He Kaw Teh v R [1985] HCA 43; (1985) 157 CLR 523 (11 July 1985)

HIGH COURT OF AUSTRALIA

HE KAW TEH v. THE QUEEN [1985] HCA 43; (1985) 157 CLR 523

Criminal Law

CATCHWORDS

HEARING

Brisbane, 1985, July 11. 11:7:1985

APPEAL from the Supreme Court of Victoria.

DECISION

(b) imports, or attempts to import, into

Australia any prohibited imports to which

this section applies or exports, or

attempts to export, from Australia any

prohibited exports to which this section

applies; or

(c) without reasonable excuse (proof whereof

shall lie upon him) has in his

possession, or attempts to obtain

possession of, any prohibited imports to

which this section applies which have

been imported into Australia in

contravention of this Act;

...

shall be guilty of an offence."

"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."

3. The argument presented on behalf of the applicant raised some fundamental questions of the law relating to criminal responsibility. It was submitted that the learned trial judge erred in directing the jury that the prosecution had no need to prove that a person charged under s.233B(1)(b) acted with guilty knowledge - in particular with knowledge that the baggage he brought into the country contained narcotic goods. Section 233B(1)(b) does not expressly make knowledge an element of the offence. To "import" simply means to bring into the Commonwealth from abroad - see Lyons v. Smart [1908] HCA 34; (1908) 6 CLR 143, at p 150; Reg. v. Bull [1974] HCA 23; (1974) 131 CLR 203, at p 254. The word "import" does not carry its own connotation of knowledge or intention. If one in fact brings goods into Australia from abroad one imports them, whatever one's intention may be and whether or not one knows their nature or quality. Paragraph (b) does not contain any words - such as "knowingly" - which themselves might reveal that the Parliament intended to make the importation of narcotics an offence only if it was intentionally or knowingly carried out; in that respect it differs from par.(d) of s.233B(1), which makes it an offence to be "knowingly concerned" in the importation of prohibited imports that are narcotic goods.

"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."

5. In deciding whether the presumption has been displaced by s.233B(1)(b), and whether the Parliament intended that the offence created by that provision should have no mental ingredient, there are a number of matters to be considered. First, of course, one must have regard to the words of the statute creating the offence. The words of par.(b) of s.233B(1) themselves contain no clear indication of Parliament's intention. However they stand in marked contrast to pars.(a), (c) and (ca) of the subsection, all of which deal with the possession of prohibited imports in certain circumstances and all of which contain the words "without reasonable excuse (proof whereof shall lie upon him)". The absence of those words from par.(b) suggests that no reasonable excuse will avail a person who imports narcotics. That would lead to an absurdly Draconian result if it meant that a person who unwittingly brought into Australia narcotics which had been planted in his baggage might be liable to life imprisonment notwithstanding that he was completely innocent of any connexion with the narcotics and that he was unaware that he was carrying anything illicit. On the other hand, if guilty knowledge is an ingredient of the offence, it becomes understandable that no excuse should be allowed to a person who has knowingly imported narcotics. This provides an indication, although only a slight one, that by par.(b) the Parliament did not intend to displace the presumption of the common law that a blameworthy state of mind is an ingredient of the offence.

6. The second matter to be considered is the subject matter with which the statute deals. Paragraph (b) of s.233B(1) and the other paragraphs of that subsection deal with a grave social evil which the Parliament naturally intends should be rigorously suppressed. The importation of and trade in narcotics creates a serious threat to the well-being of the Australian community. It has led to a great increase in crime, to corruption and to the ruin of innocent lives. The fact that the consequences of an offence against s.233B(1)(b) may be so serious suggests that the Parliament may have intended to make the offence an absolute one. On the other hand, the subsection does not deal with acts which "are not criminal in any real sense, but are acts which in the public interest are prohibited under a penalty", to repeat the words used in Sherras v. De Rutzen, at p 922, to describe the first of the three classes of exceptions to the general rule which that case laid down. On the contrary, offences of this kind, at least where heroin in commercial quantities is involved, are truly criminal; a convicted offender is exposed to obloquy and disgrace and becomes liable to the highest penalty that may be imposed under the law. It is unlikely that the Parliament intended that the consequences of committing an offence so serious should be visited on a person who had no intention to do anything wrong and no knowledge that he was doing so.

"It is pertinent also to inquire whether putting

the defendant under strict liability will assist in

the enforcement of the regulations. That means

that there must be something he can do, directly or

indirectly ... which will promote the observance of

the regulations. Unless this is so, there is no

reason in penalising him, and it cannot be inferred

that the legislature imposed strict liability

merely in order to find a luckless victim."

8. These indications do not all point in the same direction, but at least they suggest the conclusion that the Parliament did not intend that the offence defined in par.(b) should be an absolute one.

"... assuming his mind to be sufficiently normal

for him to be capable of criminal responsibility,

it is also necessary at common law for the

prosecution to prove that he knew that he was doing

the criminal act which is charged against him, that

is, that he knew that all the facts constituting

the ingredients necessary to make the act criminal

were involved in what he was doing."

10. It can hardly be doubted that a person would not commit an offence against s.233B(1)(b) if he did not intend to import either the narcotics themselves or the container in which they were found. The relevance of intention has been recognized in a number of cases. If goods are carried in a ship which sails within Australian territorial waters or into an Australian port, or in an aircraft which flies over Australian airspace or lands at an Australian airfield, with no intention that they should be unloaded in Australia, and they are not in fact unloaded, they will not be imported in the ordinary sense of the term: Reg. v. Bull, at pp 220, 254. A person may be convicted of an offence against s.233B(1)(b) if he despatches goods to Australia by air from a place outside Australia, with the intention that the goods should be landed in Australia: see White v. Ridley [1978] HCA 38; (1978) 140 CLR 342, especially at p 359. Those cases however do not answer the question whether the offender must know what he is importing, although White v. Ridley proceeds on the assumption that an innocent agent - a person who does not know that he is bringing narcotic goods into the country - will not commit the offence. The critical question is whether it is enough that the offender intended to import a bag or parcel, even though he did not know what it contained, or whether knowledge of the nature, and possibly of the quality, of the prohibited thing imported is an element of the offence. Since, as I have indicated, I find it impossible to suppose that the Parliament intended to make the offence one of absolute liability, the only alternative to a requirement of guilty knowledge (by which I include wilful blindness) is that no mental state is an ingredient of the offence, but that an accused is entitled to be acquitted if he honestly and reasonably believed that he was not carrying narcotic goods.

"At common law an honest and reasonable belief

in the existence of circumstances, which, if true,

would make the act for which a prisoner is indicted

an innocent act has always been held to be a good

defence. This doctrine is embodied in the somewhat

uncouth maxim, 'actus non facit reum, nisi mens sit

rea.' Honest and reasonable mistake stands in fact

on the same footing as absence of the reasoning

faculty, as in infancy, or perversion of that

faculty, as in lunacy."

"It was strongly urged by the respondent's counsel

that in order to the constitution of a crime,

whether common law or statutory, there must be mens

rea on the part of the accused, and that he may

avoid conviction by showing that such mens did not

exist. That is a proposition which their Lordships

do not desire to dispute; but the questions whether

a particular intent is made an element of the

statutory crime, and when that is not the case,

whether there was an absence of mens rea in the

accused, are questions entirely different, and

depend upon different considerations. In cases

when the statute requires a motive to be proved as

an essential element of the crime, the prosecution

must fail if it is not proved. On the other hand,

the absence of mens rea really consists in an

honest and reasonable belief entertained by the

accused of the existence of facts which, if true,

would make the act charged against him innocent."

"The burden of establishing honest and

reasonable mistake is in the first place upon the

defendant and he must make it appear that he had

reasonable grounds for believing in the existence

of a state of facts, which, if true, would take his

act outside the operation of the enactment and that

on those grounds he did so believe. The burden

possibly may not finally rest upon him of

satisfying the tribunal in cases of doubt."

"1. Offences in which mens rea, consisting of some

positive state of mind such as intent,

knowledge, or recklessness, must be proved by

the prosecution either as an inference from

the nature of the act committed, or by

additional evidence.

2. Offences in which there is no necessity for

the prosecution to prove the existence of

mens rea; the doing of the prohibited act

prima facie imports the offence, leaving it

open to the accused to avoid liability by

proving that he took all reasonable care.

This involves consideration of what a

reasonable man would have done in the

circumstances. The defence will be available

if the accused reasonably believed in a

mistaken set of facts which, if true, would

render the act or omission innocent, or if he

took all reasonable steps to avoid the

particular event. These offences may properly

be called offences of strict liability.

3. Offences of absolute liability where it is not

open to the accused to exculpate himself by

showing that he was free of fault."

14. It appears that in Reg. v. Tolson and Bank of New South Wales v. Piper the absence of mens rea was equated with the honest and reasonable but mistaken belief of the accused. Lord Diplock in Sweet v. Parsley, at p 163, and Menzies J. in Reg. v. Reynhoudt [1962] HCA 23; (1962) 107 C.L.R 381, at p 400, viewed the matter in that way. It may be that little turns on the question whether honest and reasonable mistake should be regarded as a special defence available only in cases not requiring mens rea, or as something the absence of which constitutes mens rea. The matter is largely one of words. On either view the words of the statute and the nature of the offence must be considered in deciding what mental state is required, and whether an objective test of reasonableness is to be applied together with the subjective test of whether there was a mistaken belief.

