Regina v El Hassan [2001] NSWCCA 543

Reported Decision : 126 A Crim R 477

New South Wales Court of Criminal Appeal

CITATION : Regina v El Hassan [2001] NSWCCA 543 FILE NUMBER(S) : CCA 60685/01 HEARING DATE(S) : 06/12/01 JUDGMENT DATE : 6 December 2001

PARTIES : Regina v Radwin El Hassan JUDGMENT OF : Stein JA at 1, 29, 31; Hidden J at 30; Howie J at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/11/0293 LOWER COURT JUDICIAL McGuire DCJ OFFICER :

COUNSEL : D.J. Fagan SC - Crown E.L. Fullerton SC - Applicant SOLICITORS : Commonwealth DPP - Crown Watsons Solicitors - Applicant CATCHWORDS : Criminal Law - Particular offences - Attempt to obtain possession of commercial quantity of a drug - Elements of the offence - whether prosecution must prove knowledge of quantity of the drug. Criminal Appeal Act 1912 - s 5F LEGISLATION CITED : Customs Act (Cth) 1901 - ss 233B, 235 The Constitution - s 80 Kingswell v The Queen (1985) 159 CLR 264 The Queen v Meaton (1986) 160 CLR 359 Cheng v The Queen (2000) 203 CLR 248 R v Mai (1992) 26 NSWLR 371 CASES CITED: Cheung v The Queen [2001] HCA 67 He Kaw Teh v The Queen (1985) 157 CLR 523 Kural v The Queen (1987) 162 CLR 502 Haughton v Smith [1975] AC 476 Britten v Alpogut [1987] VR 929 R v Lee (1990) 47 A Crim R 187 DECISION : Application for leave to appeal is granted but the appeal is dismissed.

IN THE COURT OF CRIMINAL APPEAL 60685/01 Stein JA HIDDEN J HOWIE J THURSDAY 6 DECEMBER 2001 REGINA v RADWIN EL HASSAN JUDGMENT

1 STEIN JA: The Court is in a position to proceed to judgment now and I will ask Justice Howie to deliver the first judgment of the Court. 2 HOWIE J: This is an application for leave to appeal under s 5F of the Criminal Appeal Act in respect of an interlocutory judgment of McGuire DCJ. The applicant was indicted before his Honour on a charge that without reasonable excuse he attempted to obtain possession of a commercial quantity of cocaine. The offence charged is contrary to s233B(1)(c) of the Customs Act (Cth). The trial of the applicant and that of an alleged co-offender was to commence before his Honour on 23 September 2001 but reached only that stage where Judge McGuire had ruled on a number of pre-trial issues one of which gives rise to the present application. For reasons which is unnecessary to recount, the trial will not now proceed this year and apparently not before Judge McGuire. 3 The issue raised by the application is a very narrow one. It concerns the elements of the offence with which the applicant has been charged. Put simply the matter for determination is whether the Crown is required to prove that the applicant intended to take possession of a particular quantity of cocaine, in the present case a commercial quantity, or whether it is sufficient that the applicant be proved to have intended to take possession of cocaine regardless of the amount involved. No point has been raised as to whether the determination made by Judge McGuire as to the elements of the offence charged is an interlocutory judgment or order for the purposes of s 5F, and I am prepared to assume, without deciding, that it is. 4 Notwithstanding that the judge before whom the trial will next be listed would not strictly be bound to determine any of the issues which were before Judge McGuire in the same way as his Honour did, the present matter gives rise to a discrete question of law and comity between judges of the District Court would generally require that the trial judge not embark upon a further consideration of the matter unless there was a good reason to do so. Further, the question raised by the application is fundamental to the issues that will arise on the trial of the applicant and the defence upon which he seeks to rely. If answered unfavourably to the applicant, it may well have some bearing upon the course that the proceedings take thereafter. In my opinion leave should be granted to the applicant to appeal against his Honour's ruling. 5 The facts upon which his Honour was asked to determine the question can be conveniently taken from the written submissions placed before this Court on behalf of the applicant. They are as follows:

"(a) On 25 April 2000 a machine contained in a crate arrived in Australia from Panama City. It was consigned to a person, Anastasiou, who was ignorant of the fact that the machine contained cocaine.

(b) On 1 May 2000 Customs officers removed 27 kilos of cocaine from the machine, replaced it with an inert substitute powder and effected delivery to Anastasiou's premises.

