The Australian Federal Police arrested a Canberra man at Melbourne Worldwide Airport final week, over allegations he tried to import 6 kilograms of heroin hid in his baggage.
The 67-year outdated man was man, 67, was getting back from a visit to Manila, Thailand.
Right here is a top level view of the offence of drug importation in Australia, with a selected give attention to the mens rea – also called the psychological or data requirement – that the prosecution should show past an affordable doubt earlier than an individual will be discovered responsible.
Offences associated to drug importation
The offence colloquially referred to as ‘drug importation’ is formally referred to as importing or exporting a border managed drug.
The offence applies to a broad vary of drugs which are listed within the Criminal Code Act 1995 (a bit of laws that applies throughout Australia) and embody numerous amphetamines together with methylamphetamines and MDMA (ecstacy), opioids equivalent to heroin and opium, stimulants equivalent to cocaine and plenty of dozen others.
The Criminal Code Act prescribes completely different penalties relying on the kind and weight of the substance, and the offences that apply are contained in sections 307.1 of the Act (industrial amount), 307.2 of the Act (marketable amount) and 307.3 of the Act (any amount).
To be discovered responsible of drug importation, the prosecution should show past an affordable doubt that an individual:
- Imported a border managed drug and
- Supposed to import the substance, and
- Knew, or was reckless as as to if, the substance was a border managed drug.
The Act additionally comprises a provision which implies an try to import will suffice.
The time period ‘import’ consists of bringing the substance into Australia, in addition to coping with the drug in reference to its importation.
The related portions for among the most often detected border managed drugs are:
Border Managed Drug |
Marketable Amount |
Industrial Amount |
| Hashish (dried leaf) | 25kg | 100kg |
| LSD | 0.002g | 2g |
| MDMA | 0.5g | 500g |
| Methamphetamine | 2g | 750g |
| Cocaine | 2g | 2kg |
| Heroin | 2g | 1.5kg |
The utmost penalties for importation offences are:
- 10 years imprisonment for importing lower than a marketable amount of a border managed drug below part 307.3 of the Code
- 25 years imprisonment for importing greater than a marketable amount of a border managed drug however lower than a industrial amount below part 307.2 of the Code
- Life imprisonment for importing a industrial amount of a border managed drug or extra below part 307.1 of the Code.
Intention to import a border managed drug
The psychological fault factor for importation offences below the Code is an intention to import a border managed drug.
The main authority in that regard is Excessive Court case of He Kaw Teh v The Queen (1985) 157 CLR 523, which made clear that as a way to set up the psychological factor of a drug importation offence, the prosecution should show past cheap doubt the particular person had an intention to import a border managed drug.
In He Kaw Teh, the accused was convicted for 2 offences associated to the possession and importation of two.78 kilograms of heroin.
The accused maintained at trial that he was unaware that heroin was in his possession, claiming it should have been planted in his baggage, and therefore he shouldn’t be liable.
The court at trial concluded that importation offences have been strict legal responsibility offences, and subsequently the prosecution didn’t must show an intention to import heroin. Nevertheless, onn enchantment to the Excessive Court, this choice was overturned, with the bulk discovering that in issues of great criminality, there’s a presumption that prosecutors should set up an intent to convey concerning the felony act.
In Kural v The Queen (1987) 162 CLR 502, the Excessive Court clarified that an intention to import a border managed drug can be confirmed if an accused had ample data that the factor they imported was a border managed drug. As the bulk famous (at [3]):
[I]t is important to indicate an intention on the a part of the accused to import a narcotic drug, that intent is established if the accused knew or was conscious that an article which he deliberately introduced into Australia comprised or contained narcotic drugs.
However that’s not to say that precise data or consciousness is an important factor within the responsible thoughts required for the fee of the offence.
It’s only to say that data or consciousness is related to the existence of the mandatory intent.
Perception, falling wanting precise data, that the article comprised or contained narcotic drugs would clearly maintain an inference of intention.
So additionally would proof that the forbidden act was carried out in circumstances the place it seems past cheap doubt that the accused was conscious of the probability, within the sense that there was a big or actual likelihood, that his conduct concerned that act and however endured in that conduct.
An intention to import a border managed drug may subsequently be confirmed by establishing precise data of importing a border managed drug, or being reckless as as to if or not a border managed drug was being imported.
Below part 5.4 of the Criminal Code Act, an individual is reckless to a circumstance if she or he was conscious there was substantial danger of it current and, having regard to the circumstances identified to her or him, it was unjustifiable to take that danger however the particular person proceeded with their act or omission regardless.
In easy phrases, recklessness could also be established if the accused believed that the factor being imported was ‘possible’ a border managed drug; Chi Thanh Cao v Regina (2006) 65 NSWLR, 172 A Crim R 1.
Jury instructions on data
Additional selections have clarified how a jury needs to be directed concerning the psychological fault factor for importation offences.
