R v Campbell [2009] HCATrans 49 (13 March 2009)

Last Updated: 17 March 2009

[2009] HCATrans 049

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S465 of 2008

B e t w e e n -

THE QUEEN

Applicant

and

BELINDA MARY CAMPBELL

Respondent

Application for special leave to appeal

GUMMOW J
HEYDON J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 MARCH 2009, AT 10.25 AM

Copyright in the High Court of Australia

MS W.J. ABRAHAM, QC: May it please the Court, I appear with my learned friend, MR D.K. JORDAN, for the applicant. (instructed by the Commonwealth Director of Public Prosecutions)

MR T.A. GAME, SC: May it please the Court, I appear for the respondent with MR R.J. BROMWICH. (instructed by Giddy & Crittenden)

GUMMOW J: Yes, Ms Abraham.

MS ABRAHAM: Your Honour, the special leave question that arises here is the interpretation of the word “imports” as it appears in section 307 of the Criminal Code. In particular, in my submission, this application focuses on the latest point of time at which that physical element had been completed. It is a question, with respect, that this Court clearly has not considered earlier. The court here concluded that there was a test and it appears in paragraph 128 of the chief justice’s judgment, application book 131. The effect of the test that has been imposed - - -

GUMMOW J: What paragraph?

MS ABRAHAM: Paragraph 128. The effect of the test that he has imposed is that importing is complete when it gets to a stage – the goods are delivered to a point where they would remain in Australia.

GUMMOW J: What were the particular facts here that you say fall within your construction of the expression?

MS ABRAHAM: Your Honours, after the accused gave evidence she put forward a scenario contrary to what she had done originally. The Crown case fundamentally throughout was she was aware that the goods were being imported before they came to the country. During her evidence she gave explanations for various answers in an interview but said, “In any event, when the goods arrived at my place” – her premises, she became aware that they were the drugs and she then organised for somebody to pick the goods up, the drugs up.

So the Crown says when the arrests were then made just shortly thereafter, the arrests were made of the persons who picked the drugs up and, indeed, the respondent - at that stage the importation was continuing, it did not cease until at least then.

GUMMOW J: It did not cease until - - -

MS ABRAHAM: At least the time of the arrests because the goods had not got to their destination, the person they were intended for. She was, in effect, part of a process – if that is the right word. She received the goods and she did forward those goods on, and on her own evidence her admission to that, in the applicant’s submission, was enough.

GUMMOW J: What would be the culmination of the process? I am just trying to find out when you say the cut-off point would be.

MS ABRAHAM: What occurred in this case is a direction that the goods had to end up at the final destination.

GUMMOW J: Being?

MS ABRAHAM: The person who had in this instance, one assumes, at least the wholesaler. That is the way it was left in the direction to the jury. In my submission, on the facts of this case that was open. I might add that we accept it was very much a secondary basis in the address because the Crown case throughout was that it was the knowledge at the time of the goods entering the country.

BELL J: That is why the court directed a new trial, but that is not the issue with which we are concerned.

MS ABRAHAM: No, that is correct, because obviously it was significant enough to direct a new trial, in my submission. In my submission, the definition that the court has come up with here, we contend obviously it is in error, but indeed my friends also contend it is in error but they say in favour of the applicant.

BELL J: The Crown accepts that the court was correct in concluding that the fault element must exist at the time of the physical element of the offence, to use the unattractive language of the Code.

MS ABRAHAM: Yes, that is correct.

BELL J: It is the Crown’s submission that prohibited drugs can be imported into Australia, delivered to a warehouse – this is after they have cleared Customs – where they remain for some months and that a person who months after that occurs opens the container and then deals with the goods is guilty of the offence of importing the goods.

MS ABRAHAM: They might be, depending on the factual scenario. Time, with respect, in my submission, is not the important aspect; it is the events that occur. Perhaps the best way to illustrate it here is to look at the consequence of the approach that the court has taken because, in my submission, on any scenario, whether our test is correct or what my friend says is the appropriate test, what has occurred is one has a result which is uncertain in its application.

