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Court of Criminal Appeal 6 December 2001

Regina v El Hassan

[2001] NSWCCA 543

Also reported as 126 A Crim R 477
Drugs
CRIMINAL LAW PARTICULAR OFFENCES ELEMENTS OF THE OFFENCE

Citation: Regina v El Hassan [2001] NSWCCA 543
Court: NSW Court of Criminal Appeal
Date: 6 December 2001
Judges: Stein JA, Hidden J, Howie J

Background

The applicant was charged in the District Court with attempting to obtain possession of a commercial quantity of cocaine, contrary to s 233B(1)(c) of the Customs Act (Cth) 1901. The prosecution arose from events in May 2000, when Customs officers had already removed 27 kilograms of cocaine from a machine imported from Panama, replacing it with an inert substitute powder before the applicant and others arrived at a garage to collect what they believed was the drug.

The applicant's position was that he intended to obtain only a small quantity of cocaine for personal use, well below the commercial quantity threshold of 2 kilograms set under the Act. Because the actual drug had already been removed by Customs, the attempt was impossible to complete. The applicant argued this meant the quantity he subjectively intended to possess was a necessary element the Crown had to prove.

The trial did not proceed to verdict. Instead, District Court Judge McGuire ruled on a pre-trial question about the elements of the offence. The applicant sought leave to appeal that interlocutory ruling to the Court of Criminal Appeal.

  • Whether the Crown must prove the applicant intended to obtain possession of a commercial quantity of cocaine, or whether it is sufficient to prove an intention to obtain possession of cocaine in any amount
  • Whether the fact that the offence charged was an attempt, rather than the completed offence, altered the mental elements the Crown was required to establish
  • Whether the impossibility of completing the offence (because the drug had already been removed) meant the accused's knowledge or belief as to quantity became a necessary element

Decision

The Court of Criminal Appeal unanimously dismissed the appeal, upholding Judge McGuire's ruling. Howie J (with whom Stein JA and Hidden J agreed) held that the relevant mental element for an offence under s 233B(1)(c) is simply an intention to take possession of something the accused knew or believed to be narcotic goods. Neither the accused's knowledge nor belief as to the quantity of the drug forms part of that mental element.

The Court rejected the applicant's argument that the charge of attempt, combined with the impossibility of completing the offence, imported a requirement to prove knowledge of quantity. Howie J drew on the Victorian decision in Britten v Alpogut, which established that a person could be convicted under s 233B even where the goods involved were not in fact narcotic goods, provided the requisite intention was present. The Court reasoned that whether the substantive offence or an attempt is charged does not alter the mental element to be proved.

The Court also found that the removal of the drug by Customs officers before the applicant's involvement was legally irrelevant to the question of mental elements. Howie J noted that the statement in the charge of a "commercial quantity" (sometimes characterised as a circumstance of aggravation affecting penalty) did not add any further mental element for the Crown to establish at trial.

The Court expressly declined to determine whether Judge McGuire was also correct in finding that the Crown had to prove the imported drugs were of at least the commercial quantity. That aspect of the ruling was left open and should not be read as endorsed by this judgment.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Under s 233B(1)(c) of the Customs Act (Cth), the prosecution is not required to prove that the accused knew or believed the narcotic goods were of a commercial quantity. The mental element is limited to an intention to obtain possession of something the accused knew or believed to be narcotic goods.
  • Charging an attempt rather than the completed offence does not expand the mental elements the Crown must prove, nor does it require proof of the accused's subjective belief as to quantity.
  • Where Customs officers have substituted a drug with an inert substance before the accused's involvement, the impossibility of completing the offence does not transform the quantity of drug the accused intended to possess into a necessary element.
  • The Court of Criminal Appeal left open the separate question of whether the Crown must prove the quantity of drugs actually imported was not less than a commercial quantity. Practitioners should note that point was expressly reserved.
  • In dismissing the appeal, the Court affirmed that the description of a commercial quantity in the charge does not impose any additional mental element requirement on the prosecution.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F
- Customs Act 1901 (Cth), ss 233B, 235
- The Constitution, s 80

Cases:
- Kingswell v The Queen (1985) 159 CLR 264
- The Queen v Meaton (1986) 160 CLR 359
- Cheng v The Queen (2000) 203 CLR 248
- R v Mai (1992) 26 NSWLR 371
- Cheung v The Queen [2001] HCA 67
- He Kaw Teh v The Queen (1985) 157 CLR 523
- Kural v The Queen (1987) 162 CLR 502
- Haughton v Smith [1975] AC 476
- Britten v Alpogut [1987] VR 929
- R v Lee (1990) 47 A Crim R 187