He Kaw Teh v R

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

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(Judgment by: Brennan J)

Between: He Kaw Teh
And: R

Court:

Judges: Gibbs CJ
Mason J
Wilson J

Brennan JDawson 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:
Brennan J

The question for decision is whether, in a prosecution for offences under s 233B(1)(b) and (c) of the Customs Act 1901 (Cth) ("the Act"), it is necessary for the prosecution to prove the accused knew that the thing which he had imported or which he had in his possession was "prohibited imports to which this section applies".  The question arises in this way.  The applicant had travelled by air from Kuala Lumpur to Melbourne and on his disembarking at the Melbourne airport on 20 October 1982 he was found to be in possession of a bag which he had brought with him. His bag was inspected by Customs officials. It contained 2.788 kgs of heroin in a false bottom.  Heroin is a prohibited import to which s 233B applies.  The applicant was charged before the County Court in Victoria with importing that heroin (par.(b)) and with having that heroin in his possession (par.(c)).  He pleaded not guilty. The learned trial judge, Judge Tolhurst, directed the jury that, on the charge of importing, the prosecution-

"does not have to prove any state of mind or knowledge of the accused. ... No specific state of mind, whether of motive, intention, knowledge or advertence, need be proved by the Crown.  If the accused man establishes by way of defence that he had an honest and reasonable belief in a state of facts which if they existed would make his act innocent, that would afford a defence to this charge.  You will note, however, that the onus of establishing such a defence is upon him."

His Honour directed the jury that, on the charge of having in possession-

"  ... Again no specific state of mind, whether of motive, intention, knowledge or advertence, need be proved by the Crown.  Further, the Crown does not have to prove that the accused knew that the goods in his possession had been imported into Australia in contravention of the Customs Act.  You will have noted that in respect of this second charge, the words 'without reasonable excuse' are used.  The Crown does not have to prove the accused man did not have reasonable excuse.  Proof that he had reasonable excuse rests upon the accused."

The applicant was convicted on both counts.  His appeal to the Full Court of the Supreme Court failed, as it was bound to do.  The learned trial judge had directed the jury in accordance with what the Full Court had held the law to be in Reg. v. Parsons (1983) 2 VR 499 (with reference to importing) and in Reg. v. Ditroia and Tucci (1981) VR 247 (with reference to possession).  This application for special leave to appeal raises for consideration the correctness of those decisions and the antecedent cases on which they were based, especially Reg. v. Gardiner (1981) QdR 394; Reg. v. Bush (1975) 1 NSWLR 298; and Reg. v. Bonnor (1957) VR 227.  Some fundamental questions of criminal responsibility arise.

The General Principles

It is generally true to say (as Barwick C.J. pointed out in Ryan v. The Queen (1967) 121 CLR 205 , at p 213) that an act or omission done or made by a person is the essential foundation of his criminal responsibility.  Having something in possession is not easily seen as an act or omission; it is more easily seen as a state of affairs (cf. per Gibbs J. in Beckwith v. The Queen (1976) 135 CLR 569 , at p 575), but it is a state of affairs that exists because of what the person who has possession does in relation to the thing possessed. "Possession is proved by various acts varying with the nature of the subject matter": Isaacs J. speaking for the Court in Moors v. Burke (1919) 26 CLR 265 , at p 271.  There are some few anomalous offences, of which Germaine Larsonneur (1933) 24 CrAppR 74 is an example, which are not founded on an offender's acts or omissions but they may be put aside in considering the general principles of criminal responsibility applicable to most offences. Criminal responsibility depends not only upon a person's act or omission but also upon the circumstances in which the act is done or the omission made, usually upon his state of mind at that time and sometimes upon the results of his act or omission.  However, the definition of a criminal offence ordinarily comprehends only the prohibited act or omission (conduct), the circumstances in which the act is done or the omission is made and, in some instances, the results of the act or omission. These elements - conduct, circumstances and results - are what Dixon C.J. in Vallance v. The Queen (1961) 108 CLR 56 , at p 59, called "the external elements necessary to form the crime".  When a statute creates and defines an offence only by reference to its external elements, a mental element is usually implied in the definition.  A person who engages in prohibited conduct is not criminally responsible for it unless the mental element is present.  The mental element is mens rea or guilty mind. In Reg. v. O'Connor (1980) 146 CLR 64 , Stephen J. stated the modern approach to mens rea at pp 96-97:

"As Stephen J. pointed out in Reg. v. Tolson ((1889) 23 QBD, at p 187), 'The full definition of every crime contains expressly or by implication a proposition as to a state of mind.  Therefore, if the mental element of any conduct alleged to be a crime is proved to have been absent in any given case, the crime so defined is not committed ...'. (The reference to proof of absence must now, of course, be read in the light of Woolmington v. Director of Public Prosecutions ( [1935] AC 462 )).  The mental element that must be present is a state of mind such as Lord Simon described, in Majewski ((1977) A.C.443), as 'stigmatised as wrongful by the criminal law': it is that state of mind which, when compounded with prohibited conduct, constitutes the particular offence ((1977) A.C., at p 478).  As Dickson J. said in Leary v. The Queen ((1977) 74 DLR(3d), at p 122), 'Society and the law have moved away from the primitive response of punishment for the actus reus alone'. Thus in Bratty v. Attorney-General (Northern Ireland) ( [1963] AC 386 , at p 407) the Lord Chancellor, in describing 'the overriding principle, laid down by this House in Woolmington's Case' said, 'that it is for the prosecution to prove every element of the offence charged.  One of these elements is the accused's state of mind'."

The requirement of mens rea avoids what Lord Reid called "the public scandal of convicting on a serious charge persons who are in no way blameworthy" (Sweet v. Parsley [1970] AC 132 , at p 150).  Nowadays, a presumption is made that mens rea is an element in a statutory offence though the offence is defined only by reference to its external elements.  The presumption was stated by R.S. Wright J. in Sherras v. De Rutzen [1895] 1 QB 918 , at p 921: 

"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 ..."

That statement has not been doubted.  I would respectfully agree with Lord Goddard C.J. who said in Brend v. Wood (1946) 62 TLR 462 , at p 463: 

"It is of the utmost importance for the protection of the liberty of the subject that a Court should always bear in mind that, unless a statute, either clearly or by necessary implication, rules out mens rea as a constituent part of a crime, the Court should not find a man guilty of an offence against the criminal law unless he has a guilty mind."

