Bell v State of Tasmania

[2021] HCATrans 152

[2021] HCATrans 152

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 TUESDAY, 5 OCTOBER 2021, AT 2.15 PM

Copyright in the High Court of Australia

KIEFEL CJ:   In accordance with the remote hearing protocol I will announce the appearances of the parties and interveners.

MS K.L. BAUMELER appears with MS P.J. WILLSHIRE for the appellant.  (instructed by Philippa Willshire)

MR D.G. COATES, SC appears with MS M.C. FIGG for the respondent.  (instructed by Office of the Director of Public Prosecutions (Tas))

MR M.E. O’FARRELL, SC, Solicitor‑General for the State of Tasmania appears with MR D.R. OSZ on behalf of the Attorney‑General for the State of Tasmania intervening.  (instructed by Office of the Solicitor‑General (Tas))

MR G.A. THOMPSON, QC, Solicitor‑General of the State of Queensland appears with MS P.M. CLOHESSY on behalf of the Attorney‑General for the State of Queensland intervening.  (instructed by Crown Law (Qld))

MR D.T. KELL, SC appears with MS E.S. JONES on behalf of the Attorney‑General for the State of New South Wales intervening.  (instructed by Crown Solicitor’s Office (NSW))

KIEFEL CJ:   Yes, Ms Baumeler.

MS BAUMELER:   Yes, thank you, your Honours.  At the time of the enactment of the Criminal Code in Australia the law in England in terms of honest and reasonable mistake as a ground of exculpation was, to quote Anderson v Nystrom, “a chaos of irreconcilable differences”.  As such, that chaos, in our submission, should have been removed when the decision of Thomas was handed down.  To quote his Honour Justice Hayne in the decision of CTM, when speaking of the tension between Prince and Tolson at page 487, this Court’s decision in Thomas resolved any such doubt for Australia by adopting the principle described by Sir James Stephen.

However, it is submitted on behalf of the appellant that the inability to reconcile the decisions in England was then transferred to the Australian context and therefore specifically to the Tasmanian context when the decision of Bergin v Stack was handed down.

Her Honour Justice Bell at the special leave hearing, in our submission, was correct when she indicated that the result sought by the appellant was a somewhat modest one.  These submissions are intended to give the Court comfort but the step is in fact not a large one.  The appellant is not seeking that the Court cross the Rubicon, but rather it asks that it take the modest step of acknowledging that liability should match the culpability displayed. 

Such an approach would be consistent with the line of authority commencing with Tolson and then the adoption of those principles in Australia through the decision of Thomas.  It is an approach where the decision of criminal liability rests with the jury where, in our submission, it should be, and it is an approach that upholds:

the most fundamental element in a rational and humane criminal code -

to quote his Honour Justice Dixon in Thomas at page 309. In terms of the appeal that is before the Court now, in our submission, at its heart is one of statutory interpretation. Firstly, given the Criminal Code in Tasmania, should mistake have been left to the jury for it to consider in the initial hearing of the trial, and if mistake was available, tied up into that is also the issue or the question of what does “excuse” mean.  Those concerns were certainly raised in the Court of Criminal Appeal in the decision of Bell and specifically in terms of his Honour Justice Brett’s comments in that decision.

As I said, the fundamental question here, in our submission, is one of statutory interpretation and the reading of the Misuse of Drugs Act together with the Criminal Code.  It is our submission that the Criminal Code was intended to cover the field and that that is how it should be interpreted.

Section 14 of the Misuse of Drugs Act is the section that created the offence.  It is in Part 2 of the Misuse of Drugs Act, which is headed as the section that is dealing with indictable offences. As a result of section 4 of the Criminal CodeAct, that then makes the Criminal Code applicable to Part 2 of the Misuse of Drugs Act, and it is the appellant’s submission that essentially what that does then is transport the Misuse of Drugs Act, or that portion of the Misuse of Drugs Act, into the Criminal Code. 

Now, I will deal with section 8, the preservation of common law defences, in a moment, but essentially, in my submission, it is not relevant for the consideration now and as I said I will deal with it shortly. In terms of section 14 of the Misuse of Drugs Act, there is no mental element that is indicated within that section and, accordingly, section 13(1) of the Criminal Code, that the act needs to be voluntary and intentional comes into play. It is also submitted that due to the pathway of how the two Acts are to interact, that section 14 of the Criminal Code, also, the mistake provision, comes into play, or can come into play if it is raised at trial.  It is the appellant’s submission that the common law becomes relevant when one is considering how to interpret “excuse” within the context of the Criminal Code.

As I said, I just want to touch briefly on section 8 and why it is said that it is not relevant for current consideration, in our submission. Section 8 is an indication that common law defences are preserved through the Code and if I can refer your Honours to the decision of Vallance, which can be found in volume 7, tab 41 – specifically his Honour Justice Crisp’s decision at page 86, where he indicates that section 8 was included out of an abundance of caution and it is submitted that that is exactly what it was – it was to include anything that was not covered by the Criminal Code itself – any further defences that were available at common law that had not been included into the Code. However, he goes on to say that it was in no way to impugn the opinion formed as to the operation of sections 12, 13 and 14 of the Code and obviously mistake is section 14.

Now, the decision of Snow came two years later and that builds on the decision of Vallance and it is also quite similar in terms of CTM insofar as it was a matter where the court – despite the fact that the defence of alibi was being used in that decision – but the court still considered the operation of section 14.

In the judgment of Snow, there was a joint judgment of his Honour Chief Justice Burbury and his Honour Justice Cox, at page 277 they express the Tasmanian position regarding section 14 – that you need to hold an honest and reasonable belief for mistake to be available, and that is where section 14 comes into play.

The judgment goes on to indicate that it accurately stated the common law ingredients of the defence though it should be construed as a legislative declaration of the common law – and accordingly that is where the interplay occurs between Vallance and Snow insofar as the indication that it is a declaration of what the common law was in relation to the defence of mistake, but it was not a situation where it was then intended for the common law to be used when using mistake that section 14 should be the operating section that one goes to. That is made clear at page 278 of the same decision of Snow where there is the indication that:

ss. 12 to 17 inclusive must be taken to state exhaustively the general principles of criminal responsibility relating to the mental element in crime -

That, in my submission, is also consistent with the approach that was taken at the time that the legislation was first passed.  If I can take your Honours to what was the joint book of authorities supplementary volume, Part E, volume 1, which had the original version of the Mercury article, which was as close as we were able to come to the second reading speech of the Parliament when the Criminal Code was passed.  There the indication was, at page 1936 of that volume, and it is the second column on that page, at the top of the page, there is the indication that it:

takes the place not only of the numerous enactments which are set out in Schedule (2) and which there cover nearly nine pages, but of the greater part also of the Common Law relating to crimes.

