SUBMISSION TO THE SENATE LEGAL AND CONSTITUTIONAL REFERENCES AND LEGISLATION COMMITTEE

Transcription

1 Committee Secretary Senate Legal and Constitutional Committee Department of the Senate Parliament House Canberra ACT 2600 Australia SUBMISSION TO THE SENATE LEGAL AND CONSTITUTIONAL REFERENCES AND LEGISLATION COMMITTEE Dear Sir / Madam, 6 July 2005 Please find attached a short submission to the Committee s current inquiry into the provisions of the Law and Justice Legislation Amendment (Serious Drug Offences And Other Measures) Bill Thank you for the opportunity to comment on this proposed legislation. Yours sincerely, Dr Gregor Urbas Lecturer in Law Faculty of Law Australian National University Canberra ACT 0200 Australia Gregor.Urbas@anu.edu.au

2 2 LAW AND JUSTICE LEGISLATION AMENDMENT (SERIOUS DRUG OFFENCES AND OTHER MEASURES) BILL 2005 This Bill represents a significant advance in the ongoing Criminal Code project of enacting or relocating most serious criminal offences under Commonwealth law in the Criminal Code, which forms the main part of the Criminal Code Act 1995 (Cth). In so doing, it clarifies the offence elements for certain serious drug importation and exportation offences currently found in the Customs Act 1901 (Cth), and additionally sets out a range of new trafficking and other drug offences which both expand the Commonwealth s role in prosecuting drug offences domestically and provide a model for the States and Territories to follow (Schedule 1). These latter offences are largely as developed in the Model Criminal Code Officers Committee (MCCOC) 1998 report Chapter 6: Serious Drug Offences, and this submission does not comment on these parts of the Bill in detail, except to say that the move towards greater consistency and uniformity in Australian drug law is very welcome. The current plethora of narcotics possession and trafficking offences, with varying penalty levels based on incomparable amounts of drugs ( pure weights in some jurisdictions and mixed weights in others) has long been in need of reform, and both the earlier MCCOC report and this Bill are commendable steps in that process. Turning to the importation / exportation offences, the central offence under current Commonwealth law is the well-known but problematic s233b of the Customs Act 1901 (Cth), which prohibits importation and possession of prohibited imports in the nature of narcotic goods. This long-standing provision has produced some of the most important High Court cases shaping criminal law in Australia, notably including the following decisions: He Kaw Teh v The Queen (1985) 157 CLR 523 Kingswell v The Queen (1985) 159 CLR 264 The Queen v Chin (1985) 157 CLR 671 Brown v The Queen (1986) 160 CLR 171 Bahri Kural v The Queen (1987) 162 CLR 502 Harriman v The Queen (1989) 167 CLR 590 Chidiac v The Queen (1991) 171 CLR 432 Leeth v Commonwealth (1992) 174 CLR 455 Kesavarajah v The Queen (1994) 181 CLR 230 Dietrich v The Queen (1992) 177 CLR 292 Ridgeway v The Queen (1995) 184 CLR 19 Nicholas v The Queen [1998] HCA 9 Wong v The Queen; Leung v The Queen [2001] HCA 64. While some of these cases concerned mainly evidentiary, constitutional or sentencing aspects of drug importation offences, a few were concerned directly with the proper interpretation of s233b. In particular, there has been considerably judicial uncertainty about the mens rea or (using the Code terminology) fault elements for the importation and possession offences under this provision. There have been several distinct phases in judicial interpretation of s233b:

3 3 (i) (ii) The pre-1985 period: Because s233b was enacted as part of the Customs Act 1901 (Cth) rather than a more obviously criminal statute such as the Crimes Act 1914 (Cth), it was initially understood as being a regulatory rather than properly criminal offence and hence, in the absence of any legislative indication of a fault element for the offence, proof of the physical act of importation or possession was taken to be sufficient, so long as the goods in question were in fact prohibited narcotic goods as defined in the Act and specified under Customs Regulations. Proof of knowledge of the nature of the goods was not required. This approach is typified by the decision of R v Bull (1974) 131 CLR 203, a case involving large quantities of cannabis carried from Bali on a boat intercepted off the Northern Territory coast. The High Court determined the appeal by considering in detail whether the drugs had in fact been imported rather than on the basis of any implicit fault element for the offence. The period: The High Court s decision in He Kaw Teh v The Queen (1985) 157 CLR 523 clarified the general proposition that there is a statutory presumption of a fault element in any criminal offence, particularly those involving serious penalties, which can be displaced in favour of strict or absolute liability only by clear legislative intent. As drug importation and possession under s233b carried a maximum life sentence, and taking into account a range of other factors available to courts interpreting statutory provisions, the presumption was held not to be displaced for these offences and proof of intention and / or knowledge was required. The conviction of the appellant in that case, which involved over 2.5 kilograms of heroin with an estimated street value of $5.5 million, was quashed and the case was sent back to the Victorian Supreme Court for redetermination (the outcome is not reported). Not long after He Kaw Teh was decided, the High Court held in Bahri Kural v The Queen (1987) 162 CLR 502 that knowledge of the precise nature of prohibited narcotics being imported or in possession was not required, but that awareness of the likelihood of the presence of some sort of narcotic drugs sufficed. That case concerned bags of heroin concealed in a Turkish samovar (a tea urn), where the appellant claimed not to have known what was in the samovar, despite suspecting that some sort of contraband was involved. The application for special leave to appeal in this case was refused. (iii) The post-1995 (Code) period: Part 2 of the Criminal Code Act 1995 (Cth) contains the Code s provisions on physical and fault elements for Commonwealth offences, but this did not apply to offences under the Customs Act until the coming into effect in mid-2001 of the Law and Justice Legislation Amendment (Application of Criminal Code) Act 2001 (Cth). From then on, the application of the Code to s233b should have been fairly straightforward. The default position (s5.6 of the Code) essentially follows a main strand of the He Kaw Teh analysis, so that intention is the required fault element for physical elements consisting of conduct while recklessness is the required fault element for circumstances or results. Applying this to s233b, however, still involved some uncertainty. In the recent case of R v Narongchai Saengsai-Or [2004] NSWCCA 108 (19 August 2004), for example, the New South Wales

