United States of America and Australia.
• The importation was not an importation by Mr U and his fellow participants in the illegal enterprise but was in fact an importation by law enforcement agencies.
• That the doctrine known as innocent agency was not open to the Crown because the enforcement officers were acting solely for the purpose of incriminating the accused.
17 In a nutshell, it can be seen that the argument is that there is no evidence open to the jury to conclude that the importation by the law enforcement officers was an importation in which the accused was knowingly concerned. For present purposes the phrase "knowingly concerned" is proven if the accused has knowledge of a particular importation and is involved in, or has participated in some way in, the importation before or during the process of importation.18 Defence counsel relied upon the relatively recent High Court decision of Pinkstone v The Queen.[1] It will be necessary to closely consider that case.
Question of Fact or Law
19 Defence counsel cross-examined the United States witnesses who were involved in the location and identification of the packages, the ascertainment of the cocaine, and the transport of the packages to Australia, about their lawful authority and what they could do and what they could not do. In addition, there are provisions in the Crimes Act 1914 (Cth) which deal with the legality of a controlled operation for the import, inter alia, of drugs into Australia by law enforcement officers. Whether or not the importation of the cocaine which arrived in Australia on 6 November 2000 was one in which the accused was knowingly concerned, is a question of fact for the jury. Nevertheless, it is the contention of defence counsel that in accordance with the principles stated in Pinkstone v The Queen, the evidence admits only one conclusion and that is that the importation was not the importation of Mr U and the other participants in the arrangement, but was an importation by law enforcement officers. To employ a Latin maxim applicable to the civil law, a novus actus interveniens had occurred which broke the chain of the importation, and the importation which started out as Mr U’s importation on behalf of his co-arrangers, ceased to be so and thereafter was an importation by the law enforcement bodies.
Submission of No Case
20 The principles which govern the determination by a court as to whether there is any evidence to go to a jury at the end of the Crown case are well known. They were stated by the High Court in the oft quoted passage in May v O’Sullivan.[2] The Court stated:
"When, at the close of the case for the prosecution, a submission is made that there is ‘no case to answer’, the question to be decided is not whether on the evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands he could lawfully be convicted. This is really a question of law. Unless there is some special statutory provision on the subject, a ruling that there is a ‘case to answer’ has no effect whatever on the onus of proof which rests on the prosecution from beginning to end."
21 More recently the High Court considered the question in Doney v The Queen.[3] The Court said:[4]
"The question whether a trial judge may direct a jury to return a verdict of not guilty if, in his or her opinion, the guilty verdict would be unsafe or unsatisfactory is adverted to but left unanswered in Whitehorn v The Queen. There is no doubt that it is the trial judge’s duty to direct such a verdict if the evidence cannot sustain a guilty verdict or, as it is commonly said, if there is no evidence upon which a jury could convict. See for example Plomp; Reg v Prasard; Reg v R. It may sometimes happen, (though it should be but rarely) that evidence is withdrawn because it becomes apparent that, although technically admissible, it has no or insignificant probative value in comparison with its prejudicial effect, with the consequence that, if the remaining evidence will not support a guilty verdict, a verdict of not guilty must be directed."
22 Their Honours went on to say:[5]
"It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty."
23 In considering an application such as the present, it is appropriate for the Court to consider the evidence most favourable to the Crown. In other words, on the evidence called to date, is the evidence capable of supporting a verdict of guilty? If it is then the case must be left to the jury.The Act of Importation
24 The arrangement made by Mr U and his co-arrangers was for the package or packages containing the cocaine to be sent from Mexico, by air freight, utilising the UPS services, to Australia. Once the package or packages were received in Australia the cocaine was to be removed by Mr Cassar, the packages somehow or other removed from the UPS warehouse at Ascot Vale, and the cocaine sold. In fact what happened was that Mr U’s arrangements were put in place and the packages were placed in the UPS system destined for Australia, eventually did arrive in Australia and ended up in the UPS warehouse at Ascot Vale. There is no doubt on the evidence that there is a degree of vagueness and uncertainty about the arrangements that were made, with particular reference to the number of packages, how they were to be packed and the quantity of cocaine. It can be said as a factual matter that Mr U put in train the purchase of the cocaine and the transport arrangements which were followed, and that the cocaine eventually ended up in two packages in the UPS warehouse in accordance with the arrangement. On the other hand, when the packages arrived at the hub in Louiseville, Kentucky they ceased thereafter to be involved in the UPS system and thereafter were taken into custody by US Customs agents and transported in the possession of two agents to Sydney, and eventually Melbourne.
