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The Forum > Article Comments > Corby's defence would not hold water here either > Comments

Corby's defence would not hold water here either : Comments

By Geoffrey Hills, published 2/6/2005

Geoffrey Hills argues Schapelle Corby's defence would not be enough to prevent a conviction in Australia.

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As far as the written law is concerned, the situation seems straightforward enough.

If Corby had arrived here, presented her boogie bag, opened it without protest, and expressed surprise when the drugs were found, she could not have been convicted in the absence other evidence that she was aware of the drugs. The law regarding the import of narcotics requires that there be an intent to import, and that intent cannot be present if a person does not know the stuff is there.

The authorities here would need other evidence. Perhaps her finger prints on the drug container, or evidence that the bag's weight hadn't changed from when she checked in.

There is also a defence of honest and reasonable belief as to facts. If someone is found with cocaine in their posession, but can present a credible basis for their belief that it was sugar, then they cannot be convicted.

Things gets a bit murky once a person's actual behaviour on the day comes into play. Any deviation from a customs officer's expectations of behaviour might be seen as evidence of knowledge, and hence intent. In practice there will be lots of deviations, due to language problems, cultural differences. Indeed, an officer in this situation would probably find my behaviour very odd, with my hawk-like scrutiny of HIS conduct for any departure from the law.

Sylvia Else.
Posted by Sylvia Else, Thursday, 2 June 2005 11:17:42 AM
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If someone comes to customs to enter a country and drugs in their 'possession' are found. What is the problem? Take the drugs away and forget about it. Of course people need to be punsihed, so I would adopt the American law that the author talks about, a very good one.
Posted by Penekiko, Thursday, 2 June 2005 11:52:18 AM
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Then, Sylvia, you are basing your "facts" on the assumption that the Indionesian customs officers (all four of them) were lying.

If in a court of law here, and the customs officers at the Melbourne airport had given the same testimony as the officers in Indionesia did, then that would certainly give enough evidence to cause strong suspicion.

Furthermore, you are also assuming that Corby's fingerprints would not have been found on the marijuana, which of course is also just supposition since it wasn't tested. Perhaps they were not there, but then, perhaps they were. And then there is the other possibility that she knew the drugs were there but never actually handled them herself. Or she wore gloves when placing the marijuana there. Any number of scenerios.

You are basing your argument on this article solely on your supposition that she is innocent. What the writer, I think, was trying to say was, given the same facts presented to court, she would have likely been treated the same by an Australian court, and that the unfair drug laws and suspicion procedures exist here as exist in Indionesia.
Posted by Buttonbright, Thursday, 2 June 2005 11:52:18 AM
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Buttonbright,

I was making no assumptions about Corby's case. For the purpose of discussion I was simply positing a particular set of facts.

Geoffrey Hills in his article said "The second issue is whether it is fair to create criminal liability for offences based on possession, without requiring proof of subjective knowledge."

I don't think even Indonesia's law goes that far in theory, but their threshold of proof for the knowledge appears rather low.

Australia's corresponding law very clearly does require knowledge of possession, in that it requires intent to possess. If Geoffrey is claiming that Australia's law is defficient in this respect, then I think he is wrong.

However, Australian courts in practice may also be too ready to find intent proven, even though the test here is proof beyond reasonable doubt.

Sylvia.
Posted by Sylvia Else, Thursday, 2 June 2005 2:18:39 PM
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Sylvie -

If you read my article carefully, you will see that it asks what would have happened if Corby had touched down at Melbourne airport (remember, she took off from Sydney airport). So there is no importation in my scenario.

You are talking about the elements required for importation under s 233B of the Customs Act.

But my article dicsusses a charge under s 9 of the Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990.

The 1990 Act came into force five years after He Kaw Teh was handed down in the High Court (if that is what you're hinting at) and expressly creates an offence of absolute liability. The knowledge element is codified in s 8A.

Mistake of fact is not available as a defence to a s 9 charge. In any case, the gist of mistake [which is what I assume you are referring to when you mention "honest and reasonable belief"] is a positive act constituting a mistake, rather than mere ignorance of circumstances. Someone in Corby's situation would be hard pressed to make it out.

Finally, nowhere in my article did I discuss differences in the standard of proof or evidentiary issues. You can see that I deliberately put those issues to one side.

