In drug importation and possession charges under the Customs Act, the prosecution must prove, and the defence may contest, the accused's knowledge of the nature and existence of narcotic goods; mere proof of physical importation or custody is insufficient. The three-tier classification of statutory offences established in this case governs the approach to mens rea in all Commonwealth and state statutory offences.
Later decisions that cite He Kaw Teh v R
Decisions cited by He Kaw Teh v R
HE KAW TEH v. THE QUEEN [1985] HCA 43; (1985) 157 CLR 523
Criminal Law
High Court of Australia
Gibbs C.J.(1), Mason(2), Wilson(3), Brennan(4) and Dawson(5) JJ.
CATCHWORDS
Criminal Law - Mens rea - Statutory offence - Importing prohibited imports - Having possession of prohibited imports - Whether prosecution must prove knowledge of nature and existence of commodity - Possession - Whether imports knowledge - Customs Act 1901 (Cth), s. 233B(1)(b), (c).
HEARING
Canberra, 1984, December 5, 6;DECISION
GIBBS C.J.: The applicant was charged in the County Court of Victoria with two offences - first, that on 20 October 1982 he imported into Australia 2.788 kgs. of heroin and secondly, that on the same date he had in his possession without reasonable excuse the same quantity of heroin. The charges were laid under pars.(b) and (c) respectively of s.233B(1) of the Customs Act 1901 (Cth), as amended. The facts were within a short compass and of a familiar description. The applicant had travelled by air from Kuala Lumpur to Melbourne and after he had disembarked at the Melbourne Airport his baggage was inspected by Customs officials. In the course of the inspection he was found to be in possession of a bag which contained in a false bottom the heroin which was the basis of both the charges laid against him. In relation to both counts the learned trial judge directed the jury that no specific state of mind, whether of motive, intention, knowledge or advertence need be proved by the Crown. In relation to the first count he added that if the accused established by way of defence that he had an honest and reasonable belief in a set of facts which if they existed would make his act innocent that would afford a defence to the charge. He said that the accused bore the onus of establishing such a defence, on the balance of probabilities and not beyond reasonable doubt. In relation to the second count, the learned trial judge directed the jury that two defences were open to the accused, viz., that he had reasonable excuse for the possession and that he did not know that the goods in his possession had been imported into Australia in contravention of the Customs Act. He said that the onus of proving either of those defences on the balance of probabilities rested on the accused. The applicant was convicted and sentenced. He appealed to the Full Court of the Supreme Court of Victoria. It was conceded that the directions given by the learned trial judge were in accordance with two decisions that bound the Supreme Court - in relation to the first charge, Reg. v. Parsons (1983) 2 VR 499 and in relation to the second, Reg. v. Ditroia and Tucci [1981] VicRp 28; (1981) VR 247. The appeal was accordingly dismissed. The applicant now seeks special leave to appeal to this Court.
2. Section 233B(1), so far as it is material to the present case, provides as
follows:
"Any person who -
(b) imports, or attempts to import, into
Australia any prohibited imports to which
this section applies or exports, or
attempts to export, from Australia any
prohibited exports to which this section
applies; or
(c) without reasonable excuse (proof whereof
shall lie upon him) has in his
possession, or attempts to obtain
possession of, any prohibited imports to
which this section applies which have
been imported into Australia in
contravention of this Act;
...
shall be guilty of an offence."Subsection (1A) of s.233B provides as follows:
"On the prosecution of a person for an offenceSection 50(1) empowers the Governor-General by regulation to prohibit the importation of goods into Australia, and s.51(1) provides that goods, the importation of which is prohibited under s.50, are prohibited goods. By s.233B(2), the prohibited imports to which the section applies are prohibited imports that are narcotic goods. Section 233B(3) provides that a person guilty of an offence against sub-s.(1) is punishable on conviction as provided by s.235. Subsections (2) and (3) of s.235 provide a range of penalties, depending on the quantity and nature of the narcotic goods and the antecedents of the offender; in the present case, since the narcotic goods in relation to which the offences were committed consisted of a commercial quantity of heroin, the applicant was liable to be imprisoned for life.
against the last preceding sub-section, being an
offence to which paragraph (c) of that sub-section
applies, it is not necessary for the prosecution to
prove that the person knew that the goods in his
possession or of which he attempted to obtain
possession had been imported into Australia in
contravention of this Act, but it is a defence if
the person proves that he did not know that the
goods in his possession or of which he attempted to
obtain possession had been imported into Australia
in contravention of this Act."
3. The argument presented on behalf of the applicant raised some fundamental questions of the law relating to criminal responsibility. It was submitted that the learned trial judge erred in directing the jury that the prosecution had no need to prove that a person charged under s.233B(1)(b) acted with guilty knowledge - in particular with knowledge that the baggage he brought into the country contained narcotic goods. Section 233B(1)(b) does not expressly make knowledge an element of the offence. To "import" simply means to bring into the Commonwealth from abroad - see Lyons v. Smart [1908] HCA 34; (1908) 6 CLR 143, at p 150; Reg. v. Bull [1974] HCA 23; (1974) 131 CLR 203, at p 254. The word "import" does not carry its own connotation of knowledge or intention. If one in fact brings goods into Australia from abroad one imports them, whatever one's intention may be and whether or not one knows their nature or quality. Paragraph (b) does not contain any words - such as "knowingly" - which themselves might reveal that the Parliament intended to make the importation of narcotics an offence only if it was intentionally or knowingly carried out; in that respect it differs from par.(d) of s.233B(1), which makes it an offence to be "knowingly concerned" in the importation of prohibited imports that are narcotic goods.
4. However the provision has to be read in the light of the general
principles of the common law which govern criminal responsibility.
The
relevant principle is stated in Sherras v. De Rutzen (1895) 1 QB 918, at p
921, as follows:
"There is a presumption that mens rea, an evilThere has in the past been a tendency in Australia to regard this presumption as only a weak one, at least in the case of modern regulatory statutes: Proudman v. Dayman [1941] HCA 28; (1941) 67 CLR 536, at p 540; Bergin v. Stack [1953] HCA 53; (1953) 88 CLR 248, at p 261. However, the principle stated in Sherras v. De Rutzen has more recently been reaffirmed in the Judicial Committee and the House of Lords (Lim Chin Aik v. The Queen (1963) AC 160, at p 173; Reg. v. Warner (1969) 2 AC 256, at p 272 and Gammon Ltd. v. A.-G. of Hong Kong (1984) 3 WLR 437, at p 441; (1984) 2 All ER 503, at p 507) and in this Court: Cameron v. Holt [1980] HCA 5; (1980) 142 CLR 342, at pp 346, 348. The rule is not always easy to apply. Its application presents two difficulties - first, in deciding whether the Parliament intended that the forbidden conduct should be punishable even in the absence of some blameworthy state of mind and secondly, if it is held that mens rea is an element of the offence, in deciding exactly what mental state is imported by that vague expression.
intention, or a knowledge of the wrongfulness of
the act, is an essential ingredient in every
offence; but that presumption is liable to be
displaced either by the words of the statute
creating the offence or by the subject-matter with
which it deals, and both must be considered."
5. In deciding whether the presumption has been displaced by s.233B(1)(b), and whether the Parliament intended that the offence created by that provision should have no mental ingredient, there are a number of matters to be considered. First, of course, one must have regard to the words of the statute creating the offence. The words of par.(b) of s.233B(1) themselves contain no clear indication of Parliament's intention. However they stand in marked contrast to pars.(a), (c) and (ca) of the subsection, all of which deal with the possession of prohibited imports in certain circumstances and all of which contain the words "without reasonable excuse (proof whereof shall lie upon him)". The absence of those words from par.(b) suggests that no reasonable excuse will avail a person who imports narcotics. That would lead to an absurdly Draconian result if it meant that a person who unwittingly brought into Australia narcotics which had been planted in his baggage might be liable to life imprisonment notwithstanding that he was completely innocent of any connexion with the narcotics and that he was unaware that he was carrying anything illicit. On the other hand, if guilty knowledge is an ingredient of the offence, it becomes understandable that no excuse should be allowed to a person who has knowingly imported narcotics. This provides an indication, although only a slight one, that by par.(b) the Parliament did not intend to displace the presumption of the common law that a blameworthy state of mind is an ingredient of the offence.
6. The second matter to be considered is the subject matter with which the statute deals. Paragraph (b) of s.233B(1) and the other paragraphs of that subsection deal with a grave social evil which the Parliament naturally intends should be rigorously suppressed. The importation of and trade in narcotics creates a serious threat to the well-being of the Australian community. It has led to a great increase in crime, to corruption and to the ruin of innocent lives. The fact that the consequences of an offence against s.233B(1)(b) may be so serious suggests that the Parliament may have intended to make the offence an absolute one. On the other hand, the subsection does not deal with acts which "are not criminal in any real sense, but are acts which in the public interest are prohibited under a penalty", to repeat the words used in Sherras v. De Rutzen, at p 922, to describe the first of the three classes of exceptions to the general rule which that case laid down. On the contrary, offences of this kind, at least where heroin in commercial quantities is involved, are truly criminal; a convicted offender is exposed to obloquy and disgrace and becomes liable to the highest penalty that may be imposed under the law. It is unlikely that the Parliament intended that the consequences of committing an offence so serious should be visited on a person who had no intention to do anything wrong and no knowledge that he was doing so.
7. A third consideration is that which was mentioned in Lim Chin Aik v. The
Queen, at p 174:
"It is pertinent also to inquire whether puttingSee also Sweet v. Parsley [1969] UKHL 1; (1970) AC 132, at p 163 and Gammon Ltd. v. A.-G. of Hong Kong, at p 443. A person bringing baggage into a country can no doubt take care to ensure that no drugs are contained in it. The public interest demands that such care should be taken. There is thus an argument, the strength of which I shall later consider, in favour of the view that the Parliament may have intended to penalise importation that was no more than careless. Clearly, however, no good purpose would be served by punishing a person who had taken reasonable care and yet had unknowingly been an innocent agent to import narcotics.
the defendant under strict liability will assist in
the enforcement of the regulations. That means
that there must be something he can do, directly or
indirectly ... which will promote the observance of
the regulations. Unless this is so, there is no
reason in penalising him, and it cannot be inferred
that the legislature imposed strict liability
merely in order to find a luckless victim."
8. These indications do not all point in the same direction, but at least they suggest the conclusion that the Parliament did not intend that the offence defined in par.(b) should be an absolute one.
9. The expression "mens rea" is ambiguous and imprecise. The passage which I
have cited from Sherras v. De Rutzen suggests that
it means "evil intention,
or a knowledge of the wrongfulness of the act". In Iannella v. French [1968] HCA 14; (1968)
119 CLR 84,
at pp 108-109,
Windeyer J. approved of the statement in which
Jordan C.J. in R v. Turnbull (1943) 44 SR(NSW)
108, at p 109, described
the
mens rea
of an offender:
"... assuming his mind to be sufficiently normalHowever, as Lord Diplock pointed out in Sweet v. Parsley, at p 162, recklessness may be a sufficient mental element of some offences, and there is no single mental element that is common to all offences. As will be seen, it is a question whether negligence can amount to mens rea.
for him to be capable of criminal responsibility,
it is also necessary at common law for the
prosecution to prove that he knew that he was doing
the criminal act which is charged against him, that
is, that he knew that all the facts constituting
the ingredients necessary to make the act criminal
were involved in what he was doing."
10. It can hardly be doubted that a person would not commit an offence against s.233B(1)(b) if he did not intend to import either the narcotics themselves or the container in which they were found. The relevance of intention has been recognized in a number of cases. If goods are carried in a ship which sails within Australian territorial waters or into an Australian port, or in an aircraft which flies over Australian airspace or lands at an Australian airfield, with no intention that they should be unloaded in Australia, and they are not in fact unloaded, they will not be imported in the ordinary sense of the term: Reg. v. Bull, at pp 220, 254. A person may be convicted of an offence against s.233B(1)(b) if he despatches goods to Australia by air from a place outside Australia, with the intention that the goods should be landed in Australia: see White v. Ridley [1978] HCA 38; (1978) 140 CLR 342, especially at p 359. Those cases however do not answer the question whether the offender must know what he is importing, although White v. Ridley proceeds on the assumption that an innocent agent - a person who does not know that he is bringing narcotic goods into the country - will not commit the offence. The critical question is whether it is enough that the offender intended to import a bag or parcel, even though he did not know what it contained, or whether knowledge of the nature, and possibly of the quality, of the prohibited thing imported is an element of the offence. Since, as I have indicated, I find it impossible to suppose that the Parliament intended to make the offence one of absolute liability, the only alternative to a requirement of guilty knowledge (by which I include wilful blindness) is that no mental state is an ingredient of the offence, but that an accused is entitled to be acquitted if he honestly and reasonably believed that he was not carrying narcotic goods.
11. There has developed a principle that an honest and reasonable mistake of
fact will be a ground of exculpation in cases in which
actual knowledge is not
required as an element of an offence. This principle is founded on what was
said in Reg. v. Tolson (1889)
23 QBD 168, particularly per Cave J., at p
181:
"At common law an honest and reasonable beliefIn Bank of New South Wales v. Piper (1897) AC 383, at pp 389-390, their Lordships said:
in the existence of circumstances, which, if true,
would make the act for which a prisoner is indicted
an innocent act has always been held to be a good
defence. This doctrine is embodied in the somewhat
uncouth maxim, 'actus non facit reum, nisi mens sit
rea.' Honest and reasonable mistake stands in fact
on the same footing as absence of the reasoning
faculty, as in infancy, or perversion of that
faculty, as in lunacy."
"It was strongly urged by the respondent's counsel
that in order to the constitution of a crime,
whether common law or statutory, there must be mens
rea on the part of the accused, and that he may
avoid conviction by showing that such mens did not
exist. That is a proposition which their Lordships
do not desire to dispute; but the questions whether
a particular intent is made an element of the
statutory crime, and when that is not the case,
whether there was an absence of mens rea in the
accused, are questions entirely different, and
depend upon different considerations. In cases
when the statute requires a motive to be proved as
an essential element of the crime, the prosecution
must fail if it is not proved. On the other hand,
the absence of mens rea really consists in an
honest and reasonable belief entertained by the
accused of the existence of facts which, if true,
would make the act charged against him innocent."
12. The implications of these statements were explored in a number of cases
in this Court - particularly Maher v. Musson [1934]
HCA 64; (1934)
52 CLR 100, Thomas v. The
King [1937] HCA 83; (1937) 59 CLR 279 and Proudman v. Dayman. In the last-mentioned case
Dixon C.J. said, at pp 540-541,
that even where the statute
excludes the
necessity for positive knowledge on the part of the accused,
honest and
reasonable mistake
of fact will still be a ground
of exculpation. He
continued, at p.541:
"The burden of establishing honest andThese cases establish that if it is held that guilty knowledge is not an ingredient of an offence, it does not follow that the offence is an absolute one. A middle course, between imposing absolute liability and requiring proof of guilty knowledge or intention, is to hold that an accused will not be guilty if he acted under an honest and reasonable mistake as to the existence of facts, which, if true, would have made his act innocent. However there are a number of questions which have not been clearly answered. The first is whether the absence of an honest and reasonable belief in the existence of facts which would have made the act innocent is a form of mens rea or whether, on the other hand, an honest and reasonable mistake affords the accused a defence only when he is charged with an offence of which mens rea is not an element. A second question is whether the accused bears the onus of proving on the balance of probabilities that he acted under an honest and reasonable mistake of fact or whether it is enough if the evidence raises a reasonable doubt. Thirdly, it is a question whether the so-called defence of honest and reasonable but mistaken belief is available when the offence charged is of a truly criminal character, or whether it applies only to statutory offences of a regulatory kind.
reasonable mistake is in the first place upon the
defendant and he must make it appear that he had
reasonable grounds for believing in the existence
of a state of facts, which, if true, would take his
act outside the operation of the enactment and that
on those grounds he did so believe. The burden
possibly may not finally rest upon him of
satisfying the tribunal in cases of doubt."
13. The Supreme Court of Canada, in an important judgment, has given
confident answers to these questions. In Reg. v. Sault Ste.
Marie (1978) 2
SCR 1299 it was held that where an offence is truly criminal the prosecution
must establish a mental element, and
negligence is not enough for that
purpose. However, it was held, there is a middle position between cases where
full mens rea is
required and cases of absolute liability, namely, cases in
which it is a defence for the defendant to prove, on the balance of
probabilities,
that he was not negligent. Prima facie, "public welfare
offences", or "regulatory offences", are in this last-mentioned class.
Dickson
J., who delivered the judgment of the Court, accordingly held, at
pp.1325-1326, that offences could be classified into three categories,
as
follows:
"1. Offences in which mens rea, consisting of some
positive state of mind such as intent,
knowledge, or recklessness, must be proved by
the prosecution either as an inference from
the nature of the act committed, or by
additional evidence.
2. Offences in which there is no necessity for
the prosecution to prove the existence of
mens rea; the doing of the prohibited act
prima facie imports the offence, leaving it
open to the accused to avoid liability by
proving that he took all reasonable care.
This involves consideration of what a
reasonable man would have done in the
circumstances. The defence will be available
if the accused reasonably believed in a
mistaken set of facts which, if true, would
render the act or omission innocent, or if he
took all reasonable steps to avoid the
particular event. These offences may properly
be called offences of strict liability.
3. Offences of absolute liability where it is notThe Supreme Court of Canada has further held that in cases in which the prosecution is required to prove mens rea, there can be no conviction if the accused honestly believed that the facts were such as to make his actions innocent, whether or not the mistake was reasonable: Pappajohn v. The Queen (1980) 14 CR(3d) 243. It is of course clear that if guilty knowledge is an element of an offence, an honest belief, even if unreasonably based, may negative the existence of the guilty knowledge, and thus lead to an acquittal.
open to the accused to exculpate himself by
showing that he was free of fault."
14. It appears that in Reg. v. Tolson and Bank of New South Wales v. Piper the absence of mens rea was equated with the honest and reasonable but mistaken belief of the accused. Lord Diplock in Sweet v. Parsley, at p 163, and Menzies J. in Reg. v. Reynhoudt [1962] HCA 23; (1962) 107 C.L.R 381, at p 400, viewed the matter in that way. It may be that little turns on the question whether honest and reasonable mistake should be regarded as a special defence available only in cases not requiring mens rea, or as something the absence of which constitutes mens rea. The matter is largely one of words. On either view the words of the statute and the nature of the offence must be considered in deciding what mental state is required, and whether an objective test of reasonableness is to be applied together with the subjective test of whether there was a mistaken belief.
15. I should say immediately that if s.233B(1)(b) does not require the prosecution to prove guilty knowledge, but has the effect that an accused is entitled to be acquitted if he acted with the honest and reasonable belief that his baggage contained no narcotic goods, in my opinion the onus of proving the absence of any such belief lies on the prosecution. Maher v. Musson suggests the contrary, but that case was decided before Woolmington v. The Director of Public Prosecutions [1935] UKHL 1; (1935) AC 462. In Proudman v. Dayman, at p 541, Dixon J. may have intended to say that the accused bore only an evidentiary onus, but his words were somewhat equivocal, and in Sweet v. Parsley Lord Pearce (at p 158) and Lord Diplock (at p 164) understood them in different senses. In some later cases judges still spoke as though the onus of proof lay on the accused: see Dowling v. Bowie [1952] HCA 63; (1952) 86 CLR 136, at pp 141, 149-151; Bergin v. Stack, at p 261 and Reg. v. Reynhoudt, at pp 395-396, 399-400. However it has now become more generally recognized, consistently with principle, that provided that there is evidence which raises the question the jury cannot convict unless they are satisfied that the accused did not act under the honest and reasonable mistake: see Iannella v. French, at pp 110-111; Kidd v. Reeves [1972] VicRp 64; (1972) VR 563, at p 565; Mayer v. Marchant (1973) 5 SASR 567, but cf. Reg. v. Bonnor [1957] VicRp 33; (1957) VR 227. This view has also been accepted in New Zealand: Reg. v. Strawbridge (1970) NZLR 909. As I have said, it is in my opinion the correct view.
16. I am not sure that we can accept the opinion held in Canada that the defence of honest and reasonable but mistaken belief may be raised only in the case of regulatory offences. Thomas v. The King dealt with a crime that was truly criminal (bigamy) and so possibly did Reg. v. Strawbridge (the cultivation of marijuana). However it is more likely that the Parliament will have intended that full mens rea, in the sense of guilty intention or guilty knowledge, will be an element if an offence is one of a serious kind.
