Beckwith v the Queen

[1976] HCA 55

HIGH COURT OF AUSTRALIA

Gibbs, Stephen, Mason, Jacobs and Murphy JJ.

BECKWITH v. THE QUEEN

(1976) 135 CLR 569

1 November 1976

Customs

Customs—Offences—Having prohibited imports in one's possession without reasonable excuse—Offence of attempting to commit offence against Customs Act—Whether attempt to have prohibited imports in possession without reasonable excuse an offence—Customs Act 1901 (Cth), ss. 233B*, 237. * Section 233B of the Customs Act 1901 (Cth) is set out in 135 CLR 569 at pp 571-572.

Decisions

November 1.
The following written judgments were delivered: -
GIBBS J. The appellant was charged on indictment before the District Court of New South Wales that he

"Between 23rd day of December, 1975 and 27th February, 1976, contrary to Section 237 of the Customs Act, 1901-1975, did attempt to commit an offence against the said Act in that he attempted to have in his possession without reasonable excuse prohibited imports to which Section 233B of the said Act applied, being narcotic goods, namely cannabis and which were reasonably suspected of being imported into Australia in contravention of the said Act."

Before the jury was sworn, the appellant's counsel moved to quash the indictment on the ground that it disclosed no offence in law. The learned trial judge refused the motion. The jury was then sworn, the appellant pleaded not guilty and the trial proceeded. Before verdict, counsel for the appellant made application to reserve the question of law which arose in relation to the indictment for the consideration of the Court, pursuant to s. 72 of the Judiciary Act. At the conclusion of the trial the jury returned a verdict of guilty. The learned trial judge remanded the appellant in custody for sentence and stated a case by which the opinion of the Court of Appeal was sought on the following questions:
(a) Did the indictment charge the accused with matters which in law constituted an offence provided for by the Customs Act 1901?
(b) Did the indictment charge the accused with matters which in law were capable, upon proper evidence called by the Crown, of constituting an offence provided for by the said Act? (at p571)

2. The Court of Appeal answered both questions in the affirmative (1976) 1 NSWLR 511; (1976) 26 FLR 401 . The present appeal is brought by special leave from the decision of the Court of Appeal. (at p571)

3. The facts of the case are not before us and the question that we are required to answer is one of statutory construction, namely whether it is an offence to attempt to commit an offence against s.233B(1)(ca) of the Customs Act 1901 (Cth) (as amended) ("the Act"). Section 233B is one of a number of sections contained in Div. 2 of Pt XIII of the Act by which offences of various kinds are created. It is necessary to set out its provisions in full. They are as follows:

"(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 any prohibited imports to which this section applies which have been imported into Australia in contravention of this Act, or

(ca) without reasonable excuse (proof whereof shall lie upon him) has in his possession any prohibited imports to which this section applies which are reasonably suspected of having been imported into Australia in contravention of this Act, 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

(e) fails to disclose to an officer on demand any knowledge in his possession or power concerning the importation or intended importation into Australia of any prohibited imports to which this section applies or the exportation or intended exportation from Australia of any prohibited exports to which this section applies,

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 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 had been imported into Australia in contravention of this Act.

(1B) On the prosecution of a person for an offence against sub-section (1) of this section, 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 two 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 two hundred and thirty-five of this Act. (4) This section shall not prevent any person from being proceeded against for an offence against any other section of this Act, but he shall not be liable to be punished twice in respect of any one offence."

Section 237 of the Act provides as follows:

"Any attempt to commit an offence against this Act shall be an offence against this Act punishable as if the offence had been committed." (at p572)

4. The provisions of s. 237 are quite generally expressed and they appear on their face to be intended to be applicable to an attempt to commit an offence against any other provision of the Act-including s. 233B(1)(ca). However, the question is whether the provisions of s. 233B are inconsistent with those of s. 237 and reveal an intention to exclude the application of the latter section. The question is by no means an easy one. (at p573)

