Attorney-General's Reference No 1 of 2022
[2024] TASCCA 2
•27 February 2024
[2024] TASCCA 2
| COURT: | SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL) |
| CITATION: | Attorney-General's Reference No 1 of 2022 [2024] TASCCA 2 |
| PARTIES: | ATTORNEY-GENERAL'S REFERENCE NO 1 OF 2022 |
| FILE NO: | 2242/2022 |
| DELIVERED ON: | 27 February 2024 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 2 March 2023 |
| JUDGMENT OF: | Pearce J, Martin AJ |
| CATCHWORDS: |
Firearms – Offences – Firearms Act 1996 (Tas) – Trafficking in firearms contrary to s 110A – Section 110A creates a conclusive presumption which may not be rebutted.
Firearms Act 1996 (Tas), s 110A.
Aust Dig Firearms [1043]
REPRESENTATION:
Counsel:
Appellant: J Shapiro Respondent: C Scott
Solicitors:
Appellant: Director of Public Prosecutions Respondent: Friend & Edwards Lawyers
| Judgment Number: | [2024] TASCCA 2 |
| Number of paragraphs: | 69 |
Serial No 2/2024
File No CCA 2242/2022
ATTORNEY-GENERAL'S REFERENCE NO 1 OF 2022
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL PEARCE J MARTIN AJ |
27 February 2024
Order of the Court:
Question referred for determination:
"Was the learned trial judge wrong in law in holding that s 110A(2) of the Firearms Act 1996
creates a rebuttable presumption?"
Answer:
"Yes"
Serial No 2/2024
File No CCA 2242/2022
ATTORNEY-GENERAL'S REFERENCE NO. 1 OF 2022
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL PEARCE J 27 February 2024 |
1 Lachlan Taylor was charged with unlawful trafficking in firearms contrary to the Firearms Act 1996, s 110A. By s 110A(1) a person is guilty of an indictable offence if the person "traffics in firearms without lawful excuse". Sub-section (2) provides that, if certain facts are proved, a person is "taken to traffic in firearms without lawful excuse." In accordance with rulings made prior to and during Mr Taylor's trial, the learned trial judge, Wood J, directed the jury that the effect of s 110A(2) was to create a presumption which may be rebutted by an accused: Tasmania v Taylor [2021] TASSC 39 and Tasmania v Taylor [2022] TASSC 57. Mr Taylor was acquitted. Following the trial the Attorney, in accordance with the Code, s 388AA, referred the following question of law to this Court:
"Was the learned trial judge wrong in law in holding that s 110A(2) of the Firearms
Act 1996 creates a rebuttable presumption?"
2 The reference was heard by a court constituted by Geason J, Martin AJ and me on 2 March 2023. The Court of Criminal Appeal is duly constituted by three or more judges. It may be duly constituted by two judges, but only if none of the parties object: Criminal Code, s 400(1). Before judgment was delivered doubt arose about whether Geason J was able to continue on the Court. On 26 February 2024, the parties agreed that the reference be determined a Court constituted by the remaining two judges. I have had the advantage of reading the reasons of Martin AJ in draft form. I agree that, for the reasons given by his Honour, s 110A(2) of the Firearms Act creates a conclusive presumption which cannot be rebutted by an accused. The question posed by the reference should thus be answered in the affirmative. That answer was announced to the parties on 26 February 2024. I would add a further observation.
3 The question of the operation of s 14 of the Criminal Code arose in the following way. In the course of argument, counsel for the Attorney submitted that the conclusion that s 110A(2) does not create a rebuttable presumption is easier to reach because an accused person may still rely on the operation of s 14. That is, the accused may, notwithstanding the terms of s 110A, avoid criminal liability if he or she acted on an honest and reasonable belief in a state of facts which, if they existed, would make the act of the accused innocent. However that contention must fail if the effect of s 110A(2) is to create an irrebuttable presumption that the accused acted "without lawful excuse" and honest and reasonable mistake of fact is properly characterised for this purpose as an "excuse". The result, in that case, would be that s 110A would create an offence of absolute liability: He Kaw Teh v The Queen (1985) 157 CLR 523 at 590. Such a construction ought not to be adopted absent a clear indication, either express or by necessary implication, of that legislative intention: CTM v The Queen [2008] HCA 25, 236 CLR 440 per Gleeson CJ, Gummow, Crennan and Kiefel JJ at [7], Kirby J at [61], and Hayne J at [146] and [148]. That question is directly relevant to whether s 110A should be construed as creating a rebuttable presumption.
4 However, for the reasons advanced by Martin AJ, s 110A does not exclude the operation of s
14 of the Code.
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ATTORNEY-GENERAL'S REFERENCE NO. 1 OF 2022
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL |
MARTIN AJ
27 February 2024
Introduction
5 Mr Lachlan Taylor was found not guilty by a jury of Trafficking in Firearms contrary to s 110A(2) of the Firearms Act 1996 (the Act). Wood J directed the jury that the defendant was taken to have trafficked in firearms without lawful excuse if he carried out particular activities with respect to firearms unless Mr Taylor, on the balance of probabilities, proved he was not trafficking. The learned trial judge rejected a contention that a presumption found in s 110A(2) was conclusive and not open to rebuttal by the accused.
6 By notice dated 24 August 2022, the Honourable the Attorney-General referred the following question of law to the Court of Criminal Appeal for determination:
"Was the learned trial judge wrong in law in holding that s 110A(2) of the Firearms
Act 1996 creates rebuttable presumption?"
7 For the reasons that follow my answer to the question is "yes"; the learned trial judge erred in directing the jury that it was open to the accused to rebut the presumption by proving, on the balance of probabilities, that he was not trafficking. However, the presumption in s 110A(2) does not exclude the operation of s 14 of the Tasmanian Criminal Code. If the issue of honest and reasonable mistake of fact is raised on the evidence, the Crown bears the onus of negativing such mistake beyond reasonable doubt.
Background
8 Section 110A of the Act was inserted by the Firearms Amendment Act 2007, which was passed
on 13 November 2007:
"110A Unlawful trafficking in firearms
(1) A person is guilty of an indictable offence punishable under the Criminal Code
if the person traffics in firearms without lawful excuse.(2) For the purposes of subsection (1), a person is taken to traffic in firearms without lawful excuse if –
(a) the firearms are registrable firearms; and (b) the firearms are not registered or the person is not the registrant of the firearms; and (c) on one or more occasions, the person carries out one or more of the following activities: (i) sells or otherwise disposes of the firearms to any other person (whether or not that other person is in Tasmania);
(ii) receives or delivers the firearms from or to any other person (whether or not that other person is in Tasmania);
(iii) modifies, prepares or packs the firearms for sale or delivery to any other person (whether or not that other person is in Tasmania);
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(iv) conveys the firearms from one place to another;
(v) has possession of, or conceals, the firearms for or in connection with an activity referred to in subparagraph (i),(ii),(iii) or (iv) .
(3)
Without restricting the generality of the expression "possession", a person is taken to be in possession of a firearm for the purposes of this section so long as it is on any premises owned or occupied by the person, unless the person proves that he or she had no knowledge of the firearm being on those premises.
(4) In this section – premises includes –
(a) an area of land, whether built on or enclosed; and (b) a building or a part of a building, whether permanent or temporary; and (c) a structure or a part of a structure, whether permanent or temporary; and (d) a vehicle;
registrable firearms means firearms that, by virtue of section 74(1), a person must not
sell, acquire, possess or use unless they are registered;
vehicle means anything capable of transporting people, objects or materials by air, road,
rail or water, regardless of how the thing is moved or propelled."