15. I should say immediately that if s.233B(1)(b) does not require the prosecution to prove guilty knowledge, but has the effect that an accused is entitled to be acquitted if he acted with the honest and reasonable belief that his baggage contained no narcotic goods, in my opinion the onus of proving the absence of any such belief lies on the prosecution. Maher v. Musson suggests the contrary, but that case was decided before Woolmington v. The Director of Public Prosecutions [1935] UKHL 1; (1935) AC 462. In Proudman v. Dayman, at p 541, Dixon J. may have intended to say that the accused bore only an evidentiary onus, but his words were somewhat equivocal, and in Sweet v. Parsley Lord Pearce (at p 158) and Lord Diplock (at p 164) understood them in different senses. In some later cases judges still spoke as though the onus of proof lay on the accused: see Dowling v. Bowie [1952] HCA 63; (1952) 86 CLR 136, at pp 141, 149-151; Bergin v. Stack, at p 261 and Reg. v. Reynhoudt, at pp 395-396, 399-400. However it has now become more generally recognized, consistently with principle, that provided that there is evidence which raises the question the jury cannot convict unless they are satisfied that the accused did not act under the honest and reasonable mistake: see Iannella v. French, at pp 110-111; Kidd v. Reeves [1972] VicRp 64; (1972) VR 563, at p 565; Mayer v. Marchant (1973) 5 SASR 567, but cf. Reg. v. Bonnor [1957] VicRp 33; (1957) VR 227. This view has also been accepted in New Zealand: Reg. v. Strawbridge (1970) NZLR 909. As I have said, it is in my opinion the correct view.

16. I am not sure that we can accept the opinion held in Canada that the defence of honest and reasonable but mistaken belief may be raised only in the case of regulatory offences. Thomas v. The King dealt with a crime that was truly criminal (bigamy) and so possibly did Reg. v. Strawbridge (the cultivation of marijuana). However it is more likely that the Parliament will have intended that full mens rea, in the sense of guilty intention or guilty knowledge, will be an element if an offence is one of a serious kind.

17. I have already shown that the offence created by s.233B(1)(b) is treated by the Parliament in some circumstances as being one of the most serious in the criminal calendar. It seems improbable that the Parliament would have intended that it might be committed as a result of mere carelessness, although that would be the case if guilty knowledge was not an element, and an unreasonable although honest mistake would not be sufficient to exculpate the accused. It is true that the penalty of life imprisonment provided by the statute is a maximum one and that a judge who considered that the accused had brought in narcotic goods in the honest but unreasonable belief that his luggage did not contain them would sentence accordingly. Nevertheless, to provide that a sentence of life imprisonment might be imposed for an offence committed merely through negligence would appear to be exceedingly severe. The gravity of the offence suggests that guilty knowledge was intended to be an element of it.

18. Moreover, it is by no means clear that the creation of liability for negligence would give added efficacy to the prohibition of the importation of narcotics. On any view of the effect of the section, if the suspicions of an incoming traveller are aroused, and he deliberately refrains from making any inquiries for fear that he may learn the truth, his wilful blindness may be treated as equivalent to knowledge. If he is given a bag or parcel to carry into Australia in suspicious circumstances, or if there is something suspicious about the appearance, feel or weight of his own baggage, and he deliberately fails to inquire further, the jury may well be satisfied that he wilfully shut his eyes to the probability that he was carrying narcotics and for that reason should be treated as having the necessary guilty knowledge. If he is innocent of complicity in any attempt to import narcotics, and there is nothing to arouse his suspicions, it is difficult to see what action he could be reasonably expected to take to prevent a stranger from secreting narcotics in his baggage. It would have little point to make negligence a ground of liability.

"So far as concerns the first charge in the

indictment, having regard to the subject matter of

the legislation, namely narcotic goods, and the

virtual impossibility of proving the state of mind

of an importer of narcotic goods in the absence of

admissions which would be unlikely to be made by

traffickers, while there is much to be said to the

contrary, it seems to me that the legislature

intended to create the offence by proof of the

actual importing or attempting to import ..."

"In the ordinary use of the word 'possession', one

has in one's possession whatever is, to one's own

knowledge, physically in one's custody or under

one's physical control."

"Possession is a deceptively simple concept. It

denotes a physical control or custody of a thing

plus knowledge that you have it in your custody or

control. You may possess a thing without knowing

or comprehending its nature: but you do not

possess it unless you know you have it."

"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."

21. It would be a misapprehension to think that Williams v. Douglas [1949] HCA 40; (1949) 78 CLR 521 is authority for the view that mere physical custody, without any mental element, amounts to "possession". There it was held that the words "possession or control" in the Gold Buyers Act 1921 (W.A.), as amended, meant "de facto possession and actual control" and that gold bars were in the possession of the defendant although he had hidden them in a communal bathroom some distance from his bedroom. When the Court spoke of "de facto possession and actual control" it was intended to exclude cases of constructive possession, "where the real connection of the accused with the gold was ambiguous and uncertain, and where it would not be fair to throw so great an onus upon him": see at p.526. It was clearly not intended to suggest that a person could have possession of something of whose existence he was unaware. On the contrary, the Court in that case held that the liability of the defendant depended on whether either he, or his accomplice with his knowledge, had hidden the gold: see at pp 527, 528. In Moors v. Burke [1919] HCA 32; (1919) 26 CLR 265, which is discussed in Williams v. Douglas, the defendant was held not to be in actual possession of certain wool suspected of being stolen because he had placed the wool in a locker which was not under his control. It was decided that actual possession meant "the complete present personal physical control of the property to the exclusion of others not acting in concert with the accused" (see at p.274) but this statement did not mean, and the case does not suggest, that knowledge was not a necessary element - in that case of course the defendant had full knowledge of what he had done with the wool.

22. The effect of the authorities to which I have referred is that where a statute makes it an offence to have possession of particular goods, knowledge by the accused that those goods are in his custody will, in the absence of a sufficient indication of a contrary intention, be a necessary ingredient of the offence, because the words describing the offence ("in his possession") themselves necessarily import a mental element. In such a case it is unnecessary to rely on the common law presumption that mens rea is required. The question then is whether the words of the Customs Act contain a sufficient indication that the Parliament intended that knowledge should not be an ingredient of an offence against s.233B(1)(c), notwithstanding the prima facie effect of the words "in his possession". The provisions which might be thought to give such an indication are those of the clause "without reasonable excuse (proof whereof shall lie upon him)" and those of sub-s.(1A).

23. Before I turn to the authorities in which this question has been considered, it is useful to look at the words of the statute themselves. The words of s.233B(1)(c), read in their ordinary grammatical sense, mean that a person commits an offence if he has narcotic goods in his possession, unless he has reasonable excuse. Plainly the words suggest that no question of reasonable excuse arises until it is proved that the accused had possession of the goods. Since possession imports knowledge, "reasonable excuse", which falls to be considered only after possession has been proved, does not include mere lack of knowledge. Such a construction does not make the reference to "reasonable excuse" meaningless or nugatory. A person may have narcotic goods in his possession because he has taken them from an addict and is about to destroy them, or because he has found them and is taking them to the police, or because he is an officer of Customs who has confiscated them, and these circumstances may provide him with reasonable excuse. Subsection (1A) would not appear to bear on the present question. It makes it unnecessary for the prosecution to prove that the accused knew that the goods in his possession had been imported into Australia in contravention of the Act. It does not relieve the prosecution of the burden of proving that the goods were in his possession and that involves proving that he knew of their existence.

"It was necessary for the Crown to prove that he

had de facto possession of the cannabis and this

the Crown did by showing that he took exclusive

physical control of the parcel which in fact

contained cannabis. It was not necessary for the

Crown to prove any further mental element beyond

the intention to acquire such control of the

article in which cannabis was in fact to be found.

When the accused claimed that he did not know, or

suspect, or have reason to suspect, that it

contained cannabis, it was upon him to satisfy the

jury that arising from such a claim as to his

mental attitude he had in all the circumstances a

reasonable excuse for his possession of the

narcotic goods."

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

by implication exclude the exculpatory principle by

which the person charged may prove an honest belief

on reasonable grounds in the existence of

circumstances which, if true, would make innocent

that with which he is charged. But this

exculpation is, we think, encompassed by the terms

of par.(c) when it allows for any reasonable

excuse, proof of which is to lie on the accused."