I hope this clarifies the law for you.
Posted by Geoffrey Hills, Thursday, 2 June 2005 3:11:02 PM
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Regardless of guilt, the media have ignited the Australian population through sensationalist journalism. There whole coverage of the Corby case has been to gain a few extra ratings points. What has happened to unemotive, impartial, facts-driven journalism. Frankly, I am starting to trust journalists as much as politicians. We need to re-establish faith in this incredibly influential industry. I propose boycotting Channel 9 for their appallingly irresponsible, emotional reporting. I believe they must be made accountable for their coverage, which has created an environment where an individual in Australia believes in undertaking a terrorist act against the Indonesian embassy. We have lost the moral high ground, and have undermined any good faith we developed in Asia since the Tsunami. If you agree with bringing back accountability and responsibility to the Australian journalistic profession, please visit http://www.petitionspot.com/petitions/Channel9Boycott
Posted by Ben D, Thursday, 2 June 2005 3:56:54 PM
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Geoffrey

I did misconstrue the intent of your article, in that I assumed you meant that Corby would have arrived in Melbourne from overseas.

The offence created by s9 of the CRIMES (TRAFFIC IN NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES) ACT 1990, is not an offence of absolute liability. Absolute liability only applies to certain physical elements of the offence. Of particular note is that it applies to the physical element that the possession is in Australia.

So it would not be a defence to argue that one believed that one was not in Australia - a defence that would be available if strict liability applied to that element.

However, absolute liability does not, in my view, apply to the possession element itself, and the fault element is therefore intent by virtue s5.6 of the Criminal Code Act.

The prosecution still have to prove intent to possess, beyond reasonable doubt.

Section 8A is a bit odd, but it is not altering the basic rules of inference. I cannot see, for example, that it would permit intent to possess to be inferred from the mere fact that the drugs were present.

Sylvia.
Posted by Sylvia Else, Friday, 3 June 2005 1:58:15 PM
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Geoffrey, Sylvia, as you both appear to display a strong knowledge in this area are either of you able to advise on the use (or lack thereof) of Polygraphs and related technology in the law.

I often hear claims that the reliability is very high and that a skilled operator can generally identify the mechanisms used to defeat them.

If so why are they not used? Even if not infallable the testimony should be more reliable than that given under oath (or the non oath version).

I'd love to see key players in events such as Shapelle's trial give testimony with some indication of the reliability of their testimony.
Posted by R0bert, Friday, 3 June 2005 3:43:40 PM
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Robert,

It's natural for polygraph promoters to claim that they can detect methods used to defeat them. That's the business they're in.

Even if tests are done, it's hard to be sure that the results can properly be extrapolated to situations where the subject risks severe punishment.

In the case of other witnesses, I doubt there's that much point. For example, I wouldn't want to suggest that the customs officials in the Corby trial were lying. But they could easily be mistaken about what they saw and the subconscious inferences they made. Even if a polygraph worked as advertised, all it would show is that the witness believed what they were saying, not that they were necessarily correct.

Sylvia.
Posted by Sylvia Else, Friday, 3 June 2005 7:55:50 PM
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Hi Sylvia,

You've raised an interesting issue. I should point out - for the benefit of anyone else reading this - that our disagreement is over an area of law governed by recently enacted statutes, surrounding which there is some uncertainty.

(1) Background - The piece I wrote was originally published in the opinion pages of the Canberra Times. That imposes certain word limits. My understanding is that, in practice, a Corby in the scenario I mentioned would more likely be charged under the legislation of whichever state in which she landed. Obviously, the fault elements in drug offences vary considerably from state to state. Space restrictions made it necessary for me to pick a jurisdiction and I chose to deal with the Commonwealth.

The Commonwealth "section 9 offence" [under the 1990 Act] is a little odd - it was enacted under the external affairs power [Constitution, s 51(xxix)] in implementation of an international treaty obligation and obviously overlaps with various state offences. In practice, it seems that people have continued to be charged under state legislation. Last year, the Supreme Court of Western Australia ruled that nothing in the 1990 Act operates to preclude a charge and conviction under relevant state legislation at airports; the Commonwealth Places (Application of Laws) Act 1970 still applies. Therefore, prosecutors have a choice. The citation is Cameron v R (2004) 142 A Crim R 424 [it dealt with a s 10 offence].