9 In October 2020 police searched the defendant's home and found an air rifle and a home-made .22 pistol. The defendant admitted purchasing the pistol, which he placed in a plastic case and hid in the centre console of his car. He also admitted purchasing the air rifle, which he placed in a bag and drove to a location where he tested the weapon. The air rifle did not work, and the defendant took it home and hid it in his garage.
10 By an indictment dated 21 April 2021, Mr Taylor was charged with Unlawful Trafficking in Firearms contrary to s 110A(1). The charge was based on Mr Taylor's admissions that he received the pistol and air rifle from other persons and conveyed those firearms from one place to another. Subsequently Mr Taylor pleaded guilty before Wood J but, having heard the facts, her Honour vacated the pleas. Importantly, there was no suggestion of a commercial context. The prosecution accepted that the conveyance of the weapons in the car was solely for personal purposes. There was no suggestion of any intention to distribute the weapons either by selling them or passing them on to another person.
11 The prosecution relied on the presumption in s 110A(2) that in conveying the weapons, Mr Taylor was "taken to traffic in firearms without lawful excuse". However, in directing that the plea be vacated, the trial judge found that the admitted facts were not capable of amounting to the offence of unlawfully trafficking in firearms contrary to s 110A(1) of the Act. In her Honour's view, the admitted facts rebutted the presumption found in s 110A(2).
12 Notwithstanding the ruling, subsequently the Director of Public Prosecutions presented Mr Taylor for trial upon the same charge and urged the trial judge to change her ruling. Her Honour declined to do so and directed the jury in the following terms:
"If the jury is satisfied beyond reasonable doubt that:
(i) the two firearms were registrable firearms; and
(ii) the two firearms were not registered, or the accused was not the registrant of the firearms; and
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(iii) on or more occasions, the accused carried out one or more of the particular activities, namely that he:
- received the firearms from any other person; - conveyed the firearms from one place to another
then the accused is taken to have trafficked in firearms without lawful excuse, unless
the accused, on the balance of probabilities, proves he was not trafficking."
13 As to trafficking, the following direction was given:
"Trafficking means to 'deal' in or 'trade' in. Trafficking is the process of movement from the manufacturer or source to the consumer for commercial gains. Everyone who knowingly participates in the chain of distribution is trafficking. If the accused was
the purchaser of the firearms and he intended to keep them, then he was not
trafficking." (my emphasis)
Trial Judge - Ruling
14 In summary, the Crown advanced the following propositions:
• Section 110A(2) creates a conclusive presumption that if certain facts are proved, the person is taken to have trafficked contrary to s 110A. Such an interpretation is consistent with the legislative intention to make the crime easier to prove than the offence of trafficking at common law. • Unlike the common law, the Act does not require that the relevant conduct occur in a commercial context. Mere possession is not taken to be trafficking. The focus is on the movement of firearms from one person to another. This focus is consistent with the purpose of the Act to reduce the danger implicit in firearms and movement of firearms from one person to another. • The ordinary meaning of the words in s 110A, in the context of the Act and its history, does not suggest any rebuttable presumption exists. If the legislature had intended to create a rebuttable presumption, it would have done so expressly as it did in s 110A(3). • To interpret the words "taken to be" as creating a rebuttable presumption results in an inconsistent use of that term within the provisions of the Act. • The inclusion of selling a firearm in s 110A(2)(c)(i) is inconsistent with the creation of a rebuttable presumption, but is consistent with s 110A defining the crime. 15 The trial judge delivered two sets of reasons[1]. Her Honour correctly identified the issue as one of "construction and examination of the intention of the legislature", having regard to the words of the section and the context of the statute as a whole. Her Honour considered the ordinary meaning of the word "traffic" and the common law requirement that trafficking involved participation in the chain of distribution. Having noted that if the ordinary meaning of trafficking were to apply Mr Taylor would be not guilty, the trial judge said:
[1] Tasmania v Taylor [2021] TASSC 39; Tasmania v Taylor [2022] TASSC 57
"12
It can be seen that s 110A(2) does not substitute or create a different meaning of trafficking, in the sense of a statutory fiction. Rather, it acknowledges or references the ordinary meaning and then provides for certain conduct to be 'taken to be' trafficking. Certain 'activities' are taken to be trafficking in firearms without lawful excuse, notwithstanding that the activity need not
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amount to trafficking within the ordinary meaning. It can be seen that the list of 'activities' is particularly broad and includes activities such as receiving (involving taking possession) or conveying firearms."
16 The trial judge then considered authorities with respect to the interpretation of the words "is to be taken to be", recognising that the expression is a "reasonably common drafting device in modern statutes creating a form of deeming provision". Her Honour noted, from the authorities, the importance of assessing the statutory purpose for which the expression was used;
"15 In Macquarie Bank Ltd v Fociri Pty Ltd (above) the New South Wales Court of Appeal considered a deeming provision in the Companies (New South Wales) Code. Gleeson CJ at 207-208 made some general observations about the task of construing deeming provisions. It was noted that commonly, there may arise a question of construction which turns upon a view concerning the statutory purpose for which it has been used. It was said: 'Such a question may turn, for example, upon whether the legislature is intending to create a statutory fiction or whether, on the other hand, it is merely making a provision for the removal of doubt which might otherwise exist: see, eg Muller v Dalgety & Co Ltd (1909) 9 CLR 693 at 696 per Griffith CJ.'
17 Gleeson CJ went on to note, relevantly for this case that:
"There is another issue that sometimes arises where Parliament has enacted a deeming provision. In some cases, a court may conclude, as a matter of construction, that the consequence which is deemed to follow is only in the nature of a rebuttable presumption; a certain state of affairs will be presumed unless and until the contrary is proved: see eg. Consolidated School District of St Leon Village No 1425 v Ronceray (1960) 23 DLR (sd) 32; Credit foncier Franco-Canadien v Bennett (1963) 43 WWR 545."
18 After referring briefly to Canadian authorities, the trial judge cited the judgment of King CJ in R v Billick (1984) 36 SASR 321. The Chief Justice was concerned with a deeming provision in the Narcotic and Psychotropic Drugs Act 1934-1978 (SA) which was expressed as a rebuttable presumption, but Her Honour referred to general considerations discussed by the Chief Justice:
"19 The judgment of King CJ referred to general considerations that apply to the
task of construing deeming provisions in penal statutes:'The word 'deemed' is used in statutes in more than one sense. In the sub-section under consideration it is used to create a rebuttable statutory presumption of the existence of a fact irrespective of the existence of that fact in reality. The result may be a statutory fiction. In construing a provision of that kind, 'it is very important to consider the purpose for which the statutory fiction is introduced': Muller v Dalgety & Co Ltd 7, per Griffith CJ at p 696; In re Coal Economising Gas Company (Gover's Case) 8; Beale on Cardinal Rules of Statutory Interpretation, 3rd ed p 479. Where, as here, the fact which is deemed to exist, is a criminal state of mind, it is particularly necessary, in my view, to ascertain the purpose for which the presumption is created, and to construe the statutory provision in a way which confines the operation of the presumption, to the attainment of that purpose.'
20
Later, in a similar vein, King CJ stated 'When a legislature creates a presumption of fact having possible penal consequences, it takes a serious step. It attributes to a citizen some act or state of mind possibly contrary to the truth of the matter.' This point and the discussion that continued, reinforces the need to restrict the operation of the presumption to the purpose attributed to the legislature.
