Summary of the Issue: Ketut and Rhonda were enjoying their holiday in Bali when they fell in love. While Ketut decided to accompany Rhonda back to Australia and while at the airport, Jim switched Ketut’s suitcase with one that is identical. At the airport inspection, the customs officials discovered heroin hidden in the suitcase but on informing the police, arrests were not immediately made. The police decide to investigate and in the course of doing so accidentally hit Sandra’s car which was being used to return the misplaced suitcase. This destroys the bags leaving 0.945 kg of heroin and also 50 grams of marijuana were found on Sandra’s bag and in the boot. Due to this mishap, the police abandon the investigations and arrest Ketut on the same day.
Question 1: Under Victorian law:
Ketut can be charged with the importation of illegal drugs. He could also face charges for possession of heroin which is an illegal drug. Trafficking is another charge that he might face.
Rhonda could be charged with trafficking and also possession of illegal drugs. This will be on two counts since heroin and marijuana are illegal and were found on her person. She was the one in current possession of the suitcase and the bag at the time the police caught up with them.
Sandra could be charged with trafficking of marijuana and heroin since it is her car which was being used to transport the suitcase which had the drugs. Australian Drug Foundation, 2010 (Vic).
Under Federal Law:
According to Winford, 2010, (Cth) Ketut will be charged with possession of illegal drugs, an attempt to traffic illegal drugs. He will also be charged with the importation of banned substances into the country. This is found under the import/export offences. Another charge he might face is conspiracy to commit a punishable offence.
Rhonda would be charged with conspiracy to commit a punishable offence and also possession of banned drugs. She could also be accused of Aiding and Abetting a criminal offence.
Sandra would be charged with conspiracy to commit a punishable offence and also possession of banned drugs. Like Rhonda, Sandra could be accused of aiding and abetting.
Question 2: Defences:
Under Victorian Law
Ketut’s defence for possession can be that the suitcase in question was not his. The burden of proof for this lies with the police who are the prosecution. Also he can claim that he did not have knowledge of the illegal drugs concealed in the package.
Rhonda’s defence for the possession charge will be that she did was in no way aware of the heroin. And knowledge is a prerequisite for possession. Teh v R (1985) (Vic)
Sandra she did was in no way aware of the heroin. And knowledge is a prerequisite for possession. Teh v R (1985) (Vic)
Under Federal Law
In Ketut’s case, a defence for the importation can be that the quantity of heroin found does not meet the threshold of 1.5kgs for commercial quantity. This is the lack of commercial intention defence through which he can also claim that he is not the one who manufactured or planted the heroin. On the count of trafficking, he can defend himself by invoking part 9.1 of division 303 (Cth) which absolves the person of guilt if at the time of the said offence; the accused believed that he was acting within the confines of the law. All he knew was that he was collecting his bag from customs (Winford, 2010-Cth).
In Sandra’s case, the issue of both commercial and marketable quantity will be used to defend her from the charge of trafficking since it the amount found on her bag was 50 grams yet the marketable quantity has a set minimum of 25000 grams.
Rhonda can also invoke part 9.1 of division 303 as done by Ketut. She was simply offering a friend a lift to the airport .This is according to Winford, 2010 (Cth).
Australian Drug Foundation. (2010) (Vic) Drug Law in Australia. Retrieved from http://www.druginfo.adf.org.au/topics/drug-law-in-australia on March 1, 2013
Winford, S., Solicitor (2010) State Offences. Retrieved from http://www.druginfo.adf.org.au/topics/drug-law-in-australia on 1 March 2013
Teh v R In The High Court of Australia (1985) (Vic) He Kaw Teh v R  HCA 43; (1985) 157 CLR 523 (11 July 1985) Retrieved from http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/1985/43.html on 1 March 2013