Bell v State of Tasmania

[2020] HCATrans 77

[2020] HCATrans 077

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Hobart  No H4 of 2019

B e t w e e n -

CHAUNCEY AARON BELL

Applicant

and

STATE OF TASMANIA

Respondent

Application for special leave to appeal

BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

FROM SYDNEY BY VIDEO LINK TO HOBART

ON FRIDAY, 5 JUNE 2020, AT 1.30 PM

Copyright in the High Court of Australia

MS K.L. BAUMELER:   If it pleases, your Honours, I appear on behalf of the applicant with my friend, MS P.J. WILLSHIRE.  (instructed by Philippa Willshire, Barrister & Solicitor)

MR D.G. COATES, SC:   If it please, your Honours, I appear on behalf of the respondent with MS Y. PRENC.  (instructed by Director of Public Prosecutions (Tas))

BELL J:   Yes, Ms Baumeler.

MS BAUMELER:   Yes, thank you, your Honours.  In relation to the matter, the special leave point we submit is specific but that the broader ramifications of the answer to the question goes to the very heart of the criminal justice system and, in our submission, it is a fundamental issue that needs to be addressed.  I guess there are two specific areas that we would say there are issues that there needs to be clarity to.

The first is in relation to innocence and the scope of innocence and what does innocence actually mean, and the second is especially in a co‑jurisdiction as Tasmania as to what outside the enactment and the discussions in the authorities as to what an enactment actually covers and whether it is the whole of the legislation, the portion of the legislation or not.

BELL J:   Yes.

MS BAUMELER:   So, they are broadly the two areas that we would argue are relevant in terms of High Court authority needing to clarify those issues.

BELL J:   Can I take up with you, Ms Baumeler, just perhaps a more fundamental issue raised by some of the submissions that you advance in support of the application.  Am I right in understanding this jury was directed in relation to the offence under the Misuse of Drugs Act that the offence would be complete upon proof of the intentional supply of the drug, and then the element of the offence, namely, that it was supply of a prohibited drug to a child was, in essence, an element of absolute liability in the sense that regardless of - no mental element at all was required.  That was the way the jury were instructed?

MS BAUMELER:   That is correct, your Honour, yes.

BELL J:   In terms of fundamental notions of criminal responsibility, at common law, in the way those principles were explained in He Kaw Teh, absent statutory indication to the contrary, a criminal liability does not attach if the prosecution fails to establish that the accused person had knowledge of all the facts and circumstances that make his or her act criminal in the sense of expose him or her to liability for the offence charged.  In some instances, of course, recklessness may be the requisite mental element. 

Am I right in my understanding that the Code has, at least to date, been construed on a somewhat different footing, that is, there is no question of mens rea, the criminal responsibility relevantly attaches to acts that are voluntary and intentional?

MS BAUMELER:   Yes.

BELL J:   And in the way that provision has been explained, that is the requirement for proof of the mental element attaches to the act, that is, to the physical act.

MS BAUMELER:   Yes.

BELL J:   By contrast, if one looks, for example, at the analysis in a case such as Reynhoudt, Chief Justice Dixon spoke there of an offence that involved, I think it was an assault on a police officer, of the requirement to establish the intention to do the whole act prohibited.

MS BAUMELER:   Yes.

BELL J:   Now, that matter does not arise here because it is accepted that as far as proof of the mental element of the offence is concerned, putting to one side section 14, it is confined to proof of the physical act of supply.

MS BAUMELER:   That is correct, your Honour, yes.  I think it is Snow’s Case, is essentially what your Honour is referring to, that the act itself is only the act of supply, and that is the act that needs to be voluntary and intentional, and then everything else that flows from it is whether there is some exculpation by the surrounding circumstances.

BELL J:   Yes.  Snow, of course, preceded He Kaw Teh by a ‑ ‑ ‑

MS BAUMELER:   Well and truly.