17. I have already shown that the offence created by s.233B(1)(b) is treated by the Parliament in some circumstances as being one of the most serious in the criminal calendar. It seems improbable that the Parliament would have intended that it might be committed as a result of mere carelessness, although that would be the case if guilty knowledge was not an element, and an unreasonable although honest mistake would not be sufficient to exculpate the accused. It is true that the penalty of life imprisonment provided by the statute is a maximum one and that a judge who considered that the accused had brought in narcotic goods in the honest but unreasonable belief that his luggage did not contain them would sentence accordingly. Nevertheless, to provide that a sentence of life imprisonment might be imposed for an offence committed merely through negligence would appear to be exceedingly severe. The gravity of the offence suggests that guilty knowledge was intended to be an element of it.
18. Moreover, it is by no means clear that the creation of liability for negligence would give added efficacy to the prohibition of the importation of narcotics. On any view of the effect of the section, if the suspicions of an incoming traveller are aroused, and he deliberately refrains from making any inquiries for fear that he may learn the truth, his wilful blindness may be treated as equivalent to knowledge. If he is given a bag or parcel to carry into Australia in suspicious circumstances, or if there is something suspicious about the appearance, feel or weight of his own baggage, and he deliberately fails to inquire further, the jury may well be satisfied that he wilfully shut his eyes to the probability that he was carrying narcotics and for that reason should be treated as having the necessary guilty knowledge. If he is innocent of complicity in any attempt to import narcotics, and there is nothing to arouse his suspicions, it is difficult to see what action he could be reasonably expected to take to prevent a stranger from secreting narcotics in his baggage. It would have little point to make negligence a ground of liability.
19. The present question was considered by the Full Court of the Supreme
Court of Queensland in Reg. v. Gardiner (1981) QdR 394;
(1979) 27 ALR 140 and
that Court held, by a majority, that on a charge under s.233B(1)(b) the
prosecution was not bound to establish
mens rea or to exclude the operation of
"the defence of ignorance or mistake of fact": see at p.406; p.152 of A.L.R.
The reasons
given for the conclusion were summed up by Hoare J., at p.405;
p.151 of A.L.R., very shortly as follows:
"So far as concerns the first charge in theWith all respect I do not consider that the fact that the legislation dealt with narcotic goods supports the view that the Parliament intended to make the offence an absolute one or to make proof of guilty knowledge unnecessary; the gravity of the offence indicates the contrary. Further I am by no means persuaded that it is virtually impossible, or even particularly difficult, to prove the state of mind of an importer of narcotic goods in the absence of admissions. If a person enters Australia carrying a suitcase which has narcotics concealed in it, and offers no convincing explanation of the presence of the narcotics, I should be surprised if a jury would draw any inference other than that he knew that the narcotics were in the case. For these reasons I cannot agree with the conclusion which was reached on this point by the majority of the Court in Reg. v. Gardiner which was followed by the majority of the Supreme Court of Victoria in Reg. v. Parsons. I accordingly conclude that the presumption that mens rea is required before a person can be held guilty of a grave criminal offence is not displaced in relation to s.233B(1)(b) of the Customs Act and that the prosecution on a charge under that provision bears the onus of proving that the accused knew that he was importing a narcotic substance.
indictment, having regard to the subject matter of
the legislation, namely narcotic goods, and the
virtual impossibility of proving the state of mind
of an importer of narcotic goods in the absence of
admissions which would be unlikely to be made by
traffickers, while there is much to be said to the
contrary, it seems to me that the legislature
intended to create the offence by proof of the
actual importing or attempting to import ..."
20. The next question that falls for consideration is whether on a charge
under s.233B(1)(c) the prosecution bears the onus of proving
that the accused
knew that he had the narcotic goods in his possession. The question bears a
different aspect from that which arises
in relation to s.233B(1)(b). The
words used in s.233B(1)(c) - "has in his possession" - in their ordinary sense
connote a state
of mind, in particular some awareness of the existence of the
thing that was in fact in the possessor's physical control. In Director
of
Public Prosecutions v. Brooks (1974) AC 862 Lord Diplock said, at p 866:
"In the ordinary use of the word 'possession', oneIn Reg. v. Boyesen (1982) AC 768, at pp 773-774, Lord Scarman said:
has in one's possession whatever is, to one's own
knowledge, physically in one's custody or under
one's physical control."
"Possession is a deceptively simple concept. ItIn Williams v. The Queen [1978] HCA 49; (1978) 140 CLR 591, at p 610, Aickin J. said:
denotes a physical control or custody of a thing
plus knowledge that you have it in your custody or
control. You may possess a thing without knowing
or comprehending its nature: but you do not
possess it unless you know you have it."
"It is necessary to bear in mind that in possessionSee also Reg. v. Woodrow (1846) 15 M & W 404, at pp 415, 418 [1846] EngR 620; (153 ER 907, at pp 912, 913); Reg. v. Warner, at pp 282, 307-308, 310-311. I may digress by saying that we are not concerned in the present case with the situation in which the accused knows that he has the thing in his custody but says that he does not know its nature - e.g., if he says that he thought heroin was baking soda - or its qualities - e.g., if he knew that he had in his possession a drug, but did not know which drug. In Canada it has been held that the prosecution must prove that the accused knew that the substance was a drug (Beaver v. The Queen (1957) SCR 531) but not that it was a drug of the kind mentioned in the charge (Reg. v. Blondin (1970) 2 CCC (2d) 118; affirmed (1971) 4 CCC (2d) 566). There was no unanimity of opinion on this question in Reg. v. Warner. I need not discuss these questions further, but may add that I cannot think that in the usual run of cases questions of that kind would present much difficulty to a jury. This is a case in which, if believed, the accused was wholly ignorant that the substance was in his suitcase. Clearly, a person does not have in his possession a narcotic drug which, without his knowledge, is in his baggage or his room.
there is a necessary mental element of intention,
involving a sufficient knowledge of the presence of
the drug by the accused. No doubt in many cases
custody of an object may supply sufficient evidence
of possession, including the necessary mental
element, but that is because the inference of
knowledge may often be properly drawn from
surrounding circumstances."
21. It would be a misapprehension to think that Williams v. Douglas [1949] HCA 40; (1949) 78 CLR 521 is authority for the view that mere physical custody, without any mental element, amounts to "possession". There it was held that the words "possession or control" in the Gold Buyers Act 1921 (W.A.), as amended, meant "de facto possession and actual control" and that gold bars were in the possession of the defendant although he had hidden them in a communal bathroom some distance from his bedroom. When the Court spoke of "de facto possession and actual control" it was intended to exclude cases of constructive possession, "where the real connection of the accused with the gold was ambiguous and uncertain, and where it would not be fair to throw so great an onus upon him": see at p.526. It was clearly not intended to suggest that a person could have possession of something of whose existence he was unaware. On the contrary, the Court in that case held that the liability of the defendant depended on whether either he, or his accomplice with his knowledge, had hidden the gold: see at pp 527, 528. In Moors v. Burke [1919] HCA 32; (1919) 26 CLR 265, which is discussed in Williams v. Douglas, the defendant was held not to be in actual possession of certain wool suspected of being stolen because he had placed the wool in a locker which was not under his control. It was decided that actual possession meant "the complete present personal physical control of the property to the exclusion of others not acting in concert with the accused" (see at p.274) but this statement did not mean, and the case does not suggest, that knowledge was not a necessary element - in that case of course the defendant had full knowledge of what he had done with the wool.
22. The effect of the authorities to which I have referred is that where a statute makes it an offence to have possession of particular goods, knowledge by the accused that those goods are in his custody will, in the absence of a sufficient indication of a contrary intention, be a necessary ingredient of the offence, because the words describing the offence ("in his possession") themselves necessarily import a mental element. In such a case it is unnecessary to rely on the common law presumption that mens rea is required. The question then is whether the words of the Customs Act contain a sufficient indication that the Parliament intended that knowledge should not be an ingredient of an offence against s.233B(1)(c), notwithstanding the prima facie effect of the words "in his possession". The provisions which might be thought to give such an indication are those of the clause "without reasonable excuse (proof whereof shall lie upon him)" and those of sub-s.(1A).
23. Before I turn to the authorities in which this question has been considered, it is useful to look at the words of the statute themselves. The words of s.233B(1)(c), read in their ordinary grammatical sense, mean that a person commits an offence if he has narcotic goods in his possession, unless he has reasonable excuse. Plainly the words suggest that no question of reasonable excuse arises until it is proved that the accused had possession of the goods. Since possession imports knowledge, "reasonable excuse", which falls to be considered only after possession has been proved, does not include mere lack of knowledge. Such a construction does not make the reference to "reasonable excuse" meaningless or nugatory. A person may have narcotic goods in his possession because he has taken them from an addict and is about to destroy them, or because he has found them and is taking them to the police, or because he is an officer of Customs who has confiscated them, and these circumstances may provide him with reasonable excuse. Subsection (1A) would not appear to bear on the present question. It makes it unnecessary for the prosecution to prove that the accused knew that the goods in his possession had been imported into Australia in contravention of the Act. It does not relieve the prosecution of the burden of proving that the goods were in his possession and that involves proving that he knew of their existence.
24. A different view has been taken in a number of cases, the first of which
was Reg. v. Bush (1975) 1 NSWLR 298. In that case the
accused, who had
collected a parcel which contained cannabis, denied that he knew or had reason
to suspect that it did contain the
cannabis or any other prohibited import.
The Court of Criminal Appeal of the Supreme Court of New South Wales held that
the prosecution
was not required to prove that the accused knew or suspected
or had reason to suspect that the parcel contained cannabis. Nagle J.,
who
delivered the judgment of the court, said, at p.328:
"It was necessary for the Crown to prove that heThis conclusion was reached for two main reasons. First, the Court held that the presumption that mens rea is an essential ingredient in every offence is displaced by the express terms of s.233B(1)(c) "which makes its own provision in relation to the proof of circumstances which exculpate an accused who has no criminal intention" (see at p.309) and that mens rea, in the sense of knowledge of the presence of cannabis or some such prohibited import, was not an essential ingredient of the offence. Nagle J. added, at p.310:
had de facto possession of the cannabis and this
the Crown did by showing that he took exclusive
physical control of the parcel which in fact
contained cannabis. It was not necessary for the
Crown to prove any further mental element beyond
the intention to acquire such control of the
article in which cannabis was in fact to be found.
When the accused claimed that he did not know, or
suspect, or have reason to suspect, that it
contained cannabis, it was upon him to satisfy the
jury that arising from such a claim as to his
mental attitude he had in all the circumstances a
reasonable excuse for his possession of the
narcotic goods."
"At the same time we would think that it does notSecondly, it was said, at p.324:
by implication exclude the exculpatory principle by
which the person charged may prove an honest belief
on reasonable grounds in the existence of
circumstances which, if true, would make innocent
that with which he is charged. But this
exculpation is, we think, encompassed by the terms
of par.(c) when it allows for any reasonable
excuse, proof of which is to lie on the accused."
" ... possession in s.233B(1)(c) means no more than
de facto possession of the narcotic goods concerned
in the sense in which we have considered that
expression, and that the mental element involved
extends no further than the intention inherent in
de facto possession of such goods, namely, the
intention to have exclusive physical control of
some article which is in fact narcotic goods or of
some article or of some place wherein such goods
are in fact carried or contained or located. It is
not inherent in that mental element that an accused
should know, or suspect, or have reason to suspect,
that an item in his de facto possession is narcotic
goods. Accordingly, if narcotic goods are found in
some bag or garment, or in some package or
container, or in some room or place, over which he
has the exclusive physical control appropriate to
de facto possession, he has them in his possession
for the purposes of s.233B(1)(c). A claim by him
that those goods were slipped into his bag or
garment or were inserted into the package or
container or planted in his room or other place
without his knowledge, or suspicion, or reason for
suspicion, are matters which he may establish to
the tribunal of fact as, according to the
circumstances, providing a reasonable excuse for
such possession."
25. The decision in Reg. v. Bush has been followed, not only in relation to
s.233B(1)(c) but also in relation to the similar words
of s.233B(1)(ca): see
Reg. v. Rawcliffe (1977) 1 NSWLR 219; Reg. v. Kennedy (1979) 25 ALR 367
(where, however, Roden J. dissented);
Reg. v. Gardiner and Reg. v. Ditroia and
Tucci. It is supported also by the decision of the Full Court of the Supreme
Court of Victoria
in Reg. v. Tawill [1974] VicRp 11; (1974) VR 84, where the Full Court of the
Supreme Court of Victoria held that duress is a reasonable excuse to
a charge
under s.233B(1)(c)
and that the onus of proving duress is accordingly cast on
the accused. At p.88 the Court said:
"The words 'without reasonable excuse' are words of
wide import. We see no reason why defences,
answers, justifications or excuses recognized by
the established principles governing criminal
responsibility, such as absence of mens rea,
mistake, insanity, infancy or duress, do not fall
within the ordinary grammatical meaning of those
words."
26. With all respect I am unable to agree with the reasoning which supports
the decision in Reg. v. Bush, and the cases which have
followed it. The
critical question, as I have endeavoured to show, is whether the words of
s.233B(1)(c) make knowledge an element
of the crime - a question "entirely
different" from whether there is an absence of mens rea when the knowledge is
not made an element
by the words of the statute themselves: see the passage
from Bank of New South Wales v. Piper cited above. In answering this question
it must be remembered that it has two aspects: first, what the word
"possession" ordinarily connotes and secondly, whether there
is anything in
the statute, or its history, which shows that some other meaning is to be
given to the word where it appears in s.233B(1)(c).
For the reasons I have
already given "possession" connotes knowledge of the existence of the thing
possessed. Further, neither
the provisions of par.(c) of s.233B(1) nor those
of sub.s.(1A) contain any indication either that "possession" is to be given
any
other than its ordinary meaning or that the onus of proving an element
which that meaning necessarily embraces should be cast upon
the accused.
27. There are however some decisions of and dicta in this Court on which
reliance was placed in Reg. v. Bush and other cases which
followed it. The
most important of these decisions is Poole v. Wah Min Chan [1947] HCA 37; (1947) 75 CLR 218.
In that case the
defendant was charged
that he unlawfully had in his
possession certain prohibited imports, to
wit 634 diamonds. The charge was
laid
under s.233 of the
Customs Act which, at that time, provided as follows:
"(1) No person shall -
(a) smuggle any goods; or
(b) import any prohibited imports; or
(c) export any prohibited exports; or
(d) unlawfully convey or have in his
possession any smuggled goods or
prohibited imports or prohibited exports.
Penalty: One hundred pounds.
(2) It shall not be lawful for any person to
convey or have in his possession without reasonable
excuse (proof whereof shall lie upon him) any
smuggled goods or prohibited imports.
(3) It shall not be lawful for any person toThe information was dismissed by the magistrate on grounds which are stated in the report as follows, at p.220:
convey or have in his possession any prohibited
exports with intent to export them or knowing that
they are intended to be unlawfully exported."
"(i) that submission by counsel for the defendant,
citing in support thereof the cases of Hill v.
Donohoe [1911] HCA 38; ((1911) 13 CLR 224) and Lyons v.
Smart [1908] HCA 34; ((1908) 6 C.L.R. 143) that it is an
element in the offence charged that the
defendant should know that the diamonds found
in his possession were prohibited imports was
upheld by him; and
(ii) that whilst from the untrue account andAn appeal by the informant was allowed. Latham C.J. (with whom McTiernan and Williams JJ. concurred) said, at pp.227-228:
evasive answers given by the defendant when
questioned as to his possession it could be
implied that his possession of the said
diamonds was unlawful, there was, in the
magistrate's opinion, no evidence by which a
knowledge could be imputed to the defendant as
to the specific character of the said goods,
that is to say, that they were prohibited
imports."
"Sub-section (2) provides that the possession by aStarke J., at p.232, said:
person of goods shall be unlawful if (1) they are
prohibited imports, and (2) he is in such
possession without reasonable excuse, proof of such
excuse to lie upon him. If these conditions are
satisfied the possession is declared by the statute
to be unlawful and it is unnecessary to consider
whether or not the person charged knew that the
goods were prohibited imports. A defendant may be
able to show that he had no reason to believe that
the goods were prohibited imports. Generally, such
proof would provide a reasonable excuse. The
opinion that possession without reasonable excuse
of prohibited imports in itself and independently
of any further mental element consisting in
knowledge that the goods are prohibited imports is
an offence is supported by a consideration of
sub-s.(3). ... In this case the legislature has
defined a mental element the presence of which is
necessary in order to make possession unlawful
under the provisions of sub-s.(3). There is no
corresponding provision in sub-s.(2) relating to
any mental element in the offence except in so far
as a mental element is introduced by the words
'without reasonable excuse' - words which would
entitle the defendant to explain his possession of
the goods by reference to his knowledge or intent.
The onus of proving the existence of a reasonable
excuse is expressly imposed upon the defendant."
"The intention of the Act to create as wide a
presumption as possible of knowledge is disclosed
by the sub-section declaring that it shall not be
lawful for any person to have in his possession
without reasonable excuse (the proof whereof shall
lie upon him) any prohibited imports ...
In my opinion, therefore, the provisions ofIt was common ground in that case that the accused had possession of the diamonds, and he knew that he had them because he gave an untrue account of how they came into his possession. The question whether the defendant's knowledge of the existence of the diamonds was essential to his possession of them was not discussed. The question was whether it was an element of the offence that he knew that they were prohibited imports - a question as to knowledge of the qualities or attributes rather than the existence of the goods. The judgments do not deal with the question whether a person could have in his possession goods of whose existence he was unaware.
s.233 are absolute unless the person in possession
of prohibited goods can establish that he was in
possession thereof under some lawful authority or
was in possession thereof having some reasonable
excuse for that possession, the proof whereof lies
upon him. A reasonable excuse depends upon the
facts established in evidence. The sub-section
contemplates that the person in possession of the
prohibited imports may not establish any legal
justification for his possession and yet have a
reasonable excuse."
28. Hill v. Donohoe, which was distinguished in Poole v. Wah Min Chan, was a decision upon s.233B(1)(c) of the Customs Act which, at that time, provided that any person who "without reasonable excuse (proof whereof shall lie upon him) has in his possession any prohibited imports to which this section applies which have been imported into Australia in contravention of this Act" shall be guilty of an offence against the Act. It was held that it was an element of the offence that the defendant should know that the prohibited imports found in his possession had been imported into Australia in contravention of the Act. The subsequent amendment of the section by the insertion of sub-s.(1A) reversed the effect of that decision.
29. The legislative history of the Customs Act up to 1976 is traced by Mason J. in his judgment in Beckwith v. The Queen [1976] HCA 55; (1976) 135 CLR 569, at pp 578-580. Subsequent amendments do not affect the position. The amendments made to the sections, and the decisions upon them, do not assist the contention of the Crown that knowledge of the existence of the narcotics is not an element of the offence.
30. In Reg. v. Bull, one question for decision was whether offences against
s.233B(1)(a) and (c) can be committed at sea within
three miles of the coast.
Section 233B(1)(a) refers to a person who,
"without any reasonable excuse (proof whereof shallThe Court, by a majority, held that offences against those provisions can be committed at sea within three miles of the coast. Barwick C.J. dissented. In the course of his discussion of this question Barwick C.J. said, at pp.220-221:
lie upon him) has in his possession, on board any
ship or aircraft, any prohibited imports to which
this section applies".
"Applying the section to the foreign trade by sea,The learned Chief Justice did not explain why he considered that knowledge of the nature of the thing possessed was not essential to the commission of an offence under s.233B(1)(a). He did not say that knowledge of the existence of the thing possessed was not essential. In any case, with the greatest respect, this remark in a dissenting judgment is no authority contrary to the view that I have formed.
the possession of the cargo is in the master of the
vessel, the right to possession, absolute or
conditional as the case may be, being either in
consignor or consignee as the circumstances
require. Knowledge of the nature of the thing
possessed is not essential to the commission of the
offence under s.233B(1)(a); however much ignorance
of it may exculpate: see Maher v. Musson. It
would, in my opinion, be absurd to construe the
section as making it an offence in the master to be
in possession in the marginal seas of any goods the
importation of which is prohibited."
31. Finally, reference was made to some remarks of my own in Milicevic v.
Campbell [1975] HCA 20; (1975) 132 CLR 307. In that
case the Court upheld
the validity of
s.233B(1)(ca). In the course of my judgment I said, at p 313:
"Some remarks in Hill v. Donohoe raise the questionMy remarks unfortunately were elliptical and somewhat ambiguous. I did not intend to suggest that sub-s.(1A) rendered it unnecessary to prove knowledge of the existence of the goods but simply that the subsection rendered it unnecessary to prove knowledge that the goods had been imported into Australia in contravention of the Act. The words of the subsection show that it has no wider effect.
whether the statement that the parliament has power
to make it unlawful to have possession of goods
that have been unlawfully imported requires some
qualification to render it correct. In that case
it was held that knowledge is an element of the
offence created by s.233B(1)(c) - a situation since
altered by the addition of sub-s.(1A) to s.233B -
but the court left open the question whether
parliament could validly legislate to make it an
offence for a person to have in his possession
prohibited goods which in fact had been imported,
if he was ignorant of that fact."