It is uncertain what paragraph 128 means, with respect, and so much is clear when the chief justice actually has two scenarios. It either occurred at the time the goods were retrieved by her agent from Customs or, at the latest, when they reached her factory. In my submission, the very fact of two scenarios shows uncertainty, but the nature of the scenarios, in my submission, show artificiality, because at that stage the goods had not been exposed, even on the test posed by the court. The goods had not been exposed and therefore it would not have even passed that test. On the other hand, Justice Weinberg noted that whatever flexibility there was in the term that the import was over well and truly before the goods were opened by her.

GUMMOW J: What did Justice Weinberg fix upon as the last step?

MS ABRAHAM: He did not. That is in paragraph 181 at application book 144. He simply recognises that whatever flexibility there is - - -

GUMMOW J: Paragraph 181?

MS ABRAHAM: Yes. Whatever flexibility there is, having regard to the test that has been adopted by the chief justice, that it is - - -

GUMMOW J: What has Wilson v Chambers got to do with it?

MS ABRAHAM: That is our submission. Wilson v Chambers has nothing to do with it. In my submission, the - - -

GUMMOW J: What was the question in Wilson v Chambers?

MS ABRAHAM: The question in Wilson v Chambers was when a good became an imported good.

GUMMOW J: For what purpose?

MS ABRAHAM: For the purpose of duty being paid. What has occurred in this instance is that the chief justice has recognised that this question is not without difficulty.

GUMMOW J: Wilson v Chambers is the case about the paint. It was going from port to port, whatever.

MS ABRAHAM: Yes, the paint that did not go off the boat, yes.

GUMMOW J: Get off the ship, yes.

MS ABRAHAM: What the Court has ultimately done, in my submission erroneously, has concluded you can – this part is correct – “import” can be interpreted either broadly or narrowly.

GUMMOW J: It depends perhaps on the nature of the statute.

MS ABRAHAM: Absolutely, but it does have a beginning and an end. Against that background, in my submission, what the Court erroneously did was conclude that in this instance, if you look at the context of the statute, it does not need a broad interpretation any longer, unlike what it used to have. The applicant says that is incorrect.

BELL J: On a view, is not part of your complaint that the chief justice has left it as broad in the sense that he has accepted that the act of importation might continue until a point after clearing Customs, and you say that leaves a degree of uncertainty?

MS ABRAHAM: We say it is broader than that but, yes, that leaves a degree of uncertainty, even on - - -

BELL J: What certainty does the Crown propose to bring into it? What formulation does the Crown adopt?

MS ABRAHAM: In my submission, if one looks at the cases that previously had dealt with section 233B of the Act, what the court there was looking at is the act completing usually when it got to the person to whom it was intended.

BELL J: But that was in the context of the “knowingly concerned” cases.

MS ABRAHAM: With respect, while most of the decisions do relate to 233B(1)(d), which is the “knowingly concerned”, in my submission, they dealt with it separately in the sense of importation is one thing and knowingly concerned is another and it has been applied to imports, that interpretation. Calderwood, it applied to imports when “knowingly concerned” did not occur.

The other aspect about the “knowingly concerned” aspect, all those decisions, in my submission, are based on Forbes in this Court and Forbes had nothing to do with “knowingly concerned”. There was no reference to “knowingly concerned” in that decision.

BELL J: Put Wilson v Chambers and Forbes to one side and just go back to any notion of the breadth that “import” can have in the context of a statute such as this, how is it said that a person who has had no involvement with the bringing into Australia of a good and who deals with the goods, say, eight months after their arrival in Australia is a principle in the act of importing them?

MS ABRAHAM: Your Honour, in my submission, a scenario eight months after would be extraordinary, but leaving that to one side, in my submission, traditionally, the courts through Courtney-Smith, Lam, Leff and all those cases, recognised that the act of importing is not complete at the moment the goods land in the country. Indeed, the Court of Criminal Appeal here accepts that as the case. That is the argument my friend puts that ought to be the situation. So if that is correct, in my submission, that it is not the moment it lands, then it has a beginning and an end, and the end must be when the goods, at the very least, are exposed and end up with the person to whom they are destined.

BELL J: But those decisions, putting Calderwood to one side, were in the context of an offence of being knowingly concerned in what was often characterised as a process. Now, for whatever reason, the Commonwealth has framed the Code in the way that it does and the respondent to this appeal was charged with the offence of importing.