That passage has been referred to with approval by the majority of the Supreme Court of Canada in Beaver v. The Queen (1957) SCR 531, at pp 537-538; by Lord Reid and by Lord Morris of Borth-y-Gest in Reg. v. Warner [1969] 2 AC 256 , at pp 275, 294; by Lord Morris in Sweet v. Parsley, at p 152 and by the Judicial Committee in an Indian appeal mentioned in Lim Chin Aik v. The Queen [1963] AC 160 , at p 173.  It is now firmly established that mens rea is an essential element in every statutory offence unless, having regard to the language of the statute and to its subject matter, it is excluded expressly or by necessary implication: Lim Chin Aik, at p 173; Sweet v. Parsley, at pp 149,152,156; Cameron v. Holt (1980) 142 CLR 342 , at pp 346,348.  Earlier doubts as to the existence of the presumption or as to its strength (see, for example, Proudman v. Dayman (1941) 67 CLR 536 , at p 540) have now been removed.

Recently, in Gammon Ltd. v. A.-G. of Hong Kong [1985] 1 AC 1 Lord Scarman, delivering the judgment of the Judicial Committee, stated five propositions:

"(1)

there is a presumption of law that mens rea is required before a person can be held guilty of a criminal offence; (2) the presumption is particularly strong where the offence is 'truly criminal' in character; (3) the presumption applies to statutory offences, and can be displaced only if this is clearly or by necessary implication the effect of the statute; (4) the only situation in which the presumption can be displaced is where the statute is concerned with an issue of social concern, and public safety is such an issue; (5) even where a statute is concerned with such an issue, the presumption of mens rea stands unless it can also be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act."

The first three propositions correctly emphasize the strength which contemporary authority gives to the presumption that mens rea is an essential element of an offence.  The fourth proposition, if I may say so with respect, seems to be too categorical an approach to what is, after all, a question of statutory interpretation.  It is not possible to decide that mens rea can be excluded only where the subject matter answers a given description (even so general a description as "an issue of social concern"), without regard to the whole of the statutory context.  The fifth proposition reflects the purpose of the criminal law: to deter a person from engaging in prohibited conduct.  The penalties of criminal law cannot provide a deterrent against prohibited conduct to a person who is unable to choose whether to engage in that conduct or not, or who does not know the nature of the conduct which he may choose to engage in or who cannot foresee the results which may follow from that conduct (where those results are at least part of the mischief at which the statute is aimed).  It requires clear language before it can be said that a statute provides for a person to do or to abstain from doing something at his peril and to make him criminally liable if his conduct turns out to be prohibited because of circumstances that that person did not know or because of results that he could not foresee.  However grave the mischief at which a statute is aimed may be, the presumption is that the statute does not impose criminal liability without mens rea unless the purpose of the statute is not merely to deter a person from engaging in prohibited conduct but to compel him to take preventive measures to avoid the possibility that, without deliberate conduct on his part, the external elements of the offence might occur.  A statute is not so construed unless effective precautions can be taken to avoid the possibility of the occurrence of the external elements of the offence. In Lim Chin Aik, Lord Evershed speaking for the Judicial Committee said: 

"But it is not enough in their Lordships' opinion merely to label the statute as one dealing with a grave social evil and from that to infer that strict liability was intended.  It is pertinent also to inquire whether putting the defendant under strict liability will assist in the enforcement of the regulations.  That means that there must be something he can do, directly or indirectly, by supervision or inspection, by improvement of his business methods or by exhorting those whom he may be expected to influence or control, which will promote the observance of the regulations.  Unless this is so, there is no reason in penalising him, and it cannot be inferred that the legislature imposed strict liability merely in order to find a luckless victim."

The requirement of mens rea is at once a reflection of the purpose of the statute and a humane protection for persons who unwittingly engage in prohibited conduct.

It is one thing to say that mens rea is an element of an offence; it is another thing to say precisely what is the state of mind that is required.  It is the "beginning of wisdom", as Lord Hailsham of St. Marylebone said in Reg. v. Morgan [1976] AC 182 , at p 213, to see "that 'mens rea' means a number of quite different things in relation to different crimes".  Indeed, it may connote different states of mind in respect of the several external elements of the same crime.  If A strikes B and causes him bodily harm, A's moral blameworthiness may depend on whether A moved accidentally, or whether he was unaware that B or anybody else was there, or whether he did not mean to cause bodily harm and could not and did not foresee that he would cause bodily harm. The particular mental states that apply to the several external elements of an offence must be distinguished, not only as a matter of legal analysis, but in order to maintain tolerable harmony between the criminal law and human experience.

Moral excuses find counterparts in the categories of mental states that are indifferently described as mens rea and that apply to the several external elements of an offence.  Thus, voluntariness and intent are the mental states ordinarily applicable to an act involved in an offence, knowledge or the absence of an honest and reasonable but mistaken belief is the mental state ordinarily applicable to the circumstances in which a relevant act is done or omission is made and, where a mental state is applicable to results, it may be either foresight of the possibility of their occurrence (if recklessness is an element) or knowledge of the probability (or likelihood) of their occurrence or an intention to cause them (if a specific intent is an element).  A mental state is inherently hard to define, and the definition of mens rea is beset by problems of terminology.  Voluntariness, for example, connotes a number of different mental states: see per Windeyer J. in Ryan, at p 244; it includes a conscious control of bodily movement.  Voluntariness in that sense applies to an "act" regarded as a contraction of the muscles (to use Mr Justice Holmes' term in The Common Law (1881), p 54), so that a person is not criminally responsible for an involuntary movement or reflex action.  If an "act" is described so as to include the circumstances in which the muscles are contracted, a different state of mind is applicable, ordinarily called "intent".  Intent, in one form, connotes a decision to bring about a situation so far as it is possible to do so - to bring about an act of a particular kind or a particular result.

Such a decision implies a desire or wish to do such an act or to bring about such a result.  Thus when A strikes B (the act) having decided to or desiring or wishing to strike him, it can be said that he intends to strike B.  Intent, in another form, connotes knowledge.  This appears more clearly if we divide an action, somewhat artificially, into a mere movement and the circumstances that are an integral part of the action and which give it its character.  When A strikes B, his action can be divided into A's movement of his fist and B's presence in the path of A's movement. Although A's movement may be voluntary, he is not said to strike B intentionally unless he knows that B (or someone else) is in the path of his moving fist.  If mens rea were imported into an offence defined as striking another - a definition that does not include a result - two states of mind would normally be involved: voluntariness of movement and an intention to strike another - and intention is, for all practical purposes, established by knowledge that another person is, or is likely to be, in the path of the movement. If the definition is extended to include a result - causing bodily harm - the statute may prescribe a further mental element: ordinarily a specific or special intent to cause bodily harm.

Judicial examination of the distinction between the various forms of mens rea has not been extensive.  Thus, Barwick C.J. who had noted in O'Connor (at p 76) that mens rea ordinarily requires a general or basic intent at least to do the physical act involved in the crime charged, observed in Ryan (at p 213) that -

" ... there has not been any frequent need to express with technically expressed precision the difference between that element of mens rea which relates the will to act to the deed in question and that element which relates to it the general intent with which that will was exercised."