5. It was submitted on behalf of the appellant that s. 233B is a code on the subject of offences in relation to narcotic goods. This submission cannot be accepted. The section shows on its face that it is not a code; it expressly requires a reference to be made to s. 235 to determine the penalties that may be imposed upon conviction for the offences which it provides (see s. 233B(3)) and it is expressly provided that s. 233B shall not prevent any person from being proceeded against for an offence against any other section of the Act (s. 233B(4)). Other offences in relation to narcotic goods are created by the Act (see ss. 231,233A). There would appear to be no reason why some other sections of the Act, which are quite generally expressed but which do not specifically refer to narcotic goods, should not apply to the offences created by s.233B (see, e.g., ss. 240, 242 and 243 which make additional provisions with regard to penalties). However, it is unnecessary for the appellant to establish that s. 233B is exclusive and self-contained. It is enough to show that it reveals an intention that an attempt to commit an offence against the provisions of par. (ca) of sub-s. (1) shall not itself be an offence. (at p573)

6. The section contains two provisions in particular which may be regarded as revealing such an intention. In the first place s.233B (1) (b) expressly makes it an offence, not only to import or export prohibited imports or exports which are narcotic goods, but also to attempt to import or export such prohibited imports or exports. If s. 237 applied to that paragraph it would either render the express reference to attempts which it contains entirely unnecessary or it would create the offence of attempting to attempt to import (or export) prohibited imports (or exports). It would be absurd to suppose that the Parliament intended to make it an offence to attempt to attempt. No other reason can be suggested for the reference to attempts in par. (b) if s. 237 applies to the section. The statute is not like that considered in Reg. v. Miller (1972) VR 771 where the inclusion of an express reference to an attempt of a particular kind was held to be explained by an intention to make such an attempt a felony rather than a misdemeanour, and thus to be insufficient to justify a conclusion that attempts to commit other acts referred to in the statute were not intended to be misdemeanours (1972) VR, at pp 776-777 . The words "or attempts to import" and "or attempts to export" in s. 233B(1)(b) will thus be quite superfluous if s. 237 applies to s. 233B. As a general rule a court will adopt that construction of a statute which will give some effect to all of the words which it contains. The express mention of attempts in s. 233B(1)(b) therefore suggests that it was not intended that s. 237 should apply to the offences created by that section or that attempts to do the acts prohibited by the paragraphs of s. 233B(1) other than par. (b) should constitute offences. This indication is by no means conclusive, since not every draftsman is able completely to avoid surplusage and the explanation of the reference to attempts in par. (b) may be that, because of a looseness in drafting, ss. 237 and 233B(1)(b) to some extent overlap. (at p574)

7. There is a second consideration that supports the view that s. 237 does not apply to the offences created by s. 233B. The defences for which sub-ss. (1A) and (1B) of S. 233B provide are only available on a prosecution for an offence against par. (c) or par. (ca) of sub-s. (1) of s. 233B. They are not available on a prosecution for an offence against s. 237. That section itself creates an offence - it does not merely have the effect that an attempt to commit an offence against another section of the Act becomes an offence against that other section of the Act. It would therefore not be a defence to a charge of the kind laid in the present case for the defendant to prove that the narcotic goods were not imported into Australia or were not imported into Australia in contravention of the Act. Similarly, it would not be a defence to a charge of attempting to commit an offence against the provisions of s. 233B(1)(c) to prove that the offender did not know that the goods in his possession had been imported into Australia in contravention of the Act. It is unnecessary to decide whether the inclusion of sub-s. (1B) was necessary to render s. 233B(1)(ca) a valid enactment. I expressed my own tentative opinion on the subject in Milicevic v. Campbell (1975) 132 CLR 307, at p 315 , but the Court did not finally decide the question. On any view, however, the defences provided by sub-ss. (1A) and (1B) of s. 233B must have been regarded by the Parliament as important safeguards against injustice that might otherwise have been occasioned by the width of the provisions of pars (c) and (ca) of s. 233B(1). It would be expected that similar safeguards would be provided if attempts to commit offences against pars (c) and (ca) were themselves offences. It is unlikely that it was intended that a person should be convicted of the offence of attempting to commit an offence against par. (c) if he proved that he did not know that the goods in his possession had been imported into Australia in contravention of the Act or that a person should be convicted of attempting to commit an offence against the provisions of par. (ca) if he proved that the goods were not imported into Australia or were not imported into Australia in contravention of the Act. It is of course possible that the omission to provide that the matters mentioned in pars (1A) and (1B) should, where appropriate, be defences on prosecutions for offences against s. 237 was due to mere inadvertence. However, the fact that no such defence is provided strengthens the view that it was not intended that s. 237 should apply to offences against s. 233B. (at p575)

8. It was also submitted on behalf of the appellant that in the nature of things there cannot be such an offence as attempting to have in possession. It is of course obvious that it is possible to attempt to obtain or acquire possession of something. The words "has in his possession" are not synonymous with "gets possession of"; the latter expression connotes activity, the former a state of affairs. In Reg. v. Grant, Mahon J. said (1975) 2 NZLR 165, at p 169 :

"But to be in possession or to have an article in possession is neither an act nor omission. It represents not an act but the passive consequences of a prior act, namely, the act of acquisition of possession . . ."