So there was a clear indication at the time that the legislation was passed that it was, as I said in my submission, to supplant, essentially, the common law, and that the Criminal Code was to be the source. 

The other relevance, in my submission, in Snow, is his Honour Justice Crawford’s comments at page 296, which, in our submission, is important in terms of the interpretation of how section 14 is to operate. His Honour, as I said, Justice Crawford, at page 296 - and I should indicate that Snow is found at volume 7, tab 42  it is the second‑last paragraph on that page:

Section 14 does not in itself create the defence of honest and reasonable belief as does s. 22 of both the Queensland and Western Australian Criminal Codes. The Tasmanian s. 14 simply implies the existence of such a defence in some cases. Dixon J. in Thomas v. The King said that our ss. 12 and 14 as well as ss. 22 and 24 of both the Queensland and Western Australian Codes, in his opinion, stated the common law.

So it is submitted that the Tasmanian position is slightly different in that it does not necessarily create the actual offence, that needs to be found in the section that is actually creating the offence itself. What section 14 does is create the potential to use the defences in the State, in certain circumstances, if it is not excluded from the operating section that creates the actual offence itself, which, in our submission, is exactly what, in terms of section 14 of the Misuse of Drugs Act, that that section itself does not exclude, in any way, the operation of the mistake provision in the Criminal Code.

KIEFEL CJ:   Ms Baumeler, in Thomas v The King (1937) 59 CLR 279, Justice Dixon said that the three Criminal Codes are in the same terms.

MS BAUMELER:   Yes.

KIEFEL CJ:   That is not correct, is it?

MS BAUMELER:   No, that is my submission, your Honour, that the Tasmanian – it is a correct position in terms of stating what the Tasmanian law is.  The Tasmanian law was essentially an enactment of what was the common law at the time.  The other two Codes ‑ ‑ ‑

KIEFEL CJ: But section 24 of the Criminal Code (Qld) did not – Sir Samuel Griffith determined to depart from it.

MS BAUMELER:   Yes, by limiting ‑ ‑ ‑

KIEFEL CJ:   And if I may at this early point in summary point out it is really towards the Griffith Code notion of how an honest and reasonable mistake of fact operates that the appellant’s argument is really addressed.  That is more or less the effect that you seek to obtain from a construction of the Tasmanian Code, that is, how the Queensland Code has been held to apply.

MS BAUMELER: No, your Honour, I would say that it is slightly different, what my submission is. What I would submit is that in terms of the Tasmanian provisions and the interaction between section 14 of the Criminal Code and section 14 of the Misuse of Drugs Act is that if mistake is raised and left to a jury that it would provide a total defence or ground of exculpation for that specific charge created by section 14 of the Misuse of Drugs Act, so it is different to the ‑ ‑ ‑

KIEFEL CJ:   Yes, I see the distinction.  This is part of your acceptance that on your approach it is all or nothing, rather than the Queensland approach, which is your excuse to the extent of your mistake.

MS BAUMELER:   That is correct.

KIEFEL CJ:   That is by way of acknowledging that the Queensland Code’s terms are really quite different from the Tasmanian, so that is not an approach which is open to you.

MS BAUMELER:   No, that is right, because ours does not provide for that.  Ours either provides that mistake is open and there is a defence of exculpation available, or it is not available.  The only place where it would be potentially similar is where alternate conviction provisions are provided. 

So, in those instances, and if mistake came into play, it might be that there is a conviction for a lesser charge where there is an alternate described, but our submission is based on the premise that unless there is an alternate prescribed, which there was not for section 14 of the Misuse of Drugs Act, that it becomes an all or nothing.  It is either that mistake is available and it is left to the jury or a decision as to whether they accept it or not.  But if it is ruled that mistake is not available, then it does not come into play, and that mistake cannot be used to come up with a lesser version such as decisions that have talked about that mistake can be used at the time of sentencing and the like.  In our submission, on the reading of the Code and the Misuse of Drugs Act, that is not how the two interact.

KIEFEL CJ:   Your argument does not have as part of it that it was open to the trial judge to direct the jury in relation to the lesser offence?

MS BAUMELER:   That is correct, because there are not provisions available.  I might just take your Honours to that because ‑ ‑ ‑

KIEFEL CJ:   In that regard, is the alternative verdicts provision the beginning and the end of it, or is the subject a bit wider than that?

MS BAUMELER:   In my submission, it is the beginning of the end of it, and the reason I say that is for two reasons.  One is the…..two alternative conviction provisions that I say need to be looked at.  The first one is in the Criminal Code itself which provides for alternative – so there is section 332(1) of the Criminal Code which indicates that:

Except as provided in this chapter no person shall on an indictment for a crime be convicted of any other crime.

So when looking at the Criminal Code, unless there is an alternate provision that is covered by that chapter, no other conviction can be considered on an indictment.  I think a good example of that is probably the decision of Vallance itself.  In relation to that decision, the accused in Vallance would have been guilty of a regulatory matter by discharging a firearm within a city limit or some such provision.

That never came into play and, in my submission, it did not come into play because of the enactment of section 332(1) which prescribes which alternate offences can be looked at as providing another pathway to conviction but that they limit the field and that there cannot be any other convictions except for those that are provided within that chapter.

Now, in my submission, when we then go to section 36A of the Misuse of Drugs Act, and bearing in mind also my submission that essentially the indictable portion of the Misuse of Drugs Act is for the purposes of proceedings supplanted into the Criminal Code, again it would be my submission that section 36A covers the field of matters that someone can be convicted of as alternates in relation to proceedings under the indictable portion of the Misuse of Drugs Act. Again, here, there is no provision for any alternates for the charge under section 14 of the Misuse of Drugs Act.

KIEFEL CJ:   Might the position be somewhat different at common law.  The point is here that this statute deals exclusively with what is an alternative conviction at common law.  If it comes within the definition of the more serious offence sometimes a lesser offence is allowed.

MS BAUMELER:   That might well be the case and then we go down the path of, for the Tasmanian perspective, that it is the test of whether it is in or out of the enactment.  In my submission, in terms of it being outside of the enactment the provisions that are not encompassed by Part 2 of the Misuse of Drugs Act would fall outside the enactment and so therefore sections 26 and 24, the ones that potentially the accused in this instance could have been guilty of, would fall outside the enactment.  But I do accept your Honour’s point, in terms of the common law, that that is slightly different and could be slightly different.

As I said, in terms of the operation of the Misuse of Drugs Act together with the Criminal Code, it is the position of the appellant that you look to the charge creating the offence, namely section 14. Because of section 4 of the Criminal Code Act that portion is, for all intents and purposes, in our submission, transplanted into the Criminal Code. That would allow for mistake to operate under the provisions of section 14 of the Criminal Code and the legislation has not provided for alternative convictions, which is another indication that, especially given the way that section 332(1) is drafted, unless there is an alternate provided for matters on indictment there can be no other alternative.

