Campbell v R

SPIGELMAN CJ : The appellant was convicted upon an indictment containing one count that she: “… between about 12 May 2006 and 18 June 2006 at Sydney, in the State of New South Wales did import a substance, intending to use or believing that another person intended to use, any of the substance to manufacture a controlled drug, the substance being a border controlled precursor, namely pseudoephedrine, and the quantity imported being a commercial quantity.”

The substance, pseudoephedrine, had been discovered by the Australian Customs Service in the form of cold tablets contained in 36 boxes secreted in a shipping container of furniture imported from Indonesia. The furniture was destined for the appellant’s furniture business.

The offence charged is created by s 307.11 of the Criminal Code Act 1995 (Cth) (“the Code”) which provides: “307.11(1) A person commits an offence if: (a) the person imports or exports a substance; and (b) either or both of the following apply: (i) the person intends to use any of the substance to manufacture a controlled drug; (ii) the person believes that another person intends to use any of the substance to manufacture a controlled drug; and (c) the substance is a border controlled precursor; and (d) the quantity imported or exported is a commercial quantity. Penalty: Imprisonment for 25 years or 5,000 penalty units, or both. (2) The fault element for paragraph (1)(c) is recklessness. (3) Absolute liability applies to paragraph (1)(d).”

By s 3.1 of the Code an offence consists of physical elements and fault elements. Section 3.2 provides: “3.2 In order for a person to be found guilty of committing an offence the following must be proved: (a) the existence of such physical elements as are, under the law creating the offence, relevant to establishing guilt; (b) in respect of each such physical element for which a fault element is required, one of the fault elements for the physical element.”

By s 4.1(1)(a) “conduct” is identified as a physical element. “Conduct” is in turn defined by s 4.1(2) to mean “an act”. For present purposes the relevant act is expressed in s 307.11 by the word “imports”.

There being no specification of a fault element in s 307.11, the default provision for the physical element of conduct in s 5.6(1) applies. Accordingly, the applicable fault element is “intention”.

Section 5.2(1) provides: “(1) A person has intention with respect to conduct if he or she means to engage in that conduct.”

The appellant pleaded not guilty and was convicted after trial by jury. His Honour Judge Berman SC imposed a sentence of imprisonment of 2 years and 6 months but directed, pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), that Mrs Campbell be released after serving 18 months upon entry into a recognizance to be of good behaviour for a period of 12 months.

The appellant appeals from her conviction. The Crown appeals from the sentence imposed as manifestly inadequate. Background Facts

Mrs Campbell, formerly a pharmacist, conducted a furniture business from which she sold furniture manufactured in Indonesia. The appellant has always accepted that she imported, and intended to import, a container of furniture. She denies, and has always denied, that she intended to import the “substance” contained in packages which were within the container with her furniture.

Over a period of about five years she had received 25 shipments of furniture, which had been arranged by her Indonesian business associate, Mr Samuel Rantesalu. Mrs Campbell became aware of the fact that Mr Rantesalu had included packages in seven of those 25 shipments to her, which packages were not part of any order she had placed. The packages were not declared for customs purposes. Mr Rantesalu had arranged for these packages to be picked up from her business premises after each container had arrived at those premises. That is what happened on the occasion of the shipment the subject of the charge.

On Mrs Campbell’s evidence, she had made numerous efforts to stop Mr Rantesalu engaging in this practice but to no avail. She also admitted that she had opened some of these packages and became aware that they contained cigarettes. Furthermore, on at least one occasion (perhaps three occasions) there had been a shipment, like the shipment the subject of the charge, which contained a quantity of cold tablets containing the same precursor substance. As noted above, Mrs Campbell was a pharmacy graduate and had conducted a pharmacy business before the furniture business.

In summary the relevant chronology is as follows: · 5 June 2006 – The appellant is advised of the imminent arrival of a consignment of furniture and of a directive from the Australian Quarantine and Inspection Services (“AQIS”) referring to random searches of the container. · 11 June 2006 – A ship with the container arrived in Australia. · 13 June 2006 – The container was cleared through Customs and the appellant’s customs agent was advised of clearance, subject to AQIS inspection. · 13 June 2006 – A Customs officer conducting an x-ray analysis of the container identified an anomaly. Later that day a physical examination and unpacking of the container identified 36 boxes which contained a number of smaller yellow boxes. ·

and 16 June 2006 – The examination of the 36 boxes by the Australian Federal Police involved unwrapping 24 of those boxes, which contained a total of 96 smaller boxes. · The inspection revealed the presence of a large number of packets of Sudafed and Actifed, commercially available medications which contain pseudoephedrine. The expert evidence indicated that the drugs would yield somewhere between 50.1 and 70.6 kilograms of methylamphetamine hydrochloride (commonly known as ice). Depending upon the extraction process undertaken, the street value of this quantity was somewhere between $20 and $56 million. ·

June 2006 – The container was repacked with 24 of the 36 boxes for purposes of a controlled delivery. · 16 June 2006 – The appellant was advised that the AQIS inspection had been cancelled. ·

June 2006 – The container was picked up by a transport company on the instructions of the appellant’s customs agent. · 17 June 2006 – The container was delivered to the back of the appellant’s shop at Leichhardt and the furniture, but not the 24 boxes, unpacked. ·

June 2006 – The appellant indicated to her Indonesian associate that he should arrange to have the additional boxes picked up. · 18 June 2006 – Two men arrived at the container located at the rear of the premises and took away the 24 boxes which contained the drugs, as arranged between the appellant and Mr Rantesalu some two hours earlier. The two men were subsequently arrested. The appellant and her husband were also arrested on that day. 14 Between 16 June and 18 June 2006, intercepts of telephone services used by the appellant occurred pursuant to warrants. The content of conversations and text messages intercepted was an important part of the Crown case against the appellant. Subsequently, she agreed to a record of interview and her answers to questions during the interview were also relied upon. 15 A range of facts were relied upon in the proceedings on the issue of the appellant’s intention. On her behalf, particular reliance was placed on her own evidence, and that of her husband, to the effect that she and/or her husband objected when they became aware that Mr Rantesalu had included additional packages in earlier consignments. On their evidence they had asked him to desist from this practice and, on some occasions, had received assurances that he would do so. 16 The Crown relied, on the issue of intent, on the fact that the appellant knew that Mr Rantesalu was intending to come to Australia shortly after the arrival of the shipment that led to the charges. She had acknowledged in her record of interview that he came to Australia from Indonesia when there had been additional packages in her earlier shipments. This was the basis of an inference that she, at the least, expected the shipment in issue to contain additional packages. 17 A number of intercepted telephone calls and SMS messages were also relied upon by the Crown on the issue of intention, including the following: · At 1.14pm on 16 June the appellant learned from her shipping agent that the container was not going to be inspected by AQIS, contrary to earlier advice. She immediately called her husband and said “There is a God”. She said that she had had nightmares and added “I just feel like going running around the street screaming hooray”. She also said “I feel like crying, you don’t know how emotional I am its just been killing me”. She also said that she did not intend to tell others, no doubt relevantly Mr Rantesalu, and she would “let them … suffer … the way I did”. · She did not inform Mr Rantesalu of this turn of events in SMS messages she sent to him that night and during the next day, ie Saturday 17 June 2006. · At 11.09am on 18 June Mr Rantesalu telephoned the appellant and, on the Crown case, the two persons expressed elation at the information that there would be no inspection of the container. She said words such as “there must be a God” and, with reference to Mr Rantesalu’s “prayers”, she said “well it worked”. She also said “we’re very, very lucky and um we have to sort something else to do”. Mr Rantesalu indicated that he would ask “my friend to come in quickly” and a time later that day was arranged. · At 2.10pm on 18 June the appellant sent a text message to Mr Rantesalu. She said “Thank God our prayers were heard”. The Direction as to the Elements 18 At trial the submissions of counsel, and his Honour’s directions to the jury, were structured in large measure in accordance with a document handed to the jury identifying six elements of which they had to be satisfied beyond reasonable doubt in order to convict the appellant. Although on appeal issues arise only with respect to some of these elements, it is pertinent to set out the whole of the document which identifies the issues at trial and places the facts in the context of those issues.