Nonetheless, l states. General intent and specific intent are also distinct mental states.  General or basic intent relates to the doing of the act involved in an offence; special or specific intent relates to the results caused by the act done.  In statutory offences, general or basic intent is an intent to do an act of the character prescribed by the statute creating the offence; special or specific intent is an intent to cause the results to which the intent is expressed to relate.  Both general intent and specific intent may be established by knowledge: the former by knowledge of the circumstances which give the act its character, the latter by knowledge of the probability of the occurrence of the result to which the intent is expressed to relate.  But existing circumstances can be known more certainly than the probability of the occurrence of a future result, and therefore specific intent is usually established by proof of a desire or wish to cause the prescribed result, whereas general intent is usually established by proof of knowledge of circumstances prescribed by the statute as defining the act involved in the commission of the offence. Of course, proof of an actual desire or wish to do an act of the prescribed character is proof of a general intent (cf. Reg. v. Reynhoudt (1962) 107 CLR 381 , at pp 398-399; Morgan, at p 210), but for practical purposes knowledge of the circumstances which give the act its character when an act is voluntarily done is the ordinary form of an intent to do it.  A specific intent to cause a prescribed result can be, but is not ordinarily, established by knowledge that such a result will probably (or is likely to) occur (Reg. v. Crabbe (1985) 59 ALJR 417; 58 ALR 417 ).

Just as knowledge of the probable (or likely) results of an act establishes a specific intent to cause those results, so the doing of an act with knowledge that the circumstances are probably such as to make the act criminal establishes a general intent to do an act of that character. That is not to say that some state of mind less than knowledge is sufficient to establish intent. Actual knowledge is required (Giorgianni v. The Queen (1985) 59 ALJR 461, at pp 474- 475) but what is generally required to be known is at least the likelihood that the prescribed result of an act will occur (specific intent) or at least the likelihood that the existing circumstances are such as to give an act the character of the act involved in the commission of the offence in question (general intent).

Voluntariness, general intent and specific intent are three categories of mens rea that may be (but are not always) mental elements applicable to the external elements of an offence.  Voluntariness and general intent are generally implied in a statute creating an offence as mental elements applicable to the act involved in the offence; specific intent is not implied. When a specific intent is expressed to be an element, it is ordinarily expressed to apply only to results.  The definition of circumstances attendant upon but not an integral part of the act involved in the offence may (but does not always) imply another mental element:  knowledge or the absence of an honest and reasonable but mistaken belief as to the existence of those circumstances.  The distinction between the act and the circumstances which attend its occurrence is frequently of no moment, because for all practical purposes the same mental element - knowledge - is the requisite mental element ordinarily applicable both to the act and the circumstances. But if there be a legislative intention to apply a mental element to the circumstances different from the mental element applicable to the act involved in the offence, it is necessary to decide what circumstances are defined to be an integral part of the act (to which intent and therefore knowledge will ordinarily apply) and what circumstances are defined to be merely attendant (to which no mental element may be intended to apply or to which a mental element less than knowledge may be intended to apply).  One of the intractable difficulties in the process of identifying the particular category of mens rea that applies to the respective external elements of an offence is the identification of the prohibited act on the one hand and the circumstances attendant on the doing of that act on the other.  It is a problem involved in this case.

Analysis of the external elements of an offence as a step in the ascertaining of the mens rea required is manifestly necessary when the effect of intoxication arises for consideration, as it often does.  In this country, where the decision in O'Connor requires that intoxication be regarded in ascertaining whether mens rea exists, it is essential to bear in mind that different levels of intoxication affect the mind in different ways, and partial intoxication at a particular level may be relevant to the existence of one mental state but not to the existence of another.  The level of intoxication that is relevant to whether a movement is voluntary is far greater than the level of intoxication that is relevant to whether a specific intention is formed.  Therefore the ascertainment of the criminal responsibility of a partially intoxicated offender depends on a proper identification of the mental state to which the partial intoxication is relevant.  That approach is radically different from the approach now adopted in the United Kingdom in Reg. v. Majewski [1977] AC 443 , and rejected by this Court in O'Connor.  The Majewski rule that intoxication is irrelevant to crimes of basic intent is of less significance if basic intent is held to relate merely to the physical act involved in the commission of an offence, but that was not the approach adopted in Morgan. In Morgan, a rape case, the speeches treated the relevant external elements of the crime (sexual intercourse and non-consent) as integral parts of the whole act to which a single mental state (intent) applied. It followed that intent applied not only to the physical act of intercourse but to the element of non-consent.

In the present case we are concerned with the form of mens rea that relates to conduct defined as importing and having in possession.  The principle applicable at common law was stated by Jordan C.J. in R. v. Turnbull (1943) 44 SR(NSW) 108, at p 109: 

" ... it is also necessary at common law for 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.  If this be established, it is no defence that he did not know that the act which he was consciously doing was forbidden by law. Ignorance of the law is no excuse.  But it is a good defence if he displaces the evidence relied upon as establishing his knowledge of the presence of some essential factual ingredient of the crime charged." (Emphasis added).

In O'Connor, Stephen J. (at p 97) defined "criminal intention" by citing Jordan C.J.'s statement of the requirement of knowledge.  Prima facie, the requirement of knowledge relates not only to the facts which give character to the physical act involved in the commission of the offence but also to the circumstances which attend its occurrence and make it criminal.

Mens rea has sometimes been defined in terms which require a state of mind less than knowledge of the facts which make the act criminal.  In Reg. v. Tolson (1889) 23 QBD 168 , Cave J. stated the principle in this way:

"At 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'.

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

" ... 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."

This was the view also of Sir Samuel Griffith who, when he submitted his draft Criminal Code, stated the common law to be the source of the provision drafted as s 26 and enacted as s 24 of The Criminal Code (Q.) which reads:

"A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.

The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject."

See also Hardgrave v. The King (1906) 4 CLR 232 , at p 237, and Thorne v. Motor Trade Association [1937] AC 797 , at p 809, where this defence was stated to be of general application.

The "defence" of an honest and reasonable belief in the existence of facts which, if true, would make the act charged innocent raises for present consideration two questions: first, can it apply to circumstances that, on a proper construction of the statute creating an offence, are an integral part of the act involved? and second, is it a "defence" which the prosecution bears the ultimate onus of disproving?  The answer to the first question will appear more clearly when the second is resolved.

