He Kaw Teh v R

157 CLR 523
60 ALR 449; 1985 - 0711B - HCA

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(Judgment by: Gibbs CJ)

Between: He Kaw Teh
And: R

Court:

Judges:
Gibbs CJMason J
Wilson J
Brennan J
Dawson J

Subject References:
Criminal Law

Hearing date: Canberra, 5 December 1984; 6 December 1984
Judgment date: 11 July 1985

Brisbane

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Judgment by:
Gibbs CJ

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 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) VR 247.  The appeal was accordingly dismissed.  The applicant now seeks special leave to appeal to this Court.

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 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."

Section 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 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.

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) 6 CLR 143 , at p 150; Reg. v. Bull (1974)  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.

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 evil 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."

There 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) 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) 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.

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.

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.

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 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 ... 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."

See also Sweet v. Parsley [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.

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.

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) 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 normal 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."

However, 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.

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) 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.

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 belief 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."

In Bank of New South Wales v. Piper [1897] AC 383 , at pp 389-390, their Lordships said: 

"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."

The implications of these statements were explored in a number of cases in this Court - particularly Maher v. Musson (1934) 52 CLR 100 , Thomas v. The King (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 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 cases of doubt."

These 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.

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 not open to the accused to exculpate himself by showing that he was free of fault."

The 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.

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) 107 CLR 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.

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] 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) 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) VR 563, at p 565; Mayer v. Marchant (1973) 5 SASR 567, but cf.  Reg. v. Bonnor (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.

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.

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.

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.

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 ALR The reasons given for the conclusion were summed up by Hoare J., at p 405; p 151 of ALR, very shortly as follows: 

"So far as concerns the first charge in the 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 ..."

With 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 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.

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  - 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', one has in one's possession whatever is, to one's own knowledge, physically in one's custody or under one's physical control."

In Reg. v. Boyesen [1982] AC 768 , at pp 773-774, Lord Scarman said: 

"Possession is a deceptively simple concept.  It 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."

In Williams v. The Queen (1978) 140 CLR 591 , at p 610, Aickin J. said: 

"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."

See also Reg. v. Woodrow (1846) 15 M & W 404, at pp 415, 418 (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.

It would be a misapprehension to think that Williams v. Douglas (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 (WA), 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) 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.

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).

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.

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 he 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."

This 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 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: 

"At the same time we would think that it does not 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."

Secondly, it was said, at p 324: 

" ... 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."

The decision in Reg. v. Bush has been followed, not only in relation to 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) 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."

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 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.

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) 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 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 to convey or have in his possession any prohibited exports with intent to export them or knowing that they are intended to be unlawfully exported."

The information was dismissed by the magistrate on grounds which are stated in the report as follows, at p 220:

"(i)

that submission by counsel for the defendant, citing in support thereof the cases of Hill v. Donohoe ((1911) 13 CLR 224 ) and Lyons v. Smart ((1908) 6 CLR 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 and 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."

An appeal by the informant was allowed.  Latham C.J. (with whom McTiernan and Williams JJ. concurred) said, at pp 227-228:

"Sub-section (2) provides that the possession by a 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."

Starke J., at p 232, said: 

"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 of 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."

It 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.

Hill v. Donohoe, which was distinguished in Poole v. Wah Min Chan, was a decision upon 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.

The legislative history of the Customs Act up to 1976 is traced by Mason J. in his judgment in Beckwith v. The Queen (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.

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 shall lie upon him) has in his possession, on board any ship or aircraft, any prohibited imports to which this section applies."

The 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: 

"Applying the section to the foreign trade by sea, 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."

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.

Finally, reference was made to some remarks of my own in Milicevic v. Campbell (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 question 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."

My 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.

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.

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.