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21 This line of authority highlights that whether or not a provision, which on its face appears to be deeming, should be construed as creating a rebuttable presumption is one of construction and examination of the intention of the legislature. Whether s 110A(2) creates a rebuttable presumption depends on the proper construction of the statute and the relevant legislative intent and purpose for which the provision was enacted. See s 8A of the Acts Interpretation Act 1931."
19 The trial judge considered s 110A in the context of other provisions within the Act creating indictable offences relating to firearms. While capable of attracting significant penalties, including terms of imprisonment with a maximum of two years, those offences are summary and stand in contrast to trafficking in firearms, which is indictable and attracts a maximum penalty of 21 years. In this context her Honour considered the consequences of the competing interpretations. If the deeming provision is conclusive, not only would the net be cast wide, but there would be "no escape" causing "some surprising results". If the effect of the deeming provision is rebuttable, while casting a wide net, it would be open to a defendant to rebut the presumption by proving, on the balance of probabilities, that the defendant was not engaged in trafficking. Her Honour observed that if the deeming provision was conclusive, harsh and draconian results could follow. All conveyances would be captured and amount to trafficking, regardless of the actual purpose, such as Mr Taylor's purpose in conveying the weapons to his home for personal display. In this context, the trial judge noted that the "correct approach in construing the section is to presume that the legislation was not intended to act unfairly".
20 As to s 110A(3), a deeming provision with respect to possession which is expressly stated as rebuttable, the trial judge did not regard the use of express terms in subs (3) as "telling" because of "special factors regarding the expression 'possession' arising from its treatment under the Act". In her Honour's view, the "pathway" to the meaning of "possession" was complex involving an inclusive definition embracing the common law, together with both a general provision which is a rebuttable deeming provision providing an exception not reflecting the common law, and a specific deeming provision in s 110A(3) limited to trafficking which does not reflect the common law. Her Honour said "there are plainly special reasons why express terms were needed in relation to the term 'possession' in sub-section (3)".
21 Recognising that the "purpose of community safety and deterring trafficking in firearms is undeniable", the trial judge concluded that a rebuttable presumption "would not detract from the legislative purpose or intent". Rather, "it would promote the purpose, but just be more nuanced in its application", and would avoid draconian results. Applying the test as to whether a particular meaning was consistent with the statutory purpose, the trial judge concluded [49]:
"Having regard to the fact that a rebuttable presumption is entirely consistent with the statutory purpose, the text of the section and the statute as a whole, and that to construe the words in this way avoids unjust and unreasonable consequences that would result if the presumption was conclusive, I conclude that the words should be construed as providing a rebuttable presumption".
Discussion
22 The context in which s 110A was introduced into the Act is significant. The purpose of the Act was succinctly explained by Blow CJ in Tasmania v Mansell [2020] TASSC 7 at [16]:
"It is clear that the purpose of the Act was to promote public safety by restricting the availability of firearms. Its long title is, 'An Act to provide for the regulation, registration and control of firearms'. It commences with a preamble that refers to 'the tragic events which occurred at Port Arthur on 28 April 1996'."
23 Part 2 of the Act contains broad provisions aimed at persons not holding an appropriate licence. Such persons are prohibited from acquiring, possessing, using and exhibiting firearms. Nor are they
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permitted to deal in firearms. In addition, firearms specified in Schedule 1, such as machine guns, self- loading weapons and pump action shotguns, are defined as prohibited firearms, the unlawful possession or use of which is an indictable offence punishable under the Criminal Code. However, the remainder of the offences are summary offences attracting a maximum term of imprisonment not exceeding two years.
24 Other provisions in Part 2 are concerned with licensing and conditions attaching to possession of firearms. Permits to acquire firearms, registration and safe keeping, together with dealers in firearms, are dealt with in Parts 3-6.
25 Division 1 of Part 7 is concerned with various offences involving mailing, delivery or transporting of firearms. They attract only fines.
26 In Division 2 of Part 7, sections 105-107 specify fines for offences involving the sale and possession of ammunition, advertising the sale of firearms and possession of firearm parts. Section 107A specifies a maximum term of imprisonment of five years for possession of a stolen firearm, and s 110 sets a maximum term of two years for possession of an unsafe firearm.
27 For the purposes of the various offences, s 3 provides that possession includes custody or control, and s 4 provides that if a person knowingly has a firearm in the custody of another person, the first mentioned person remains in possession of the firearm. If two or more persons possess parts of a firearm, each of them is taken to possess the firearm. In addition, an extended meaning of possession is found in s 3B:
"3B Meaning of 'possession'
Without restricting the meaning of the word possession, for the purposes of any proceedings under this Act, a firearm is taken to be in the possession of a person so
long as–
(a) the firearm is found in or on any premises, structure, vehicle, vessel, aircraft or other place; and (b) the person is in, on, or in occupation of, the premises, structure, vehicle, vessel, aircraft or place when the firearm is found–
unless the court is satisfied that the person did not know, and could not reasonably be expected to have known, that the firearm was in or on the premises, structure, vehicle, vessel, aircraft or place."
28 The provisions to which I have referred provide the context in which s 110A was introduced into the Firearms Act in 2007, and the context in which s 110A operates. Prior to the introduction of s 110A, individual acts such as possession of firearms without an appropriate licence were encompassed by the Act, and most of those types of offences were of a summary nature which attracted the maximum penalty of imprisonment for two years. There was no offence of "trafficking".
29 Section 110A creates the broad indictable offence of Trafficking in Firearms Without Lawful Excuse. Read in isolation from s 110A(2), "trafficking" would attract its ordinary meaning of commercial activity involving dealing or trading in firearms. This concept was helpfully discussed by the trial judge:
"8
The word 'traffic' has a well-established ordinary meaning. The Macquarie Dictionary definition of the noun 'traffic' includes: 'trade; buying and selling; commercial dealings'; 'trade or dealing in some commodity or thing, often trade of an illicit kind'. It further defines the verb 'trafficking' as: 'to carry on traffic, trade, or commercial dealings'; 'to carry on dealings of an illicit or improper kind'; 'to deal or trade in': Macquarie Dictionary, 8th ed (2020) at 1616-1617.
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9 The meaning of 'traffic' in the Misuse of Drugs Act 2001 was considered in Roland v Tasmania [2016] TASCCA 20 at 12. The Court of Criminal Appeal approved the trial judge's explanation of trafficking under the Misuse of Drugs Act and also the ordinary meaning of 'trafficking'. The trial judge had stated:
'The definition is an inclusive definition. An inclusive definition extends, enlarges or amplifies the ordinary meaning of a word; see Pearce & Geddes, Statutory Interpretation in Australia, 8th ed at par 6.60. This definition extends the ordinary and natural meaning of the word 'traffic' to include conduct which may not otherwise fall within that meaning. It reveals a Parliamentary intention to add to the ordinary meaning of the word, the effect of which is to make the crime of 'trafficking' easier to prove. However, it does not displace the word's ordinary meaning. The word 'trafficking' has an ordinary meaning which is to deal in or trade in. In its ordinary meaning, trafficking in a drug is the process by which it runs from the manufacturer to the ultimate consumer. It is a process of movement for commercial gain. Commonly there is a chain of distribution stretching from the manufacturer to the ultimate retail sale to a consumer. Although there may be many steps in that process there may be only a few. Everyone who knowingly plays any part in the process whereby the product gets from one to the next is trafficking'.
