Bell v State of Tasmania
[2021] HCATrans 153
[2021] HCATrans 153
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Hobart No H2 of 2020
B e t w e e n -
CHAUNCEY AARON BELL
Appellant
and
STATE OF TASMANIA
Respondent
KIEFEL CJ
GAGELER J
KEANE J
GORDON J
EDELMAN J
STEWARD J
GLEESON J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA BY VIDEO CONNECTION TO BRISBANE, SYDNEY AND MELBOURNE
ON WEDNESDAY, 6 OCTOBER 2021, AT 10.00 AM
Copyright in the High Court of Australia
KIEFEL CJ: Yes, Mr Coates.
MR COATES: Thank you, your Honours. Before the adjournment yesterday I was talking about the meaning of section 14 of the Criminal Code and the authorities say that whether it is an enabling section of the common law or a standalone section that repeats the common law, the common law applies from time to time.
The authorities for that proposition are Snow v The Queen [1962] Tas SR 271 where all three judges agreed that it was the common law and R v Martin [1963] Tas SR 103, which is a leading authority in Tasmania. Again, all three judges stated whatever way you get to it, it is the common law. Chief Justice Burbury, in particular, at page 112 states that “excuse” is equivalent or synonymous with the term “innocent”.
If I can move on, in respect to the definitions between the Queensland Criminal Code and Tasmania and the common law, I rely on my written submissions at paragraphs 40 to 48, and also the Attorney‑General of Queensland’s submissions. I would just like to add a couple of matters.
In the Queensland submissions they outline how the term under their provision is similar to the Criminal Code No 2 Bill 1880. As was stated by the Attorney‑General in the second reading speech of the Criminal Code (Tas), the Tasmanian provisions are to a large extent just based on the 1879 Draft Code which does have no honest reasonable mistake provision in the Code. By 1924 both the Griffith Codes in Queensland and Western Australia are enacted and therefore it could only be seen as a deliberate choice by the Tasmanian Parliament to enact section 14 in the terms of the common law.
Although I adopt the Queensland submissions, there is one submission at paragraph 50 of their submissions where they state that Justice Stephen’s formula in R v Tolson (1889) 23 QBD…..page reference, but at page 190 Justice Stephen, in my submission, clearly adopts Justice Brett’s position in Tolson where he states:
His judgment establishes at much length, and, as it appears to me, unanswerably, the principle above explained, which he states as follows: “That a mistake of facts on reasonable grounds, to the extent that, if the facts were as believed, the acts of the prisoner would make him guilty of no offence at all, is an excuse, and that such an excuse is implied in every criminal charge and every criminal enactment in England.”
Lord Blackburn, with whom nine other judges agreed, and Lord Bramwell, with whom seven others agreed, do not appear to me to have dissented from this principle, speaking generally ‑ ‑ ‑
EDELMAN J: Mr Coates, is that the proposition which you say reflects the common law now?
MR COATES: Yes, your Honour.
EDELMAN J: How do you deal with examples such as that that was given by the Model Criminal Code Officers Committee when considering the scope of an honest and reasonable mistake‑type excuse, and discussing a situation where a person honestly and reasonably believes that he is importing watches when in fact it is discovered that he is importing heroin, and the import of watches without a licence amounts to an offence? Do you say in those circumstances there is no honest and reasonable mistake excuse?
MR COATES: I say, as was said in the Court of Criminal Appeal, there may need to be some limitation put on it, of an offence of a similar nature, where there is some moral culpability. Clearly, you could say, in those circumstances, where it is so different to the offence charged, that there needs to be some degree of proportionality involved.
EDELMAN J: It seems then that the test that you are proposing is almost identical to the appellant’s test if you say that the question is whether the offence is sufficiently similar. The appellant says, well, an offence of supplying drugs to a child is just not sufficiently similar to an offence of supplying drugs. The difference between your approach and the appellant’s approach is not one of substance, it is just one of application.
MR COATES: I think the example that you have given is a very extreme example. I think – in my submission, generally speaking, if it is another criminal offence then it applies.
GORDON J: Yesterday, I put to the appellant’s counsel that one way of limiting it consistent with this Court’s jurisprudence about the particular act, matter or thing which is the foundation of the charge was to, in effect, focus on those aspects in order to provide, as you suggest, some limitation to this wide‑ranging inquiry that would otherwise be conducted. We know from Ratten’s Case that the criminal law is not an inquisition. Do you have an issue with that kind of approach that one says, well, what is the particular act, matter or thing which is the foundation of the charge?
Here, as I understood your submission yesterday, you were putting that the physical act is the supply of the controlled drug. Now, if that is right then, at least in this case, it may arguably be said that there is no excuse because there is the other offence of supply of controlled drug without the additional aspect to it.
MR COATES: Yes. In my submission in this case they are of a similar nature. The wrongdoing is very similar and, therefore, principles should apply. Can I say that if it is limited to – as the offences say – no criminal offence at all, that is what has been applied throughout the cases in this country by this Court.
The decision of Thomas v The Queen (1937) 59 CLR 279, which is at volume 5, page 982 of the papers, the appeal books, Chief Justice Latham at 287 refers to Justice Wills and Justice Cave in Tolson. Justice Starke refers to the passages - referred to Justice Stephen in Tolson. Justice Dixon refers the often‑quoted quote of Justice Cave in Tolson that:
“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.”
Justice Dixon at page 304 stated that Tolson established a general doctrine that:
a good defence that the accused held an honest and reasonable belief . . . which, if true, would make innocent the act for which he is charged.
That was referred to – well, principle was referred to in this Court in R v Reynhoudt (1962) 107 CLR 381, volume 5 at page 952. There…..a case from Victoria…..was charged with assaulting a police office. The defence was that they did not know it was a police officer. The minority judgments of Justice Dixon and Justice Kitto found that it was an ingredient for the offence that you had to intend to assault the actual – intend to assault a police officer. However, Justice Dixon at page 385 to 386 stated:
It is perhaps proper to add that no one denied that a defendant might set up honest and reasonable mistake but the facts in which he honestly and reasonably believed must be such as would make his act innocent, e.g. a justification of the assault.
Justice Kitto at page 389 stated:
A defence of honest and reasonable mistake might, of course, have succeeded even though the intention requisite for guilt had been found. Thus, if the respondent had satisfied the jury on a balance of probabilities that he honestly and on reasonable grounds believed in the existence of facts which, if they had existed, would have made what the did to the police officer no assault at all, he must have been acquitted.
The majority did not infer mens rea into the offence and stated that for the defence to be available then it would have to make him innocent of an assault. Tolson was then referred to in He Kaw Teh v The Queen 157 CLR 523, at volume 3, page 336 of the appeal books. Chief Justice Gibbs referred to Justice Cave in Tolson, Bank of New South Wales v Piper, and at page 533 stated it:
is to hold that an accused will not be guilty if he acted under an honest and reasonable mistake as to the existence of facts, which, if true, would have made his act innocent.
