He Kaw Teh v R

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

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(Judgment by: Wilson J)

Between: He Kaw Teh
And: R

Court:

Judges: Gibbs CJ
Mason J

Wilson JBrennan 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:
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.

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 to 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.  ... "

A little later, speaking of the charge of possession, his Honour said:

"Again no specific state of mind, whether of 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. ... "

On 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) 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.

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.

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.

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 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.  ... "

The 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.

This Court has had the opportunity of considering the problem on a number of occasions.  In Maher v. Musson (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 is 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)."

His 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.

In Thomas v. The King (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] AC 462 was not referred to.

In Proudman v. Dayman (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 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."

It 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 [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).

In Hill v. Donohoe (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.

In Poole v. Wah Min Chan (1947) 75 CLR 218 the respondent was charged under 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).

In Samuels v. Stokes (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 (SA) notwithstanding that a defence may have been available under s 6 of the Public Assemblies Act 1972 (SA).  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.

The last of the decisions of this Court to which I wish to refer is the case of Cameron v. Holt (1980) 142 CLR 342 , where the Court held that mens rea is an ingredient of the offence created by 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 in 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] 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."

Cf., also, per Mason J. at p 348.

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 the 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."

Having concluded that the legislature did not intend to create an offence of absolute liability, the Court continued: 

"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."

In Kidd v. Reeves (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 (SA),  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).

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."

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 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. ... "

Hoare J. then referred to Sherras v. De Rutzen and to Irving v. Nishimura (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).

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.

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 burden 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."

The 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.

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.

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.

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: 

"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 ."

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) 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) 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 ALR; 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) 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 ALR; 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."

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) 53 ALJR 101, at p 108;  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 by 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."

However, 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.

The submission for the applicant with respect to the count of possession must be rejected.

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.