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A truck driver accused of driving from Melbourne to Far North
Queensland to collect 400 kilograms of cocaine with a street value
of $140 million
has been found not guilty of attempting to possess a commercial
quantity of unlawfully imported border controlled drugs.
Osman El-Houli was arrested when Queensland Police found his
truck parked near the small town of Mareeba in far North
Queensland, the same day an airplane loaded with the nearly pure
cocaine crashed during take-off in Papua New Guinea.
Evidence before
the court
Mr El-Houli told police that a man known as “The
Professor” had paid him “a lousy” $10,000 to drive
nearly 3000 kilometres to drop off plasterboard in Queensland.
However, once enroute, he was given a different task – to
collect bags of cash, conceal it in the plasterboard in his truck
and return to Melbourne.
Mr El-Houli also given an encrypted phone for the trip, and bags
for the cash.
The prosecution alleged that Mr El-Houli drove for more than
three days to collect the cocaine, which never arrived after the
crash landing.
Law enforcement agents believed the operation was run by a
syndicate consisting of a Colombian group and members of the
Melbourne mafia.
Prosecutors argued that “deep down” Mr El-Houli must
have known or have been reckless to the fact there were drugs
involved, which they needed to prove beyond a reasonable doubt in
order to establish the offence.
However, the jury found within hours that Mr El-Houli was not
guilty of the offence charged.
Cocaine is big
Business in Australia
Cocaine is big business in Australia, with figures from 2021
showing that Australia has the highest per capita consumption of
cocaine in the world, with the cocaine trade estimated to worth
around $2 billion annually, with about five and a half tonnes
consumed each year.
At the end of last year, the price of cocaine soared to its
highest levels, with the NSW Crime Commission reporting that the
street price of cocaine is almost double pre-pandemic levels, now
about $420 a gram.
Cocaine has always been considered a party drug for the right
and famous, but increasingly drug surveys and the national
wastewater analysis programme shows that cocaine use is more widely
spread than just in the affluent areas of our capital cities. It is
rapidly becoming a drug of choice, and a substance that is used
with some frequency – not just on special occasions.
While police believed that the price hike at the end of 2022 was
the result of a number of large, high-profile seizures which had
made headlines through the year, drug experts say that’s not
the case – supply shortage tend to be short-live, and may
bump up the price, but that typically only
about 10 to 15 percent of drugs are actually seized by law
enforcement.
The offence of
attempting to possess a commercial quantity of unlawfully imported
border controlled drug
Possessing a commercial quantity of unlawfully imported border
controlled drug or plant is an offence under
section 307.5 of the Criminal Code Act 1995 (Cth) which carries
a maximum penalty of life in prison.
To establish the offence, the prosecution must prove beyond
reasonable doubt that:
You possessed a substance,
The substance was unlawfully imported,
The substance was a border controlled drug or plant,
You knew, or were reckless as to whether, the substance was a
border controlled drug or plant, and
The amount possessed was the commercial quantity.
You were ‘reckless’ if you were aware it was likely that
the substance was a border controlled drug or plant but went ahead
with your actions regardless.
You are not guilty of the offence if you are able to establish,
‘on the balance of probabilities’, that you did not know
the substance was unlawfully imported.
Examples of ‘commercial quantity’ include:
At least 500 grams of MDMA (or ‘ecstasy’),
At least 750 grams of amphetamines,
At least 1.5 kgs of heroin,
At least 2 kgs of cocaine, or
At least 100 kgs of cannabis leaf
Attempts
Section 11.1 of the Criminal Code Act makes clear that a person
may be found guilty of a crime under the Act if he or she
attempts but fails to carry out the offence.
The section provides as follows:
(1) A person who attempts to commit an offence commits the
offence of attempting to commit that offence and is punishable as
if the offence attempted had been committed.
(2) For the person to be guilty, the person’s conduct must
be more than merely preparatory to the commission of the offence.
The question whether conduct is more than merely preparatory to the
commission of the offence is one of fact.
(3) For the offence of attempting to commit an offence,
intention and knowledge are fault elements in relation to each
physical element of the offence attempted.
Note: Under section 3.2, only one of the fault elements of
intention or knowledge would need to be established in respect of
each physical element of the offence attempted.
(3A) Subsection (3) has effect subject to subsection (6A).
(4) A person may be found guilty even if:
(a) Committing the offence attempted is impossible; or
(b) The person actually committed the offence attempted.
(5) A person who is found guilty of attempting to commit an
offence cannot be subsequently charged with the completed
offence.
(6) Any defences, procedures, limitations or qualifying
provisions that apply to an offence apply also to the offence of
attempting to commit that offence.
Legal
defence
A legal defence to all
drug charges brought under the Criminal Code Act 1995 is
‘duress’, which means:
Your actions were due to a threat of death or serious injury to
you and/or a member of your family,
There was no reasonable way to render the threat ineffective,
and
Your conduct was a reasonable response to the threat.
Going to court
for a drug charge?
If you have been accused of a drug offence, call Sydney Criminal
Lawyers anytime on (02) 9261 8881 to arrange a free conference with
an experienced criminal defence lawyer who will accurately advise
you of your options, the best way forward and fight for the optimal
outcome.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.