In earlier times, criminal responsibility was imposed upon or imputed to an accused upon proof of the external elements alone: see J.W.C. Turner Russell on Crime 12th ed. (1964), vol 1, pp.33,34.  An honest and reasonable but mistaken belief in a state of facts which would make the supposed offender's act innocent was therefore treated as an excuse for or a true exception to criminal responsibility: see by way of example, Stephen's Digest of the Criminal Law, 3rd ed. (1883), Ch.III, "General Exceptions".  The origin of that state of mind as an exception is reflected in the exculpatory form in which it appears in the Criminal Codes which adopt Sir Samuel Griffith's draft, as Windeyer J. pointed out in Mamote-Kulang v. The Queen (1964) 111 CLR 62 , at pp 76-77.  But since Woolmington v. The Director of Public Prosecutions [1935] AC 462 it has come to be recognized that the prosecution bears the ultimate onus of negativing "defences" under the Codes: see Packett v. The King (1937) 58 CLR 190 , at p 212; Brimblecombe v. Duncan; Ex parte Duncan (1958) QdR 8.  In Bank of New South Wales v. Piper, the absence of mens rea was said to consist in the existence of the exculpating belief.  Conversely, the absence of the exculpating belief should be regarded as a form of mens rea.  It is no more appropriate for the common law than it is for the Codes to regard the defence of an honest and reasonable but mistaken belief merely as an excuse for committing an offence that is fully constituted by its external elements.  In principle, the absence of such a belief must also be treated as a form of mens rea at common law and an element of the offence which the Crown must prove.  The golden thread of which Viscount Sankey L.C. spoke in Woolmington has been woven through the material of all criminal offences. That seems to have been the tentative view of Dixon J. in Proudman v. Dayman where he said, at p 541: 

"The burden of establishing honest and reasonable mistake is in the first place upon the defendant and he must make it appear that he had reasonable grounds for believing in the existence of a state of facts, which, if true, would take his act outside the operation of the enactment and that on those grounds he did so believe.  The burden possibly may not finally rest upon him of satisfying the tribunal in case of doubt."

Lord Diplock in Sweet v. Parsley, following what he understood to be the approach of Dixon J. in Proudman v. Dayman, stated the position thus:

"Unlike the position where a statute expressly places the onus of proving lack of guilty knowledge on the accused, the accused does not have to prove the existence of mistaken belief on the balance of probabilities; he has to raise a reasonable doubt as to its non-existence."

Lord Pearce (at p 158) seemed to doubt whether the defence of an honest and reasonable but mistaken belief could be accepted consistently with Woolmington if the onus of proving the defence rested on the defendant. Menhennitt J. in Kidd v. Reeves (1972) VR 563, at p 565, and the New Zealand Court of Appeal in Reg. v. Strawbridge (1970) NZLR 909, at p 915, have held that the onus of disproving that an accused had an honest and reasonable belief in facts which, if true, would make his act innocent rests on the prosecution in cases where that defence is open.

In Mayer v. Marchant (1973) 5 SASR 567, at p 570, Bray C.J. referring to Proudman v. Dayman and canvassing the relevant authorities said:

"The implications of Woolmington's Case have only gradually been recognised, not, on occasions, without disquiet at their width; see, for example, Sweet v. Parsley, per Lord Pearce at p 158.  Once they are, it must, in my view, be accepted that the ultimate onus is always on the Crown, except in the case of insanity or where the onus is shifted by statute, and it does not matter whether the offence is the creature of common law or of statute."

In the absence of contrary statutory provision and apart from insanity an accused cannot be required to prove a mental state as an excuse.

The next question is: to what external elements does the defence of honest and reasonable but mistaken belief apply and, in particular, does it apply to circumstances that are an integral part of the act involved in an offence?  As intent is the mental state ordinarily required in respect of the doing of an act involved in the commission of an offence, any mental state less than knowledge would not be presumed to apply to the circumstances which give that act its character.  A mental state less than knowledge can apply more readily to circumstances attendant on the occurrence of an act involved in the commission of an offence being circumstances which make the act criminal.  The absence of an exculpatory belief can apply to such circumstances where the prima facie requirement (knowledge) is excluded. Clearly knowledge and an absence of exculpatory belief cannot both apply to the same external element for they are different mental states.  An absence of an honest and reasonable but mistaken belief is not the equivalent of knowledge of the facts which make the act criminal: in the first place, an absence of a mistaken belief is something less than knowledge.  Thus inadvertence to a fact does not amount to knowledge of that fact, but it is consistent with the absence of a mistaken belief about it. In the second place, the reasonableness of an exculpatory belief is an objective matter.  An unreasonable mistake is inconsistent with knowledge, yet it would satisfy the test of mens rea according to Bank of New South Wales v. Piper.  As knowledge and mistaken belief cannot co-exist in relation to the same fact, the difference between the two states of mind may be critical to criminal responsibility in some cases: cf. Reg. v. Kimber [1983] 1 WLR 1118 , at pp 1121,1122.  It is therefore necessary to determine which state of mind applies to a particular external element of a statutorily defined offence once it appears that some mental element is applicable.  The absence of an honest and reasonable but mistaken belief can be the mental state applicable to existing circumstances but only if the prima facie requirement of knowledge is excluded. In Maher v. Musson (1934) 52 CLR 100 , Dixon J. held that, in a charge of having custody of illicit spirits, knowledge of the character of the illicit spirits was not an element of the offence, but he said (at pp.104-105): 

"Nevertheless, in the case alike of an offence 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).  What grounds may exist for excluding this exception as a defence are discussed more at large by Wills J. in that case, and by Wright J. in Sherras v. De Rutzen, and it is clear that inference from subject matter may readily be made a ground of implied exclusion."

And in Proudman v. Dayman where the charge was one of permitting a person, not being the holder of a driving licence, to drive on a road, his Honour said: 

"It is one thing to deny that a necessary ingredient of the offence is positive knowledge of the fact that the driver holds no subsisting licence.  It is another to say that an honest belief founded on reasonable grounds that he is licensed cannot exculpate a person who permits him to drive.  As a general rule an honest and reasonable belief in a state of facts which, if they existed, would make the defendant's act innocent affords an excuse for doing what would otherwise be an offence."