The document read: “The Elements of the Offences 1st Element The Crown has to prove beyond reasonable doubt that Mrs Campbell imported a substance (whether or not she knew about the presence of the substance), namely the contents of the extra packages that were in shipping container DLCU 2141810, by arranging for that container to be imported. Comment It is accepted by the accused that this happened. She agrees that she imported the substance because she imported the shipping container and the extra packages (with the substance inside them) were in that shipping container. 2nd Element The Crown has to prove beyond reasonable doubt that Mrs Campbell intended to import the substance that was in the extra packages. That is, the Crown has to prove beyond reasonable doubt that Mrs Campbell intended to import those extra packages. She would have intended to import the extra packages if she meant that to happen. Comment This element is disputed by the accused. This element does not require that the Crown prove that Mrs Campbell knew or was even aware of what was in those packages, but it does require the Crown to prove that she intended to import them, whatever they contained. 3rd Element The Crown has to prove beyond reasonable doubt that there was pseudoephedrine in the substance. Comment It is accepted by the accused that this happened. She agrees that the substance in the extra packages was tablets containing pseudoephedrine. 4th Element The Crown has to prove beyond reasonable doubt that the quantity of pseudoephedrine imported exceeded 1.2 kg. Comment It is accepted by the accused that this was the case. She agrees that the quantity of pseudoephedrine imported exceeded 1.2 kg. 5th Element The Crown has to prove beyond reasonable doubt either that: · Mrs Campbell knew that there were tablets with pseudoephedrine in them inside container DLCU 2141810, or · Mrs Campbell was aware of a substantial risk that that there were tablets with pseudoephedrine in them inside container DLCU 2141810 and, in the circumstances known to her, it was unjustifiable for her to take that risk by importing the container. Comment This element is disputed by the accused. She denies that she knew that there were tablets with pseudoephedrine in them inside container DLCU 2141810 and she denies that she was aware of a substantial risk that that was the case. If you find beyond reasonable doubt that Mrs Campbell knew that there were tablets with pseudoephedrine in them inside container DLCU 2141810 then the Crown has proved this element. Mrs Campbell denies that she knew that there were tablets with pseudoephedrine in them inside container DLCU 2141810. The Crown has also proved this element if you are satisfied beyond reasonable doubt that Mrs Campbell was aware of a substantial risk that that there were tablets with pseudoephedrine in them inside container DLCU 2141810 and, in the circumstances known to her, it was unjustifiable for her to take that risk by importing the container. Mrs Campbell’s case is that she denies that she was aware of a substantial risk that that there were tablets with pseudoephedrine in them inside container DLCU 2141810, but if you were to find that she was aware of that risk, she does not suggest that it was justifiable for her to take that risk. The result is that you would find this element satisfied if the Crown proves beyond reasonable doubt that either that: · Mrs Campbell knew that there were tablets with pseudoephedrine in them inside container DLCU 2141810, or · Mrs Campbell was aware of a substantial risk that that there were tablets with pseudoephedrine in them inside container DLCU 2141810. 6th Element You have to find that Mrs Campbell believed that another person intended to use some or all of the pseudoephedrine to manufacture a controlled drug (methylamphetamine hydrochloride, amphetamine and methyl amphetamine are all controlled drugs). You should find this element satisfied unless Mrs Campbell proves to you, on the balance of probabilities, that she did not have that belief. Comment Mrs Campbell has not attempted to prove that she did not believe that another person intended to use some or all of the pseudoephedrine to manufacture a controlled drug, because her case is that she had no knowledge of, or any awareness of, a substantial risk that there were tablets containing pseudoephedrine in the shipping container. So, if the Crown has proved elements 1 to 5 beyond reasonable doubt then because Mrs Campbell has not attempted to prove that element 6 is not satisfied, the result would be that Mrs Campbell should be found guilty. If, on the other hand the Crown has not satisfied you beyond reasonable doubt of elements 1 to 5, then Mrs Campbell should be found not guilty.” The Crown Case

It is common ground that the Crown relied at trial on the proposition that the physical element, being the act ‘imports’ within the meaning of s 307.11, could occur after the act of landing the goods in Australia or their clearance through Customs.

In the course of his summing-up to the jury his Honour made reference, more than once, to the way the Crown relied on the importation as an act continuing up to at least the point at which the packages were removed from the appellant’s premises. He said: “… when I talk to you about this concept of importation either in this first element or any other part of the elements, it is important that you understand we are not only talking about the exact moment that the container arrived in Australia, or the exact moment it cleared customs, or even the exact moment that the container was delivered to Chic Teak. Importation begins before the goods leave their point of origin overseas and continues after their arrival in Australia to the point of delivery to their final destination. Now in this case, the point of delivery of their final destination goes beyond the delivery to the Chic Teak premises. In fact, in this case, the importation of the substance was still in progress when Mr Zhang and Mr Baka were arrested, and in fact, it was those arrests which brought the importation in this case to an end.” (SU 25-26)

The appeal focused on the Crown’s reliance on the entire period of the process of importation and its relationship to the fault element of the offence. His Honour related this concept of importation to the issue of intent in his summing-up: “You might want to remember here that the concept of importing continues past the actual arrival into Australia of the container. 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 that there were extra packages, that Mrs Campbell must have been intending to import those packages. On the other hand, the accused says, ‘I didn’t intend to import them.’ More accurately, the submission put to you on behalf of the accused by Mr Bromwich, is that the crown has not proved beyond reasonable doubt that she did intend to import those extra packages.” (SU 31)

In the course of submissions to the jury, the Crown referred to the sequence of events when the boxes were removed from the appellant’s Leichhardt premises by two men in a truck, which was eventually stopped and the men arrested. The Crown Prosecutor said: “It is at that point that the importation ended. This is an important point to which I’ll go to later ladies and gentlemen. But the importation of those boxes, those packages was a continuing event on the ship, through the container examination facility, on the truck, off the truck, stored on the concrete apron for about twenty-four hours, twenty-five hours and then transported onto Campbell Street.” (T 1221)

The Crown Prosecutor then addressed the jury on the Crown case with respect to the six elements, set out above, which were the subject of agreement between legal representatives of the parties and placed before the jury by his Honour.

On the issue of intent, the Crown Prosecutor outlined the evidence said to be relevant to this issue, including the appellant’s conduct at the time that the container was opened at her premises and the packages were removed. Particular reliance was placed on the telephone intercepts in this regard.

After setting out certain intercepts the Crown Prosecutor said the following: “In summary, if you look at the evidence of the number of prior containers that have been loaded up. The failure of the requests, so called, to have any effect, the telephone intercepts and the tone within them. The common suffering, and the failure to admonish Sam after all that had gone on before, and according to Mr and Mrs Campbell, this was the largest importation too. By far the largest they say, and then the assistance providing in arranging for the packages to be collected. You can infer intent. Even if that is not enough to convince you, remember that Mrs Campbell says that she did not know until the container was half unpacked and Simon said something. If you accept that, of course at that point, the importation was ongoing. So if you accept that there was less than an intent, up until 2 o’clock no [sic] the Sunday, in my submission, that is not open to you after 2 o’clock on the Sunday, because Mrs Campbell knows about the extra boxes then.” (T 1236)

It is the second of these two paragraphs upon which the appellant relies as setting out, for the first time, this alternative basis for liability. (It appears likely that the references to “Sunday” were an error for Saturday, but nothing was said to turn on this).

The Crown Prosecutor immediately reinforced the proposition and added, giving the correct day: “The importation is still ongoing at 2 o’clock on the Saturday. The truck was not going to arrive until the next day as we know. The importation was continuing when the truck to [sic] the boxes into Campbell Street, and from the very latest about 2 o’clock on the Saturday, Mrs Campbell knows about the boxes. She said she knew about them, because she saw them. She then, with Mr Campbell secures the packages over night [sic], she talks to Sam personally, and arranges the pick up for the boxes. She arranges for Simon to be there, and in fact raises that fact that Simon will be there with Sam on the telephone, and then Mr Campbell does turn up at her request and then assists. At the very least, this part of the importation is intended in the crown’s submission, and is sufficient to prove the second element.” (T 1237)

Furthermore, he said: “So either Mrs Campbell knew the boxes were coming, she assumed they were coming, she wasn’t surprised to see them there or as the importation was ongoing, she became 100% aware, had a 100% knowledge of the existence of the boxes. She knew and she persisted in the importation, and that is what we point to in relation to the second element ladies and gentlemen.” (T 1237)

The appellant submits that this was the first time the prosecutor had submitted that the requisite intention could have been formed for the first time on 17 June 2006, when Mrs Campbell saw the additional packages. This submission was not contested on the appeal.

In the absence of the jury, counsel for the respondent expressed concern with the proposition that an intention could come into existence for the first time at 2 o’clock on the Saturday.

His Honour’s first reaction was: “Well if the importation is continuing, and Mrs Campbell does something, after 2 o’clock Saturday, in furtherance of that importation, knowing that the packages are there, why isn’t that – what’s wrong with that?” (T 1238)

The prosecutor returned to the proposition, when addressing the jury about the identified second element. He reiterated his earlier summary of the evidence in this regard in the following passage, in which he also addressed the alternative case: “The second element. The crown has to prove to you beyond reasonable doubt that Mrs Campbell intended to import the substance that was in the extra packages, and you will recall that this is a disputed element. That is we have to prove beyond reasonable doubt that Mrs Campbell intended to import those extra packages. I point to six things in summary, ladies and gentlemen. The number of prior containers, the failure of any requests to have any effect, the telephone intercepts and their tone, the common suffering of withholding information from Sam and the failure to admonish Sam at all after the last and according to the Campbells, the largest importation. And six, the assistance provided in arranging for the packages to be collected. These all go to an intent in relation to the importation in relation to those packages. And remember of no relevance to this element is what was actually in the packages. It’s just in relation to the intent to import those packages and remember the importation starts back in Indonesia and continues until Campbell Street when Mr Baka and Mr Zhang, as we found out they are, were arrested. So bearing in mind at the very least we say this part of the importation is intended. That is when Mrs Campbell knows about the boxes, even though we say she knew about them before she knows about them from Saturday afternoon and yet persists in her participation.” (T 1258-1259) (emphasis added)

In submissions to this Court, the appellant noted that of the six matters relied upon in this passage on the issue of intent, four occurred five to seven days after the container had landed.

