Australia, Aug. 11 -- New South Wales Land and Environment Court issued text of the following judgement on July 11:

1. LEEMING JA: This interlocutory appeal from a pre-trial ruling by the District Court in the prosecution of two persons for a federal drug offence presents questions of general application concerning the operation of the Criminal Code contained in the Criminal Code Act 1995 (Cth).

2. The respondent, Mr Lachlan Ingram, stands charged on a joint indictment with Ms Shania Rose Carr with a single count of attempted possession of a commercial quantity of an unlawfully imported border controlled drug, contrary to s 307.5(1) read with s 11.1(1) of the Code. The essential facts are scarcely unusual. The Crown contends that Mr Ingram had been involved in arranging delivery of a package sent from Afghanistan which, when it arrived in Australia had contained methamphetamine (the drug had been replaced by an inert substance by police), including by asking Ms Carr to collect it, which she did. The Crown alleges that both Mr Ingram and Ms Carr are guilty of the offence on the basis that each by their own conduct attempted to possess the drug. However, if the jury does not find Mr Ingram guilty based solely on his own conduct, the Crown also intends to invite the jury to convict him on the basis that Ms Carr was a proxy whose conduct he procured, thereby engaging s 11.3 of the Code, which provides:

Commission by proxy

A person who:

(a) has, in relation to each physical element of an offence, a fault element applicable to that physical element; and

(b) procures conduct of another person that (whether or not together with conduct of the procurer) would have constituted an offence on the part of the procurer if the procurer had engaged in it;

is taken to have committed that offence and is punishable accordingly.

3. As initially enacted, s 11.3 was titled "Innocent agency"; the current title was inserted in 2010.

4. Earlier this year, the District Court ruled that the Crown was precluded from relying upon s 11.3, as an alternative basis for Mr Ingram's guilt, in circumstances where both he and Ms Carr were being prosecuted as principals for the same offence. That conclusion drew upon the section's former title "Innocent agency", some authority to the effect that "innocent agency" at common law was confined to agents who lacked mens rea, and a passage in a decision of the Supreme Court of Victoria (Commonwealth Director of Public Prosecutions v Brady [2016] VSC 334; 346 FLR 1 at [936]) where it was said that s 11.3 did not "apply to persons who engaged in the offence with the requisite intention at the time of committing the physical element of the offence".

5. For the reasons that follow, the appeal should be allowed and the ruling set aside. The dictum from Brady limiting the application of s 11.3 should not be followed. Section 11.3 is available irrespective of the "innocence" or otherwise of the proxy. It is open for the Crown to proceed against Mr Ingram and Ms Carr simultaneously on the bases that (a) both are guilty as principals by reason of each satisfying the physical and fault elements of the offence by their own conduct, and (b) if the jury does not find all of the physical elements of the offence made out in relation to Mr Ingram, then alternatively he procured Ms Carr to attempt to possess the imported drug, such that by reason of s 11.3 her conduct is imputed to him for the purpose of satisfying the physical elements of the offence. The alternative pathway to guilt is not reached if Mr Ingram is found guilty by his own conduct, but if it is reached, s 11.3 is available irrespective of whether Ms Carr is guilty or otherwise. In other words, it is available irrespective of whether Ms Carr is found to have had no knowledge, or some knowledge, or sufficient knowledge, to satisfy the fault element of the offence.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/197ebec604e679259cdebe49)

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