Am I Guilty if Drugs are Planted on me?

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Drug importation is one of the most serious crimes in Australia – potentially carrying a maximum penalty of life imprisonment.

But how would you feel if you were accused of being a drug smuggler when you didn’t even know that drugs were in your luggage?

And perhaps more importantly, are you guilty if you were unaware that drugs were in your bags?

This was the question that the High Court was faced with in the case of He Kaw Teh v R (1985) 157 CLR 523.

The Case of He Kaw Teh

Despite taking place in the 1980s, Mr He Kaw Teh’s case started off in much the same way as an episode of the TV show ‘Border Security’.

He was flying from Kuala Lumpur to Melbourne when he was approached by Customs officials. They inspected his luggage, finding 2.78kgs of heroin in the false bottom. The street value of this heroin was estimated to be about $5.5 million at the time.

Mr He Kaw Teh was then charged with two drug offences: ‘drug importation’ and ‘drug possession’.

It was fairly clear that the drugs were found in his bag, but was this alone enough to convict him?

More specifically, did the prosecution need to prove that Mr He Kaw Teh actually knew the drugs were there?

Onus of proof

Initially, the Trial Judge found that it was up to Mr He Kaw Teh to prove that, more likely than not, he did not know the drugs were in his luggage.

That finding is contrary to the notion that the ‘onus of proof’ normally rests upon the prosecution; in other words, that the prosecution must prove that knowledge was present.

Mr He Kaw Teh ended-up losing his trial because he could not prove that he was unaware that the drugs were present.

He appealed the decision all the way to the High Court of Australia.

What did the High Court decide?

On appeal, all of the High Court Justices disagreed with the trial judge and decided in favour of Mr He Kaw Teh – finding that the onus of proof rests upon the prosecution to prove that the defendant had knowledge of the drugs being present.

They found that the offences of both drug importation and drug possession require this mental element – and that it is not possible to be found guilty of importing or possessing a drug unless you have ‘knowledge’ of it.

The Court decided, however, that the prosecution does not need to prove that you had actual knowledge of the drugs – ‘wilful blindness’ is enough to constitute a guilty mind and make you guilty.

Chief Justice Gibbs gave the example of a traveller whose suspicions were aroused, and who deliberately refrained from making any further inquiries in order to avoid learning the truth. This wilful blindness was enough, he said, to constitute knowledge for the purposes of a drug offence.

Is it your responsibility to check your luggage for drugs?

As mentioned above, suspecting that drugs may have been planted on you, but doing nothing about it, can satisfy the knowledge element of a drug offence.

On the other hand, if you suspect that drugs may have been planted on you, but you thoroughly check and cannot find anything, this will not be considered wilful blindness. Mere negligence is also insufficient to make a person guilty; for example, leaving your bag unattended for a short period of time.

The case of He Kaw Teh continues to be influential to the present day, and the examples contained in the case often come to the minds of criminal lawyers who are defending drug charges.

If you are facing serious drug charges, a specialist criminal lawyer with experience in fighting and winning drug cases will be able to give you advice and assistance to help achieve the best outcome.

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About Ugur Nedim

Ugur Nedim is an Accredited Specialist Criminal Lawyer and Principal at Sydney Criminal Lawyers®, Sydney’s Leading Firm of Criminal & Traffic Defence Lawyers.

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