During the course of the summing-up, in the absence of the jury, counsel for the appellant at trial made the following submission: “… during the crown address, he raised this issue of acquiring, if you like, intention on the Saturday afternoon of 17 June 2006 upon seeing the boxes and your Honour may recall I raised a doubt about it and your Honour asked me to articulate it and at that time, I couldn’t and didn’t. I’ve given it quite a deal of thought and I’d be asking your Honour to, in effect, withdraw that line of reasoning from the jury for this reason. When one looks at these cases that deal with importation as a process, all of them, I think all of them, Sukkar(?), and Lam, and Leff(?), and all the rest, are all knowingly concern cases and they concern persons who have become involved at a point in the process including a point in the process after the landing of the goods in Australia. And when you look at all those process of importation cases, they involve someone becoming an accessory to a process. In my submission, that line of reasoning really isn’t available for a principle because in my submission when you are the importer, you can’t acquire the state of mind in that fashion after the goods have been cleared.” (T 22/8/07 19)

His Honour said that he did not intend to withdraw the Crown submission.

Furthermore, during the course of his summing-up his Honour reiterated the Crown case to the jury without any adverse comment. He said: “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 up until the time of the arrest of Mr Baka and Mr Zhang in Campbell Street. So the crown says, bear this in mind: From about 2 o’clock on the Saturday until the arrest in Campbell Street the following day Mrs Campbell knows 100 per cent of the presence of the extra packages and she continues to arrange for their collection by people working on behalf of Sam after that time, 2pm Saturday, when the presence of the extra packages is revealed. The crown says that is enough to prove the second element because at the very least by 2pm on the Saturday Mrs Campbell knew about the boxes and persisted in the importation. He said that, looking at the case even on this basis, Mrs Campbell must have done what she did intending to import those extra packages. The crown reminds you that this concept of importation goes beyond the delivery of the container to Chic Teak and continues up until the time Mr Zhang and Mr Baka are arrested. The crown says that because Mrs Campbell organises with Sam the time for people who are acting on behalf of Sam to collect the packages you could conclude from that that Mrs Campbell intended to import the extra packages.” (SU 50-51) (emphasis added)

It is apparent that the case was left to the jury to the effect that the jury could convict the appellant on the basis that the requisite fault element of intention to import had been formed for the first time at or about 2.00pm on Saturday 17 June 2006, when the appellant saw the additional packages. The factual basis for the appellant’s contention has been established. Issues on the Appeal

This appeal focuses on the fault element which is an essential element of the offence. Did the appellant intend to import the substance? In the circumstances, this issue is equivalent to asking whether the appellant intended – in the sense of “meaning to engage” in the act – to import the additional 36 boxes.

The Crown, in its opening and in submissions at trial, identified the relevant physical element of the offence, being the act of importation, as extending after the arrival of the container in Australia through, at least, to the point at which the packages were picked up at the appellant’s Leichhardt premises, indeed to the point where the two men who picked the boxes up were arrested. The Crown linked the fault element, being the intention of the appellant to engage in conduct so identified. The Crown case on fault was that the appellant intended to import the substance in the sense that she intended the conduct commencing with the opening of the container at her premises and concluding with the pickup.

In a submission, which the appellant contends constituted an alternative case (a characterisation which it is convenient to adopt), the Crown indicated to the jury that it could find the requisite intent by reason only of the conduct of the appellant commencing on 17 June, when she became aware of the additional boxes and continuing on 18 June when she permitted the representatives of Mr Rantesalu to pick up the packages at her premises, which occurred some two hours later. Counsel for the appellant asked the trial judge to withdraw that submission from the jury. His Honour refused to do so.

The issue to be determined on appeal is whether the conviction is contrary to law because the alternative case was left to the jury. The appellant contends, alternatively: (i) The physical element of importing was complete before the opening of the container on 17 June and, accordingly, the physical element and fault element did not coincide. (ii) Even if the physical element of importing was not complete, the appellant could not be guilty of importing based only on conduct occurring on or after 17 June. (iii) Even if (ii) is wrong, the trial judge failed to appropriately direct the jury as to the evidence by which the appellant’s conduct constituted the physical and fault elements of this alternative case. (iv) The Crown impermissibly changed its case after the close of the evidence. The “Imports” Offence

The appellant’s first submission turns on the meaning of the word “imports” in s 307.11(1)(a) of the Code. The appellant contends that the physical and fault elements of an offence under the Code must coincide in time. Mr T Game SC, who appeared for the appellant on the appeal, submits that the act of importation was complete before 17 June 2006 when, on the Crown’s alternative case, the fault element of intention was said to first arise.

I agree with the first step in the submission. Pursuant to s 3.2(b) of the Code, “in respect of each … physical element” the specified fault element “ for ” each physical element must be proved. As Mr Game submitted, the fault element must exist at the time of the commission of, or existence of, the physical element to which it attaches.

This submission distinguishes between the act of importing, with which the appellant was charged, and the process of importation which remains significant for accessorial offences, with which she was not charged. The appellant contends that the word “imports” in s 307.11(1)(a) refers to a precise point in time, limited to the act of landing goods in Australia or, alternatively, to clearance through Customs. A further alternative is the point of time, which may be after “clearance”, when the goods become physically available to the person who can remove them from the point at which they were “cleared”.

Mr J Agius SC, who appeared for the respondent Crown, contends for a broad concept of the word “import”, not limited in such a manner. The Crown contends that the point at which ‘importing’ can be said to have ceased is not susceptible to a simple formulation, although it can be identified in a particular case. A possible general formulation as to when ‘importing’ is complete is that goods have arrived at their final destination prior to distribution within Australia. An appropriate metaphor for the endpoint is that the goods have been delivered to the Australian wholesaler.

The appellant’s submissions in this respect commenced with reliance on the judgment of Barwick CJ in The Queen v Bull (1974) 131 CLR 203 at 212.2 and 215.7 where his Honour identified the “natural meaning” of the word “importation” as “landing” the goods or “entry into the port with the intention of being landed”.

The idea that words have a “natural and ordinary meaning” is not a proposition that is applied without regard to context. As Lord Hoffmann said in Charter Reinsurance Co Ltd v Fagan [1997] AC 313 at 391: “I think that in some cases the notion of words having a natural meaning is not a very helpful one. Because the meaning of words is so sensitive to syntax and context, the natural meaning of words in one sentence may be quite unnatural in another. Thus a statement that words have a particular natural meaning may mean no more than that in many contexts they will have that meaning. In other contexts their meaning will be different but no less natural.”

The contemporary approach to statutory interpretation is not as rigid as it once was. The courts no longer approach a statute with scissors in one hand and a dictionary in the other.

Context must be considered in the first instance and not merely after some kind of ambiguity has been thought to arise. Furthermore, “context” is used in a wide sense to encompass the purpose of the legislation (see K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 315; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69]; Network Ten Pty Ltd v TCN Channel Nine Ltd [2004] HCA 14; (2004) 218 CLR 273 at [11]–[13]).

In The Queen v Bull the accused were bringing cannabis by boat to Australia when they detected surveillance and dumped the drugs overboard. This occurred after the boat had crossed the then three mile limit for Australian territorial waters. The issue was whether this was an act of ‘importation’ or whether landing in Australia or something else was required in order to constitute an offence under s 233B(1)(b) of the Customs Act 1901 (Cth).

That section relevantly stated: “233B(1) Any person who– … (b) imports … into Australia any prohibited imports to which this section applies … … shall be guilty of an offence.”

In his judgment, Barwick CJ made it clear that the issue was “when goods are imported into Australia within the meaning of the Act ” (at 211.9). In the passage primarily relied upon by the appellant, his Honour said (at 212): “The question is not what constitutes importation in an abstract or universal sense: the question is when, according to the provisions of the Act, are goods imported into Australia. However, in general, importation of goods, in my opinion, according to the natural meaning of the word, involves landing them, or bringing them within a port for the purpose of landing them in the country or place in relation to which importation is regulated.”

His Honour then proceeded at 213-215 to consider the overall scheme of the Act and did so “in order to discover what meaning is required by the statute to be given to the expressions ‘import into Australia’ or ‘importation into Australia’” (at 213).

Numerous features of the particular statutory scheme were emphasised by his Honour including: · The fact that goods are subject to the control of Customs from the time of importation (at 213.9). · The control of Customs extends to goods on a ship within the limits of a port but not intended to be landed (at 213-214). · Entries may be made for goods subject to Customs for one of the four identified purposes (at 214.2). · Ports are proclaimed as ports for purposes of the Act and the limits of such ports precisely fixed (at 214.7). · Requirements are made for the arrival of a ship which means entry of the ship within the limits of the port (at 214-215).

