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Corby's Defence Would Not Hold Water Here Either
Geoffrey Hills | On Line Opinion | 06/02/2005

As a 14-year-old in Hobart, I experienced my own Schapelle Corby moment. I was hauled out of a physical education class and brought before a deputy headmistress, blissfully unaware that while I was playing basketball, a classmate had used my unattended school bag in the changing rooms as a repository for a small quantity of cannabis leaf. This mandated an immediate suspension, irrespective of my knowledge of the drug's presence. I was morally outraged and launched an appeal to the Principal. Fortunately, that humane woman shared my sense of fairness and overturned the suspension.

There are two distinct issues to consider in the Schapelle Corby case. The first is evidence: the adequacy of the evidence presented and the rigorousness of the Indonesian system for gathering and controlling its admissibility. The second issue is whether it is fair to create criminal liability for offences based on possession, without requiring proof of subjective knowledge.

This second element is more interesting because it points not only to the injustice of the Indonesian law but also to an intractable problem in Anglo-Australian criminal law. What would have happened to Schapelle Corby if she had touched down at Melbourne airport? The Australian law in this area has been subject to codification. But to understand it, we must first examine the common law from which it evolved. The English law was summarised by the House of Lords in 1969. In Warner's case, the Lords ruled:

That a person is not in possession of an item that has been slipped into her bag without her knowledge; and that if a person knows that an item has come under her control, she is deemed to be in possession, even if mistaken as to its contents. An exception to this principle occurs if it can be shown that the item is of a ''wholly different nature'' than the item it was believed to be.

But these avenues of defence were narrowed by the 1988 decision in Lewis's case. There, Lewis was convicted of possessing drugs that were found in a house of which he was a tenant but rarely visited, irrespective of whether he knew of their presence. The significance of this rule in English law is that it imposes a positive duty on all people to search their premises regularly to ensure that they are free from drugs. (BuzzNote: What if there's no opportunity to search the "premises"?) Under this rule, the person whose bag has fallen victim to a drug smuggler is held to a duty to inspect her bags. Had Schapelle Corby landed at Melbourne airport, presumably, she would have been charged with trafficking narcotics under the Commonwealth Crimes Act. This statute rightly adds a knowledge element to the crime that appears to be lacking in the English law. (BuzzNote: And Indonesian law.)

But Australian courts, under the Act, might have inferred that in our Melbourne scenario, Corby had knowledge that the cannabis was for use in drug dealing by looking to the ''objective factual circumstances'' of the case (i.e. the quantity of cannabis, among other factors). (BuzzNote: If it was slipped into her luggage en route, how as she supposed to have any knowledge of the pot's presence?)

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Kannibal

I really do not understand any justice system that jails someone for 20 years for any quantity of a natural growing plant as harmless as cannabis and lets a mass murdering terrorist off with 30 months.

Debate that.

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Keep the wall of reality and fantasy high enough not to fall over but low enough to see the other side.