(c) Marouf El Hassan (the applicant's brother) collected the machine and took it to a garage belonging to Chapman for the purposes of cutting into the machine to recover the cocaine. The applicant did not assist in the collection.

(d) On 11 May 2000 the applicant and his brother went to the garage and were recorded discussing how to cut into the machine.

(e) On 12 May 2001, at about 10am, Marouf El Hassan went to the garage alone and along with Chapman cut into the machine and removed the bags of cocaine substitute. Whilst the bags were being removed he spoke with the applicant by phone. He then told Chapman that his brother was due to arrive with [a] person described as his brother's driver (this person is the applicant's co-accused Ali Chami).

(f) At about 10.45 am the applicant and Ali Chami arrived at the garage where the machine and the bags of substitute cocaine were in plain view.

(g) Marouf El Hassan showed the applicant (and Ali Chami) the bags and gave one to the applicant. There was discussion about the smell of the powder and when the applicant asked his brother if he had tasted it he said 'No' whereupon the applicant tasted it and declared that it was 'sugar….that it was not gear….that it should be put back'. The applicant also said 'I reckon they've opened them up and taken them out'.

(h) At that point the police entered the garage and the applicant (and others) were arrested." 6 The Crown case is that the applicant was attempting to obtain the cocaine that had been in the machine prior to its discovery by Customs officers. There is no dispute that the cocaine was of a commercial quantity when it was imported. The allegation of an attempt to obtain possession of the cocaine is based upon the fact that the commercial quantity of cocaine was no longer in the machine at the time when the applicant and others became involved in the removal of the drug that they believed was there. 7 Apparently the applicant's defence to the charge is that he intended only to obtain possession of a quantity of the cocaine for his own personal use. It is said that this would be an amount substantially less than both the amount discovered and removed by Customs officers from the machine, being 27 kilograms, and the commercial quantity provided for in Schedule IV of the Customs Act, being 2 kilograms. The applicant complains that he is unable to plead guilty to the offence because he denies intending to take possession of a commercial quantity of cocaine. He says that he is unable, therefore, to obtain the benefit of an early plea. 8 Judge McGuire, relying upon the High Court authorities of Kingswell v The Queen (1985) 159 CLR 264, The Queen v Meaton (1986) 160 CLR 359, and most recently Cheng v The Queen (2000) 203 CLR 248 held that, although the Crown was required to prove that the drug imported was not less than a commercial quantity, the applicant's state of mind as to the quantity of the drug of which he attempted to obtain possession was not a question for the jury. 9 Before this Court Ms Fullerton SC who appears for the applicant has argued that, in applying those decisions to the present charge under s233B(1)(c), his Honour failed to appreciate two facts which seem to be decisive and limit the authority of those decisions: they are that the charge was one of attempt to take possession of the drug and that the attempt was impossible to complete because the drug was no longer present in the machine. Ms Fullerton submits that in such a case, the quantity of the narcotic goods involved is "directly related to the intention to which the relevant conduct is directed, and must be proved as an element of the offence". She relies for support for that proposition on the decision of this Court in R v Mai (1992) 26 NSWLR 371 at 381G-382B. 10 Section 233B is relevantly as follows: (1) Any person who: ……. (c) without reasonable excuse (proof whereof shall lie upon him) has in his possession, or attempts to obtain possession of, any prohibited imports to which this section applies which have been imported into Australia in contravention of this Act; ……