On the basis of this analysis his Honour said: “The scheme of the Act thus seems to be to control the due importation of goods by channelling shipping through proclaimed ports having defined limits and through boarding stations within the port to appropriate wharfage. … All of the provisions to which I have so far referred operate on the footing that importation takes place on entry into port of the goods intended to be discharged from the ship at that port. The requirement of entry of imported goods unshipped necessarily denies the proposition that importation only takes place in any case when goods are landed. It seems to me that the conclusion that entry into the port with the intention of being landed constitutes importation, is implicit throughout the reasons for decision in Wilson v Chambers & Co Pty Ltd [(1926) 38 CLR 131] …” (at 215).

His Honour proceeded to consider the Crown submission that importation occurred upon the entry of the ships within the three mile limit. His Honour referred to various statutory requirements of the Customs Act with respect to the operation of ships and the responsibilities of masters with respect to movement of ships, together with the powers of Customs officers to board and search ships. His Honour noted that the obligation on a master by s 59 of the Act to bring the ship to for boarding would be otiose “if the goods in the ship are imported so soon as the ship arrives within territorial waters” (218.7).

His Honour went on to hold (at 218): “… it would not be reasonable or practicable to impose on the owner of goods in a ship which has entered such marginal waters as from the moment of such entry the obligations which the Act places on an importer. Such a person would be unaware of the time of such entry. He could scarce be required immediately thereafter to enter the goods, even by a sight entry.”

Finally his Honour concluded (at 219-220): “In my opinion, in the phrase ‘import into Australia’ the reference is to the unsubmerged land mass of the continent and of Tasmania which does not include the marginal waters or, for that matter, any part of the continental shelf. The question is what is involved according to the Act in importation into Australia. On that I have expressed my firm conclusion. Accordingly, I am of opinion that, in order to commit the offence of importing created by s 233B(1)(b), the goods in question must have been brought within the limits of a port with the intention of landing them or must have been landed in Australia.”

It is quite clear from this detailed analysis that the natural or ordinary meaning of word “import”, to which his Honour first referred, was not applied without detailed attention to the statutory context. It was that context, rather than a dictionary definition, that led to his Honour’s conclusion as to the meaning of the concept of ‘importation’. Accordingly, his Honour’s conclusion is not determinative of this appeal. The statutory context of s 307.11 of the Code contains none of the elements upon which Barwick CJ relied.

Menzies J came to the same conclusion “upon a survey of the Act as a whole” (at 248.8).

Gibbs J (at 254) noted that the ordinary meaning of the word “import” was to “bring in … from a foreign country” and that could not be said of goods that had merely entered the three nautical mile limit and were not discharged. Nor could it be applied to goods which arrived at an Australian port for purposes of transit to another country. His Honour also referred to provisions of the Act which suggested that mere entry into port was not necessarily an importation (at 254-255).

Gibbs J referred to Wilson v Chambers & Co Pty Ltd (1926) 38 CLR 131 as authority for the proposition that goods are “imported” if they are “brought into port with the intention of being discharged there” (at 254.9) and noted (at 255.3) that it was not necessary for goods to be brought into a port but “they may be landed in some other way”. His Honour adopted the remarks of Isaacs J in Wilson v Chambers .

Stephen J (at 265) referred to the ordinary meaning of the word “import”, which his Honour said, does not extend to crossing a notional line separating the high seas from the territorial sea (at 265.8), and agreed with Gibbs J’s analysis of the authorities and the statutory context.

Mason J agreed with Gibbs J (at 273).

The appellant’s reliance on the judgment of Barwick CJ was somewhat misplaced. It is clear that the principal judgment in The Queen v Bull is that of Gibbs J.

The reasoning in that case is not directly applicable to the present case. The case was concerned with when the act of ‘importation’ commences, rather than when it concludes. Nevertheless, the reasoning does purport to define the concept for purposes of the specific statutory regime under consideration.

In Chief Executive Officer of Customs v Granite Arms Pty Ltd [2005] HCA 51; (2005) 222 CLR 149 the High Court was concerned with reg 4F of the Customs (Prohibited Imports) Regulations 1956 (Cth) which prohibited the importation of a firearm unless certain requirements were met, relevantly that the “importer” held a particular licence or authorisation. A company agreed to act as the consignee of the shipment even though, after arrival, property in the firearms passed to another person who did not hold such a licence or authorisation.

The issue turned on the meaning of the term “the importer”. Reliance was placed in submissions on the judgments of the High Court in The Queen v Bull and Wilson v Chambers . However, in a joint judgment the Court indicated that the words “imported” and “import” considered in those cases occurred in a context which differed from the regulation that fell to be construed. Their Honours added: “[29] … The subject, scope and purpose of the Regulations is the performance by the Commonwealth of its part in the creation of a national scheme of firearms control. In this context the notion of importation, and the term ‘the importer’, look to the possession of the firearms after release for home consumption.”

Their Honours upheld the dissenting judgment of Kiefel J in the Full Federal Court ( Chief Executive Officer of Customs v Granite Arms Pty Ltd [2004] FCAFC 81; (2004) 136 FCR 515). There her Honour set out the statutory history, context and purpose at greater length in a manner which was implicitly adopted by the High Court on appeal (at [31]-[38] and [51]). Her Honour’s conclusion was upheld by the High Court on the basis of what was “[t]he substance of what was arranged and carried out”, being that the unlicensed or unauthorised person controlled the disposition of the goods in Australia (at [33]).

Although this authority is not directly pertinent to the present case it underlines the significance of considering, as the primary focus of attention, the entire context of the legislative scheme, rather than focussing on a dictionary definition of the word “import”.

Of particular significance for present purposes is the express adoption by Gibbs J (with whom Stephen and Mason JJ agreed) in The Queen v Bull of the approach of Isaacs J in Wilson v Chambers. That case was concerned with when importation concluded.

In Wilson v Chambers goods had arrived in an Australian port for the purpose of delivery. While the ship was in port an arrangement was made by which the goods were taken over for the use of the ship. No customs entry was made with respect to those goods. Section 68 of the Customs Act required such entry for “imported goods”. The context was a fiscal context rather than a context of prohibited imports.

The reasons of Isaacs J, by reason of their adoption in The Queen v Bull , are of particular significance. The relevant passage is: “In my opinion, having regard to the various sections of the Act – and needless to say the question must be solved by reference to that Act and not to other Acts – the expression ‘imported goods’, in sec 68, means goods which in fact are brought from abroad into Australian territory, and in respect of which the carriage is ended or its continuity in some way in fact broken. The underlying concept appears to me to be as follows: Where, within our territory, some act takes place with regard to goods arriving from abroad, whether in fact they are or are not dutiable or prohibited, which in the absence of some new or further arrangement for carrying them away would make the place of arrival their destination and would therefore result in the goods remaining in Australia, then they are ‘imported goods’ and it is the duty of the ‘owner’ to comply with the provisions of sec 68.” (at 139)

Isaacs J went on to note that the contract of carriage was completed when the ship arrived in an Australian port. The arrangement between the parties, under which the shipowner would acquire the goods for the purposes of the ship, meant that it was an “unnecessary formalit[y]” to require actual delivery by shipowner to consignee and redelivery by consignee to shipowner. However, his Honour held that, for Customs purposes, such “formal processes” must be taken “as having in substance taken place” (at 140). The goods were, accordingly, “imported” within s 68 of the Customs Act.

To apply this reasoning to the appellant’s submissions in the present case, subject of course to consideration of the overall statutory regime, once the container containing the packages was landed in Australia for the purpose of clearance through Customs, or alternatively after clearance, “the carriage is ended or its continuity … broken” and the landing is an “act” which “takes place with regard to goods arriving from abroad … which … would make the place of arrival their destination and would therefore result in the goods remaining in Australia”. This analysis, as adopted by the majority in The Queen v Bull , is not the same as other statements in Wilson v Chambers which were not adopted (see at 136 per Knox CJ and at 150 per Starke J).

The issue for present purposes is to identify the point at which, to use the terminology of Isaacs J in Wilson v Chambers , “the carriage is ended or its continuity … broken” and to identify “the place of arrival” which constitutes “their destination and would therefore result in the goods remaining in Australia”.

The factual analysis in which Isaacs J engaged in Wilson v Chambers was based on the proposition that, as a matter of substance, there had been a delivery by the shipowner to the consignee and a redelivery by the consignee to the shipowner. The equivalent issue in the present case is what constituted delivery to the consignee, ie did it occur upon landing, clearance through Customs, release from the point of clearance or arrival at the first point in Australia which can answer the description of a “destination”, ie the premises at Leichhardt, or, as the Crown contends, when delivered to the wholesalers.

There is much to be said for the proposition that it is the release after clearance through Customs that would “result in the goods remaining in Australia” and that that was the relevant “act” taking place “with regard to goods arriving from abroad” that had that consequence. If so, this occurred before the opening of the container which is the point at which the Crown’s alternative case arises.

In a case where there was no clearance through Customs, but an act of smuggling to an isolated location, Kellam J applied the reasoning in The Queen v Bull to conclude that importation occurred when drugs were landed on the beach (see R v Lam (No 7) [2005] VSC 7; (2005) 191 FLR 254 at [13]). This result is consistent with the approach of Isaacs J in Wilson v Chambers .