Authority of the Law Enforcement Bodies
25 In 1995, the High Court handed down its decision in Ridgeway v The Queen.[6] This case concerned the importation of heroin into Australia by a person who was a member of the Anti-Narcotics Branch of the Royal Malaysian Police Force, as part of an operation involving the controlled importation and delivery of heroin with the specific aim of apprehending a Mr Ridgeway in possession of heroin in Australia. Ridgeway had initiated and arranged the importation through a person who had previously become a registered informer to the Malaysian Police Force. That informer bought the heroin in Malaysia and flew with the Malaysian policeman to Australia with the heroin remaining physically in the policeman’s possession. The policeman was able to clear Customs because of special arrangements made between the Australian Federal Police and Australian Customs Service. Some days later the informer and the policeman met Ridgeway to hand over the heroin, whereupon Ridgeway was arrested. Ridgeway was charged with an offence under s.233B(1)(c) of the Customs Act 1901 (Cth) in relation to the possession without reasonable excuse of a prohibited import, namely heroin. He was convicted. No member of the Australian Police force was charged with an offence in relation to the importation. It was contended that the trial judge ought to have exercised a discretion to exclude evidence of an illegal importation on the grounds of public policy, alternatively that Ridgeway had a substantive defence of entrapment, and thirdly, that the prosecution was an abuse of process because of the illegal importation.
26 In that case it was necessary for the Crown to prove as an element in the offence that there had been an importation of heroin which was prohibited. It was also necessary to prove that the accused was in possession of that prohibited import. Five members of the High Court held that the importation of the heroin by the law enforcement officers was illegal and hence the evidence of the illegal importation should have been excluded on the grounds of public policy. It followed that the prosecution would have been unable to prove the necessary element of the offence. What the law enforcement officers had done was a controlled importation with the aim of apprehending the accused in possession.
27 As a result of the decision in Ridgeway, a substantial amendment was made to the Crimes Act 1914. By Act No. 28 of 1996, Part 1AB was enacted. Part 1AB is described as:
"Controlled operations for obtaining evidence about Commonwealth offences".
28 As appears from s.15G(1), one of the objects of the part is to exempt from criminal liability law enforcement officers who in the course of a controlled operation were authorised, as provided under that part, to commit an offence. Section 15H defines what is a "controlled operation". In summary, it is an operation that involves the participation of the officers and is carried out for the purposes of obtaining evidence that may lead to the prosecution of a person for a serious criminal offence and which may involve the law enforcement officer or other person in acts or omissions which would apart from the provisions of the part constitute a Commonwealth offence. In other words, equating that provision to the present matter, the importing into Australia of a prohibited substance by the US agents would be a controlled operation. Section 15HB defines what is a serious Commonwealth offence. Section 15I deals with the exemption from criminal liability by the law enforcement officer. Section 15I(3) provides:
"(3) Subject to sub-section (5), a member of the police force of the state who, in the course of duty, for the purposes of a controlled operation, engages in conduct that, apart from this sub-section, would constitute a narcotic goods offence is not liable for that offence if, at the time when he or she engages in that conduct, there is in force a certificate given under s.15M that authorises a controlled operation."
29 Section 15A(7) makes it clear that members of a police force or other law enforcement agents of a foreign country are protected by the provision.30 There is evidence before the Court that a certificate authorising a controlled operation was issued. I refer to ss.15J and K.
31 It is clear that Part 1B was passed to overcome the effect of the Ridgeway decision.
32 Defence counsel have relied upon the decision of Pinkstone v The Queen.[7] In that case an accused person at Sydney Airport consigned a box containing amphetamine for transport to Perth as air cargo for delivery to a named person. At Perth, undercover police officers intercepted the box and handed it to the intended recipient, Mr Yanko. The accused was charged with an offence of supplying a prohibited drug at a Commonwealth place contrary to a Western Australian Act which applied to that Commonwealth place. He was convicted. On appeal, the accused contended that by reason of the intervention of the police officers he had not committed an act of supply within the meaning of the Act.
33 It is important at the outset to emphasise that in Pinkstone, it was an element for the Crown to prove that the accused had supplied the drug. That was an essential element to establish. It was held by the majority that by reason of the inclusive definition of supply in the Act, the person was liable for sending a prohibited drug to another person once he had knowingly placed the drug in the mail delivery system with the intention that it be received by the other person at a particular place. This did not depend upon whether the drug actually reached the intended recipient. That is the ratio decidendi of the decision. However, all the judges made reference to the principle of innocent agency. McHugh and Gummow JJ said:[8]
"The doctrine of ‘innocent agency’ is a means by which the common law attaches criminal liability to a person who does not physically undertake some or all of the elements of the offence with which he is charged. The doctrine was developed, as a ‘rule of necessity’. This was to solve the logical difficulty that the liability of a secondary party was ordinarily dependent upon that of the principal in the first degree. In circumstances where the act of ‘an offender’ was prohibited, but liability did not arise due to a lack of mens rea or some other excuse, application of strict logic would have led to the result that a person who procured that act escaped liability. The Law Commission for England and Wales has usefully described the doctrine as follows:‘A person acts through an innocent agent when he intentionally causes the external elements of the offence to be committed by (or partly by) a person who is himself innocent of the offence charged by reason of the lack of a required fault element, or lack of capacity’."