Justice Brennan stated at page 588 to 589 - referred to Prince and then stated the law was:
Brett J. took the view that the required state of mind relates to what makes the offender’s act a criminal offence although his Lordship defined mens rea in the form later adopted in Bank of N.S.W. v. Piper. His approach accordingly fastened on belief in facts which would if true make the offender’s acts no criminal offence at all . . .
It follows that an exempting provision is needed to protect persons who, in the course of duty or otherwise acting with innocent motives –
Justice Dawson, on page 591, stated that:
the modern application of the concept begins with Reg. v. Tolson and, in particular, the judgment of Cave J. –
and then of course, in my submission, it was reasonably affirmed in CTM v The Queen. So the suggestion that Bergin v Stack is some outrider is, in my submission, not correct. It is consistent with all the jurisprudence of this Court from Thomas right through to CTM v The Queen.
In my submission, in this case for the appellant to succeed this Court would need to overrule Bergin v Stack. Both offences are serious criminal offences. Both offences are of the same nature. Both offences are in the one enactment. In my submission, there has been no good reason put forward to overturn Bergin v Stack. It has been the law for almost 70 years. It is in accordance with the general principles outlined in the authorities of this Court. There have been no dissenting judgments.
My learned friend has not pointed out any real injustice that the rule causes. In fact, if the rule did not exist, as could be under the sexual offence provisions that were considered in CTM, if the rule was as my learned friend said, then it could mean a person is not guilty of any offence because - they would not be guilty of the offence charged because of their honest and reasonable mistake of fact and, if true, they would not be guilty of the crime they believed they were committing because they in fact had not committed it because of some other element of the offence.
So, for example, in CTM I think the Crimes Act (NSW) section 66 has a series of sexual offences, being sexual intercourse with a child under 10, between 10 and 14, and 14 and 16. Thus if the person was charged with between 10 and 14, if they had a belief they were under 10 or above 14, they would not be guilty of the charge they were charged with and they would not be guilty with the other offences because the charge had not been proved because the complainant was not under 10 or was not over 14.
In my submission, as stated in CTM, any discrepancy can be dealt with in the sentencing process. Finally, there has been much made that the sentencing provision for breaching section 14 of the Misuse of Drugs Act is 21 years, whereas breaching section 26 is four years. The 21 years is to be consistent with the Criminal Code (Tas) which every offence other than murder has a maximum penalty of 21 years.
The Attorney‑General in the second reading speech stated the reason for that was to do away with maximum penalties and leave it to judges’ discretion. In fact, as on our written submissions, the most anybody has ever got for supplying a child with a controlled drug is nine months’ imprisonment. As Justice Pearce stated in his judgment in the Court of Criminal Appeal, conduct under section 26 can be more serious than conduct under section 14. They are our submissions.
KIEFEL CJ: Yes, thank you, Mr Coates. Solicitor‑General for Tasmania.
MR O’FARRELL: May it please the Court.
GORDON J: Mr Solicitor, before you ask, may I ask one question? Is it that your interests are different or disparate from that which has been put on behalf of the Director, and why is it that this accused, or this person should, in effect, have to face two arms of the government?
MR O’FARRELL: Well, your Honour, we only sought to intervene to assist the Court. We effectively raise one issue – perhaps more than one, but an issue of context of interpretation, which we felt may assist the Court, but, your Honour, that is the only reason.
GORDON J: Thank you.
MR O’FARRELL: Your Honour, we certainly did not seek to press the accused in their appearance….. Your Honours, if I can just refer to the outline of oral argument, it seems to – paragraph 2 is probably uncontroversial in my assessment of what has happened in the last hours before the Court. Paragraph 3 is probably also uncontroversial. The connection between the Code and the Misuse of Drugs Act happens effectively in two ways, we would submit. The first is that section 14 is, in effect, to pick up the words of section 4 of the Code, an offence:
described or referred to as a crime defined by the Code –
and so it takes, effectively, the attributes of the Criminal Code, and then, coming back the other way, our Acts Interpretation Act section 36 picks up the application of the principles of criminal responsibility. We would submit, by reference, section 36 of the Acts Interpretation Act refers to an offence in some other Act, and we would submit that that is an offence, the purpose of which section 36 seeks to transpose back in to the principles of criminal responsibility under the Code, so that effectively it is an interchange of the principles, both purpose of which is to ensure that the principles are applied consistently to like offences.
Now, your Honours, turning to point 5, we simply make what is probably an obvious point that the difference between 14 and 26 in the Misuse of Drugs Act is simply a matter of legislative policy, that is to say the protection of children from the grave social evils associated with purveying illicit drugs to the vulnerable, who are identified as children.
In that way, we would submit that section 14 takes on no different interpretation than has been advanced by either party, as I understand it, that is, that the voluntary and intentional act is the act of administering, in this case, the amphetamine, and the fact, the physical fact that the girl was a child completes the offence.
Now, your Honours, then, to advance the argument – probably the primary argument that we referred to in our outline of submissions, there is an abstract point involved in this and that is this idea of risk where an accused commits an offence. That is what we submit as a matter of context is something which section 13(3) points to. That section of course is not without difficulties and that has been noted in Vallance both in the Full Court and also in the High Court, but nonetheless it points in this case to a particular theme that runs through these principles.
So, in point 6 we have pointed out – where there is voluntary intention of conduct that amounts to a contravention of either section 14 or 26 the act of the accused enters on a threshold of risk in which the general principles relating to criminal responsibility apply, of course depending on the particular circumstances of the case. So there is 13(1) and then there is this inculpation by section 13(3), which I will come to shortly, and then there is the exculpatory effect of section 14 if it is available. But the boundary ‑ ‑ ‑
GAGELER J: Mr Solicitor, can I just ask this? It concerns a relationship between this submission that you are making concerning section 13(3) and the submission that was put to us by the Director concerning section 14. One way or another, the Director says section 14 simply points to the common law – we are concerned simply with the common law, either by section 14 providing a mechanism by which the common law principle of interpretation picked up by section 8 is implemented, or by section 14 itself embodying the common law principle. Now, what are you doing with section 13(3)? Are you saying that somehow modifies this common law principle in Tasmania and, if not, why are we looking at it at all?
MR O’FARRELL: Your Honour, what we say is that in the scheme of the principles with criminal responsibility, section 13(3) indicates clearly what is the fundamental difference between section 14 and section 13(3), and that is that you only embark on section 13(3) where the act is inexcusable under section 14. So, there is a clear boundary drawn on the threshold of criminal responsibility between an actor who intends to commit an offence and one who does not intend to commit an offence at all.
