Citation: R v Campbell, Campbell & Baka (No 2) [2007] NSWDC 168
Court: District Court of New South Wales
Date: 7 August 2007
Judge(s): Berman SC DCJ
Background
The Crown prosecuted three accused in connection with the importation of a large quantity of pseudoephedrine (a border controlled precursor used to manufacture methylamphetamine) concealed within a shipping container of furniture imported from Indonesia. The principal accused, a furniture retailer, was alleged to have imported the container. Two co-accused were alleged to have assisted: one helped remove goods from the container and the other arrived the following day with a truck and physically removed the boxes of pseudoephedrine tablets.
The two co-accused faced charges as aiders and abettors under s 11.2 of the Criminal Code Act (Cth) 1995, rather than as the principal importer. At the close of the Crown case, both sought directed verdicts of acquittal on the basis that the Crown could not prove an essential element of the offence against them.
The dispute turned on whether a statutory presumption available under s 307.14 of the Code, which reverses the onus of proof on the question of intent in importation offences, extended to persons charged as aiders and abettors rather than as the principal offender.
Legal Issues
- Whether the presumption created by s 307.14 of the Criminal Code Act (Cth) 1995 (which deems an importer to have intended to use a border controlled precursor to manufacture a controlled drug unless the accused proves otherwise) applies to persons charged as aiders and abettors under s 11.2 of the Code.
- Whether the phrase "special liability provision" in s 11.2(6) encompasses s 307.14, such that the presumption extends to co-accused charged as accessories.
- Whether, absent reliance on the presumption, there was sufficient evidence to leave the cases of the two co-accused to the jury.
Decision
The court's central inquiry was whether s 307.14 qualifies as a "special liability provision" within the meaning of the Code's dictionary, which would trigger s 11.2(6) and extend the presumption to aiders and abettors. The court examined the statutory definition and concluded that s 307.14 does not meet that definition. A special liability provision, as defined in the Code, is one that imposes liability without requiring proof of fault. Section 307.14, by contrast, is a presumption that reverses the onus in relation to a fault element rather than eliminating fault entirely. On that analysis, s 11.2(6) did not operate to carry the presumption across to the co-accused.
The court also addressed a deeper concern about the structure of derivative liability. An aider and abettor's criminal liability is, by nature, derived from the commission of an offence by the principal. The Crown's argument, if accepted, would create a situation where a co-accused could be convicted even where the principal had not in fact committed the relevant offence, because the presumption against the principal might be displaced by that accused proving a contrary intention. The court found that outcome both legally troubling and contrary to the concept of derivative liability: it is problematic to convict an accessory of an offence when there is no underlying crime from which that liability can be derived.
The court acknowledged the Crown's submission that the fault elements applicable to aiders and abettors would guard against convicting the truly innocent, but did not consider that submission fully answered the concern. The possibility that an aider and abettor could receive a sentence of up to 25 years' imprisonment in circumstances where the principal might be acquitted weighed against the Crown's construction.
Having concluded that the presumption in s 307.14 did not apply to the two co-accused as aiders and abettors, and the Crown having conceded there was no case to go to the jury without it, the court directed verdicts of acquittal for both co-accused.
Orders Made
- Directed verdict of acquittal entered in favour of Simon Phillip Campbell.
- Directed verdict of acquittal entered in favour of Judha Suryadhana Baka.
Key Takeaways
-
The District Court held that s 307.14 of the Criminal Code Act (Cth) 1995, which presumes that an importer of a border controlled precursor intended to manufacture a controlled drug, is not a "special liability provision" within the meaning of the Code and therefore does not extend to persons charged as aiders and abettors under s 11.2(6).
-
A statutory presumption that reverses the onus of proof on a fault element is structurally different from a provision that imposes liability without proof of fault; the court treated this distinction as determinative of whether the presumption could travel to accessories.
-
Derivative liability principles inform the limits of accessorial responsibility: convicting an aider and abettor of a serious offence in circumstances where the principal may not have committed the underlying crime sits uneasily with the foundational concept that accessorial liability is derived from the principal's offence.
-
Where the Crown's case against co-accused charged as accessories depends entirely on a statutory presumption that does not apply to them, and the Crown concedes there is no other evidence to support a conviction, a directed verdict of acquittal is the appropriate outcome.
-
Under s 307.11 of the Code, where the presumption is unavailable, the Crown must prove beyond reasonable doubt that the principal intended to use the substance to manufacture a controlled drug, or believed another person would do so, before an aider and abettor can be convicted.
Legislation and Cases Referenced
Legislation:
- Criminal Code Act (Cth) 1995, ss 307.11, 307.14, 11.2(6) and the Code dictionary definition of "special liability provision"
Cases:
No cases were cited in the judgment text provided.