If there are alternative states of mind - knowledge or absence of exculpatory belief - that may apply to circumstances which are external elements of a statutory offence, how is the applicable state of mind to be ascertained? Principally, by reference to the language of the statute and its subject matter. From those sources, the mischief at which the statute is aimed is derived, and the purpose of the statute is perceived.  The purpose of the statute is the surest guide of the legislature's intention as to the mental state to be implied.  The ascertainment of the legislature's intention in the case of a statutory offence is not likely to be any easier than the ascertainment of the relevant mental element in some common law crimes.  The question as to the required state of mind as to non-consent in the crime of rape - "whether the definition of mens rea in rape should be formulated in terms of intention or in terms of belief" (per Bray C.J. in Reg. v. Wozniak (1977) 16 SASR 67, at p 70) - has not received an uniform answer in this country (see, amongst a large number of cases, Reg. v. Sperotto (1970) 71 SR(NSW) 334 and Wozniak).  Substantial arguments support either view and the controversy illustrates the difficulty in ascertaining the true form of mens rea in a particular offence when the legislature has not expressed its intention.  At the moment, consistently with the notion that intent applies to all the circumstances which make an act criminal, the controversy seems to have swung in favour of the Morgan view in the States which have not adopted a Code (Wozniak; Reg. v. McEwan (1979) 2 NSWLR 926; Reg. v. Saragozza (1984) VR 187) despite some reservations that have been expressed in England (see Cowley, "The Retreat from Morgan" Criminal Law Review (1982), p 198) and despite the view adopted under the Code: Re Attorney General's Reference No 1 of 1977 (1979) WAR 45.

This is not the occasion for settling that controversy, for we are concerned with a different offence, statutorily defined, that contains different external elements and that is aimed at a different mischief. Assuming that there are external elements of the offences created by s 233B(1)(b) and (c) which are circumstances attendant on the physical acts of importing and having in possession, it would be necessary to decide whether the purpose of the statute is more consonant with the imposition of criminal liability only if the relevant circumstances are known or with the imposition of criminal liability for doing the physical act unless the person who does it reasonably but mistakenly believes that he is acting in circumstances which, if true, would make his act innocent.  Reynhoudt is an illustration of a similar difficulty encountered in ascertaining what mental element applies to the external elements of a statutory offence.  In that case, the offence was assaulting a member of the police force in the due execution of his duty.  Dixon C.J. concluded that "the intent of the supposed offender must go to all the ingredients of the offence" (at p 386), a conclusion with which Kitto J.  agreed.  The majority (Taylor, Menzies and Owen JJ.), largely under the guidance of long-standing authority on similar provisions, restricted the requirement of intent to the physical act of assault.  Menzies J. noted that intent and the absence of an honest and reasonable but mistaken belief are different conceptions (at pp 399-400). His Honour approached the ascertainment of the required mental state as to whether the person assaulted is a policeman in the due execution of his duty in this way (at p 402): 

"In his History of the Criminal Law of England, (1883) vol 2, pp.116 et seq. Sir James Fitzjames Stephen points out that the effect of ignorance as to a particular matter of fact connected with an alleged offence is a matter that varies with the definition of the particular offences and that where the legislation defining the offence is silent there is little apart from the general scope of the legislation and from the nature of the evils to be avoided to determine whether 'knowingly' is or is not to be implied in the definition of a crime.  Here, I think, for the reasons I have already given, that the indication of the language used is that 'knowingly' is not to be implied and this is borne out by the aim of the legislation, which it may be inferred was to give policemen, whether in uniform or plain clothes, protection and freedom from interference in the discharge of their dangerous duties by imposing an additional penalty upon persons assaulting them who cannot excuse their conduct by proving honest mistake upon reasonable grounds."

Putting aside the onus of "proving honest mistake on reasonable grounds" - Menzies J. thought that the onus "at least initially" was on the defence (at p 399) - his Honour was surely right to direct attention to the general scope of the legislation and the evils to be avoided in ascertaining which presumption applies.  But those indicia may be equivocal.  Dixon C.J., holding that the mental state required in Reynhoudt was "the intention to do the whole act which is prohibited" justified his view by "the nature of the prima facie principle of the common law, the natural application of the principle to the provision and the absence of anything to rebut it" (at p 387).  Where the text of the provision defining the offence, the general scope of the legislation and the nature of the evils to be avoided do not show which state of mind applies, the prima facie principle applies as it was expressed in Turnbull. But where the indicia are not equivocal, the statutory purpose must guide the ascertainment of the mental state.  Of course, that is only a method of approach to the problem, not a solution.  But an illustration of what might be regarded as the approach can be seen in the consideration that has been given to the crime of rape.  If the question whether Morgan should be followed were to arise for decision in this Court, I should think it relevant to consider whether the act involved in the crime includes non-consent as an integral part of the act involved or as an attendant circumstance and, if the latter, whether a woman's freedom to give or withhold consent to extra-marital intercourse is properly protected by holding a man liable to conviction for rape only if he has extra-marital intercourse knowing that the woman is not consenting or whether he should be liable to conviction for rape unless he has at least reasonable grounds for believing and believes that she consents.  The policy of the law, to which Lord Simon of Glaisdale referred in Morgan (at p 221) is a valid consideration when applied to statutory offences as it is when applied to common law offences.

It seems to me to be wrong to describe offences where the absence of an exculpatory belief is the relevant form of mens rea as offences imposing responsibility for negligence (cf. Howard, "Strict Responsibility in the High Court of Australia" Law Quarterly Review, vol 76 (1960), 547, at p 566, cited in Sweet v. Parsley, at p 158).  Criminal liability in cases to which that form of mens rea applies is imposed for the intentional doing of the physical act involved in the offence in circumstances where the supposed offender has no reasonable grounds for believing that his conduct is innocent.  That is a liability imposed for doing the act, not for failing to take care in enquiring into the circumstances.  That kind of criminal liability arises usually when the physical act is of such a kind that it ought not be done unless there are reasonable grounds for believing that the doing of the act is innocent.  That is not to resurrect the discarded division of crimes into the classes mala in se and mala prohibita; rather it is to ascertain whether the statute intends to prohibit the doing of the act involved unless the risk that it is attended by the circumstances which make it criminal can reasonably be thought to be excluded, or whether the statute intends not to prohibit the doing of the act unless it is known to be attended by those circumstances.

In the light of these principles, I turn to consider some of the cases from which the direction given to the jury in the present case was ultimately derived, and which established the principles which led the Full Court to dismiss the appeal.  In Bonnor the majority of a specially constituted Full Court of five judges held, on a charge of bigamy, the onus of proving that the accused honestly and reasonably believed that his former marriage was dissolved rested on him.  There were dicta in Maher v. Musson; Dowling v. Bowie (1952) 88 CLR 248 which supported this conclusion as well as judgments in cases prior to Woolmington.  The majority of their Honours reconciled their conclusion with Woolmington by treating the existence of an exculpatory belief as a special excuse for the commission of the offence.  Thus O'Bryan J., with whose judgment Herring C.J. agreed, said (at pp 247-248) with reference to Woolmington and Mancini v. Director of Public Prosecutions [1942] AC 1 :

"Those cases in relation to the general question of onus of proof in crime do no more than establish that with exception of the sanity of the accused the Crown has the obligation of establishing beyond reasonable doubt every element that goes to constitute the offence charged.  I do not read those cases as saying that, if there is a special excuse (such as mistake) which if in a particular case it exists will exculpate the accused from the penal consequences of an act which would otherwise be a crime, the Crown must negative such excuse in order to establish guilt."