That is again where our Code differs from the Queensland and Western Australian provisions because with those provisions there would not be any difficulty with the concept of being built in only to the extent that the appellant thought he was committing a crime.  That is specifically legislated within their legislation whereas ours is a different pathway and it is a different way – the potential for mistake to operate operates differently within the Tasmanian context.

In turning to section 14 “Mistake of fact” provisions within the Criminal Code, in our submission the wording of that provision is important.  The reference to “any state of facts” is relevant in relation to this argument as our submission is that that encompasses age as a fact that can be taken into account.  The wording of “would excuse” and “such act” can also be read as limiting the conduct to the specific act charged. 

So, in other words, for the provision to operate under the charging under section 14 of the Misuse of Drugs Act that age is a relevant consideration, the fact that the Crown need to prove that it is a child that is being supplied with the drug is relevant and would excuse such act, in our submission, encompasses that mistake can operate if someone is dealing with a person that they do not believe is their child. 

Now, at the time that the mistake provision was enacted within our Criminal Code, at that point in time Tolson was the most relevant of the decisions and then, in terms of interpretation after, the decision of Thomas then is the most relevant after the enactment of the Code.

In relation to how it has been interpreted, I have already touched on the decision of Snow and also the decision of Martin at this point comes into play in terms of the relevance of section 14. The decision of Martin appears in volume 6 at tab 38.  The first page that I wish to refer your Honours to is in his Honour Chief Justice Burbury’s decision at page 114, where there is a recognition that:

And 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. 

Our argument here is that there certainly is not any suggestion in the Misuse of Drugs Act and the statute creating the offence itself that gives any indication either clearly or by any necessary implication that that rule of mistake is to be excluded in consideration of a charge under section 14. Further, his Honour continued at page 119 of the judgment ‑ ‑ ‑

EDELMAN J:   Ms Baumeler, before you move on to that, can I just ask you about the construction of section 14 of the Misuse of Drugs Act in relation to this point?

MS BAUMELER:   Yes.

EDELMAN J: As I understand your submission, you do not suggest that section 14 should be interpreted so that it requires an element of intention or knowledge that a controlled drug is being supplied to a child. You do not suggest that there – putting aside Vallance – you do not suggest that that He Kaw Teh‑type implication could be made in relation to section 14?

MS BAUMELER:   No.

EDELMAN J: So that, on its proper interpretation, section 14 applies irrespective of whether the person knows or intends to supply the controlled drug to a child?

MS BAUMELER:   Yes.

EDELMAN J: Why do you say then that the statute does not by necessary implication rule out a defence that would in effect countermand that type of interpretation – a defence which would say, even though on its proper interpretation, section 14 requires liability irrespective of whether a person knows or intends that the controlled drug is being supplied to a child, there is a defence that there will be no liability if the person honestly and reasonably believes that the drug is not being supplied to a child.

MS BAUMELER: In my submission, that essentially becomes a charging issue – that the other provisions exist – and I think this is something that I touched on back in February that, when someone is charged under section 14 of the Misuse of Drugs Act, there is no preclusion that they could not also be charged with other offences under the Misuse of Drugs Act, section 24, section 26 – section 26 is the one that his Honour the Chief Justice determined was the most relevant – in my submission, it is probably actually section 24 that also would have come into play here in relation to administer. So those charges could have been laid.

What I say is in relation to section 14 of the Misuse of Drugs Act, that there is, I guess, a higher burden or a different burden there, that the criminality has been raised by the fact that a child has been engaged, in terms of the administering or supplying.  But anything in that section that creates that charge does not indicate that there was an intention by Parliament to exclude a defence if you were engaging with someone that you did not think was a child.

Now, that is different as to whether the defence itself would succeed at trial, so all I am saying is that the exclusion of mistake in relation to age should not be read into the section, and that is what our written submissions refer back to, that the error, I guess, that the court, we would say, fell into, is by starting down the pathway of innocence, and whether somebody is innocent of the charge, when really what should have occurred was a statutory interpretation analysis of whether there was the scope for section 14 of the Criminal Code to be used in relation to the circumstances of the offending, which include whether there was a child or not. Our argument, obviously, is that we would say that section 14 of the Criminal Code does allow for mistake to operate in those circumstances and has not been excluded by the legislation.

KIEFEL CJ: Is your submission essentially that section 14 of the Misuse of Drugs Act is not sufficiently clear in its terms to overcome the presumption which that section is bringing in?

MS BAUMELER:   Yes…..clear and the other factor is that – I keep going back to the alternates as well.  The fact that there are not any alternative convictions that are contemplated, in my submission, raises the status of that offence, that it was really designed to capture someone who is engaging children in nefarious activities and supplying children with drugs and it does not exclude mistake if we have the type of scenario that we have here where a 15‑year‑old has presented to a residence that is a well‑known house where drugs are sold and there is no concept in terms of the appellant to lure a child into drug activities which, in my submission, if you look at the second reading speech in relation to the Misuse of Drugs Act, the provisions were created to avoid – I think Parliament talks about the Fagan‑type elements of luring a child into the sale of drugs and using drugs so that they are immersed into that drug culture, as opposed to the scenario that we have here where someone is selling drugs to people who are coming to a house where it is known and the element of the child itself is not really a factor in the offending that occurred.  I am not sure if I have answered the question.

EDELMAN J: Ms Baumeler, I was just going to say I am not sure that the presence or absence of any alternative offence really bears upon the question of whether by necessary implication section 14 of the Misuse of Drugs Act has excluded honest and reasonable mistake, but it may be that the better answer is that by necessary implication, given the construction that you adopt of section 14 of the Misuse of Drugs Act, it may exclude a defence of honest mistake, because a defence of honest mistake may on one view be directly inconsistent with a liability that exists independently of any honest mistake, but it may not exclude a defence of honest and reasonable mistake, which is a different type of defence.

MS BAUMELER:   Yes, and I would not quarrel against that, your Honour.

GORDON J: One of the things that was worrying Justice Brett in the court below was what he regarded as being contrary to the fundamental principles of the criminal law. If you take what is said in the…..line of authorities that the system is both accusatorial and adversarial and that the accused is entitled to know the particular act, matter or thing which is the foundation of the charge, and one looks to section 14 and its focus upon the act or omission which is said to have been done under an honest or reasonable mistake, it may be the way in which you look at the act or the charge here is at least arguable that the thing which is the foundation of the charge is the supply of the controlled drug.

If that is right, then it is difficult to see, even if one has an honest and reasonable mistake about the age, that it could extend to exclude liability for the charge that is ultimately laid which has its foundation as being the supply of controlled drug, and yet anything about the culpability would then be taken into account in sentencing. That does not really help your client, but it is much narrower focus on the way in which you might look at the operation of section 14 of the Criminal Code.

