He kaw te law case

July 17, 2017 The Noffs Team Comments


I'm a Criminal Justice scholar so I find myself regularly geeking out over criminal law and drug law reform.

For instance, NSW legislation has some remarkable drug regulations buried in it that have pioneered drug law reform throughout the country and the world.

But how do these regulations come into being?

Before we geek out about drug regulation we need to understand how laws are created and then tested.

When laws are written, they are not necessarily tested straight away.

Legislation and policy are created and then tried in the courts. This system exists to prevent governments from going crazy and writing a bunch of heinous and oppressive unjust laws to further their own political or personal financial agendas.

Essentially, the job of the courts is to assess the real meaning behind the law, and within the broader context of other laws and legal processes.

But it's not foolproof, and one case where the system has failed miserably and on a grand, catastrophic scale, is laws surrounding the prohibition of drugs.


In criminal law cases, the are a few basic ingredients required for a successful prosecution:

  • Actus reus - literally translating to the “Guilty Act”. The prosecution needs to show that the accused has actually committed the act they are being tried for,[1]

  • Mens Rea - literally translating to the “Guilty Mind”. The accused must be aware of the act they have committed, and in most cases planned to commit it. For example in when someone is convicted of murder, there is an element of Mens Rea, whereas there is not in manslaughter.[2]

  • Voluntarism - an accused person may not be convicted of a crime they did not do willingly. Blackmail, extortion, bribery and mental illness can all contribute in this area.[3]

  • Causation - causation refers to the connection between action and result. In legal terms it is important to show that any harm caused was the direct result of the actions of the accused. [4]

Of course the law is not simply black and white. There are inchoate offenses, where no crime is committed, but the accused can be prosecuted for planning a crime. For example while there is no Guilty Act to hiring a hitman or studying the security of a museum in order to consider the best way to break in, both of these acts can be prosecuted due to the intention and level of potential harm.

Similarly, not all prosecutions require the intent to do harm. Whilst a driver does not intend to collide with the car pulling out from the side street, they can be charged with manslaughter if they were driving recklessly, were shown to be tired, or under the influence of substances illicit or prescription.

The law is also applied differently when the crime is caused by carelessness, rather than criminal intent. You can be prosecuted for selling marijuana even if you didn’t know it was illegal, but you are unlikely to be prosecuted if you thought you were selling oregano and later discovered it was marijuana. There are also strict liability laws, for example statutory rape, which are always considered criminal regardless of your intent or knowledge of the act.[5]


With all the elements of law in mind, it can be hard to prove that drug smugglers are actively, voluntarily, and knowingly committing a crime that will cause harm. If a drug smuggler can fill the rest of his baggage with dried herbs he can easily claim that he was unaware he was carrying marijuana. Or perhaps you are helping a friend move house. As you are driving between houses you are pulled over for a random drug test. There are sniffer dogs on scene who signal the officers to check the boxes in the back seat, and a bag of cocaine is uncovered. As you were only transporting the boxes for a friend and didn’t know about the contents, you are not guilty of a crime.

Florida revised their drug laws to explicitly state the Mens Rea was not a requirement in offenses relating to drug possession. The intent may have been to tighten the net on people claiming they were unaware the drugs had come into their possession. However, taken to its full extent, the changes in law mean it is now far easier for innocent people to get caught in a widening net. I believe it also cuts the fourth leg of the table that holds up the intention and structure of a legal system and its efforts to protect the innocent. This danger doesn't just remain in Florida or the US either. Below I'll discuss the implications in Australian drug law.[6]

In many places, drug laws are separated into possession, and possession with the intent to distribute. While someone may be charged with possession if they are carrying an illicit substance, carrying a large amount may result in charges of possession with intent to distribute. In these cases proof of intention to distribute may include (alongside the large amounts of illicit substances) scales, bags for separating small quantities out, large amounts of cash in small bills, or witness statements.[7] While multiple elements of evidence are needed to convict someone of possession with intent to distribute, in most places if you are knowingly in possession of an illicit substance you can be charged on the assumption that you intended to use it.[8]