See also per Gavan Duffy J. at p 234.  Barry and Sholl JJ. did not accept that, in bigamy, there was an ultimate onus on the accused to prove a defence of exculpatory belief (pp 257,264).  The placing of the onus on the accused was possible only upon the hypothesis that neither knowledge of the existence of a previous marriage nor the absence of an exculpatory belief was an element of the offence.  The presumption of mens rea in statutory offences is, as we have seen, inconsistent with that hypothesis.  But if, on a true construction of the statute, the presumption of mens rea is excluded so that the offence is proved by proof of the external elements alone, on what principle of statutory interpretation can it be implied that the offender is entitled to acquittal if he proves an exculpatory belief with respect to one of the external elements? So far as Bonnor supports the notion that an exculpatory belief is implied as an excuse in a statute creating an offence, it ought not be followed.  For reasons earlier stated, the absence of an exculpatory belief is now seen as a form of mens rea implied in certain circumstances as an element in a statutory offence the onus of proving which rests on the prosecution.

To require proof of knowledge in cases of drug trafficking has been thought by some to increase unduly the difficulty of securing convictions. This concern was expressed in Gardiner, Hoare J. referring (at p 405) to "the virtual impossibility of proving the state of mind of an importer of narcotic goods in the absence of admissions which would be unlikely to be made by traffickers". Lord Guest described a requirement of knowledge as "a drug pedlar's charter" in Warner (at p 301) in a passage cited by the Court of Criminal Appeal in New South Wales in Bush (at p 319).

A pragmatic concern about unmeritorious acquittals does not warrant the imposition of strict liability.  Such an approach is inconsistent with that expressed by Dixon J. in Thomas v. The King (1937) 59 CLR 279 , at p 309:

"The truth appears to be that a reluctance on the part of courts has repeatedly appeared to allow a prisoner to avail himself of a defence depending simply on his own state of knowledge and belief. The reluctance is due in great measure, if not entirely, to a mistrust of the tribunal of fact - the jury.  Through a feeling that, if the law allows such a defence to be submitted to the jury, prisoners may too readily escape by deposing to conditions of mind and describing sources of information, matters upon which their evidence cannot be adequately tested and contradicted, judges have been misled into a failure steadily to adhere to principle.  It is not difficult to understand such tendencies, but a lack of confidence in the ability of a tribunal correctly to estimate evidence of states of mind and the like can never be sufficient ground for excluding from inquiry the most fundamental element in a rational and humane criminal code."

This passage was given some weight by Lord Reid in his dissenting speech in Warner (at p 274) and, in my view, rightly.

In Gardiner, where the majority imposed strict liability on a charge of importing under s 233B(1)(b), their Honours may have thought the difficulties of proof to be greater than they are.  Knowledge of a thing that is in a bag or packet imported by a person into Australia and of the nature of that thing may be inferred from the fact of importation. In Irving v. Nishimura (1907) 5 CLR 233 , in reference to some opium that was found in the bottom of some tubs brought ashore by the defendant, Griffith C.J. said (at p 237): 

"These goods were undoubtedly unlawfully imported. ... in a case where goods are imported from abroad it is a difficult thing for the importer to say that he does not know what is contained in the packages that are imported, and which he claims as his own.  It is open for him to show that, without his knowledge or consent, some goods that he never desired to have imported have been put in the package, but I think that when goods are imported the fact of importation is sufficient prima facie evidence that the importer knows what is contained in the packages."

Of course, whether an inference of knowledge can properly be drawn in a particular case and whether an evidential burden has passed to an accused to raise a reasonable doubt as to his knowledge depends on the state of the evidence in the case.  There is no rule of law that in all circumstances proof of importation of a container in which prohibited imports to which s 233B applies are found is sufficient to support an inference beyond reasonable doubt that the accused knew of the existence and nature of the prohibited imports that are found in it (cf. Reynhoudt, at p 401).  The nature of the container, the place and circumstances of its consignment to an Australian port, the opportunities of surreptitious interference with it, may affect the strength of the inference or prevent it from being drawn.  If the relevant mens rea were the absence of an honest and reasonable belief, the accused would have to adduce evidence or be able to point to something in the evidence tending to show his belief and reasonable grounds for his belief that there were no prohibited imports to which s 233B applied in the container, in order to raise a reasonable doubt as to the non-existence of that belief (see per Lord Diplock in Sweet v. Parsley, at p 164).

The general principles which I would apply to the interpretation of s 233B(1)(b) and (c) may now be summarized:

1.

There is a presumption that in every statutory offence, it is implied as an element of the offence that the person who commits the actus reus does the physical act defined in the offence voluntarily and with the intention of doing an act of the defined kind.

2.

There is a further presumption in relation to the external elements of a statutory offence that are circumstances attendant on the doing of the physical act involved.  It is implied as an element of the offence that, at the time when the person who commits the actus reus does the physical act involved, he either-

(a)

knows the circumstances which make the doing of that act an offence; or

(b)

does not believe honestly and on reasonable grounds that the circumstances which are attendant on the doing of that act are such as to make the doing of that act innocent.

3.

The state of mind to be implied under (2) is the state of mind which is more consonant with the fulfilment of the purpose of the statute.  Prima facie, knowledge is that state of mind.

4.

The prosecution bears the onus of proving the elements referred to in (1) and (2) beyond reasonable doubt except in the case of insanity and except where statute otherwise provides.

Application of the general principles to s 233B(1)(b) and (c).

The offence of importing under par.(b) of s 233B(1) consists in the importing of "any prohibited imports to which this section applies".  The offence of having in possession under par.(c) consists in having in possession, without reasonable excuse, "any prohibited imports to which this section applies which have been imported into Australia in contravention of this Act".  These provisions were inserted into the Act by s 11 of the Customs Act 1910 (Cth) as part of a new s 233B, which was made to apply "to all prohibited imports to which the Governor-General by proclamation declares that it shall apply" (s 233B(2)).  The present provision inserted by the Customs Act (No 2) 1971 (Cth) defines the prohibited imports to which the section applies as "prohibited imports that are narcotic goods" (s 233B(2)), that is, narcotic goods the importation of which have been prohibited under s 50 (s 51(1)).  (I shall call them simply narcotic goods). The penalties now provided for offences against s 233B(1) are of great severity - in some cases, life imprisonment (see s 235(2)).  These offences are truly criminal in character.