10 The meaning of 'trafficking' at common law involves participation in the chain of distribution. The ultimate consumer, at the end of the line, is not regarded as engaging in trafficking. Certainly, I have never known the small time purchaser for personal use to be treated by a prosecuting authority in this State or the courts as traffickers. They are the end of the chain not a link in the chain of distribution."
30 If the view advanced by the Crown is correct, s 110A(2) either defines the meaning of "trafficking" to the exclusion of the common law meaning, or it expands the common law meaning. If subs (2) defines the meaning of "trafficking" for the purposes of s 110A, it limits the offence of trafficking to firearms which are registrable, but not registered. It seems unlikely that the legislature would have intended to so confine the operation of the "new" offence of trafficking in firearms.
31 A comparison with the operation of s 102 is helpful. Section 102 provides that a person may only deliver possession of a firearm to another person by delivery either in person, or by means of a person who appears able to ensure the security of the firearm during delivery. If those conditions are met, s 102(2) provides that the person undertaking the delivery will not have committed an offence against s 9, namely, possessing a firearm without being the holder of an appropriate firearm's licence. However, according to the interpretation advanced by the Crown, such activity with respect to the unregistered firearms would conclusively amount to unlawful trafficking in a firearm because the person "received or delivered the firearm from or to another person". If the Crown contention is correct, in respect of a registrable, but unregistered firearm, any of the activities identified in s 110A(2)(c) will conclusively amount to unlawful trafficking in a firearm regardless of the reason for such activity.
32 As is well understood, "the task of statutory construction must begin with a consideration of the text itself" and "the language which has actually been employed in the text of the legislation is the surest guide to legislative intention".[2] However, the context in which the text operates, and the purpose of the provision, are relevant. Given the existence of the various summary offences, which the Acts specified in s 110A(2)(c) would otherwise prove, it seems unlikely that the legislature would intend to conclusively presume that such acts also conclusively amount to the more serious crime of trafficking.
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[2] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 355 at [47]
33 It is tolerably clear that the intention of the legislature was to capture trading or dealing in firearms involving criminality of a greater order than the summary offences such as mere possession of a firearm without an appropriate licence. It would also appear that the legislature intended to make the offence of trafficking easier to prove than reliance solely upon the common law meaning of trafficking, but only if the firearm involved is registrable, but not registered. However, that intention is achieved if the presumption is rebuttable, while ensuring that draconian consequences are avoided.
34 The Crown relied upon the decision of Porter AJ in Tasmania v Morrison [2021] TASSC 42. His Honour considered the operation of s 110A in the context of a charge of trafficking in a machine gun by selling it. The defendant contended an offence against s 110A could only be committed if the weapon was "registrable" (s 110A(2)(a)). As the machine gun was a prohibited weapon and could not be registered, it was argued that selling such a weapon could not amount to trafficking contrary to s 110A.
35 Porter AJ rejected that contention. His Honour found that the weapon was "registrable" for the purposes of s 110A(2)(a). In the course of his reasons, his Honour discussed the alternative views of s 110A:
"21
Plainly enough, subs (1) creates the crime of trafficking in firearms when done without lawful excuse. The combined operation of subss (1) and (2) however, may be read in two ways. The first way is the basis on which the primary argument essentially proceeded. It has some immediate attraction, and it is to read subs (2) as a type of deeming provision. That is to say, s 110A does not create the crime of trafficking in registrable firearms. But if the firearms are registrable, and either matter set out in subs (2)(c) is made out, proof of any one of the activities as set out in subs (2)(c), on any one occasion, is taken as proof of trafficking in firearms.
22
If the relevant firearms are not registrable, and as subs (2) would only operate in relation to registrable firearms, those other firearms would have to be dealt with under subs (1) in accordance with ordinary notions of trafficking: see for instance trafficking in the drug context: Fama v Tasmania [2015] TASCCA 27 at [14]-[15] and the cases cited. In that context, 'trafficking' connotes an activity in a commercial setting; relevant activity is any movement between source and consumer in such a setting.
23
The second way to read the provisions is so that subs (1) simply creates the crime, while subs (2) defines the crime in the sense of setting out what constitutes it and how it is made out. In that sense the two provisions operate in a like manner to s 125A(2) and (3) of the Criminal Code. Section 125A(2) provides that a person who maintains a sexual relationship with any person who is under the age of 17, and to whom he or she is not married, is guilty of a crime. Subsection (3) provides that an accused is guilty of such an offence if during a particular period when the young person was under the age of 17, the accused committed an unlawful sexual act on at least three occasions, and when they were not married.
24
Of course, the expression 'is taken to traffic in firearms without lawful excuse' is not as definitive on its face as, "is guilty of having committed the [offence]", but it is difficult to see how it achieves a different result.
25
This way of reading the provisions is supported by the clause notes to the 2007 amending Bill, by which s 110A was inserted. Those notes say; 'Trafficking involves the movement of registrable firearms. A charge of trafficking may result from a person carrying out one or more of [the activities set out in subs (2)(c)].'
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…
33 In terms of the operation of s 110A, given that all firearms other than those
referred to in s 74(2) are registrable firearms – thus including prohibited firearms – then it is much more likely that s 110A(2) is a definition type of
provision such as s 125A(3) of the Code, rather than a deeming type of one. That is simply because in light of the resultant scope, there is no work for subs (1) to do other than to create the crime itself. Were it to be otherwise of course, trafficking in non-registrable firearms would not be covered by subs (2), and "trafficking" would have its common law meaning.
… 36 I determine that the Bren gun is a registrable firearm within the meaning of s 110A. It follows that it is not strictly necessary for me to decide the broader issue of the operation of s 110A(1) and (2). However, I record my view that because of the definition of registrable firearms, what is encompassed in the crime of trafficking in prohibited firearms– whether they be ones in relation to which a licence may issue or not – is not to be found outside subs (2). The elements of the crime created by subs (1) are to be found in subs (2), and I do not see scope for any residual class of firearm to be the subject of the operation of subs (1)."
36 The decision of Morrison was not brought to the attention of the trial judge until the trial. In her second set of reasons delivered during the trial, the trial judge referred to the relevant passages in the judgment of Porter AJ, but concluded that his Honour had not considered the possibility that the deeming provision was rebuttable:
"18 His Honour considered two possible interpretations but did not consider a third, that the deeming provision was rebuttable. If rebuttable, then necessarily it is not a definition type of provision. The clause notes referred to at [25] of his Honour's judgment are entirely consistent with the conclusion I reached that the presumption is rebuttable. The reasons of his Honour do not, in my respectful view, speak to or undermine my reasons that the presumption is rebuttable."
37 The Crown also relied upon the decision of this Court in Director of Public Prosecutions (Acting) v Eather [2016] TASCCA 2, 31 TAS R 1. The Court was concerned with the offence of trafficking in fish without lawful excuse contrary to s 264A of the Living Marine Resources Management Act 1995 (Tas):
"(1) A person must not traffic in fish without lawful excuse. (2) For the purposes of subsection (1) a person is taken to traffic in fish without lawful excuse if–
(a) the fish have been taken unlawfully or possessed unlawfully; and (b) on one or more occasions, the person – (i) possesses the fish; or
(ii) conceals the fish; or
(iii) processes the fish; or
(iv) sells or otherwise disposes of the fish; or
(v) receives or delivers the fish from or to another person; or
(vi) transports the fish from one place to another; or
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(vii) otherwise deals with the fish; or
(viii) carries out any combination of the activities referred to in this paragraph.