32. For the reasons I have given I hold that in a proceeding under par.(b) or par.(c) of s.233B(1) the prosecution bears the onus of proving that the accused knew of the existence of the goods which he brought into Australia, or which were in a suitcase or other container over which he had exclusive physical control, as the case may be. The proper direction on the first charge was that the prosecution had to prove that the applicant brought the suitcase into Australia, knowing that the heroin was in the case. On the second charge the jury should have been told that they could not find that the applicant had the heroin in his possession, unless they were satisfied that he knew that it was in the suitcase. Whether a direction concerning wilful blindness was also necessary depends on the facts, which were not fully before us. It is rather regrettable that a statutory provision which has assumed so great an importance in law enforcement in Australia should present such difficulties of interpretation. However I have no fear that the effect which I have given to the section will prove to be a charter for drug traffickers. If that is wrong, the remedy lies with the Parliament.
33. At first sight it would appear that the misdirection must lead to an order setting aside the conviction and for a new trial. However, the transcript of evidence was not placed before us. The learned trial judge told the jury that they might think that the central issue in the trial was the knowledge of the applicant and there can be no doubt that they found adversely to the applicant on that issue. We are unable to say whether the evidence raised a case so strong that notwithstanding the misdirection no substantial miscarriage of justice occurred. In these circumstances I would grant special leave to appeal, allow the appeal, and refer the matter back to the Full Court of the Supreme Court of Victoria to proceed in accordance with this judgment.
MASON J.: I agree with the reasons for judgment and the orders proposed by the Chief Justice.
WILSON J.: The applicant was convicted, after trial by judge and jury in the County Court of Victoria, of two offences under the Customs Act 1901 (Cth) as amended ("the Act"). The first offence was that on 20 October 1982 at Melbourne he imported into Australia prohibited imports, namely, heroin, contrary to s. 233B(1)(b) of the Act. The second was that on the same day at Melbourne without reasonable excuse he had in his possession prohibited imports, namely heroin, contrary to s. 233B(1)(c) of the Act. The same goods were involved in each offence. The applicant was sentenced to imprisonment for twenty years with a minimum term of seventeen years on the first count and ten years with a minimum term of eight years on the second count, both sentences to be served concurrently. The amount of heroin the subject of these offences was 2.788 kilograms and according to the evidence its street value in Australia was of the order of 5 1/2 million dollars. It goes without saying that the offences were extremely serious.
2. The applicant appealed against both convictions and sentences to the Full
Court of the Supreme Court of Victoria sitting as the
Court of Criminal
Appeal. His complaint with respect to the convictions was that the learned
trial judge had misdirected the jury
on the burden of proof of guilty
knowledge on the part of the applicant that the goods in question were
prohibited imports. It is
convenient to set out that portion of the charge to
the jury that dealt with these matters. His Honour said, speaking of the
charge
of importation:
"So the elements or ingredients of that offence
which the Crown must prove beyond reasonable doubt
before you can find the accused man guilty are:
first, an importation; second, done by the accused;
third, of heroin; fourth, on 20 October 1982 at
Melbourne.
You will note that the Crown does not have toA little later, speaking of the charge of possession, his Honour said:
prove any state of mind or knowledge of the
accused. The offence is complete when those four
elements are proved beyond reasonable doubt. No
specific state of mind, whether of motive,
intention, knowledge or advertence, need be proved
by the Crown. If the accused man establishes by
way of defence that he had an honest and reasonable
belief in a state of facts which if they existed
would make his act innocent, that would afford a
defence to this charge. You will note, however,
that the onus of establishing such a defence is
upon him. The requisite standard to which he must
establish such a defence is on the balance of
probabilities not beyond reasonable doubt. The
balance of probabilities means that the onus of
proof upon him is to prove that it is more probable
than not that he had such an honest and reasonable
belief. ... "
"Again no specific state of mind, whether ofOn the hearing of the appeals in the Court of Criminal Appeal it was conceded that the directions which were given to the jury in relation to both counts were in accordance with authorities which bound that Court, namely, Reg. v. Parsons (1983) 2 VR 499 and Reg. v. Ditroia and Tucci [1981] VicRp 28; (1981) VR 247. The appeals were therefore dismissed, opening the way for the applicant to seek special leave from this Court in order that the correctness of the passages that I have extracted from the trial judge's charge to the jury may be considered. The appeals against sentence were also dismissed by the Court of Criminal Appeal and the application for special leave includes that aspect of the matter. However, in the course of the hearing of the application the Court intimated to Counsel that in accordance with its established practice it would not grant special leave to appeal against sentence merely on the ground of its alleged severity. Therefore no more need be said of that part of the application.
motive, intention, knowledge or advertence, need be
proved by the Crown. ... You will have noted that
in respect of this second charge, the words
"without reasonable excuse" are used. The Crown
does not have to prove the accused man did not have
reasonable excuse. Proof that he had reasonable
excuse rests upon the accused. ... "
3. So far as material, s. 233B of the Act reads as follows:
"233B. (1) Any person who-
(a) without any reasonable excuse (proof whereof
shall lie upon him) has in his possession, on
board any ship or aircraft, any prohibited
imports to which this section applies; or
(b) imports, or attempts to import, into Australia
any prohibited imports to which this section
applies or exports, or attempts to export,
from Australia any prohibited exports to which
this section applies; or
(c) without reasonable excuse (proof whereof shall
lie upon him) has in his possession, or
attempts to obtain possession of, any
prohibited imports to which this section
applies which have been imported into
Australia in contravention of the Act; or
(ca) without reasonable excuse (proof whereof shall
lie upon him) has in his possession, or
attempts to obtain possession of, any
prohibited imports to which this section
applies which are reasonably suspected of
having been imported into Australia in
contravention of this Act; or
(cb) conspires with another person or other persons
to import into Australia any prohibited
imports to which this section applies or to
export from Australia any prohibited exports
to which this section applies; or
(d) aids, abets, counsels, or procures, or is in
any way knowingly concerned in, the
importation into Australia of any prohibited
imports to which this section applies, or the
exportation from Australia of any prohibited
exports to which this section applies; or
...
shall be guilty of an offence.
(1A) On the prosecution of a person for an
offence against the last preceding sub-section,
being an offence to which paragraph (c) of that
sub-section applies, it is not necessary for the
prosecution to prove that the person knew that the
goods in his possession or of which he attempted to
obtain possession had been imported into Australia
in contravention of this Act, but it is a defence
if the person proves that he did not know that the
goods in his possession or of which he attempted to
obtain possession had been imported into Australia
in contravention of this Act.
(1B) On the prosecution of a person for an
offence against sub-section (1), being an offence
to which paragraph (ca) of that sub-section
applies, it is a defence if the person proves that
the goods were not imported into Australia or were
not imported into Australia in contravention of
this Act.
(1C) Any defence for which provision is made
under either of the last 2 preceding sub-sections
in relation to an offence does not limit any
defence otherwise available to the person charged.
(2) The prohibited imports to which this
section applies are prohibited imports that are
narcotic goods and the prohibited exports to which
this section applies are prohibited exports that
are narcotic goods.
(3) A person who is guilty of an offence
against sub-section (1) of this section is
punishable upon conviction as provided by section
235.
... "By force of s. 235(2)(c)(i), the penalty applicable to each of the offences of which the applicant was convicted was imprisonment for life or for such period as the Court thinks appropriate.
4. The first submission advanced for the applicant is that guilty knowledge is an element of the offence created by s. 233B(1)(b). In its application to this case the proposition is that in order to establish a prima facie case against the applicant the Crown was obliged to adduce evidence capable of establishing beyond reasonable doubt that he knew that he was importing prohibited goods, namely, heroin. The furthest that Counsel was prepared to go in developing this submission was that the Crown may be permitted to rely upon an evidential presumption in favour of knowledge on the part of the applicant, with the result that unless he adduced evidence of his lack of knowledge of the presence of the prohibited substance in his luggage the jury would be entitled to convict. However, the consequence of his assuming an evidential burden in this way is not to transfer from the Crown the legal burden of persuasion beyond reasonable doubt of all the elements of the charge, including guilty knowledge.
5. Ultimately, the answer to this contention must rest on the construction of
the Act. However the difficulty of the task is evidenced
by the bewildering
diversity of judicial opinion expressed generally on the subject of guilty
knowledge over the past century. The
starting point of any evaluation must be
the much-quoted statement of Wright J. in Sherras v. De Rutzen (1895) 1 QB
918, at p 921:
"There is a presumption that mens rea, an evilThe Court was there concerned with a prohibition imposed on licensed victuallers not to supply liquor to a police constable while on duty. In terms, the act of supply was made an offence without any qualification. Another member of the Court, Day J., commented on the absence of the word "knowingly" in the provision creating the offence although the word did appear elsewhere in the statute and drew the inference that the presence of the word "knowingly" had the effect of requiring the prosecution to prove the knowledge while its absence had the effect of requiring the defendant to prove that he did not know. Similarly, in Harding v. Price (1948) 1 KB 695, at p 700, Lord Goddard C.J. observed that the omission of the word "knowingly" from a provision creating an offence may serve only to alter the burden of proof. See also Reynolds v. G.H. Austin & Sons Ltd. (1951) 2 KB 135; R. v. Ewart (1906) 25 NZLR 709. These cases are discussed in the very helpful judgment of the Court of Appeal of New Zealand in Reg. v. Strawbridge (1970) NZLR 909.
intention, or a knowledge of the wrongfulness of
the act, is an essential ingredient in every
offence; but that presumption is liable to be
displaced either by the words of the statute
creating the offence or by the subject-matter with
which it deals, and both must be considered. ... "
6. This Court has had the opportunity of considering the problem on a number
of occasions. In Maher v. Musson [1934] HCA 64; (1934)
52 CLR 100
the question was whether
knowledge of the wrongfulness of the act is an essential ingredient of the
offence of
having
custody of
illicit spirits contrary to s. 74(4) of the
Distillation Act 1901-1931 (Cth). The prohibition was expressed in
absolute
terms but
a majority of the Court held that the defendant is entitled to be
discharged if he proves that he neither believed
nor
had reason
to believe
that the spirits in question were illicit. Dixon J., at p. 104, said:
"But the terms in which clause 4 of sec. 74 isHis Honour proceeded to give reasons for his conclusion that the defence was not excluded in the case before him, one of those reasons being that the nefarious character of the article was not intrinsic to the article itself, but arose from its unlawful history.
expressed do not make knowledge of the illicit
character of the spirits an essential element of
the offence. To imply such a requirement would no
doubt be possible, but in the case of a revenue
statute of the tenor of that now in question, no
presumption appears to arise in favour of that
implication. Nevertheless, in the case alike of an
offence at common law and, unless expressly or
impliedly excluded by the enactment, of a statutory
offence, it is a good defence that the accused held
an honest and reasonable belief in the existence of
circumstances, which, if true, would make innocent
the act for which he is charged (per Cave J., R. v.
Tolson (1889) 23 Q.B.D. 168, at p. 181)."
7. In Thomas v. The King [1937] HCA 83; (1937) 59 CLR 279 a majority of the Court held that the common law defence of honest and reasonable mistake of fact was available to a person charged with the crime of bigamy. Latham C.J., at p. 287, discerned a "strong current of authority" from Tolson's Case establishing the proposition that the general rule in all the graver class of crimes is that the accused is not guilty if he had an honest and reasonable belief in the existence of facts which, if they had really existed, would have made innocent the act for which he is charged. The existence of such a belief is equated with the absence of mens rea: see per Dixon J. at pp.304-305, citing Sir Richard Couch in Bank of New South Wales v. Piper (1897) AC 383, at pp 389, 390. It may be observed that there is no discussion in Thomas of any burden resting on the Crown to rebut a defence of mistake. It is taken for granted that it is for the accused person to satisfy the jury that he was honestly and reasonably mistaken. The then recent decision of the House of Lords in Woolmington v. The Director of Public Prosecutions [1935] UKHL 1; (1935) AC 462 was not referred to.
8. In Proudman v. Dayman [1941] HCA 28; (1941) 67 CLR 536 the three members who constituted
the Court found it unnecessary to decide
whether an
honest belief on
reasonable
grounds that the driver was licensed was a defence to a charge of
permitting an unlicensed
person to
drive a motor vehicle on a road.
However,
Dixon J. discussed the matter, saying, at pp. 540-541:
"There may be no longer any presumption that
mens rea, in the sense of a specific state of mind,
whether of motive, intention, knowledge or
advertence, is an ingredient in an offence created
by a modern statute; but to concede that the
weakening of the older understanding of the rule of
interpretation has left us with no prima facie
presumption that some mental element is implied in
the definition of any new statutory offence does
not mean that the rule that honest and reasonable
mistake is prima facie admissible as an exculpation
has lost its application also.
...
The burden of establishing honest andIt appears from this last passage that his Honour at least contemplated the possibility that while the responsibility for leading evidence to set up the defence of mistake rested with a defendant the legal burden of disproving that defence beyond a reasonable doubt lay with the prosecution. There was no such suggestion evident in his Honour's judgment in Maher v. Musson. Woolmington having been decided in the period intervening between the two cases, it may have been responsible for introducing a doubt in his Honour's mind. In Sweet v. Parsley [1969] UKHL 1; (1970) AC 132 Lord Pearce and Lord Diplock expressed contrary understandings of the effect of what Dixon J. was saying in the passage I have cited so far as the ultimate onus of proof is concerned (pp. 158, 164).
reasonable mistake is in the first place upon the
defendant and he must make it appear that he had
reasonable grounds for believing in the existence
of a state of facts, which, if true, would take his
act outside the operation of the enactment and that
on those grounds he did so believe. The burden
possibly may not finally rest upon him of
satisfying the tribunal in case of doubt."
9. In Hill v. Donohoe [1911] HCA 38; (1911) 13 CLR 224 it was held that knowledge on the part of the defendant that the prohibited imports found in his possession had been imported in contravention of the Act was an element of an offence under s. 233B(1)(c), but this situation has since been altered by the insertion in 1967 of sub-s. (1A) in s. 233B.
10. In Poole v. Wah Min Chan [1947] HCA 37; (1947) 75 CLR 218 the respondent was charged under s. 233(1)(d) of the Act with unlawfully having prohibited imports, to wit, 634 diamonds, in his possession. It was held that knowledge that the diamonds were prohibited imports was not an element of the offence, although if a defendant is able to show that he had no reason to believe that the goods were prohibited imports such proof would provide a reasonable excuse (see per Latham C.J. at p. 227).
11. In Samuels v. Stokes [1973] HCA 62; (1973) 130 CLR 490, the question was whether the respondent was liable to be convicted of the offence of loitering under s. 18 of the Police Offences Act 1953-1972 (S.A.) notwithstanding that a defence may have been available under s. 6 of the Public Assemblies Act 1972 (S.A.). The Court held that it was not for the prosecution as part of its case to negative the application of the latter provision. However, two members of the Court, Menzies J. and Gibbs J., each expressed the view that had the defence been raised the burden of disproving it beyond a reasonable doubt would have fallen upon the prosecution: see per Menzies J. at p 501, citing Mancini v. Director of Public Prosecutions (1942) AC 1, at pp 7-8, 11-13; per Gibbs J. at pp 504-505.
12. The last of the decisions of this Court to which I wish to refer is the
case of Cameron v. Holt [1980] HCA 5; (1980) 142 CLR
342, where the
Court held that mens rea
is an ingredient of the offence created by s. 138(1)(d) of the Social Services
Act 1947 (Cth).
At pp. 346-347
Barwick C.J., with whom Aickin J. agreed,
said:
"Further, there is a presumption - in my opinion, a
strong presumption - that in creating a criminal
offence the legislature intends a guilty intent
appropriate to the nature of the offence to be an
ingredient of the offence. This presumption can
only be displaced if the langugage of the statute
read along with its subject matter requires the
conclusion that the legislature intended that such
guilty intent should not form part of the
prescription of the offence: Lim Chin Aik v.
The Queen (1963) A.C. 160, at p. 173, affirming
the expression of Wright J. in Sherras v. De Rutzen
(1895) 1 QB 918, at p 921; see also Sweet v.
Parsley (1970) AC, at p 162 per Lord Diplock.
...
... it is unnecessary to discuss those cases inCf., also, per Mason J. at p.348.
which shifting of the burden of proof has been
spoken of. It suffices to say that for my own part
I agree with Lord Diplock that, after Woolmington
v. Director of Public Prosecutions, [1935] UKHL 1; (1935) AC
462 it always remains for the Crown to establish
guilt however much during the course of a trial
what has been referred to at times as an
evidentiary burden of proof has shifted to the
accused, that is to say, in cases where the Crown's
evidence raises a sufficient prima facie case to
lead to the expectation, particularly where the
facts are in the possession of the accused, that
the accused would provide evidence to negate or
weaken the case which theretofore has been made by
the Crown. But, in the long run, the Crown must
establish guilt."
13. These views reflect growing support for the possibility voiced by Dixon
J. in Proudman v. Dayman that in appropriate cases the
ultimate burden of
persuasion remains on the prosecution. The development of the law for New
Zealand in this direction is most persuasively
demonstrated in the decision in
Strawbridge to which I have already referred. In that case the Court was
required to consider the
question of mens rea in relation to the offence
created by s. 5(1)(c) of the Narcotics Act 1965 (N.Z.) of cultivating
prohibited
plants, namely, cannabis plants. After a detailed examination of
cases decided in England and New Zealand from Sherras v. De Rutzen
in 1895 to
Sweet v. Parsley in 1970, the Court held that unless s. 5(1)(c) was to be read
as creating an absolute offence it was
open to an accused person to point to
evidence which tended to show an absence of knowledge that the plant which was
being cultivated
was a prohibited plant. On the question of determining
whether ignorance or mistake was relevant to guilt, the Court said, at p.
916:
"... this is not merely a question of theHaving concluded that the legislature did not intend to create an offence of absolute liability, the Court continued (at p. 916):
interpretation of the statute. The Court as well
should have regard to the whole circumstances of
the case, the nature of the charge and the severity
of the penalty imposed on a wrongdoer. In our
opinion it is unthinkable that Parliament ever
intended to expose citizens to a liability of up to
fourteen years' imprisonment where the accused
person did not know that the plant he or she was
cultivating was a prohibited plant."
"In order to present a prima facie case, it is
not necessary for the Crown to establish knowledge
on the part of the accused. In the absence of
evidence to the contrary knowledge on her part will
be presumed, but if there is some evidence that the
accused honestly believed on reasonable grounds
that her act was innocent, then she is entitled to
be acquitted unless the jury is satisfied beyond
reasonable doubt that this was not so."
14. In Kidd v. Reeves [1972] VicRp 64; (1972) VR 563, Menhennitt J. pursued a course of
reasoning similar to that followed in Strawbridge. In Mayer
v. Marchant
(1973)
5 SASR 567 each member of the Full Court of the Supreme Court of South
Australia (Bray C.J., Hogarth and Zelling
JJ.), in considering
the
requirements of proof of a summary offence under the Road Traffic Act 1961
(S.A.), examined at some length the course of decision in recent cases, an
examination which demonstrated what Zelling J. described
as showing "how much
the pendulum is swinging back to the reaffirmation of mens rea in summary
offences" (p. 587). In the result,
the Chief Justice and Zelling J. each
concluded that in cases where the defences of mistake or the act of a stranger
are available
the onus lies on the Crown to negative the defences once the
evidential burden has been discharged by the defendant. Hogarth J.,
while
acknowledging the trend of authority, thought it proper to follow Maher v.
Musson until the matter is reconsidered in this
Court (p. 579).
15. It is against this background of judicial opinion that I come to consider
the case histories that are immediately relevant to
the applicant's first
submission. As I have already explained, the trial judge directed the jury
that it was for the applicant to
satisfy the jury on the balance of
probabilities that he honestly and reasonably believed in the existence of a
state of facts which
if they had really existed would make his act innocent.
That direction was upheld by the Court of Criminal Appeal on the authority
of
Reg. v. Parsons, an earlier decision of the Court which was binding upon it.
Like the present case, Parsons was a case of alleged
importation of heroin
contrary to s. 233B(1)(b) of the Act. The Court was required to consider
whether that paragraph cast the onus
on the prosecution of either establishing
mens rea on the part of the defendant or excluding the operation of the
defence of ignorance
or mistake of fact. Notwithstanding some misgivings the
Court, by majority (Young C.J. and King J., Starke J. dissenting), answered
both parts of the question in the negative. Its reason for doing so was that
the very same question had already been answered in
that way by the Court of
Criminal Appeal in Queensland in the case of Reg. v. Gardiner (1979) 27 ALR
140. Their Honours who formed
the majority understandably considered that it
would be highly undesirable for one State Full Court to place a different
interpretation
upon a Commonwealth statute from that placed upon it by the
Full Court of another State. They therefore followed Gardiner. Starke
J.,
while acknowledging the desirability of uniformity in the decisions of State
Supreme Courts exercising federal jurisdiction,
expressed his dissent in
strong terms. His Honour said, at p. 508:
"In the rare case - and I think this is one - where
the Court is convinced that the decision of another
Full Court is erroneous and where the principle
involved is fundamental to the administration of
criminal justice, and where to follow the other
decision is calculated to cause serious injustice,
this Court is entitled and indeed in such a case in
my opinion bound to decide the matter for itself.
