Tabe v The Queen [2004] HCATrans 447 (12 November 2004)

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Tabe v The Queen [2004] HCATrans 447 (12 November 2004)

Last Updated: 22 November 2004

[2004] HCATrans 447

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B75 of 2003

B e t w e e n -

GRAHAM VICTOR TABE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 12 NOVEMBER 2004, AT 12.49 PM

Copyright in the High Court of Australia

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR A.W. MOYNIHAN, for the applicant. (instructed by Legal Aid Queensland)

MRS L.J. CLARE: May it please the Court, I appear for the respondent. (instructed by Director of Public Prosecutions (Queensland))

GLEESON CJ: You have taken over Mr Papayanni’s brief, have you not?

MR WALKER: Thank you, your Honour.

GLEESON CJ: Yes, Mr Walker.

MR WALKER: May it please the Court. Your Honours, our client was convicted by dint of the combination of two important provisions; namely, section 117 of the Drugs Misuse Act and section 7 of the Criminal Code, of aiding in an attempted – which equals a deemed – possession of a dangerous drug. The simple facts, which your Honours have seen in the written outlines - - -

GLEESON CJ: I think I am confusing this with another case, Mr Walker.

MR WALKER: I was hoping your Honour did not know, as always, more than I did in that.

GLEESON CJ: No, no. I am confusing it with another case. We have had a lot of applications later.

MR WALKER: Thank you, your Honour. This is the one where the fact involved a first visit by my client to pick up a parcel; a second visit by my client driving a car with a lady called Briggs, who pleaded guilty, who actually collected, with a ticket that had been provided by my client, a parcel, not addressed in terms to my client - there being a defence case about the parcel’s addressee being an acquaintance, with whom the arrangement of pick-up had been made on occasions, including a pub where a meat tray was being raffled, evidence having been called of that.

It meant that the Crown had two issues which it had to succeed on to secure a conviction against my client. The first had to do with the possession issue – that is the principal one your Honours see dealt with in the written outline – and the second had to do with the accessorial or ancillary liability; that is, the aiding, 7(1)(c) of the Code. Can I deal with the possession one first.

GLEESON CJ: Could you just summarise the facts again, please?

MR WALKER: The facts involve my client attending at a post office to pick up a parcel addressed to a Mr Tabler, at 1 Makeri Street – there being no such address. That is why the parcel was undeliverable and needed to be picked up, rather than arriving at a house. There was then examination of the contents of the parcel; methylamphetamine found in it.

The following Monday - which on the defence case ensued after the dealings that had taken place at the hotel - there is a telephone call from a man who said he had called in on Friday to collect a parcel. The female friend, he said, would come in to collect the parcel that day. In fact that is what happened. A vehicle driven by my client arrived with the woman, Briggs, who did collect the parcel. They were apprehended by police after she had got back into the passenger car, driven by my client.

That, in our submission, was the equivalent of my client being a person, in the presence of and obviously, to some extent, acting in concert with, a person who herself had a parcel, not addressed to her, which she had picked up. My client did not have the parcel, in the physical sense of handling, at any point, which is no doubt why the case, importantly, is an aiding case. I will come back to the importance of that in a moment.

GLEESON CJ: But the issue of law involves the onus of proof.

MR WALKER: On the possession issue there is an onus of proof question of law which has been raised, particularly by the way in which the Crown puts the effect of paragraph 129(1)(d) of the Drugs Misuse Act, to which I shall come. But no, the principal issue of law, your Honour, has to do with the extent of knowledge which the Crown had to prove in relation to my client’s aiding, that my - - -

GLEESON CJ: That is the issue referred to in paragraph [25] on page - - -

MR WALKER: Yes, and the possession, but I want to deal with them in the order of possession first. Now, in essence, the Court of Appeal has dealt with the matter in this fashion. There is a parcel. It is shown to include a dangerous drug. Being a parcel, it presumably – a very important word – it presumably contains something, something. Or, to use another phrase that the Chief Justice deploys, apparently intended to the same effect, a parcel believed not to be empty. Whether there is a distinction between something being believed not to be empty and it being believed that it has something need not delay us. It would not appear there is any commonsense difference appropriate for use in criminal law.