" ... possession in s.233B(1)(c) means no more than

de facto possession of the narcotic goods concerned

in the sense in which we have considered that

expression, and that the mental element involved

extends no further than the intention inherent in

de facto possession of such goods, namely, the

intention to have exclusive physical control of

some article which is in fact narcotic goods or of

some article or of some place wherein such goods

are in fact carried or contained or located. It is

not inherent in that mental element that an accused

should know, or suspect, or have reason to suspect,

that an item in his de facto possession is narcotic

goods. Accordingly, if narcotic goods are found in

some bag or garment, or in some package or

container, or in some room or place, over which he

has the exclusive physical control appropriate to

de facto possession, he has them in his possession

for the purposes of s.233B(1)(c). A claim by him

that those goods were slipped into his bag or

garment or were inserted into the package or

container or planted in his room or other place

without his knowledge, or suspicion, or reason for

suspicion, are matters which he may establish to

the tribunal of fact as, according to the

circumstances, providing a reasonable excuse for

such possession."

"The words 'without reasonable excuse' are words of

wide import. We see no reason why defences,

answers, justifications or excuses recognized by

the established principles governing criminal

responsibility, such as absence of mens rea,

mistake, insanity, infancy or duress, do not fall

within the ordinary grammatical meaning of those

words."

26. With all respect I am unable to agree with the reasoning which supports the decision in Reg. v. Bush, and the cases which have followed it. The critical question, as I have endeavoured to show, is whether the words of s.233B(1)(c) make knowledge an element of the crime - a question "entirely different" from whether there is an absence of mens rea when the knowledge is not made an element by the words of the statute themselves: see the passage from Bank of New South Wales v. Piper cited above. In answering this question it must be remembered that it has two aspects: first, what the word "possession" ordinarily connotes and secondly, whether there is anything in the statute, or its history, which shows that some other meaning is to be given to the word where it appears in s.233B(1)(c). For the reasons I have already given "possession" connotes knowledge of the existence of the thing possessed. Further, neither the provisions of par.(c) of s.233B(1) nor those of sub.s.(1A) contain any indication either that "possession" is to be given any other than its ordinary meaning or that the onus of proving an element which that meaning necessarily embraces should be cast upon the accused.

"(1) No person shall -

(a) smuggle any goods; or

(b) import any prohibited imports; or

(c) export any prohibited exports; or

(d) unlawfully convey or have in his

possession any smuggled goods or

prohibited imports or prohibited exports.

Penalty: One hundred pounds.

(2) It shall not be lawful for any person to

convey or have in his possession without reasonable

excuse (proof whereof shall lie upon him) any

smuggled goods or prohibited imports.

(3) It shall not be lawful for any person to

convey or have in his possession any prohibited

exports with intent to export them or knowing that

they are intended to be unlawfully exported."

"(i) that submission by counsel for the defendant,

citing in support thereof the cases of Hill v.

Donohoe [1911] HCA 38; ((1911) 13 CLR 224) and Lyons v.

Smart [1908] HCA 34; ((1908) 6 C.L.R. 143) that it is an

element in the offence charged that the

defendant should know that the diamonds found

in his possession were prohibited imports was

upheld by him; and

(ii) that whilst from the untrue account and

evasive answers given by the defendant when

questioned as to his possession it could be

implied that his possession of the said

diamonds was unlawful, there was, in the

magistrate's opinion, no evidence by which a

knowledge could be imputed to the defendant as

to the specific character of the said goods,

that is to say, that they were prohibited

imports."

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

person of goods shall be unlawful if (1) they are

prohibited imports, and (2) he is in such

possession without reasonable excuse, proof of such

excuse to lie upon him. If these conditions are

satisfied the possession is declared by the statute

to be unlawful and it is unnecessary to consider

whether or not the person charged knew that the

goods were prohibited imports. A defendant may be

able to show that he had no reason to believe that

the goods were prohibited imports. Generally, such

proof would provide a reasonable excuse. The

opinion that possession without reasonable excuse

of prohibited imports in itself and independently

of any further mental element consisting in

knowledge that the goods are prohibited imports is

an offence is supported by a consideration of

sub-s.(3). ... In this case the legislature has

defined a mental element the presence of which is

necessary in order to make possession unlawful

under the provisions of sub-s.(3). There is no

corresponding provision in sub-s.(2) relating to

any mental element in the offence except in so far

as a mental element is introduced by the words

'without reasonable excuse' - words which would

entitle the defendant to explain his possession of

the goods by reference to his knowledge or intent.

The onus of proving the existence of a reasonable

excuse is expressly imposed upon the defendant."

"The intention of the Act to create as wide a

presumption as possible of knowledge is disclosed

by the sub-section declaring that it shall not be

lawful for any person to have in his possession

without reasonable excuse (the proof whereof shall

lie upon him) any prohibited imports ...

In my opinion, therefore, the provisions of

s.233 are absolute unless the person in possession

of prohibited goods can establish that he was in

possession thereof under some lawful authority or

was in possession thereof having some reasonable

excuse for that possession, the proof whereof lies

upon him. A reasonable excuse depends upon the

facts established in evidence. The sub-section

contemplates that the person in possession of the

prohibited imports may not establish any legal

justification for his possession and yet have a

reasonable excuse."

28. Hill v. Donohoe, which was distinguished in Poole v. Wah Min Chan, was a decision upon s.233B(1)(c) of the Customs Act which, at that time, provided that any person who "without reasonable excuse (proof whereof shall lie upon him) has in his possession any prohibited imports to which this section applies which have been imported into Australia in contravention of this Act" shall be guilty of an offence against the Act. It was held that it was an element of the offence that the defendant should know that the prohibited imports found in his possession had been imported into Australia in contravention of the Act. The subsequent amendment of the section by the insertion of sub-s.(1A) reversed the effect of that decision.

29. The legislative history of the Customs Act up to 1976 is traced by Mason J. in his judgment in Beckwith v. The Queen [1976] HCA 55; (1976) 135 CLR 569, at pp 578-580. Subsequent amendments do not affect the position. The amendments made to the sections, and the decisions upon them, do not assist the contention of the Crown that knowledge of the existence of the narcotics is not an element of the offence.

"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".

"Applying the section to the foreign trade by sea,

the possession of the cargo is in the master of the

vessel, the right to possession, absolute or

conditional as the case may be, being either in

consignor or consignee as the circumstances

require. Knowledge of the nature of the thing

possessed is not essential to the commission of the

offence under s.233B(1)(a); however much ignorance

of it may exculpate: see Maher v. Musson. It

would, in my opinion, be absurd to construe the

section as making it an offence in the master to be

in possession in the marginal seas of any goods the

importation of which is prohibited."

"Some remarks in Hill v. Donohoe raise the question

whether the statement that the parliament has power

to make it unlawful to have possession of goods

that have been unlawfully imported requires some

qualification to render it correct. In that case

it was held that knowledge is an element of the

offence created by s.233B(1)(c) - a situation since

altered by the addition of sub-s.(1A) to s.233B -

but the court left open the question whether

parliament could validly legislate to make it an

offence for a person to have in his possession

prohibited goods which in fact had been imported,

if he was ignorant of that fact."

32. For the reasons I have given I hold that in a proceeding under par.(b) or par.(c) of s.233B(1) the prosecution bears the onus of proving that the accused knew of the existence of the goods which he brought into Australia, or which were in a suitcase or other container over which he had exclusive physical control, as the case may be. The proper direction on the first charge was that the prosecution had to prove that the applicant brought the suitcase into Australia, knowing that the heroin was in the case. On the second charge the jury should have been told that they could not find that the applicant had the heroin in his possession, unless they were satisfied that he knew that it was in the suitcase. Whether a direction concerning wilful blindness was also necessary depends on the facts, which were not fully before us. It is rather regrettable that a statutory provision which has assumed so great an importance in law enforcement in Australia should present such difficulties of interpretation. However I have no fear that the effect which I have given to the section will prove to be a charter for drug traffickers. If that is wrong, the remedy lies with the Parliament.

33. At first sight it would appear that the misdirection must lead to an order setting aside the conviction and for a new trial. However, the transcript of evidence was not placed before us. The learned trial judge told the jury that they might think that the central issue in the trial was the knowledge of the applicant and there can be no doubt that they found adversely to the applicant on that issue. We are unable to say whether the evidence raised a case so strong that notwithstanding the misdirection no substantial miscarriage of justice occurred. In these circumstances I would grant special leave to appeal, allow the appeal, and refer the matter back to the Full Court of the Supreme Court of Victoria to proceed in accordance with this judgment.

MASON J.: I agree with the reasons for judgment and the orders proposed by the Chief Justice.

WILSON J.: The applicant was convicted, after trial by judge and jury in the County Court of Victoria, of two offences under the Customs Act 1901 (Cth) as amended ("the Act"). The first offence was that on 20 October 1982 at Melbourne he imported into Australia prohibited imports, namely, heroin, contrary to s. 233B(1)(b) of the Act. The second was that on the same day at Melbourne without reasonable excuse he had in his possession prohibited imports, namely heroin, contrary to s. 233B(1)(c) of the Act. The same goods were involved in each offence. The applicant was sentenced to imprisonment for twenty years with a minimum term of seventeen years on the first count and ten years with a minimum term of eight years on the second count, both sentences to be served concurrently. The amount of heroin the subject of these offences was 2.788 kilograms and according to the evidence its street value in Australia was of the order of 5 1/2 million dollars. It goes without saying that the offences were extremely serious.

"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. ... "

"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. ... "

"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.