In that case it was held that there is no offence known to the law of New Zealand of attempting to have possession of a narcotic. Under the Narcotics Act 1965 (N.Z.) it was an offence for a person, except pursuant to a licence or as otherwise permitted by regulations, to "have any narcotic in his possession" for certain specified purposes. By s. 72 of the Crimes Act 1961 (N.Z.) it was provided (inter alia) that "Every one who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his object, is guilty of an attempt to commit the offence intended ...". It was held that "act" in s. 72 refers to the commission of an act as opposed to the acquisition of a criminal status and that "the only act of the offender capable in the abstract of description as an attempt is the act of acquiring or procuring possession, which is the very act by which the crime is consummated, whether the act referred to in s. 72 is, by implicit definition, an act antecedent to the commission of the substantive crime ...". The appellant sought to apply similar reasoning to ss. 233B(1)(ca) and 237. It would not be right to express any view as to the correctness of the decision in Reg. v. Grant (1975) 2 NZLR 165 , which may depend on the particular words of the New Zealand statutes. However, if a legislature provided in terms that it should be an offence to attempt to have possession of a narcotic there would in my opinion be no difficulty in giving effect to the intention so expressed. An act which would constitute an attempt to get possession of a narcotic would in those circumstances also be regarded as constituting an attempt to have possession of the narcotic. I am unable to agree that the only act which would be capable of being described as an attempt to have possession would be the act of getting possession. If the Customs Act manifests an intention to create the offence of attempting to have possession of prohibited imports there seems to me no difficulty in giving effect to that intention. Indeed, such an intention does appear to be revealed by ss. 233(1)(d) and 237 in conjunction. There appears to be nothing in the provisions of s. 233 which would indicate an intention to exclude the application of s. 237. It may be thought that the existence of provisions making it an offence to attempt to have possession of prohibited imports that are not narcotic goods supports the view that the Parliament would also have intended to make it an offence to attempt to have possession of prohibited imports which are narcotic goods since it would not be likely to enact in relation to narcotic goods prohibitions which were less extensive and less likely to be effective than those enacted in relation to other goods. It is unnecessary to consider whether s. 233(1)(d) is constitutionally valid, or whether its provisions should be read down to preserve their validity (see Milicevic v. Campbell (1975) 132 CLR, at pp 314-315 ), but its presence in the Act does provide some assistance for the argument that s. 237 was intended to apply to s. 233B also. On the other hand, the respective provisions made by ss. 233 and 233B, with respect to goods that are not, and those that are, narcotics are not in all respects the same. (at p576)

9. The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences: see R. v. Adams (1935) 53 CLR 563, at pp 567-568 ; Craies on Statute Law, 7th ed. (1971), pp. 529-534. The rule is perhaps one of last resort. In the case of the present statute the two considerations to which I have referred do in my opinion raise a real doubt as to the meaning of the enactment. It is doubtful whether the legislature intended to extend the provisions of s. 237 to those of s. 233B when the effect of such an extension would be that some words of the latter section would be surplusage and that an important defence available to those charged with committing the offence itself described in s. 233B (1) (ca) would be denied to those charged with attempting to commit that offence. It cannot in my opinion be said to be clear that a construction which would render s. 237 applicable to s. 233B is better calculated to give effect to the apparent intention of the legislature than one which would render that section inapplicable. I have already pointed out that it would be unnecessary and inappropriate to apply s. 237 to par. (b) of s. 233B(1). Although it is no doubt theoretically possible to attempt to fail to disclose knowledge (see par. (e)) it is not very likely that the Parliament regarded it as necessary to create an offence of that kind. Similarly, although the Parliament might, if it deemed it necessary, make it an offence to attempt to aid, abet, counsel or procure, or be in any way knowingly concerned in, the importation into Australia of prohibited imports (see par. (d)), it is not self-evident that such an extension of criminal responsibility would be thought necessary to achieve the purposes of the Act. The remaining paragraphs, (a), (c) and (ca) , all have, as an element of the offences created, the circumstance that the offender has narcotic goods in his possession. Speaking generally it is not in itself harmful to have possession of drugs but it might understandably be thought necessary to make it an offence to have possession, for the purpose of preventing evasions of the evident purposes of the statute. However, it is not so obviously necessary to take the further and more drastic step of making it an offence to attempt to have narcotic goods in possession. In some circumstances, conduct that might be regarded as an attempt to have possession of narcotic goods would constitute an offence against other provisions of s. 233B. Of course a court is not concerned with the wisdom or desirability of the provisions of the statute, but the matters mentioned are material because the provisions of the statute are doubtful, and if a construction that would apply s. 237 to the provisions of s. 233B was clearly better calculated to give effect to the intention revealed in the Customs Act than one which denied its application, that would provide a reason why the construction should be adopted even though it enlarged the scope of the penal statute. (at p577)