(3) For the purposes of subsection (2) -
(a) it does not matter whether the fish referred to in that subsection are all of one species or a mixture of different species; and (b) a person is taken to have carried out an activity if the person – (i) carries out, or participates in the carrying out of, the activity; or
(ii) directs, controls or supervises the carrying out of the activity; or
(iii) provides finance, facilities or other resources to enable the activity to be carried out or to facilitate it; or
(iv) is knowingly concerned in the carrying out of the activity."
38 The trial judge had upheld a submission that there was no case to answer on the basis that s 264A(2)(a) required that the fish had been taken unlawfully, or possessed unlawfully, by someone other than the accused. In a judgment with which Porter and Pearce JJ agreed, Blow CJ paid particular regard to the "ordinary literal meaning of the words that are to be construed" [10], and found that s 264A(2)(a) did not require proof of the identity of the person or persons by whom the fish was taken or possessed unlawfully. His Honour found there was nothing in the words of the provision "to suggest any implicit restriction as to the person or persons by whom the fish were unlawfully taken or possessed" [10].
39 The Court in Eather did not have occasion to consider whether the presumption created by s 264A(3)(b) was conclusive or rebuttable. However, Blow CJ dealt with a submission that the interpretation urged by the Crown could lead to absurd results. After pointing out that the interpretation favoured by the trial judge could also result in absurd consequences, the Chief Justice emphasised the importance of the language used by the legislature [23]-[25]:
"23
There is no way of interpreting s 264A that avoids the situation whereby trivial non-commercial misconduct can amount to the crime of trafficking in fish. That is an unavoidable consequence of Parliament having chosen to define 'traffic' without any reference to some belief or intention as to the future sale of the fish.
24
Accepting that s 264A was enacted to address serious offending by criminal groups, in my view the Crown's suggested interpretation of the paragraph in question would go further towards promoting the underlying purpose or object of the provision than the interpretation adopted by the learned trial judge. If a member of a criminal group were found in unlawful possession of a commercial quantity of fish, it would not be necessary to prove beyond reasonable doubt that some other person had unlawfully caught or possessed those fish at an earlier time.
25
As Hayne, Heydon, Crennan and Kiefel JJ said in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (above) at [47], 'the task of statutory construction must begin with a consideration of the text itself', and, 'The language which has actually been employed in the text of legislation is the surest guide to legislative intention'. The wording of the paragraph in question does not suggest any restriction upon the class of persons responsible for the unlawful taking or unlawful possession of fish. In my view there is nothing in the history of the legislation, the extrinsic material relating to the 2007
12 No 2/2024
amendments, or the context of the provision in question to warrant departing from the ordinary meaning of the text. It follows that the interpretation favoured by the Crown is correct, and that the interpretation adopted by the learned trial judge was wrong."
40 Notwithstanding the general observations earlier in these reasons, the difficulty facing the interpretation favoured by the trial judge is the language used in s 110A and, more particularly, the rebuttable presumption expressly created in s 110A(3). It cannot be said that the legislature "overlooked" using express words to create a rebuttable presumption in ss (2). In the very next sub- section, the rebuttable presumption was created by express and unambiguous words "unless the person
proves …". As counsel for the Crown put it, if the legislature had intended to create a rebuttable
presumption in s 110A(2), it would have expressly said so in simple language.
41 The Crown also relied upon the use of the expression "is taken to be" in other provisions of the Act. Section 3A provides that a person is "taken to be a close associate" of the holder of, or an applicant for, a firearms dealer's licence if the person meets the criteria in that section. There is no express exception, unlike s 3B which provides that a firearm "is taken to be in the possession of a person" in specified circumstances "unless the court is satisfied that the person did not know, and could not reasonably be expected to have known, that the firearm was in or on the premises, structure, vehicle, vessel, aircraft or place". The expression "is taken to be" is also used in ss 56 and 96A in language and context which strongly support the view that in those sections the expression creates a conclusive presumption.
42 The issue of whether the legislature intended to create a rebuttable presumption has also been addressed in the context of the Migration Act 1958 (Cth). While care must be taken comparing interpretation in the context of administrative law, in contrast to the criminal law, nevertheless the decisions deal with the fundamental issue of statutory construction.
43 In Xie v Minister for Immigration and Multicultural & Indigenous Affairs [2005] FCAFC 172, the Full Court of the Federal Court was concerned with a prescribed time limit for seeking to challenge a decision in respect of a visa application. The relevant section of the Migration Act provided for notification of a decision by post, and if the notification was dispatched by post, "the person is taken to have received the document" within a specified period. The appellant claimed he had not received the notification until a later date, and sought to persuade the Court that the deeming provision did not operate. The court dismissed that contention and found that the relevant provision did not create a rebuttable presumption:
"13 Subsection 494C(4) does not purport to create a rebuttable presumption of fact. It provides that in certain circumstances, a person is to be ‘taken to have received the document ...’. Nothing in the section suggests that this is merely a
rebuttable presumption. In Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 377; (2000) 98 FCR 77 Full Court considered a similar, but not identical provision, then found in s 53 of the Migration Act but now repealed. It provided that in certain circumstances, an applicant was to be taken
to have received a notification ‘even if it was not received’. At [17], O’Connor and Mansfield JJ observed: ‘... the statutory provisions operated to deem notification of the decision of the delegate of the Minister, notwithstanding that the applicant may not have received actual notification of the relevant decision until some later time than
that deemed by the Act and the Regulations or at all.’ 14
The wording of s 494C is not quite so clear. Spender J, in Murphy v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 657; (2004) 135 FCR 550 at [69], observed;
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‘The person is 'taken to have received the document', in the circumstances of
this case, seven working days after the date of the document. In my view this provision manifests an intention that a person is taken to have received the document seven working days after the date of the document, without qualification. There is nothing to indicate that the effect of the subsection is to be read as if there was a proviso that the person was not taken to have received the document where the documents had been returned undelivered to the sender within seven working days after the date of the document, or that the subsection operates in its terms only "until the contrary is proved".
We agree. The sequence of statutory and regulatory provisions to which we have referred proscribes with precision the steps to be taken in notifying a visa applicant of the outcome of his or her application."
44 The decision in Xie was reviewed and upheld by the Full Court of the Federal Court in Tay v The Minister for Immigration and Citizenship [2010] FCAFC 23. Section 494C(5) of the Migration Act provided for service of a document by fax, email or other electronic means, and that the person was "taken to have received the document" at the end of the day on which the document was transmitted. The appellant sought to challenge a refusal to permit her to seek a review of an original decision on the basis that s 494C(5) created a rebuttable presumption of fact and she was entitled to lead evidence to establish she did not receive the decision until a later date.
45 The following passages from the judgment of the court identify the essential reasoning of the court with respect to the decision in Xie:
"16
What was at issue in Xie was whether s 494C(4) of the Migration Act, which applies to documents dispatched by pre-paid post or other pre-paid means, created an irrebuttable presumption as to the time of receipt of the documents or whether evidence could be brought to establish the actual time of receipt.
… 17 In Xie at [14], the Full Court quoted with approval Spender J’s comment concerning s 494C(4) in Murphy v Minister for Immigration & Multicultural
Affairs & Indigenous Affairs [2004] FCA 657; (2004) 135 FCR 550 at [69]:'In my view this provision manifests an intention that a person is taken to have received the document seven working days after the date of the document, without qualification. There is nothing to indicate ... that the subsection operates in its terms only 'until the contrary is proved'.
18
The Full Court observed that the statutory and regulatory provisions prescribed 'with precision the steps to be taken in notifying a visa applicant of the outcome of his or her application' and held that there was nothing to suggest that it merely created a rebuttable presumption.