BELL J:   As did Vallance, but as things stand the position under the Tasmanian Code, it is accepted, is one where the intention of which section 13 speaks is the intention merely to do the physical act.

MS BAUMELER:   Yes, that is correct.  Then section 14 comes into the circumstances in relation to that, and I guess from the applicant’s perspective the difficulty here was there was absolutely no disagreement in terms of the Crown case in relation to the physical act.  There were admissions in relation to having – well, one, sold the drug to the person that had attended with the child, and then also agreeing to administer and subsequently administering the drug to the child when that person was unable to do so.  So there was certainly no dispute as to the voluntary and intentional act. 

The issue and the area of dispute that ultimately was raised was only insofar as whether there was a mistake as to the age and then, of course, that was how the trial was run.  The trial was run on the basis that there was confusion as to age.  It was certainly cross‑examined on.  It was different to decisions like CTM where the Court has obviously ruled that there was not a sufficient grounding for arguments as to age.  Here, everyone I think basically was cross‑examined insofar as the age question and it was only at the end of the trial when his Honour the Chief Justice started to look into the matter a little bit further that it was determined that age was not able to be left in terms of that particular charge whereas ‑ ‑ ‑

BELL J:   That was a conclusion, Ms Baumeler, that his Honour reached over the submissions, not only of yourself, but the prosecution.

MS BAUMELER:   Yes, at that stage everyone was on the same side.

BELL J:   Yes.

MS BAUMELER:   Yes.  So obviously that changed by the time that the matter came to the Court of Criminal Appeal down here.  By that stage ‑ well, I guess everybody had looked at it far more thoroughly than anyone had ever thought they were going to need to, and at that point in time the prosecution quite clearly argued that the matter was a matter where his Honour was correct in his ultimate determination, which obviously is where we have ended up here. 

In terms of an analysis and the crux of the applicant’s submissions, really his Honour Justice Brett essentially summarises all of the issues that the applicant would seek to raise and the issues that do exist.  His Honour certainly makes it quite clear that issues as to innocence and a determination as to what the scope of innocence is, is something that lacks clarity, and also the scope of what actually an enactment means. 

To take something out of the course of an enactment obviously in relation to this matter, the section that was provided for by the Misuse of Drugs Act which made the matter indictable left his Honour with the position that there were not any alternative charges that the jury could have been directed that they could consider.

BELL J:   Indeed.  The offence of supplying a prohibited drug under the Misuse of Drugs Act is a summary offence, is it?

MS BAUMELER:   That is right.

BELL J:   It is a summary offence for which no provision is made for that summary offence to be an available alternative on the trial on indictment for the offence with which your client was charged.

MS BAUMELER:   That is correct, your Honour.  It is somewhat unusual – and that was certainly the argument that I raised with his Honour, the Chief Justice at the first trial ‑ that Parliament had quite clearly considered alternatives and there were provisions for other offences that the Misuse of Drugs Act also makes indictable which were then – where there are alternatives that the jury can be left with and can consider.

But in this instance – and this is why we would say that the reading of the legislation needs to be that it is only confined to this particular act and the mischief that is intended to be resolved or be dealt with by the court when dealing with this particular section – is if it is a child that the person actually knows they are administering a drug to and that if they make a mistake that it should be available as a defence in relation to the charge.  Because there is no alternative that the jury could have considered, it is – it creates a different type of offence.

The second reading speech of the Parliament when the Misuse of Drugs Act was enacted seemed to be, as I just said a moment ago, trying to cure the mischief of a drug dealer or someone involved in the sale of drugs luring a child into that business and then using them to sell drugs themselves and supplying them.

BELL J:   On any view, the offence for which your client has been convicted is a serious indictable offence.

MS BAUMELER:   Yes.

BELL J:   In your submission, particularly if it is understood that the element of intention is confined to the physical act, the scope for the defence, under section 14, should be understood in the way that Sir Samuel Griffith understood the so‑called defence of honest and reasonable but mistaken belief.  It is quoted in He Kaw Teh in relation to the provision of section 24 of the Griffith Code.  There, the expression is:

A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things, is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist.