shall be guilty of an offence. (1A) On the prosecution of a person for an offence against the last preceding sub-section, being an offence to which paragraph (c) of that sub-section applies, it is not necessary for the prosecution to prove that the person knew that the goods in his possession or of which he attempted to obtain possession had been imported into Australia in contravention of this Act, but it is a defence if the person proves that he did not know that the goods in his possession or of which he attempted to obtain possession had been imported into Australia on contravention of this Act. (1C) Any defence for which provision is made under either of the last 2 preceding sub-sections in relation to an offence does not limit any defence otherwise available to the person charged. (2) The prohibited imports to which this section applies are prohibited imports that are narcotic goods…. (3) A person who is guilty of an offence against sub-section (1) of this section is punishable upon conviction as provided by section 235…. 11 Section 235 of the Act contains provisions dealing with the maximum penalty prescribed for an offence under s 233B. It relevantly provides: (1) ….. (2) Subject to sub-sections (3) and (7), where: (a) a person commits an offence against sub-section 231(1), section 233A or sub-section 233B(1); and (b) the offence is an offence that is punishable as provided by this section, the penalty applicable to the offence is: (c) where the Court is satisfied: (i) that the narcotic goods in relation to which the offence was committed: (A) are a narcotic substance in respect of which there is a commercial quantity applicable; and (B) consist of a quantity of that substance that is not less than that commercial quantity; or …. a fine not exceeding $750,000 or imprisonment for life, or both or for such period as the Court thinks appropriate;. ….. 12 As was noted in the joint judgment of Gleeson CJ, Gummow and Hayne JJ in Cheng at [25] in relation to an offence under s 233B(1)(d) of being knowingly concerned in the importation into Australia of prohibited imports, an offence under s 233B(1)(c) does not require that a person have knowledge of the amount of the prohibited import which he possesses or attempts to possess before he can be convicted of the offence set out in the section. An offence is committed under paragraph (c) if the person, without reasonable excuse, attempts to obtain prohibited imports to which the section applies, being in the present case narcotic goods. There is nothing in any of the provisions of s 233B that refers to an amount of narcotic goods. No mention is made of quantities until one comes to s 235. 13 It was held by five Justices in Cheng that knowledge or belief of the quantity of the narcotic goods the subject of an offence under s 233B(1)(d) was not an element of the offence created by that section. The majority of the Court, applying Meaton was of the view that s 235 created no offence in relation to a particular quantity of narcotic mentioned in the section but that the section was merely prescribing the maximum penalty in relation to an offence under s 233B depending upon the quantity of the narcotic goods involved in the offence and their nature. Only Justices Gaudron and Kirby were of the opinion that either a combination of the two sections (per Gaudron J) or the terms of s 235 alone (per Kirby J) created discrete offences depending upon the amount of the narcotic goods alleged. The outstanding issue left unresolved by the decision in Cheng was the validity of s 235 in light of s 80 of The Constitution and the decision in Kingswell. That issue was further considered in the recent decision of Cheung v The Queen [2001] HCA 67. 14 It would seem to me that, on the face of it, the reasoning of the majority of the High Court in Cheng in relation to an offence under s 233B(1)(d) should apply with equal force to any of the offences contained in the section and in particular to an offence under s 233B(1)(c). I see no reason in logical or legal principle to hold that the mental element relevant to the existence of narcotic goods, or their nature or quantity, should vary depending upon what particular category of offence under s 233B is being considered. One might ask rhetorically why Parliament should have intended such a result? This is particularly so in respect of an offence under s 233B(1)(c), where it is unnecessary for the Crown to prove that the accused knew that the narcotic goods in his possession, or in respect of which he attempts to obtain possession, had been imported. 15 In He Kaw Teh v The Queen (1985) 157 CLR 523 at 584-586 Brennan J held that for an offence under s 233B(1)(b) and (c) it is sufficient if the Crown proves that the accused knew or believed of the existence of narcotic goods even if he was unaware of the nature of the narcotic goods. The decision in Kural v The Queen (1987) 162 CLR 502 proceeds on the same basis. The maximum penalty prescribed under s 235 differs depending upon whether the narcotic goods were cannabis or not. Whether the quantity of narcotic goods amounts to a commercial or trafficable quantity and, therefore, what maximum penalty is applicable to the offence committed depends upon the nature of the narcotic goods. However, notwithstanding that the nature of the narcotic goods imported can have a very significant impact upon the sentence to which the offender is liable, proof of knowledge or belief of the nature of the narcotic goods is not required for proof of an offence under the section. If the accused's knowledge of the nature of the narcotic goods imported is irrelevant to proof of an offence under s 233B(1)(c) or the maximum penalty applicable, I find it difficult to understand why the Crown should be required to prove knowledge or belief of the amount of the narcotic goods imported. 