The Law Handbook 2024

146 SECTION 3: Fines, infringements and criminal law Fault elements Fault elements may be ‘intention’, ‘knowledge’, ‘recklessness’ or ‘negligence’ (s 5.1). Recklessness tends to be the requisite fault element for proof of secondary elements of drug offences covered by the Criminal Code. For example, where an offence involves importation of a substance, the prosecution need only prove recklessness on the part of the accused as to the nature of the substance (though they will need to prove intention in relation to its importation). Specific defences – described as ‘circumstances in which there is no criminal responsibility’ – are also set out in the Criminal Code. There is little authority interpreting these codified principles of criminal responsibility. Some judicial guidance is offered in the following cases that consider the application of the Criminal Code to offences under the Customs Act (although these offences have now been replaced by Criminal Code offences): Pong Su (Ruling No 7) [2005] VSC 7; Pong Su (Ruling No 10) [2005] VSC 10; Pong Su (Ruling No 13) [2005] VSC 38; R v Narongchai Saengsai-Or [2004] NSWCCA 108; Adams v The Queen [2008] HCA 15. Criminal Code drug offences slightly alter the position adopted in Kingswell v The Queen [1985] HCA 72 in which the High Court held (at 276) that the quantity of the drug and other aggravating circumstances under section 235 of the Customs Act (now repealed) were not elements of the offence that need to be established by the prosecution and that a jury would need to consider as part of the trial. Instead, the quantity was merely part of the senten- cing process and therefore ought to be considered by the sentencing court. From now on, the quantity is an element of the Criminal Code offences. If the quantity is an element of any of the offences, absolute liability applies to that element. For publications that provide an introduction to the Criminal Code, see ‘More information’ at the end of this chapter. Commonwealth drug offences Commonwealth drug offences are largely concerned with conduct that relates to the import and export of drugs. Until 2005, most of these offences could be found in the Customs Act and the Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990 (Cth) (‘ CTNDPS Act ’). The main offences were those of importing prohibited imports and possessing prohibited imports contrary to section 233B of the Customs Act. This changed with the repeal of section 233B and the enactment of the Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005 (Cth) (‘ SDO Act ’). The SDO Act, which commenced on 6 December 2005, updated and moved offences relating to the importation and possession of serious drugs from the Customs Act and the CTNDPS Act to the Criminal Code. The SDO Act establishes the serious drug importation and trafficking offences contained in Part 9.1 of the Criminal Code. The drug offences in the Criminal Code include: • trafficking controlled drugs (div 302); • commercially cultivating controlled plants (div 303); • selling controlled plants (div 304); • commercially manufacturing controlled drugs (div 305); • pre-trafficking controlled precursors (div 306); • import–export offences (div 307); • possession offences (div 308); and • drug offences involving or harming children (divs 309, 310). The offences can be separated into two categories. The first category relates to the import and export of border-controlled drugs and precursors (i.e. chemicals used to manufacture drugs) and is dealt with in Division 307 of the Criminal Code. The second category relates to domestic activity involving controlled drugs and precursors (e.g. trafficking and manufacturing). These are dealt with in other parts of the Criminal Code (including in Divisions 302, 303, 304, 305). The offences in each category are tiered, based on the quantity of serious drug involved, with greater penalties where a ‘marketable’ or ‘commercial’ quantity is involved. The focus of this chapter is on the first category of import and export drug offences rather than the second category of domestic offences. The latter are intended to operate concurrently with state laws (s 300.4). However, note that the intended concurrent operation of state and federal offences has been called into question by a High Court case, Dickson v The Queen [2010] HCA 30. In the Dickson case, it was held that a Victorian offence (in this case, theft) was invalid to the extent of any inconsistency with an equivalent Commonwealth offence by operation of section 109 of the Australian Constitution.