So that the question of possession was construed by his Honour, particularly by reference to the provisions of section 26 of the Code in light of paragraph 129(1)(d) of the Drugs Misuse Act, it was construed as requiring no more than knowledge that there was a parcel, which presumably was not empty – it being in the nature of parcels not to be empty, except when they are deliberate absurdities or jokes, I suppose, or by accident.

GLEESON CJ: The question is whether you have possession of what is in the parcel.

MR WALKER: Of course. It is not an offence to be in possession of a parcel - - -

GLEESON CJ: A package.

MR WALKER: Of a parcel or package. It is the dangerous drug in it which constitutes the possession offence. Now, this was only ever attempted possession because it was an intercepted parcel. There was nothing in the package when it got to the car. That is why it is attempted. Under section 117 that means it is deemed to have been the committal of the offence.

GLEESON CJ: But are we looking at the position of your client, or Briggs?

MR WALKER: We are looking at the position of my client.

GLEESON CJ: So your client goes to the post office.

MR WALKER: Drives to the post office.

GLEESON CJ: Driving the car, and sends Briggs in, or - - -

MR WALKER: Or Briggs goes in.

GLEESON CJ: - - -Briggs goes in.

MR WALKER: Yes.

GLEESON CJ: By arrangement with your client, to collect the parcel and its contents, whatever they might be.

MR WALKER: Parcels presumably having contents.

GLEESON CJ: Yes.

MR WALKER: It being the nature of a parcel, that it is a container of something.

GLEESON CJ: And Briggs comes back to the car.

MR WALKER: Yes.

GLEESON CJ: With the parcel.

MR WALKER: Yes.

GLEESON CJ: And its contents.

MR WALKER: And that is the end of what I will call the physical dealing with the parcel to make the Crown case.

GLEESON CJ: And is the question raised by the statute, by the Queensland statute, whether in those circumstances your client is in possession of the contents of the parcel?

MR WALKER: Yes. Specifically, for the second point in our application, whether he is aided in an attempted possession by Briggs of the parcel.

CALLINAN J: Why has he not done that?

MR WALKER: Well, the first and most obvious thing is that 7(1)(c) requires knowledge. It is the word “aid” that requires it. Just as in He Kaw Teh, this Court held that it was the word “possession” in a materially similar Commonwealth offence that required an importation of some degree of knowledge – the members of the Court differing notoriously as to what that degree was. Just as in He Kaw Teh, it was the word “possession” and nothing to do with the reasonable excuse defences, or answers, that were available, that imported the degree of knowledge, so it is the very well accepted concept of “aid” that conveys the requirement for knowledge in my client of the essential elements, or factual matters which, whether he knew they made up an offence or not, did make up the offence.

CALLINAN J: What sort of additional fact would have supported an - - -

MR WALKER: In this case that it was a dangerous drug. The aider was held by the Court of Appeal not to require, by dint of a principal not enunciated, the Crown to prove anything further in relation to knowledge than would be true of the so-called principal offender Briggs.

CALLINAN J: What is the minimum fact that would have needed to have been proved that would have sufficed?

MR WALKER: To adopt and to adapt the approach of Justice Dawson in He Kaw Teh who used this concept of “minimal degree of knowledge”, derivable from the statutory context including, as this case does, provisions for the defence to show reasonable mistake and the like. At page 602 of 157 CLR, Sir Daryl says you cannot, within the meaning of the Act:

possess something when he is unaware of its existence or presence. But he will . . . possess something if he has custody or control of the thing itself or of the receptacle or place in which it is to be found provided that he knows of its presence.

Now, that is as to knowledge, leaving aside aiding altogether. Staying with the question of knowledge and before going to aiding, it is clear from the rejection by Sir Daryl, in common with the other Justices, of the New South Wales authority in Bush, it is clear from what is found on page 603 of 157 CLR that merely knowing that there was something in a parcel, that being the nature of a parcel or, as Chief Justice de Jersey correctly, with respect, put it, it presumably has something in it, did not suffice to meet the requirement in Sir Daryl’s reasons that you needed to know of its presence if you controlled the receptacle or place. Now, knowing of the receptacle presumably having something in it was plainly not enough because otherwise Sir Daryl would have approved Bush because that is what Bush said.