19
For reasons given below, we have concluded that the decision in Xie is not wrong nor does it produce unintended or irrational consequences. The construction of s 494C(4) in Xie and the consequent rigidity of time limits imposed on applications for review may seem harsh but, as the explanatory material referred to below indicates, they result from the considered decision of the legislature as to an appropriate way to facilitate visa applications and to clarify when documents are received. In so far as is presently relevant, the provisions of s 494C(4) and s 494C(5) are identical and therefore the reasoning of the Full Court in Xie is equally applicable to both subsections.
20
The effect of s 5(23) of the Migration Act (see [4] above) is that the proper construction of ss 494C(4) and (5) must focus on the meaning of the word 'deemed' and the purpose for which it is used. In Muller v Dalgety & Co Limited [1909] HCA 67; (1909) 9 CLR 693 at 696 Griffith CJ observed that the word
‘deemed’ may be used to indicate that a definition is exhaustive or as extending 14 No 2/2024
the sense which might otherwise have been given to that definition. His Honour
added:'The word 'deemed' may be used in either sense, but it is more commonly used for the purpose of creating what James LJ and Lord
Cairns LC called a ‘statutory fiction’ ... that is, for the purpose of
extending the meaning of some term to a subject matter which it does not properly designate. When used in that sense it becomes very important to consider the purpose for which the statutory fiction is introduced.'
21 In Macquarie Bank Ltd v Fociri Pty Ltd (1992) 27 NSWLR 203 the question arose in the context of s 553(2)(b) of the Companies (New South Wales) Code (Code) which referred to circumstances in which a company 'shall be deemed to be unable to pay its debts'. The question before the New South Wales Court of Appeal was whether evidence could be brought to establish that a company was unable to pay its debts in circumstances other than those which enlivened the deeming provision. In considering the competing views of the operation of s 553(2)(b), Gleeson CJ said, at 207-8 that it was important not to confuse two questions:
'One is a question as to the meaning of the word 'deemed'. The other is a question as to the statutory purpose for which, in a given case, that word is used. As Windeyer J pointed out in Hunter Douglas Australia Pty Ltd v Perma Blinds[1970] HCA 63; (1970) 122 CLR 49 at 65: '... to deem means simply to judge or reach a conclusion about something.' That is the meaning assigned to the word in dictionaries such as the Macquarie Dictionary ('to form or have an opinion; judge;') of the Shorter Oxford English Dictionary ('to judge ... to decree; ... to decide; ... to conclude, consider, hold'). It commonly happens that, because legislation contains a deeming provision, there may arise a question of construction which turns, not so much upon the meaning of the word 'deemed', as upon a view concerning the statutory purpose for which it has been used. Such a question may turn, for example, upon whether the legislature is intending to create a statutory fiction or whether, on the other hand, it is merely making a provision for the removal of doubt which might otherwise exist ... There is another issue that sometimes arises where Parliament has enacted a deeming provision. In some cases a court may conclude, as a matter of construction, that the consequence which is deemed to follow is only in the nature of a rebuttable presumption; a certain state of affairs will be presumed unless and until the contrary is proved.'
22 In concluding that s 553(2)(b) did not create a rebuttable presumption, Gleeson CJ (with whom Cripps JA agreed) construed the section in its statutory context. His Honour took into account related provisions of the Code including s 556 which imposed civil and criminal liability on company officers in respect of the debts of a company if, at the time the debt was incurred, the company was, or later became, a company to which s 553(2)(b) applied. In Macquarie Bank the construction problem was also simplified because s 553(2)(b) stated insolvency would be deemed 'if, and only if' the specified circumstances arose.
23 While the statutory context was of assistance, Gleeson CJ commented that the general purposes of the legislation were of little assistance to the resolution of the problem under consideration. His Honour stated, at 210:
'We are confronted with a problem of statutory construction as to whether a given set of circumstances will, or will not, satisfy a condition which gives rise to potential liability. There is no reason to strain to reach a construction which widens the circumstances. The fact that the legislation has penal consequences provides a reason not to do so. To contend that the aim of the legislature is to discourage and penalise insolvent trading, and that therefore one should prefer a result
15 No 2/2024
which widens the scope for proof of inability to pay debts, is to ignore the careful manner in which the legislature has defined the circumstances in which liability arises. See also Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138 at [5] per Gleeson CJ.'
24 With respect, the tenor of Gleeson CJ's comments is applicable here. Section 494C makes very detailed provision for determining when a document is taken (deemed) to have been received from the Minister. Those provisions must be construed in a statutory context of similarly detailed provisions concerning the methods by which the Minister may give documents to a person when this is a requirement (s 494B) and when it is not required (s 494A) and the identification of the authorised recipient of documents (s 494D). These provisions all evidence concern that there should be certainty in the transfer of documents from the Minister both as to the method and as to the time of delivery. This was recognised by the Full Court in Xie leading it to conclude that s 494C(4) did not create a rebuttable presumption: see [17] above."
46 Notwithstanding the potential for harsh results, having regard to the context and language used, and the absence of an express provision for rebuttal in contrast to s 110A(3), I am driven to the conclusion that s 110A(2) creates a conclusive presumption such that the trial judge erred in directing the jury that it was open to the accused to rebut the presumption by proving, on the balance of probabilities, that he was not trafficking. However, it remains necessary to consider whether the presumption in s 110A(2) excludes the operation of s 14 of the Tasmanian Criminal Code, thereby excluding the operation of the principles relating to honest and reasonable mistake of fact.
Honest and Reasonable Mistake of Fact
47 In response to the emphasis placed by the respondent on the potential for draconian results, counsel for the Crown pointed out that s 129 of the Act provides for an amnesty in particular circumstances concerned with surrendering of firearms to police, and raised the question as to the operation of the principles concerned with honest and reasonable mistake of fact (mistake of fact) under s 14 of the Criminal Code. Through the operation of s 4 of the Criminal Code Act, as s 110A(1) of the Act creates an indictable offence, trafficking in firearms is a crime to which the provisions of the Criminal Code apply. Hence the operation of s 14 of the Code which provides:
"14 Mistake of fact
Whether criminal responsibility is entailed by an act or omission done or made under an honest and reasonable, but mistaken, belief in the existence of any state of facts the existence of which would excuse such act or omission, is a question of law, to be determined on the construction of the statute constituting the offence."
48 In substance, s 14 provides that whether the principles of mistake of fact apply to the crime of trafficking in firearms is a question of law to be determined on the construction of the Act in its entirety and, in particular, s 110A. The Crown contended that although there is nothing in s 110A(1) which excludes the operation of those principles, different considerations apply to the operation of the principles to s 110A(2). In essence, if s 110A(2) creates a presumption that if specified activities are undertaken, they are taken to amount to trafficking "without lawful excuse". If an honest and reasonable mistake of fact is an "excuse", it is excluded from operation by the presumption in s 110A(2).
49 The Crown advanced the following contentions:
•
Section 14 of the Criminal Code speaks of an act or omission done or made under a reasonable, but mistaken, belief in the existence of any state of facts the existence of which would "excuse" such act or omission.
16 No 2/2024
• In Proudman v Dayman (1941) 67 CLR 536 at 540-541, Dixon J referred to the honest and reasonable mistake as affording an "excuse": "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 Regina v Martin [1963] TASSR 103 at 109-112, Burbury CJ held that the use of the word "excuse" in s 14 was a reflection of the common law, and that the common law mistake was a defence to all external elements of the crime, provided the mistake would "excuse" the act by making the conduct "innocent".