16 However, the argument in support of the applicant is that, because the offence alleged in the present case is an attempt committed in circumstances in which it was impossible to perform the completed offence, the situation is different and the elements of the offence change so that the Crown is required to prove the knowledge or belief of the accused as to the quantity of the drug which had been imported and in respect of which he sought to obtain possession. Again I confess that I do not understand why such a result should follow as a matter of logic or policy. Why, I ask myself, should it matter on the issue of the accused's guilt of an offence under the section that the Customs officers intercepted the drug and removed it before the accused could obtain possession of it? Would it be relevant that there was some other obstacle in the way of the accused obtaining possession of the narcotic goods which had been imported, for example if the narcotic goods were in the possession of a Custom's officer who never intended that the accused would obtain them even though the accused did all that was necessary on his part to come into possession of them? What if the drugs had been lost or inadvertently destroyed by the importing agency after being imported but before the accused could collect them? 17 But the criminal law does not always work with logical precision and the interaction of statute and the common law sometimes produces surprising or at least unexpected results. It is, therefore, necessary to consider in some detail what is said to be the authority for the result for which the applicant contends: the judgment of Hunt CJ at CL (as he then was) in Mai. 18 That was an appeal from a conviction for offences under the very same provision as is presently being considered. The appellant Mai was convicted of two offences, one of being in possession of portion of the drug imported and an offence of attempting to obtain possession of some other part of the drug. Unlike the applicant before the Court, in respect of the charge of attempt to obtain possession Mai had been charged with attempting to obtain possession of an identifiable part of the heroin imported. It is necessary to briefly refer to the facts to understand the charges and this Court's decision. The charge of possession arose from the discovery by Federal police of thirty blocks of heroin in a suitcase that had arrived by air as unaccompanied luggage. The police substituted for those blocks thirty blocks of plaster of paris, some of which contained a small amount of heroin as a controlled delivery. The suitcase was left at the airport in the hope that someone would collect it, but no one did. It was then taken to a room in a motel at Ultimo but again it was not collected. It was then moved to a motel at Bondi. 19 A man named Tran eventually came to the room at that motel and attempted unsuccessfully to open the suitcase. He then left the room and spoke to Mai. Tran then returned to the room, picked up the suitcase and took it to a motor vehicle in the boot of which he placed the suitcase. When he was arrested some time later, a number of the blocks were found in a sports bag in the vehicle, two of the blocks containing a small amount of the heroin actually imported. The suitcase was found in the premises of a former girlfriend of Mai, where he had resided at one time. There was other evidence linking Mai with the suitcase. Mai was later arrested and found to have one of the substitute blocks in his possession. That block contained no heroin at all. However, his possession of that block was the basis of the charge of attempting to obtain possession of the block of heroin for which the block of plaster of paris had been substituted. The offence charged in respect of this block was an attempt to obtain possession of a quantity of narcotic goods being not less than the trafficable quantity applicable to heroin. Mai was convicted of that offence. He was also charged with possession of the thirty blocks that had been placed in the suitcase by police based upon a common purpose to possess them with Tran. He was also convicted of that offence. 20 On appeal, Mai argued that he could not lawfully be convicted of attempt to have possession of narcotic goods in a situation where it was physically impossible for him to have obtained possession of those goods. The argument with which this Court was principally concerned was whether the decision of the House of Lords in Haughton v Smith [1975] AC 476 should be applied to an offence under the Customs Act. It is unnecessary to repeat the arguments that led the Court to hold that it should not follow the House of Lords but rather should apply decisions of the Full Court of Victoria and the Court of Criminal Appeal of Western Australia in Britten v Alpogut [1987] VR 929 and Lee (1990) 47 A Crim R 187. Mai has frequently been applied in this State and its correctness is not presently in doubt. 21 Hunt CJ at CL with whom the other members of the Court agreed stated (at 381G-382C): "I interpret the law laid down in Britten v Alpogut (and adopted in R v Lee ), when applied to the general law of attempt, as being that, in circumstances where it is in fact physically impossible for the accused to commit a particular crime, an attempt to commit that crime has nevertheless been proved if the Crown establishes:

