Where a regulation is framed to prohibit an act absolutely, particularly where the regulation removes the individual's judgment about compliance (such as censorship submission requirements), no proof of mens rea is required beyond knowledge of the physical act.
Ross Defendant, Appellant; and Sickerdick Complainant, Respondent.
H C of A
On appeal from a Court of Petty Sessions of Victoria.
24 October 1916
Griffith C.J., Barton, Isaacs, Gavan Duffy and Rich JJ.
Schutt (with him Foster), for the appellant.
Mann and Morley, for the respondent, were not heard.
Griffith C.J.
This is an appeal from the conviction of the appellant on a charge that on or about 16th June 1916 he failed to comply with a provision of reg. 28A made under the War Precautions Act 1914-1916, in that he, being the editor of a certain newspaper, to wit, The Socialist, did fail to comply with an order in writing given to him on 17th April 1916 under the said regulation requiring him to submit before publication to a person named in the order any matter (whether in manuscript or print) intended for publication in the said newspaper which relates or refers to the present war or to any subject connected therewith or arising therefrom. All the facts alleged were proved. The appellant had previously been charged with publishing in a leaflet certain matter contrary to a similar regulation. He succeeded on that occasion on the ground that he was not proved to have published it. He thereupon deliberately published a report of the proceedings, and set out therein all the matter with the publication of which he had been previously charged. There is no doubt whatever that he published the matter alleged.
Two points have been taken. One is that reg. 28A did not cover such a case. There was previously in existence a regulation which might or might not have covered it. That regulation was apparently thought to be insufficient, and it was amended by inserting the words "which relates or refers to the present war or to any subject connected therewith or arising therefrom." The suggestion is that, those words having been inserted, the words "matter intended for publication" must be held to be limited to the subjects referred to in the regulation as it stood before amendment. The proposition answers itself. The other point taken is that a person who falls exactly within the terms of the regulation is not guilty unless something which is called mens rea is proved. Few expressions in the law have given rise to more confusion than mens rea. The real test is, as was pointed out by Lord Russell of Killowen C.J. in the case referred to by my brother Rich (Coppen v. Moore [No. 2][1]), what was the intention of the Legislature? Did they intend to prohibit the act under all circumstances? If they did, the question of mens rea does not arise. The only question then is: Did the accused person know what he was doing in fact? If he thought that what he did was lawful, that is a misapprehension of the law, and is no answer.
I have dealt with the matter at greater length than it deserves.
The appeal must be dismissed.
Barton J.
Having regard to the nature of the Statute and its objects, to the effect of acts of the character prohibited, with what intent soever they may be done, and to the terms of the regulation which relates to the case, I cannot see how there can be any doubt that the mere commission of an act of this kind was intended to be subject to conviction and punishment. It is not necessary in this case to go any further.
Isaacs J.
I agree that the appeal should be dismissed. The case is one which gives rise to very important questions of law both with direct relevance to precautions for the public safety and also with reference to the general common law principle that no one shall be convicted of a crime unless he has a guilty mind. Mr. Schutt has made the best of his case, and has presented his arguments with his customary care and clearness and with the firmness accompanied by the utmost deference for the Court which is always to be expected from members of the Bar. But the case, in my opinion, is hopeless. Mr. Schutt's principal point was that the appellant did not really think that the matter which he published was matter which ought not to be published without permission, having regard to reg. 28A. When that regulation is looked at, it appears to me that its very words cut away such an argument and for this reason:—The regulation says, amongst other things, that "any matter (whether in manuscript or print) intended for publication which relates or refers to the present war," &c., must, before publication, be submitted to the Censor or proper officer authorized by him. What does that mean? It means that a person who intends to publish anything relating to the War is not to exercise his own judgment as to whether it ought to be published or not, and rest content with that. He is to submit the matter proposed to be published to the proper officer, and is to be controlled as to publication by the judgment of that officer; and, inasmuch as the regulation tells the intending publisher that he is not to depend on the exercise of his own judgment, it surely cannot be an answer to a charge that he did amply exercise his judgment and did come to the conclusion that the matter might be published. Seeing that that is the very thing which is struck at by the regulation, it seems to me hopeless to argue that the point taken can be a sufficient answer.
Gavan Duffy J.
I agree with what has been said by my brother Isaacs as to the argument of Mr. Schutt, but he has failed to convince me. I think the appeal must be discharged.
Rich J.
I agree. Mr. Schutt has argued the case with his usual clearness and conciseness, but, notwithstanding what he has urged, the case appears to me to fall amongst that class of cases "where, it being the object of the Legislature to forbid a particular act from being done at all, the Statute is so framed as to forbid the commission of the act absolutely, quite independently of any question of mens rea, and where consequently, however innocently the forbidden act is done, the person doing it must be convicted, although he had no mens rea at all": Per Channell J. in Christie, Manson & Woods v. Cooper[2].
Appeal dismissed with costs.
Solicitors for the appellant, Loughrey & Douglas.
Solicitor for the respondent, Gordon H. Castle, Crown Solicitor for the Commonwealth.