MS BAUMELER:   I guess my answer to that is, perhaps going back to the decision in Thomas, and his Honour Justice Dixon’s analysis. Now, admittedly, that was in relation to the charge of bigamy, but where he gives the analysis of the (a), (b) and (c), and of the makeup of the charge, that is at page 292 of – no, I am sorry, it was not his Honour Justice Dixon, it was Chief Justice Latham, his analysis of (a), (b) and (c) in the decision of Thomas.  Now, there, his Honour indicated, and this was in terms of accepting the analysis, or the decision in Tolson when there was the tension between Wheat’s Case and Tolson - as I said, it appears at page 292:

It has, however, been urged that a distinction may be drawn between the various elements of the offence as stated in the relevant section.  These elements are:  (a) A married person; (b), going through the form or ceremony of marriage with any other person; (c) during the life of her or his husband or wife.

His Honour then goes on to discuss, in my submission, that all of those elements are essentially of a similar weight…..and then, finally, at the bottom of the page, indicates:

The offence consists in doing the act described in b in the circumstances stated in a and c.  Mistaken belief as to any relevant element of the offence is sufficient to bring the case within the rule in Tolson’s Case.

So, in my submission, though I appreciate what is indicated by your Honour, all of the…..are relevant, if we are dealing with (a) a child and what…..needs to be a child and it needs to be supply of a controlled drug…..in my submission, a distinction as to which is more important, or which has greater weight.  Both of the factors need to come into play, both of them need to be looked at, and if there is a defence in relation to one, there is no prohibition for the defence to not be available in relation to the other either.

That is a consistent reading, in my submission, of the decision in Thomas, which was adopting the line of authority that starts with Tolson, which is, in my submission, where the Australian context really needs to start, that Prince’s decision and – well, by the time that Tolson was decided, there was already a softening of the approach that we see in Prince’s decision, and that it is the Tolson line of authority that originally, through Thomas, is adopted within Australia. 

Then…..is where that line of authority starts, but then we say the decision of Bergin v Stack, which goes back to Prince, which, in my submission, is a step backwards in terms of the way that the law was developing in relation to mistake.

EDELMAN J:   Ultimately, Ms Baumeler, your submission is that every aspect of defence must always have equal weight for the purposes of the defence of honest and reasonable mistake, even the example that is given, Bergin v Stack, of a burglar who knows that they are committing a burglary, knows that - intends to do every other element of the burglary…..example.

MS BAUMELER:   I am sorry, your Honour, you froze there.

KIEFEL CJ:   You are breaking up – it is very difficult to hear.

MS BAUMELER:   I am aware of the example that your Honour is giving in any event, so please stop me if I am not answering the correct question.  I have been thinking about this quite a lot, and obviously it is a matter that your Honour also raised back in February with me.  My submission in relation to this specific example is ‑ and it is the same example that CTM would have allowed – here, we are dealing with whether a child is involved in the actual offending and whether there is an honest and reasonable belief.

Now, if there is a belief that there is an adult involved as opposed to a child, in my submission, it takes it into a different category of offending to what was being dealt with in CTM, because in CTM the discussion was in relation to, well, whether it is a 12‑year‑old or a 14‑year‑old or a 16‑year‑old it really does not matter because there is still a child, but CTM does acknowledge that if it had have been an adult there would have been a valid offence.

I think the same can be said here in relation to this, that when the legislation is specifying in relation to a child, yes, it would not have made any difference whatsoever if Mr Bell thought that the person was 12, 14 or 16, but when he thinks he is engaging with an adult that does put it into a different category and does allow for mistake to be active, I guess, for want of a different word.

That is different to the other scenarios.  I agree with your Honour in terms of a burglary is a burglary, it does not matter what time of day it is, and the like.  Similarly, in relation to some of the sexual offending categories where if it was still a child, whether it was an 11‑year‑old or a 10‑year‑old, it does not matter, but, in my submission, it does matter when we are taking it out of that category of child and the accused thinks they are engaged with someone else.

EDELMAN J:   Does that not mean that your answer to Justice Gordon’s question is that you would accept then that if it is an apt matter or thing that is within the foundation of the charge then there can be no honest and reasonable mistake excuse, but you say that in the circumstances of this case the fact that the victim was a child is something that is foundationally different from just a mere offence of supplying drugs?

MS BAUMELER:   Yes, I would accept that.  Now, I think I have basically covered most of what I – if not everything that I had intended to say in relation to the interaction between section 16 and the interplay between that and the Misuse of Drugs Act.  I also do rely on the decision of CTM and the indication at page 446 of the joint judgment that:

it is the language of the statute that is controlling.

In my submission, that still would allow for the interplay of mistake in terms of a reading of section 14 of the Misuse of Drugs Act.

The other factor, why I do say that it allows for that reading, is if the Court looks at decisions such as Martin’s Case, which was a bigamy decision of the Tasmanian court, again, there, in terms of the elements of there not being a mental element in relation to the creation of the charge and the like, mistake was still seen to operate, and so, in my submission, the same can be said in relation to the way that section 14 of the Misuse of Drugs Act is made up. It still is consistent with previous interpretations of other sections that are of a similar makeup, for mistake to still operate under section 14 of the Misuse of Drugs Act. 

All of that is entirely consistent, also, with He Kaw Teh and the decision of Brown that subsequently followed in Tasmania for the Tasmanian context and how He Kaw Teh is to be interpreted and used within this State.

Now, as I said, I have already also indicated to your Honours the, in our submission, outside the enactment test that is discussed in CTM, in our submission, it is not – sorry, it is outside the enactment to consider other provisions within the Misuse of Drugs Act that do not fall under Part 2 of the Misuse of Drugs Act because, as I have said, it is our submission that the Misuse of Drugs Act Part 2 is essentially supplanted into the Criminal Code for the purposes of those indictable offences, and therefore it does take it outside the enactment in relation to considering other provisions such as 24 and 26 of the Misuse of Drugs Act.

Your Honours also raised, and I do not know whether I touched on this in February or not, the use that can be made of section 341 of the Criminal Code, and in my submission that – firstly, it is a section that has not been used to any significance, and it is a section that was actually criticised in Vallance, and in relation to that decision, if I can indicate - take your Honours to the decision in Vallance, which is found at volume 7, tab 41, as I said, there is the criticism there at page 103 and going over into 104 in relation to that section insofar as it is viewed that the accused should know what crime he faces, and the indication there that the crimes should be included on the indictment if they are to be pleaded as alternatives, rather than an accused going to trial in relation to one charge and then being faced with having to deal with something that was not contemplated on the indictment, and the criticism essentially finishes with, at page 104:

how much trouble would have been saved had a count or counts of assault been included in the indictment as express alternatives as at one time under the habit of drafting then in vogue would have been done as a matter of course.