(i) that the accused intended to do the acts with the relevant state of mind which together would comprise the intended crime ( that is, if the facts and circumstances had been as he believed them to be, he would have committed that crime) , and

(ii) that, with that intention, he did some act towards the commission of that crime which went beyond mere preparation and which cannot reasonably be regarded as having any purpose other than the commission of that crime.

Thus, it was held in Britten v Alpogut that a person who was in possession of a substance when he arrives in Australia which he believed was a prohibited import, but which was in fact another substance which was not prohibited, is guilty of an attempt to import a prohibited import into Australia, contrary to s 233B(1)(b). And it was held in R v Lee that a person who is in possession of a small quantity of heroin in a parcel addressed to him and sent from overseas is guilty of attempting to obtain possession of the substantial quantity of heroin which he believed the parcel contained, contrary to s 233B(1)(c) of the Customs Act 1901 (Cth) , notwithstanding that the parcel had been intercepted by the authorities and a major portion of the heroin originally in the parcel had been removed before its delivery to him. In each case, the fact that it was physically impossible for the accused to achieve the particular crime which he had intended to commit was irrelevant." 22 It is within this passage that the applicant finds support for the argument placed both before Judge McGuire and this Court. In particular the applicant relies upon the passage that I have underlined. The argument is, as I understand it, that in the exceptional case of a charge of attempting to take possession of narcotic goods where it is in fact impossible to take possession of them, the Crown has to prove knowledge or belief on the part of the accused of not only the existence of the narcotic goods sought to be obtained, but also the quantity of them. I presume that to take the argument to its logical conclusion, although it was unnecessary in the present case for counsel for the applicant to do so, the Crown must also prove knowledge or belief in the accused of the nature of the narcotic goods imported. 23 In my opinion the argument is misconceived. It misunderstands what Justice Hunt meant in that part of his judgment that I have underlined. At Roman numeral one his Honour was indicating that, in order to prove an attempt in the situation where, for whatever reason, the accused could not complete the act attempted, the Crown had to prove that the accused had intended to do the acts which would have amounted to the commission of the offence charged with the relevant state of mind required for the commission of the completed offence: in Mai the relevant state of mind was knowledge or belief that the substance to be possessed was narcotic goods and an intention to obtain possession of them. In Britten v Alpogut the relevant state of mind was that the accused intended to import what was known by him to be a prohibited import. The relevant state of mind did not include in either case knowledge or belief of either the nature of the narcotic goods or their quantity. 24 In my view the words in parenthesis in the passage from Mai I have quoted above were not intended to restrict or refine in any way the words preceding them. In particular, they were not intended to make necessary for the proof of the crime charged that which was otherwise irrelevant. They were inserted to make clear what should have been obvious: that in a case where there were no narcotic goods present (as was the case in both Britten v Alpogut and in the attempt charge in Mai) the inquiry as to the relevant state of mind is conducted in the context of the facts and circumstances as the accused believed them to be and not as they actually existed. It is clear to my mind that the word "relevant" should be implied before the words "facts and circumstances" because facts and circumstances which have no bearing upon the issue of the accused's guilt of "that crime", that is the intended crime, are irrelevant. 25 The argument for the applicant is in my view an attempt to resuscitate what Murphy J in Britten v Alpogut referred to as the heresy in Haughton v Smith: a change of focus in attempt cases from a consideration of the intention of the accused to an inquiry into the ultimate consequence of the acts committed by him. The argument suggests that the criminality of the accused's intention can be affected by facts of which he knows nothing. As was explained in Britten v Alpogut, that line of reasoning is fallacious. Since Britten v Alpogut there has never been, if there ever was, a difference in the mental element for an offence under s233B depending upon whether or not the acts committed did result, or could have resulted, in the commission of an offence under the Act. Nor in my view does the necessary mental element depend upon whether the substantive offence or attempted offence has been charged. In Britten v Alpogut the respondent in that case was guilty of the offence under s 233B(1)(b) even though what he imported were not in fact narcotic goods. It was sufficient that he committed the act of importation with the necessary mental element, being an intention to import something that was a prohibited import. 26 The fact that Customs officers or Federal agents remove the drug after its importation cannot possibly affect the necessary mental element to be proved for an offence under s 233B. That fact is irrelevant to any legal issue arising at the trial of a person under the section. In the present case the relevant mental element to be proved by the Crown is an intention on the part of the applicant to take possession of something that he knew or believed to be narcotic goods. His knowledge or belief in either the nature of the narcotic goods or its quantity is irrelevant to the proof of the offence charged. Nor is his knowledge or belief as to the quantity of the drug a necessary condition to expose him to the penalty provided under s235 in respect of the narcotic goods imported, that is life imprisonment; Cheng at [25]. In my view the statement in the charge of what has been, probably imprecisely, called a circumstance of aggravation makes no difference to the mental element to be proved by the Crown. 27 It follows that in my view the determination of Judge McGuire as to the essential elements of the offence with which the applicant has been charged was correct and the appeal should be dismissed. It was unnecessary for the present appeal to determine whether his Honour was also correct in finding that the Crown had to prove that the drugs imported were of not less than the commercial quantity. It should not be taken that this judgment holds that his Honour was correct in coming to that view. 28 I propose that the application for leave to appeal be granted but the appeal be dismissed. 29 STEIN JA: I agree. 30 HIDDEN J: I agree. 31 STEIN JA: Accordingly, the orders of the Court will be, leave to appeal is granted but the appeal is dismissed. ************

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