Of course, section 14 is couched in different terms but the issue that you raise is that Sir Samuel accurately stated the common law in that draft, namely, that criminal responsibility does not attach to a greater extent than if the real state of things had been such as believed and that is, in essence, your point.

MS BAUMELER:   It is, in essence, my point.  I guess this particular section is a good example because it seems incongruous that, if someone was mistaken as to the drug and they were actually providing M&Ms instead of amphetamines, there would have been a defence available.  The defence of mistake would have been available to them.

But when you are mistaken as to a child’s age or the person’s age that you are dealing with in circumstances where the trial was certainly run on the basis that the person was 20 and obviously an adult, it is incongruous that in the one section you can have a defence of mistake for half and not for the other half if you are mistaken as to the age.

BELL J:   Yes.

GAGELER J:   Is it common ground that the structure of the Criminal Code in sections 13 and 14 precludes the sort of analysis we see in He Kaw Teh?

MS BAUMELER:   Yes, it is.

GAGELER J:   Is there authority to that effect in Tasmania?  It seems to be assumed in the entirety of the reasoning in the present case but were you talking about something that is well established or is it just an assumption that has been made in this case?

BELL J:   In that regard, Ms Baumeler, might I just draw to attention – I see there is reference I think in Justice Brett’s analysis to the decision of the Court of Criminal Appeal in Martin.  That was with respect to the defence before the Court of Criminal Appeal revisited the matter, after He Kaw Teh, to hold that, in light of that decision, the onus rested on the Crown and not on the accused.

One has seen in the past the capacity of the Griffith Code states to incorporate the principles in Woolmington.  Now, on one view, the outcome of your argument, to the extent you invoke ideas of fundamental principles of criminal responsibility, you are seeking a somewhat modest result, since the mental element for which you contend requires proof not only of the honesty of the belief in the state of affairs but its reasonableness, that being a distinct and lesser mental state than that of knowledge, as explained in Justice Brennan’s analysis in He Kaw Teh.

MS BAUMELER:   Yes.

GAGELER J:   You see, on one view all that section 13 of the Code tells you is that where there is an act that is an element of an offence then that act must be voluntary and intentional.  Section 14 then just tells you that almost a reasonable mistake of fact as a defence turns on the provision creating the offence and nothing at all is said about knowledge, intermediate positioning.

MS BAUMELER:   Yes, I certainly accept that, and then the section that actually creates the offence is not really of any use either.  It is certainly not one where, as in legislation, we are given a form of knowledge or we are given something as to what the mental element really needs to be, such as wilfulness, recklessness or something.  Here the provision that creates the offence is a very simple one that simply says if you administer a drug to a child, you have committed a crime.

So there is nothing in there to really give any assistance as to what the knowledge is, but I suppose, in some respects, that bolsters my argument that if you – you must need to, if you are administering a drug to a child, need to know that you have a child there, or you at least need to have made inquiries and not be reckless in terms of the administering the drug. 

BELL J:   The former of those submissions would embrace the idea that the intention with which section 13 is concerned is the intention to do what Justice Dixon in Reynhoudt described as the whole act, as distinct from the physical act ‑ ‑ ‑

MS BAUMELER:   Yes.

BELL J:   ‑ ‑ ‑ would require some departure from Vallance. 

MS BAUMELER:   Yes, yes, it would.  In terms of the matters – as I indicated at the outset, the essential matters that it is my submission the Court really needs to consider, is the scope of innocence and whether or where it can – where it sits in terms of this particular legislation.

BELL J:   Yes. 

MS BAUMELER:   Then also, because of course it is a Code provision that is being dealt with, what the actual scope of the enactment is, because if the enactment is confined to only that particular section and the fact that

there was not an alternative, which is the reading that I would be asking the Court to determine ‑ ‑ ‑ 

BELL J:   You are here referring, I think, to Justice Dixon’s varying ways of expressing the test in Proudman v Dayman.