A jury mustn’t been directed when it comes to ‘wilful blindness’ – that’s, there needs to be no reference to the concept that an individual knew on some stage that what was being imported was a border managed drug and merely put it out of their thoughts: Zakaria (1992) 62 A Crim R 259. As a substitute, the jury needs to be direct that the prosecution should set up that the accused realised no less than that there was a ‘actual or vital likelihood’ that the packages he was importing have been prohibited drugs: Smith v Regina [2016] NSWCCA 93.
In Smith v The Queen; The Queen v Afford [2017] HCA 19, the Excessive Court steered that the next jury instructions be given in circumstances of importation of a border managed drug ([69]):
(1) The accused is charged with importing a border managed drug. Importing one thing into Australia means bringing that factor into Australia.
(2) What’s in dispute is whether or not the accused supposed to import the substance and whether or not she or he knew, or was reckless as as to if, the substance was a border managed drug.
(3) The accused can’t be convicted of importing a border managed drug except it’s established past cheap doubt that:
(i) she or he supposed to import a substance; and
(ii) she or he knew, or was reckless as as to if, the substance was a border managed drug.
(4) Every of these psychological components should be thought of individually.
(5) The accused can’t be considered having supposed to do one thing except it’s established past cheap doubt that she or he meant to do this factor.
(6) To determine whether or not the accused meant to convey the substance into Australia, it’s permissible to attract an inference as to the accused’s frame of mind on the time of bringing the substance into Australia.
(7) With a purpose to draw an inference of intent, it’s essential to be glad past cheap doubt of the details and circumstances from which the inference of intent is drawn and that the inference of intent is the one cheap inference open to be drawn from these details and circumstances.
(8) The place, as right here, the accused introduced into Australia a case, object or different factor (“the container”) which has a substance in it, and it’s open to deduce that the accused meant to convey the container into Australia, it’s open to deduce that the accused meant to convey the substance into Australia if, on the time of bringing the container into Australia:
(i) the accused knew that the substance was within the container; or
(ii) the accused knew or believed there was an actual or vital likelihood that the substance was within the container.
(9) It isn’t obligatory that the accused knew or had a perception as to the place, or in what vogue, or in what kind, the substance existed or was secreted within the container. It’s sufficient if the accused knew or believed there was an actual or vital likelihood that the substance was in some way, someplace, in some kind inside the container.
(10) It should be confused as soon as once more, nevertheless, that it’s not permissible to attract an inference that the accused meant to convey the substance into Australia except that’s the solely inference moderately open on the established details and circumstances of the case.
(11) Whether it is established past cheap doubt that the accused meant to convey the substance into Australia, it can then be essential to determine whether or not the accused knew, or was reckless as as to if, the substance was a border managed drug.
(12) The accused can’t be taken to have been reckless as as to if the substance was a border managed drug except it’s established past cheap doubt that:
(i) the accused was conscious of a considerable danger that the substance was a border managed drug; and
(ii) having regard to the circumstances which have been identified to the accused, it was unjustifiable for her or him to take the chance.
Information of the amount
Importantly, the psychological fault factor for importation offences doesn’t embody an intent to convey a few explicit amount of a drug. Within the Excessive Court choice of Cheng v The Queen, Gleeson CJ and Gummow and Hayne JJ word at [25] that:
An individual could also be knowingly involved within the importation of heroin with out realizing the amount of heroin concerned within the importation. In apply, many individuals who take part within the unlawful importation of heroin wouldn’t know the amount imported, and a few wouldn’t even know the approximate amount. Such info could also be hid from them, or it might merely be pointless for them to have it.
In Keung, Bow, Liu v The Queen [2008] NSWCCA 193, a gaggle of males who have been discovered responsible of importing a industrial amount of MDMA, appealed their convictions on the idea that the jury was not instructed that they have to not merely have had intention to import a MDMA, however a industrial amount of the drug. The NSW Court of Enchantment, citing Cheng, rejected that proof of meaning to vital a selected amount was required.
The doctrine of harmless company
If an individual doesn’t have an intention to import a border managed drug, they’re generally known as an ‘harmless agent’.
The doctrine of harmless company permits for felony legal responsibility for the offence to increase to individuals who didn’t commit the felony act itself. The doctrine states that the place one particular person (Particular person A) makes use of one other, harmless, particular person (Particular person B) to commit an offence, Particular person A will be charged and convicted for the actions of Particular person B.
Within the case of importation offences, this doctrine may apply the place people plant drugs in an harmless particular person’s baggage for the aim of importation.
Authorized defences for importation offences
Together with elevating the likelihood that the accused didn’t intend to import a border managed drug, quite a few formal authorized defences may be raised.
The commonest authorized defence is duress, which is the place you dedicated the offence since you have been threatened that you just, or somebody near you, can be significantly harmed.
Different obtainable, however much less widespread, defences embody self-defence, necessity and psychological sickness.
Going to court for a drug offence?
If you’re dealing with court over an allegation of importing a border managed drug, name Sydney Criminal lawyers anytime on (02) 9261 8881 to rearrange a free first session with a specialist felony defence lawyer who’s vastly skilled in representing clients for drug expenses and has a confirmed monitor file of manufacturing distinctive outcomes.
