He Kaw Teh v R
157 CLR 52360 ALR 449; 1985 - 0711B - HCA
(Judgment by: Dawson J)
Between: He Kaw Teh
And: R
Judges:
Gibbs CJ
Mason J
Wilson J
Brennan J
Dawson J
Subject References:
Criminal Law
Judgment date: 11 July 1985
Brisbane
Judgment by:
Dawson J
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)).
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.
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.
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) 67 CLR 536 , at pp 540-541.
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 [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.
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] 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.
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 [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.
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.
In Maher v. Musson (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) 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 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."
See also Iannella v. French (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:
"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."
Despite the decision in Reg. v. Bonnor (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) 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.
It is against this background that it is necessary to consider the nature of the offence created by par.(b) of 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.
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.
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.
Paragraph (b) of 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.
To import goods is to bring them into the country from abroad: Lyons v. Smart (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) 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) 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.
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.
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.
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.
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.
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.
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.
As with importation, possession is a concept which contains within it a mental element. As Aickin J. observed in Williams v. The Queen (1978) 140 CLR 591 , at p 610:
"It is necessary to bear in mind that in 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."
The 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 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) 5 CLR 233 , at p 237, when he said:
"If a man has something put into his pocket without his knowledge, he cannot be charged with having it unlawfully in his possession, if that fact appears."
Although 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.
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) 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 and 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."
This 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.
Similarly, in Williams v. Douglas (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.
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,' one has in one's possession whatever is, to one's knowledge, physically in one's custody or under one's physical control."
See 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.
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.
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 a 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."
See also Sweet v. Parsley, at p 157.
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.
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 Customs Act is different (see Beckwith v. The Queen (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.
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.
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."
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) VR 247 and in Queensland in Reg. v. Gardiner.
I am bound to say that I cannot accept the formulation propounded in Reg. v. Bush of the meaning of possession in 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.
In neither Hill v. Donohoe (1911) 13 CLR 224 nor Poole v. Wah Min Chan (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.
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.
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.