34 At p.469 McHugh and Gummow JJ stated the principle in the context where law enforcement officers do something purportedly on behalf of an accused person, but whose real aim is to secure an accused’s conviction. Their Honours said:
"That observation was said to be declaratory of the existing law. The act of Officer Kanawati in handing over the prohibited drug to Mr Yanko could not be imputed to the appellant, notwithstanding that the appellant intended Mr Yanko to receive the drug. However given the proper construction of s.6(1)(c) of the Drugs Act in conjunction with s.12 of the Criminal Code as outlined earlier in these reasons, and the role of Ansett as the innocent instrument of the appellant, that other circumstance does not affect the outcome to the favour of the appellant."
35 There is no doubt that what their Honours said concerning the principle and its effect is well established law. However, whether or not the intervention by a law enforcement officer in the circumstances means that the act is not the act of the accused, is a factual question and there may be some room for disagreement. Indeed, Gleeson CJ and Heyden J, in paragraphs 10 and 11 of their judgment, made that point. But they observed in paragraph 11, after stating what the submission was and the effect of the principle of innocent agency, that:
"There is, however, more to it than that, both factually and legally."
36 It is clear from the balance of their judgment that they would not necessarily have concluded as a matter of fact that what the police did in that case did interrupt the supply by the accused.37 Kirby J, who dissented in the result, also discussed the doctrine of innocent agency in paragraphs 102 to 106.
38 In my opinion, there is no doubt about the principle. Where there is an element of an offence that must be proven and the element requires the Crown to prove some act on behalf of the accused person, then the mere fact that he does not physically perform that act himself does not mean that he is not liable, if he has used an innocent instrumentality to effect that act. Speaking for myself, on the facts in Pinkstone I prefer the approach of Gleeson CJ and Heyden J to the approach of the other three judges, who seemed to be of the opinion that on the facts in that case the act of the undercover agent stepping in the shoes of an Ansett employee broke the chain of causation so that it was no longer the act of the accused. In my respectful opinion, that is an unreal conclusion based on the facts of the case.
39 However, in my opinion, the Pinkstone case does not support the submission by defence counsel that the accused does not have a case to answer. I say this because it is not necessary for the Crown to rely upon the doctrine of innocent instrumentality. Returning to the elements of the offence, the first element is that the Crown must prove beyond reasonable doubt that there has been an importation of a narcotic drug. It is essential for the Crown to prove the act of importation of a prohibited import. See R v Tannous.[9]
40 But the element of proof does not require proof that the accused imported the prohibited import. The doctrine of innocent instrumentality has no part to play. The Crown merely has to prove the importation of a prohibited import. It is not part of the Crown’s proof to establish that the accused performed the act of importation. The gravamen of the offence is that the accused was knowingly concerned in that importation. It does not matter whether he had any knowledge of the actual arrangements for the importation. He does have to have knowledge of the proposed importation of the drug. But he does not need to know any more than that. As things turned out, there is evidence open to the jury to infer that the accused did know that the goods were to be sent from Mexico using the UPS transport service. There is also evidence that the accused knew that the drugs were to be packed in a parcel or parcels and were to be intercepted by Mr Cassar in the UPS warehouse in Ascot Vale. However, there is no evidence as to whether he did or did not know just precisely what was involved in the movement of the packages through the UPS system. But in my opinion, that is irrelevant. The Crown does not have to prove that he was the person involved or responsible for the acts of importation. The Crown has to prove that he was knowingly concerned in the particular import.
41 It follows that the doctrine of innocent instrumentality has no relevance to the present case. Ridgeway has been overcome by the provisions of the Crimes Act, and there is evidence of the necessary steps being taken to authorise the controlled operation.
42 There is ample evidence available to the jury to infer that the accused was knowingly concerned in the prohibited import. The Crown does not have to prove that he had any knowledge of the arrangements for the transport. There is evidence that he knew of three matters, namely, the purchase of the cocaine in Mexico City, the use of the UPS system to transport the parcels to Australia, and the interception of the parcels in the UPS warehouse.
43 In my opinion, this submission of no case must fail and the accused does have a case to answer.
[1] [2004] HCA 23; (2004) 219 CLR 444.[2] [1955] HCA 38; (1955) 92 CLR 654 at 658.
[3] [1990] HCA 51; (1990) 171 CLR 207.
[4] At p.212.
[5] At p.215.
[6] [1994] HCA 33; (1995) 184 CLR 19.
[7] [2004] HCA 23; (2004) 219 CLR 444.
[8] at p.465.
[9] (1987) 10 NSWLR 308.
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