This line of authority does support the appellant’s contention. However, s 233B of the Customs Act appeared in a radically different statutory context to that in which s 307.11 of the Code exists. Although helpful, these cases are not determinative. The “Importation” Case Law

In support of the proposition that the meaning of “imports” in s 307.11 of the Code extends beyond the period of goods being landed in Australia the Crown relied on a series of cases for the offence of being “knowingly concerned in [an] importation”. The respondent Crown submitted that there is no difference between “imports” in s 233(1)(b) (and s 307.11 of the Code) and “importation” in s 233(1)(d).

The cases were summarised by Wood CJ at CL in R v Sukkar [2005] NSWCCA 54 at [75]-[80] and [106]-[121] culminating in his Honour’s conclusion that the relevant offence provision adopted: “[121] … the extended concept involved in the process of importation which includes recovery of the goods after landing and anything which is done having a direct proximity to the bringing of the goods into the country, and making them available including their clearance and transfer into storage, unpacking, and arranging for payment of those involved in the process …”

The offence was created by s 233B(1)(d) of the Customs Act , which provided: “233B(1) Any person who: … (d) aids, abets, counsels, or procures, or is in any way knowingly concerned in, the importation, or bringing, into Australia of any prohibited imports to which this section applies … shall be guilty of an offence.”

In this Court the Crown contended that the concept of “importation” in this section was identical to the concept of “imports” in both s 233B(1)(b) of that Act, set out above, and also, relevantly for present purposes, to the meaning of the word “imports” in s 307.11(1)(a) of the Code.

The line of authority on which the Crown relies emphasises that there is a “measure of flexibility” in the word “importation”. However, those cases, generally, focused primarily on the further flexibility involved in the words “concerned in” (see eg R v Lam (1990) 46 A Crim R 402 at 404-405).

Significantly, there are statements in this line of authority which suggest that the word “importation” in the statute must be understood as extending before and after the scope of the word “imports”.

The origin of this line of authority is Forbes v Traders Finance Corporation Ltd (1971) 126 CLR 429 which was concerned with the forfeiture of a vehicle pursuant to s 229(j) of the Customs Act that permitted forfeiture of “[a]ny carriage … used in … the unlawful importation … of any goods”. On the facts, the prohibited imports had been cleared through Customs and placed in a vehicle. The offenders were apprehended before driving away. One issue was whether or not the “unlawful importation” had concluded prior to the act of placing the goods in the vehicle.

Barwick CJ clearly distinguished between the word “import” and the word “importation”. He stated at 432: “… ‘importation’ extends on both sides of the actual act of importing goods into the country. The importation does not cease at the moment of an import .” (emphasis added).

The judgment of Windeyer J contained a similar distinction. His Honour referred to Wilson v Chambers supra but distinguished it: “Here the question is not when goods lawfully brought in are imported so as to be dutiable. It is what amounts to the use of a thing in an unlawful importation, a very different matter .” (at 444; emphasis added).

His Honour went on to say that the reference to “use in the unlawful importation” must: “… refer to some use of it that is incidental and proximate to, or involved in the course of the illegal process … [a]n unlawful importation is, as I see it as a process, not at an end immediately the illicit goods are put on land. It can begin before they are put aboard the craft by which they are landed, and continue after it has made a landfall”. (at 445)

Although his Honour referred to the phrase “made a landfall” rather than the word “import” in this passage, in my opinion, his Honour’s reasoning would apply to the word “import”.

In Forbes Owen J agreed with the result, but expressed no opinion on when an “importation” is completed (see at 447). His Honour determined the case on an alternative basis.

Both Menzies J (at 435-436) and Gibbs J (at 447-448) were in dissent in the result and both gave reasons for concluding that the importation had been completed prior to the prohibited goods being placed in the vehicle. Menzies J identified the point of importation to be complete “at the latest”, when the goods were picked up and taken from the customs hall (at 435.9).

In The Queen v Bull at 223 Barwick CJ said, with reference to Forbes : “ The process of importation as distinct from the act of importation is not confined to what occurs at the actual time or place when or where the goods are imported.” (emphasis added)

In R v Courtney-Smith (No 2) (1990) 48 A Crim R 49, this Court, in a joint judgment, rejected the contention that “importation” for the purposes of s 233B(1)(d) terminates upon the landing of goods. In the course of the Court’s reasons a distinction was drawn between “imported” and “importation”. The Court said: “… a section addressed simply to the act of landing would … fail to achieve the plain objective of preventing importation by attacking those within Australia who become concerned in arranging the act of importation and in moving the goods, once imported , into the community where they do their mischief.” (at 63; emphasis added)

The Court then quoted the passage from Barwick CJ in Forbes. The Court subsequently said: “… the language of the Customs Act will [not] follow the goods once they are imported , without limitation as to time and place. A time will be reached when involvement with them in their passage through the Australian community cannot properly be characterised as knowing concern in their ‘importation’.” (at 64; emphasis added)

It is clear from the whole of the judgment in Courtney-Smith that the Court regarded the word “importation” as extending to a process, not to an act occurring at a point of time, whereas “import” is of the latter character.

This differentiation was also made express in the reasons of Gleeson CJ in R v Leff (1996) 86 A Crim R 212, when his Honour referred to the concept of “importation” and said: “… importation is a process, or a venture, not a physical act which occurs or ceases at the moment of import .” (at 214; emphasis added) (See also at 222-223 per James J.)

The reasoning in Calderwood v R [2007] NSWCCA 180; (2007) 172 A Crim R 208 uses the terminology of “importing” as equivalent to “importation”, as explained in this line of authority (see eg at [12]). The case was, however, concerned with s 233(1)(b) of the Customs Act and not s 307.11 of the Code. The word “importing” is not used in s 307.11.

The authorities on the word “importation”, on which the respondent primarily relied in the present proceedings, are of little assistance for the purpose of interpreting the word “imports” in s 307.11(1)(a) of the Code. This is particularly so because the immediate context of s 233B(1)(d) incorporates the expansive concept of “knowingly concerned” (see Lam 46 A Crim R at 405; R v Cheung (1997) 97 A Crim R 283 esp at 288-292).

Indeed, although the judgments do contain references to the meaning of “importation” as something that occurs over a period before and after an act referred to by the word “import”, it appears to me that the word “importation” may have received that expansive interpretation because of its immediate textual context. The expansive intention of the formulation “aids, abets, counsels, or procures, or is in any way knowingly concerned in” gives the word “importation” a colour it may not receive in a different context. The Context of s 307.11

In Courtney-Smith this Court referred to the scope and purpose of the legislative scheme, in order to give the word “importation” a broad rather than a narrow interpretation. The joint judgment said: “The relevant provisions of the Customs Act were enacted to give effect to the Single Convention On Narcotic Drugs 1961. Its clear purpose is to strike at the illicit traffic in narcotic drugs and their penetration of the Australian society. Because Australia is an island, that penetration will normally occur through importation of such drugs. Therefore, a section addressed simply to the act of landing would … fail to achieve the plain objective of preventing importation by taking those within Australia who become concerned in arranging the act of importation and in moving the goods, once imported, into the community where they do their mischief.” (at 63)

Similar considerations apply to the interpretation of the word “imports” in s 307.11(1)(a) of the Code. Section 307.11 appears in Ch 9 of the Code which is entitled “Dangers to the community”, of which Pt 9.1 is entitled “Serious drug offences”. The division in which it appears is headed “Import-export offences”.

The first section in Ch 9 and Pt 9.1 states, in terms which invoke the passage in Courtney-Smith quoted above: “300.1(1) The purpose of this Part is to create offences relating to drug trafficking and to give effect to the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, done at Vienna on 20 December 1988.”

This UN Convention emphasises the international dimensions of the drug trade and, in a recital, recognised the need to reinforce and supplement the measures provided in the Single Convention on Narcotic Drugs 1961, being the convention referred to by this Court in Courtney-Smith. The scope and purpose of Pt 9.1 of the Code is clearly of the same character as that identified by this Court in Courtney-Smith as quoted above.

It is relevant to note that the Commonwealth Parliament in formulating s 233B invoked its constitutional authority over external trade and commerce. The entire focus of the section was on imports, and subsequently upon exports, both in terms of the statement of the relevant offence directly relating to the act of importing and also the creation of offences with respect to possession etc of “prohibited imports”.

Part 9.1 of the Code is not so restricted. Criminal offences are established by this Commonwealth statute for: · Trafficking controlled drugs (Div 302). · Commercial cultivation of controlled plants (Div 303). · Selling controlled plants (Div 304). · Commercial manufacture of controlled drugs (Div 305). · Pre-trafficking controlled precursors (Div 306). · Import-export offences (Div 307). · Possession offences (Div 308). · Drug offences involving children, including supplying drugs and procuring children to traffic in drugs (Div 309). · Harm and danger to children from serious drug offences (Div 310). · Combining quantities of drugs, plants or precursors (Div 311).

As can be seen the scope of the legislative scheme goes well beyond anything contained in former s 233B at the times when that section was interpreted in the case law upon which the parties rely. Significantly, the Customs context of s 233B, relied upon in The Queen v Bull, has been replaced by a criminal context, specifically with respect to serious drugs.