MS ABRAHAM: Your Honour, I accept by and large, with the exception of Calderwood, those decisions were in that context and I am not relying, with respect, on the “knowingly concerned” aspect. I am relying on the concept of importing in those decisions. In my submission, one just needs to step back logically and think about it, because the “knowingly concerned” section also had “aid, abet, counsel or procure”. Obviously one aided, abetted, counselled or procured the importation and the meaning of “importation” must have been the same, irrespective of whether it was “knowingly concerned” or “aid, abet, counsel or procure”.

On the scenario that is postulated, in my submission, under what would have occurred under the Customs Act, you would have had somebody charged with importing under (b) and somebody charged as an accessory under (d) and, on the judgment of this Court, you would have ended up with different directions. You could have been in the same trial and you would have ended up with different directions. In my submission, that shows the fallacy of the situation that the aspect of “import” or “importation” has got the broader interpretation purely because of the “knowingly concerned”.

What one needs to do, in my submission, is to step back, look at the word in the context in which it appears. The court concluded that in relation to this Act it was unnecessary to have a broad interpretation because there are additional offences. That does not bear scrutiny because the additional offences do not cover this conduct. The person that rings up to try and get the goods is not covered by this or the other conduct and new offences. And so the court then, accepting they had difficulty latched onto, with respect, Wilson v Chambers and Bull.

Now, the problem with that is Wilson v Chambers, in my submission, has no application. Bull was the earliest point of time that the goods could be imported and taking that test that has now become also the latest point of time. At the end of the day the earliest and the latest point of time is what is in paragraph 128 and, in my submission, that is incorrect. As I said, at the end of the day, in my submission, the applicant says the decision is incorrect, it is not supported by proper reasoning, it does not promote the purpose of the legislation. In my submission, the statutory context does not compel its conclusion.

HEYDON J: Ms Abraham, take 128, what the jury have been told about the last point of time that was relevant, you say, at the latest when the container arrived at her premises and before it was unpacked is too early. What is it? You say that is too early a point in time?

MS ABRAHAM: Yes.

HEYDON J: What is the correct latest point in time?

MS ABRAHAM: In this case it was at least to the time that the goods had been passed on by her, that is, to the persons who were collecting them.

HEYDON J: So if we look at page 99 where the chief justice has a chronology, on 17 June the container was delivered to her shop at Leichhardt, the furniture was unpacked but not the boxes. The next day she rang up her Indonesian associate and the same day the boxes were taken away. What is - - -

MS ABRAHAM: The ringing up was to arrange for the boxes to be collected, her knowing, on her evidence, that they were drugs, in my submission. So she then organised - - -

HEYDON J: How does one put that as a general test then?

MS ABRAHAM: In my submission, the difficulty with being a general test is reflected by the cases that have applied the importation. Invariably, what the courts have done is looked at the facts and determined whether or not on the facts of that case, but if one steps back and looks at a more general, it is events that are proximate and incidental to achieving the end, in my submission; that is, achieving the end, the drugs getting to the person who the drugs were destined for. In my submission, that is consistent with - - -

HEYDON J: But in one sense they were destined for her.

MS ABRAHAM: Not ultimately, no. I accept at one level they were, but at another clearly not. Her role was simply to pass the drugs on to the person to whom they were intended.

BELL J: If someone sends to me a parcel containing prohibited drugs from overseas and I am not in any sense complicit in that, but after I open the parcel and realise what is contained within it I decide to distribute it and make some financial gain in that way, on your account I might be guilty of importing it. No one would doubt, if I deal with those drugs in a way to supply them, I am guilty of an offence, but the question is, am I guilty of importing?

MS ABRAHAM: Your Honour’s factual scenario is different to the case here because your Honour was not expecting the drugs, in my submission. So your Honour having received the drugs has determined – does not receive them – one assumes, totally unexpected, has determined to use the drugs.

BELL J: But on the alternative case – in this case the judge’s directions to the jury admitted of a view that up until the goods had been unpacked by the respondent, she was unaware of the parcels containing the precursor substance, is that not right?

MS ABRAHAM: I think on any scenario there was evidence that she was expecting boxes. She says she did not know about them, as in know about the contents of them, until she opened them, that is her evidence as opposed to her instinct. She assumed boxes were coming.

BELL J: She assumed furniture was coming. Is not the issue that on the alternative case she did not know of the boxes and that which was concealed within them until they were in her premises?

MS ABRAHAM: On the alternate case she did not know, on her scenario, drugs were in the boxes, yes, until she opened them.