GAGELER J: Do you agree that we are concerned with the common law honest and reasonable mistaken fact?
MR O’FARRELL: Yes, your Honour. I do agree with that, subject, your Honour, to the following submissions. The elements of honest and reasonable mistaken fact for the purpose of the Tasmanian Code are identified in a somewhat oblique way in section 14 of the Code. It recognises the honest and reasonable mistaken belief in the state of affairs, et cetera.
All of those things are reflections of the common law and, indeed, the word “excuse” in section 14 is also a reflection of common law in the sense that section 14 deals with principles of criminal responsibility and that provision is defined by section 1 of the Code as being liability…..punishment as for an offence.
So when the act is excused under section 14, to set off the question of law that then must be asked, it is a question of whether the excuse will effectively excuse the accused from liability or punishment and, to that extent, we say that it is no different in common law and we adopt what our learned friend the Director says about it.
Your Honours, the point we make about section 13(3), if I could return to that, is I have said that it starts from a different practice, that is, that 13(3) says, well, if you intend to commit an offence then you enter on a threshold of risk, and even if consequently the result of your act is foreseen, that is, we would say…..you are liable for punishment as for an offence and we would submit that the only sensible reading of section 13(3) in that regard is for the offence completed by the unforeseen result.
Now, it is for that reason, your Honours, we say that the accused here is in a somewhat difficult position in respect to the criminal responsibility provisions of the Code because the offence is admitted. The idea that the accused does not say I did not intend to administer an amphetamine - the accused says I did not intend to administer amphetamine to the child, so effectively the accused puts himself in a position where he admits that he intended to commit an offence and that sets off what we would submit is clearly picked up by section 13(1).
Ultimately, your Honours, we say that ‑ as we understand the Director to put ‑ the question does not depend upon section 7(3), it depends on proper application of section 13(1) of the Code which does not seem to be in issue here. So once the defence of honest and reasonable mistake of fact evaporates, as we say it does, the accused has done a voluntary and intentional act which is not excused by a chance event.
Your Honours, we also join with the Director - we say there is no occasion for this Court now to overrule Bergin v Stack or to overrule the dicta in CTM v The Queen. We simply rely on…..for that purpose. If the Court please.
KIEFEL CJ: Thank you, Mr Solicitor. Solicitor‑General for Queensland.
MR THOMPSON: May it please the Court. Can I start by taking the Court to paragraph 5 of our oral outline because there we reference the Review of Commonwealth Criminal Law, Interim Report, July 1990, which, in our submission, very accurately summarises the position with respect to section 24 of the Criminal Code (Qld). The relevant passage appears in supplementary volume 4 and the report begins at page 760 and the relevant passage is at page 769, paragraph 7.9.
EDELMAN J: Mr Solicitor, which tab of the supplementary volume is this?
MR THOMPSON: That is tab 29, if it please your Honour. The Review Committee comprised Sir Harry Gibbs ‑ ‑ ‑
KIEFEL CJ: Mr Solicitor, I think the confusion might be that it is in Part E of the further supplementary authorities, rather than 4.
MR THOMPSON: I apologise. Yes, it is in Part E. I am sorry, your Honour. Does the Court have that passage.
KIEFEL CJ: Where were you reading from?
MR THOMPSON: Paragraph 7.9 on page 69 of the report, page 769 of the supplementary book of authorities.
KIEFEL CJ: Yes, thank you.
MR THOMPSON: The committee comprised Sir Harry Gibbs, Justice Watson and Mr Menzies and the passage begins:
There is one respect in which it does appear clear enough that section 24 of the Criminal Codes of Queensland and Western Australia is not the same as the common law.
Then a discussion of the common law in reference to Bergin v Stack, and then the last sentence:
Under the Codes if the accused believed in facts which would make him or her guilty of a lesser offence, he or she would be guilty of that offence only.
The reference is to Anderson v Nystrom, and in Anderson v Nystrom the relevant passage is worth taking the Court to. It is contained in volume 6 of the joint book of authorities at page 1219 and the relevant part of the judgment of Justice Philp is at page 1233 and I take the Court to it because there his Honour draws a distinction in respect of R v Prince. So about a third of the way down the page the paragraph begins:
The rule as enacted is different from the Common Law doctrine. For example, at Common Law a defendant cannot rely on ignorantia facti with regard to an element of the offence if the act he does is otherwise unlawful. Thus, in England, a man charged with assaulting a police constable cannot plead ignorance that the man assaulted was a constable since the assault itself was unlawful.
Reference to Prince per Baron Bramwell at page 176. Then his Honour continues:
But under s. 24 a man could be convicted only of assault simpliciter.
He then goes on to discuss the remaining part of section 24, which is not relevant for present purposes. The other part of Anderson v Nystrom which we would like to take the Court, or draw the Court’s attention to, is on the previous page at 1232 where there is a discussion beginning halfway down the page with the paragraph “The next question which arises” - really, the whole of that page through to the passage which I have previously taken the Court to.
Then Justice E.A. Douglas at page 1225 in the same case, beginning at the foot of the page, agrees with the judgment of Justice Philp with respect to the operation and effect of section 24 of the Criminal Code, and then also in his Honour’s judgment, the passage at page 1228, beginning at about one‑eighth down the page, the paragraph “On the assumption, however, that an offence might have been proved” and the discussion about mens rea.
That remains the law in Queensland, in our submission. It is confirmed in the Full Court decision of R v Gould and Barnes [1960] Qd R 283, the Court comprised of Chief Justice Mansfield, Justice Philp and Justice Townley. The report is in the supplementary joint book of authorities in Part D behind tab 21 commencing at 586, and the relevant passage is in the judgment of Justice Philp on page 594, page 291 of the judgment, about a third of the way down, where his Honour says:
In Queensland the excusatory effect of mistake in manslaughter depends upon the interpretation of s. 24 of the Code which is as follows –
and then after setting out section 24, his Honour says:
It will be noticed that, unlike the common law, the operation of mistake is not excluded by the unlawfulness of the act done -
and then a discussion by reference to the factual matters in relation to that case. The position seems to be uncontroversial that the Tasmanian Code and section 24, that is, section 14 of the Tasmanian Code and section 24 of the Queensland Code are not in the same terms, and that, at least in that respect, the statement of his Honour Justice Dixon, as he then was, in Thomas v The King, is not accurate.
What we say about Thomas v The King, and what we also say about the decision of CTM is that, in both cases, the question of a secondary or simpliciter offence was not a matter which was relevant to the decision in either case, and therefore there was no detailed analysis of the words of section 24 to any greater extent than if the real state of things had been such as the person believed to exist.