... The principle that mens rea is an ingredient of
all serious criminal offences unless the
legislature otherwise provides is a fundamental
principle of the criminal law. Where the penalty
is imprisonment for life it is patent that serious
injustice may result from an erroneous decision in
respect of mens rea."
16. The decision of the Court in Gardiner was by majority (Stable S.P.J. and
Hoare J., Demack J. dissenting), the judgment of the
majority being delivered
by Hoare J. His Honour expresses his conclusion on s. 233B(1)(b) very shortly
at p. 151, as follows:
"... having regard to the subject matter of theHoare J. then referred to Sherras v. De Rutzen and to Irving v. Nishimura [1907] HCA 50; (1907) 5 CLR 233. He noted that pars. (a), (c) and (ca) of s. 233B(1) expressly refer to onus of proof while there is no such reference in pars. (b) and (d) but rejected any inference therefrom that the legislature intended any onus of proof other than of the expressed elements of the offence to lie upon the prosecution. In his Honour's view, the nature of the prohibited imports being narcotic goods, it was "perfectly appropriate that there be an absolute prohibition on all dealings with such goods" (p. 152). It therefore appears that the view of the majority was that the offence of importing narcotic goods contrary to s. 233B(1)(b) was one of absolute liability, excluding any element of mens rea whether as an element of the offence to be proved by the Crown or introduced and proved as a defence by an accused person. So understood, the trial judge's direction to the jury in the present case was too favourable to the applicant. Demack J.'s dissent was founded on his construction of the section, having regard particularly to the fact that in pars. (a), (c) and (ca) the legislature had expressly placed an onus of proof on the accused person. There being no exclusion, either expressly or by necessary implication, of mens rea in relation to an offence under par. (b), it followed in his Honour's view "that the prosecution must prove that the accused was not reasonably mistaken, as to the nature of the substance he was carrying" (p. 160).
legislation, namely narcotic goods, and the virtual
impossibility of proving the state of mind of an
importer of narcotic goods in the absence of
admissions which would be unlikely to be made by
traffickers, while there is much to be said to the
contrary, it seems to me that the legislature
intended to create the offence by proof of the
actual importing. ... "
17. Having, through the medium of a review of many of the relevant cases, exposed the competing considerations that fall to be considered, it is now possible to proceed to draw some conclusions. The central task is to construe s. 233B(1)(b) of the Act. That task is assisted by a consideration of the history of the section, a history which has seen the maximum punishment for an offence under the paragraph move steadily upwards from imprisonment for two years in 1910 to life imprisonment in 1979, and the passage of amendments from time to time which transfer from the prosecution to the defence the burden of proving certain issues relevant to offences under pars. (c) and (ca) (cf. sub-ss. (1A) and (1B)). Paragraph (b) does not expressly import mens rea as an element of the offence; the word "knowingly" does not appear. Nevertheless, does the presumption referred to by Wright J. in Sherras v. De Rutzen operate? Here the seriousness of the punishment to which an offender is liable is of great materiality. Is it conceivable that the legislature would have created an offence of absolute liability carrying life imprisonment, that is to say, an offence which would be established by proof merely of the importation by the accused of narcotic goods regardless of honest and reasonable mistake or duress or ignorance or the gratuitous act of a stranger or any other reasonable excuse? In considering that question, due regard must be paid to the obvious legislative concern, reflected in the penalty, for the protection of the community from the monstrous evils of the international traffic in heroin and other drugs which are intrinsically nefarious. One cannot lightly dismiss the view of the majority of Gardiner that an offence of absolute liability may be justified by the difficulties that any other conclusion would place in the way of law enforcement officers, particularly if guilty knowledge was required to be established in making out a prima facie case. In some of the cases a conclusion in favour of a presumption of mens rea as an element of an offence under par. (b) has found support in a comparison with the wording of other paragraphs in sub-s. (1). Paragraphs (a), (c) and (ca) expressly import "without reasonable excuse" in the description of the offence created by each of those paragraphs and in each case the onus of proof of any reasonable excuse is expressly placed upon an accused person. However, I find such phrases inconclusive. It may readily be said that the legislature, having expressly placed an onus on an accused person in these paragraphs, supplies a clear inference that in par. (b), where the words do not appear, the legislature intended the onus of proof to remain on the prosecution. But that inference flows only from the presence of the words in parentheses, these being the only words dealing with the question of proof. A competing inference may flow from the express inclusion of the words "without reasonable excuse". These are words which clearly import mens rea into the offences created by the paragraphs in which they appear. The omission of the words from par. (b) could be taken to mean that the legislature intended that in the case of importation no excuse whatever, whether reasonable or otherwise, was to be tolerated. In that case the offence would be one of absolute liability. On the other hand, the presence of subs. (1C) in the section recognizes the possible application of defences otherwise available to the person charged. The section does not form a code complete in itself.
18. In my opinion, the omission of the words "without reasonable excuse" from
par. (b) has the effect of removing mens rea as an
element of the offence
which is to be positively established by the prosecution in making out a prima
facie case. But this is not
to constitute the offence as one of absolute
liability. It is to give with one qualification the same effect to the
omission as Day
J., in Sherras v. De Rutzen, gave to the omission of the word
"knowingly" from the description of one offence in the Act there under
consideration whilst the word appeared in another offence in the same section.
His Lordship said, at p. 921:
"... the only effect of this is to shift the burdenThe qualification is that the word "prove" in this passage should not in this context be understood to mean any more than to "adduce evidence of". In other words, the effect of the omission of the words "without reasonable excuse" from par. (b) is to transfer the evidential burden, the burden of adducing evidence, from the prosecution to the defence. It then remains on the prosecution to rebut that evidence to the satisfaction of the jury beyond a reasonable doubt.
of proof. In cases under sub-s. 1 it is for the
prosecution to prove the knowledge, while in cases
under sub-s. 2 the defendant has to prove that he
did not know. That is the only inference I draw
from the insertion of the word 'knowingly' in the
one subsection and its omission in the other."
19. This construction seems to me to most satisfactorily meet the competing considerations to which I have referred. The prosecution is relieved of the necessity of looking into the mind of the alleged offender in an attempt to exclude as part of its case possible states of mind that might point to innocence. Proof of the importation of the drug by the accused person will be prima facie sufficient to establish the charge. But an accused person who lacks any guilty intent will have the opportunity of explaining the incriminating conduct and at the end of the day if the jury is left with a reasonable doubt then an acquittal will follow. It ought not to be assumed that the inference of guilty knowledge arising from the importation of a prohibited drug will be lightly erased. On the other hand, if the consequences of this construction prove inimical to the welfare of the Australian community then it will be for a legislature to make its intention clearer. I should add that in the light of the decision in Woolmington and of later authorities I do not think it is possible or desirable to hold that the decision of this Court in Maher v. Musson is determinative of this case. In any event, the seriousness of the offence in Maher v. Musson bears no comparison with an offence under s. 233B(1)(b). It is unnecessary to consider whether the force of that decision remains unimpaired in the case of some minor statutory offences of a strict liability kind which carry a modest penalty. First and foremost it is a question of construction of the particular statute in every case.
20. In my opinion, then, it should now be taken to be the law in Australia that in order to present a prima facie case of an offence under s. 233B(1)(b) of the Act it is not necessary for the Crown to establish guilty knowledge on the part of the accused. In the absence of evidence to the contrary such knowledge will be presumed, but if there is some evidence that an accused person honestly believed on reasonable grounds that his act was innocent then he is entitled to be acquitted unless the jury is satisfied beyond reasonable doubt that this was not so. I have taken the substance of this formulation from the decision of the New Zealand Court of Appeal in Strawbridge (at p. 916). The conclusion is also in line with the opinion of a number of judges within Australia who have had occasion to consider the general problem since Strawbridge: Bray C.J. and Zelling J. in Mayer v. Marchant; Menhennitt J. in Kidd v. Reeves; Demack J. in Gardiner; Starke J. in Parsons (with Young C.J. and King J. declining to endorse the correctness of the opposing view); and finally by members of this Court: Menzies J. and Gibbs J. in Samuels v. Stokes; Barwick C.J., Mason and Aickin JJ. in Cameron v. Holt. It may be desirable to add that I am unable as at present advised to draw a distinction between a defence of honest and reasonable mistake and one of honest and reasonable ignorance of the presence or nature of the goods in question. The conclusion also has the merit of bringing the common law in Australia on the question of honest and reasonable mistake into line with the law in the Code States of Queensland, Western Australia and Tasmania: cf. Brimblecombe v. Duncan, Ex parte Duncan (1958) Qd R 8; Geraldton Fishermen's Co-Operative Ltd. v. Munro (1963) WAR 129. This is an important consideration where the exercise of federal jurisdiction is concerned.
21. It is next submitted on behalf of the applicant that the trial judge's
direction to the jury on the charge of possession under
s. 233B(1)(c) was
erroneous in that his Honour told the jury that the Crown did not have to
prove that the applicant was knowingly
in possession of the heroin. The
submission joins issue with the correctness of the unanimous decision of the
Court of Criminal
Appeal in Victoria in Reg. v. Ditroia and Tucci. In that
case the Court held that in a prosecution under s. 233B(1)(ca) of the Act
if a
defendant is found in possession of narcotic goods the Crown is not required
to prove knowledge by the defendant of the nature
of the narcotic goods: it is
for the defendant to establish lack of knowledge of the nature of the goods so
that a jury might decide
whether such lack of knowledge, if so proved,
amounted to a reasonable excuse for possession. In coming to that conclusion,
the
Court followed the decision of the Court of Criminal Appeal in New South
Wales in Reg. v. Bush (1975) 5 ALR 387; (1975) 1 NSWLR
298. The Court
recognized the desirability of following the decision of an appellate court of
co-ordinate jurisdiction in the same
exercise of federal jurisdiction, but in
addition it expressed its support for the reasoning in the case (at p. 254):
"However, we think that Bush's Case ... was
correctly decided. In R. v. Rawcliffe, (1977) 1
NSWLR 219 a Court of Criminal Appeal
consisting of five judges refused to uphold a
submission that Bush's Case was wrongly decided.
Since then it has been followed in many cases. See
R v. Router (1977), 14 ALR 365; R v. Malas,
(1978), 21 ALR 225 and R. v. Kennedy (1979),
25 ALR 367."
22. In Bush, Nagle J. delivered the judgment of the Court. In a close
analysis of the problem, his Honour first disposed of the
submission that mens
rea was a separate ingredient in the offence created by par. (c). It was
observed that there was no such express
requirement on the Crown to prove that
the appellant should have had knowledge of, or reason to suspect, the nature
of the contents
of the parcel of which he obtained control. Any implication
of such a requirement was rejected, having regard to the importance
of
effective measures to control illicit traffic in narcotic drugs (cf. Reg. v.
Peel (1971) 1 NSWLR 247). However, the Court held
that the section did not
exclude the exculpatory principle by which the person charged may prove an
honest belief on reasonable grounds
in the existence of circumstances which,
if true, would make innocent that with which he is charged; their Honours
found this exculpation
encompassed by the terms of par. (c) which allow for
any reasonable excuse, proof of which is to lie on the accused. Reference was
made to a comment by Barwick C.J. in Reg. v. Bull [1974] HCA 23; (1974) 131 CLR 203, at p 220
to the effect that knowledge of the
nature of the
thing possessed is not
essential to the commission
of the offence under s. 233B(1)(a). Thus far the
decision merely
reinforces in
general terms the reasoning which has led me to
the
conclusion I have expressed in respect of the first submission
of the
applicant.
The distinctive point in his second submission
is that the concept
of possession as used in par. (c) itself imports
a mental element
requiring
knowledge of the nature of the goods
allegedly possessed which must be proved
by the Crown as part of
its case. In Bush
Nagle J. examines a similar
submission at great
depth. He relies on the decison of this Court in Williams
v. Douglas
[1949] HCA 40; (1949) 78 CLR
521, at pp 526, 527 in coming to the conclusion that
the kind of possession intended when used in relation
to dangerous
drugs or
narcotic goods is limited to de facto possession. His Honour then proceeds to
demonstrate persuasively that
the mental
element involved
extends no further
than the intention inherent in de facto possession of such goods, namely, the
intention
to have
exclusive physical
control of some article which is in fact
narcotic goods or of some article or some place wherein such
goods are
in fact
carried or
contained or located (pp. 414-415 of A.L.R.; p. 324 of N.S.W.L.R.).
It is not inherent in that mental
element
that an accused should
know that an
item in his de facto possession is narcotic goods. It is for the accused to
advance
his ignorance
of that fact as a
"reasonable excuse" for his
possession. The scope of that defence was illustrated, as the Court
thought,
by the
cases of Poole v.
Wah Min Chan and Reg. v. Tawill [1974] VicRp 11; (1974) VR 84. As I
have already noted, the former case is a decision
of this Court on s.
233(1)(d)
of the Act, the provisions of
which were similar to s. 233B(1)(c).
It was held that possession without
reasonable excuse of prohibited
imports,
in itself and independently
of any further mental element consisting in
knowledge that the
goods are prohibited imports,
is an offence, but that a
defendant
may be able to show that he had no reason to believe that the goods
were prohibited and thereby
provide a reasonable excuse: p.
227. Of course,
as the Court in Bush explained, this decision was out
of line with the
decision
in Hill v. Donohoe with respect to
s. 233B(1)(c). Harmony was
restored by the enactment in 1967 of sub-s.
(1A) which in effect
overruled
Hill v. Donohoe. Tawill
was a case involving par. (c), but the defence was
one of duress. The Court
held that duress
was to be comprehended within
"reasonable
excuse". Referring to the scope of the defence, the Court said (at
p.
418 of A.L.R.; at
p. 327 of N.S.W.L.R.):
"The words 'without reasonable excuse' are words
of wide import. We see no reason why defences,
answers, justifications or excuses recognized by
the established principles governing criminal
responsibility, such as absence of mens rea,
mistake, insanity, infancy or duress, do not fall
within the ordinary grammatical meaning of those
words."
23. In Rawcliffe, provision was made for a Court of five judges to review the
decision in Bush. The Court unanimously endorsed
the decision. However, in
Kennedy, a case involving somewhat different facts, Roden J. found himself
unable to agree with the decision.
His Honour's well-reasoned dissent
deserves serious consideration. It seems to me that the dissent centres on an
acceptance of
the proposition that to establish possession there must be shown
"a necessary mental element of intention, involving a sufficient
knowledge of
the presence of the drug by the accused" (per Aickin J. in Williams v. The
Queen [1978] HCA 49; (1978) 53 ALJR 101, at p 108; [1978] HCA 49; 22 ALR
195, at p 209;). It must be borne
in mind that Aickin J. was dealing with the concept of possession in a
different statute
and it
is readily acknowledged that in construing a word
like "possession" the context is of great importance. With all respect
to
Roden
J., I think the mental element to which he refers is deliberately and
expressly taken up by the legislature in the provision
for
reasonable excuse.
Admittedly, the point involves a question of fundamental principle and that
the transfer of an onus from the
prosecution
to an accused person can have
serious consequences for that person. As Roden J. says, at p. 389:
"If he (the accused) says that he picked it up byHowever, two things must be borne in mind. First, the social evil to which the section is directed is a very serious one. Secondly, the difficulties of enforcement would be enormous if the Crown were obliged to disprove beyond reasonable doubt any innocent explanation of the proved de facto possession that might possibly be relevant. I think it must follow that the express provision for the accused person to prove the existence of any reasonable excuse for his proved possession of narcotic goods points to the conclusion that the legislature intended to limit the obligation on the prosecution to proof of de facto possession of prohibited imports in the manner found by the Court in Bush and confirmed in Rawcliffe. For these reasons I am unable to endorse the stand taken by Roden J.
mistake, the jury would be directed to convict,
even if they entertained a real doubt on that
mistake issue; even indeed if 'the scales of
probability' were found by them to be evenly
balanced and they were unable to decide the issue
one way or the other."
24. The submission for the applicant with respect to the count of possession must be rejected.
25. This leaves the question as to what the Court should do. In my opinion, the questions are of such importance that special leave to appeal should be granted. My conclusion on the question of the onus of proof of an offence under s. 233B(1)(b) has the consequence that the trial judge was in error in directing the jury that it was for the accused man to establish by way of defence that he had an honest and reasonable belief in a state of facts which if they existed would make his act innocent. There was an evidential onus in that respect on the accused but it was for the prosecution to satisfy the jury beyond a reasonable doubt that he did not have that belief. Ordinarily, such a conclusion would require that the conviction be set aside and a new trial ordered. However, it would appear that when sentencing the applicant the trial judge referred to the fact that he was "knowingly acting as a courier". The heroin was concealed in the bottom of the bag which the accused was carrying and its weight was such that the presence of some substance secreted in the bottom of the bag must have been known to him. If these facts were established then this would seem to be an appropriate case for the application of the proviso that enables the Court to dismiss an appeal notwithstanding an irregularity in the conduct of the trial, in the event that it is satisfied that no substantial miscarriage of justice has occurred: Crimes Act, 1958 (Vic.) as amended s. 568(1). The materials are not before the Court to enable a firm conclusion to be made in this regard and in any event no argument has been directed to it. In the circumstances, I would remit the matter to the Court of Criminal Appeal to determine the point. If the Court is not satisfied that there has been no substantial miscarriage of justice, then it will order a new trial.
BRENNAN J.: The question for decision is whether, in a prosecution for
offences under s.233B(1)(b) and (c) of the Customs Act 1901 (Cth) ("the Act"),
it is necessary for the prosecution to prove the accused knew that the thing
which he had imported or which he
had in his possession was "prohibited
imports to which this section applies". The question arises in this way. The
applicant had
travelled by air from Kuala Lumpur to Melbourne and on his
disembarking at the Melbourne airport on 20 October 1982 he was found
to be in
possession of a bag which he had brought with him. His bag was inspected by
Customs officials. It contained 2.788 kgs of
heroin in a false bottom. Heroin
is a prohibited import to which s.233B applies. The applicant was charged
before the County Court
in Victoria with importing that heroin (par.(b)) and
with having that heroin in his possession (par.(c)). He pleaded not guilty.
The learned trial judge, Judge Tolhurst, directed the jury that, on the charge
of importing, the prosecution -
" does not have to prove any state of mind orHis Honour directed the jury that, on the charge of having in possession -
knowledge of the accused. ... No specific state
of mind, whether of motive, intention, knowledge
or advertence, need be proved by the Crown. If
the accused man establishes by way of defence
that he had an honest and reasonable belief in a
state of facts which if they existed would make
his act innocent, that would afford a defence to
this charge. You will note, however, that the
onus of establishing such a defence is upon him."
" ... Again no specific state of mind, whetherThe applicant was convicted on both counts. His appeal to the Full Court of the Supreme Court failed, as it was bound to do. The learned trial judge had directed the jury in accordance with what the Full Court had held the law to be in Reg. v. Parsons (1983) 2 VR 499 (with reference to importing) and in Reg. v. Ditroia and Tucci [1981] VicRp 28; (1981) VR 247 (with reference to possession). This application for special leave to appeal raises for consideration the correctness of those decisions and the antecedent cases on which they were based, especially Reg. v. Gardiner (1981) QdR 394; Reg. v. Bush (1975) 1 NSWLR 298; and Reg. v. Bonnor [1957] VicRp 33; (1957) VR 227. Some fundamental questions of criminal responsibility arise.
of motive, intention, knowledge or advertence,
need be proved by the Crown. Further, the Crown
does not have to prove that the accused knew that
the goods in his possession had been imported
into Australia in contravention of the Customs
Act. You will have noted that in respect of this
second charge, the words 'without reasonable
excuse' are used. The Crown does not have to
prove the accused man did not have reasonable
excuse. Proof that he had reasonable excuse
rests upon the accused."
2. It is generally true to say (as Barwick C.J. pointed out in Ryan v. The
Queen [1967] HCA 2; (1967) 121 CLR 205, at p 213) that
an act or omission
done or made by a
person is the essential foundation of his criminal responsibility.
Having
something in possession
is not easily
seen as an act or omission; it is more
easily seen as a state of affairs (cf. per Gibbs
J. in Beckwith v. The Queen
[1976] HCA 55; (1976) 135 CLR
569, at p 575), but it is a state of affairs that exists
because of what the person who has possession
does in relation
to the thing
possessed. "Possession is proved by various acts varying with the nature of
the subject matter": Isaacs
J. speaking
for the Court
in Moors v. Burke [1919] HCA 32; (1919)
26 CLR 265, at p 271. There are some few anomalous offences,
of which
Germaine Larsonneur (1933) 24 CrAppR
74 is an example,
which are not founded
on an offender's acts or omissions but they
may be put aside in considering
the general principles
of criminal
responsibility applicable to most offences.