BELL J: I do not think, Madam Crown – perhaps I am wrong about this, but I understood the issue was that she did not have knowledge of the fact of the boxes in which were contained the precursor substance until they were in her premises.

MS ABRAHAM: In my submission, her evidence was that she assumed boxes but did not know what was in them until she opened them, whereas the Crown case was she knew what was in them before.

HEYDON J: But that is the case that is going back to the jury.

MS ABRAHAM: Absolutely. What I am trying to do, in answer to your Honour’s question, is that on her evidence it is the opening of the boxes that gives her knowledge of the contents. My understanding is that she had knowledge of boxes but did not have knowledge of contents, on her story, until she opened them. So that later point of time. So, in my submission, on any scenario here what one is left with is a very uncertain judgment.

In my submission, how does one apply section 128? Does one apply it as the chief justice has? In my submission, his two factual scenarios are extraordinarily artificial. Is it, as my friend suggests, the test is applied factually and you end up with a time days before the chief justice has indicated, or is it as Justice Weinberg says, we accept some flexibility; all we know it is before this time, which is, I must confess, more like the decisions in Lam and those cases where they tend to say, on the facts of this case the importation had not finished up until a particular point of time, depending on the facts.

The added feature here, of course, is that what one is dealing with is not just importation by sea. Importation occurs internal, strapped to the body, by mail, parcel post, put in a letter box. With respect, how does one apply this test, given the difficulties in this judgment for that?

BELL J: For my own part I have little difficulty seeing how one might apply it to a courier bringing drugs in concealed within the body. To the extent that you call in aid suggested lack of clarity about the test that the Court of Criminal Appeal has settled on, I am having great difficulty seeing how the Crown is proposing a more certain test.

MS ABRAHAM: Your Honour, the test we are proposing is a broader interpretation consistent with a recognition that one can have a narrow or broad interpretation of the word “import” and a beginning and an end. There must be an end, with respect, and the end that the chief justice has come up with is an artificial end. What is the magic, with respect, in either it being picked up from Customs or – and it is obviously so unclear there are two alternatives – arriving at her premises? What is the magic in that, with respect, that means that those goods would have remained in Australia? The goods had not been exposed.

GUMMOW J: What is the head of power that supports 307.11?

MS ABRAHAM: External affairs and I understand it is also trade and commerce, obviously fulfilling the obligations under the treaties, the.....conventions.

GUMMOW J: Which conventions?

MS ABRAHAM: The 1961 convention. I believe there was also a 1980 convention.

GUMMOW J: Do they use the word “import”?

MS ABRAHAM: I am sorry, I cannot assist.

GUMMOW J: It might help in construing the Act, I would have thought, because at the end you want to find how far this goes. It goes no further than beyond the constitutional power would go.

MS ABRAHAM: I accept that, your Honour, except this. The purpose of this legislation has been accepted by the courts. Courtney-Smith is a good example.

GUMMOW J: A lot of the earlier cases were Customs cases. It is a completely different - - -

MS ABRAHAM: The court in this case accepted that that was the purpose. So they have found that the purpose was the same, regardless, but the Court here has determined that one does not need the broader because now there are other offences.

GUMMOW J: I do not understand really these broader and narrow metaphors; broader and narrower as against what bright line?

MS ABRAHAM: In my submission, that raises part of the problem. What it does recognise, though, is one is not talking about a moment, a particular moment. It lands and therefore it occurs there. There is some flexibility in what is occurring, in my submission. That is recognised.

GUMMOW J: I get nervous when people talk about flexibility in construing criminal statutes too.

MS ABRAHAM: In my submission, that is what has been applied in the past based on Forbes and, in my submission, the court - - -

GUMMOW J: Forbes is a case about budgerigars being taken away in a car from the airport.

MS ABRAHAM: Correct, absolutely, but, with respect, that is as equally applicable as determining Bull, which is what is the first point of time and then applying that test to determine now what is the last point in time, which happens to be, it now seems, the same point in time.

GUMMOW J: We had better hear what Mr Game says about time.