We also point out that there has been, on an analysis of the cases, some element which perhaps I would describe as lack of clarity as to whether “innocent” means innocent of any unlawful act, and we take on board the observations of Justice Keane about the reasons for the Court, particularly in the 19th century, looking at the requirement of, in some cases, not only just the act not being unlawful, but also a moral element to that, and its relationship with mens rea, but there are passages which suggest that there was some level of confusion about whether or not “innocent” was “innocent of the act which the accused was charged with” or “innocent of any charge” or any offence, or any unlawfulness.
If one goes to Thomas one sees that there is a what might be looseness of language perhaps, although I am certainly not someone to level that criticism at the members of the Court, but one sees, for example, in the judgment of Chief Justice Latham in Thomas, which is contained in volume 5 behind tab 19, beginning at page 982, the Chief Justice on page 286 about two‑thirds of the way down the page says:
Thus, if his belief as to the matter of fact mentioned had been true, he would not have been guilty of the offence charged.
Then if one goes through to Justice Dixon, before the reference to the Codes of Tasmania and Queensland reflecting the common law, on page 304, which is page 1007, his Honour there refers to Tolson’s Case about a third of the way down the page and in that passage after the reference to “the principles of the Mikado” his Honour says:
The rule accepted was that in the case alike of an offence at common law and, unless expressly or impliedly excluded by the enactment, of a statutory offence, it is a good defence that the accused held an honest and reasonable belief in the existence of circumstances which, if true, would make innocent the act for which he is charged.
Then his Honour refers to Bank of New South Wales v Piper and sets out the passage which contains the same reference to the act charged against him which appears at the top of page 1008, that is 305 in his Honour’s judgment:
if true, would make the act charged against him innocent.
His Honour then sets out a passage from Chief Justice Griffith’s judgment in Hardgrave v The King about a third of the way down the page which begins:
“The general rule is that a person is not criminally responsible –
and we direct the Court’s attention to the fifth line down in that passage:
not criminally responsible for it even if the facts which he believed did not exist -
and “it” seems to be a reference back to the act which is the subject of the charge. So there is some question about how the common law was being formulated, or the rule of common law was being formulated, but when one gets to Bergin v Stack in Justice Fullagar’s judgment, I think it is stated, with respect, sufficiently clearly that it is in terms which Sir Harry Gibbs and the committee identified the common law at paragraph 7.9 of the report to which I have taken the Court to already.
EDELMAN J: Mr Solicitor, can I just ask you, given that our focus in this case is upon the common law, would it even be possible for the common law to develop in the way that it appears that Sir Samuel Griffith or certainly Justice Dixon thought that it might have to reflect the terms of a provision such as section 24? The reason I ask that is because there must at least be a question as to whether the common law could ever permit a person to be found to be guilty of an offence that that person - based upon facts that that person believed to exist, but which do not actually exist?
MR THOMPSON: If I understand your Honour’s question, it is perhaps identified by the plethora of statutory offences of relatively minor significance which have become part of our law when compared perhaps with the decisions of the 19th century which were not complicated in that way and as the law developed in a way which needs to accommodate that – is that essentially your Honour’s question?
EDELMAN J: No, what I am asking is – Sir Samuel Griffith in his marginal note to section 24 referred to as the common law. Justice Dixon also thought that a provision such as section 24 was the same as the common law. Given that we are focusing on the common law, one concern that I would have is whether the common law could even develop to that result because for it to do so, the common law would require, as section 24 allows, that a person would be guilty of an offence based upon facts that do not actually exist, but they are facts only that the person believes to exist.
MR THOMPSON: I think the answer, your Honour, is no, because the common law is so entwined – the common law defence – if I can call it defence – of mistake is so dependent or entwined with mens rea. I think that is why it does not follow – I am not sure if that is a satisfactory answer, but can I mention one another thing while your Honour is talking about how Justice Griffith’s Draft Code. Your Honour has referred to the notation of common law – if I take the Court to volume 4 of the supplementary book of authorities it is…..
KIEFEL CJ: Could you give us that reference again, please, Mr Solicitor? Did you mean volume 4?
GLEESON J: Sorry, is Mr Thompson making submissions at the moment?
KIEFEL CJ: I think Mr Solicitor, we are trying to find Sir Samuel Griffith’s draft of the Code, which in volume 4, Part E, tab 13, I think.
GLEESON J: Page 802?
GORDON J: I think you are on mute, Mr Solicitor.
MR THOMPSON: I do apologise to the Court, I bumped my computer. Can you hear me now, Justice Gordon?
GORDON J: We can now, thank you, Mr Solicitor.
MR THOMPSON: Thank you. So, supplementary volume 4, Part E, other materials, it is behind tab 30, and it is at pages 801 and 802. I was directing the Court’s attention to footnote (1) at section 24, which is said to apply to the two following sections which encompasses section 26 mistake of fact and the reference to R v Prince, which should perhaps - my only point is that should perhaps be read as well with the comment which Sir Samuel Griffith made in the left‑hand margin adjacent to section 26. Now, I am not sure that I have adequately answered Justice Edelman’s question ‑ ‑ ‑
KIEFEL CJ: Mr Solicitor, is there some general acceptance of what Sir Samuel Griffith meant by:
Common Law.
Was it just denoting the source?
MR THOMPSON: Your Honour ‑ ‑ ‑
KIEFEL CJ: The original source, but not as he drafted it, which was clearly different from the common law.
MR THOMPSON: Yes, your Honour. The problem we have is, of course, it is very difficult to discern what Sir Samuel Griffith has had in mind, and as we say in our oral outline, for the purposes of interpreting section 24, one consistently with Mellifont, cannot seek to identify an ambiguity by reference to the commentary which appears in Sir Samuel Griffith’s draft.
We have explored in our written outline of submissions, to the extent our researches have enabled us, the possible bases upon which Sir Samuel Griffith drew, for the purposes of drafting this provision, and they may have included the Italian Code, and they may have included the New York Code, although it contains no equivalent provision. Section 26, on one view, is a product of Sir Samuel Griffith removing or supplanting the doctrine of a mens rea in section 23, but I do not otherwise - I am not otherwise able to assist the Court beyond what we have put in our written outline of submissions.
Before finishing our submissions, can we just mention one matter of clarification. Yesterday our learned friend, Mr Coates, at paragraph 26 of the transcript, at line 1023, made a submission which attributed to the Attorney‑General for Queensland the proposition that mens rea can be incorporated into the Code through section 8 of the Code. That is not, with respect, what was put in our submissions. We make it clear in paragraph 10 of our oral outlines that those…..supplant the doctrine of mens rea.
The passage in paragraph 11 of our oral outline reflects what was said in R v Martin at paragraph 110. It was not intended to make a submission that mens rea is reintroduced into the Tasmanian Code. Unless there is anything further we can assist the Court with, those are our submissions.