... "

4. The first submission advanced for the applicant is that guilty knowledge is an element of the offence created by s. 233B(1)(b). In its application to this case the proposition is that in order to establish a prima facie case against the applicant the Crown was obliged to adduce evidence capable of establishing beyond reasonable doubt that he knew that he was importing prohibited goods, namely, heroin. The furthest that Counsel was prepared to go in developing this submission was that the Crown may be permitted to rely upon an evidential presumption in favour of knowledge on the part of the applicant, with the result that unless he adduced evidence of his lack of knowledge of the presence of the prohibited substance in his luggage the jury would be entitled to convict. However, the consequence of his assuming an evidential burden in this way is not to transfer from the Crown the legal burden of persuasion beyond reasonable doubt of all the elements of the charge, including guilty knowledge.

"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. ... "

"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)."

7. In Thomas v. The King [1937] HCA 83; (1937) 59 CLR 279 a majority of the Court held that the common law defence of honest and reasonable mistake of fact was available to a person charged with the crime of bigamy. Latham C.J., at p. 287, discerned a "strong current of authority" from Tolson's Case establishing the proposition that the general rule in all the graver class of crimes is that the accused is not guilty if he had an honest and reasonable belief in the existence of facts which, if they had really existed, would have made innocent the act for which he is charged. The existence of such a belief is equated with the absence of mens rea: see per Dixon J. at pp.304-305, citing Sir Richard Couch in Bank of New South Wales v. Piper (1897) AC 383, at pp 389, 390. It may be observed that there is no discussion in Thomas of any burden resting on the Crown to rebut a defence of mistake. It is taken for granted that it is for the accused person to satisfy the jury that he was honestly and reasonably mistaken. The then recent decision of the House of Lords in Woolmington v. The Director of Public Prosecutions [1935] UKHL 1; (1935) AC 462 was not referred to.

"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."

9. In Hill v. Donohoe [1911] HCA 38; (1911) 13 CLR 224 it was held that knowledge on the part of the defendant that the prohibited imports found in his possession had been imported in contravention of the Act was an element of an offence under s. 233B(1)(c), but this situation has since been altered by the insertion in 1967 of sub-s. (1A) in s. 233B.

10. In Poole v. Wah Min Chan [1947] HCA 37; (1947) 75 CLR 218 the respondent was charged under s. 233(1)(d) of the Act with unlawfully having prohibited imports, to wit, 634 diamonds, in his possession. It was held that knowledge that the diamonds were prohibited imports was not an element of the offence, although if a defendant is able to show that he had no reason to believe that the goods were prohibited imports such proof would provide a reasonable excuse (see per Latham C.J. at p. 227).

11. In Samuels v. Stokes [1973] HCA 62; (1973) 130 CLR 490, the question was whether the respondent was liable to be convicted of the offence of loitering under s. 18 of the Police Offences Act 1953-1972 (S.A.) notwithstanding that a defence may have been available under s. 6 of the Public Assemblies Act 1972 (S.A.). The Court held that it was not for the prosecution as part of its case to negative the application of the latter provision. However, two members of the Court, Menzies J. and Gibbs J., each expressed the view that had the defence been raised the burden of disproving it beyond a reasonable doubt would have fallen upon the prosecution: see per Menzies J. at p 501, citing Mancini v. Director of Public Prosecutions (1942) AC 1, at pp 7-8, 11-13; per Gibbs J. at pp 504-505.

"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] UKHL 1; (1935) AC

462 it always remains for the Crown to establish

guilt however much during the course of a trial

what has been referred to at times as an

evidentiary burden of proof has shifted to the

accused, that is to say, in cases where the Crown's

evidence raises a sufficient prima facie case to

lead to the expectation, particularly where the

facts are in the possession of the accused, that

the accused would provide evidence to negate or

weaken the case which theretofore has been made by

the Crown. But, in the long run, the Crown must

establish guilt."

"... 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."

"In order to present a prima facie case, it is

not necessary for the Crown to establish knowledge

on the part of the accused. In the absence of

evidence to the contrary knowledge on her part will

be presumed, but if there is some evidence that the

accused honestly believed on reasonable grounds

that her act was innocent, then she is entitled to

be acquitted unless the jury is satisfied beyond

reasonable doubt that this was not so."

14. In Kidd v. Reeves [1972] VicRp 64; (1972) VR 563, Menhennitt J. pursued a course of reasoning similar to that followed in Strawbridge. In Mayer v. Marchant (1973) 5 SASR 567 each member of the Full Court of the Supreme Court of South Australia (Bray C.J., Hogarth and Zelling JJ.), in considering the requirements of proof of a summary offence under the Road Traffic Act 1961 (S.A.), examined at some length the course of decision in recent cases, an examination which demonstrated what Zelling J. described as showing "how much the pendulum is swinging back to the reaffirmation of mens rea in summary offences" (p. 587). In the result, the Chief Justice and Zelling J. each concluded that in cases where the defences of mistake or the act of a stranger are available the onus lies on the Crown to negative the defences once the evidential burden has been discharged by the defendant. Hogarth J., while acknowledging the trend of authority, thought it proper to follow Maher v. Musson until the matter is reconsidered in this Court (p. 579).

"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."

"... 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. ... "

17. Having, through the medium of a review of many of the relevant cases, exposed the competing considerations that fall to be considered, it is now possible to proceed to draw some conclusions. The central task is to construe s. 233B(1)(b) of the Act. That task is assisted by a consideration of the history of the section, a history which has seen the maximum punishment for an offence under the paragraph move steadily upwards from imprisonment for two years in 1910 to life imprisonment in 1979, and the passage of amendments from time to time which transfer from the prosecution to the defence the burden of proving certain issues relevant to offences under pars. (c) and (ca) (cf. sub-ss. (1A) and (1B)). Paragraph (b) does not expressly import mens rea as an element of the offence; the word "knowingly" does not appear. Nevertheless, does the presumption referred to by Wright J. in Sherras v. De Rutzen operate? Here the seriousness of the punishment to which an offender is liable is of great materiality. Is it conceivable that the legislature would have created an offence of absolute liability carrying life imprisonment, that is to say, an offence which would be established by proof merely of the importation by the accused of narcotic goods regardless of honest and reasonable mistake or duress or ignorance or the gratuitous act of a stranger or any other reasonable excuse? In considering that question, due regard must be paid to the obvious legislative concern, reflected in the penalty, for the protection of the community from the monstrous evils of the international traffic in heroin and other drugs which are intrinsically nefarious. One cannot lightly dismiss the view of the majority of Gardiner that an offence of absolute liability may be justified by the difficulties that any other conclusion would place in the way of law enforcement officers, particularly if guilty knowledge was required to be established in making out a prima facie case. In some of the cases a conclusion in favour of a presumption of mens rea as an element of an offence under par. (b) has found support in a comparison with the wording of other paragraphs in sub-s. (1). Paragraphs (a), (c) and (ca) expressly import "without reasonable excuse" in the description of the offence created by each of those paragraphs and in each case the onus of proof of any reasonable excuse is expressly placed upon an accused person. However, I find such phrases inconclusive. It may readily be said that the legislature, having expressly placed an onus on an accused person in these paragraphs, supplies a clear inference that in par. (b), where the words do not appear, the legislature intended the onus of proof to remain on the prosecution. But that inference flows only from the presence of the words in parentheses, these being the only words dealing with the question of proof. A competing inference may flow from the express inclusion of the words "without reasonable excuse". These are words which clearly import mens rea into the offences created by the paragraphs in which they appear. The omission of the words from par. (b) could be taken to mean that the legislature intended that in the case of importation no excuse whatever, whether reasonable or otherwise, was to be tolerated. In that case the offence would be one of absolute liability. On the other hand, the presence of subs. (1C) in the section recognizes the possible application of defences otherwise available to the person charged. The section does not form a code complete in itself.

"... 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."

19. This construction seems to me to most satisfactorily meet the competing considerations to which I have referred. The prosecution is relieved of the necessity of looking into the mind of the alleged offender in an attempt to exclude as part of its case possible states of mind that might point to innocence. Proof of the importation of the drug by the accused person will be prima facie sufficient to establish the charge. But an accused person who lacks any guilty intent will have the opportunity of explaining the incriminating conduct and at the end of the day if the jury is left with a reasonable doubt then an acquittal will follow. It ought not to be assumed that the inference of guilty knowledge arising from the importation of a prohibited drug will be lightly erased. On the other hand, if the consequences of this construction prove inimical to the welfare of the Australian community then it will be for a legislature to make its intention clearer. I should add that in the light of the decision in Woolmington and of later authorities I do not think it is possible or desirable to hold that the decision of this Court in Maher v. Musson is determinative of this case. In any event, the seriousness of the offence in Maher v. Musson bears no comparison with an offence under s. 233B(1)(b). It is unnecessary to consider whether the force of that decision remains unimpaired in the case of some minor statutory offences of a strict liability kind which carry a modest penalty. First and foremost it is a question of construction of the particular statute in every case.