10. In the end, I have reached the conclusion that the considerations to which I have referred, and which suggest that s. 237 is not intended to apply to s. 233B, have not been outweighed by any indications of a contrary intention. The effect of the provisions at the least remains doubtful and that doubt should be resolved in favour of the liberty of the subject. For the reasons given, I find myself unable to agree with the conclusion which was reached by the Court of Appeal as to the effect of these difficult provisions. I consider that the indictment did not charge an offence known to the law. (at p578)

11. The second of the questions asked appears merely to be repetitive of the first, and it seems clear that it does not require us to consider whether the appellant might have been charged with some other offence against the Customs Act; we could not consider that question, since the facts are not before us. I would allow the appeal and answer in the negative both questions stated for the opinion of the Court. (at p578)

STEPHEN J. I would allow this appeal. In my view s. 237 has no application in relation to s. 233B. The two considerations relied upon for this conclusion in the reasons for judgment of Gibbs J., that is, the reference to attempts in s. 233B(1)(b) and the limited availability of the defences provided for by sub-ss. (1A) and (1B) of s. 233B, in my view require the two questions which have been stated to be answered in the negative. (at p578)

MASON J. Resort to the history of a statute all too rarely illuminates the meaning of its current provisions. This case is an exception. The history of the Customs Act indicates quite persuasively that s. 233B was intended from its very inception to operate independently of the provisions of s. 237. (at p578)

2. Section 237, which provides that any attempt to commit an offence against the Act shall be an offence itself and which is of general application, was a provision in the original Customs Act of 1901. So also was s. 236, another provision having a general application, which provides that whoever aids, abets, counsels or procures or by act or omission is in any way directly or indirectly concerned in the commission of any offence against the Act shall be deemed to have committed such offence. Both provisions therefore had and for that matter still have an application to s. 233. That section in its original form provided that "No person shall smuggle or unlawfully import, export, convey or have in his possession any goods and no master of a ship or boat shall use or suffer his ship or boat to be used in smuggling or in the unlawful importation, exportation, or conveyance of any goods". (at p579)

3. Section 233 was amended by the Customs Act 1910 (No. 36 of 1910), the Act which introduced s. 233B. As then amended, s. 233 provided:

"(1) No person shall - (a) smuggle any goods; or (b) import any prohibited imports; or (c) export any prohibited exports; or (d) unlawfully convey or have in his possession any smuggled goods or prohibited imports or prohibited exports.

Penalty: One hundred pounds. (2) It shall not be lawful for any person to convey or have in his possession without reasonable excuse (proof whereof shall lie upon him) any smuggled goods or prohibited imports. (3) It shall not be lawful for any person to convey or have in his possession any prohibited exports with intent to export them or knowing that they are intended to be unlawfully exported."

The reference to penalty has been deleted and replaced by a different provision. Otherwise s. 233(1) remains unaltered. (at p579)

4. Although the form of sub-s. (1) of s. 233B has not changed substantially since it was introduced in 1910, the Customs Act (No.2) 1971 (Act No. 134 of 1971) made two significant changes by making the section apply to prohibited imports and exports which were narcotic goods and by introducing par. (1)(ca). At the same time s. 233B(1) was amended so as to deal with exportation or intended exportation of prohibited exports. As originally enacted in 1910 s. 233B(1) provided as follows:

"233B. - (1) Any person who - (a) without any reasonable excuse (proof whereof shall lie upon him) has in his possession, on board any ship, 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

(c) 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, 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

(e) fails to disclose to an officer on demand any knowledge in his possession or power concerning the importation or intended importation into Australia of any prohibited imports to which this section applies,

shall be guilty of an offence against this Act. Penalty: Imprisonment for not less than three months and not more than two years."