KIEFEL CJ: Yes, thank you, Mr Solicitor. Mr Kell.
MR KELL: Thank you, your Honours. As your Honours have seen from our written submissions the Attorney‑General for New South Wales made submissions against this Court overruling or disapproving Bergin v Stack. We do not wish to be heard on the construction of the Tasmanian provisions. Our position respectfully is that, as recognised by Bergin v Stack, for honest and reasonable mistake of fact to operate as an exculpation of liability, it is available only where the belief - the stated facts would if true have made the accused innocent of any offence, and we say that is how the common law position was understood in Bergin v Stack and noting also that subsequent cases have accepted and applied Bergin v Stack.
We say that contrary to the appellant’s submissions, Bergin v Stack is not inconsistent with the common law that preceded it, and I just want to touch on that aspect relatively briefly, given that it has been the subject of some submissions by particularly my learned friend, the Solicitor‑General for Tasmania.
Bergin v Stack (1953) 88 CLR 248 is in the joint book of authorities at tab 7 of volume 3 and the key page is at page 262 of the report. Pages 262 to 263 are the key pages relevantly for the matter before this Court and at page 262 at about point 5 of the page Justice Fullagar stated the governing principle or what his Honour referred to as “The rule”, and that is in terms that your Honours are familiar with:
I think, that such a belief excuses if its truth would have meant that no offence was being committed, not if its truth would have meant that some other and different offence was being committed.
On that page immediately following there Justice Fullagar refers to the judgment of Justice Brett ‑ his Lordship ‑ subsequently Lord Esher, in Prince’s Case and your Honours can see the emphasised word – so this is about point 7 of the page in the quote from Justice Brett where his Honour refers to:
the majority held that a mistake could not excuse unless the fact believed was such that, if it had been true, there would not merely have been no crime at all but no wrongful act at all.
That is the reference to the broader holding in Prince, and then just immediately above it the quote from Justice Brett that:
a mistake excused “whenever the facts which are present to the prisoner’s mind, and which he has reasonable grounds to believe . . . to be the facts, would, if true, make his acts no criminal offence at all”.
His Honour Justice Fullagar there acknowledged that Justice Brett’s decision was a dissenting decision in Prince in the sense that there was a broader holding by 16 of the other judges but appropriately explained on page 262 there that his Honour’s statement, Justice Brett’s statement, his Lordship’s statement, expressed or:
is, therefore, to be regarded as stating a minimum requirement.
That is at about point 8 of page 262, before his Honour then referred to his Lordship Justice Denman in Prince as referring to the broader holding. For relevant purposes, Justice Fullagar’s characterisation of the decision in Prince is, we say, with respect, correct.
His Honour, at the bottom of page 262, then referred to Bank of New South Wales v Piper, which is in the joint book of authorities at point 9 of the page. I just want to quickly identify, in the decision in Prince, the passage to which his Honour had regard, given – and then I will say something briefly about Prince. So, Prince’s Case is in volume 6 of the joint bundle of authorities, at tab 39, and starts at JBA 1537, or at page 154, and the judgment of his Honour Justice Brett is at page 1538 of the joint bundle of authorities at page 155 of the decision. There is no question, if one goes to page 157 of his Lordship’s judgment, at JBA page 1540 - it is clear that his Honour was directing attention, in the second line, where his Honour says:
The first point, therefore, to be considered –
His Honour was directing attention to:
the legal position of the prisoner, if the facts had been as he believed them to be –
and then, having considered the position, at page 159 of the case, which is JBA 1542, his Honour concluded, at about point 3 of the page:
It follows from this review that if the facts had been as the prisoner, according to the findings of the jury, believed them to be, and had reasonable ground for believing them to be, he would have done no act which has ever been a criminal offence in England –
relevantly, and then moving to page 170 of the decision, which is JBA page 1553, his Honour stated his conclusion which is at about point 3 of the page where his Honour records that:
but I come to the conclusion that a mistake of facts, on reasonable grounds, to the extent that if the facts were as believed the acts of the prisoner would make him guilty of no criminal offence at all, is an excuse –
That was the point that Justice Fullagar expressly set out and adopted from Prince’s Case. With respect to Prince’s Case we make the point in our written submissions, for example, at paragraph 22 or 21 that some aspects of that case may have gone further than what might now be accepted, such as the notion of relevant wrongfulness or lack of innocence extending beyond criminal liability and to include moral wrongdoing or the like. But for present purposes what was relevantly encompassed within the reasoning and the holding of Justice Brett was the idea that a person is excused from criminal liability only if their mistaken belief rendered the conduct at the very least not criminal.
We also say that contrary to the appellant’s submissions that Bergin v Stack – the reasoning in Bergin v Stack is not undermined in any way because Prince’s Case, to which Justice Fullagar referred, has been subsequently questioned and overruled as UK authority. The reason for that is that the discrediting - what is said to be the discrediting of Prince’s Case or the judgment of the majority in Prince’s Case relates to a separate matter which is really whether there was any mens rea element in the particular offence in question in Prince’s Case.
Until relatively recently it had been thought that Prince’s Case might have established a special principle of construction applicable only to age‑based sexual offences. That principle was rejected by the House – that notion was rejected by the House of Lords in the decision of B (A Minor) v Director of Public Prosecutions [2000] 2 AC 428.
The history of the current UK approach to Prince’s Case can be – and I will not need to take your Honours to it, but in R v K [2002] 1 AC 467, which is in the joint book of authorities, simply at paragraph 30 of Lord Steyn’s decision is a convenient and succinct description of the way in which Prince’s Case has been seen to be marginalised and overruled, and it is on a basis that is not relevant to that part of the decision which formed one of the ingredients, or steps in the reasoning process of Justice Fullagar.
In any event, we say that the proposition which Justice Fullagar espoused, in part from Prince’s Case, on the notion of innocence was not out of step with the common law. So, in Bergin v Stack – immediately after referring to Prince’s Case, his Honour made reference to Piper’s Case, and then the approach that his Honour adopted was also consistent with Tolson. Your Honours have been taken briefly to R v Tolson (1889) 23 QBD 168, which is in volume 6 of the joint bundle of authorities at tab 40. In that decision, Justice Cave at page 181 referred to a mistake:
which, if true, would make the act for which a prisoner is indicted an innocent act –
and that, at least, encompassed the reasoning of Justice Brett from Prince’s Case. Significantly, at page 190, at joint book of authorities 1586 ‑ ‑ ‑
KIEFEL CJ: Mr Kell, that might be a convenient time for the Court to take its morning adjournment.
MR KELL: Thank you, your Honour.
AT 11.16 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.32 AM:
KIEFEL CJ: Yes, Mr Kell.