20. In my opinion, then, it should now be taken to be the law in Australia that in order to present a prima facie case of an offence under s. 233B(1)(b) of the Act it is not necessary for the Crown to establish guilty knowledge on the part of the accused. In the absence of evidence to the contrary such knowledge will be presumed, but if there is some evidence that an accused person honestly believed on reasonable grounds that his act was innocent then he is entitled to be acquitted unless the jury is satisfied beyond reasonable doubt that this was not so. I have taken the substance of this formulation from the decision of the New Zealand Court of Appeal in Strawbridge (at p. 916). The conclusion is also in line with the opinion of a number of judges within Australia who have had occasion to consider the general problem since Strawbridge: Bray C.J. and Zelling J. in Mayer v. Marchant; Menhennitt J. in Kidd v. Reeves; Demack J. in Gardiner; Starke J. in Parsons (with Young C.J. and King J. declining to endorse the correctness of the opposing view); and finally by members of this Court: Menzies J. and Gibbs J. in Samuels v. Stokes; Barwick C.J., Mason and Aickin JJ. in Cameron v. Holt. It may be desirable to add that I am unable as at present advised to draw a distinction between a defence of honest and reasonable mistake and one of honest and reasonable ignorance of the presence or nature of the goods in question. The conclusion also has the merit of bringing the common law in Australia on the question of honest and reasonable mistake into line with the law in the Code States of Queensland, Western Australia and Tasmania: cf. Brimblecombe v. Duncan, Ex parte Duncan (1958) Qd R 8; Geraldton Fishermen's Co-Operative Ltd. v. Munro (1963) WAR 129. This is an important consideration where the exercise of federal jurisdiction is concerned.

"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."

"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."

"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."

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

25. This leaves the question as to what the Court should do. In my opinion, the questions are of such importance that special leave to appeal should be granted. My conclusion on the question of the onus of proof of an offence under s. 233B(1)(b) has the consequence that the trial judge was in error in directing the jury that it was for the accused man to establish by way of defence that he had an honest and reasonable belief in a state of facts which if they existed would make his act innocent. There was an evidential onus in that respect on the accused but it was for the prosecution to satisfy the jury beyond a reasonable doubt that he did not have that belief. Ordinarily, such a conclusion would require that the conviction be set aside and a new trial ordered. However, it would appear that when sentencing the applicant the trial judge referred to the fact that he was "knowingly acting as a courier". The heroin was concealed in the bottom of the bag which the accused was carrying and its weight was such that the presence of some substance secreted in the bottom of the bag must have been known to him. If these facts were established then this would seem to be an appropriate case for the application of the proviso that enables the Court to dismiss an appeal notwithstanding an irregularity in the conduct of the trial, in the event that it is satisfied that no substantial miscarriage of justice has occurred: Crimes Act, 1958 (Vic.) as amended s. 568(1). The materials are not before the Court to enable a firm conclusion to be made in this regard and in any event no argument has been directed to it. In the circumstances, I would remit the matter to the Court of Criminal Appeal to determine the point. If the Court is not satisfied that there has been no substantial miscarriage of justice, then it will order a new trial.

" 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."

" ... 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 General Principles

" 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] UKHL 1; ((1935) AC 462)). The mental

element that must be present is a state of mind

such as Lord Simon described, in Majewski ((1977)

A.C.443), as 'stigmatised as wrongful by the

criminal law': it is that state of mind which,

when compounded with prohibited conduct,

constitutes the particular offence ((1977) A.C.,

at p 478). As Dickson J. said in Leary v. The

Queen ((1977) 74 DLR(3d), at p 122), 'Society

and the law have moved away from the primitive

response of punishment for the actus reus alone'.

Thus in Bratty v. Attorney-General (Northern

Ireland) ((1963) AC 386, at p 407) the Lord

Chancellor, in describing 'the overriding

principle, laid down by this House in

Woolmington's Case' said, 'that it is for the

prosecution to prove every element of the offence

charged. One of these elements is the accused's

state of mind'".

" There is a presumption that mens rea, an 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

..."

" 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."

" (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."

" 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."

4. It is one thing to say that mens rea is an element of an offence; it is another thing to say precisely what is the state of mind that is required. It is the "beginning of wisdom", as Lord Hailsham of St. Marylebone said in Reg. v. Morgan [1975] UKHL 3; (1976) AC 182, at p 213, to see "that 'mens rea' means a number of quite different things in relation to different crimes". Indeed, it may connote different states of mind in respect of the several external elements of the same crime. If A strikes B and causes him bodily harm, A's moral blameworthiness may depend on whether A moved accidentally, or whether he was unaware that B or anybody else was there, or whether he did not mean to cause bodily harm and could not and did not foresee that he would cause bodily harm. The particular mental states that apply to the several external elements of an offence must be distinguished, not only as a matter of legal analysis, but in order to maintain tolerable harmony between the criminal law and human experience.

5. Moral excuses find counterparts in the categories of mental states that are indifferently described as mens rea and that apply to the several external elements of an offence. Thus, voluntariness and intent are the mental states ordinarily applicable to an act involved in an offence, knowledge or the absence of an honest and reasonable but mistaken belief is the mental state ordinarily applicable to the circumstances in which a relevant act is done or omission is made and, where a mental state is applicable to results, it may be either foresight of the possibility of their occurrence (if recklessness is an element) or knowledge of the probability (or likelihood) of their occurrence or an intention to cause them (if a specific intent is an element). A mental state is inherently hard to define, and the definition of mens rea is beset by problems of terminology. Voluntariness, for example, connotes a number of different mental states: see per Windeyer J. in Ryan, at p.244; it includes a conscious control of bodily movement. Voluntariness in that sense applies to an "act" regarded as a contraction of the muscles (to use Mr Justice Holmes' term in The Common Law (1881), p.54), so that a person is not criminally responsible for an involuntary movement or reflex action. If an "act" is described so as to include the circumstances in which the muscles are contracted, a different state of mind is applicable, ordinarily called "intent". Intent, in one form, connotes a decision to bring about a situation so far as it is possible to do so - to bring about an act of a particular kind or a particular result. Such a decision implies a desire or wish to do such an act or to bring about such a result. Thus when A strikes B (the act) having decided to or desiring or wishing to strike him, it can be said that he intends to strike B. Intent, in another form, connotes knowledge. This appears more clearly if we divide an action, somewhat artificially, into a mere movement and the circumstances that are an integral part of the action and which give it its character. When A strikes B, his action can be divided into A's movement of his fist and B's presence in the path of A's movement. Although A's movement may be voluntary, he is not said to strike B intentionally unless he knows that B (or someone else) is in the path of his moving fist. If mens rea were imported into an offence defined as striking another - a definition that does not include a result - two states of mind would normally be involved: voluntariness of movement and an intention to strike another - and intention is, for all practical purposes, established by knowledge that another person is, or is likely to be, in the path of the movement. If the definition is extended to include a result - causing bodily harm - the statute may prescribe a further mental element: ordinarily a specific or special intent to cause bodily harm.

" ... 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."

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

8. Analysis of the external elements of an offence as a step in the ascertaining of the mens rea required is manifestly necessary when the effect of intoxication arises for consideration, as it often does. In this country, where the decision in O'Connor requires that intoxication be regarded in ascertaining whether mens rea exists, it is essential to bear in mind that different levels of intoxication affect the mind in different ways, and partial intoxication at a particular level may be relevant to the existence of one mental state but not to the existence of another. The level of intoxication that is relevant to whether a movement is voluntary is far greater than the level of intoxication that is relevant to whether a specific intention is formed. Therefore the ascertainment of the criminal responsibility of a partially intoxicated offender depends on a proper identification of the mental state to which the partial intoxication is relevant. That approach is radically different from the approach now adopted in the United Kingdom in Reg. v. Majewski [1976] UKHL 2; (1977) AC 443, and rejected by this Court in O'Connor. The Majewski rule that intoxication is irrelevant to crimes of basic intent is of less significance if basic intent is held to relate merely to the physical act involved in the commission of an offence, but that was not the approach adopted in Morgan. In Morgan, a rape case, the speeches treated the relevant external elements of the crime (sexual intercourse and non-consent) as integral parts of the whole act to which a single mental state (intent) applied. It followed that intent applied not only to the physical act of intercourse but to the element of non-consent.

" ... 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).

" 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'."

" ... 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."

" 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."

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

" 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."

" 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."

" 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."

" 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."

" 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."

" In his History of the Criminal Law of England,

(1883) vol.2, pp.116 et seq. Sir James Fitzjames

Stephen points out that the effect of ignorance

as to a particular matter of fact connected with

an alleged offence is a matter that varies with

the definition of the particular offences and

that where the legislation defining the offence

is silent there is little apart from the general

scope of the legislation and from the nature of

the evils to be avoided to determine whether

'knowingly' is or is not to be implied in the

definition of a crime. Here, I think, for the

reasons I have already given, that the indication

of the language used is that 'knowingly' is not

to be implied and this is borne out by the aim of

the legislation, which it may be inferred was to

give policemen, whether in uniform or plain

clothes, protection and freedom from interference

in the discharge of their dangerous duties by

imposing an additional penalty upon persons

assaulting them who cannot excuse their conduct

by proving honest mistake upon reasonable

grounds."