His Honour was quite critical of the Crown not pleading actual charges and then using section 341 as a fallback position without actually pleading those charges. Then in relation to mistake and how it is to be interpreted within the Tasmanian context, as I said a little while ago, in our submission, the decision of Prince is not the natural starting point for the development of mistake of fact, defence or ground of exculpation as in the Tasmanian context, and rather the decision of Tolson. 

In our submission, the decision of Tolson has a number of relevant points that can also be used in relation to this argument before the Court now.  In relation to that decision – it is my submission that many of the criticisms of Bergin v Stack fall under the issues that Tolson was attempting to grapple with. 

The decision of Tolson is found in the joint book of authorities, Part D, volume 6, tab 40.  Of particular relevance are the decisions, in my submission, of his Honour Justice Wills and also his Honour Justice Cave, starting with the decision of his Honour Justice Wills where he quotes Foster, and I think I referred to this on the last occasion that:

the circumstances must be taken into consideration; otherwise a law calculated for wise purposes might be made a handmaid to oppression –

In my submission, that is something that can be used in relation to the argument before the Court now but to exclude mistake when dealing with whether the accused was aware of there being a child or whether he had a belief that he was not dealing with a child is oppressive and contrary to what the law was actually intending to address.  Obviously, it is also a recognition of the fact that circumstances are relevant to the consideration of the Court. 

The other factor that his Honour identifies is the nature and the extent of a penalty attached to the offence and that is at page 177.  Again, here, in my submission, that is a relevant consideration when, under the Tasmanian Criminal Code there is only one governing penalty, except in relation to I think murder and treason – or murder – that 21 years is the only penalty being considered under charges that are being tried under an indictment and accordingly that is the relevant consideration when one considers what the alternative conviction is.  It takes it to a different level.

The other factor is also found at page 177 and over the page that his Honour comments on is:

undesirable in the highest degree without necessity to multiply instances in which people shall be liable to conviction upon very grave charges when the circumstances are such that no judge in the kingdom would think of pronouncing more than a nominal sentence.

I do not think I would be quite so bold as to suggest that we are in the nominal sentence category in terms of Mr Bell’s conduct in this particular instance, but it does highlight the disparity between the summary penalties that are available and the penalty that he faced in relation to the matter being convicted on an indictment.

Then turning to his Honour Justice Cave – now, here, his Honour at page 181 indicates:

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.

Again, his Honour points out that he…..Parliament to be explicit in terms of its intention and its purpose.

STEWARD J:   Could I ask a question – I am sorry – Justice Cave goes on to say that:

Honest and reasonable mistake stands in fact on the same footing as absence of the reasoning faculty, as in infancy, or perversion of that faculty, as in lunacy.

His logic seems to be saying that it goes to a means of defeating mens rea.  How does that fit in with Tasmania?

MS BAUMELER: The only place that there is any room for that is under section 13 of the Criminal Code and the voluntary and intentional act.  In my submission, what his Honour is saying though is that it is in the purview of Parliament to create any law that it wishes to make.  I think he also goes on to say that you can brand a lunatic a criminal and the like if Parliament chooses to do so.

What, in my submission, is the important aspect of his comments is that, if that is the intent of Parliament, that Parliament needs to specify it and clarify it and make it abundantly clear that that is what they intend to do – that if a lunatic is to be branded a criminal, that that needs to be very specific.  If not, then mistake still operates in those circumstances.

They were the only portions that I was going to take your Honours to in terms of the decision of Tolson.  Tolson was, in my submission, adopted then through the decision of Thomas in Australia, and apart from again highlighting the comments or the issues in relation to how mistake should operate, the other factor, in my submission, that is vital in relation to this appeal for the appellant in the decision of Thomas is the comments in relation to the jury and if I can take your Honours to those.  So, Thomas is at volume 5, tab 19, and his Honour Chief Justice Latham indicates at page 293:

There is an additional consideration affecting this part of the case which I regard as of great importance.  The defence of an accused person should be left to the decision of the jury.  Upon a criminal trial the judge has no power to direct a verdict of guilty.  If the result of a special finding of a jury is that a verdict of not guilty should be entered, the accused is entitled to such a verdict –

His Honour Justice Dixon also makes a similar comment at page 309:

but a lack of confidence in the ability of a tribunal correctly to estimate evidence of states of mind and the like can never be sufficient ground for excluding from inquiry the most fundamental element in a rational and humane criminal code.

I should have actually probably started slightly earlier on that page where there are the comments in relation to Tolson’s decision:

The truth appears to be that a reluctance on the part of courts has repeatedly appeared to allow a prisoner to avail himself of a defence depending simply on his own state of knowledge and belief.  The reluctance is due in great measure, if not entirely, to a mistrust of the tribunal of fact–the jury.  Through a feeling that, if the law allows such a defence to be submitted to the jury, prisoners may too readily escape by deposing to conditions of mind and describing sources of information, matters upon which their evidence cannot be adequately tested and contradicted, judges have been misled into a failure steadily to adhere to principle.

In my submission, that is very relevant in terms of the consideration for this Court in this instance as the jury were entirely excluded in relation to any consideration as to whether they accepted the appellant’s belief or indication of belief as to the age of the complainant involved in relation to this matter and in rather unusual circumstances where in relation to the second count on the indictment they were perfectly entitled to and were able to consider age of the complainant and an acceptance or rejection of the appellant’s account as to whether that belief as to his indication that the complainant was 20 years of age was in fact something that they could consider.

In my submission, the matter in Bell does highlight how a jury can be – the role of the jury in relation to these types of issues, and we continually accept and put great responsibility on juries and, in my submission, part and parcel of that is we regularly are asking juries to make decisions in relation to whether an accused’s account is believable or not and whether it can be accepted, and in relation to this matter it is particularly important, in my submission, because I can see that a jury in this instance could well have made significant findings of fact in relation to age that might well have changed over time. 

So, for instance, the jury might well have accepted that initially when Mr Bell administered the drug he had an honest and reasonable belief that the complainant in the matter was 20 years of age, because he had only just met her, she was in a drug dealer’s house, she was there with someone significantly older than herself that he knew.  In those circumstances the jury might well have found that he did have an honest and reasonable belief. 

However, as time went on there was at least 45 minutes of interaction between the accused and the complainant.  The jury were perfectly entitled to assess and determine that as time went on, that belief might not be as reasonable as it might have been at the first instance when count 1 was committed. 

So, in my submission, this matter does highlight the importance of the jury system and the jury’s ability to assess honest and reasonable beliefs in various scenarios, dependent on the facts that are raised in the matter.  It also highlights, in my submission, why it is that it should be a question for the jury in relation to this.