MS BAUMELER:   Yes, yes.

BELL J:   Perhaps another way of putting your argument would be to say that Sir Samuel Griffith’s understanding of the scope of the common law offence – of the common law defence, is the one for which you contend, namely, that if you have an honest but mistaken belief – and it is reasonable in the existence of a state of things, then you do not bear criminal liability to any greater extent than if things had been as you believed them. 

MS BAUMELER:   Yes, yes, I would accept that. 

BELL J:   Yes, I think we understand that, and the time is up, I think.

MS BAUMELER:   Yes, the time is up.

BELL J:   We will hear from Mr Coates. 

MR COATES:   Thank you, your Honours.  In relation to criminal responsibility, as your Honour Justice Bell said, it has been the case – the Criminal Code has been determined ‑ interpreted since Vallance that you do not read any mens rea into the offences and if the offence does not disclose a mens rea then the mental elements referred to are section 13 and section 14.  If you look at the structure of the Criminal Code, some offences include mens rea into – many of the offences include mens rea in the offence, many offences do not.  Now, I think Justice Gageler asked ‑ ‑ ‑

BELL J:   This is, on any view, a serious offence.  I think it carries a maximum penalty of 21 years imprisonment.  Is that so?

MR COATES:   Yes, all crimes in Tasmania have a maximum penalty of 21 years.  Except for a very few exceptions we do not have separate maximum penalties.  So, any crime on indictment is the maximum, apart from murder and a couple of others, the maximum penalty is 21 years.

BELL J:   I see, yes.  So, a critical distinction is between indictable offences and summary offences. 

MR COATES:   Sorry, your Honour.

BELL J:   The maximum penalty for the summary offence of supply of a prohibited drug?

MR COATES:   Four years’ imprisonment.

BELL J:   I see, yes.

MR COATES:   The other question that was raised, has our court considered He Kaw Teh because your Honour said Martin was decided obviously well before He Kaw Teh.  Martin stated that section 14 restated the common law.  Martin said the onus of proof was on the accused.  However, it was reconsidered post He Kaw Teh in Attorney‑General’s Reference No 1 of 1989.

BELL J:   Yes.

MR COATES:   That was a five bench court of the Court of Criminal Appeal and they said as a result of He Kaw Teh the onus of proof was on the Crown to disprove that he did not have an honest and reasonable mistake, a fact beyond reasonable doubt.  It is my submission that in this case in determining that honest and reasonable mistake of fact did not apply because his act did not make him innocent, the Chief Justice in the Court of Criminal Appeal applied well‑settled principles from the High Court in Proudman v Dayman and then Bergin v Stack and most recently in CTM v The Queen.  In doing so, the mistaken belief, if it was true, then it would only, to use the plural judgment in CTM, take the applicant out of one prohibition into another.

GAGELER J:   Mr Coates, you are there referring to paragraph 8 of the joint judgment in CTM.

MR COATES:   Yes.

GAGELER J:   You might be right but the difficulty I have in following the judgment in CTM is if you look back to paragraph 2 of the judgment there is the extract from the Draft Code of Sir Samuel Griffith which is then said in paragraph 3, echoing the words of Justice Dixon, to reflect the common law with complete accuracy.  It is very difficult to reconcile paragraph 8 with Sir Samuel Griffith’s draft as quoted in paragraph 2. 

MR COATES:   I accept that, your Honour.  Of course, section 14 of the Criminal Code (Tas) is slightly different to the Criminal Code(Qld) because it does not have the provision that they are only responsible to the level of the mistake.

BELL J:   Yes.  May I ask this, Mr Coates?  In Thomas v The King (1937) 59 CLR 279 at 305 to 306, Justice Dixon discussed the provisions of the Queensland and West Australian Codes and the Tasmanian Code respecting honest and reasonable but mistaken belief, expressing the view that all three accorded with the common law. His Honour drew no distinction, and has any distinction been suggested since the decision in Thomas v The King in relation to the different wording in section 14 of the Tasmanian Code?