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

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

" 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."

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

" 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."

" 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."

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.

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

" 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."

" 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".

" Where it can be shown that the imposition of

strict liability would result in the prosecution

and conviction of a class of persons whose

conduct could not in any way affect the

observance of the law, their Lordships consider

that, even where the statute is dealing with a

grave social evil, strict liability is not likely

to be intended."

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

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

" 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."

" 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."

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

" The section, as I am at present advised, means

that any person who, without reasonable excuse,

has in his possession any prohibited import which

to his knowledge has been imported into Australia

in contravention of the Act shall be liable, &c."

(Emphasis added).

" 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)."

33. The third factor mentioned is the provision for proof of a reasonable excuse. Such an excuse is needed to exempt, inter alia, police and customs officers who have such prohibited imports in their possession from time to time in the course of their duty and innocent people who find themselves in possession of narcotic goods either by accident or in consequence of the actions of others. In Warner there are some passages which suggest that an exempting provision for police officers acting in the course of their duty would have been unnecessary if mens rea were required as to the nature of the thing possessed. Lord Morris of Borth-y-Gest (at p.295) said that no one could say that such a police officer would have "a guilty mind", and Lord Pearce said (at p.305) that the exemption would be unnecessary and absurd unless the Act was intending to penalise those "with no guilty intentions". But, with respect, mens rea is not excluded because the actus reus is done with a good motive or without an evil motive. There are some observations in Reg. v. Prince (1875) LR 2 C.C.R 154 which suggest that mens rea connotes that the offender knows that he has no lawful justification or excuse for what he is doing (per Denman J. at pp.178-179) or that what he is doing is wrong - not necessarily illegal but wrong (per Bramwell B. at pp.174-176), but those notions of mens rea cannot now be assented to. Criminal punishment is not imposed to enforce the civil law, to deter the commission of torts or to suppress immorality; it is imposed to deter the commission of offences. Brett J. (as he then was) took the view that the required state of mind relates to what makes the offender's act a criminal offence although his Lordship defined mens rea in the form later adopted in Bank of New South Wales v. Piper (see pp 169-170). His approach accordingly fastened on belief in facts which would if true make the offender's acts no criminal offence at all. His linking of mens rea to the external elements of the offence was supported by the earlier cases of Reg. v. Green and Bates [1862] EngR 156; (1862) 3 F & F 274 (176 ER 123) and Reg. v. Hibbert (1869) LR 1 CCR 184, to which his Lordship referred, and accords with modern principle.

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

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

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

DAWSON J.: Section 233B(1) of the Customs Act 1901 (Cth) creates a number of special offences with respect to narcotic goods. The two offences with which this case is concerned are those of importing narcotic goods (par.(b)) and possessing narcotic goods imported into Australia in contravention of the Act (par.(c)).

2. In relation to the offence of importing narcotic goods into Australia, the question which arises is whether the prosecution has to prove any mental state accompanying the importation. In other words, the question is whether mens rea is an ingredient of the offence to be proved by the prosecution. If it is not, the further question arises whether the offence is one of strict liability which, whilst not requiring the prosecution to prove mens rea in order to make out a case, allows the accused to raise honest and reasonable mistake by way of exculpation. To that extent a mental element is imported into an offence of strict liability short of requiring proof of mens rea by the prosecution. The mistake must involve a belief in a state of affairs which, if true, would make the act of the accused innocent. If the statute in neither of these ways requires any mental state to accompany the importation, then the offence is an absolute one and is complete once the prohibited act of importation is proved. Offences of strict or absolute liability are creatures of statute. The terms strict liability and absolute liability are not always used precisely and sometimes interchangeably, but used as I have used them, they are a convenient way of drawing the distinction to which I have referred.

3. The question whether an offence requires the prosecution to prove mens rea as an ingredient of the offence or whether the extent of the mental element involved is to be found in the defence of honest and reasonable mistake or whether it is an absolute offence, is essentially a question of the interpretation of the statute creating the offence. However, notwithstanding that the question may be stated as simply as that, various observations have been made in the cases about the way in which the task of interpretation should be approached.

4. It is said that the creation of a statutory offence takes place in the wider context of the common law which does require a criminal act to be accompanied by a guilty mind before the crime is complete. The nature of the mens rea required for particular crimes may differ, but it is sufficient to say that at common law criminal conduct must be accompanied by a state of mind or, more precisely, the state of mind which the crime requires. Since a statute is to be construed as far as possible so as to observe principles embedded in the common law, there is support for those who think that there is a strong presumption that in creating a criminal offence the legislature intends a guilty intent appropriate to the nature of the offence to be an ingredient of the offence. See, e.g. Cameron v. Holt (1980) 142 CLR 342, at p 346 per Barwick C.J. On the other hand, the view has been expressed that such a presumption no longer exists with modern statutory offences and that, at most, there is a weak presumption that the legislature intended to create strict liability rather than absolute liability by leaving available the defence of honest and reasonable mistake. See Proudman v. Dayman [1941] HCA 28; (1941) 67 CLR 536, at pp 540-541.

5. The English cases are of limited assistance in this area because the courts there have not taken up the defence of honest and reasonable mistake and see themselves as having to decide between an offence requiring mens rea to be proved as an ingredient and absolute liability which excludes guilty intent entirely. Although there are those in England who have been attracted by what has been called "the half-way house" of strict liability, the concept has not been adopted there. See Sweet v. Parsley [1969] UKHL 1; (1970) AC 132, esp. at pp 150, 158 and 164. This is, perhaps, surprising since the modern application of the concept begins with Reg. v. Tolson (1889) 23 QBD 168 and, in particular, the judgment of Cave J. at p 181. See also Sherras v. De Rutzen (1895) 1 QB 918. But it is unnecessary to pursue the divergent development of the law in England.

6. In this country it is well established by authority that whatever the presumption, if any, that mens rea, to be proved by the prosecution, is an ingredient of a statutory offence, there does exist a presumption that honest and reasonable mistake is to be treated as a ground of exculpation. It is commonly referred to as a defence, and to prove honest and reasonable mistake meant, in a common law setting and at a time when the ultimate burden of proof upon all issues did not rest so positively upon the prosecution, the same thing as establishing the absence of intent: Bank of New South Wales v. Piper (1897) AC 383, at pp 389-390. Since the decision in Woolmington v. Director of Public Prosecutions [1935] UKHL 1; (1935) AC 462, it is for the prosecution to prove beyond reasonable doubt the elements of a crime, including any mental element. That means that honest and reasonable mistake as a composite concept now has a part to play only in statutory offences where the legislature has excluded guilty intent as an ingredient of an offence to be proved by the prosecution, leaving the absence of mens rea to be raised by way of exculpation.

7. Thus at common law, because intent is an ingredient of a crime, it must be proved by the prosecution and a mistaken belief in facts which are inconsistent with the required intent does not have to be based upon reasonable grounds. Either the accused has a guilty mind or he does not, and if an honest belief, whether reasonable or not, points to the absence of the required intent, then the prosecution fails to prove its case. See Reg. v. Morgan [1975] UKHL 3; (1976) AC 182. But the position is different with statutory offences containing no mental element to be proved as an ingredient of the offence. There, if the offence is not one of absolute liability, honest and reasonable mistake survives by implication as a basis of exculpation. It is, therefore, understandable why it continues to be referred to as a defence: it must normally be raised by the accused upon evidence adduced by him. It is also understandable in the current context of statutory interpretation (whatever may have been the explanation in a wider, historical setting) why the mistake to be exculpatory must be not only honest but also based upon reasonable grounds. For it is one thing to attribute to the legislature an intention to retain, as part of an offence, a mental element which does not have to be proved by the prosecution but may be negated by proof of a mistaken belief held upon reasonable grounds. It is another thing to say that the legislature intended a mistaken belief, however unreasonable, to have the same effect. I readily admit that there is an element of rationalization in this explanation, but I think that it puts the emphasis in the right place. The defence of honest and reasonable mistake stems from the common law requirement of a guilty mind and it is not, as it is sometimes put, a defence based solely or even primarily upon the absence of negligence. Cf. Reg. v. Sault Ste. Marie (1978) 2 SCR 1299; Howard C., "Strict Responsibility in the High Court of Australia", Law Quarterly Review, vol. 76 (1960), 547.

8. There is, however, no justification since Woolmington v. Director of Public Prosecutions for regarding the defence of honest and reasonable mistake as placing any special onus upon an accused who relies upon it. No doubt the burden of providing the necessary foundation in evidence will in most cases fall upon the accused. But it is not inconceivable that during the case for the prosecution sufficient evidence may be elicited by way of cross-examination or otherwise to establish honest and reasonable mistake or to cast sufficient doubt upon the prosecution case to entitle the accused to an acquittal. The governing principle must be that which applies generally in the criminal law. There is no onus upon the accused to prove honest and reasonable mistake upon the balance of probabilities. The prosecution must prove his guilt and the accused is not bound to establish his innocence. It is sufficient for him to raise a doubt about his guilt and this may be done, if the offence is not one of absolute liability, by raising the question of honest and reasonable mistake. If the prosecution at the end of the case has failed to dispel the doubt then the accused must be acquitted.