Criminal responsibility
depends not only upon a person's act or omission
but
also upon
the circumstances in which the act is done or the omission made,
usually
upon his state of mind at that time and sometimes
upon the
results of
his act or omission. However, the definition of a criminal
offence ordinarily
comprehends only the prohibited
act or
omission (conduct), the circumstances
in which the act is done or the omission
is made and, in some instances, the
results
of the
act or omission. These elements - conduct, circumstances and
results - are what
Dixon C.J. in Vallance v. The Queen [1961] HCA 42; (1961)
108 CLR 56, at p
59, called "the external elements necessary to form the
crime". When a
statute creates and defines an offence
only
by reference to its external
elements, a mental element is usually implied
in the definition. A person who
engages in prohibited
conduct is not criminally responsible for it unless the
mental element is
present. The mental element is mens rea or guilty mind.
In
Reg. v. O'Connor [1980] HCA 17; (1980) 146 CLR 64, Stephen J. stated
the modern approach to
mens rea at pp 96-97:
" As Stephen J. pointed out in Reg. v. TolsonThe requirement of mens rea avoids what Lord Reid called "the public scandal of convicting on a serious charge persons who are in no way blameworthy" (Sweet v. Parsley [1969] UKHL 1; (1970) AC 132, at p 150). Nowadays, a presumption is made that mens rea is an element in a statutory offence though the offence is defined only by reference to its external elements. The presumption was stated by R.S. Wright J. in Sherras v. De Rutzen (1895) 1 QB 918, at p 921:
((1889) 23 QBD, at p 187), 'The full
definition of every crime contains expressly or
by implication a proposition as to a state of
mind. Therefore, if the mental element of any
conduct alleged to be a crime is proved to have
been absent in any given case, the crime so
defined is not committed ...'. (The reference to
proof of absence must now, of course, be read in
the light of Woolmington v. Director of Public
Prosecutions [1935] UKHL 1; ((1935) AC 462)). The mental
element that must be present is a state of mind
such as Lord Simon described, in Majewski ((1977)
A.C.443), as 'stigmatised as wrongful by the
criminal law': it is that state of mind which,
when compounded with prohibited conduct,
constitutes the particular offence ((1977) A.C.,
at p 478). As Dickson J. said in Leary v. The
Queen ((1977) 74 DLR(3d), at p 122), 'Society
and the law have moved away from the primitive
response of punishment for the actus reus alone'.
Thus in Bratty v. Attorney-General (Northern
Ireland) ((1963) AC 386, at p 407) the Lord
Chancellor, in describing 'the overriding
principle, laid down by this House in
Woolmington's Case' said, 'that it is for the
prosecution to prove every element of the offence
charged. One of these elements is the accused's
state of mind'".
" There is a presumption that mens rea, an evilThat statement has not been doubted. I would respectfully agree with Lord Goddard C.J. who said in Brend v. Wood (1946) 62 TLR 462, at p 463:
intention, or a knowledge of the wrongfulness of
the act, is an essential ingredient in every
offence; but that presumption is liable to be
displaced either by the words of the statute
creating the offence or by the subject-matter
with which it deals, and both must be considered
..."
" It is of the utmost importance for the protectionThat passage has been referred to with approval by the majority of the Supreme Court of Canada in Beaver v. The Queen (1957) SCR 531, at pp 537-538; by Lord Reid and by Lord Morris of Borth-y-Gest in Reg. v. Warner (1969) 2 AC 256, at pp 275, 294; by Lord Morris in Sweet v. Parsley, at p 152 and by the Judicial Committee in an Indian appeal mentioned in Lim Chin Aik v. The Queen (1963) AC 160, at p 173. It is now firmly established that mens rea is an essential element in every statutory offence unless, having regard to the language of the statute and to its subject matter, it is excluded expressly or by necessary implication: Lim Chin Aik, at p 173; Sweet v. Parsley, at pp 149,152,156; Cameron v. Holt [1980] HCA 5; (1980) 142 CLR 342, at pp 346,348. Earlier doubts as to the existence of the presumption or as to its strength (see, for example, Proudman v. Dayman [1941] HCA 28; (1941) 67 CLR 536, at p 540) have now been removed.
of the liberty of the subject that a Court should
always bear in mind that, unless a statute,
either clearly or by necessary implication, rules
out mens rea as a constituent part of a crime,
the Court should not find a man guilty of an
offence against the criminal law unless he has a
guilty mind."
3. Recently, in Gammon Ltd. v. A.-G. of Hong Kong (1985) 1 AC 1 Lord Scarman,
delivering the judgment of the Judicial Committee,
stated five propositions
(at p 14):
" (1) there is a presumption of law that mens reaThe first three propositions correctly emphasize the strength which contemporary authority gives to the presumption that mens rea is an essential element of an offence. The fourth proposition, if I may say so with respect, seems to be too categorical an approach to what is, after all, a question of statutory interpretation. It is not possible to decide that mens rea can be excluded only where the subject matter answers a given description (even so general a description as "an issue of social concern"), without regard to the whole of the statutory context. The fifth proposition reflects the purpose of the criminal law: to deter a person from engaging in prohibited conduct. The penalties of criminal law cannot provide a deterrent against prohibited conduct to a person who is unable to choose whether to engage in that conduct or not, or who does not know the nature of the conduct which he may choose to engage in or who cannot foresee the results which may follow from that conduct (where those results are at least part of the mischief at which the statute is aimed). It requires clear language before it can be said that a statute provides for a person to do or to abstain from doing something at his peril and to make him criminally liable if his conduct turns out to be prohibited because of circumstances that that person did not know or because of results that he could not foresee. However grave the mischief at which a statute is aimed may be, the presumption is that the statute does not impose criminal liability without mens rea unless the purpose of the statute is not merely to deter a person from engaging in prohibited conduct but to compel him to take preventive measures to avoid the possibility that, without deliberate conduct on his part, the external elements of the offence might occur. A statute is not so construed unless effective precautions can be taken to avoid the possibility of the occurrence of the external elements of the offence. In Lim Chin Aik, Lord Evershed speaking for the Judicial Committee said (at p.174):
is required before a person can be held guilty of
a criminal offence; (2) the presumption is
particularly strong where the offence is 'truly
criminal' in character; (3) the presumption
applies to statutory offences, and can be
displaced only if this is clearly or by necessary
implication the effect of the statute; (4) the
only situation in which the presumption can be
displaced is where the statute is concerned with
an issue of social concern, and public safety is
such an issue; (5) even where a statute is
concerned with such an issue, the presumption of
mens rea stands unless it can also be shown that
the creation of strict liability will be
effective to promote the objects of the statute
by encouraging greater vigilance to prevent the
commission of the prohibited act."
" But it is not enough in their Lordships'The requirement of mens rea is at once a reflection of the purpose of the statute and a humane protection for persons who unwittingly engage in prohibited conduct.
opinion merely to label the statute as one
dealing with a grave social evil and from that to
infer that strict liability was intended. It is
pertinent also to inquire whether putting the
defendant under strict liability will assist in
the enforcement of the regulations. That means
that there must be something he can do, directly
or indirectly, by supervision or inspection, by
improvement of his business methods or by
exhorting those whom he may be expected to
influence or control, which will promote the
observance of the regulations. Unless this is
so, there is no reason in penalising him, and it
cannot be inferred that the legislature imposed
strict liability merely in order to find a
luckless victim."
4. It is one thing to say that mens rea is an element of an offence; it is another thing to say precisely what is the state of mind that is required. It is the "beginning of wisdom", as Lord Hailsham of St. Marylebone said in Reg. v. Morgan [1975] UKHL 3; (1976) AC 182, at p 213, to see "that 'mens rea' means a number of quite different things in relation to different crimes". Indeed, it may connote different states of mind in respect of the several external elements of the same crime. If A strikes B and causes him bodily harm, A's moral blameworthiness may depend on whether A moved accidentally, or whether he was unaware that B or anybody else was there, or whether he did not mean to cause bodily harm and could not and did not foresee that he would cause bodily harm. The particular mental states that apply to the several external elements of an offence must be distinguished, not only as a matter of legal analysis, but in order to maintain tolerable harmony between the criminal law and human experience.
5. Moral excuses find counterparts in the categories of mental states that are indifferently described as mens rea and that apply to the several external elements of an offence. Thus, voluntariness and intent are the mental states ordinarily applicable to an act involved in an offence, knowledge or the absence of an honest and reasonable but mistaken belief is the mental state ordinarily applicable to the circumstances in which a relevant act is done or omission is made and, where a mental state is applicable to results, it may be either foresight of the possibility of their occurrence (if recklessness is an element) or knowledge of the probability (or likelihood) of their occurrence or an intention to cause them (if a specific intent is an element). A mental state is inherently hard to define, and the definition of mens rea is beset by problems of terminology. Voluntariness, for example, connotes a number of different mental states: see per Windeyer J. in Ryan, at p.244; it includes a conscious control of bodily movement. Voluntariness in that sense applies to an "act" regarded as a contraction of the muscles (to use Mr Justice Holmes' term in The Common Law (1881), p.54), so that a person is not criminally responsible for an involuntary movement or reflex action. If an "act" is described so as to include the circumstances in which the muscles are contracted, a different state of mind is applicable, ordinarily called "intent". Intent, in one form, connotes a decision to bring about a situation so far as it is possible to do so - to bring about an act of a particular kind or a particular result. Such a decision implies a desire or wish to do such an act or to bring about such a result. Thus when A strikes B (the act) having decided to or desiring or wishing to strike him, it can be said that he intends to strike B. Intent, in another form, connotes knowledge. This appears more clearly if we divide an action, somewhat artificially, into a mere movement and the circumstances that are an integral part of the action and which give it its character. When A strikes B, his action can be divided into A's movement of his fist and B's presence in the path of A's movement. Although A's movement may be voluntary, he is not said to strike B intentionally unless he knows that B (or someone else) is in the path of his moving fist. If mens rea were imported into an offence defined as striking another - a definition that does not include a result - two states of mind would normally be involved: voluntariness of movement and an intention to strike another - and intention is, for all practical purposes, established by knowledge that another person is, or is likely to be, in the path of the movement. If the definition is extended to include a result - causing bodily harm - the statute may prescribe a further mental element: ordinarily a specific or special intent to cause bodily harm.
6. Judicial examination of the distinction between the various forms of mens
rea has not been extensive. Thus, Barwick C.J. who
had noted in O'Connor (at
p.76) that mens rea ordinarily requires a general or basic intent at least to
do the physical act involved
in the crime charged, observed in Ryan (at p.213)
that -
" ... there has not been any frequent need toNonetheless, voluntariness and general intent are distinct mental states. General intent and specific intent are also distinct mental states. General or basic intent relates to the doing of the act involved in an offence; special or specific intent relates to the results caused by the act done. In statutory offences, general or basic intent is an intent to do an act of the character prescribed by the statute creating the offence; special or specific intent is an intent to cause the results to which the intent is expressed to relate. Both general intent and specific intent may be established by knowledge: the former by knowledge of the circumstances which give the act its character, the latter by knowledge of the probability of the occurrence of the result to which the intent is expressed to relate. But existing circumstances can be known more certainly than the probability of the occurrence of a future result, and therefore specific intent is usually established by proof of a desire or wish to cause the prescribed result, whereas general intent is usually established by proof of knowledge of circumstances prescribed by the statute as defining the act involved in the commission of the offence. Of course, proof of an actual desire or wish to do an act of the prescribed character is proof of a general intent (cf. Reg. v. Reynhoudt [1962] HCA 23; (1962) 107 CLR 381, at pp 398-399; Morgan, at p 210), but for practical purposes knowledge of the circumstances which give the act its character when an act is voluntarily done is the ordinary form of an intent to do it. A specific intent to cause a prescribed result can be, but is not ordinarily, established by knowledge that such a result will probably (or is likely to) occur (Reg. v. Crabbe (1985) [1985] HCA 22; 59 ALJR 417; 58 ALR 417). Just as knowledge of the probable (or likely) results of an act establishes a specific intent to cause those results, so the doing of an act with knowledge that the circumstances are probably such as to make the act criminal establishes a general intent to do an act of that character. That is not to say that some state of mind less than knowledge is sufficient to establish intent. Actual knowledge is required (Giorgianni v. The Queen [1985] HCA 29; (1985) 59 ALJR 461, at pp 474- 475) but what is generally required to be known is at least the likelihood that the prescribed result of an act will occur (specific intent) or at least the likelihood that the existing circumstances are such as to give an act the character of the act involved in the commission of the offence in question (general intent).
express with technically expressed precision the
difference between that element of mens rea which
relates the will to act to the deed in question
and that element which relates to it the general
intent with which that will was exercised."
7. Voluntariness, general intent and specific intent are three categories of mens rea that may be (but are not always) mental elements applicable to the external elements of an offence. Voluntariness and general intent are generally implied in a statute creating an offence as mental elements applicable to the act involved in the offence; specific intent is not implied. When a specific intent is expressed to be an element, it is ordinarily expressed to apply only to results. The definition of circumstances attendant upon but not an integral part of the act involved in the offence may (but does not always) imply another mental element: knowledge or the absence of an honest and reasonable but mistaken belief as to the existence of those circumstances. The distinction between the act and the circumstances which attend its occurrence is frequently of no moment, because for all practical purposes the same mental element - knowledge - is the requisite mental element ordinarily applicable both to the act and the circumstances. But if there be a legislative intention to apply a mental element to the circumstances different from the mental element applicable to the act involved in the offence, it is necessary to decide what circumstances are defined to be an integral part of the act (to which intent and therefore knowledge will ordinarily apply) and what circumstances are defined to be merely attendant (to which no mental element may be intended to apply or to which a mental element less than knowledge may be intended to apply). One of the intractable difficulties in the process of identifying the particular category of mens rea that applies to the respective external elements of an offence is the identification of the prohibited act on the one hand and the circumstances attendant on the doing of that act on the other. It is a problem involved in this case.
8. Analysis of the external elements of an offence as a step in the ascertaining of the mens rea required is manifestly necessary when the effect of intoxication arises for consideration, as it often does. In this country, where the decision in O'Connor requires that intoxication be regarded in ascertaining whether mens rea exists, it is essential to bear in mind that different levels of intoxication affect the mind in different ways, and partial intoxication at a particular level may be relevant to the existence of one mental state but not to the existence of another. The level of intoxication that is relevant to whether a movement is voluntary is far greater than the level of intoxication that is relevant to whether a specific intention is formed. Therefore the ascertainment of the criminal responsibility of a partially intoxicated offender depends on a proper identification of the mental state to which the partial intoxication is relevant. That approach is radically different from the approach now adopted in the United Kingdom in Reg. v. Majewski [1976] UKHL 2; (1977) AC 443, and rejected by this Court in O'Connor. The Majewski rule that intoxication is irrelevant to crimes of basic intent is of less significance if basic intent is held to relate merely to the physical act involved in the commission of an offence, but that was not the approach adopted in Morgan. In Morgan, a rape case, the speeches treated the relevant external elements of the crime (sexual intercourse and non-consent) as integral parts of the whole act to which a single mental state (intent) applied. It followed that intent applied not only to the physical act of intercourse but to the element of non-consent.
9. In the present case we are concerned with the form of mens rea that
relates to conduct defined as importing and having in possession.
The
principle applicable at common law was stated by Jordan C.J. in R. v. Turnbull
(1943) 44 SR(NSW) 108, at p 109:
" ... it is also necessary at common law for theIn O'Connor, Stephen J. (at p.97) defined "criminal intention" by citing Jordan C.J.'s statement of the requirement of knowledge. Prima facie, the requirement of knowledge relates not only to the facts which give character to the physical act involved in the commission of the offence but also to the circumstances which attend its occurrence and make it criminal.
prosecution to prove that he knew that he was
doing the criminal act which is charged against
him, that is, that he knew that all the facts
constituting the ingredients necessary to make
the act criminal were involved in what he was
doing. If this be established, it is no defence
that he did not know that the act which he was
consciously doing was forbidden by law.
Ignorance of the law is no excuse. But it is a
good defence if he displaces the evidence relied
upon as establishing his knowledge of the
presence of some essential factual ingredient of
the crime charged." (Emphasis added).
10. Mens rea has sometimes been defined in terms which require a state of
mind less than knowledge of the facts which make the act
criminal. In Reg. v.
Tolson (1889) 23 QBD 168, Cave J. stated the principle in this way (at p
181):
" At common law an honest and reasonable beliefIn Bank of New South Wales v. Piper (1897) AC 383 the Judicial Committee said, at pp 389-390:
in the existence of circumstances, which, if
true, would make the act for which a prisoner is
indicted an innocent act has always been held to
be a good defence. This doctrine is embodied in
the somewhat uncouth maxim 'actus non facit reum,
nisi mens sit rea'."
" ... the absence of mens rea really consists in anThis was the view also of Sir Samuel Griffith who, when he submitted his draft Criminal Code, stated the common law to be the source of the provision drafted as s.26 and enacted as s.24 of The Criminal Code (Q.) which reads:
honest and reasonable belief entertained by the
accused of the existence of facts which, if true,
would make the act charged against him innocent."
" A person who does or omits to do an act under
an honest and reasonable, but mistaken, belief in
the existence of any state of things is not
criminally responsible for the act or omission to
any greater extent than if the real state of
things had been such as he believed to exist.
The operation of this rule may be excluded bySee also Hardgrave v. The King [1906] HCA 47; (1906) 4 CLR 232, at p 237, and Thorne v. Motor Trade Association (1937) AC 797, at p 809, where this defence was stated to be of general application.
the express or implied provisions of the law
relating to the subject."
11. The "defence" of an honest and reasonable belief in the existence of facts which, if true, would make the act charged innocent raises for present consideration two questions: first, can it apply to circumstances that, on a proper construction of the statute creating an offence, are an integral part of the act involved? and second, is it a "defence" which the prosecution bears the ultimate onus of disproving? The answer to the first question will appear more clearly when the second is resolved.
12. In earlier times, criminal responsibility was imposed upon or imputed to
an accused upon proof of the external elements alone:
see J.W.C. Turner
Russell on Crime 12th ed. (1964), vol.1, pp.33,34. An honest and reasonable
but mistaken belief in a state of
facts which would make the supposed
offender's act innocent was therefore treated as an excuse for or a true
exception to criminal
responsibility: see by way of example, Stephen's Digest
of the Criminal Law, 3rd ed. (1883), Ch.III, "General Exceptions". The origin
of that state of mind as an exception is reflected in the exculpatory form in
which it appears in the Criminal Codes which adopt
Sir Samuel Griffith's
draft, as Windeyer J. pointed out in Mamote-Kulang v. The Queen [1964] HCA 21; (1964) 111 CLR
62, at pp 76-77.
But since
Woolmington v. The Director of Public Prosecutions [1935] UKHL 1;
(1935) AC 462 it has come to be recognized that the
prosecution bears the
ultimate
onus of negativing "defences" under the Codes:
see Packett v. The
King [1937] HCA 53; (1937) 58 CLR
190, at p 212; Brimblecombe v. Duncan; Ex parte
Duncan
(1958) QdR 8. In Bank of New South Wales v. Piper, the absence
of mens rea
was said to consist in the existence of the exculpating
belief. Conversely,
the absence of the exculpating belief should
be regarded
as a form of mens
rea. It is no more appropriate for
the common law than it is for the Codes to
regard the defence of
an honest
and reasonable but mistaken belief merely as
an excuse
for committing an offence that is fully constituted by its external
elements.
In principle, the absence of such a belief must also
be treated as
a form of mens rea at common law and an element of
the offence
which the Crown
must prove. The golden thread of which
Viscount Sankey L.C. spoke in
Woolmington has been woven through
the material
of all criminal offences.
That seems to have been the
tentative view of Dixon J. in Proudman v. Dayman
where he said,
at p 541:
" The burden of establishing honest and
reasonable mistake is in the first place upon the
defendant and he must make it appear that he had
reasonable grounds for believing in the existence
of a state of facts, which, if true, would take
his act outside the operation of the enactment
and that on those grounds he did so believe. The
burden possibly may not finally rest upon him of
satisfying the tribunal in case of doubt."
13. Lord Diplock in Sweet v. Parsley, following what he understood to be the
approach of Dixon J. in Proudman v. Dayman, stated
the position thus (at p
164):
" Unlike the position where a statute expresslyLord Pearce (at p.158) seemed to doubt whether the defence of an honest and reasonable but mistaken belief could be accepted consistently with Woolmington if the onus of proving the defence rested on the defendant. Menhennitt J. in Kidd v. Reeves [1972] VicRp 64; (1972) VR 563, at p 565, and the New Zealand Court of Appeal in Reg. v. Strawbridge (1970) NZLR 909, at p 915, have held that the onus of disproving that an accused had an honest and reasonable belief in facts which, if true, would make his act innocent rests on the prosecution in cases where that defence is open.
places the onus of proving lack of guilty
knowledge on the accused, the accused does not
have to prove the existence of mistaken belief on
the balance of probabilities; he has to raise a
reasonable doubt as to its non-existence."