The presumption that some form of mens rea is an element in these offences is strengthened by the severity of the penalty and the enormity of convicting a person of one of these offences if he were innocently ignorant of the contents of a container he had imported or of the nature of a substance that he had imported if the contents or the substance turned out to be narcotic goods. There is, no doubt, a judicial discretion to impose a minimum sentence. In Beaver that circumstance was thought to lessen the weight to be given to the maximum penalty in deciding whether strict liability was imposed (see p 542). But the manifest seriousness with which the legislature has viewed any conviction for one or other of these offences and the public obloquy which is suffered by any person who is convicted of either offence would make it unjust to convict a person who is not blameworthy.  I respectfully agree with the observation of Lord Wilberforce in Warner, at p 309:

"I can say at once that I am strongly disinclined, unless compelled to do so, to place a meaning upon this Act which would involve the conviction of a person consequent upon mere physical control, without consideration, or the opportunity for consideration, of any mental element.  The offence created by the Act is a serious one and even though nominal sentences, or conditional discharges, may meet some cases, there may be others of entirely innocent control where anything less than acquittal would be unjust.  This legislation against a social evil is intended to be strict, even severe, but there is no reason why it should not at the same time be substantially just."

I respectfully agree also with the view expressed by Starke J. in his dissenting judgment in Parsons where he said:

"The proposition that a man may be incarcerated for life for an act which is not accompanied by mens rea is to me so startling that it requires the closest scrutiny of the language of the legislation that is said to produce that result."

Section 233B(1) is clearly a provision in which some form of mens rea is implied.  It is necessary therefore to identify the acts respectively involved in the offences defined in pars.(b) and (c) and to ascertain the form of mens rea applicable to them and to the accompanying circumstances (if any) which are prescribed by those paragraphs.

Importing simpliciter is not an act nor is it defined to be a prohibited act in par.(b).  Importing narcotic goods is an act; it is the act referred to in par.(b).  The character of the act involved in the offence depends on the nature of the object imported.  The paragraph thus impliedly requires an intent to do the prohibited act - importing narcotic goods - and thus requires knowledge of the nature of the object imported.  It is impossible to divide the act involved in an offence under par.(b) into an act and circumstances attendant on its occurrence. The external elements of an offence under par.(b), unlike the offence considered in Reynhoudt, cannot be divided.  An intention "to do the whole act that is prohibited" - the view of Dixon C.J. in Reynhoudt - is, in my opinion, the only view which the language of par.(b) permits.  The "prima facie principle of the common law, the natural application of the principle to the provision and the absence of anything to rebut it" lead to the conclusion that the state of mind required with reference to the object imported is knowledge that it is narcotic goods.  If there were no mental element required with reference to the object imported but merely an intent to perform the physical movements involved in importation, many innocent persons could not escape conviction. The only mental element required in respect of the physical movement of goods into Australia that is involved in importing them is the voluntary bringing in of the goods with the intention of landing them here: Reg. v. Bull (1974) 131 CLR 203 , at pp 220,254.  Therefore an innocent passenger bringing home his baggage, an innocent airline or shipping company bringing in consignments of goods, innocent people unloading freight from aircraft or boats from overseas would be liable to conviction if narcotic goods had been placed by others in the baggage, the consignments of goods or the freight.  Such an operation of the provision could not have been intended.  As their Lordships said in Lim Chin Aik:

"Where it can be shown that the imposition of strict liability would result in the prosecution and conviction of a class of persons whose conduct could not in any way affect the observance of the law, their Lordships consider that, even where the statute is dealing with a grave social evil, strict liability is not likely to be intended."

If, contrary to my opinion, the nature of the object imported were regarded as a mere circumstance attending the importation, I would regard knowledge of the nature of the object rather than an absence of an honest and reasonable but mistaken belief as to its nature to be the relevant state of mind.  An innocent person importing a container which turns out to contain narcotic goods may have had no opportunity of taking precautions to ensure that no narcotic goods were placed in the container.  He may hope that the container is free of narcotic goods but the circumstances may prevent him from honestly and reasonably believing that that is so.  The exigencies of international trade and intercourse strengthen the inference that the Parliament intended that a supposed offender should not be criminally responsible unless he intended to import narcotic goods. That requirement casts on the prosecution the onus of proving, when the narcotic goods are imported in a container, that the supposed offender knew, at the time when he imported the container, that it contained or was likely to contain narcotic goods, or that it contained or was likely to contain an object that was or was likely to be narcotic goods.  No onus of proof with respect to his state of mind rests on an accused person.  It follows that the direction given on this count by Judge Tolhurst was wrong and that Parsons, on which the direction was based, ought not to be followed.

The offence created and defined in par.(c) can be distinguished from the offence of importing in three significant respects.  First, "possession" is a term which implies a state of mind with respect to the thing possessed whereas importing does not.  Secondly, the thing possessed must be not only narcotic goods but narcotic goods "which have been imported into Australia in contravention of this Act", an element which is arguably a mere circumstance attendant on possession of narcotic goods.  Thirdly, a person who would otherwise be criminally liable for an offence under par.(c) is entitled, on proof by him that he had a reasonable excuse, to be acquitted.  These three features warrant separate consideration.

The actus reus of possession is not here in question, but I do not doubt that Nagle J. was right in Bush where he said (at p 316) that what is required is that the narcotic goods "should be physically in the custody or under the control of the accused". In Director of Public Prosecutions v. Brooks [1974] AC 862 , an appeal based on a Jamaican statute that made it an offence for a person to have "in his possession any ganja", the Judicial Committee held that when a person has physical custody or control of ganga the actus reus is established and that the mens rea by which that actus reus must be accompanied is knowledge that a thing is in the offender's physical custody or control and that the thing is ganja (see pp 866,867).  In Warner, on the other hand, the statute made it an offence for a person to have "in his possession a substance ... specified in the Schedule to this Act", and there it was held that the mens rea required was knowledge by the person that he had a substance in his custody or under his control but knowledge of the nature of the substance which he knew to be in his possession was not required.  The question of what mental state is required to constitute an offence of having a prohibited substance in possession is a finely balanced one (Brooks, at p 865) but par.(c) falls on the Brooks side of the line.  Paragraph (c) does not define the offence as possession of a substance - a formulation which arguably restricts the mental element of knowledge to the existence of a thing possessed.  It is not possible to construe par.(c) as containing two elements - the existence of an object and its nature - and to require knowledge of only one of those elements, as in Warner.  The offence is committed only if the supposed offender knows that the object possessed is, or is likely to be, narcotic goods.  The dictum of Barwick C.J. in Bull, at p 220, that knowledge of the nature of the thing possessed is not essential under s 233B(1)(a) is, I respectfully venture to suggest, not supported by the text of par.(a) or the corresponding terms of par.(c) however valid it may be in relation to the text considered in Warner.  The better view is stated by Aickin J. in Williams v. The Queen (1978) 140 CLR 591 , at p 610:

"It is necessary to bear in mind that in possession there is a necessary mental element of intention, involving a sufficient knowledge of the presence of the drug by the accused.  No doubt in many cases custody of an object may supply sufficient evidence of possession, including the necessary mental element, but that is because the inference of knowledge may often be properly drawn from surrounding circumstances."