"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."

"Unlike the position where a statute expressly

places the onus of proving lack of guilty knowledge

on the accused, the accused does not have to prove

the existence of mistaken belief on the balance of

probabilities; he has to raise a reasonable doubt

as to its non-existence."

10. Despite the decision in Reg. v. Bonnor [1957] VicRp 33; (1957) VR 227 that the accused has the burden of establishing honest and reasonable mistake on the balance of probabilities, Menhennit J. in Kidd v. Reeves [1972] VicRp 64; (1972) VR 563 (in which Reg. v. Bonnor does not appear to have been cited) held that the ultimate burden of proof, even where the defence relied upon honest and reasonable mistake, lay upon the Crown. In Mayer v. Marchant (1973) 5 SASR 567 a majority of the Full Court of the Supreme Court of South Australia expressed the same view as did the Court of Appeal in New Zealand in Reg. v. Strawbridge (1970) NZLR 909. To the extent that Maher v. Musson is inconsistent with this view it should, I think, no longer be followed.

11. It is against this background that it is necessary to consider the nature of the offence created by par.(b) of s.233B(1) of the Customs Act. Whether or not there is a presumption that mens rea is an ingredient of a modern statutory offence, there are nevertheless accepted rules of construction which point in the same direction. One is that penal statutes are to be construed strictly. Another is that a statute is to be construed as far as possible in conformity with the common law. As Dixon J. put it in Thomas v. The King, at p 304, " ... when a statute introduced into our criminal code a new offence it should be understood prima facie to intend the offence to take its place in a coherent general system and to be governed by the established principles of criminal responsibility." Those principles require, as I have pointed out, a guilty mind as well as a guilty act.

12. Rules of construction must give way to actual expressions of legislative intent, but almost invariably in this context such indications as there are require guilty intent as an ingredient of an offence rather than the contrary. Where some such word as "knowingly" or "wilfully" is used in the description of an offence, there is no difficulty in concluding that guilty intent is required. However, the absence of words such as these, even if the words appear in the description of offences created elsewhere in the enactment, does not mean that an offence is intended to be absolute. See Sherras v. De Rutzen, at p 921.

13. Resort must then be had to the subject-matter or character of the legislation. Attempts have been made to categorize those offences which have been regarded as absolute, but the result is only helpful in a broad sense and the recognized categories cannot be regarded as exhaustive. It is generally accepted that statutes which create offences for the purpose of regulating social or industrial conditions or to protect the revenue, particularly if the penalty is monetary and not too large, may more easily be regarded as imposing absolute liability. This approach may be displaced if to regard an offence as one of absolute liability could not promote the object of the legislation by making people govern their behaviour accordingly. See Lim Chin Aik v. The Queen (1963) AC 160. Conduct prohibited by legislation which is of a regulatory nature is sometimes said not to be criminal in any real sense, the prohibition being imposed in the public interest rather than as a condemnation of individual behaviour. On the other hand, if a prohibition is directed at a grave social evil, the absolute nature of the offence may more readily be seen, particularly if proof of intent would be difficult and would represent a real impediment to the successful prosecution of offenders.

14. Paragraph (b) of s.233B(1) of the Customs Act, which creates the offence of importing narcotic goods, finds itself in company with a number of related offences in the same sub-section in which reasonable excuse is made a defence and the onus of proving that defence is expressly placed upon the accused. Indeed, par.(c), to which it will be necessary to turn shortly, makes it an offence for a person, without reasonable excuse (proof of which lies upon him), to have in his possession any narcotic goods which have been imported into Australia in contravention of the Act. But the absence in par.(b) of any defence of reasonable excuse is equivocal. Reasonable excuse as a defence goes further than honest and reasonable mistake. For example, a person may intentionally seize and possess narcotic goods for the purpose of destroying them and so have a reasonable excuse for possessing them without any mistake on his part. Because reasonable excuse has a broader scope than a mere absence of intent, it is understandable that the accused should bear the ultimate burden of proving it. The fact that this defence is available in the case of related offences created by the same sub-section of the Customs Act does not, to my mind, suggest one way or the other the mental element, if any, which is necessary to constitute the offence of importing narcotic goods created by s.233B(1)(b) unless, perhaps, the absence of a special provision of any kind in that paragraph, having regard to the fact that there is this special provision elsewhere in the same sub-section, indicates an acceptance that the ordinary principles of the criminal law, which require intent, should apply.

15. To import goods is to bring them into the country from abroad: Lyons v. Smart [1908] HCA 34; (1908) 6 CLR 143, at p 150. But if the goods are merely passing through en route to some place outside the country, they are not imported. Thus in Reg. v. Bull [1974] HCA 23; (1974) 131 CLR 203 it was held that goods are not imported into Australia within the meaning of s.233B(1)(b) of the Customs Act until they are landed or brought within the limits of a port with the intention of landing or discharging them. Moreover, importation connotes a commercial purpose or at least an intention to use or consume the goods. Goods would not, to my mind, be imported if they were discovered on board a ship or an aircraft during a journey to Australia and were handed to customs officers on arrival here because their importation was prohibited. I mention these things because it seems to me that it is not possible as a matter of language to speak of importation without introducing some element of purpose or intention. Cf. White v. Ridley [1978] HCA 38; (1978) 140 CLR 342, esp. at p 359. Even though that element of purpose or intention is usually an obvious inference from the surrounding circumstances, mere proof that goods have been brought into the country may, in some circumstances, not be enough.

16. It is difficult, therefore, to conclude that the nature of the offence created by s.233B(1)(b) or its subject-matter is such as to indicate that the legislature intended to relieve the prosecution of the burden of proving any sort of intent. Because the prosecution must at least prove importation, there does not seem to me, in the absence of any indication to the contrary, to be any good reason why I should not conclude that intent as it is ordinarily required by the criminal law is an ingredient of the offence. That is to say, the prosecution is required to prove that the accused intended to do the forbidden act which, in the case of s.233B(1)(b), is importing narcotic goods into Australia. Thus the intent must go not only to the act of importation but also to the nature and quality of the goods imported.

17. The only substantial reasons which there could be for reaching a contrary conclusion are, I think, that the international traffic in drugs is a pernicious evil and that the prosecution of an offence may be rendered more difficult by the requirement that it be proved in this way. Nevertheless the degree of evil involved in individual instances may vary markedly, as is shown by the range of maximum penalties which extend from a fine of $2,000 to imprisonment for life according to the circumstances set out in s.235. Although the offence created by s.233B(1)(b) cannot be regarded as merely regulatory, it encompasses situations the gravity of which may not in all cases call for the same severe approach. On the other hand, it does encompass crimes of the utmost gravity for which the penalty may appropriately be life imprisonment. The harshness of that penalty, however, tends to suggest that no departure from the ordinary principles of common law with regard to the proof of mens rea was intended.

18. Moreover, I do not think that, upon this view, the difficulty of proof will, in practice, be as considerable as might be imagined. Clearly, the fact that an accused has been found bringing narcotic goods into the country may ordinarily found an inference that the goods are being imported intentionally, notwithstanding protestations by the accused that he was unaware of their presence or of their nature or quality. At the very least, proof that the goods were brought into the country by the accused will ordinarily mean that there is a case to answer.

19. In the present case the accused was convicted upon one count under s.233B(1)(b), the trial judge having charged the jury that the prosecution did not have to prove any state of mind or knowledge on the part of the accused. This was in accordance with the decision of the Full Court of the Supreme Court of Victoria in Reg. v. Parsons (1983) 2 VR 499 which, of course, bound the trial judge. That decision followed the decision of the Queensland Court of Criminal Appeal in Reg. v. Gardiner (1981) Qd R 394 in which, however, it was held not only that the prosecution was not required to prove intent but also that it was not obliged to exclude the defence of honest and reasonable mistake of fact. In other words, the view was taken in Reg. v. Gardiner, as I read it, that the offence created by s.233B(1)(b) of importing narcotic goods is one of absolute liability. This extreme view was not adopted by the trial judge, who delivered his charge upon the basis that an honest and reasonable mistake of fact afforded a defence, although he directed the jury that the accused must establish the defence on the balance of probabilities. I have expressed my views concerning the onus of proving such a defence and it will be clear that, in my opinion, the direction of the trial judge was in error in this latter respect. I should add, however, that it was in accordance with the decision of the Full Court in Reg. v. Bonnor, by which the trial judge was also bound. In any event, in view of the conclusion which I have reached that s.233B(1)(b) requires the prosecution to prove an intentional importation of narcotic goods, honest and reasonable mistake did not, in my opinion, for the reasons which I have explained, arise as a distinct defence or ground of exculpation as it does with offences of strict liability.

