CASE LAWS

Question 1

Question 1: Explain the case of He Kaw The v The Queen (1985)

Answer 1

Facts:
- The Defendant came into the airport with a bag in which a large amount of heroin was hidden
- He was charged for possessing and importing heroin under the Customs Act 1901 (Cth)
- He claimed that he did not know about and did not intend to bring the heroin in

Legal issue: what happens when the legislation is silent as to Mens Rea? And defence of honest
and reasonable mistake

Judgement:

• Appealed conviction to high court who found for the appellant
• Court found that the prosecution needed to establish an intent in matters of significant
  criminality unless the presumption was rebutted
• When the statute is silent about the requisite mens rea, there is a presumption that the highest
  level of mens rea is required
  Question 2: Explain the case of Ghani v Jones (1970)

Question 2

Question 2: Explain the case of Ghani v Jones (1970)

Answer 2

Facts:
- Court was asked as to the powers of police to retain objects taken and impounded

Held: Lord Denning MR

1. Police officers must have reasonable grounds for believing that a serious offence has been
   committed
2. Must have reasonable grounds for believing that the article in question is either the fruit of the
   crime (stolen goods) or is the instrument by which the crime was committed (object/weapon)
   to is material evidence to prove commission of crime
3. Police officers must have reasonable grounds to believe that person in possession of it has
   committed the crime or implicated in it, or an accessory to it, or refusal is unreasonable
4. Police must not keep the article for any longer than is reasonably necessary to complete their
   investigation
5. The lawfulness of the conduct of the police must be judged at the time and not by what
   happens afterwards

Question 3

According to the Case Law of Hew Ka Tha what are the types of possessions?

Answer 3

1. Actual/exclusive - in his/her possession
2. Joint - joint enterprise/ common purpose
3. De facto
4. Minute quantities - must be measurable
5. Forgotten
6. Momentary - control can amount to possession