MR KELL: Thank you, your Honour. Your Honour, immediately before the break I had taken the Court to R v Tolson and had just moved to the judgment of Justice Stephen, which is at page 190 of the decision, at joint book of authorities 1586. We say it is significant that Justice Stephen endorsed the analysis of Justice Brett from Prince’s Case, and referred – this is at about point 3 of the page – to that principle, including that the excuse be such as:
the acts of the prisoner would make him guilty of no offence at all . . .
Lord Blackburn, with whom nine other judges agreed, and Lord Bramwell, with whom seven others agreed, do not appear to me to have dissented from this principle, speaking generally –
Sequentially next is Thomas v The King (1937) 59 CLR 279, which is at volume 5 of the joint book of authorities, tab 19, starting at JBA 982, and in that case, Justice Dixon, with Justice Rich agreeing, referred to Tolson’s Case as establishing:
a general doctrine of the common law –
that is at page 304, and also made reference, in his Honour’s decision, to the judgments of Justice Stephen and Justice Cave in Tolson, and Chief Justice Latham also approved of Tolson’s Case at page ‑ ‑ ‑
KIEFEL CJ: Mr Kell, I think we have been taken to all of these passages.
MR KELL: Yes, at page 292.
KIEFEL CJ: I think we have been familiarised with these cases well enough.
MR KELL: Thank you, your Honour. I do not need to go to the details of Thomas in the circumstances. Could I just mention one matter about Proudman v Dayman (1941) 67 CLR 536, which is joint book of authorities volume 4 at tab 16, and there is the central passage of Justice Dixon which your Honours are familiar with which is picked up and referred to in CTM, but we say it is – and that is at page 540, about point 3 of the page, which is the “As a general rule” which is the last sentence of the first full paragraph of that page. We just draw attention to one aspect of it. So his Honour refers to:
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.
We say it is important to note that his Honour there is speaking of the defendant’s actions we say in the sense of conduct being innocent in all respects, so the act is the conduct rather than a notion of the charge and, similarly, where his Honour refers to “an offence” – and this is supported by the notion that his Honour was referring to innocence of an offence and not referring to innocence of the offence charged.
Can I note also that two of the commentaries on the common law ‑ just leaving Proudman v Dayman – also support the position taken in Bergin v Stack and they are Stephen’s Digest, which is at the supplementary joint book of authorities volume 4, tab 34 at page 849, and that is the illustration which is given of the common law principle in the burglary example. So that if A breaks into B’s house at what is said to be 5.45 am, supposing it to be past six o’clock but forgetting that A’s watch is set to London time, A commits a burglary.
So, again, that supports – and Stephen’s Digest in the joint book of authorities is the 1904 edition – and that supports the notion of the holding in Bergin v Stack and the history of that proposition which is that innocence here means innocence of any offence. So in the Stephen’s Digest example it did not matter that the protagonist would be guilty of burglary, notwithstanding that the belief stated which meant only that he or she would be guilty if the facts were true of a different offence, presumably entry with intent and the like.
Kenny’s Outlines of Criminal Law provides the second example, and that is at the supplementary book of authorities, volume 4. That is the 1920 edition, which is in the materials, and at page 65, which is JBA page 832, the burglary example is used again although the mistaken belief is set to relate to a different time, namely whether it was 9.00 pm, and that is at JBA 832 about point 7 of the page.
In Bergin v Stack, Justice Fullagar referred to this example, although quoting the 11th Edition of Kenny’s, which is 1922, and that is in his Honour’s judgment in Bergin v Stack at pages 262 to 263. In Kenny’s, at JBA 832, page 65 of Kenny’s, at point 7, the commentary spoke of the requirement that – and just picking up the quote there:
the mistake must be of such a character that, had the supposed circumstances been real, they would have prevented any guilt from attaching to the person in doing what he did.
So, in conclusion on this aspect, we say that Bergin v Stack should not be regarded as having been inconsistent with the common law that preceded it. Rather there is significant support for the decision in the preceding common law. The approach taken by Justice Fullagar in Bergin v Stack is also consistent, we say, with subsequent consideration of the common law doctrine of honest and reasonable mistake of fact and, your Honours have been taken to the R vReynhoudt (1962)…..
KIEFEL CJ: I think we are having some difficulty hearing you, Mr Kell. We are having some difficulty hearing you and you are freezing.
MR KELL: Thank you, your Honour, I will just see if we can fix it up at this end. I will refresh and see if that fixes it, if I may. Can your Honours hear me now?
KIEFEL CJ: Yes, that is much better, thank you.
MR KELL: Thank you, your Honours. Your Honours, I was providing simply the references to R v Reynhoudt, to the judgments of Justice Owen at page 410 and similarly at 408 and to Justice Kitto at page 389, which state the principle in terms which are consistent with Bergin v Stack.
A further related reason why this Court, respectfully, should not overrule or decline to follow Bergin v Stack is that the decision has been accepted and applied in a number of cases including CTM v The Queen. Your Honours have been taken to CTM. We refer to and rely on the decision of the plurality at paragraphs 8 and 27. We also draw your Honours’ attention to the judgment of Justice Hayne at paragraph 174 where it is clear his Honour understood the requirement of innocence to mean innocent of any offence and not just the offence charged, and similarly, the judgment of Justice Heydon at paragraph 199 to the same effect.
Accordingly, we say six members of this Court in CTM should be taken as adopting the reasoning in Bergin v Stack on the relevant aspect under consideration now. As we note in our written submissions at paragraph 9, the question of whether innocent meant innocent of any offence in terms of Bergin v Stack was raised in oral argument in CTM and both parties made submissions on that issue. We give that reference at paragraph 9 of our written submissions.
We note also that the decision in CTM is contrary to at least one of the hybrid positions suggested by the appellant, i.e. that this Court might determine that the reasoning in Bergin v Stack applies only to minor or summary offences and plainly the very iterations of the offences against section 66C of the Crimes Act (NSW) involving intercourse with a child between ages 10 and 16 do not fall into that category.
A related topic on which I want to say something briefly is the notion of two separate tests and the language of “outside the operation of the enactment”. So, in the Tasmanian Court of Criminal Appeal, in the present case, Justice Brett was critical of CTM - this is at paragraph 29 - for having endorsed what his Honour referred to as, or thought was:
two separate tests –
namely:
“innocent” means not guilty of a criminal offence –
or innocent means taking the conduct:
“outside the operation of the enactment” –
As your Honours are aware, the language of “outside of the operation of the enactment” derives from Proudman v Dayman at pages 540 to 541. In our submission, properly viewed, neither the majority judgment in CTM nor Justice Dixon in Proudman v Dayman should be understood as advocating two different tests, and possibly inconsistent tests.