14. In Mayer v. Marchant (1973) 5 SASR 567, at p 570, Bray C.J. referring to
Proudman v. Dayman and canvassing the relevant authorities
said:
" The implications of Woolmington's Case have onlyIn the absence of contrary statutory provision and apart from insanity an accused cannot be required to prove a mental state as an excuse.
gradually been recognised, not, on occasions,
without disquiet at their width; see, for
example, Sweet v. Parsley, per Lord Pearce at
p 158. Once they are, it must, in my view, be
accepted that the ultimate onus is always on the
Crown, except in the case of insanity or where
the onus is shifted by statute, and it does not
matter whether the offence is the creature of
common law or of statute."
15. The next question is: to what external elements does the defence of
honest and reasonable but mistaken belief apply and, in
particular, does it
apply to circumstances that are an integral part of the act involved in an
offence? As intent is the mental
state ordinarily required in respect of the
doing of an act involved in the commission of an offence, any mental state
less than
knowledge would not be presumed to apply to the circumstances which
give that act its character. A mental state less than knowledge
can apply
more readily to circumstances attendant on the occurrence of an act involved
in the commission of an offence being circumstances
which make the act
criminal. The absence of an exculpatory belief can apply to such
circumstances where the prima facie requirement
(knowledge) is excluded.
Clearly knowledge and an absence of exculpatory belief cannot both apply to
the same external element for
they are different mental states. An absence of
an honest and reasonable but mistaken belief is not the equivalent of
knowledge
of the facts which make the act criminal: in the first place, an
absence of a mistaken belief is something less than knowledge.
Thus
inadvertence to a fact does not amount to knowledge of that fact, but it is
consistent with the absence of a mistaken belief
about it. In the second
place, the reasonableness of an exculpatory belief is an objective matter. An
unreasonable mistake is inconsistent
with knowledge, yet it would satisfy the
test of mens rea according to Bank of New South Wales v. Piper. As knowledge
and mistaken
belief cannot co-exist in relation to the same fact, the
difference between the two states of mind may be critical to criminal
responsibility
in some cases: cf. Reg. v. Kimber (1983) 1 WLR 1118, at pp
1121,1122. It is therefore necessary to determine which state of mind
applies
to a particular external element of a statutorily defined offence once it
appears that some mental element is applicable.
The absence of an honest and
reasonable but mistaken belief can be the mental state applicable to existing
circumstances but only
if the prima facie requirement of knowledge is
excluded. In Maher v. Musson [1934] HCA 64; (1934) 52 CLR 100, Dixon J. held that,
in a
charge of
having custody of illicit spirits, knowledge of the character of the
illicit
spirits was not an element of the offence,
but he said
(at
pp.104-105):
" Nevertheless, in the case alike of an offence atAnd in Proudman v. Dayman where the charge was one of permitting a person, not being the holder of a driving licence, to drive on a road, his Honour said (at p 540):
common law and, unless expressly or impliedly
excluded by the enactment, of a statutory
offence, it is a good defence that the accused
held an honest and reasonable belief in the
existence of circumstances, which, if true, would
make innocent the act for which he is charged
(per Cave J., R. v. Tolson). What grounds may
exist for excluding this exception as a defence
are discussed more at large by Wills J. in that
case, and by Wright J. in Sherras v. De Rutzen,
and it is clear that inference from subject
matter may readily be made a ground of implied
exclusion."
" It is one thing to deny that a necessary
ingredient of the offence is positive knowledge
of the fact that the driver holds no subsisting
licence. It is another to say that an honest
belief founded on reasonable grounds that he is
licensed cannot exculpate a person who permits
him to drive. As a general rule an honest and
reasonable belief in a state of facts which, if
they existed, would make the defendant's act
innocent affords an excuse for doing what would
otherwise be an offence."
16. If there are alternative states of mind - knowledge or absence of
exculpatory belief - that may apply to circumstances which
are external
elements of a statutory offence, how is the applicable state of mind to be
ascertained? Principally, by reference to
the language of the statute and its
subject matter. From those sources, the mischief at which the statute is aimed
is derived, and
the purpose of the statute is perceived. The purpose of the
statute is the surest guide of the legislature's intention as to the
mental
state to be implied. The ascertainment of the legislature's intention in the
case of a statutory offence is not likely to
be any easier than the
ascertainment of the relevant mental element in some common law crimes. The
question as to the required state
of mind as to non-consent in the crime of
rape - "whether the definition of mens rea in rape should be formulated in
terms of intention
or in terms of belief" (per Bray C.J. in Reg. v. Wozniak
(1977) 16 SASR 67, at p 70) - has not received an uniform answer in this
country (see, amongst a large number of cases, Reg. v. Sperotto (1970) 71
SR(NSW) 334 and Wozniak). Substantial arguments support
either view and the
controversy illustrates the difficulty in ascertaining the true form of mens
rea in a particular offence when
the legislature has not expressed its
intention. At the moment, consistently with the notion that intent applies to
all the circumstances
which make an act criminal, the controversy seems to
have swung in favour of the Morgan view in the States which have not adopted
a
Code (Wozniak; Reg. v. McEwan (1979) 2 NSWLR 926; Reg. v. Saragozza [1984] VicRp 15; (1984) VR
187) despite some reservations that have been expressed
in England (see
Cowley, "The Retreat from Morgan" Criminal Law
Review (1982), p.198) and
despite the view adopted under the Code:
Re Attorney General's Reference No.1
of 1977 (1979) WAR 45. This
is not the occasion for settling that
controversy, for we are concerned
with a different offence, statutorily
defined, that contains
different external elements and that is aimed at a
different mischief.
Assuming that there are external elements of the offences
created by s.233B(1)(b) and (c) which are circumstances attendant on the
physical acts of importing and having in possession, it
would be necessary to
decide whether the purpose of the statute is more consonant
with the
imposition of criminal liability only
if the relevant circumstances are known
or with the imposition of criminal liability
for doing the physical act unless
the person
who does it reasonably but mistakenly believes that he is acting in
circumstances which,
if true, would make his act innocent. Reynhoudt
is an
illustration of a similar difficulty encountered in ascertaining what mental
element applies to the external elements of a
statutory offence. In that
case, the offence was assaulting a member of the police
force in the due
execution of his duty. Dixon
C.J. concluded that "the intent of the supposed
offender must go to all the ingredients
of the offence" (at p.386), a
conclusion
with which Kitto J. agreed. The majority (Taylor, Menzies and
Owen JJ.), largely under
the guidance of long-standing authority
on similar
provisions, restricted the requirement of intent to the physical act of
assault.
Menzies J. noted that intent and the
absence of an honest and
reasonable but mistaken belief are different conceptions (at pp.399-400).
His
Honour approached the ascertainment
of the required mental state as to whether
the person assaulted is a policeman in the due
execution of his duty in this
way (at p.402):
" In his History of the Criminal Law of England,
(1883) vol.2, pp.116 et seq. Sir James Fitzjames
Stephen points out that the effect of ignorance
as to a particular matter of fact connected with
an alleged offence is a matter that varies with
the definition of the particular offences and
that where the legislation defining the offence
is silent there is little apart from the general
scope of the legislation and from the nature of
the evils to be avoided to determine whether
'knowingly' is or is not to be implied in the
definition of a crime. Here, I think, for the
reasons I have already given, that the indication
of the language used is that 'knowingly' is not
to be implied and this is borne out by the aim of
the legislation, which it may be inferred was to
give policemen, whether in uniform or plain
clothes, protection and freedom from interference
in the discharge of their dangerous duties by
imposing an additional penalty upon persons
assaulting them who cannot excuse their conduct
by proving honest mistake upon reasonable
grounds."
17. Putting aside the onus of "proving honest mistake on reasonable grounds"
- Menzies J. thought that the onus "at least initially"
was on the defence (at
p.399) - his Honour was surely right to direct attention to the general scope
of the legislation and the evils
to be avoided in ascertaining which
presumption applies. But those indicia may be equivocal. Dixon C.J., holding
that the mental
state required in Reynhoudt was "the intention to do the whole
act which is prohibited" justified his view by "the nature of the
prima facie
principle of the common law, the natural application of the principle to the
provision and the absence of anything to
rebut it" (at p.387). Where the text
of the provision defining the offence, the general scope of the legislation
and the nature
of the evils to be avoided do not show which state of mind
applies, the prima facie principle applies as it was expressed in Turnbull.
But where the indicia are not equivocal, the statutory purpose must guide the
ascertainment of the mental state. Of course, that
is only a method of
approach to the problem, not a solution. But an illustration of what might be
regarded as the approach can be
seen in the consideration that has been given
to the crime of rape. If the question whether Morgan should be followed were
to arise
for decision in this Court, I should think it relevant to consider
whether the act involved in the crime includes non-consent as
an integral part
of the act involved or as an attendant circumstance and, if the latter,
whether a woman's freedom to give or withhold
consent to extra-marital
intercourse is properly protected by holding a man liable to conviction for
rape only if he has extra-marital
intercourse knowing that the woman is not
consenting or whether he should be liable to conviction for rape unless he has
at least
reasonable grounds for believing and believes that she consents. The
policy of the law, to which Lord Simon of Glaisdale referred
in Morgan (at
p.221) is a valid consideration when applied to statutory offences as it is
when applied to common law offences.
18. It seems to me to be wrong to describe offences where the absence of an exculpatory belief is the relevant form of mens rea as offences imposing responsibility for negligence (cf. Howard, "Strict Responsibility in the High Court of Australia" Law Quarterly Review, vol.76 (1960), 547, at p 566, cited in Sweet v. Parsley, at p 158). Criminal liability in cases to which that form of mens rea applies is imposed for the intentional doing of the physical act involved in the offence in circumstances where the supposed offender has no reasonable grounds for believing that his conduct is innocent. That is a liability imposed for doing the act, not for failing to take care in enquiring into the circumstances. That kind of criminal liability arises usually when the physical act is of such a kind that it ought not be done unless there are reasonable grounds for believing that the doing of the act is innocent. That is not to resurrect the discarded division of crimes into the classes mala in se and mala prohibita; rather it is to ascertain whether the statute intends to prohibit the doing of the act involved unless the risk that it is attended by the circumstances which make it criminal can reasonably be thought to be excluded, or whether the statute intends not to prohibit the doing of the act unless it is known to be attended by those circumstances.
19. In the light of these principles, I turn to consider some of the cases
from which the direction given to the jury in the present
case was ultimately
derived, and which established the principles which led the Full Court to
dismiss the appeal. In Bonnor the
majority of a specially constituted Full
Court of five judges held, on a charge of bigamy, the onus of proving that the
accused honestly
and reasonably believed that his former marriage was
dissolved rested on him. There were dicta in Maher v. Musson; Dowling v.
Bowie
[1952] HCA 63; (1952) 86 CLR 136 and Bergin v. Stack [1953] HCA 53; (1953) 88 CLR 248 which supported
this conclusion as well as
judgments in cases prior to Woolmington.
The
majority of their Honours
reconciled their conclusion with Woolmington by
treating
the existence of an exculpatory belief as
a special excuse for the
commission
of the offence. Thus O'Bryan J., with whose judgment
Herring C.J.
agreed, said (at pp 247-248)
with reference to Woolmington and
Mancini v.
Director of Public Prosecutions (1942) AC
1:
" Those cases in relation to the general questionSee also per Gavan Duffy J. at p.234. Barry and Sholl JJ. did not accept that, in bigamy, there was an ultimate onus on the accused to prove a defence of exculpatory belief (pp.257,264). The placing of the onus on the accused was possible only upon the hypothesis that neither knowledge of the existence of a previous marriage nor the absence of an exculpatory belief was an element of the offence. The presumption of mens rea in statutory offences is, as we have seen, inconsistent with that hypothesis. But if, on a true construction of the statute, the presumption of mens rea is excluded so that the offence is proved by proof of the external elements alone, on what principle of statutory interpretation can it be implied that the offender is entitled to acquittal if he proves an exculpatory belief with respect to one of the external elements? So far as Bonnor supports the notion that an exculpatory belief is implied as an excuse in a statute creating an offence, it ought not be followed. For reasons earlier stated, the absence of an exculpatory belief is now seen as a form of mens rea implied in certain circumstances as an element in a statutory offence the onus of proving which rests on the prosecution.
of onus of proof in crime do no more than
establish that with exception of the sanity of
the accused the Crown has the obligation of
establishing beyond reasonable doubt every
element that goes to constitute the offence
charged. I do not read those cases as saying
that, if there is a special excuse (such as
mistake) which if in a particular case it exists
will exculpate the accused from the penal
consequences of an act which would otherwise be a
crime, the Crown must negative such excuse in
order to establish guilt."
20. To require proof of knowledge in cases of drug trafficking has been thought by some to increase unduly the difficulty of securing convictions. This concern was expressed in Gardiner, Hoare J. referring (at p.405) to "the virtual impossibility of proving the state of mind of an importer of narcotic goods in the absence of admissions which would be unlikely to be made by traffickers". Lord Guest described a requirement of knowledge as "a drug pedlar's charter" in Warner (at p.301) in a passage cited by the Court of Criminal Appeal in New South Wales in Bush (at p.319).
21. A pragmatic concern about unmeritorious acquittals does not warrant the
imposition of strict liability. Such an approach is
inconsistent with that
expressed by Dixon J. in Thomas v. The King [1937] HCA 83; (1937) 59 CLR 279, at p 309:
" The truth appears to be that a reluctance on theThis passage was given some weight by Lord Reid in his dissenting speech in Warner (at p.274) and, in my view, rightly.
part of courts has repeatedly appeared to allow a
prisoner to avail himself of a defence depending
simply on his own state of knowledge and belief.
The reluctance is due in great measure, if not
entirely, to a mistrust of the tribunal of fact -
the jury. Through a feeling that, if the law
allows such a defence to be submitted to the
jury, prisoners may too readily escape by
deposing to conditions of mind and describing
sources of information, matters upon which their
evidence cannot be adequately tested and
contradicted, judges have been misled into a
failure steadily to adhere to principle. It is
not difficult to understand such tendencies, but
a lack of confidence in the ability of a tribunal
correctly to estimate evidence of states of mind
and the like can never be sufficient ground for
excluding from inquiry the most fundamental
element in a rational and humane criminal code."
22. In Gardiner, where the majority imposed strict liability on a charge of
importing under s.233B(1)(b), their Honours may have
thought the difficulties
of proof to be greater than they are. Knowledge of a thing that is in a bag
or packet imported by a person
into Australia and of the nature of that thing
may be inferred from the fact of importation. In Irving v. Nishimura
[1907] HCA 50; (1907) 5
CLR
233, in reference to some opium that was found in the bottom of some tubs
brought ashore by the defendant, Griffith
C.J. said (at
p 237):
" These goods were undoubtedly unlawfully imported.Of course, whether an inference of knowledge can properly be drawn in a particular case and whether an evidential burden has passed to an accused to raise a reasonable doubt as to his knowledge depends on the state of the evidence in the case. There is no rule of law that in all circumstances proof of importation of a container in which prohibited imports to which s.233B applies are found is sufficient to support an inference beyond reasonable doubt that the accused knew of the existence and nature of the prohibited imports that are found in it (cf. Reynhoudt, at p.401). The nature of the container, the place and circumstances of its consignment to an Australian port, the opportunities of surreptitious interference with it, may affect the strength of the inference or prevent it from being drawn. If the relevant mens rea were the absence of an honest and reasonable belief, the accused would have to adduce evidence or be able to point to something in the evidence tending to show his belief and reasonable grounds for his belief that there were no prohibited imports to which s.233B applied in the container, in order to raise a reasonable doubt as to the non-existence of that belief (see per Lord Diplock in Sweet v. Parsley, at p 164).
... in a case where goods are imported from
abroad it is a difficult thing for the importer
to say that he does not know what is contained in
the packages that are imported, and which he
claims as his own. It is open for him to show
that, without his knowledge or consent, some
goods that he never desired to have imported have
been put in the package, but I think that when
goods are imported the fact of importation is
sufficient prima facie evidence that the importer
knows what is contained in the packages."
23. The general principles which I would apply to the interpretation of
s.233B(1)(b) and (c) may now be summarized:
1. There is a presumption that in every statutory
offence, it is implied as an element of the
offence that the person who commits the actus
reus does the physical act defined in the offence
voluntarily and with the intention of doing an
act of the defined kind.
2. There is a further presumption in relation to the
external elements of a statutory offence that are
circumstances attendant on the doing of the
physical act involved. It is implied as an
element of the offence that, at the time when the
person who commits the actus reus does the
physical act involved, he either -
(a) knows the circumstances which make the doing
of that act an offence; or
(b) does not believe honestly and on reasonable
grounds that the circumstances which are
attendant on the doing of that act are such
as to make the doing of that act innocent.
3. The state of mind to be implied under (2) is the
state of mind which is more consonant with the
fulfilment of the purpose of the statute. Prima
facie, knowledge is that state of mind.
4. The prosecution bears the onus of proving theApplication of the general principles to s.233B(1)(b) and (c).
elements referred to in (1) and (2) beyond
reasonable doubt except in the case of insanity
and except where statute otherwise provides.
24. The offence of importing under par.(b) of s.233B(1) consists in the importing of "any prohibited imports to which this section applies". The offence of having in possession under par.(c) consists in having in possession, without reasonable excuse, "any prohibited imports to which this section applies which have been imported into Australia in contravention of this Act". These provisions were inserted into the Act by s.11 of the Customs Act 1910 (Cth) as part of a new s.233B, which was made to apply "to all prohibited imports to which the Governor-General by proclamation declares that it shall apply" (s.233B(2)). The present provision inserted by the Customs Act (No.2) 1971 (Cth) defines the prohibited imports to which the section applies as "prohibited imports that are narcotic goods" (s.233B(2)), that is, narcotic goods the importation of which have been prohibited under s.50 (s.51(1)). (I shall call them simply narcotic goods). The penalties now provided for offences against s.233B(1) are of great severity - in some cases, life imprisonment (see s.235(2)). These offences are truly criminal in character.
25. The presumption that some form of mens rea is an element in these
offences is strengthened by the severity of the penalty and
the enormity of
convicting a person of one of these offences if he were innocently ignorant of
the contents of a container he had
imported or of the nature of a substance
that he had imported if the contents or the substance turned out to be
narcotic goods. There
is, no doubt, a judicial discretion to impose a minimum
sentence. In Beaver that circumstance was thought to lessen the weight to
be
given to the maximum penalty in deciding whether strict liability was imposed
(see p.542). But the manifest seriousness with which
the legislature has
viewed any conviction for one or other of these offences and the public
obloquy which is suffered by any person
who is convicted of either offence
would make it unjust to convict a person who is not blameworthy. I
respectfully agree with the
observation of Lord Wilberforce in Warner, at
p.309:
" I can say at once that I am stronglyI respectfully agree also with the view expressed by Starke J. in his dissenting judgment in Parsons where he said (at p.507):
disinclined, unless compelled to do so, to place
a meaning upon this Act which would involve the
conviction of a person consequent upon mere
physical control, without consideration, or the
opportunity for consideration, of any mental
element. The offence created by the Act is a
serious one and even though nominal sentences, or
conditional discharges, may meet some cases,
there may be others of entirely innocent control
where anything less than acquittal would be
unjust. This legislation against a social evil
is intended to be strict, even severe, but there
is no reason why it should not at the same time
be substantially just."
" The proposition that a man may be incarceratedSection 233B(1) is clearly a provision in which some form of mens rea is implied. It is necessary therefore to identify the acts respectively involved in the offences defined in pars.(b) and (c) and to ascertain the form of mens rea applicable to them and to the accompanying circumstances (if any) which are prescribed by those paragraphs.
for life for an act which is not accompanied by
mens rea is to me so startling that it requires
the closest scrutiny of the language of the
legislation that is said to produce that result".
26. Importing simpliciter is not an act nor is it defined to be a prohibited
act in par.(b). Importing narcotic goods is an act;
it is the act referred to
in par.(b). The character of the act involved in the offence depends on the
nature of the object imported.