GLEESON CJ: Is there any doubt that Briggs had possession of the contents of the parcel?

MR WALKER: There may be.

GLEESON CJ: What was the defence case at the trial?

MR WALKER: The defence case at the trial was that this was a parcel which he was assisting in picking up for an acquaintance.

GLEESON CJ: But what did she think was in it?

MR WALKER: That my client was not called. Witnesses were called, my client was not called. Your Honours will see that in paragraphs 12 and 13 on page 73 of the application book. Two witnesses were called, who were witnesses, as it were, to the offer and acceptance of assistance between Mr Tabler and my client. There is no answer available on the record to the Chief Justice’s question, what did my client think was in it.

Now, in our submission, it being clear from the way Sir Daryl Dawson approached it that there are what he calls real “difficulties” – that is the word he uses in the passage commencing at page 600 of 157 CLR - it is clear, in our submission, that merely knowing that you have something under your control which contains something, cannot be enough otherwise that would have sufficed to render Bush correct because you have a packed suitcase – you know your packed suitcase has something in it. You probably know so as to be able to describe most of the things in it.

If it also has a dangerous drug in it, the question is whether you possess that dangerous drug. This Court has held it is the word “possess” that imports a requisite level, admittedly, depending upon statutory interpretation of “minimal knowledge”. Yet Bush was dissented from – overruled by this Court and, in our submission, at the level of minimal degree of knowledge required by Sir Daryl Dawson, it cannot be said that simply because you presume any parcel – or, we would add, any packed suitcase – contains something, that therefore the minimal degree of knowledge has been passed in relation to the possession.

One finds that at page 602 in 157 CLR where, having stated the general proposition, critical so as to avoid innocent possessors having cast upon them an onus of proof to prove what is notoriously difficult - namely, their own state of mind – one finds Sir Daryl saying:

But he will, since possession is used in its barest sense, possess something if he has custody or control of the thing itself or of the receptacle or place in which it is to be found provided that he knows of its presence. He need not know what it is (other than to the extent necessary to know of its presence) nor its qualities.

In our submission, that is a matter which appropriately places the onus throughout, never shifting, on the Crown. So it may well be that the plea of guilty by Briggs overlooked that there had – maybe there had not been material in the case to be presented against her to make out possession. That was not our concern.

Can I then come to what was a critical matter, distinguishing us from Briggs, namely that the charge against us was, under section 7 of the Code, aiding. There has been no argument suggested as to why or how aiding, when it is used in relation to possession of a dangerous drug, does not require knowledge of the essential elements, factual elements, as it does across the whole field of jurisprudence otherwise. Giorgianni and York v Lucas are adequate demonstrations of the importance and of the transcendent importance to individuals charged with accessorial criminal liability of that principle being applied.

There is nothing in particular in paragraph 129(1)(d) of the Drugs Misuse Act which may give rise to what your Honour the Chief Justice suggested might be thought to be an onus reversing question. There is nothing in that provision which could possibly give rise to the notion that an aider does not need to know the essential elements. That distinguishes an aider appropriately from a principal offender. That in itself is not a remarkable state of affairs, and there is no principle of law that the Crown can never be put to further proof of any different issue in relation to aiding as it is being put in relation to the principal offence itself.

In particular, what is critical is that one of the essential elements is a dangerous drug. That is an enormous distinction between an aider and a principal offender and, as I say, no attempt has been made, either in the Court of Appeal or in the submissions against us, to explain why it is that in this case, by dint of a principle never properly enunciated, the aider need prove no more than the minimal degree of knowledge necessary to be proved against the principal offender. We accept that the minimal degree of knowledge to be proved against the principal offender does not involve nature of the chemical composition, let alone of the status as dangerous drug, of the thing found in the parcel.