It was, as the marginal note suggests, a special provision in relation to prohibited imports. By sub-s. (2) it was expressed to apply "to all prohibited imports to which the Governor-General by proclamation declares that it shall apply". (at p580)

5. Consequently in 1910 and thereafter s. 233 was a general provision creating offences in relation to the smuggling of goods, the importation of prohibited imports, the exportation of prohibited exports and, inter alia, unlawful possession of prohibited imports and prohibited exports. On the other hand, s. 233B was conceived as a special provision applying only to such prohibited imports as the Governor-General by proclamation might declare it to be applicable. But its application to prohibited imports so declared was not an exclusive application. It did not displace the operation of s. 233 in relation to such imports, as s. 233B(4) made clear. It provided:

"(4) This section shall not prevent any person from being proceeded against for an offence against any other section of this Act, but he shall not be liable to be punished twice in respect of any one offence."

The consequence was that the imporation or possession of prohibited imports the subject of a proclamation under s. 233B(2) could give rise to offences against s. 233 and s. 233B, it being understood, as I have pointed out, that s. 236 and s. 237 applied to s. 233. (at p580)

6. It is in this setting that s. 233B has to be considered and the relationship between it and ss. 236 and 237 has to be determined. Viewed in this light the limited provision as to attempts, that which finds expression in s. 233B(1)(b), and the more general provision as to aiding and abetting, that which finds expression in s. 233B(1)(d), have a particular significance. Their presence is explicable only on the footing that s. 233B was intended to have an operation independent of ss. 236 and 237. Otherwise there is no rational explanation for the contemporaneous introduction into the Act of a new s. 233 containing no provisions as to attempts and aiding and abetting and relying in this respect on ss. 236 and 237, and of s. 233B, a special provision creating somewhat similar offences in relation to a limited category of goods of the same class, containing special provisions as to attempts and aiding and abetting. (at p580)

7. If s. 237 applied to s. 233B, the reference to "attempts to import" in par. (1)(b) was quite unnecessary. So also was par. (1) (d), if s. 236 also applied to the section, subject to a slight difference in language between that paragraph and s. 236. It is inconceivable that a duality of provisions as to attempts and aiding and abetting was intended in the case of s. 233B. (at p581)

8. The contrary view must rest, I think, on the limited character of the attempt provision which was incorporated in par. (1)(b) of s. 233B. It is confined to attempts to import. No endeavour is made to create the offence of attempting in relation to pars (1) (a), (c), (d) and (e). But this approach was, in my opinion, both understandable and sensible, once it is recognized that ss. 233 and 233B have a dual operation in relation to prohibited imports declared by proclamation under s. 233B(2) and it is also recognized that s. 233 operates in conjuction with ss. 236 and 237. (at p581)

9. Thus there existed the offence of attempting to have in possession prohibited imports (s. 233(1)(d) and s. 237), not-withstanding that the imports were declared under s. 233B. In this respect I shall assume that the offence of attempting to have possession of goods may be created by Parliament or more accurately that a general provision creating the offence of attempting may be applied to an offence of having goods in possession. If this assumption is incorrect, then there is even stronger ground for holding that s. 237 does not apply to s. 233B. (at p581)

10. In the light of all this the criticism based on the limited nature of the attempt provision in s. 233B(1)(b) loses its force. True it is that the penalty prescribed for an attempt to commit an offence against s. 233 is less than the penalty prescribed for an offence against s. 233B. However, this is not in my view of any consequence. (at p581)

11. Of the original paragraphs in s. 233B(1) these comments may be made: the offences created by pars (1) (b) and (1) (e) are not readily susceptible of becoming the subject of attempts; that although no provision is made for an attempt in relation to par. (1) (d) - the aiding and abetting provision - there may exist a possible alternative arising from the combination of ss. 236 and 237 with s. 233; and that although no provision was made for the creation of the offence of attempting in relation to pars (a) and (c) - the offences relating to possession - an alternative offence of attempting was created by s. 233(1)(d) in conjunction with s. 237. (at p581)

12. That s. 233B has an operation independent of ss. 236 and 237 is, I think, confirmed by the presence of sub-ss. (1A) and (1B) which were introduced into the section by Act No. 54 of 1967 and Act No. 134 of 1971 respectively. They provide:

"(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 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 had been imported into Australia in contravention of this Act."