MR GAME: First if you would look at page 126 and 127 of the application book, your Honours. It is the 1988 United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. You see at paragraph 108 that this legislation covers a multitude of domestic activities and it has a provision in it, which I will come to shortly, which, in effect, writes section 109 of the Constitution out with respect to State offences. For example, possession for supply could be charged, taking a step in the extended definition of “supply”. So could any one of these other provisions. The second immediate matter to correct is that it has to be understood - - -

GUMMOW J: What is the relevant Convention provision which founds this to the law? What section in the Convention? What article, I should say, in the Convention?

MR GAME: I apologise, I have not come prepared to take you to that.

GUMMOW J: These sort of questions seem to pop out when you get in the High Court.

MR GAME: I do appreciate they pop out, your Honours. I am sorry, but I did not totally foresee that I would have to answer that question. The second matter is this - - -

GUMMOW J: It is obviously a question of how you construe the Act.

MR GAME: I agree entirely.

GUMMOW J: You construe it by reference to the head of power, surely.

MR GAME: Yes, your Honour.

GUMMOW J: The head of power is an international Convention. You want to know what the text of the Convention is.

MR GAME: Yes, your Honour, I accept all that.

GUMMOW J: I am not criticising the Court of Criminal Appeal because no one thought about this there either.

MR GAME: Maybe or maybe not, your Honour. I will take you to the Code in a minute.

GUMMOW J: What I am then putting to you is Forbes and those cases have nothing to do with the external affairs head of power.

MR GAME: No, that is true, your Honour, but the word “import” in this legislation has, first of all, a short statutory definition and, secondly, it is to be construed entirely in the context of a code which requires the identification of an act, and you can hardly have identification of act if you have an amorphous process entirely based on repealed provisions about knowingly concerned in an importation. The whole of the Crown’s argument is that they want to bring back, shall I say, the halcyon days of 233B.

May I also just correct one other quite important error in that which was being put to you by the Crown, which is the entirety of this alternative case was based on Mrs Campbell not knowing of the packages, the presence of the packages, until she saw a couple of packages in the back of the truck. You can see that at page 52 of the application book, but there are other passages in which you will see that as well. Your Honours, you will see there at line 38:

The crown then said, look even if Mrs Campbell did not intend to import the extra packages before they were revealed, you have got to remember, says the crown, that importation continues and that this importation was continuing –

So the summing-up consistently introduced this idea. We see it back at page 27, that importation is continuing, through 28, none of which is grounded in the language of the Code. Similarly, at 33:

So the crown says that by doing things like arranging for the delivery to Chic Teak, realising that there must have been extra packages in it, or organising the collection of the packages after Mrs Campbell definitely knew - - -

HEYDON J: Is your test the moment when her agent claimed possession of the goods?

MR GAME: Yes, your Honour, at the latest. My test is you have to take intention out of this because we are only talking about the physical act, and my test is brought in, which is the statute, or landed, and “brought in” is in the definition. If you go back to page 98, you will see that sequence of events.

HEYDON J: “Brought in” is in the definition of “import”, is that right?

MR GAME: The definition of “import” is in the Code. “Brought in”, yes, those words are in the definition. They are the only words in the definition. They are inclusive, but if it is being brought in, then an act has occurred in which the import has taken place.

If you go back to page 98 you will see in that sequence of events: the shipping container arrival announced, lands on 11 June, cleared 13 June, seized 13 June, by 16 June 12 of the 36 boxes which she said to have been imported have been taken out, the consignee’s agent takes delivery on the 17th, a truck drives down Parramatta Road to Leichhardt and at 2.00 pm she sees the extra boxes. If you then look at page 111 – I will come to the statute shortly – you will see that we had four grounds of appeal. Actually, they were 1(a), (b), (c) and (2). Only the first was dealt with.

GUMMOW J: Where do we see the other three? Which page?

MR GAME: Page 111. The reason I am taking you to it is this. The second one is, what would the acts be that she would be engaged in as a principal? Not ticking off Sam, because that was one of the things? Telling them to come and take them away? There was no effort ever made to identify what this act was. Three, where is the direction, because there is not one that addresses the question of her being guilty on the basis, even if such a basis existed? Now, your Honours, may I go to the Code.

HEYDON J: If ground (iii) got up, you would have a new trial on two versions?

MR GAME: That is correct. My argument is that you would not grant special leave because of the last sentence in paragraph 128.

GUMMOW J: What, “That occurred”?