In both of those cases, that is to say, CTM and Proudman v Dayman, the reference to the enactment was contextually appropriate given that the possible alternative offence would have arisen in the context of the same statutory scheme. We say, properly viewed, those statements should not be taken to detract from the general proposition which is accepted, at least by the time of CTM and, as relevantly stated in Bergin v Stack, which is “innocent” means innocent of any offence.
There are also numerous State and Territory decisions which have accepted and applied the reasoning in Bergin v Stack, and we have set out a number of those in our written submissions at paragraphs 13 to 16, and that is a factor, we say, that militates against reconsideration of Bergin v Stack.
I just wanted to conclude by, if I may, referring to one aspect briefly - one aspect that arises from the appellant’s argument in this case, which is that the appellant contends that the importance of exculpation being available in respect of an offence under section 14 of the Misuse of Drugs Act in Tasmania is effectively highlighted by what is said to be the restrictive effect of section 13 of the Criminal Code in displacing common law principles of mens rea. That is, for example, in the appellant’s further written submissions at paragraph 23.
While we do not obviously venture into the interpretation and construction of those Tasmanian provisions, in our submission, however, that argument which is advanced by the appellant is not a reason, or a cogent reason, to decline to follow Bergin v Stack or depart from the correct understanding of the ground of exculpation at common law.
This is because, we respectfully submit, Bergin v Stack should not be called into doubt in terms of its understanding of the common law…..on the basis that the Tasmanian Parliament has enacted a provision displacing common law principles of mens rea with the result that, on the appellant’s case, or the appellant’s contentions, defendants in Tasmania may be found guilty of offences for which the appellant contends they are not truly blameworthy. We say that is not an appropriate means of construing what the common law should be, in our respectful submission, clearly.
Your Honours, for these reasons we respectfully submit that the Court should decline to overturn or disapprove of Bergin v Stack. Those are my submissions.
KIEFEL CJ: Yes, thank you, Mr Kell. Yes, Ms Baumeler, do you have anything by way of reply?
MS BAUMELER: Yes, just briefly, thank you, your Honour. If one was to place the submissions of the interveners, the appellant and the learned Director for Tasmania into a continuum, the furthest distance would undoubtedly be between the position that your Honours have just heard in relation to the New South Wales Attorney‑General and the position asserted by the appellant.
The immutable view of the New South Wales Attorney‑General is that the common law only excuses an accused where their acts would not amount to any criminal offence. By contrast the appellant submits that in so doing, relying on CTM, that the threshold question is whether the legislation has removed honest and reasonable mistake of fact as a ground for exculpation, and that is at the heart of the appellant’s submission.
When considering section 14 of the Misuse of Drugs Act, the error that flawed the reasoning of the Court of Criminal Appeal and, with respect, the submissions of New South Wales, is the conflation of the availability of the ground of exculpation with its perceived meaning.
It is our submission that it is clear from CTM that the primary focus is its availability. Indeed, it is open on a reading of CTM to consider that it moved the initial examination of culpability and criminal responsibility to a reflection of whether there was an absence of honest and reasonable belief in the state of affairs that would excuse the conduct, particularly in scenarios where the provisions under examination are silent or weak in terms of mens rea.
Further, any reliance on cases such as Thomas and Tolson is…..of the New South Wales position is, in our submission, respectfully, misplaced. The cases in those scenarios were both matters of – or charges of bigamy for which there is no secondary offence. The extrapolation and extension by his Honour Justice Fullagar in Bergin v Stack to extend this principle more broadly, though with significant reliance on those earlier – or without significant reliance on those earlier authorities, is open to criticism, as noted in our submissions, much like the contemporary reliance on Prince.
Undoubtedly the learned Director for Tasmania is closer on that continuum to the position in New South Wales than that of the appellant. But, as was alluded to by his Honour Justice Brett in the Court of Criminal Appeal in relation to this matter, the Director concedes that the expansive and infinite reach of the meaning of “innocence” must have some limits.
The so‑called clarity that supposedly exists for the submissions of my learned friends simply does not exist, in our submission, and the ambiguity needs to be clarified and our submission is that that ambiguity is self‑evident.
The Tasmanian position, as I understand it from the learned Director’s submissions, considers that the common law only exonerates the act and not necessarily the conduct if that would amount to another offence. This interpretation is said to be drawn from the decisions of Tolson and Thomas, yet in those two, as I have already just mentioned a moment ago, in those two cases neither of those matters had any secondary offence.
It is, in our submission, an overreach to apply these cases to the scenario under examination by the court in this instant. Ultimately, that overreach flows from failing to examine the availability of honest and reasonable mistake as a threshold question and that is something that, in our submission, clearly needs to be clarified.
That is also, in our submission, the heart of CTM which acknowledges that mistake as a ground of exculpation if properly raised is available. To not allow honest and reasonable mistake of fact to have been left to the jury in this instance is to resile from CTM rather than to apply it, as suggested by Tasmania and New South Wales.
Now, turning specifically to the submissions that your Honours heard this morning in relation to the learned Director’s submissions in relation to the Tasmanian position, I referred your Honours to the decision of Vallance yesterday when making submissions, and I would remind your Honours again of the passage that I pointed your Honours to at that point in time – page 86 of the Court of Criminal Appeal decision his Honour Justice Crisp who indicates that in terms of section 8 being included that that was out of an abundance of caution, and if the rest of the ruling or judgment is looked at his Honour then goes on to explain that it is not to be seen to add to section 14 as section 14 exists within the Criminal Code.
Now, similarly in terms of the decision of Snow that the learned Director also referred to, in my submission, the relevant portion of that decision is again the page that I referred your Honours to yesterday, which was at page 278 of the judgment which indicated that sections 12 to 17 of the Criminal Code inclusively:
must be taken to state exhaustively the general principles of criminal responsibility relating to the mental element in crime –
Finally, the learned Director made reference to Martin. In my submission, the decision of his Honour the Chief Justice Burbury needs to be looked at in its entirety and not simply the…..that your Honours were directed to today. As was indicated by the learned Director, this is the principal decision, or one of the principal decisions, in relation to the interpretation of section 14 of the Criminal Code but, in my submission, one needs to read it very carefully.
Your Honours were referred to page 112 of his Honour the Chief Justice’s decision. In my submission, pages 112 to 120 need to be looked at, as I said, a moment ago, in their entirety, and the wording used carefully considered. At page 112 his Honour indicates:
the word “excuse” is no doubt loosely used as the equivalent of “make innocent.” -
not “be innocent”, which is the interpretation that the learned Director has placed upon it. The words that are actually used by his Honour in the judgment are “make innocent”, so in my submission that accords with the submission that I made to your Honours yesterday, that it is the mistaken belief that makes the guilty conduct innocent. That is also consistent with what then flows at page 113, where his Honour quotes his Honour Justice Cave in the decision of Tolson, where:
it is a good defence that the accused held an honest and reasonable belief in the existence of circumstances, which, if true, would make innocent the act for which he is charged –
and, in my submission, they are the crucial words. It is that his - the accused’s belief makes innocent that accused for the act for which he is charged. Then, at page 114, there is a further relevant portion, in my submission:
But in relation to the defence of mistake of fact in the sense referred to by Dixon J. in Maher v Musson and in the sense in which I think it is assumed to exist by s. 14 of the Code, the question is not whether the common law presumption of mens rea is excluded by the statute creating the offence but simply whether the defence of mistake of fact is so excluded.