"(1B) On the prosecution of a person for an offence against sub-section (1) of this section, 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." (at p582)

13. By their terms they provide a defence "On the prosecution of a person for an offence against sub-section (1) of this section ...". They do not provide a defence on the prosecution of a person for an offence against s. 237. An attempt was made by the Crown to surmount this hurdle by submitting that sub-ss. (1A) and (1B) form part of the concept of the offences created by sub-ss. (1)(c) and (ca) . This of course is not correct; the language makes it manifestly clear that the defences are available only on prosecutions for offences against sub-s. (1), and that they are limited to pars (1) (c) and (1) (ca). (at p582)

14. It is true that Act No. 134 of 1971 gave s. 233B a somewhat different significance when it was converted into a special provision with respect to narcotic goods and par. (1)(ca) was included in it and other amendments were made which gave it an application to exportation and to prohibited exports as well as to importation and prohibited imports. But the alterations then made, apart from the introduction of sub-s. (1B) with which I have already dealt, did not touch the question whether the section operated in conjunction with, or independently of, ss. 236 and 237. Certainly the provisions of par. (1)(ca) which is in the following terms -

"without reasonable excuse (proof whereof shall lie upon him) has in his possession any prohibited imports to which this section applies which are reasonably suspected of having been imported into Australia in contravention of this Act, or"

do not affect the question. Consequently, the operation of the section independently of ss. 236 and 237 was not affected by the amendments made in 1971. (at p582)

15. For these reasons I have come to the conclusion that s. 237 has no application to s. 233B and that the appellant was charged with an offence not known to the law. I would therefore allow the appeal and answer both questions in the negative. (at p583)

JACOBS J. In my opinion the appeal should be allowed. The question raised is a difficult one because of the manner in which the statutory provisions are framed. I am substantially influenced in my conclusion by the difficulty of applying the precise language of s. 233B(1)(ca) to an attempt. The offence would be that of attempting without reasonable excuse to have in possession any prohibited imports to which s. 233B of the Customs Act 1901-1975 applies which are reasonably suspected of having been imported into Australia in contravention of the Act. The absence of reasonable excuse as a constituent of the principal offence must exist at the time of having the prohibited imports in possession. If there is no possession, there is strictly no basis upon which the issue of reasonable excuse at the relevant time could be determined. If a statute unambiguously so provided, effect could be given to it, but it would be necessary to transpose the requirement that there be no reasonable excuse from the time of possession to another time, presumably the time of an attempt to acquire possession. Where the language of the Act is not clear, I do not think that the transposition can be justified. Thereby strength is given to the submission that the general provision relating to attempts which is contained in s. 237 is displaced by a context in s. 233B wherein the legislature expressly and exhaustively provides for those cases where an attempt is to constitute an offence. (at p583)

MURPHY J. Section 237 of the Customs Act 1901 does not apply to offences against s. 233B of that Act. The provisions of s. 233B are, as the marginal note indicates, "Special Provisions with respect to Narcotic Goods". Section 233B was amended by the Customs Act 1967 which was a measure cognate with the Narcotic Drugs Act 1967 implementing some of Australia's obligations under the Single Convention on Narcotic Drugs 1961 and was further amended in 1971. It deals comprehensively with attempts to export or import narcotic goods and with aiding and abetting, counselling, procuring or being knowingly concerned in the importation or exportation of the goods to which the section applies. (at p583)

2. The legislative intention that the provisions in s. 233B are exclusive of ss. 236 and 237 is clear from the inclusion in s. 233B of offences of attempts to import or export (in sub-s. (1)(b)) and of aiding, abetting, counselling, procuring or being knowingly concerned in importation or exportation (sub-s. (1)(d)). (at p583)

3. Sections 236 and 237 are roping-in provisions covering aiding and abetting and attempts. Section 236 states:

"Whoever aids abets counsels or procures or by act or omission is in any way directly or indirectly concerned in the commission of any offence against this Act shall be deemed to have committed such offence and shall be punishable accordingly."