•
In Bell v Tasmania [2021] HCA 42, the judgments of the High Court repeatedly referred to mistake of fact as an "excuse".
•
As mistake of fact is an "excuse", it is captured by the words "lawful excuse" in s 110A(2) and mistake of fact does not apply to the factual matters set out in s 110A(2).
•
Mistake of fact applies to an honest and reasonable belief that the firearms were not firearms under s 110A(1).
•
Some of the concepts covered by s 110A(2)(c) would allow an accused to rely on a mistake about whether firearms were being trafficked, as opposed to something else. For example, if Mr Taylor had told police that he did not believe what he received and conveyed were firearms then the onus would have been on the prosecution to prove that Mr Taylor's belief was neither honest nor reasonable. Mistake of fact therefore ameliorates some of the "draconian" aspects of the crime, although it does not apply to all of the matters set out in s 110A(2).
"Excuse"
50 The proposition that only "some of the concepts covered by s 110A(2)(c) would allow an accused to rely on a mistake" cannot stand scrutiny. In respect of registrable, but unregistered, firearms, either mistake of fact is excluded or it is not. In respect of such firearms, if mistake of fact is excluded because it is an "excuse" within the meaning of "without lawful excuse", an honest and reasonable belief that the objects being sold or conveyed etc were not firearms would not avail the person carrying out the activities encompassed by s 110A(2)(c). There is no half-way house as suggested by the Crown.
51 If mistake of fact is excluded in respect of activities encompassed by s 110A(2), such activities create absolute liability. Such absolute liability is created almost by a side wind because mistake of fact is an "excuse" for the purposes of the expression "without lawful excuse" used in s 110A(2). Absurd and draconian consequences would necessarily follow. In addition, as repeated authorities have emphasised, an intention to exclude mistake of fact, thereby creating absolute liability, will not readily be inferred, particularly when liability for severe penal consequences is created.[3]
[3] He Kaw Teh v the Queen [1985] HCA 43 157 CLR 52352 As the judgments in Bell v Tasmania [2021] HCA 42 explain, through the combined operation of ss 4 and 8 of the Criminal Code Act 1924 and s 13 of the Criminal Code, the only intention required for an offence against s 14 of the Misuse of Drugs Act was "an intention only to do the physical, willed action"[4]. It is in this context that the operation of s 14 of the Criminal Code concerning mistake of fact is to be considered.
17 No 2/2024
[4] Bell at [66]
53 The Crown is correct that throughout the judgments in Bell, and in other authorities, mistake of fact is often referred to as an "excuse". In addition, it is often described as a ground of exculpation or a defence. The critical question is whether, in using the expression "without lawful excuse" in s 110A(2), the legislature intended to exclude the operation of mistake of fact in respect of all activities specified in s 110A(2)(c) carried out in relation to registrable, but unregistered, firearms. Put another way, is mistake of fact a "lawful excuse" for the purposes of s 110A(2)?
54 In He Kaw Teh, Brennan J briefly discussed the origin of mistake of fact:
"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. 12 In earlier times, criminal responsibility was imposed upon or imputed to an accused upon proof of the external elements alone: see J.W.C. Turner Russell on Crime 12th ed. (1964), vol.1, pp.33,34. An honest and reasonable but mistaken belief in a state of facts which would make the supposed offender's act innocent was therefore treated as an excuse for or a true exception to criminal responsibility: see by way of example, Stephen's Digest of the Criminal Law, 3rd ed. (1883), Ch.III, 'General Exceptions". The origin of that state of mind as an exception is reflected in the exculpatory form in which it appears in the Criminal Codes which adopt Sir Samuel Griffith's draft, as Windeyer J. pointed out in Mamote-Kulang v. The Queen [1964] HCA 21; (1964) 111 CLR 62, at pp 76-77. But since Woolmington v. The Director of Public Prosecutions [1935] UKHL 1; (1935) AC 462 it has come to be recognized that the prosecution bears the ultimate onus of negativing 'defences' under the Codes: see Packett v. The King [1937] HCA 53; (1937) 58 CLR 190, at p 212; Brimblecombe v. Duncan; Ex parte Duncan (1958) QdR 8. In Bank of New South Wales v. Piper, the absence of mens rea was said to consist in the existence of the exculpating belief. Conversely, the absence of the exculpating belief should be regarded as a form of mens rea. It is no more appropriate for the common law than it is for the Codes to regard the defence of an honest and reasonable but mistaken belief merely as an excuse for committing an offence that is fully constituted by its external elements. In principle, the absence of such a belief must also be treated as a form of mens rea at common law and an element of the offence which the Crown must prove. The golden thread of which Viscount Sankey L.C. spoke in Woolmington has been woven through the material of all criminal offences. That seems to have been the tentative view of Dixon J. in Proudman v. Dayman where he said, at p 541:
'The burden of establishing honest and reasonable mistake is in the first place upon the defendant and he must make it appear that he had reasonable grounds for believing in the existence of a state of facts, which, if true, would take his act outside the operation of the enactment and that on those grounds he did so believe. The burden possibly may not finally rest upon him of satisfying the tribunal in case of doubt.'
13 Lord Diplock in Sweet v. Parsley, following what he understood to be the approach of Dixon J. in Proudman v. Dayman, stated the position thus (at p 164):
'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.'
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Lord Pearce (at p.158) seemed to doubt whether the defence of an honest and reasonable but mistaken belief could be accepted consistently with Woolmington if the onus of proving the defence rested on the defendant. Menhennitt J. in Kidd v. Reeves [1972] VicRp 64; (1972) VR 563, at p 565, and the New Zealand Court of Appeal in Reg. v. Strawbridge (1970) NZLR 909, at p 915, have held that the onus of disproving that an accused had an honest and reasonable belief in facts which, if true, would make his act innocent rests on the prosecution in cases where that defence is open.
14 In Mayer v. Marchant (1973) 5 SASR 567, at p 570, Bray C.J. referring to Proudman v. Dayman and canvassing the relevant authorities said:
'The implications of Woolmington's Case have only gradually been recognised, not, on occasions, without disquiet at their width; see, for example, Sweet v. Parsley, per Lord Pearce at p 158. Once they are, it must, in my view, be accepted that the ultimate onus is always on the Crown, except in the case of insanity or where the onus is shifted by statute, and it does not matter whether the offence is the creature of common law or of statute.'
In the absence of contrary statutory provision and apart from insanity an accused cannot be required to prove a mental state as an excuse."
55 The development of mistake of fact was also discussed by Edelman and Gleeson JJ in Bell v Tasmania [2021] HCA 42 at [73]-[75]:
"Distinguishing the 'common law' excuse from the elements of an offence
73 Although the excuse of honest and reasonable mistake is one which the prosecution bears the substantive onus of disproving, there is an important distinction between, on the one hand, the elements of a statutory offence, including whether knowledge or intention 'is made an element of the statutory crime', and, on the other hand, a defence of honest and reasonable mistake that excuses, or is a 'ground of exculpation' for, the action that amounted to the otherwise completed offence. Although both arise as a matter of statutory interpretation, this distinction is well established.
74 Although the distinction is now well established, early decisions concerning the excuse of honest and reasonable mistake to a statutory offence did not always distinguish between the mental elements of the offence and matters that would excuse the offence. Many of those decisions applied Latin maxims which cut across the distinction and which were deprecated by Sir James Fitzjames Stephen as 'most unfortunate, and not only likely to mislead, but actually misleading'. In circumstances in which counsel for Mr Bell conceded that, apart from s 13(1) of the Criminal Code, there was no implied mental element contained in any element of the offence in s 14 of the Misuse of Drugs Act, the issue in this case is whether the entirety of the action constituting the offence should be excused, not merely some aspect of it.