That is clear, and we do not seek to challenge that. But the dangerousness of the substance and its status as a dangerous drug, perhaps that means its description or chemical composition is an essential element in the offence, and there is nothing in any of the Code provisions invoked in this case or in the Drugs Misuse Act provisions invoked in this case which removes the general requirement called up by the word “aid”: see York v Lucas, that there be knowledge in the accused of the essential elements. Not some of the essential elements, all of the essential elements.

GLEESON CJ: Is it your case that the law required a different state of knowledge in your client from the state of knowledge in Ms Briggs?

MR WALKER: Very much so and, as we put in our written submissions, otherwise the intolerable spectacle of taxi drivers who have conversations with people like Ms Briggs on the way, “What are you going to do?”, you are going to pick up a parcel for someone that is known, and it is certainly helping them. Furthermore, you are helping them for a reward; you are taking them to the post office. You are taking them to the post office to pick up a parcel. They come back with a parcel.

It is intolerable that we would be down to prosecution discretion or, worse still, mercy in sentencing, that that taxi driver, without any means of knowledge of the dangerousness of the drug inside the parcel, is nonetheless either put on the country with his onus being to prove that he was
reasonably mistaken as to what was in the parcel – after all, how could you exclude the possibility that there was something nefarious in a parcel if you knew nothing about a parcel. So how could you reasonably come to the conclusion that it was not anything illicit?

These are matters which, in our submission, highlight the need for an aider – taxi driver for example – not to have to call in aid 129(1)(d) of the Drugs Misuse Act to be able to say the tradition of the law: see York v Lucas, see Giorgianni, requires that an aider charged as such has knowledge of the elements, and one of the elements was dangerousness, “I cannot be treated in the same way as the principal offender may be treated.” In our submission, the individual justice of this case, in light of these important and fundamental matters of principle, call for this Court to intervene.

GLEESON CJ: Yes, Mrs Clare.

MRS CLARE: May it please the Court. The complaint, it is submitted, against this conviction is primarily in the harshness of the legislation itself; that is, in the evidentiary provisions of the Drugs Misuse Act. The argument depends upon, as I think my learned friend conceded, the acceptance that there must be a higher state of knowledge to be proved against the aider to a principal committing the offence. That proposition is contrary to section 7 of the Code, and it is contrary to a well-established principle in relation to parties; that is, it is well established that to aid in the commission of an offence there must be intention or participation, knowing all of the essential facts relevant to the proof of guilt, whether that be for the principal offender or the accessory. It is a proposition made quite clear in Giorgianni and subsequently in this honourable Court in the authority of York v Lucas.

GLEESON CJ: What do you say in principle is the difference between the position of the appellant and the position of the taxi driver, referred to by Mr Walker in his argument?

MRS CLARE: It is a hypothetical case, and will depend upon the precise circumstances, but one can imagine that the Crown would firstly have difficulty in establishing that a taxi driver, whose motivation is to deliver a fare, would be intentionally participating in the receipt of the parcel. But even if the Crown could get over that hurdle, then one would think that it would be a very easy and very clear case where proof of honest and reasonable mistake would be made out unless there was some further evidence that went to the specific knowledge of the taxi driver.

The argument for the respondent, in relation to what needs to be proved as a minimum in respect to section 9 of the Drugs Misuse Act, is that the substance is in the control or possession, physical possession, of the offender, and that person knows that the substance is there and, furthermore, that as a matter of fact the substance is a dangerous drug. Once those three things are established the Crown has met its evidentiary onus, the burden shifts then to the accused to establish whether in fact he had an honest and reasonable mistaken belief. If he can meet that onus, if he can prove that then, of course, he is liable only so far as his mistaken belief would place him.

There has been some heavy reliance against me in relation to the decision of He Kaw Teh, but that is an entirely different case, of course, because it related, firstly, to Commonwealth legislation - a different piece of legislation – and it involved consideration of whether the common law concept of mens rea was imported into the notion of possession for the purpose of that case. But judgments like that of the Chief Justice acknowledge that mens rea could easily be displaced by a sufficient contrary intention in the legislation, and that is what we say has happened here by force of section 129 in the evidentiary force of subsection (1)(d), in combination with the chapter on criminal responsibility in the Criminal Code.