In Bush, Nagle J. (at p 324) was unable to derive from the word "possession" a mental element which extends any further

"than the intention inherent in de facto possession of such goods, namely, the intention to have exclusive physical control of some article which is in fact narcotic goods or of some article or some place wherein such goods are in fact carried or contained or located.  It is not inherent in that mental element that an accused should know, or suspect, or have reason to suspect, that an item in his de facto possession is narcotic goods."

Nagle J. expressed his understanding of possession having regard to the context of the provision which allows for acquittals on proof of a reasonable excuse. His Honour found in the phrase "without reasonable excuse" the source of relief for innocent possessors.  I find the source of relief in the notion of possession itself.

To require knowledge of the existence and nature of narcotic goods that a person has in his possession gives to par.(c) an operation that is, in practical respects, in harmony with the operation of par.(b).  Paragraph (b) would be largely unnecessary if proof of knowledge under par.(c) were not essential. Possession, not importation, would be the charge more easily pressed against an importer.

The construction of par.(c) is not devoid of authority which bears on the second factor mentioned.  Shortly after the 1910 Act came into force, it was argued in Hill v. Donohoe (1911) 13 CLR 224 that knowledge that the prohibited import had been imported into Australia in contravention of the Act was not an element of the offence created by par.(c).  The argument was rejected by an unanimous Court.  Griffith C.J. said:

"The section, as I am at present advised, means that any person who, without reasonable excuse, has in his possession any prohibited import which to his knowledge has been imported into Australia in contravention of the Act shall be liable, etc." (Emphasis added).

Paragraph (c) has not been altered since 1910, so that the knowledge to which Griffith C.J. referred remains an element of the offence.  The onus of proving that element was altered by the insertion of sub-s(1A) by the Customs Act 1967.  Since 1967, a person charged with an offence under par.(c) has borne the onus of proving that he did not know that the goods in his possession had been imported in contravention of the Act, but sub-s(1A) did not alter the elements of the offence.  If knowledge is required with respect to the element discussed in Hill v. Donohoe - an element that is arguably an attendant circumstance - a fortiori knowledge must be required with respect to the element defined by the words "prohibited imports to which this section applies" and which is an integral part of the possession to which par.(c) refers.  I do not understand the reference to the effect of sub-s(1A) by Gibbs J. in Milicevic v. Campbell (1975) 132 CLR 307 , at p 313, to be inconsistent with this view.  Hill v. Donohoe was distinguished in Poole v. Wah Min Chan (1947) 75 CLR 218 , a case arising under s 233(1)(d) of the Act. But, as Latham C.J. said: 

"Section 233B(1)(c) is a very different provision from s 233(1)(d) read in conjunction with sub-ss.(2) and (3) of that section, and Hill v. Donohoe construing s 233B(1)(c), cannot, in my opinion be regarded as an authority upon the construction of s 233(1)(d)."

Nothing was said to cast doubt on Hill v. Donohoe.

The third factor mentioned is the provision for proof of a reasonable excuse.  Such an excuse is needed to exempt, inter alia, police and customs officers who have such prohibited imports in their possession from time to time in the course of their duty and innocent people who find themselves in possession of narcotic goods either by accident or in consequence of the actions of others.  In Warner there are some passages which suggest that an exempting provision for police officers acting in the course of their duty would have been unnecessary if mens rea were required as to the nature of the thing possessed. Lord Morris of Borth-y-Gest (at p 295) said that no one could say that such a police officer would have "a guilty mind", and Lord Pearce said (at p 305) that the exemption would be unnecessary and absurd unless the Act was intending to penalise those "with no guilty intentions".  But, with respect, mens rea is not excluded because the actus reus is done with a good motive or without an evil motive.  There are some observations in Reg. v. Prince (1875) LR 2 C.C.R 154 which suggest that mens rea connotes that the offender knows that he has no lawful justification or excuse for what he is doing (per Denman J. at pp.178-179) or that what he is doing is wrong - not necessarily illegal but wrong (per Bramwell B. at pp.174-176), but those notions of mens rea cannot now be assented to.  Criminal punishment is not imposed to enforce the civil law, to deter the commission of torts or to suppress immorality; it is imposed to deter the commission of offences.  Brett J. (as he then was) took the view that the required state of mind relates to what makes the offender's act a criminal offence although his Lordship defined mens rea in the form later adopted in Bank of New South Wales v. Piper (see pp 169-170).  His approach accordingly fastened on belief in facts which would if true make the offender's acts no criminal offence at all.  His linking of mens rea to the external elements of the offence was supported by the earlier cases of Reg. v. Green and Bates (1862) 3 F & F 274 (176 ER 123) and Reg. v. Hibbert (1869) LR 1 CCR 184 , to which his Lordship referred, and accords with modern principle.

It follows that an exempting provision is needed to protect persons who, in the course of duty or otherwise acting with innocent motives, would have the mental state required to convict them of an offence under par.(c).  Is the exempting provision intended to go further and to make the absence of any form of mens rea a "reasonable excuse" so that "possession" is no more than physical custody or control of an object which answers the statutory description?  Such a construction would involve a reversal of the onus of proof of mens rea, and that goes against the approach which has marked the administration of the criminal law since Woolmington.  More to the point, the requirement of knowledge of the character of the object possessed flows not from a presumption that mens rea is implied in par.(c), but from the inherent requirement in "possession" of knowledge of what is possessed.  The exempting phrase does not exclude the ordinary connotation of the term "possession".

I would therefore hold that Bush was wrongly decided. On a count of possession under par.(c) the onus is on the prosecution to prove that an accused, at the time when he had physical custody or control of narcotic goods, knew of the existence and nature, or of the likely existence and likely nature, of the narcotic goods in question and that onus is discharged only by proof beyond a reasonable doubt. Again, dependent on the circumstances, proof that narcotic goods are in the physical custody or control of an accused may be sufficient to discharge the onus of proving the knowledge which is an element of the offence.  It follows that the direction given on this count by Judge Tolhurst was wrong and that Ditroia and Tucci on which the direction was based ought not to be followed.  The appeal to the Full Court ought to have been allowed.

The matter has been brought here to decide the questions of principle involved.  It must now be remitted to the Full Court to determine the merits of the appeal in the light of those principles.  I would grant special leave to appeal, allow the appeal, set aside the judgment of the Full Court of the Supreme Court of Victoria and remit the matter to that Court to hear and determine the appeal in accordance with the ruling of the majority in this Court.