Turning to Bergin v Stack – sorry, I was just considering whether to go to Bergin v Stack or whether to go to the sentencing factors, and I think I will go to the sentencing factors instead.  In relation to the issue of whether it can simply be dealt with at the point of sentence rather than a question of leaving mistake to a jury, in my submission, the matter of Bell again highlights the difficulties of this approach. 

There is, in my submission, a risk that the court, making the decisions of fact and what they are accepting or rejecting, becomes problematic, and as I have said in terms of this specific instance, there is the difficulty that – his Honour the Chief Justice focused on section 26, which was the supplying a controlled drug to a child. In my submission, the more appropriate act that was captured by the criminality of Mr Bell was section 24, which was administering a drug. Now, there is again a significant ‑ ‑ ‑

KIEFEL CJ: Ms Baumeler, speaking for myself, I do not quite understand why you say the court is taking a task unto itself. The court is simply determining - whether one calls it a defence, an excuse or justification provided by section 14 of the Code, is available to the accused. That is a question of law.

MS BAUMELER:   Yes.

KIEFEL CJ:   That is always determined by a trial judge before a matter is placed before the jury.  I am just having difficulty understanding how these wider notions of how it is always best for matters to be put before a jury, and what should be taken into account in sentencing, how they actually bear upon the central question here, and your central argument seems to be directed to Bergin v Stack.

MS BAUMELER:   Yes.  Turning to that, in our submission, the decision in Bergin v Stack is outside the line of authority that starts with Tolson and goes through to Thomas and also includes Proudman v Dayman, where Bergin v Stack seems to stand on its own.  As we have indicated in the written authorities, or the written submissions, one way that the Court could resolve this matter is to confine Bergin v Stack to summary matters, as opposed to matters on indictment.  The other is to simply overturn the decision in its entirety, on the basis that the mistake operates ‑ ‑ ‑ 

KIEFEL CJ:   Ms Baumeler, do I take it that that aspect of Bergin v Stack (1953) 88 CLR 248 that you are relying upon, is that part of Justice Fullagar’s judgment where his Honour says:

The rule as to the effect of an honest and reasonable mistake of fact means, I think, that such a belief excuses if its truth would have meant that no offence was being committed –

That is the key.  The question which…..then is why is what his Honour is saying there any different from what was said in Thomas v The King at 304 whether it makes innocent the act, or a Proudman v Dayman at 540 where it requires the defendant’s act to be innocent.  Is it just terminology that we are talking about, because in the end result the effect is the same, is it not?  There is no exculpation if the act can give rise to any other offence.  Innocence is required.  The act has to be innocent in all its respects.

MS BAUMELER:   In my submission, it requires – the distinction can be drawn in terms of the making the act innocent and what that encompasses and, in my submission, that is the distinction between the decision of Tolson and the decision of Thomas.  In relation to those, there was still the guilty act of bigamy.  Both Mrs Tolson and Mr Thomas had committed the act of bigamy.  It is what is encompassed by the defence of mistake and whether it excludes or makes innocent because of the conduct.  So it is not that the person is innocent.  It is that whatever their mistake was makes their act innocent in the eyes of the law and, in my submission, the decision in Bergin v Stack takes it that one step further.  It is asking for total innocence as opposed to conduct that makes the act innocent because of the mistake.

In my submission, the other thing that Bergin v Stack is doing is it is raising the definition of “innocence” beyond what would normally be required or sought of by a jury’s consideration at trial.  So it is raising it to total innocence as opposed to not guilty and, in my submission, that is the difficulty with the Bergin v Stack analysis and the way that that decision has evolved is that it is creating a higher standard, if you like, to the considerations that a jury might consider to find someone not guilty of an offence and that that is where “excused” should sit.  Excused should sit at the same point in law as not guilty to a charge, as opposed to innocent of every offence that can be thought of that the accused might well fall into.

KIEFEL CJ:   But that fundamental distinction, is it not, in your argument – your argument really says that innocent should mean not guilty of the offence charged, whereas the older authorities, including Tolson and Thomas and, more recently, CTM, talk about that the act is innocent, not of the offence charged, but the act itself is innocent, which involves criminal and moral culpability.

MS BAUMELER:   Yes, and in my submission, the difficulty, I guess, in relation to that, is that what occurs then, if that analysis is undertaken, is it removes it from the jury’s consideration, which, in my submission, is not what should occur.  It should be a question for the jury to assess whether a defence is actually accepted, where what we have here, in this scenario, is his Honour is determining that the appellant is not innocent of every offence, has identified an offence that he could be guilty of, and on that basis directs a jury that defence of mistake is not available, whereas – and I guess that is the distinction here, because all of the other decisions, the issue was left to the jury.  The jury was able to consider factors, whereas here the jury has been excluded, and we have placed the excuse at a higher level of – excused from all criminal conduct, as opposed to a not guilty finding of the jury being able to consider mistake, and in my submission ‑ ‑ ‑ 

EDELMAN J:   There seems to be almost a range of possible meanings of “innocence”, which some of the cases oscillate between.  At one extreme, you might have a Tolson requirement that the act must be innocent of any moral or legal culpability at all, and then a narrower view would be the act has to be innocent of any offence.  Well, then it could be innocent of an offence of the same nature as the offence charged, and then the narrowest would be, innocent of this particular offence. 

Now, as I understood, at the start of your submissions you conceded that it could extend to innocence of an offence of this nature, but is your submission now that it has to be innocent of this particular offence?  So, when one comes back to the 9.00 pm burglary example in Bergin v Stack, then you are innocent of the – you are not innocent of a particular offence if you have the belief that it is 8.55 pm?

MS BAUMELER:   No.  In my submission, it is the nature of the offence, so, as I said earlier, in relation to whether it is a child or not there would not be any defence.  I mean, there is no distinction drawn between a 14‑year‑old or a 15‑year‑old.  There, mistake would not operate.  But my submission is that, in terms of the circumstances that can be taken into account, and that should allow for the defence of mistake to operate, that “innocent” does encompass, or it should at least contemplate that if someone is dealing with an adult as opposed to a child, that is required for this section to be breached, that that defence then operates in those circumstances.

EDELMAN J:   Why, then, would not an offence of supplying drugs to an adult be of the same general nature, given that the accused person in this case, or in other cases, would have been put fully on notice of all of the elements of the lesser offence of supplying to an adult, by a charge of supplying drugs to a child?

MS BAUMELER:   In my submission, it is that distinction, between the child and the adult, that changes the nature of the offence.  That is the aggravating feature of that particular offence, is the fact that a child is involved.  That is what makes this act more criminal than other offences of supplying or administering to an adult.  It is the fact that once a child is engaged in relation to the offending, that that takes it to a different level.