GLEESON CJ: Is there any conflict of authority within the Queensland courts on the construction of this legislation?

MRS CLARE: The Court has consistently determined that section 129, or its predecessor, section 57(c), amounted to a reversal of the onus and that - - -

GLEESON CJ: It seems to be put against you that the decision in this case is inconsistent with a case of Bellino.

MRS CLARE: Bellino was actually considered by the Court of Appeal below. The way in which the Court dealt with it, this Court dealt with it, was to identify that in fact there had been no reference to the evidentiary provisions. So that it was considered that the decision in Bellino really came down to the way in which the case was litigated.

GLEESON CJ: Well, the explanation of the decision in Bellino appears to be that there was some concession made, at least by implication. That seems to appear from paragraph [9] of Chief Justice de Jersey’s judgment, does it not, on page 57 of the application book?

MRS CLARE: Yes. It is also a case where the – it could be fought from another point of view, that there had not in fact been any time for Bellino to actually have intentionally taken possession of whatever was in the parcel, because on the evidence it may have been no more than five minutes after the parcel had been delivered to him. It was still unopened when the police arrived, and it was on all accounts an innocuous looking parcel with “Happy Birthday” written on it and addressed to somebody else. So it was little more than a transitory possession in the case of Bellino, but - - -

CALLINAN J: What difference does that make?

MRS CLARE: Well, perhaps nothing.

CALLINAN J: The concession must have been - - -

MRS CLARE: Just when one is seeking to distinguish - - -

CALLINAN J: Yes, well there is no distinction, you have just said that. But the concession must have been made on your instructions, was it not - a very recent case?

MRS CLARE: It was not a concession made on my instruction, my specific instruction.

CALLINAN J: Well, from your office. You are the Director.

MRS CLARE: Yes. The judgment in Bellino bears no reference to the evidentiary provision, nor to the decision of Clare, which is perhaps the leading authority in relation to the interpretation of the evidentiary provision.

GLEESON CJ: Am I right in thinking that Clare, in its application to the present case, would bear directly on the position of Ms Briggs rather than the position of the appellant?

MRS CLARE: Yes, that is so. There are two different issues. One is what is required to be proved in respect of anybody for criminal liability.

GLEESON CJ: The decision of the Court of Appeal in this case seems to have turned principally upon the consideration that it would be anomalous to construe the legislation in a way that required a different mental element on the part of Ms Briggs from the mental element on the part of the aider, is that right?

MRS CLARE: Yes.

GLEESON CJ: And your opponent seeks to answer that by saying, “Well, consider the example of the taxi driver”.

MRS CLARE: I have attempted to answer that as well, in the context of how it could be answered in practice, but - - -

GLEESON CJ: Well, the response may be that in an ordinary case a taxi driver would not be in any relevant sense aiding a person to collect a parcel simply by driving that person to a post office.

MRS CLARE: That is so, because a taxi driver would not intentionally be participating in the collection of the parcel. Rather, he would be driving a fare to a destination.

CALLINAN J: All that, though, is saying that it would be easier for him to make out the defence. It does not really alter the principle, does it?

MRS CLARE: It comes back to the harshness of the legislation itself. It is very difficult in principle to argue that a more stringent test should apply, and that this would be the ramification of such a decision, that not just for section 9 of the Drugs Misuse Act, but in every case where a person is charged as a aider or as procuring another to commit a criminal offence. That Crown bears a stronger, or a more stringent test in relation to proof of the offence.

GLEESON CJ: Your argument, as I understand it, is that if you accept that it is clear, on the authority of Clare, that Ms Briggs did not have to know that the parcel contained dangerous drugs, much less that it contained methylamphetamine, then in order to convict the appellant of aiding Ms Briggs to possess the contents of the parcel it would be odd to construe the legislation as requiring that the appellant knew that the parcel contained dangerous drugs. Is that what it comes down to?