In this new context, there is no need to interpret the words “import” and “export” in a broad manner in order to serve the overall purpose, by reason of the scope and range of the different acts for which persons involved with drugs are made criminally liable under this Commonwealth legislation.

Part 9.1 finds its origin in the Report of the Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, Model Criminal Code: Chapter 6 – Serious Drug Offences , October 1998. This particular product of the Model Criminal Code Project was originally put forward as a Model Code for all States and Territories. The idea was that there would be a single Criminal Code for the whole of Australia and that serious drug offences would be covered comprehensively by interconnecting Commonwealth and State legislation. That objective is reflected in s 300.4 of the Code which expressly provides that Pt 9.1 is not intended to exclude or limit the concurrent operation of any law of a State or Territory. In constitutional terms the Commonwealth has expressly abjured any intention to cover the field.

The report of the Model Code Criminal Officers Committee proposed uniform legislation throughout Australia with respect to trafficking in controlled drugs, the commercial manufacture and cultivation of controlled drugs and plants and drug offences involving children. Nothing in the Report replicated the Commonwealth regulation of imports. Accordingly, although much of the content of what is now Pt 9.1 of the Code finds its origin in the Model Criminal Code Officers Committee Report, the Commonwealth Parliament has engrafted express provision for export and import offences onto the recommended national Model Code.

Chapter 9 was introduced into the Code by the Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005 (Cth). The Second Reading Speech for the Bill made it clear that one of the objectives of the legislation was the promotion of uniformity of drug laws throughout Australia, by implementing model drug offences (see Commonwealth, Parliamentary Debates , House of Representatives, 26 May 2005, at 6-7).

It is by no means clear what is the constitutional basis for the Commonwealth Parliament enacting some of the specific offences. Nevertheless, the Commonwealth’s long standing legislative regime with respect to imports was engrafted upon the proposed national model for drug offences.

The Explanatory Memorandum for the Bill stated: “The import and export offences in proposed Division 307 are based on the existing offences in the Customs Act . The other offences are based on Chapter 6 of the Model Criminal Code … developed in 1998 by the Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General … after nation wide consultation.” (at 1)

The Explanatory Memorandum went on to state: “Whilst there is significant overlap between the import-export offences in proposed Division 307 and other offences in proposed Part 9.1, there are also significant differences. The proposed Division 307 offences have been designed to accord as closely as possible to the offences they are replacing in the Customs Act. A guiding principle has been to ensure that the offences in proposed Division 307 are no more difficult to prove than the existing offences in the Customs Act. For that reason, commercial intention is not an element of any of the proposed Division 307 offences. Instead, absence of a commercial intention is available as a defence for some proposed Division 307 offences in a manner that reflects the current operation of the Customs Act offences.” (at 46)

Notwithstanding the reference to the new offences ‘according closely’ with offences within the Customs Act , the form of the offence established by the Code provision is expressed only in terms of the word “imports”. The use of the terminology of “importation”, formerly found in s 233B(1)(d), is absent.

Section 233B(1)(d) was repealed when the Commonwealth Parliament first applied the Commonwealth Criminal Code to drug offences by the Law and Justice Legislation Amendment (Application of Criminal Code) Act 2001 (Cth). That Act applied the then extant Criminal Code to a wide range of Commonwealth offences including, by Sch 21, all offences under the Customs Act . Clause 108 of that Schedule repealed s 233B(1)(d).

The 2001 Act also made substantial changes to the Crimes Act . Clause 4 of Sch 10 applied Ch 2 of the Code to all offences against the Crimes Act . Further cl 4 of Sch 51 repealed s 5 of the Crimes Act .

Section 11.2(1) of the Code, so applied, extends liability to a person who “aids, abets, counsels or procures the commission of an offence”. The element previously found in s 5 of the Crimes Act of imposing liability for a person “knowingly concerned in or party to the commission of any offence” was removed.

This change was based on the recommendation of the Model Criminal Code Officers Committee in its report entitled Model Criminal Code: Chapter 2 – General Principles of Criminal Responsibility, December 1992, in which the Committee said at 87: “The Code retains the traditional formula of ‘aid, abet, counsel and procure’ … The Committee preferred the traditional formula to the … formula of being ‘knowingly involved’ in the commission of an offence. The Committee concluded that such a formula would add little in substance. Moreover it is much more open ended than the traditional formula. This means that it is less certain than is appropriate for a general provision defining the ambit of criminal responsibility in any Code.”

It is clear from these observations that it was the intention of the Model Criminal Code Officers Committee, in proposals adopted by the Parliament, to restrict the scope of the pre-existing accessorial liability provisions by making them less “open ended”. That was done in part by replacing s 5 of the Crimes Act by s 11.2 of the Code. Consistently with this objective it appears that the drafter of the Act decided to remove any other reference to ‘knowing involvement’ in the commission of an offence to which the Code would now be applied. Accordingly, pre-existing s 233B(1)(d), upon which Commonwealth prosecutions had relied to a substantial degree in the past, was removed.

The effect of this is that the Commonwealth offence now uses the word “imports” and there is no offence in which the word “importation”, which has been given a broader connotation, appears. This is why the case law on which the Crown relies, and which Berman DCJ applied, is of little assistance.

There is one aspect of the immediate textual context which is of some assistance. The respective provisions of Div 307 of Pt 9.1 of the Code, including relevantly s 307.11, each use the formula that a person commits an offence if “the person imports or exports a substance”. This formulation appears to equate the concept of “imports” with “exports”. It focuses attention on crossing the national border, rather than upon arrival at a destination. The concept of exporting is clearly not concerned with arrival at a foreign destination in any manner. This is a textual indicator which tends to support the appellant’s case that what the legislature has rendered criminal is the act of arrival in Australia, without regard to subsequent deployment. The Meaning of “Imports”

I have found it difficult to balance these disparate considerations. Nevertheless, the reasoning in The Queen v Bull , albeit with respect to a different statutory context, is more closely applicable than any other case law. I refer particularly to the adoption of the reasoning of Isaacs J in Wilson v Chambers .

The new statutory context of a criminal code dealing with a wide range of drug offences suggests that a precise, rather than expansive, sense of the word “imports” has been adopted.

Generally, that is how one would approach the interpretation of any criminal statute.

In my opinion, the purpose of the Act requires the border controlled drugs and precursors “to arrive in Australia from abroad” and to be delivered at a point which, in the words of Isaacs J in Wilson v Chambers , would “result in the goods remaining in Australia”. That occurred when the goods were picked up by the appellant’s agent or, at the latest, when the container arrived at her premises and before it was unpacked.

The Crown’s alternative case permitted the jury to convict the appellant on the basis that she formed the intention, constituting the fault element, after the physical element had been completed. This was impermissible.

Since writing the above I have read the judgment of Weinberg AJA in draft. I agree with his Honour's reasons.

The appeal should be allowed. Orders

The appellant submitted that if she succeeded in the appeal, the Court should not order a retrial but rather direct a verdict of acquittal. The appellant submitted that the Crown case on the issue of intention to export the extra boxes, once stripped of the impermissible reasoning left to the jury, was insufficient to justify a conviction. I do not agree with that submission.

There was evidence before the jury that could justify a conclusion that the appellant was a participant in a joint enterprise to import the goods, when the word “imports” is understood in the sense I have identified. There was clear evidence that before the container landed she expected this particular shipment to contain additional packages. The jury was not obliged to accept the appellant’s evidence that she took steps to stop the addition of packages to her shipments of furniture. Further, it was open to the jury to infer, particularly from the telephone intercepts in which she expressed relief that there would be no interception, and her subsequent communications with Mr Rantesalu, that she had the requisite degree of involvement in the joint enterprise to import the substances.

The Court indicated that it did not wish to call on the appellant as respondent to the Crown appeal. She has served a substantial proportion of her sentence, however, I would not exercise the Court’s discretion to refrain from ordering a new trial. Many of the subjective considerations which Berman DCJ took into account in imposing a very light sentence for such an offence indicate that, in such a case, particularly from the perspective of general deterrence and denunciation, the conviction itself, rather than the length of term, is a significant consideration.

In my opinion, this Court should allow the conviction appeal, but remit the matter for a new trial.

WEINBERG AJA : I have had the advantage of reading, in draft, the reasons for judgment prepared by Spigelman CJ. I agree with those reasons and with the orders proposed. I wish, however, to add some observations of my own.

It was common ground between the parties to this appeal that the physical and fault elements of an offence under the Criminal Code Act 1995 (Cth) must coincide in time. That view accords with the common law. See generally Thabo Meli v R [1954] 1 All ER 373 and R v Church [1966] 1 QB 59. The question is whether, in the circumstances of this case, that requirement has, in fact, been met.

In determining the meaning to be accorded to the term ‘imports’ in s 307.11(1)(a) of the Code, the starting point must, of course, be the text itself. However, the text is not confined to individual words, phrases or sentences considered in isolation from their context: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408. The text must also be read, in accordance with s 15AA of the Acts Interpretation Act 1901 (Cth), with a purposive construction in mind.