MR COATES:   I do not think it has ever been considered, that I can find - I do not think it has ever been considered, the distinction. 

BELL J:   Has it ever been doubted that Justice Dixon’s view that section 14 stated the common law was a correct view?  Is it suggested that this was some departure from the common law that was intended?

MR COATES:   No, in Martin’s Case, Chief Justice Burbury states that section 14 reproduces the common law.

BELL J:   Yes.

MR COATES:   But it is my submission - what the cases have said, like Bergin v Stack and CTM, is that if your mistaken belief just means you have committed another offence then it does not apply.  That is the case here.  Justice Brett in this case raised that there may be some confusion about whether the common law means any criminal offence, or any offence, or it only means if it is an offence in the same enactment, but in my submission it does not matter in this case because supplying a prohibited drug to anyone is a criminal offence and it is in the same enactment to which the applicant was indicted on.

BELL J:   In the result, a person may be convicted of the indictable offence in circumstances in which absolute liability attaches to the element, an element of criminal liability, namely, the age of the recipient of the drug.  Why would that be the ‑ ‑ ‑ 

MR COATES:   Well, the authorities say, particularly CTM, it is because it does not make the act an innocent act.  So from development of the common law was that for honest and reasonable mistake of fact to apply, the mistaken belief had to make the person innocent, and that does not.

BELL J:   The common law, Mr Coates, in its development has tended to concentrate, insofar as the defence of honest and reasonable but mistaken belief, on offences of strict liability, as in Bergin v Stack and Proudman v Dayman, for the reason that common law criminal liability generally imports mens rea and therefore the evidence in relation to offences of basic intent, that of knowledge. 

Now, under the Code that, we are told does not apply, but that would not seem an evident reason for confining the common law test to statements made in cases concerning strict liability rather than the formulation that Sir Samuel Griffith had in mind as to the position as to the common law at the time of the drafting of the Griffith Code.

MR COATES:   Well, with respect, the situation here is no different to the situation in CTM.  In CTM the argument was raised that if a person was charged with – I have forgotten the terms used in New South Wales – unlawful sexual intercourse - between 12 and 14 and they said they believed…..14 and 16, then that would offer a defence.  The High Court said – the Court, plural judges plus Justice Hayne stated that that would not be a defence because it merely got you out of one prohibition into another, therefore your act was not an innocent one – your mistake was not innocent.

BELL J:   There remains the tension, as it were, in CTM that Justice Gageler has drawn attention to.

MR COATES:   Certainly, I concede that, but clearly all the Judges - Justice Hayne also mentions – refers to Bergin v Stack.  In my submission, Bergin v Stack is really not any different to here.  Bergin v Stack applied the common law for honest and reasonable mistake of fact where it was available.  Here it is whether section 14 was available.  Obviously section 14 is available to - section 14 of the Misuse of Drugs Act.  It only just - does not apply in these circumstances because it does not make his act innocent.

Now, getting back to my learned friend’s argument about does it apply to all offences or just in the one enactment, in my submission, it does not matter in this case because it is both a criminal offence and it is both in the one enactment.  May it please, your Honours.

BELL J:   Thank you.  We do not need to hear further from you, Ms Baumeler.  There will be a grant of special leave in this matter.  What is the estimated length of the hearing?

MS BAUMELER:   Approximately half a day, your Honours.

BELL J:   Yes, very well.  All right.  Ms Baumeler and Mr Coates, I draw the attention of your instructors to the directions respecting the filing of submissions that can be obtained from the Registry.  The order of the Court is that special leave is granted in the application. 

Adjourn the Court to 10.00 am on Tuesday, 9 June, by video connection to Brisbane, Melbourne and Sydney.

AT 2.07 PM THE MATTER WAS ADJOURNED