MRS CLARE: Yes, that is so. If one considers that the applicant could well have been the procurer of Ms Briggs, so the contention argued by my learned friend would result in Ms Briggs being liable, notwithstanding the Crown has not proved that she knew what was inside the parcel, but the man who procured her had the benefit of that extra step.

GLEESON CJ: Is that because the relevant statutory provision covers aiding, abetting, counselling and procuring?

MRS CLARE: Yes.

GLEESON CJ: And you could not have it working one way in relation to aiding and a different way in relation to counselling or procuring?

MRS CLARE: That is so. They are all dealt with in section 7 of the Code.

CALLINAN J: Why could an accused not ask for particulars, whether the charge was of procuring or of aiding? They are put disjunctively, are they not?

MRS CLARE: Yes.

CALLINAN J: Then you might have what is in substance a different defence. It is just that there is provision for different offences under the same section of the Code.

MRS CLARE: Prosecutions are commonly brought on the basis that the accused either aided or procured or counselled, but the Crown is unable to say which.

CALLINAN J: That may be the way in which they have been brought, but it may not be the way in which they would have to proceed if a request for particulars were made, and if the right to them was made out. The Crown might have to elect. One can think of entirely different particulars that could be furnished in respect of each of those. They are quite different concepts. Procuring somebody to do something is completely different from helping them actually do it.

MRS CLARE: Yes. Even if we - - -

GLEESON CJ: Your argument, as I understand it, is that the state of knowledge would have to be the same for aiding as procuring. That is what we are interested in. What state of knowledge is necessary in order to sustain a conviction?

MRS CLARE: Yes.

GLEESON CJ: I presume this point arises in this case because of the way the trial judge directed the jury.

MRS CLARE: The trial judge directed the jury that in respect to the knowledge - - -

GLEESON CJ: This was a joint trial, was it not?

MRS CLARE: No. Ms Briggs pleaded guilty.

GLEESON CJ: Briggs pleaded guilty.

MRS CLARE: Yes.

GLEESON CJ: So the trial judge directed the jury that in order to make out a case against the appellant all they had to establish was that the appellant knew that there was something in the parcel, is that right?

MRS CLARE: Yes, and had attempted to get control of it.

GLEESON CJ: Yes.

MRS CLARE: Of the parcel and the contents.

GLEESON CJ: The appellant never suggested what he thought might have been in the parcel, apart from drugs?

MRS CLARE: No. No. He gave no evidence as to his belief, but relied upon witnesses that he called, who gave an account of - - -

CALLINAN J: This was a casual favour for somebody he met at a hotel, was it not?

MRS CLARE: Yes. That is what Mr Justice Mackenzie says, that - - -

CALLINAN J: Following a chook raffle.

MRS CLARE: - - -his account was extremely implausible, because it was one where he says that he met a man in a pub, he did not know him, that he agreed to loan him his car for the purposes of picking up this package. They went on the Friday, they drove to two post offices, he ran around for him on that day, and then again on the Monday he went to the post office with Ms Briggs, drove again himself with Ms Briggs to the post office, and this other man that he says existed, or that his friends say existed, cannot be found, but happened to have a name very similar to his own. It was Tabler, and his name was Tabe.

GLEESON CJ: Mr Walker may not be heavily weighed down by merit, but he has in his favour the fact that in paragraph [25] on page 59 Justice Mackenzie said this “raised a fundamental issue concerning” something. You invite us to conclude that the resolution of that fundamental issue by the Court of Appeal was correct, or at least not in sufficient doubt.

MRS CLARE: Yes, and that it is entirely consistent with the approach of this honourable Court in Giorgianni and York v Lucas, and it is a line that has been followed in Queensland consistently in modern authority.

GLEESON CJ: Yes thank you, Mrs Clare. Yes, Mr Walker.