(2) Lack of case law - This explains the absence of case law. I can find no case, reported or unreported, on s 9 of the 1990 Act [or s 8A for that matter]. If you know of any, please let me know, by all means.

(3) Sub-section (2) of section 9 of the 1990 Act was inserted by the Law and Justice Legislation Amendment (Application of Criminal Code) Act 2001. Until that time, the 1990 Act operated as I have previously described.

Continued next post ...
Posted by Geoffrey Hills, Saturday, 4 June 2005 7:40:46 AM
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(4) Let me specify what I believe to be the elements of a s 9 offence:

(a) Possession;

(b) in Australia; of

(c) a Table I or II substance;

(d) knowing that the substance … is being used or is to be used in or for a dealing in drugs that

(e) is referred to in para 6(1)(a),(b) or(c); and

(f) constitutes an offence against a Commonwealth, State, Territory or foreign law.

Possession is a physical element. The fault element is knowledge that the substance is being used or is to be used in or for a [specified] "dealing in drugs".

Section8A(1) further provides that where, as in the case of a s9 offence, knowledge is an element of the offence, that knowledge may be inferred from objective factual circumstances.

Section5.3 of the Criminal Code Act 1995 defines knowledge. However, s 8A specifies how knowledge may be proved in the specific circumstances of offences created under the 1990 Act.

Generalia specialibus non derogant assists us in construction; furthermore, s5.1(2) of the Code also suggests that where more specific provisions for the fault element are made in an Act, they effectively override the Code.

(5)"Possession" - possession is a physical, not a fault element. But that does not mean the offence does not have a fault element; therefore, s5.6 of the Criminal Code does not apply.

For possession, we have to go to the common law. He Kaw Teh stands for the proposition that in s233B, common law imports a fault element. The question is whether, mutatis mutandis, that applies to a s9 offence.

However, my point is that the Bench in He Kaw Teh disagreed as to what that fault element was. Basically, Brennan J lends support to your argument; Dawson J lends support to mine. Gibbs CJ held that D must be aware that the thing was in her physical control but left open whether she must know the quality of the thing.

Conclusion: I read this all as a battle between statute and the common law – and that was the point of my article.
Posted by Geoffrey Hills, Saturday, 4 June 2005 8:22:33 AM
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Even in the ideal world a court has a difficult time to first ascertain facts before determining matters of law applicable, in this matter the video pictures of the event happening at the airport would have been immeasurable help to them to assess mens rea and actus rea, And us without this and being main fact on which to rely upon and anchor for further discussion is a pointless debate.

A court activated, the role of the justice in an adversarial hearing is established to start from "every document is a forgery; every witness is a liar; every jury (if present) is blind" as ground zero before determining truth value and ascertaining facts.

So the only worthwhile opinion at this stage where above is lacking is, When we land and after passport control of any country including here is to look for the section that says anything to declare? well... at that place open and search your bags inside out for anything that is not yours, it may be the best 5 minutes youve ever spent.

Sam
Posted by Sam said, Sunday, 5 June 2005 8:34:14 AM
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Yes, Sam, there are evidentiary issues. That's why para. 2 of my original article says:

"There are two distinct issues to consider in the Schapelle Corby case. The first is evidence: the adequacy of the evidence presented and the rigorousness of the Indonesian system for gathering and controlling its admissibility. The second issue is whether it is fair to create criminal liability for offences based on possession, without requiring proof of subjective knowledge.

This second element is more interesting because it points not only to the injustice of the Indonesian law but also to an intractable problem in Anglo-Australian criminal law."

This is far from a "pointless debate". What you have done is to misconstrue my original article. You have construed it as a piece about Schapelle Corby. In fact, it is a piece about law reform in Australia, which advocates a liberalization of the knowledge element (we don't use mens rea these days) required to convict on charges of possession and trafficking.

If this was a "pointless debate", then essentially, all legal philosophy is pointless. You should inform the academic I quote, Professor Andrew Ashworth of this; I'm sure he'd be keen to hear that his career has been a "pointless" waste of time:

http://denning.law.ox.ac.uk/members/profile.phtml?lecturer_code=ashwortha
Posted by Geoffrey Hills, Monday, 4 July 2005 4:44:21 PM
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