Tabe v The Queen [2005] HCA 59

HIGH COURT OF AUSTRALIA

GLEESON CJ,

McHUGH, HAYNE, CALLINAN AND HEYDON JJ

GRAHAM VICTOR TABE APPELLANT

AND

THE QUEEN RESPONDENT

Tabe v The Queen

[2005] HCA 59

6 October 2005

B67/2004

ORDER

Appeal dismissed.

On appeal from the Supreme Court of Queensland

Representation:

B W Walker SC with A W Moynihan for the appellant (instructed by Legal Aid Queensland)

L J Clare with M J Copley for the respondent (instructed by Director of Public Prosecutions (Queensland))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Tabe v The Queen

Criminal law – Attempted possession of dangerous drug – Unopened parcel contained dangerous drug – Innocuous substance substituted by police for drug – Principal offender obtained custody of unopened parcel – Appellant charged with aiding, abetting or counselling attempted possession of dangerous drug – Whether possession of a dangerous drug pursuant to s 9 Drugs Misuse Act 1986 (Q) requires proof of a mental element – Whether attempting to possess a dangerous drug pursuant to s 4(1) of the Criminal Code (Q) requires proof of a mental element – Whether custody of a dangerous drug without knowledge of its contents is sufficient to establish possession or an attempt to possess – Whether requisite state of knowledge differs between principal offender and accessory alleged to have aided, counselled or procured custody of receptacle.

Criminal law – Onus of proof – Whether possession of a dangerous drug pursuant to s 9 Drugs Misuse Act requires Crown to prove a mental element – Whether s 57(d) Drugs Misuse Act requires accused to prove absence of a mental element.

Criminal Code (Q), ss 4(1), 7(1), 24, 36(1), 535, 536, 583

Drugs Misuse Act 1986 (Q), ss 9, 44, 44A, 57(c), 57(d), 117(1)