The Law Handbook 2024

Chapter 3.2: Drug offences 149 law. In addition, had the conduct been so justified or excused, the conduct would not have constituted the offence. These defences are in addition to the general defences contained in the Criminal Code. Other offences Chapter II, Part 2.4 of the Criminal Code covers extensions of criminal liability including attempt (s 11.1), aiding and abetting (s 11.2(1)), and conspiracy (s 11.5). Attempt Section 11.1 of the Criminal Code states that a person who is guilty of attempting to commit an offence is punishable as if the offence attempted had been committed. To be found guilty, it must be shown that a person’s conduct was more than merely preparatory to the commission of the offence, and one of the fault elements of intention and knowledge (see s 3.2) needs to be established in respect of each physical element of the offence attempted. Impossibility is not a defence, and a person may be found guilty of attempt even if they actually committed the offence, although if found guilty of attempt under section 11.1, a person cannot be subsequently charged with the completed offence (s 11.1(4), (5)). Any defences, procedures, limitations or qualifying provisions that apply to an offence also apply to the offence of attempting to commit that offence (s 11.1(6)). Aiding and abetting Section 11.2(1) of the Criminal Code states that a person who aids, abets, counsels or procures the commission of an offence by another person is taken to have committed that offence. For the person to be guilty, they must have aided, abetted, counselled or procured the commission of the offence by the other person and the offence must be committed by the other person (s 11.2(2)). Section 11.3 requires intent or recklessness on the part of the accused to be found guilty. Section 11.2(4) contains defences including the accused terminating their involvement prior to the commission of the offence, and that of taking all reasonable steps to prevent the commission of the offence. Being found guilty of aiding, abetting, counselling or procuring the commission of an offence does not require the principal offender to be found guilty or even to be prosecuted (s 11.2(5)). Conspiracy Section 11.5(1) of the Criminal Code states that a person who conspires with another person to commit an offence punishable by imprisonment for more than 12 months, or by a fine of 200 pu or more, is guilty of the offence of conspiracy to commit that offence and is punishable as if the offence to which the conspiracy relates had been committed. This section sets out the requirements for a finding of guilt for conspiracy (s 11.5(2)), the defences and situations when a person cannot be found guilty of conspiracy (s 11.5(4), (5)), and what will not be allowed as a defence (s 11.5(3)). A court may nevertheless dismiss the charge for reasons of justice (s 11.5(6)). Proceedings for an offence of conspiracy must not be commenced without the consent of the Director of Public Prosecutions. However, a person may be arrested for, charged with, or remanded in custody or on bail in connection with, an offence of conspiracy before the necessary consent has been given (s 11.5(8)). Customs Act Cases decided under the now repealed provisions of the Customs Act may provide guidance as to the interpretation of certain provisions in the Criminal Code, but must be treated with caution following the repeal of sections 233B and 235. However, the Customs Act remains important as the central source of detention and search powers for the investigation of federal drug offences. Powers of detention and search The Customs Act contains specific powers for the detention and search of people reasonably suspected of unlawfully carrying any prohibited goods or internally concealing a suspicious substance. Frisk search The provisions relating to a frisk search are found in sections 219L, 219M, 219N and 219P of the Customs Act. ‘Suspicion on reasonable grounds’ includes suspicion reasonably formed on the basis of a person’s travel itinerary, declarations made by the person under Commonwealth law, documents in the person’s possession, unusual behaviour of the person, and the content or appearance of the person’s baggage.