It is to be noted that the expression of the offence of being concerned in the commission of an offence differs from that in s. 233B(1)(d). Section 237 states:

"Any attempt to commit an offence against this Act shall be an offence against this Act punishable as if the offence had been committed."(at p584)

4. It is appropriate to apply the principle that general provisions (such as ss. 236 or 237) do not qualify, subtract from or add to a special provision such as s. 233B. (at p584)

5. This conclusion is strengthened by the anomaly which would otherwise exist because the special defences provided by s. 233B (1A) and (1B) do not apply to the suggested offence created by s. 237 (unless by a difficult construction the defences are implied into s. 237). Thus it would not be a defence to a charge of an attempt under s. 237 to prove that the narcotic goods were not imported into Australia or were not imported into Australia in contravention of the Act. (at p584)

6. There would also be another anomaly. The special provisions of s. 235 of the Customs Act 1901 dealing with penalties and procedure are related back to the offences against ss. 50(4), 231(1), 233A and 233B(1) and do not apply to offences against ss. 236 or 237. These provisions in s. 235 concerning summary disposition and indictment are mirrored in the Narcotic Drugs Act 1967, s. 20. It is extremely unlikely that Parliament would have intended to apply to an attempt under s. 237 the heavy penalties which apply to an offence under s. 233B (by reason of s. 235) and yet not apply the special procedural provisions which apply to the offences under s. 233B. (at p584)

7. The question whether this legislative scheme contravenes s. 80 of the Constitution was not raised. Section 80 provides:

"The trial on indictment of any offence against any law of the Commonwealth shall be by jury..."

In R. v. Bernasconi (1915) 19 CLR 629 and R. v. Archdall (1928) 41 CLR 128 it was decided that s. 80 was a mere procedural provision so that a person accused of a serious criminal offence could be deprived of any right to trial by jury by the simple device of providing for trial without an indictment. I agree with what Dixon and Evatt JJ. said of s. 80: "... to treat such a constitutional provision as producing no substantial effect seems rather to defeat than to ascertain its intention" (1938) 59 CLR 556, at p 584 and with their support for the proposition that "the Constitution is not to be mocked" (1938) 59 CLR, at p 582 (R. v. Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 59 CLR 556 ). Section 80 is a mockery if it does not guarantee trial by jury for serious criminal offences (which those under s. 233B of the Customs Act are). If s. 80 is a guarantee of trial by jury in serious criminal cases, how do the provisions of the Customs Act stand against it? The legislative scheme (including ss. 233B and 235) provides that the penalty applicable to any offence against s. 233B (where the quantity of narcotic substance is not less than the trafficable amount) is after conviction upon indictment (that is, after trial by jury, as required by s. 80 of the Constitution) imprisonment for a period not exceeding ten years or a fine not exceeding $4,000 or both, but after conviction summarily, imprisonment for a period not exceeding two years or a fine not exceeding $2,000 or both. A legislative scheme such as this tends to impair and undermine the guarantee by deterring accused persons from insisting on trial by jury. (at p585)

8. The applicant also submitted that there is no offence of attempting to have goods in possession arising from s. 237 in relation to s. 233B because an attempt to have possession is not intelligible. The suggested offence is not the same as an attempt to acquire possession which is easily understood (see Reg. v. Grant (1975) 2 NZLR 165 ). It is debatable whether an attempt to have possession is an understandable concept (see the Court of Criminal Appeal in this case (1976) 1 NSWLR 511; (1976) 26 FLR 401 ; People v. Siu (1954) 271 P (2d) 575 , People v. Foster (1950) 91 NE 2d 875 ; cf. Reg v. Grant (1975) 2 NZLR 165 ). Because of the difficulty in understanding it, an intention to create such an offence should not be attributed to Parliament. When Parliament imposes very heavy criminal penalties, it should be taken as speaking plainly and not as creating offences which can only be understood (if at all)) with very great difficulty. (at p585)

9. In my opinion, the appeal should be allowed. (at p585)

Orders

Appeal allowed.

Judgment of the Supreme Court of New South Wales (Court of Appeal) set aside.

In lieu thereof answer both questions stated for the opinion of that Court in the negative.

Set aside the verdict and order that indictment be quashed.