The paragraph thus impliedly requires an
intent to do the prohibited act - importing narcotic goods - and thus requires
knowledge
of the nature of the object imported. It is impossible to divide
the act involved in an offence under par.(b) into an act and circumstances
attendant on its occurrence. The external elements of an offence under
par.(b), unlike the offence considered in Reynhoudt, cannot
be divided. An
intention "to do the whole act that is prohibited" - the view of Dixon C.J. in
Reynhoudt - is, in my opinion, the
only view which the language of par.(b)
permits. The "prima facie principle of the common law, the natural
application of the principle
to the provision and the absence of anything to
rebut it" lead to the conclusion that the state of mind required with
reference to
the object imported is knowledge that it is narcotic goods. If
there were no mental element required with reference to the object
imported
but merely an intent to perform the physical movements involved in
importation, many innocent persons could not escape conviction.
The only
mental element required in respect of the physical movement of goods into
Australia that is involved in importing them is
the voluntary bringing in of
the goods with the intention of landing them here: Reg. v. Bull [1974] HCA 23; (1974) 131 CLR
203,
at pp 220,254.
Therefore an innocent passenger bringing home his
baggage, an innocent airline or shipping company
bringing in consignments
of
goods,
innocent people unloading freight from aircraft or boats from overseas
would be liable to conviction
if narcotic goods
had been placed
by others in
the baggage, the consignments of goods or the freight. Such an operation of
the provision
could not
have been intended.
As their Lordships said in Lim
Chin Aik (at p.175):
" Where it can be shown that the imposition of
strict liability would result in the prosecution
and conviction of a class of persons whose
conduct could not in any way affect the
observance of the law, their Lordships consider
that, even where the statute is dealing with a
grave social evil, strict liability is not likely
to be intended."
27. If, contrary to my opinion, the nature of the object imported were
regarded as a mere circumstance attending the importation,
I would regard
knowledge of the nature of the object rather than an absence of an honest and
reasonable but mistaken belief as to
its nature to be the relevant state of
mind. An innocent person importing a container which turns out to contain
narcotic goods
may have had no opportunity of taking precautions to ensure
that no narcotic goods were placed in the container. He may hope that
the
container is free of narcotic goods but the circumstances may prevent him from
honestly and reasonably believing that that is
so. The exigencies of
international trade and intercourse strengthen the inference that the
Parliament intended that a supposed
offender should not be criminally
responsible unless he intended to import narcotic goods. That requirement
casts on the prosecution
the onus of proving, when the narcotic goods are
imported in a container, that the supposed offender knew, at the time when he
imported
the container, that it contained or was likely to contain narcotic
goods, or that it contained or was likely to contain an object
that was or was
likely to be narcotic goods. No onus of proof with respect to his state of
mind rests on an accused person. It
follows that the direction given on this
count by Judge Tolhurst was wrong and that Parsons, on which the direction was
based, ought
not to be followed.
28. The offence created and defined in par.(c) can be distinguished from the offence of importing in three significant respects. First, "possession" is a term which implies a state of mind with respect to the thing possessed whereas importing does not. Secondly, the thing possessed must be not only narcotic goods but narcotic goods "which have been imported into Australia in contravention of this Act", an element which is arguably a mere circumstance attendant on possession of narcotic goods. Thirdly, a person who would otherwise be criminally liable for an offence under par.(c) is entitled, on proof by him that he had a reasonable excuse, to be acquitted. These three features warrant separate consideration.
29. The actus reus of possession is not here in question, but I do not doubt
that Nagle J. was right in Bush where he said (at p.316)
that what is required
is that the narcotic goods "should be physically in the custody or under the
control of the accused". In D.P.P.
v. Brooks (1974) AC 862, an appeal based on
a Jamaican statute that made it an offence for a person to have "in his
possession any
ganja", the Judicial Committee held that when a person has
physical custody or control of ganga the actus reus is established and
that
the mens rea by which that actus reus must be accompanied is knowledge that a
thing is in the offender's physical custody or
control and that the thing is
ganja (see pp.866,867). In Warner, on the other hand, the statute made it an
offence for a person
to have "in his possession a substance ... specified in
the Schedule to this Act", and there it was held that the mens rea required
was knowledge by the person that he had a substance in his custody or under
his control but knowledge of the nature of the substance
which he knew to be
in his possession was not required. The question of what mental state is
required to constitute an offence of
having a prohibited substance in
possession is a finely balanced one (Brooks, at p.865) but par.(c) falls on
the Brooks side of the
line. Paragraph (c) does not define the offence as
possession of a substance - a formulation which arguably restricts the mental
element of knowledge to the existence of a thing possessed. It is not
possible to construe par.(c) as containing two elements -
the existence of an
object and its nature - and to require knowledge of only one of those
elements, as in Warner. The offence is
committed only if the supposed
offender knows that the object possessed is, or is likely to be, narcotic
goods. The dictum of Barwick
C.J. in Bull, at p.220, that knowledge of the
nature of the thing possessed is not essential under s.233B(1)(a) is, I
respectfully
venture to suggest, not supported by the text of par.(a) or the
corresponding terms of par.(c) however valid it may be in relation
to the text
considered in Warner. The better view is stated by Aickin J. in Williams v.
The Queen [1978] HCA 49; (1978) 140 CLR
591, at p 610:
" It is necessary to bear in mind that inIn Bush, Nagle J. (at p.324) was unable to derive from the word "possession" a mental element which extends any further
possession there is a necessary mental element of
intention, involving a sufficient knowledge of
the presence of the drug by the accused. No
doubt in many cases custody of an object may
supply sufficient evidence of possession,
including the necessary mental element, but that
is because the inference of knowledge may often
be properly drawn from surrounding
circumstances."
" than the intention inherent in de factoNagle J. expressed his understanding of possession having regard to the context of the provision which allows for acquittals on proof of a reasonable excuse. His Honour found in the phrase "without reasonable excuse" the source of relief for innocent possessors. I find the source of relief in the notion of possession itself.
possession of such goods, namely, the intention
to have exclusive physical control of some
article which is in fact narcotic goods or of
some article or some place wherein such goods are
in fact carried or contained or located. It is
not inherent in that mental element that an
accused should know, or suspect, or have reason
to suspect, that an item in his de facto
possession is narcotic goods."
30. To require knowledge of the existence and nature of narcotic goods that a person has in his possession gives to par.(c) an operation that is, in practical respects, in harmony with the operation of par.(b). Paragraph (b) would be largely unnecessary if proof of knowledge under par.(c) were not essential. Possession, not importation, would be the charge more easily pressed against an importer.
31. The construction of par.(c) is not devoid of authority which bears on the
second factor mentioned. Shortly after the 1910 Act
came into force, it was
argued in Hill v. Donohoe [1911] HCA 38; (1911) 13 CLR 224 that knowledge that the prohibited
import had
been imported into
Australia in contravention of the Act was not
an
element of the offence created by par.(c). The argument was
rejected by an
unanimous
Court. Griffith C.J. said (at p.227):
" The section, as I am at present advised, means
that any person who, without reasonable excuse,
has in his possession any prohibited import which
to his knowledge has been imported into Australia
in contravention of the Act shall be liable, &c."
(Emphasis added).
32. Paragraph (c) has not been altered since 1910, so that the knowledge to
which Griffith C.J. referred remains an element of the
offence. The onus of
proving that element was altered by the insertion of sub-s.(1A) by the Customs
Act 1967. Since 1967, a person
charged with an offence under par.(c) has
borne the onus of proving that he did not know that the goods in his
possession had been
imported in contravention of the Act, but sub-s.(1A) did
not alter the elements of the offence. If knowledge is required with respect
to the element discussed in Hill v. Donohoe - an element that is arguably an
attendant circumstance - a fortiori knowledge must be
required with respect to
the element defined by the words "prohibited imports to which this section
applies" and which is an integral
part of the possession to which par.(c)
refers. I do not understand the reference to the effect of sub-s.(1A) by
Gibbs J. in Milicevic
v. Campbell [1975] HCA 20; (1975) 132 CLR 307, at p 313, to be
inconsistent with this view. Hill v. Donohoe was distinguished in
Poole v.
Wah Min
Chan
[1947] HCA 37; (1947) 75 CLR 218, a case arising under s.233(1)(d) of the Act.
But, as Latham C.J. said (at
p 227):
" Section 233B(1)(c) is a very different provisionNothing was said to cast doubt on Hill v. Donohoe.
from s.233(1)(d) read in conjunction with
sub-ss.(2) and (3) of that section, and Hill v.
Donohoe construing s.233B(1)(c), cannot, in my
opinion be regarded as an authority upon the
construction of s.233(1)(d)."
33. The third factor mentioned is the provision for proof of a reasonable excuse. Such an excuse is needed to exempt, inter alia, police and customs officers who have such prohibited imports in their possession from time to time in the course of their duty and innocent people who find themselves in possession of narcotic goods either by accident or in consequence of the actions of others. In Warner there are some passages which suggest that an exempting provision for police officers acting in the course of their duty would have been unnecessary if mens rea were required as to the nature of the thing possessed. Lord Morris of Borth-y-Gest (at p.295) said that no one could say that such a police officer would have "a guilty mind", and Lord Pearce said (at p.305) that the exemption would be unnecessary and absurd unless the Act was intending to penalise those "with no guilty intentions". But, with respect, mens rea is not excluded because the actus reus is done with a good motive or without an evil motive. There are some observations in Reg. v. Prince (1875) LR 2 C.C.R 154 which suggest that mens rea connotes that the offender knows that he has no lawful justification or excuse for what he is doing (per Denman J. at pp.178-179) or that what he is doing is wrong - not necessarily illegal but wrong (per Bramwell B. at pp.174-176), but those notions of mens rea cannot now be assented to. Criminal punishment is not imposed to enforce the civil law, to deter the commission of torts or to suppress immorality; it is imposed to deter the commission of offences. Brett J. (as he then was) took the view that the required state of mind relates to what makes the offender's act a criminal offence although his Lordship defined mens rea in the form later adopted in Bank of New South Wales v. Piper (see pp 169-170). His approach accordingly fastened on belief in facts which would if true make the offender's acts no criminal offence at all. His linking of mens rea to the external elements of the offence was supported by the earlier cases of Reg. v. Green and Bates [1862] EngR 156; (1862) 3 F & F 274 (176 ER 123) and Reg. v. Hibbert (1869) LR 1 CCR 184, to which his Lordship referred, and accords with modern principle.
34. It follows that an exempting provision is needed to protect persons who, in the course of duty or otherwise acting with innocent motives, would have the mental state required to convict them of an offence under par.(c). Is the exempting provision intended to go further and to make the absence of any form of mens rea a "reasonable excuse" so that "possession" is no more than physical custody or control of an object which answers the statutory description? Such a construction would involve a reversal of the onus of proof of mens rea, and that goes against the approach which has marked the administration of the criminal law since Woolmington. More to the point, the requirement of knowledge of the character of the object possessed flows not from a presumption that mens rea is implied in par.(c), but from the inherent requirement in "possession" of knowledge of what is possessed. The exempting phrase does not exclude the ordinary connotation of the term "possession".
35. I would therefore hold that Bush was wrongly decided. On a count of possession under par.(c) the onus is on the prosecution to prove that an accused, at the time when he had physical custody or control of narcotic goods, knew of the existence and nature, or of the likely existence and likely nature, of the narcotic goods in question and that onus is discharged only by proof beyond a reasonable doubt. Again, dependent on the circumstances, proof that narcotic goods are in the physical custody or control of an accused may be sufficient to discharge the onus of proving the knowledge which is an element of the offence. It follows that the direction given on this count by Judge Tolhurst was wrong and that Ditroia and Tucci on which the direction was based ought not to be followed. The appeal to the Full Court ought to have been allowed.
36. The matter has been brought here to decide the questions of principle involved. It must now be remitted to the Full Court to determine the merits of the appeal in the light of those principles. I would grant special leave to appeal, allow the appeal, set aside the judgment of the Full Court of the Supreme Court of Victoria and remit the matter to that Court to hear and determine the appeal in accordance with the ruling of the majority in this Court.
DAWSON J.: Section 233B(1) of the Customs Act 1901 (Cth) creates a number of special offences with respect to narcotic goods. The two offences with which this case is concerned are those of importing narcotic goods (par.(b)) and possessing narcotic goods imported into Australia in contravention of the Act (par.(c)).
2. In relation to the offence of importing narcotic goods into Australia, the question which arises is whether the prosecution has to prove any mental state accompanying the importation. In other words, the question is whether mens rea is an ingredient of the offence to be proved by the prosecution. If it is not, the further question arises whether the offence is one of strict liability which, whilst not requiring the prosecution to prove mens rea in order to make out a case, allows the accused to raise honest and reasonable mistake by way of exculpation. To that extent a mental element is imported into an offence of strict liability short of requiring proof of mens rea by the prosecution. The mistake must involve a belief in a state of affairs which, if true, would make the act of the accused innocent. If the statute in neither of these ways requires any mental state to accompany the importation, then the offence is an absolute one and is complete once the prohibited act of importation is proved. Offences of strict or absolute liability are creatures of statute. The terms strict liability and absolute liability are not always used precisely and sometimes interchangeably, but used as I have used them, they are a convenient way of drawing the distinction to which I have referred.
3. The question whether an offence requires the prosecution to prove mens rea as an ingredient of the offence or whether the extent of the mental element involved is to be found in the defence of honest and reasonable mistake or whether it is an absolute offence, is essentially a question of the interpretation of the statute creating the offence. However, notwithstanding that the question may be stated as simply as that, various observations have been made in the cases about the way in which the task of interpretation should be approached.
4. It is said that the creation of a statutory offence takes place in the wider context of the common law which does require a criminal act to be accompanied by a guilty mind before the crime is complete. The nature of the mens rea required for particular crimes may differ, but it is sufficient to say that at common law criminal conduct must be accompanied by a state of mind or, more precisely, the state of mind which the crime requires. Since a statute is to be construed as far as possible so as to observe principles embedded in the common law, there is support for those who think that there is a strong presumption that in creating a criminal offence the legislature intends a guilty intent appropriate to the nature of the offence to be an ingredient of the offence. See, e.g. Cameron v. Holt (1980) 142 CLR 342, at p 346 per Barwick C.J. On the other hand, the view has been expressed that such a presumption no longer exists with modern statutory offences and that, at most, there is a weak presumption that the legislature intended to create strict liability rather than absolute liability by leaving available the defence of honest and reasonable mistake. See Proudman v. Dayman [1941] HCA 28; (1941) 67 CLR 536, at pp 540-541.
5. The English cases are of limited assistance in this area because the courts there have not taken up the defence of honest and reasonable mistake and see themselves as having to decide between an offence requiring mens rea to be proved as an ingredient and absolute liability which excludes guilty intent entirely. Although there are those in England who have been attracted by what has been called "the half-way house" of strict liability, the concept has not been adopted there. See Sweet v. Parsley [1969] UKHL 1; (1970) AC 132, esp. at pp 150, 158 and 164. This is, perhaps, surprising since the modern application of the concept begins with Reg. v. Tolson (1889) 23 QBD 168 and, in particular, the judgment of Cave J. at p 181. See also Sherras v. De Rutzen (1895) 1 QB 918. But it is unnecessary to pursue the divergent development of the law in England.
6. In this country it is well established by authority that whatever the presumption, if any, that mens rea, to be proved by the prosecution, is an ingredient of a statutory offence, there does exist a presumption that honest and reasonable mistake is to be treated as a ground of exculpation. It is commonly referred to as a defence, and to prove honest and reasonable mistake meant, in a common law setting and at a time when the ultimate burden of proof upon all issues did not rest so positively upon the prosecution, the same thing as establishing the absence of intent: Bank of New South Wales v. Piper (1897) AC 383, at pp 389-390. Since the decision in Woolmington v. Director of Public Prosecutions [1935] UKHL 1; (1935) AC 462, it is for the prosecution to prove beyond reasonable doubt the elements of a crime, including any mental element. That means that honest and reasonable mistake as a composite concept now has a part to play only in statutory offences where the legislature has excluded guilty intent as an ingredient of an offence to be proved by the prosecution, leaving the absence of mens rea to be raised by way of exculpation.
7. Thus at common law, because intent is an ingredient of a crime, it must be proved by the prosecution and a mistaken belief in facts which are inconsistent with the required intent does not have to be based upon reasonable grounds. Either the accused has a guilty mind or he does not, and if an honest belief, whether reasonable or not, points to the absence of the required intent, then the prosecution fails to prove its case. See Reg. v. Morgan [1975] UKHL 3; (1976) AC 182. But the position is different with statutory offences containing no mental element to be proved as an ingredient of the offence. There, if the offence is not one of absolute liability, honest and reasonable mistake survives by implication as a basis of exculpation. It is, therefore, understandable why it continues to be referred to as a defence: it must normally be raised by the accused upon evidence adduced by him. It is also understandable in the current context of statutory interpretation (whatever may have been the explanation in a wider, historical setting) why the mistake to be exculpatory must be not only honest but also based upon reasonable grounds. For it is one thing to attribute to the legislature an intention to retain, as part of an offence, a mental element which does not have to be proved by the prosecution but may be negated by proof of a mistaken belief held upon reasonable grounds. It is another thing to say that the legislature intended a mistaken belief, however unreasonable, to have the same effect. I readily admit that there is an element of rationalization in this explanation, but I think that it puts the emphasis in the right place. The defence of honest and reasonable mistake stems from the common law requirement of a guilty mind and it is not, as it is sometimes put, a defence based solely or even primarily upon the absence of negligence. Cf. Reg. v. Sault Ste. Marie (1978) 2 SCR 1299; Howard C., "Strict Responsibility in the High Court of Australia", Law Quarterly Review, vol. 76 (1960), 547.
8. There is, however, no justification since Woolmington v. Director of Public Prosecutions for regarding the defence of honest and reasonable mistake as placing any special onus upon an accused who relies upon it. No doubt the burden of providing the necessary foundation in evidence will in most cases fall upon the accused. But it is not inconceivable that during the case for the prosecution sufficient evidence may be elicited by way of cross-examination or otherwise to establish honest and reasonable mistake or to cast sufficient doubt upon the prosecution case to entitle the accused to an acquittal. The governing principle must be that which applies generally in the criminal law. There is no onus upon the accused to prove honest and reasonable mistake upon the balance of probabilities. The prosecution must prove his guilt and the accused is not bound to establish his innocence. It is sufficient for him to raise a doubt about his guilt and this may be done, if the offence is not one of absolute liability, by raising the question of honest and reasonable mistake. If the prosecution at the end of the case has failed to dispel the doubt then the accused must be acquitted.
9. In Maher v. Musson [1934] HCA 64; (1934) 52 CLR 100 where the offence alleged involved
the custody of illicit spirits, it was
held that the
magistrate might have
acquitted the accused if he was "affirmatively satisfied" that the accused
reasonably believed
that the spirits
were not illicit.
That case was,
however, decided before Woolmington v. Director of Public Prosecutions. The
question
of onus did
not arise in Thomas
v. The King [1937] HCA 83; (1937) 59 CLR 279, but in
Proudman v. Dayman, Dixon J. recognized the
clear direction which the law
had
by then taken in relation
to the onus of proof of criminal charges when he
said, at p 541:
"The burden of establishing honest andSee also Iannella v. French [1968] HCA 14; (1968) 119 CLR 84, at pp 110-111 per Windeyer J. It was, as I have said, in Sweet v. Parsley that attention was given to the development in Australia of the concept of honest and reasonable mistake as a mode of exculpation and express mention was made by Lord Pearce at p.158 and Lord Diplock at p.164 of the ultimate onus of proof in the light of Woolmington v. Director of Public Prosecutions. It will be apparent from what I have already said that the remarks which commend themselves to me are those of Lord Diplock, who accepted the approach tentatively adopted by Dixon J. in Proudman v. Dayman and expressed it in these words:
reasonable mistake is in the first place upon the
defendant and he must make it appear that he had
reasonable grounds for believing in the existence
of a state of facts, which, if true, would take his
act outside the operation of the enactment and that
on those grounds he did so believe. The burden
possibly may not finally rest upon him of
satisfying the tribunal in case of doubt."
"Unlike the position where a statute expressly
places the onus of proving lack of guilty knowledge
on the accused, the accused does not have to prove
the existence of mistaken belief on the balance of
probabilities; he has to raise a reasonable doubt
as to its non-existence."
10. Despite the decision in Reg. v. Bonnor [1957] VicRp 33; (1957) VR 227 that the accused has
the burden of establishing honest and reasonable mistake
on the balance of
probabilities, Menhennit
J. in Kidd v. Reeves [1972] VicRp 64; (1972) VR 563 (in which Reg. v.
Bonnor does not appear to have been
cited) held that the ultimate burden of
proof, even where the
defence relied upon honest and reasonable mistake, lay
upon the Crown.
In Mayer v. Marchant (1973) 5 SASR 567 a majority of the
Full
Court of the Supreme Court of South Australia expressed the same view
as did
the Court of Appeal in New Zealand in Reg. v.
Strawbridge (1970) NZLR 909. To
the extent that Maher v. Musson is inconsistent
with this view it should, I
think, no longer be
followed.