MR WALKER: Your Honours, York v Lucas is the best way in which to show that there is an argument that needs to be had in this Court to test my learned friend’s last proposition. York v Lucas, of course, was a civil case, but it turned upon the understanding of criminal jurisprudence. Section 52 of the Trade Practices Act required no guilty knowledge of the misleading or deceitful nature of a representation of what I will call the principal personal liable. But in this Court’s understanding of the criminal jurisprudence, to which my learned friend has just, with respect, correctly referred as being expounded in York v Lucas, they found that section 75B of the Trade Practices Act did require quite different state of affairs, in relation to a mental element, to be proved against those who were aiders, counsellors or procurers, to use well-established terms of legal art with important implications for the liberty of the subject in criminal jurisprudence. They held that, unlike the principal offender under section 52, those accessorily said to be liable under section 75B needed to have proved against them, in order for that liability to be proved, knowledge that it was misleading and deceptive.

Now, the exact analogy we offer here is you need to prove knowledge that it was a dangerous drug. Now, in our submission, that is quite– as Mr Justice Mackenzie points out – a fundamental matter which is well raised by the facts in short compass in this case, and is certainly not covered by authority in this Court. To the contrary: see Giorgianni, see York v Lucas. Nor can it be said that special leave should not be granted because the Court of Appeal was simply applying hitherto unchallenged precedents in the Court of Appeal. Clare is a case which highlights the distinction between the facts of this case and the way in which the jury was directed to proceed in its task, because in Clare the person was proved, indeed admitted, that they knew of the powder. The only issue was whether he knew the powder was a dangerous drug, as opposed to something to be used in the manufacture of perfume.

Now, there is no equivalent of knowing of the powder in the receptacle in this case, none at all. So Clare simply does not apply, for the reasons we put in writing, and certainly was not determinative of this case; nor was it determinative of Bellino. Bellino is the case where Justice McPherson is quoted as having said arguendo, “You’re just left with a man holding a parcel”. Now, it does not matter relevantly whether the parcel said “Happy Birthday” and had pictures of bottles of champagne or not. “You’re just left with a man holding a parcel”; that is, unlike Clare, in Bellino there was absolutely nothing equivalent to the knowledge of the powder, the only dispute being was the powder illicit or licit?

It is for those reasons that Bellino stands in stark contrast to the present case. There is a difference between the two benches and, in our
submission, that alone requires the intervention of this Court in something as fundamental as the questions of knowledge against an aider must be.

In relation to the other possibilities, procuring or counselling, which were charged: see paragraph [11] at page 57 in the Chief Justice’s reasons, of course, the knowledge is the same for all of them. That is what York v Lucas said. The knowledge in this case would involve counselling or procuring, not picking up a parcel, but counselling or procuring, picking up a dangerous drug.

It is for those reasons, in our submission, that the aider clearly ought to be seen as in the nature of things being in a different position. That is what York v Lucas points out. That is why paragraph [13], pages 57 and 58 answer, given by the Chief Justice, was what I called in-chief an unenunciated principle. The Chief Justice put to my learned friend that her argument amounted to saying, “It would be odd if”. The way in which the Chief Justice puts it on line 2 on page 58, is to say, “one would expect”, but that is flying in the face of not expectations or oddities, but the actual demonstration in York v Lucas, that you do have different proofs against aiders and abettors and principals because in law the word “aid”, “abet”, “counsel”, “procure” carries with it the intentionality which itself involves knowledge of the essential elements of the offence or wrong charged.

GLEESON CJ: Do you challenge the first step in that reasoning in paragraph [13], that is do you question the authority of Clare?

MR WALKER: Yes. That is, if one looks at the reasoning in He Kaw Teh closest to the Queensland position – that is, Sir Daryl Dawson – that is, the minimal knowledge, then, in our submission, the passages I drew to attention in-chief certainly require that reasoning to be re-examined for its correctness. It certainly involves the problem highlighted by paragraph [9] of the Chief Justice’s reasons, that it depends upon simply looking at a packed suitcase or a parcel, which ostensibly wraps up something and says it presumably contains something. That would have been Bush’s Case being correct. That is what Sir Daryl said was wrong. It cannot, in our submission, be correct the way in which the Queensland court has proceeded in its reasoning. It is an urgent matter for reconsideration, in our submission.

GLEESON CJ: In this matter there will be a grant of special leave to appeal. We will adjourn for a short time to reconstitute.

AT 1.36 PM THE MATTER WAS CONCLUDED