Corby's defence would not hold water here either

As a 14-year-old in Hobart, I experienced my own Schapelle Corby moment. I was hauled out of a physical education class and brought before a deputy headmistress, blissfully unaware that while I was playing basketball, a classmate had used my unattended school bag in the changing rooms as a repository for a small quantity of cannabis leaf. This mandated an immediate suspension, irrespective of my knowledge of the drug's presence. I was morally outraged and launched an appeal to the Principal. Fortunately, that humane woman shared my sense of fairness and overturned the suspension.

There are two distinct issues to consider in the Schapelle Corby case. The first is evidence: the adequacy of the evidence presented and the rigorousness of the Indonesian system for gathering and controlling its admissibility. The second issue is whether it is fair to create criminal liability for offences based on possession, without requiring proof of subjective knowledge.

This second element is more interesting because it points not only to the injustice of the Indonesian law but also to an intractable problem in Anglo-Australian criminal law. What would have happened to Schapelle Corby if she had touched down at Melbourne airport? The Australian law in this area has been subject to codification. But to understand it, we must first examine the common law from which it evolved. The English law was summarised by the House of Lords in 1969. In Warner's case, the Lords ruled:

• That a person is not in possession of an item that has been slipped into her bag without her knowledge; and 
• that if a person knows that an item has come under her control, she is deemed to be in possession, even if mistaken as to its contents. An exception to this principle occurs if it can be shown that the item is of a ''wholly different nature'' than the item it was believed to be.

But these avenues of defence were narrowed by the 1988 decision in Lewis's case. There, Lewis was convicted of possessing drugs that were found in a house of which he was a tenant but rarely visited, irrespective of whether he knew of their presence. The significance of this rule in English law is that it imposes a positive duty on all people to search their premises regularly to ensure that they are free from drugs. Under this rule, the person whose bag has fallen victim to a drug smuggler is held to a duty to inspect her bags. Had Schapelle Corby landed at Melbourne airport, presumably, she would have been charged with trafficking narcotics under the Commonwealth Crimes Act. This statute rightly adds a knowledge element to the crime that appears to be lacking in the English law.

But Australian courts, under the Act, might have inferred that in our Melbourne scenario, Corby had knowledge that the cannabis was for use in drug dealing by looking to the ''objective factual circumstances'' of the case (i.e. the quantity of cannabis, among other factors).

In practice, ''constructing'' knowledge in this manner has been a very low hurdle for prosecutors to clear. Under the law in England and Australia, it is likely that at least some people who have been the victims of drugs planted on their possessions or property, and who have no actual knowledge of the substances, will be convicted. There are two types of cases:

• Those in which the person has no knowledge of any kind of item in her possession; and
• those in which a person receives a package but doesn't know it contains drugs.

We might ask whether a person's possession of cocaine is really voluntary if she is mistaken as to the package's contents. As the public outcry about Schapelle Corby suggests, there is something intuitively immoral and unjust about both these circumstances in which Australian courts may impose severe prison terms on a person without needing to be certain that a person's conduct had the crucial element of voluntariness. There also seems to be something perverse in a legal system, such as ours, which imposes positive duties on every citizen constantly to inspect and monitor their property and transportation vessels for the presence of drugs. If people took such a duty seriously, it would impose intolerable burdens on our time.

The American Law Institute's ''Model Penal Code'' suggests a more liberal answer to regulating drug offences. ''Possession,'' it states, occurs when ''the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession.'' This is a far more rigorous standard than that applied by Australian and English courts. The cost of liberalising drug laws in Australia will no doubt be that some guilty offenders are acquitted. But the cost of failing to liberalise drug laws is that some innocent people will be sentenced to long prison terms.

Have Australians travelled so far from liberal democracy that we have forgotten which of those evils we are supposed to prefer? Andrew Ashworth, who holds the venerable Vinerian chair in English law at Oxford, suggests that our law is an example of the so- called ''war against drugs'' distorting proper legal standards. He is right and those critics who berate the Indonesian justice system for its dealings with Corby would do well to turn the spotlight on Australia's own drug laws.