11. It is against this background that it is necessary to consider the nature of the offence created by par.(b) of s.233B(1) of the Customs Act. Whether or not there is a presumption that mens rea is an ingredient of a modern statutory offence, there are nevertheless accepted rules of construction which point in the same direction. One is that penal statutes are to be construed strictly. Another is that a statute is to be construed as far as possible in conformity with the common law. As Dixon J. put it in Thomas v. The King, at p 304, " ... when a statute introduced into our criminal code a new offence it should be understood prima facie to intend the offence to take its place in a coherent general system and to be governed by the established principles of criminal responsibility." Those principles require, as I have pointed out, a guilty mind as well as a guilty act.
12. Rules of construction must give way to actual expressions of legislative intent, but almost invariably in this context such indications as there are require guilty intent as an ingredient of an offence rather than the contrary. Where some such word as "knowingly" or "wilfully" is used in the description of an offence, there is no difficulty in concluding that guilty intent is required. However, the absence of words such as these, even if the words appear in the description of offences created elsewhere in the enactment, does not mean that an offence is intended to be absolute. See Sherras v. De Rutzen, at p 921.
13. Resort must then be had to the subject-matter or character of the legislation. Attempts have been made to categorize those offences which have been regarded as absolute, but the result is only helpful in a broad sense and the recognized categories cannot be regarded as exhaustive. It is generally accepted that statutes which create offences for the purpose of regulating social or industrial conditions or to protect the revenue, particularly if the penalty is monetary and not too large, may more easily be regarded as imposing absolute liability. This approach may be displaced if to regard an offence as one of absolute liability could not promote the object of the legislation by making people govern their behaviour accordingly. See Lim Chin Aik v. The Queen (1963) AC 160. Conduct prohibited by legislation which is of a regulatory nature is sometimes said not to be criminal in any real sense, the prohibition being imposed in the public interest rather than as a condemnation of individual behaviour. On the other hand, if a prohibition is directed at a grave social evil, the absolute nature of the offence may more readily be seen, particularly if proof of intent would be difficult and would represent a real impediment to the successful prosecution of offenders.
14. Paragraph (b) of s.233B(1) of the Customs Act, which creates the offence of importing narcotic goods, finds itself in company with a number of related offences in the same sub-section in which reasonable excuse is made a defence and the onus of proving that defence is expressly placed upon the accused. Indeed, par.(c), to which it will be necessary to turn shortly, makes it an offence for a person, without reasonable excuse (proof of which lies upon him), to have in his possession any narcotic goods which have been imported into Australia in contravention of the Act. But the absence in par.(b) of any defence of reasonable excuse is equivocal. Reasonable excuse as a defence goes further than honest and reasonable mistake. For example, a person may intentionally seize and possess narcotic goods for the purpose of destroying them and so have a reasonable excuse for possessing them without any mistake on his part. Because reasonable excuse has a broader scope than a mere absence of intent, it is understandable that the accused should bear the ultimate burden of proving it. The fact that this defence is available in the case of related offences created by the same sub-section of the Customs Act does not, to my mind, suggest one way or the other the mental element, if any, which is necessary to constitute the offence of importing narcotic goods created by s.233B(1)(b) unless, perhaps, the absence of a special provision of any kind in that paragraph, having regard to the fact that there is this special provision elsewhere in the same sub-section, indicates an acceptance that the ordinary principles of the criminal law, which require intent, should apply.
15. To import goods is to bring them into the country from abroad: Lyons v. Smart [1908] HCA 34; (1908) 6 CLR 143, at p 150. But if the goods are merely passing through en route to some place outside the country, they are not imported. Thus in Reg. v. Bull [1974] HCA 23; (1974) 131 CLR 203 it was held that goods are not imported into Australia within the meaning of s.233B(1)(b) of the Customs Act until they are landed or brought within the limits of a port with the intention of landing or discharging them. Moreover, importation connotes a commercial purpose or at least an intention to use or consume the goods. Goods would not, to my mind, be imported if they were discovered on board a ship or an aircraft during a journey to Australia and were handed to customs officers on arrival here because their importation was prohibited. I mention these things because it seems to me that it is not possible as a matter of language to speak of importation without introducing some element of purpose or intention. Cf. White v. Ridley [1978] HCA 38; (1978) 140 CLR 342, esp. at p 359. Even though that element of purpose or intention is usually an obvious inference from the surrounding circumstances, mere proof that goods have been brought into the country may, in some circumstances, not be enough.
16. It is difficult, therefore, to conclude that the nature of the offence created by s.233B(1)(b) or its subject-matter is such as to indicate that the legislature intended to relieve the prosecution of the burden of proving any sort of intent. Because the prosecution must at least prove importation, there does not seem to me, in the absence of any indication to the contrary, to be any good reason why I should not conclude that intent as it is ordinarily required by the criminal law is an ingredient of the offence. That is to say, the prosecution is required to prove that the accused intended to do the forbidden act which, in the case of s.233B(1)(b), is importing narcotic goods into Australia. Thus the intent must go not only to the act of importation but also to the nature and quality of the goods imported.
17. The only substantial reasons which there could be for reaching a contrary conclusion are, I think, that the international traffic in drugs is a pernicious evil and that the prosecution of an offence may be rendered more difficult by the requirement that it be proved in this way. Nevertheless the degree of evil involved in individual instances may vary markedly, as is shown by the range of maximum penalties which extend from a fine of $2,000 to imprisonment for life according to the circumstances set out in s.235. Although the offence created by s.233B(1)(b) cannot be regarded as merely regulatory, it encompasses situations the gravity of which may not in all cases call for the same severe approach. On the other hand, it does encompass crimes of the utmost gravity for which the penalty may appropriately be life imprisonment. The harshness of that penalty, however, tends to suggest that no departure from the ordinary principles of common law with regard to the proof of mens rea was intended.
18. Moreover, I do not think that, upon this view, the difficulty of proof will, in practice, be as considerable as might be imagined. Clearly, the fact that an accused has been found bringing narcotic goods into the country may ordinarily found an inference that the goods are being imported intentionally, notwithstanding protestations by the accused that he was unaware of their presence or of their nature or quality. At the very least, proof that the goods were brought into the country by the accused will ordinarily mean that there is a case to answer.
19. In the present case the accused was convicted upon one count under s.233B(1)(b), the trial judge having charged the jury that the prosecution did not have to prove any state of mind or knowledge on the part of the accused. This was in accordance with the decision of the Full Court of the Supreme Court of Victoria in Reg. v. Parsons (1983) 2 VR 499 which, of course, bound the trial judge. That decision followed the decision of the Queensland Court of Criminal Appeal in Reg. v. Gardiner (1981) Qd R 394 in which, however, it was held not only that the prosecution was not required to prove intent but also that it was not obliged to exclude the defence of honest and reasonable mistake of fact. In other words, the view was taken in Reg. v. Gardiner, as I read it, that the offence created by s.233B(1)(b) of importing narcotic goods is one of absolute liability. This extreme view was not adopted by the trial judge, who delivered his charge upon the basis that an honest and reasonable mistake of fact afforded a defence, although he directed the jury that the accused must establish the defence on the balance of probabilities. I have expressed my views concerning the onus of proving such a defence and it will be clear that, in my opinion, the direction of the trial judge was in error in this latter respect. I should add, however, that it was in accordance with the decision of the Full Court in Reg. v. Bonnor, by which the trial judge was also bound. In any event, in view of the conclusion which I have reached that s.233B(1)(b) requires the prosecution to prove an intentional importation of narcotic goods, honest and reasonable mistake did not, in my opinion, for the reasons which I have explained, arise as a distinct defence or ground of exculpation as it does with offences of strict liability.
20. The other count of which the accused was convicted was that of having in his possession, without reasonable excuse, narcotic goods imported into Australia in contravention of the Customs Act. That offence is created by par.(c) of s.233B(1). As I have said, the paragraph places the onus of proving reasonable excuse upon the accused. The defence of reasonable excuse is, as pointed out earlier, wider than that of honest and reasonable mistake. It must, however, include honest and reasonable mistake, for in my view it is not possible to envisage an honest and reasonable mistake of the relevant kind which would not at the same time constitute a reasonable excuse for the possession of narcotic goods. The effect of this is to extinguish honest and reasonable mistake as a separate defence and, if it is relied upon as constituting a reasonable excuse within the meaning of the paragraph, to place the onus of proof upon the balance of probabilities upon the accused. Another aspect of the mental element which might otherwise be required by par.(c) is also dealt with by the statute. Section 233B(1A) provides that in any prosecution under par.(c), it is not necessary for the prosecution to prove that the accused knew that the relevant goods had been imported into Australia in contravention of the Act but that it is a defence if he proves that he did not know that the goods had been imported into Australia in contravention of the Act.
21. In these two respects the legislature has made express provision for the mens rea which is required to accompany the offence of possession of narcotic goods created by par.(c) and it is fair, I think, to draw the inference that it has not sought otherwise to limit the burden upon the prosecution or to impose any additional burden upon the accused. In particular, the paragraph requires proof of possession and there can be no doubt that the onus of proving possession rests upon the prosecution.
22. As with importation, possession is a concept which contains within it a
mental element. As Aickin J. observed in Williams v.
The Queen [1978] HCA 49; (1978) 140 CLR
591, at p 610:
"It is necessary to bear in mind that inThe question arises, therefore, of what is sufficient knowledge of the presence of narcotic goods which, when accompanied by custody or control, will constitute possession for the purposes of par.(c). The answer to that question will, I think, complete any inquiry concerning the extent to which par.(c) requires proof of intent because the matter is otherwise expressly dealt with by the defence of reasonable excuse and by sub-s.(1A).
possession there is a necessary mental element of
intention, involving a sufficient knowledge of the
presence of the drug by the accused. No doubt in
many cases custody of an object may supply
sufficient evidence of possession, including the
necessary mental element, but that is because the
inference of knowledge may often be properly drawn
from surrounding circumstances."
23. Possession may be an intricate concept for some purposes, but the
intricacies belong to the civil rather than the criminal law.
As was observed
in D.P.P. v. Brooks (1974) AC 862, at p 867, the technical doctrines of the
civil law which separate proprietary
and possessory rights in chattels are
generally irrelevant for the purposes of the criminal law. There the concept
is a basic one
involving the intentional exercise of physical custody or
control over something. Knowledge is the basis of the necessary intent.
There may be a sense in which physical custody or control can be exercised
over something in ignorance of its presence or existence,
but this has never
been considered sufficient to amount to possession in law. This is what
Griffith C.J. meant in Irving v. Nishimura
[1907] HCA 50; (1907) 5 CLR 233, at p 237, when he
said:
"If a man has something put into his pocket withoutAlthough intent must be based upon knowledge, it is the degree of knowledge required which poses the difficult question. When, as in the present instance, the exercise is one of statutory interpretation, the answer to the question will in the end depend upon the nature and form of the legislation.
his knowledge, he cannot be charged with having it
unlawfully in his possession, if that fact
appears."
24. I should, perhaps, break off at this point to say that I do not
understand the decisions of this Court to indicate any different
approach. In
Moors v. Burke [1919] HCA 32; (1919) 26 CLR 265 the Court considered the summary offence of
unlawful possession in
the Victorian Police
Offences Act 1915 in which the
words "having in his actual possession" were used. Actual possession was
contrasted
with constructive
possession or
the right to possession, the latter
being an unlikely refinement to find any place in a criminal
offence. "Having
actual
possession"
was said, at p.274, to mean:
" ... simply having at the time, in actual fact andThis somewhat verbose definition fails to mention expressly that knowledge is required before there can be possession in law and that there cannot be possession of an article in ignorance of its presence or existence, but such a requirement is implicit in the words used. "Complete present personal physical control" is hardly consistent with ignorance of that kind.
without the necessity of taking any further step,
the complete present personal physical control of
the property to the exclusion of others not acting
in concert with the accused, and whether he has
that control by having the property in his present
manual custody, or by having it where he alone has
the exclusive right or power to place his hands on
it, and so have manual custody when he wishes."
25. Similarly, in Williams v. Douglas [1949] HCA 40; (1949) 78 CLR 521, where a guest in an hotel was held to have in his possession gold bars which he had secreted behind an outlet under the bath in a communal bathroom, the term "de facto possession" (which was said to mean much the same thing as actual possession) was used by the majority to distinguish constructive possession and to extend possession beyond the notion of having something presently in one's hands. Once again it is implicit in the majority judgment that knowledge is necessary before there can be possession in law and the facts of the case indicate that the majority had this in mind.
26. For the purposes of the criminal law, and for directness and simplicity,
it is not possible, to my mind, to think of a better
working definition of
possession than that given by Lord Diplock in D.P.P. v. Brooks, where at p 866
he said:
"In the ordinary use of the word 'possession,' oneSee also Reg. v. Boyesen (1982) AC 768, at p 777. But that still leaves the question of the degree of knowledge required and, as the differences of opinion in Reg. v. Warner (1969) 2 AC 256 show, it is not a question which is always susceptible of an easy answer. It is particularly difficult where a criminal offence involving the possession of something such as a narcotic substance is concerned.
has in one's possession whatever is, to one's
knowledge, physically in one's custody or under
one's physical control."
27. The difficulty arises because a person may knowingly have custody or control of a receptacle containing a substance but be ignorant of the existence of the substance or of its presence in the container. He may, on the other hand, know of the presence of the substance, as when he has custody or control of a package which he knows contains something, but have no knowledge of the physical nature of the contents other than might be suggested by the form of the package. Then again, he may be aware of the obvious physical attributes of the contents but be ignorant of their quality; for example, he may not know that they are a narcotic substance rather than some innocuous substance.
28. In determining the extent of the knowledge required by s.233B(1)(c) it
is, as I have said, unnecessary to look beyond the concept
of possession to
some extra mental element which might be implied by reference to general
principles of the criminal law. Except
to the extent that intent is required
by the use in par.(c) of that concept, it has otherwise been expressly dealt
with by the defence
of reasonable excuse and by sub-s.(1A). In this regard,
the problem is not as difficult as that dealt with in Warner's Case because
it may, I think, safely be concluded that, having provided the defence of
reasonable excuse, the legislature intended that the knowledge
required by the
paragraph should be no more than is minimally necessary to establish
possession, leaving it to the defence to bring
forward matters of an
exculpatory nature. Paragraph (c) does, I think, what the section considered
in Warner's Case did not and
is akin to what Lord Pearce had in mind when he
said in that case, at p.307:
"It would, I think, be an improvement of aSee also Sweet v. Parsley, at p 157.
difficult position if Parliament were to enact
that when a person has ownership or physical
possession of drugs he shall be guilty unless he
proves on a balance of probabilities that he was
unaware of their nature or had reasonable excuse
for their possession."
29. Put quite plainly, I think that the proper construction of par.(c) is one which attributes to the concept of possession as it is used there, the bare minimum of knowledge. To construe the paragraph in that way is to recognize that in law knowledge is intrinsic to possession, but that the degree of knowledge required may vary according to context. The context of par.(c) is one in which the legislature has expressly dealt with intent other than by spelling out what is meant by possession and has done so in a way which indicates that it did not intend an extension of that concept beyond the requirements of basic legal principle.
30. This approach results in a slightly more restrictive view of the knowledge needed for possession than was adopted by the House of Lords in Warner's Case. After the decision in Warner's Case, a new Act was passed providing, in effect, for a limited defence of reasonable excuse and placing the onus of proof on the accused. In Reg. v. Ashton-Rickardt (1978) 1 WLR 37; (1978) 1 All ER 173 it was held that this did not alter the onus resting upon the Crown to prove knowledge in order to establish possession as laid down in Warner's Case. But the change in the legislation was made in the light of the decision in Warner's Case and something more explicit was needed to alter the meaning of possession as it had been construed by the House of Lords. The history of s.233B(1) of the Customs Act is different (see Beckwith v. The Queen [1976] HCA 55; (1976) 135 CLR 569, at pp 579-580) and the presence from the beginning of reasonable excuse as a defence in those paragraphs dealing with possession justifies, in my view, a different approach.
31. In my view, it comes to this. A person cannot, within the meaning of par.(c), possess something when he is unaware of its existence or presence. But he will, since possession is used in its barest sense, possess something if he has custody or control of the thing itself or of the receptacle or place in which it is to be found provided that he knows of its presence. He need not know what it is (other than to the extent necessary to know of its presence) nor its qualities. Thus a person will possess narcotic goods if he has, to his knowledge, custody or control of something which is in fact a narcotic substance, even if its packaging prevents him from knowing what it is and even if he does not know its quality as a narcotic substance. If, of course, he does not know what it is or does not know that it is a narcotic substance, he may have a defence of reasonable excuse under par.(c), but to point this out is only to emphasize that the use of the concept of possession in that paragraph was not intended to cover ground which would otherwise be covered by the defence expressly provided.
32. I have purposely left on one side the decision in Reg. v. Bush (1975) 1
NSWLR 298, in which the Court of Criminal Appeal of
the Supreme Court of New
South Wales held, at p 324, that possession in s.233B(1)(c) means:
" ... no more than de facto possession of the
narcotic goods ... and that the mental element
involved extends no further than the intention
inherent in de facto possession of such goods,
namely, the intention to have exclusive physical
control of some article which is in fact narcotic
goods or of some article or some place wherein such
goods are in fact carried or contained or located.
It is not inherent in that mental element that an
accused should know, or suspect, or have reason to
suspect, that an item in his de facto possession is
narcotic goods. Accordingly, if narcotic goods are
found in some bag or garment, or in some package or
container, or in some room or place, over which he
has the exclusive physical control appropriate to
de facto possession, he has them in his possession
for the purposes of s.233B(1.)(c). A claim by him
that those goods were slipped into his bag or
garment or were inserted into the package or
container or planted in his room or other place
without his knowledge, or suspicion, or reason for
suspicion, are matters which he may establish to
the tribunal of fact as, according to the
circumstances, providing a reasonable excuse for
such possession."
33. The decision in Reg. v. Bush was considered by a special court of five
judges in Reg. v. Rawcliffe (1977) 1 NSWLR 219 and the
passage which I have
cited was approved. In Reg. v. Kennedy (1979) 25 ALR 367 the New South Wales
Court of Criminal Appeal again
affirmed the approach taken in Reg. v. Bush,
although Roden J., who expressed disapproval of that approach, felt able to
distinguish
the case and also Reg. v. Rawcliffe upon the facts. Reg. v. Bush
was also followed in Victoria in Reg. v. Ditroia and Tucci [1981] VicRp 28; (1981)
VR 247 and
in Queensland in Reg. v. Gardiner.
34. I am bound to say that I cannot accept the formulation propounded in Reg. v. Bush of the meaning of possession in s.233B(1)(c) of the Customs Act. If de facto possession means possession without any knowledge of the thing said to be possessed (and that is not the way the expression was used in Williams v. Douglas), then it is a concept which is alien to the notion of possession which has hitherto prevailed, at all events in the criminal law. It has never been the position that a person can be in possession of something of which he knows nothing and par.(c) does not suggest anything different. As I have said, the availability of the defence of reasonable excuse justifies the conclusion that knowledge, admittedly a matter of degree, was intended to be limited to the minimum by the paragraph. But to go further would amount to more than a refusal to read into the paragraph a requirement of knowledge; it would be to read out a requirement which is already there. I do not think that such a result can be justified by any of the accepted principles of construction.
35. In neither Hill v. Donohoe [1911] HCA 38; (1911) 13 CLR 224 nor Poole v. Wah Min Chan [1947] HCA 37; (1947) 75 CLR 218, where this Court dealt with comparable provisions creating offences which were dependent upon possession, was the requirement of knowledge as the basis of possession denied. In Reg. v. Bull, Barwick C.J., who was in dissent, made an observation at pp 220-221 about s.233B(1)(a) of the Customs Act. That paragraph creates the offence of having, without reasonable excuse (proof of which lies on the accused) possession on board any ship or aircraft any prohibited imports to which the section applies. His Honour expressed the view that proof of the offence does not require proof of knowledge of the nature of the thing possessed. It is not entirely clear what his Honour meant by "the nature of the thing possessed" but the passage in question may be read consistently with the view which I have expressed, namely, that possession of something requires no more than that the accused should know that he has custody or control of that thing, even if he does not know what it is. Certainly Barwick C.J. was not suggesting that knowledge of the presence or existence of the thing said to be possessed is unnecessary.
36. Since the trial judge charged the jury in relation to s.233B(1)(c) that possession meant no more than physical custody or control of a thing, there was, in my view, a misdirection, although the direction was in accordance with authority.
37. I would grant special leave to appeal, allow the appeal and, for the reasons given by the Chief Justice and Wilson J., remit the matter to the Full Court to proceed in accordance with the judgment of the Court.
ORDER
Application for special leave to appeal granted.Appeal allowed.
Order that the judgment of the Full Court of the Supreme Court of Victoria sitting in its criminal jurisdiction be set aside and that the matter be remitted to that Court to proceed in accordance with the judgment of this Court.