KEANE J: It might be that it is more criminal, but they are both criminal acts, as distinct from one being a crime and one being an offence that is an offence as a regulatory offence but not something which one would regard as morally the equivalent of a crime. The distinction seems to be this, I suggest, for your comment, that the interpretative principle that is recognised in section 14 of the Tasmanian Code reflects an abhorrence on the part of the common law judges to the notion that one can be criminally responsible where one is not morally culpable and that is the basis for this rule of interpretation, that rule, according to cases like Tolson, not being engaged, where the Act is, on any view, both morally culpable and criminally responsible.  Though there may be a difference of degree between the major and the secondary offence, both are cases where we recognise moral culpability.

MS BAUMELER:   Yes, I can appreciate what your Honour is saying.  In my submission, though, the way that the Code has been drafted, and the way that these sections sit within the Code, there is, as your Honour has said, a range in relation to the moral culpability, and the engagement of a child in relation to this is aggravating the culpability or the seriousness of the offending, and is also at the heart of why that section was created.  It was intended to address the singling out of children and luring them into the drug trade and the like.

That is why it was also included as an indictable matter, and one that was truly criminal, and to be dealt with in the Supreme Court, but, in my submission, that is where the distinction lies, that in terms of other offences that are of a lesser nature, to have those be used to stop the engagement of a jury to determine whether mistake as to age is available for consideration is outside the scope of how the Act was drafted, and outside the scope of how it was intended that section 14 operate, and that section 14 allows for defences to be available in – the ground of exculpation to be available in all of the circumstances of the offending, and, in this instance, that includes the child being involved, and is at the heart of the criminal conduct that is intended to be addressed by that section, in my submission.

It is also going back to the decision of Tolson as well that where their Honours comment on – that no one is going to be too concerned if someone is going to receive a fine in relation to something by doing something by inadvertence, but if you are talking about somebody’s liberty being taken away that is a whole different scenario and, in my submission, that is where we are here.  No one would be complaining in terms of the appellant if all that we are talking about is a fine here or a nominal prison sentence, but to place someone at the peril of a 21‑year sentence.

Now, of course I know that no one is going to get that sentence but that is the maximum penalty that can be imposed. It is on the level with the most serious criminal conduct that the State has to place someone at that peril for what is something that would normally be fined for had either of the other two sections been charged is such a disparity that for the rule or the law or the section, of section 14 of mistake not to be able to operate, in my submission, is totally contrary to the provisions of the Code, the way that the Code is intended to operate and also the adversarial process and the role of the jury within the adversarial process. To remove it from their consideration, in my submission, is contrary to all of those principles.

The other thing, in terms of Bergin v Stack, is there again we are dealing with regulatory matters and the like which again fits into the point that I just made in relation to Tolson where there are not those concerns.  The concern here is in terms of the appellant, that obviously the penalty that he faced was so much more significant in this instance.

KIEFEL CJ:   Ms Baumeler, I see that in your outline and in your written submissions you do not suggest that CTM should be overruled – that it follows – or that it applies Bergin v Stack.  You accept what is said in CTM ‑ ‑ ‑

MS BAUMELER:   Yes, that is correct, your Honour.

KIEFEL CJ:   But how do you bring yourself within paragraph 8 of CTM?

MS BAUMELER:   As I said earlier, in terms of this matter, it is the outside the operation of the enactment test – is the test that is relevant – so the Criminal Code then, as I said earlier – Part 2 of the Misuse of Drugs Act essentially transports through section 4 of the Criminal Code Act that portion of the Misuse of Drugs Act into the Criminal Code and the Criminal Code provisions and, in my submission, would exclude the operation of the other provisions in the Misuse of Drugs Act as being outside the enactment.  So, it is not the broad ‑ ‑ ‑

KIEFEL CJ: You mean outside section 14? Not of the whole enactment though?

MS BAUMELER: No, sorry, that – in terms of whether section 14 of the Misuse of Drugs Act – sorry, I will start that all again. In relation to section 14 of the Misuse of Drugs Act, that falls under Part 2 of that piece of legislation.  The making of those matters indictable, in my submission, in essence splits the Misuse of Drugs Act into two.  So, the provisions of section 26 are outside the operation of the enactment for the purposes of consideration of the indictable matters. 

It is as if there are two separate enactments, if you like - one that deals with indictable matters which are transported into the Criminal Code and the operation of the Criminal Code, and the remaining summary matters.  So, for the outside the enactment test, the other sections and provisions that the Chief Justice was referring to, in my submission, are outside the enactment.

KIEFEL CJ:   Does the phrase – most of these cases involving outside the operation of the enactment would just usually involve one charge and it is an all or nothing approach.  Is it possible that that phrase – and what is behind the idea of outside the operation of the enactment – could apply to more than one statute, that is to say, for example, here if there was a question about age but there was also a question about the nature of the sexual act, and there was another charge under the Criminal Code available, whether or not, for instance, rape, the fact that the other charge might arise under the Code as distinct from - there might be multiple charges, Misuse of Drugs Act and the Code - would the fact that it is in another statute take it outside the notion of outside the enactment?

MS BAUMELER:   No, because I think I am saying the opposite.  What I am saying is that if another statute creates a matter that is to come within the realm of the Criminal Code and the operation of the Criminal Code through section 4, it essentially transports that portion of the other statue into the scope of the Criminal Code.

KIEFEL CJ: Yes, I see. So section 14 of the Code operates on anything drawn within its purview.

MS BAUMELER:   Yes, your Honour.

KIEFEL CJ:   Yes, I follow.  Thank you for that.

MS BAUMELER:    Yes, thank you.  In conclusion, your Honours, the appellant was charged with a serious criminal offence and that, as I have just indicated, fell within that part of the Misuse of Drugs Act that falls within the Criminal Code, in my submission.  There was no alternate charge that the jury could consider.  In my submission, there is nothing in the Misuse of Drugs Act to exclude mistake as a ground of exculpation to the charge that is being dealt with here.  Had it been Parliament’s intent to remove mistake as a ground of exculpation, it needed to do so in the clearest terms consistent with CTM at page 400. 

As I have indicated in relation to the intent of the legislation for enacting the particular section that the appellant was charged with, it was to catch adults who prey on children.  Not to exclude a ground of exculpation in circumstances where an accused’s belief was that they were not dealing with a child, in my submission, is contrary to the general principles that should be at play in relation to a rational and humane Criminal Code, to quote Thomas.

It is submitted that his Honour Justice Brett when he was dealing with the issue in the appellate court at volume 6 – this is at page 9, at paragraph 32 of the decision which is at volume 6, tab 27 where his Honour indicates:

The word “excuse” in s 14, in my view, can accordingly be properly construed by limiting its application to the question of criminal responsibility for the act or omission which is a constituent of the crime which is the subject of the identified accusation. That is, the section can be read as if it included the words “would excuse such act or omission from criminal responsibility for the crime charged.”  On that basis, it would be irrelevant that the act may also incur some form of criminal liability under another provision, which is not the subject of the accusation or the criminal process flowing from it.