In ordinary parlance, to ‘import’ is to bring in something from a foreign country or some other outside source. Section 300.2 of the Code provides that ‘import’ includes ‘bring into Australia’. The word has a protean quality and is capable of being given either a broad or narrow interpretation. The Chief Justice has reviewed the authorities which bear upon the matter, and I cannot usefully add to his Honour’s analysis of the case law. I agree that the decisions which carry the greatest weight are those of the High Court in Wilson v Chambers & Co Pty Ltd (1926) 38 CLR 131 and The Queen v Bull (1974) 131 CLR 203. I also agree, however, that neither of these cases is determinative of this appeal.

The former Chief Justice of Australia, the Honourable Murray Gleeson, in his Victoria Law Foundation Oration entitled ‘The Meaning of Legislation: Context, Purpose and Respect for Fundamental Rights’ (31 July 2008), commented recently that the immediate context of a statutory provision may include the provisions which surround it and perhaps the entire Act as a whole. The wider context may also include the circumstances that prevailed at the time of its enactment, as well as the background provided by other legislation. That, with respect, is the approach that I consider should be taken to the resolution of this appeal.

In searching for the meaning to be imputed to the term ‘imports’ in s 307.11 of the Code, it may be useful to have regard to the provisions which governed the importation of narcotic drugs before that section came into effect. In doing so, however, it must be remembered that what is being interpreted is a code and not an Act of Parliament. This means that special rules of interpretation are applicable. The language of the Code should be construed according to its natural meaning and without any presumption that it was intended to do no more than restate the existing law. See Bank of England v Vagliano Brothers [1891] AC 107; Brennan v The King (1936) 55 CLR 253 at 263 per Dixon and Evatt JJ; and Vallance v The Queen (1961) 108 CLR 56 at 74-6 per Windeyer J.

As a matter of ordinary usage of language, the term ‘imports’ seems to have implicit within it the idea of both a beginning and an end. The same is true of the term ‘exports’, which appears immediately adjacent to ‘imports’ in s 307.11(1)(a). The High Court in Bull determined the point at which the act of importing commences. A person does not import goods until they are either landed in this country or brought within a port for the purpose of being so landed. The case was silent, however, as to when the act of importing ends.

In Wilson v Chambers , Isaacs J addressed that very issue. His Honour postulated that imported goods meant goods that were in fact brought from abroad into Australian territory and, in respect of which, the carriage was ended or its continuity had in some way in fact been broken. See also R v Hancox [1989] 3 NZLR 60 at 62.

In the context of this appeal, if the Crown’s contention that an importation continues until the goods reach their ‘final destination’ (an expression of some indeterminacy) were to be accepted, a person could be guilty of importing prohibited drugs by doing an act far removed from the actual landing of the drugs in this country. That act could take place weeks, months or even years after the drugs had been brought into Australia. Such a wide notion of the word would not accord with ordinary usage of language and would be foreign to most people’s understanding of that term. In addition, an interpretation of such breadth would not sit well with the approach normally taken to the construction of penal statutes: Beckwith v The Queen (1976) 135 CLR 569 at 576.

It is true that there are a number of cases which have held that the process of importation extends well beyond the period of the goods being landed in this country. These include the cases to which the Chief Justice has referred in his reasons for judgment: R v Lam (1990) 46 A Crim R 402; R v Courtney-Smith ( No 2) (1990) 48 A Crim R 49; R v Cheung (1997) 97 A Crim R 283 ; R v Sukkar [2005] NSWCCA 54; and Calderwood v R (2007) 172 A Crim R 208. There are others as well.

One such example is Doney v The Queen (1990) 171 CLR 207. There the High Court upheld a conviction of being knowingly concerned in the importation of cannabis resin. The case concerned a note said to be in the handwriting of the applicant, which had been given to a taxi driver some four weeks after a shipping container containing cannabis resin arrived in Australia. The note required the taxi driver to collect some boxes from an address at which the container was located, take them to a panel van in Balmain, and leave them there. It was accepted as being corroborative evidence of an accomplice as to the applicant’s involvement in the importation.

In a joint judgment, the Court observed at 210: “It was argued that the handwritten note could not corroborate the evidence of Freeman because, although it linked the applicant to the contents of the container, it did so only at a time when the importation was complete. The note, it was said, was consistent with his involvement in the distribution of the cannabis resin but it did not implicate him in the offence charged, namely importation.”

In the course of rejecting that submission, the Court said at 212: “The note given to the taxi driver, if accepted by the jury as having been written by the applicant, connected him with the cannabis resin imported into the country some few weeks earlier. The note and its employment in the transaction with the taxi driver might be capable of explanation on some basis other than its author was knowingly concerned in the importation of the cannabis resin. But, given that it was only a matter of some few weeks since the container had been landed in Sydney, it was open to the jury to reason that it was likely, although not inevitable, that the person who wrote the note, thus exercising dominion over the boxes from the container by directing the removal of some of them to some other place, was a person who had been knowingly concerned in the importation of its contents.”

Doney is instructive because the evidence against the accused, taken at its highest, did not disclose any involvement on his part in the importation until long after the container had been landed in Sydney. The accomplice gave evidence that Doney had asked him to arrange customs clearance. However, that was well after the goods had been released to shipping agents. It was hardly surprising, in those circumstances, that Doney was charged not with having imported the drugs but rather with having been knowingly concerned in their importation.

There are other examples of an extended meaning being accorded to the notion of importation in the context of the offence of being knowingly concerned. In R v Shin Nan Yong (1975) 7 ALR 271, the New South Wales Court of Criminal Appeal held that a conviction for the offence of being knowingly concerned did not depend upon a conviction for the principal offence of importing, although the act of importation had to be proved as an element of the offence. The Court said that it was not essential that the concern in the importation be made ‘manifest in a physical sense’ whilst the importation was in progress. It was sufficient if the concern was manifested in ‘the venture which centres upon the importation’.

In D Sweeney and N Williams, Commonwealth Criminal Law (1990), the authors observe at 210: “Concern in an importation may be manifested by a person travelling with the actual importer, by actions before the importation directed to arranging the importation, such as arranging travel of the courier, or meeting the importer in Australia when the narcotic goods have been landed with an intent to deal with them in some way. Although the Court in Shin Nan Yong ’s case used the term ‘the venture which centres upon the importation’ it is likely that the concern, or involvement, cannot be too remote from the importation; however, it would be false to say that conduct showing concern in the importation cannot occur once the importation is complete.”

This brings me to the significance of the fact that the offence of being knowingly concerned in the importation of prohibited imports no longer exists under the Code.

The Chief Justice, in his reasons for judgment, has summarised the history behind the decision to omit ‘knowingly concerned’ from the provisions dealing with the importation of narcotic substances. As his Honour notes, s 233B(1)(d) of the Customs Act 1901 (Cth ) was repealed in 2001 when the Code was first applied to drug offences.

Section 11.2(1) of the Code, so applied, extends liability to a person who ‘aids, abets, counsels or procures the commission of an offence by another person’. An aider or abettor, or counsellor or procurer, is taken to have committed the primary offence and is punished accordingly. However, liability as an accomplice is derivative in the sense that it depends on proof that another person or persons combined with the defendant to commit the offence. Unlike other ancillary offences such as attempt, incitement and conspiracy, complicity as an aider or abettor is not an independent offence.

Although s 11.2(1) is part of a code, the language employed is technical and essentially the same as that used at common law. The words are plainly intended to bear the same meaning as they do at common law.

The further extended form of accessorial liability that derived from ‘knowingly concerned’ was deliberately omitted from the Code because those who drafted the relevant provisions believed that this form of derivative liability was unnecessary. They considered that ‘knowingly concerned’ added nothing to complicity and common purpose as defined in s 11.2.

In that regard, the drafters of the Code differed from the Review of Commonwealth Criminal Law, a committee chaired by Sir Harry Gibbs, which in July 1990 presented its third interim report entitled ‘Principles of Criminal Responsibility and Other Matters’. In that report, the committee gave careful consideration to the question whether the words ‘or by any act or omission is in any way directly or indirectly knowingly concerned in or party to’ should be deleted from s 5 of the Crimes Act 1914 (Cth).

The Gibbs Committee observed at 214 that the words ‘knowingly concerned’ had been judicially considered on a number of occasions. It referred to R v Goldie , ex parte Picklum (1937) 59 CLR 254; Mallan v Lee (1949) 80 CLR 198; Ashbury v Reid [1961] WAR 49; R v Hussain [1969] 2 QB 567; R v Kelly (1975) 12 SASR 388; Yorke v Lucas (1985) 158 CLR 661; and Trade Practices Commission v Australia Meat Holdings Pty Ltd (1988) 83 ALR 299. It regarded these decisions as having established that the act or omission of the accused had to implicate or involve him or her in the offence. It noted that in applying these cases to s 233B(1)(d) of the Customs Act 1901, the New South Wales Court of Criminal Appeal had held, in R v Tannous (1987) 32 A Crim R 301 and R v Haddad (1988) 33 A Crim R 400, that the trial judges’ directions to the jury in both those cases were incorrect to the extent that it was held that ‘knowingly concerned’ meant mere ‘concern, interest or anxiety’.

