Ridgeway v The Queen [1995] HCA 66

High Court of Australia Mason CJ Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ Ridgeway v The Queen [1995] HCA 66

ORDER Appeal allowed. Set aside the decision of the Full Court of the Supreme Court of South Australia and in lieu thereof order that the appeal to that Court be allowed, that the appellant's conviction be quashed and that there be a permanent stay of further proceedings in relation to the two alleged offences under s 233B(1) of the Customs Act 1901 Cth.

Cur adv vult

The following written judgments were delivered:—

19 April 1995 Mason CJ, Deane and Dawson JJ.

The appellant was convicted in the District Court of South Australia, pursuant to an information filed by the Commonwealth Director of Public Prosecutions, of an offence under s 233B(1)(c) of the Customs Act 1901 Cth (the Act). His conviction of that offence made it unnecessary for the jury to consider an alternative charge of an offence under s 233B(1)(ca). An appeal to the Full Court of the Supreme Court of South Australia against his conviction was dismissed, by majority (Matheson and Duggan JJ, Legoe J dissenting). He now appeals to this Court.

Section 233B(1)(c) of the Act reads:

Any person who without reasonable excuse (proof whereof shall lie upon him) has in his possession, or attempts to obtain possession of, any prohibited imports to which this section applies which have been imported into Australia in contravention of this Act shall be guilty of an offence. The appellant's alleged offence, as identified by the information, was that he "without reasonable excuse had in [his] possession a prohibited import, namely 140.4 grams of heroin being not less than the trafficable quantity, to which section 233B of the Customs Act applies and which had been imported into Australia in contravention of the Customs Act 1901 ". Heroin is included among the narcotic goods to which s 233B applies. The allegation of the quantity of heroin being not less than the trafficable quantity was included in the information for the purposes of penalty [1] . That means that the objective elements of the offence of which the appellant was convicted were: (i) possession of heroin; (ii) absence of reasonable excuse; and, (iii) prior importation of the heroin into Australia in contravention of the Act. There is no doubt that the first two of those elements were satisfied in the present case. The appellant was in possession of the heroin when he was taken into custody. There is no suggestion that he had any reasonable excuse for that possession. Obviously, he had acquired and was in possession of the heroin for unlawful purposes. 1. See the Act, s 235.