75 Where the offence is a common law offence then, separately from the elements of the offence, the common law recognises an excuse of honest and reasonable mistake. Where the offence is statutory, by the technique that recognised a statutory implication as based upon the 'rule and reason of the common law, the excuse came to be recognised as implied in the statute. The implication is sometimes described as a 'common law presumption'. In this sense, it can be described as a 'common law' excuse. But, as s 14 of the Criminal Code recognises, and as the history of the development of the common law excuse shows, the terms of a particular offence can deny the implication." (Footnotes omitted.)
56 Throughout their judgment, Edelman and Gleeson JJ regularly referred to mistake of fact as an excuse. Ultimately, in concluding that the mistake must render the acts "innocent" of any criminal
19 No 2/2024
offence, their Honours spoke of the common law "excuse" operating to "excuse the whole of the acts of
an accused person from the charged offence" [105].57 In He Kaw Teh, Gibbs CJ identified the principle of mistake of fact as being a ground of "exculpation in cases in which actual knowledge is not required as an element of the offence". His Honour cited the well-known passage from a judgment of Cave J in Reg v Tolson [1889] 23 QBD 168 at 181:
"At common law an honest and reasonable belief in the existence of circumstances, which, if true, would make the act for which a prisoner is indicted an innocent act has always been held to be a good defence".
58 In He Kaw Teh, Dawson J also spoke of mistake as a "ground of exculpation", commonly referred to as a "defence":
"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."
59 Dawson J emphasised that since Woolmington v Director of Public Prosecutions [1935] UKHL 1 (1935) AC 462, it is clear that there is no onus on an accused to prove mistake of fact. In discussing
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that principle, his Honour spoke of the development in Australia of the concept of mistake of fact "as a
mode of exculpation".60 In CTM v The Queen [2008] HCA 25 236 CLR 440, the High Court dealt with the principle of mistake of fact in the context of the Queensland Criminal Code which provided:
"26 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."
61 In the joint judgment of Gleeson CJ, Gummow, Crennan and Kiefel JJ, the passage from the judgment of Cave J in Tolson to which I have referred was cited, and the judgment observed that references to mistake of fact as an "excuse", or a "defence" or "ground of exculpation", "may be harmless enough if they do not pre-empt questions of onus of proof" [6]. Their Honours pointed out that such descriptions "have their dangers, but the short hand may be convenient provided it is understood for what it is". [6]
62 After emphasising that where an offence carries serious penal consequences, the courts "looked to parliament to spell out in clear terms any intentions to make a person criminally responsible for conduct which is based on an honest and reasonable mistake" [7], the joint judgment repeated the expression "ground of exculpation" [8]:
"Where it is a ground of exculpation, the law in Australia requires that the honest and reasonable, but mistaken, belief be in a state of affairs such that, if the belief were correct, the conduct of the accused would be innocent. In that context, the word 'innocent' means not guilty of a criminal offence. In the case of an offence, or a series of offences, defined by statute, it means that, if the belief were true, the conduct of the accused would be 'outside the operation of the enactment' [19]. As explained in He Kaw Teh v The Queen [20], the evidentiary onus of raising the ground of exculpation is on the accused, but, once that occurs, the ultimate legal onus of displacing the ground lies on the prosecution. The concept of evidentiary onus itself needs to be understood in the light of the subject matter to which it applies; here, honest and reasonable belief, a concept that has a subjective element of a kind that ordinarily is peculiarly within the knowledge of the accused, and an objective element that must be capable of being measured against the evidence by a tribunal of fact."
63 Later in the judgment, the majority repeated the observation that if parliament intends to abrogate the common law principle of mistake, courts expect that parliament will make its intention plain by express language or necessary implication [35]. Their Honours held that an honest and reasonable belief that the other party to sexual activity is above the specified age is an "answer" to a charge of contravening the relevant penal provisions.
64 In agreeing with the majority judgment, Kirby J added observations concerning the general principles, including [61]:
"(3)
Although 'honest and reasonable mistake' is sometimes described (as it was in this court in Jiminez) as a 'common law defence', it is more accurate to characterise it as a circumstantial consideration that may deprive the facts of an ingredient essential to the offence.
(4)
There is a strong presumption that the statutory definition of a crime contains an express or implied proposition as to the state of mind required on the part of the accused [53]. Although Parliament may, by clear provision, render criminal offences carrying serious penal consequences 'absolute', courts are entitled to, and do, expect that Parliament will make any such purpose completely clear.
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Essentially, this is because of the seriousness with which courts view the imposition of criminal punishment (commonly involving loss of liberty and reputation) and the assumption that, absent clear provision, Parliament has
meant the usual presumption to apply [54]". (footnotes omitted)
65 In observing that it is more accurate to characterise mistake of fact as a "circumstantial consideration that may deprive the facts of an ingredient essential to the offence", Kirby J referred to the remarks in the joint judgment cited earlier. His Honour also referenced para [138] of the judgment of Hayne J:
"138 The issue that arises in this matter is an issue about the proper construction of s 66C(3) of the Crimes Act and the state of mind of the accused that the prosecution must prove in order to attach criminal responsibility to proscribed conduct. It is not a question about the availability of any 'common law defence' to the offence created by that sub-section. Properly identifying the nature of the issue, as one about statutory construction and criminal responsibility, is critical to its proper resolution. In particular, recognising that the issue is not one of defence, excuse or justification bears directly upon what is the mental state of the accused that the prosecution must prove, which party bears the onus of proof, and what standard of proof must be applied in deciding the relevant issue." (my emphasis)
66 Kirby J also referenced para [200] in the judgment of Heydon J in which His Honour stated that the principal in Proudman v Dayman [1941] HCA 28, 67 CLR 536 is not a true "defence" in the context of the burden of proof resting on the prosecution, not the accused.
67 The discussions in He Kaw Teh illuminate the difficulties that sometimes arise with statutory offences in determining the meaning or content of the expression "mens rea" for the purposes of a statutory offence. In He Kaw Teh, Brennan J pointed out that the court was concerned "with the form of mens rea that relates to conduct defined as importing and having in possession" a prohibited substance [9]. In the matter under consideration, the mens rea relates to conduct in connection with firearms, and in particular registrable, but unregistered, firearms. Just as knowledge of the existence of the substance brought into Australia was an essential ingredient of the offence in He Kaw Teh, knowledge that an item in possession is a firearm is an essential ingredient of an offence under s 110(2). Mistake of fact negates the existence of such an ingredient. The same reasoning applies, for example, if a person delivering or conveying a firearm honestly and reasonably believes that the firearm is registered. Where the issue is raised, the burden rests on the prosecution to prove the absence of the relevant mistake of fact.
68 Applying the principles governing the interpretation of legislation containing penal consequences, and having regard to the language of the statute, the application of mistake of fact is not expressly excluded. Nor is it excluded by necessary implication.
69 I am unable to discern any intention on the part of the legislature to exclude mistake of fact. Such an exclusion would lead to absurd and draconian results. The reference in s 110A(2) to a "lawful excuse" was not intended to exclude mistake of fact. For the purposes of s 110A(2), if a person mistakenly believes in a state of facts which would render the conduct "innocent", that person is not advancing a "lawful excuse" for such activity. To use the words of Kirby J, such a mistake "deprives the facts of an ingredient essential to the offence".
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