20. The other count of which the accused was convicted was that of having in his possession, without reasonable excuse, narcotic goods imported into Australia in contravention of the Customs Act. That offence is created by par.(c) of s.233B(1). As I have said, the paragraph places the onus of proving reasonable excuse upon the accused. The defence of reasonable excuse is, as pointed out earlier, wider than that of honest and reasonable mistake. It must, however, include honest and reasonable mistake, for in my view it is not possible to envisage an honest and reasonable mistake of the relevant kind which would not at the same time constitute a reasonable excuse for the possession of narcotic goods. The effect of this is to extinguish honest and reasonable mistake as a separate defence and, if it is relied upon as constituting a reasonable excuse within the meaning of the paragraph, to place the onus of proof upon the balance of probabilities upon the accused. Another aspect of the mental element which might otherwise be required by par.(c) is also dealt with by the statute. Section 233B(1A) provides that in any prosecution under par.(c), it is not necessary for the prosecution to prove that the accused knew that the relevant goods had been imported into Australia in contravention of the Act but that it is a defence if he proves that he did not know that the goods had been imported into Australia in contravention of the Act.

21. In these two respects the legislature has made express provision for the mens rea which is required to accompany the offence of possession of narcotic goods created by par.(c) and it is fair, I think, to draw the inference that it has not sought otherwise to limit the burden upon the prosecution or to impose any additional burden upon the accused. In particular, the paragraph requires proof of possession and there can be no doubt that the onus of proving possession rests upon the prosecution.

"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."

"If a man has something put into his pocket without

his knowledge, he cannot be charged with having it

unlawfully in his possession, if that fact

appears."

" ... simply having at the time, in actual fact and

without the necessity of taking any further step,

the complete present personal physical control of

the property to the exclusion of others not acting

in concert with the accused, and whether he has

that control by having the property in his present

manual custody, or by having it where he alone has

the exclusive right or power to place his hands on

it, and so have manual custody when he wishes."

25. Similarly, in Williams v. Douglas [1949] HCA 40; (1949) 78 CLR 521, where a guest in an hotel was held to have in his possession gold bars which he had secreted behind an outlet under the bath in a communal bathroom, the term "de facto possession" (which was said to mean much the same thing as actual possession) was used by the majority to distinguish constructive possession and to extend possession beyond the notion of having something presently in one's hands. Once again it is implicit in the majority judgment that knowledge is necessary before there can be possession in law and the facts of the case indicate that the majority had this in mind.

"In the ordinary use of the word 'possession,' one

has in one's possession whatever is, to one's

knowledge, physically in one's custody or under

one's physical control."

27. The difficulty arises because a person may knowingly have custody or control of a receptacle containing a substance but be ignorant of the existence of the substance or of its presence in the container. He may, on the other hand, know of the presence of the substance, as when he has custody or control of a package which he knows contains something, but have no knowledge of the physical nature of the contents other than might be suggested by the form of the package. Then again, he may be aware of the obvious physical attributes of the contents but be ignorant of their quality; for example, he may not know that they are a narcotic substance rather than some innocuous substance.

"It would, I think, be an improvement of a

difficult position if Parliament were to enact

that when a person has ownership or physical

possession of drugs he shall be guilty unless he

proves on a balance of probabilities that he was

unaware of their nature or had reasonable excuse

for their possession."

29. Put quite plainly, I think that the proper construction of par.(c) is one which attributes to the concept of possession as it is used there, the bare minimum of knowledge. To construe the paragraph in that way is to recognize that in law knowledge is intrinsic to possession, but that the degree of knowledge required may vary according to context. The context of par.(c) is one in which the legislature has expressly dealt with intent other than by spelling out what is meant by possession and has done so in a way which indicates that it did not intend an extension of that concept beyond the requirements of basic legal principle.

30. This approach results in a slightly more restrictive view of the knowledge needed for possession than was adopted by the House of Lords in Warner's Case. After the decision in Warner's Case, a new Act was passed providing, in effect, for a limited defence of reasonable excuse and placing the onus of proof on the accused. In Reg. v. Ashton-Rickardt (1978) 1 WLR 37; (1978) 1 All ER 173 it was held that this did not alter the onus resting upon the Crown to prove knowledge in order to establish possession as laid down in Warner's Case. But the change in the legislation was made in the light of the decision in Warner's Case and something more explicit was needed to alter the meaning of possession as it had been construed by the House of Lords. The history of s.233B(1) of the Customs Act is different (see Beckwith v. The Queen [1976] HCA 55; (1976) 135 CLR 569, at pp 579-580) and the presence from the beginning of reasonable excuse as a defence in those paragraphs dealing with possession justifies, in my view, a different approach.

31. In my view, it comes to this. A person cannot, within the meaning of par.(c), possess something when he is unaware of its existence or presence. But he will, since possession is used in its barest sense, possess something if he has custody or control of the thing itself or of the receptacle or place in which it is to be found provided that he knows of its presence. He need not know what it is (other than to the extent necessary to know of its presence) nor its qualities. Thus a person will possess narcotic goods if he has, to his knowledge, custody or control of something which is in fact a narcotic substance, even if its packaging prevents him from knowing what it is and even if he does not know its quality as a narcotic substance. If, of course, he does not know what it is or does not know that it is a narcotic substance, he may have a defence of reasonable excuse under par.(c), but to point this out is only to emphasize that the use of the concept of possession in that paragraph was not intended to cover ground which would otherwise be covered by the defence expressly provided.

" ... no more than de facto possession of the

narcotic goods ... and that the mental element

involved extends no further than the intention

inherent in de facto possession of such goods,

namely, the intention to have exclusive physical

control of some article which is in fact narcotic

goods or of some article or some place wherein such

goods are in fact carried or contained or located.

It is not inherent in that mental element that an

accused should know, or suspect, or have reason to

suspect, that an item in his de facto possession is

narcotic goods. Accordingly, if narcotic goods are

found in some bag or garment, or in some package or

container, or in some room or place, over which he

has the exclusive physical control appropriate to

de facto possession, he has them in his possession

for the purposes of s.233B(1.)(c). A claim by him

that those goods were slipped into his bag or

garment or were inserted into the package or

container or planted in his room or other place

without his knowledge, or suspicion, or reason for

suspicion, are matters which he may establish to

the tribunal of fact as, according to the

circumstances, providing a reasonable excuse for

such possession."

33. The decision in Reg. v. Bush was considered by a special court of five judges in Reg. v. Rawcliffe (1977) 1 NSWLR 219 and the passage which I have cited was approved. In Reg. v. Kennedy (1979) 25 ALR 367 the New South Wales Court of Criminal Appeal again affirmed the approach taken in Reg. v. Bush, although Roden J., who expressed disapproval of that approach, felt able to distinguish the case and also Reg. v. Rawcliffe upon the facts. Reg. v. Bush was also followed in Victoria in Reg. v. Ditroia and Tucci [1981] VicRp 28; (1981) VR 247 and in Queensland in Reg. v. Gardiner.

34. I am bound to say that I cannot accept the formulation propounded in Reg. v. Bush of the meaning of possession in s.233B(1)(c) of the Customs Act. If de facto possession means possession without any knowledge of the thing said to be possessed (and that is not the way the expression was used in Williams v. Douglas), then it is a concept which is alien to the notion of possession which has hitherto prevailed, at all events in the criminal law. It has never been the position that a person can be in possession of something of which he knows nothing and par.(c) does not suggest anything different. As I have said, the availability of the defence of reasonable excuse justifies the conclusion that knowledge, admittedly a matter of degree, was intended to be limited to the minimum by the paragraph. But to go further would amount to more than a refusal to read into the paragraph a requirement of knowledge; it would be to read out a requirement which is already there. I do not think that such a result can be justified by any of the accepted principles of construction.

35. In neither Hill v. Donohoe [1911] HCA 38; (1911) 13 CLR 224 nor Poole v. Wah Min Chan [1947] HCA 37; (1947) 75 CLR 218, where this Court dealt with comparable provisions creating offences which were dependent upon possession, was the requirement of knowledge as the basis of possession denied. In Reg. v. Bull, Barwick C.J., who was in dissent, made an observation at pp 220-221 about s.233B(1)(a) of the Customs Act. That paragraph creates the offence of having, without reasonable excuse (proof of which lies on the accused) possession on board any ship or aircraft any prohibited imports to which the section applies. His Honour expressed the view that proof of the offence does not require proof of knowledge of the nature of the thing possessed. It is not entirely clear what his Honour meant by "the nature of the thing possessed" but the passage in question may be read consistently with the view which I have expressed, namely, that possession of something requires no more than that the accused should know that he has custody or control of that thing, even if he does not know what it is. Certainly Barwick C.J. was not suggesting that knowledge of the presence or existence of the thing said to be possessed is unnecessary.

36. Since the trial judge charged the jury in relation to s.233B(1)(c) that possession meant no more than physical custody or control of a thing, there was, in my view, a misdirection, although the direction was in accordance with authority.

37. I would grant special leave to appeal, allow the appeal and, for the reasons given by the Chief Justice and Wilson J., remit the matter to the Full Court to proceed in accordance with the judgment of the Court.

ORDER

Appeal allowed.

Order that the judgment of the Full Court of the Supreme Court of Victoria sitting in its criminal jurisdiction be set aside and that the matter be remitted to that Court to proceed in accordance with the judgment of this Court.