4 4 Court of Criminal Appeal allowed an appeal against a conviction under s233b and ordered a new trial. The facts concerned the importation into Australia at Sydney Airport of two brandy bottles filled with nearly 1kg of pure heroin. The trial judge initially directed the jury in terms conforming to the High Court s decision in Kural, after which a re-direction was sought by the Crown in terms taking into account the application of the Criminal Code. The re-direction given was in terms drawing on the definition of reckless in s5.4 of the Code, using the expressions aware of a substantial risk and unjustifiable to take that risk. This was held on appeal to have been a misdirection, as there was inadequate mention of intention as the fault element for the physical act of importation, as opposed to recklessness in relation to the circumstance that the imported goods were prohibited narcotics. The offences under the Law and Justice Legislation Amendment (Serious Drug Offences And Other Measures) Bill 2005 that replace s233b of the Customs Act are found mainly in Division 307. For example, s307.1(1) deals with importing and exporting commercial quantities of border controlled drugs or border controlled plants. The physical elements are: (a) conduct by way of importing or exporting a substance; (b) the circumstance that the substance is a border controlled drug or border controlled plant; and (c) the circumstance that the quantity involved is a commercial quantity. No fault element is specified for (a), thus s5.6 of the Code applies and intention must be the fault element for the physical act of importing or exporting. The provision explicitly provides in subsections (2) and (3) that the fault element for circumstance (b) is recklessness while absolute liability applies to circumstance (c). The analysis of s307.1 is therefore similar to the proper analysis of the current s233b as concluded by the court in R v Narongchai Saengsai-Or. However, given the altogether more explicit drafting of the new provisions, in conformity with the methodology underlying the Criminal Code, there should now be little doubt as to the requisite fault elements for the offence and the appropriate directions to give to a jury. In particular, juries should be directed that the Crown is required to prove that a defendant was reckless as to whether a substance intentionally imported was a border controlled drug, and this means (under s5.4) that the defendant was aware of a substantial risk that the imported substance was a border controlled drug, and that, having regard to the circumstances known to the defendant at the time, it was unjustifiable to take that risk. It should be stressed that recklessness is still a subjective fault element (i.e. the defendant must have adverted to and been aware of the risk) rather than an objective one (e.g. expressed in terms of what the reasonable person in the defendant s position would have appreciated). This is in keeping with the severe penalties that attach to liability for importation of border controlled drugs noting that the maximum penalty for importation of a commercial quantity is (as for s233b) life imprisonment and / or 7,500 penalty units. No comment on the appropriateness of these penalties for the serious drug offences in the Bill is offered in this submission.

5 5 While there will always be grounds found on which to appeal some convictions for serious drugs offences, it is to be hoped that the days of successful appeals based on judicial uncertainty over the requisite physical and fault elements for the central offence of narcotics importation are in the past. While s233b and the caselaw it has generated have been important in shaping Australian criminal law, and of considerable interest to legal academics, the greater certainty provided by relocating this and other Commonwealth drug offences under the Criminal Code Act 1995 (Cth) is to be welcomed. As the Explanatory Memorandum notes (on p.1), the relocation of Commonwealth drugs offences into Chapter 9 of the Criminal Code substantially completes the implementation of the Model Code project. The result should be greater certainty in the legal community as to the substance of Commonwealth criminal laws, and a more settled and comprehensive model for the States and Territories to follow in reforming their own criminal laws. Hopefully, this greater knowledge of Commonwealth drug law will also be disseminated to the wider community. In conclusion, the Law And Justice Legislation Amendment (Serious Drug Offences And Other Measures) Bill 2005, at least as far as the main drug importation offences are concerned, brings a greater degree of clarity and predictability to this area of Commonwealth criminal law. I therefore support the proposed amendments in Schedule 1 of the Bill. Dr Gregor Urbas Faculty of Law Australian National University