MR GAME: Yes. All that is happening, and the same with Justice Weinberg, is if you go back to that sequence of events, it is a kind of de minimus proposition, that it must have happened by that time. So, as it were, the Crown is latching on to that. But the test is correct. To be delivered at a point in which they would result in the goods remaining is a reasonable test. But the test I would put, if we go to the Code – I will come to it in a moment – would in fact be “bring in” or “land” and without that extra aspect - - -

HEYDON J: The 13th June would be the day.

MR GAME: You would also have to take out of this idea, that is, in those other cases which are concerned with the process, or most of them – you have to take out the idea of “with the intention of doing a particular thing” because you are concerned only with a physical element.

Your Honours, may I go to the Code. We have sent up a bundle. If your Honours go to 3.2 in the Code, you will see, and it is accepted, that the physical elements and the mental elements must correlate. So if she only knows of the boxes when the thing is opened, there must be some act that she does. If you then go to 4.1, a physical element may be conduct. Conduct may be to do an act. So no wonder that knowingly concerned in the importation has gone because how on earth are you going to identify what the act is? But lots of other acts do appear in this legislation that would either seize on it or are saved in domestic legislation. In 11.2 you will see something else which has gone – lots of things have gone, but “knowingly concerned” has gone.

GUMMOW J: Of course they have gone because it is now hitched to the Convention.

MR GAME: I understand that, your Honour.

GUMMOW J: Where do we find anywhere in here in the Code a legislative recognition that it is hitched to the Convention?

MR GAME: I am sorry, I should have said 11.2 is not gone because of the Convention; 11.2 is gone because of a view about whether or not “knowingly concerned” should - - -

GUMMOW J: I am worried about 307.11.

MR GAME: Yes, your Honour. I am going to continue to agitate, your Honour, because I am not going to be able to answer that question, but I can take you to the relevant provisions and show how they work and may I do that, as imperfect as that may be, but if your Honours - - -

HEYDON J: Can I ask you this. On page 403, “import includes bring into Australia” and you say it does not really mean wider than that?

MR GAME: That is correct, but once they have been brought in, because it is inclusive, they have been imported. What I do say is that, however you look at it, by the time the consignee’s agent takes them, puts the 40-foot container on a semitrailer and drives it down Parramatta Road, they have long been imported. Section 300.4 saves domestic legislation.

HEYDON J: It saves State and Territory legislation.

MR GAME: Yes, your Honour, saves State and Territory legislation. Then we come to 302 and it is about “Trafficking controlled drugs” and under the Acts Interpretation Act that is a heading that you can have regard to. Then we come to cultivate, 303, sell - - -

GUMMOW J: Division 300.4 has some mention to a double jeopardy, has it not?

MR GAME: Yes, your Honour.

GUMMOW J: Anyhow, that is another constitutional cloud that floats above us.

MR GAME: Now, 307, you then come to “Import-export offences”. Now we have a different concept which is border controlled drugs and border controlled drugs are different. The schedule of them is different and that heading “Division” and that heading “Subdivision” both can be taken into account in construing the provision. One then comes to 307.11, again, the subdivision heading “Importing and exporting border controlled precursors”, and section 13 of the Acts Interpretation Act makes that something that can be taken into account. We come then to “the person imports or exports”. So “imports” and “exports” must take their meaning from each other in the sense they are both intended as concepts, that neither does “importing” connote the wider definition of a process nor does “export” permit to a wider concept of a process.

Then we have “Possession offences” under section 308. When one adds to that the absolute barrage of State legislation which deals with very, very extended notions of supply, there is more than adequate legislation, but my central point is this. Once one understands that this is a Code that one must identify an act, one must attribute to that act a mental state and that in this offence alone there are two different mental states, one attaching to intention, which is knowledge, and the other relating to what it is, which is recklessness. It is hardly likely that you would, shall I say, attract a definition which is a definition which neither is capable of defining the beginning or the end. In the directions of the trial judge in this case he said that, in effect, there is neither a particular point at which there is a beginning nor is there a particular point at which there is an end. One finds those in the latter part of those directions I took your Honours to.

My submission then is what “import” means in this statute is an important question but it is tolerably clear that as a matter of interpretation the approach taken by the Court of Criminal Appeal is correct. The facts of

this case are truly extraordinary because what they involve is, as one would say, a very late attempt to, as it were, latch the Crown case onto guilt of Mrs Campbell based on her own evidence that when she saw the boxes, she knew of the presence of the boxes when the truck was opened.