That, in my submission, in a nutshell is the appellant’s submission.  Such an interpretation of the Code provides certainty in the adversarial process.  It is also consistent with fundamental principles such as presumption of innocence and the accused’s right to know the charge that he is to meet.  In our submission, the jury in this matter should have been instructed that mistake as to age was available as a ground of exculpation and that if, after having considered all of the evidence, they came to the view that the appellant held an honest and reasonable mistake as to the complainant’s age, that he should have been entitled to an acquittal.

In our submission, that is not akin to getting off scot‑free, and as that is not the issue that needs to be addressed in this scenario, the issues that need to be addressed are as follows:  what crime was the jury to consider, was there a ground of exculpation to that charge raised at the trial, if raised sufficiently the jury should have considered the matter in light of the defence raised, and whether the appellant’s belief was honest and reasonable was a jury question that should not have been removed from them.  The court at trial and on appeal erred in extending the definition of innocence beyond the consideration of the charge on the indictment, and these are the fundamental matters that we seek clarification of.  If the Court pleases.

KIEFEL CJ:   Thank you, Ms Baumeler.  Mr Coates.

MR COATES:   Thank you, your Honours.  Your Honours, in summary it is the respondent’s argument, firstly, no common law ‑ ‑ ‑ 

KIEFEL CJ:   Mr Coates, you might need to speak up a little or move closer to the microphone, you are a bit faint.

MR COATES:   Sorry.  I might have to shout.  I will start again.  In summary, it is the respondent’s argument that firstly, no common law mens rea is referred into the Criminal Code, secondly, the mental element is supplied either by the section, or Chapter IV of the Criminal Code, or both, section 14 of the Misuse of Drugs Act has no mental element, therefore, the only mental element is section 13(1) of the Criminal Code. Section 13(1) of the Criminal Code only applies to physical acts, not external elements of the crime.

Section 14 of the Criminal Code would be available if the mistake excused the appellant’s act.  Excuse, in the Criminal Code, under section 14, is synonymous with innocence. Innocence means innocent of no offence at all. Tasmania’s provision represents the common law, whilst the Queensland provision does not. In this case, even if the mistake was true, it did not make exact innocence, as he would be guilty under an offence under section 26 of the Misuse of Drugs Act.

Now, if I turn firstly to the…..under the Criminal Code (Tas), it is my submission that it is a set of law in Tasmania that the common law mens rea, or referring the intention into a section, is replaced by Chapter IV of the Criminal Code, so mental element or knowledge under the Criminal Code is looked at by either the offence provision itself, where it defines intent or knowledge, or combined with section 13 and 14 of the Criminal Code.

That has been the law in this State since Vallance v The Queen (1961) 105 CLR 56, which is at volume 5, page 1015 of the materials. In Vallance v The Queen, no judge imports mens rea into the offence from the common law, except Justice Taylor, who stated it was available by section 8 of the Criminal Code Act, so issue is taken with the Attorney‑General for Queensland’s submissions that under Tasmania the ingredients can be referred through section 8. They refer to Vallance, but they quote Justice Taylor. In particular, Chief Justice Dixon at 59 and 60 of the reports, and Justice Windeyer at page 78 states that Chapter IV covers the field.

That has been considered in a number of cases in Tasmania since Vallance, which I have outlined in my submissions, but in particular it was considered in Snow v The Queen [1962] Tas SR 271, R v Martin [1963] Tas SR 103, Arnol v The Queen [1981] Tas R 157, and finally in Bennett v The Queen [1991] Tas R 11, which is post‑He Kaw Teh, where they considered the law in light of He Kaw Teh, and Chief Justice Green stated, at pages 18 to 19, that He Kaw Teh did not overturn the principles of the Code, that it is not necessary to resort to the common law doctrine of mens rea.  So as set out in my submissions and in the Queensland submissions, this principle applies under the Griffith Codes as well. 

The next point is that the majority in Vallance decided that section 13(1) of the Code only applied to the physical acts and not to the result. That was Justice Kitto at page 64, Justice Taylor at pages 67 and 68, and Justice Menzies at pages 71 and 72.

That has been followed by decisions of this Court in Kaporonovski v The Queen (1973) 133 CLR 209, particularly Justice Gibbs at pages 229 to 231 and a decision from the Western Australia Code, R v Falconer (1990) 171 CLR 30, the judgments of Chief Justice Mason, Justice Brennan and Justice McHugh.

Secondly, the decision in Vallance found that in section 13(2) of the Criminal Code, chance event only meant unintended, unforeseen and unforeseeable.  That is Justice Dixon at 61, Justice Kitto at 65 and Justice Windeyer at page 82.

What that means in Tasmania is that, first of all, when you are considering a crime, you look at the physical act, was that voluntary and intentional under section 13(1). Then you look at the offence provision, does the provision itself provide a mental element or knowledge; further, have all external elements been proved? Then you return to section 13(2) or to section 14 of the Criminal Code, if it is raised.

So, in my submission, there is no mental element in section 14 of the Misuse of Drugs Act, the provisions of the Criminal Code apply through section 4 of the Criminal CodeAct, that the physical acts had to be proven voluntary and intentional ‑ that was the supplying and injecting of the controlled drug – and then, for any of the other external elements, section 14 of the Criminal Code applied if the mistake in the belief, if that had been true, excused the act or omission that was made.

Now, section 14 of the Criminal Code – there has been no – and all the authorities in Tasmania, under section 14 of the Criminal Code states that it is the common law. There have been some differences in the decision on whether it is an enabling provision, that is where it enables the common law through section 14, or whether it is a stand‑alone provision.

In Snow v The Queen, Chief Justice Burbury and Justice Cox said at page 277, which is at volume 7, page 1690 of your materials, that it is a stand‑alone provision in the Code that repeats the common law. Justice Crawford at page 297 stated that section 14 must say to coincide with the common law and to state the defence of mistake in the same terms as the common law.

In R v Martin, which we have given the reference to, Chief Justice Burbury repeated what he had said in Snow, but Justices Crawford and Neasey stated that the common law is repeated in section 14 of the Criminal Code.  Justice Neasey, at page 150, said:

Even if s. 14 stood alone I would have no doubt that the defence was open, but when it is aided by s. 8 of the Code, I think the conclusion is irresistible.

Finally, in Attorney‑General’s Reference No 1 of 1989, Justice Neasey, which the other judges agreed, stated that the provision was in effect an enabling provision of the common law, so it is the common law that is determined from time to time.

KIEFEL CJ:   That might be a convenient time, Mr Coates.

MR COATES:   Thank you, your Honour.

KIEFEL CJ:   The Court will now adjourn until 10.00 am tomorrow, Canberra time.

AT 4.16 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 6 OCTOBER 2021