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.

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.

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.

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 ...

(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.

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