Your Honours, although there was a contest about how much she did to stop it, there was indisputable evidence that she – and the Crown, I will not say endorsed, but the Crown embraced this idea that she had taken steps to stop Sam in the past from doing this, ineffective as they were, but that reflects itself in the sentence that she got for this enormous quantity of pseudoephedrine. She got a non-parole period of 18 months, 13 of which she has served. So that itself reflects the view that the judge took of what in fact occurred in this case. We do have the treaty but it is in the Crown’s hands.

MS ABRAHAM: The Court can have a copy.

MR GAME: I will just leave it to the Crown to deal with it. That is all I wish to say.

GUMMOW J: Yes, Ms Abraham.

MS ABRAHAM: Your Honour, in the Crown’s submission, we are not attempting to hark back to the Customs Act. What we are saying is one needs to interpret the word “imports” in this legislation and that the meaning that the Crown was seeking to give to it is open on this legislation and indeed the reasoning process - - -

GUMMOW J: Have you got the relevant provision of the relevant Convention?

MS ABRAHAM: Whilst that is being handed to the Court, section 300 of the Act makes it clear that it reflects the Convention and, with respect, the Court of Appeal below recognised that it was an accurate description of the Convention in Courtney-Smith being the purpose. Obviously the scope of the Convention, at the bottom of page 2:

promote co-operation among the Parties so that they may address more effectively the various aspects of illicit traffic in narcotic drugs - - -

GUMMOW J: Where do we find the international obligation proposed and accepted by Australia, relevantly?

MS ABRAHAM: There is no definition in this Convention of “import” or “importation”. There is reference to “importation” in Article 3(1)(a)(i), “The production, manufacture, extraction”, and if one goes further down, “importation or exportation”.

GUMMOW J: Yes, thank you.

MS ABRAHAM: With respect, one is talking about a noun or a verb and, in my submission, the significance has been placed on that by the court below that it did not have the distinction between using the word “importation” and the word “imports”.

GUMMOW J: Yes, as Justice Heydon says, one has to go back to the 1961 and 1971 instruments.

MS ABRAHAM: One does and unfortunately I do not have a copy of that here.

GUMMOW J: All right.

MS ABRAHAM: Your Honours, in my submission, what is clear from my friend’s submissions is that the argument by the respondent is that this is, indeed, an incorrect decision and his argument is based on the fact that it must be an act being a single act and, in my submission, the court below did not accept that and quite properly so. If that is correct as in it is not a single act, the moment something lands in the country, in my submission, the question then becomes a beginning and an end.

In my submission, this approach that the court has taken is, with respect, extraordinarily artificial and, in my submission, a difficult one to apply, in effect, directing juries and the like as to the end of the word “imports”. In my submission, it is not supported by the reasoning of the court. It is an important point. There is conduct which had previously been regarded as part of that Act which is no longer part of that Act. It has not been considered by this Court and, in my submission, the application of the cases of Wilson v Chambers and Bull is clearly incorrect to decide this matter. So in those circumstances, in my submission, it is an appropriate vehicle to grant special leave.

GUMMOW J: Thank you. We will take a short adjournment.

AT 11.09 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.18 AM:

GUMMOW J: There are important questions of construction presented by section 307.11 of the Criminal Code 1995 (Cth). We note that the significance for matters of construction of the international instruments referred to this morning in the course of argument do not appear to have been emphasised in submissions made to the New South Wales Court of Criminal Appeal. However, we are not satisfied on the evidence in this case that the applicant has sufficient prospects of success on any appeal to this Court to warrant a grant of special leave. Special leave is refused.

MR GAME: If the Court pleases. I know this is an unusual application, but the case was brought as a test case and the Crown at page 159 offered to pay costs and I do not - - -

GUMMOW J: Yes, I saw that.

MR GAME: So I am holding in my hand an application for costs.

GUMMOW J: Well, we will see what Ms Abraham says about that.

MS ABRAHAM: We indicated that we would pay costs.

GUMMOW J: Very well. So we should say then special leave is refused with costs of the respondent to be borne by the applicant.

MR GAME: If the Court pleases.

GUMMOW J: We will adjourn to reconstitute.

AT 11.19 AM THE MATTER WAS CONCLUDED