Haddad may unwittingly have been the source of some of the present difficulties. In that case (at 408), Roden J posed the question, perhaps rhetorically, ‘in what circumstances would a person be knowingly concerned in an importation, so as to be guilty of the offence, other than by aiding, abetting, counselling, or procuring it?’ Plainly, his Honour had doubts as to whether ‘knowingly concerned’ added anything to ordinary principles of complicity.

Taking his cue from his Honour’s remarks, the Commonwealth Director of Public Prosecutions (in fact, myself) raised with the Gibbs Committee the question whether it was necessary to retain the words ’knowingly concerned’ in any future codification of the general principles of criminal responsibility.

The Gibbs Committee had the acuity and foresight to observe that these words had the merit of ensuring that circumstances amounting to knowing involvement in an offence, which did not amount to participation as a principal and to which the expressions ‘aid, abet, counsel or procure’ (or whatever equivalents were used) were not obviously apt, would nevertheless fall within the reach of the provision. The Committee did, however, accept (at 215) the submission that the words ‘by act or omission’, ‘in any way directly or indirectly’ and ‘or party to’ appeared to be superfluous. It also favoured replacing the word ‘concerned’ with ‘involved’ as a more apt expression.

With the benefit of hindsight, it is perhaps regrettable that the Gibbs Committee recommendations were not accepted when, in December 1992, the Criminal Law Officers Committee of the Standing Committee of Attorneys-General produced its Report, ‘Chapters 1 and 2 - General Principles Of Criminal Responsibility’. That Report regarded the term ‘knowingly involved’ as adding nothing of substance to ordinary principles of complicity. It may be that those responsible for the Report were influenced, in that regard, by the views expressed in Howard’s Criminal Law (5th ed, 1990) at 318-9. The learned author of that text commented that ‘knowingly concerned’ did not seem to add anything to the scope of accessorial liability.

The drafters of the Model Criminal Code had an additional reason for rejecting the notion of ‘knowingly concerned’ as a basis for criminal liability. They regarded that expression as being too vague to be appropriate for a general provision defining the ambit of criminal responsibility in a new code. The Gibbs Committee did not share that sentiment.

In considering whether the Criminal Law Officers Committee was correct in its conclusion that it was unnecessary to retain ‘knowingly concerned’, it may be useful to go back to the origins of that expression from the time of its introduction into the Customs Act .

As enacted in 1901, s 233 of the Customs Act made it an offence to smuggle or unlawfully import any goods. Section 233B did not exist at that stage. The Customs Act was amended in 1910 by repealing s 233 in its entirety and substituting a new s 233, as well as introducing ss 233A and 233B. It was s 233B(1)(d) which, for the first time, made it an offence to be ‘in any way knowingly concerned in’ the importation into Australia of prohibited imports.

References to these new provisions in the Commonwealth Hansard of 1910 are sparse. The debates made it plain that they were intended to combat opium smuggling. However, they did not indicate whether the new offences were drawn from the criminal law of some other jurisdiction.

In fact, United Kingdom law contains a number of offences where a person will be liable for being ‘knowingly concerned’ or ‘knowingly involved’ in the commission of some other offence. See for example, the Foreign Enlistment Act 1870 (c 90) (UK). It is perhaps speculative, but the phrase ‘knowingly concerned’, as introduced in the Customs Act in 1910, may derive from that statute.

The phrase appears regularly in current United Kingdom statutes dealing with matters involving customs. See, for example, Customs and Excise Management Act 1979 (c 2) (UK), ss 68, 68A, 170, and 170B.

A number of other United Kingdom statutes also contain offences where phrases such as ‘knowingly concerned’ or ‘knowingly involved’ are employed. These include the Immigration Act 1971 (c 77); Fair Trading Act 1973 (c 41); Alcoholic Liquor Duties Act 1979 (c 4); Value Added Tax Act 1994 (c 23); Financial Services and Market Act 2000 (c 8); and Tax Credits Act 2002 (c 21).

New Zealand has also adopted the phrase ‘knowingly concerned’ or ‘knowingly involved’ as the basis for accessorial liability in relation to customs offences. See, for example, the Customs and Excise Act 1996, ss 209 and 210 and the Imports and Exports (Restrictions) Act 1988 , s 4. In addition, s 9 of the Secret Commissions Act 1910 uses the ‘knowingly concerned’ formula.

The expression ‘knowingly concerned’ has a lengthy pedigree in relation to trade practices law. Section 75B of the Trade Practices Act 1974 (Cth) provides that an individual may be party to a contravention by a corporation of a provision of the Act if that person is knowingly concerned in that contravention. Once again, there is a significant body of jurisprudence dealing with the expression ‘knowingly concerned’ in that context. See for example Yorke v Lucas (1985) 158 CLR 661 at 670.

In Trade Practices Commission v Australia Meat Holdings Pty Ltd , Wilcox J cited Ashbury v Reid at 51, where the Full Court of the Supreme Court of Western Australia said, in a different context: “The question which a court should ask itself … is whether on the facts it can reasonably be said that the act … shown to have been done … by the defendant does in truth implicate or involve him in the offence, whether it does show a practical connection between him and the offence.”

The decision to omit the phrase ‘knowingly concerned’ from the various forms of complicity available under federal criminal law, and the extension of that decision to the offences now contained in the Code dealing with drugs, appears to me to have left a lacuna in the law that was certainly never intended.

As previously indicated, the Gibbs Committee foresaw the need to retain this variant of accessorial liability. In its report, it noted that Commonwealth prosecutors had frequently found the phrase a more apposite and convenient description of the offence to be charged than the remaining words of s 5 of the Crimes Act 1914 . The convenience lay in the fact that charging ‘knowingly concerned’ avoided any possible question whether the offender was a principal in the second degree or an accessory before the fact, a matter that assumed importance in common law jurisdictions, though never really at the Commonwealth level. That was because s 5 had, from the time of its first enactment, applied to all Commonwealth offences, the distinction between felonies and misdemeanours never having been recognised under the Crimes Act itself.

All this goes some way towards explaining why the phrase ‘knowingly concerned’ no longer applies to offences involving the importation of drugs. It also puts the issues raised in this appeal into context.

The authorities upon which the Crown relied, in support of its submission that the word ‘import’ has the extended meaning for which it contended, are all cases that were decided under the rubric of ‘knowingly concerned’. That phrase was always attached to the term ‘importation’.

The Code now shifts from the noun ‘importation’ to the verb ‘imports’. A change of that kind can have consequences. They may be unintended. To be ‘knowingly concerned’ in an importation is to be involved in an activity that is necessarily ambulatory. To import, or to aid and abet an importer, is to engage in a more finite activity, which is part of a broader process properly characterised as the process of importation.

A person can still be ‘concerned in’ an activity which, as a matter of strictness, has concluded while not, at the same time, being ‘engaged in’ that activity. Sweeney and Williams illustrate that proposition (at 210) in their discussion of ‘knowingly concerned’, to which I have previously referred. They cite Shin Nan Yong , in which Street CJ, delivering the judgment of the Court of Criminal Appeal, observed that it was by no means an essential part of the crime of being ‘knowingly concerned’ in the importation of prohibited imports that the ‘concern’ be made manifest in a physical sense whilst the importation was actually in progress. It was sufficient if that concern was manifested ‘in the venture’ which centres upon the importation.

Section 6 of the Crimes Act 1914 creates a specific offence of being an accessory after the fact. Any person who assists another who is, to his or her knowledge, guilty of any offence against a law of the Commonwealth, in order to enable him or her to escape punishment or to dispose of the proceeds of the offence, is guilty of an offence carrying a maximum of two years’ imprisonment. There will, no doubt, be cases, of which the present might on one view be an example, in which the conduct of the offender falls outside the ambit of s 307.11 but gives rise to liability as an accessory after the fact.

In the instant case, there was ample evidence upon which the jury could have convicted the appellant of importing these precursor drugs or, at the very least, aiding and abetting their importation. The jury could only have done so, however, if satisfied that the Crown had established the relevant fault element on her part prior to the act of importing having been concluded. As previously indicated, the physical and fault elements had to coincide in time.

The difficulty lies in knowing whether the jury convicted on the basis of the evidence that pointed to the appellant’s involvement in the importation while it was still ongoing, or whether they relied solely upon the Crown’s alternative case, first put forward in the prosecutor’s closing address, that she was guilty even if she only learned about the drugs when she first saw the boxes in the van. Whatever flexibility there may be built in to the verb ‘imports’ in s 307.11, having regard to the test laid down in Wilson v Chambers , the act of importing (as distinct from the broader venture which centred upon the importation) had, in my view, well and truly concluded by the Saturday when the appellant actually saw those boxes. To use the language of Isaacs J, by that stage, the carriage had ended or, at the very least, its continuity had been broken. That makes it impossible to allow this conviction to stand. There should be a new trial.

It is unnecessary in these circumstances to consider the appellant’s second ground of appeal, which complains of the introduction by the prosecutor in his closing address of the alternative basis upon which the appellant might be convicted. See generally King v The Queen (1986) 161 CLR 423. Even if that ground were established, it would still be appropriate, in my view, to order that a new trial be had. There is no proper basis for entering a verdict of acquittal.

SIMPSON J: I agree with the orders proposed by the Chief Justice and with his reasons therefor. I also agree with the additional observations of Weinberg AJA.