Again, that is a crucial portion for the appellant’s submission. No doubt, as the liberty of the subject is involved, the court ought not to hold that the defence is excluded unless it is satisfied that the statute either clearly or by necessary implication rules it out, which, again, in my submission, is a crucial part of our submission.
There follows on page 115 as well examples of how or the indication of how an accused can be found not guilty in relation to an offence. His Honour describes two means essentially on how that can occur. The second is that in the crime his Honour indicates that the accused succeeds in the substantive defence. So he is indicating that that is one of the pathways to innocence. The final portions of that decision that I would refer your Honours to are at pages 119 and 120 where his Honour is concluding:
From what I have said it is clear that under s. 14 honest and reasonable mistake in relation to every external element of a crime (unless it is expressly or impliedly excluded in the statutory definition of the crime) is a substantive defence.
It is also I think clear that s. 14 is enacting that whether mistake of fact is a ground of exculpation is a matter to be determined upon the construction of the statute can have no application to mistake of fact in relation to a mental element forming an ingredient of the crime under the Code.
Then he continues a little bit further on page 120:
Upon this view the question to be determined under s. 14 is whether upon the construction of the statute constituting the offence mistake of fact in relation to some external element of the offence other than the intentional act for the purposes of s. 13(1) is excluded as a defence.
As I said, in terms of the decision of Martin, it needs to be read in a whole and, on that basis, it is supportive, in my submission, of the appellant’s submission. As I said yesterday, the concept of “make innocent” should be equated to a finding of not guilty by a jury rather than some higher stand of innocent of all offending, in my submission.
The other factor that I would seek to raise in terms of the learned Director’s submissions is that concept of the making innocent of the act for which the accused is charged. In this scenario, in my submission, one of the circumstances that cannot be ignored is that for someone to be found guilty of section 14 of the Misuse of Drugs Act we are dealing with the administering of a drug to a child. If that were not so, there would be no reason for that charge to exist.
As we have already heard in the submissions that have been made and in the written submissions, there were ample charges that the accused in this instance could have been charged with that fitted the scenario. The aggravating factor in relation to this matter and the matter that, in our submission, allows for mistake to operate in this scenario, is the fact that a child was engaged and what the accused’s belief was in relation to his administering and whether he had a belief that he was dealing with a child or not. Otherwise, as I said, there would be simply no need for this separate charge unless that was the operating factor in relation to that particular crime. That, in my submission, draws in the operation of the mistake element in relation to that specific crime.
The injustice, in my submission, that the learned Director says has not been illustrated is removing from a jury consideration of the element of mistake in relation to the offence and also putting the accused at peril of a sentence of imprisonment for the maximum penalty that any crime in the State allows.
I have either misunderstood or not understood the learned Director’s submission in relation to the suggestion that if the appellant’s submission was accepted that someone could never be found guilty of any offence. That is certainly not what the appellant’s submission is and, in my submission, it misses the point of what the appellant’s submission is.
The appellant’s criticism or complaint in relation to this matter is the removal from the jury of…..whether the mistake is one that the jury is going to accept or can accept. That is what the relevant submission is. It is not a question of whether somebody - nobody could ever be convicted of a charge. That has never been the appellant’s submission in any event, and I do not even understand how we could get to that position on the basis of the appellant’s submissions.
The criticism of the Court of Criminal Appeal and the criticism of the court below is the fact that the exculpatory ground was removed from the jury’s consideration. That is the submission. In my submission, the other factor that is that it is not a question of whether the Crown are going to get a conviction, the Crown admit to being the model litigant in relation to matters, and it is a question of whether a defence or a ground of exculpation has been removed from an accused and thereby that there is an unfairness to an accused in terms of the trial process.
The submission that the learned Director makes in relation to – that this can all be resolved by the sentencing process, in my submission is again not focusing on the issue at hand of the removal of the consideration from the jury and, as the learned Director quite correctly pointed out, the maximum sentence that has ever been imposed in relation to this matter or this particular section is a sentence of nine months’ imprisonment – that was Mr Bell’s sentence in relation to this matter.
So, in my submission, it entirely highlights how unfair the application of these principles at the sentencing process can be because the only person who has received a nine month term of imprisonment in relation to this offence is in fact the appellant in relation to this matter.
Returning to the other submissions that have been made by the other jurisdictions, the position of Queensland is understandably somewhat to the side of the continuum that I spoke of earlier. In the historical analysis that your Honours have heard, they are able to recognise that their own jurisdiction and also that of Western Australia has moved to amend the mistake provisions so that the common law did not apply. Tasmania is undoubtedly informed by the common law to the extent that it can be utilised within the framework of statutory interpretation.
The submissions of the Tasmanian Attorney‑General, with respect, add little to the resolution through its reliance on section 13(3) of the Criminal Code which, as noted in our reply to their submissions, has been heavily criticised, possibly confined to offences of specific intent and which has rarely been used and, in our submission, is a curious oddity. Neither the appellant nor the respondents sought to rely on this section at trial and it was not raised at trial by his Honour the Chief Justice, nor was this section ever considered by the three justices who heard the matter at the Court of Criminal Appeal level, nor was it part of the special leave application.
To suggest that the transitive verbs apply operating on an object within a sentence leads to a legally coherent outcome would, if accepted, undermine the independent operation of the well‑known doctrine of events that occur by chance as well as impermissibly unifying two of the three elements – circumstances and results – that were separately described in He Kaw Teh. Section 13(3) has no role, in our submission, in this analysis.
Finally, in summary, statutory interpretation, a close examination of common law and an appreciation of its so‑called unity is a myth. The need for a humane and just system of criminal responsibility, alignment with key authorities and a marriage of culpability and liability all point to a view that the Court of Criminal Appeal erred in not correcting the flaws of the initial decision of his Honour the Chief Justice. Honest and reasonable mistake of fact should have been left to the jury. The accused should not suffer in the possible failings of statutory drafting or the availability of alternative convictions. He should not be sentenced for a crime for which he is not culpable simply because he was possibly guilty of some other minor offence. If the Court please.
KIEFEL CJ: Yes, thank you. The Court reserves its decision in this matter and adjourns to 2.15 pm.
AT 12.11 PM THE MATTER WAS ADJOURNED
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