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.

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.

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.

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.

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.

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