Drug prohibition has been around in various forms in America since 1914 [9] and the phrase “War on Drugs” has been used by many politicians throughout the years. Because drugs (and their use and suppliers) carry such a strong stigma, our laws have evolved to be merciless when punishing ‘criminals’. But they can also be overzealous and our definition of what a "drug dealer" is, is loose to say the least. I've found that in studying Criminal Justice, the deeper you go, the blurrier the lines become.

In the 1982 case of He Kaw Teh the accused was convicted of importing 2.78kg of heroin into Australia. He was sentenced to life imprisonment. However, he maintained through his entire trial that he was unaware the bag he was carrying had a false bottom filled with heroin. The conviction was appealed at the High Court of Australia, who ruled in He Kaw Teh’s favour.

In the original court hearing, the court decided that these was a strict liability case, where knowledge and intent did not need to be proven. However at the appeal He Kaw Teh’s lawyers drew attention to a previous case (Sherras v De Rutzen (1895) and a specific section of the Commonwealth Customs Act 1901 which stated:[10]

  • Any person who:-

(d)  aids, abets, counsels, or procures, or is in any way knowingly concerned in, the importation, or bringing, into Australia of any prohibited imports to which this section applies...


What we can see from the case of He Kaw Teh, is that when it comes to drugs in Australia, there is a very real possibility for things to go wrong in course of justice. Most of our laws related to possession and trafficking are still Strict Liability laws, meaning the onus is on the accused to prove their innocence.[11] This runs counter to the presumption of innocence that protects us every day and is an element of the International Covenant on Civil and Political Rights.[12]

The illicit drug market causes significant harm to every single one of us. However the lack of clarity in our drug laws also puts each of us at risk. We can see in He Kaw Teh that it is possible for any one of us to be prosecuted without the proper protections that we all deserve. This is what frustrates so many of the Australian and international legal community - our current system regularly fails those who deserve better protections.

And of course, many Australian judges, magistrates and lawyers now also agree that drug prohibition overall has become far more prohibitive to the course of justice than it is "just."

Ask the Hon Michael Kirby AC CMG "Criminal lawyers, who see the human face of those caught up in the law concerning illegal drug use, have an obligation to bring what they see to the notice of their fellow citizens who may have more confidence than is warranted in the capacity of criminal law and punishment to deliver results." [13]

We could argue that our drug laws work but we'd be arguing against some of the best legal minds in the country.

I'd prefer to be on the side of justice with this one.

Matt Noffs


1. Actus Reus Definition via The Free Dictionary by Wikipedia

2. Mens Rea Definition via The Free Dictionary by Wikipedia

3. Voluntarism (action) Definition via Wikipedia

4. Causation (law) Definition via Wikipedia

5. Mens Rea - A Defendant's Mental State By FindLaw via http://criminal.findlaw.com/


7. Drug Possession Overview By FindLaw via http://criminal.findlaw.com/

8. Possession, use and supply By Find Legal Answers (State Library of New South Wales) via http://www.legalanswers.sl.nsw.gov.au/

9. War on Drugs via Wikipedia

10. He Kaw Teh v The Queen via https://en.wikipedia.org/wiki/He_Kaw_Teh_v_The_Queen

11. Charged With Drug Trafficking? Be Prepared. By Tom Cuthbertson via Culshaw Miller Criminal Lawyers

12. Presumption of innocence via Australian Government - Attorney-General's Department http://www.ag.gov.au/

13. NSW Bar Association Drug Law Reform Discussion Paper via http://www.nswbar.asn.au/docs/webdocs/Drugs_DP_final1.pdf, Kirby, M. ‘The Future of Criminal Law’ (1999) 23 Criminal Law Journal 273.





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