Bennett v The Queen

[1991] HCATrans 248

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Hobart No H2 of 1991

B e t w e e n -

MICHAEL JOHN BENNETT

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ
DEANE J

GAUDRON J

Bennett 1 4/9/91

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 4 SEPTEMBER 1991, AT 11.15 AM

Copyright in -the High Court of Australia

MR H.J. KABLE:  May it please the Court, I appear with my

learned friend, MS D.J. RIGBY, for the applicant.

(instructed by Zeeman Kable and Page)

MR D. BUGG:  May it please the Court, I appear with my

learned friend, MS H. LAMBERT, for the respondent.

(instructed by the Director of Public Prosecutions,

Tasmania)

MASON CJ: Yes, Mr Kable.

MR KABLE:  May it please Your Honours. We submit that the

papers filed in this matter disclose that the two
controversial issues which warrant the grant of
special leave to appeal are: firstly, an
identification of the mental element in the crime

of rape pursuant to the Tasmanian Criminal Code

Act 1924; and secondly, the applicability of the

principle to be extracted from He Kaw Teh that

there is a presumption that mens rea is an element
in a statutory offence although the offence is

defined only by reference to its external elements.

We submit that the case raises both issues and

that both issues are of a sufficiently

controversial nature to warrant a grant of special

leave. We elicit support for those contentions,

firstly in the judgment of Justice Brennan in

He Kaw Teh 157 CLR where firstly, at page 565

His Honour observed at the bottom of the page:

Nowadays, a presumption is made that mens rea

is an element in a statutory offence though

the offence is defined only by reference to

its external elements -

His Honour, having previously quoted from the judgment of Chief Justice Dixon in Vallance and

made the following observation himself:

When a statute creates and defines an offence	only by reference to its external elements, a
mental element is usually implied in the
definition. A person who engages in
prohibited conduct is not criminally responsible for it unless the mental element
is present.

With some foresight, we would submit, His Honour, at page 576 of his judgment in that case,

observed about 13 lines from the bottom in the

middle of the large paragraph:

The ascertainment of the legislature's

intention in the case of a statutory offence

is not likely to be any easier than the

Bennett 2 4/9/91

ascertainment of the relevant mental element

in some common law crimes. The question as to

the required state of mind as to non-consent

in the crime of rape - "whether the definition

of mens rea in rape should be formulated in

terms of intention or in terms of belief" -

has not received a uniform answer in this

country. Substantial arguments support either
view and the controversy illustrates the
difficulty in ascertaining the true form of

mens rea in a particular offence when the

legislature has not expressed its intention.

GAUDRON J:  Mr Kable, I do not see how these issues are relevant in this case. I mean, they may well be

but I do not have sufficient information to

understand how it is that you say these issues

arise in this case.

MR KABLE:  They arise in this case, Your Honour, because the

accused was charged with one count of abduction and

two counts of rape. The Crown case was that the

complainant had spent some time with the accused

and his father and had consented to travel into the

country with those two persons to visit a hotel to

consume some further liquor - which was the conduct

that had been going on for some time - and there

was no dispute on the Crown case to the facts thus

narrated.

It was the Crown case, that instead of going

to the designated hotel, the accused and his father

drove off a bush track and there was then a dispute
between the accused and the Crown as to the

circumstances surrounding the two acts of

intercourse. The unsworn statement of the accused

disclosing that as to the second act of intercourse

he had no recollection and of course, as to that

act of intercourse the question of whether or not the Crown were required to prove a mental element associated with the act of penetration assumes

particular important because the mental element in	the crime of rape in Tasmania - if Snow, Arnol and
the current case are correct - relates solely to a
voluntary and intentional act of penetration, absent consent of the complainant with no issue as to the direction of mind of the penetrator to the
issue of consent. Thus, we would submit, that
critically, in an act of intercourse unremembered
by the perpetrator, a circumstance where there is a
real difference in likely result in the case arises.

That would be my answer to Your Honour's

question, and just to take that one step further, if it please Your Honour, in any event, we would submit, that from the point of view of a jury in

Bennett 3 4/9/91

adjudication there is a real difference between an

obligation upon the Crown to prove at the least a

non-caring or indifference and perhaps greater, but

let me assume the least, on the part of the

perpetrator of the act than merely having to prove

as an external element the lack of consent raising

an evidentiary burden at least upon the accused to

prove not only an honest belief but to isolate

reasonable grounds upon which that belief was

based.

MASON CJ:	How does this submission sit with Vallance?
MR KABLE:	That, if I may say, is the critical question. My

submission is that this submission fits squarely

with Vallance. The documents that Your Honours

have - filed by myself and the learned

DPP - disclose that the DPP submits that his

submission fits with Vallance. My submission is

that this fits with Vallance on the basis that

Vallance, among other things, is authority for the
proposition that the purpose of section 13(1) of

the Criminal Code, Tasmania, is not to identify the

mental element in crime in terms of, all section

13(1) does is isolate the act - there is no dispute as to that, the act is the act of penetration - the preliminary words of section 13(1), as Your Honour

would be aware are that:

No person shall be criminally responsible for

an act, unless it is voluntary and

intentional ..... except as herinafter expressly

provided, for an event which occurs by

chance -

which is irrelevant to the consideration currently

before the Court.

If one has regard to Chief Justice Dixon's

judgment in Vallance, to the passage I quote at the

bottom of page 8 in Your Honours booklet of

materials which is, in fact, page 60 of the report,	one finds that His Honour when considering Vallance
observed at the top of page 60 in the sentence
beginning:

But a study of the Code has made it apparent

that the plan has not been, indeed from the

nature of the thing it could not be, uniformly

carried out.

That plan was to provide for specific crimes but to

treat the complete definition of them as finally

governed or controlled by the chapter within which

section 13 exists. Importantly, His Honour

continues in the next sentence:

Bennett 4/9/91

In crimes involving fraud, personation, in

most sexual offences, in bigamy, receiving

stolen property and many traditional offences

based on statute, common sense rather suggests

that guilt will depend on definitions that in

point of fact will fall outside the philosophy

of s 13.

And that highlights the whole argument about the

mental element in rape in Tasmania, because the

Court of Criminal Appeal in Snow, which is the 1962 decision which has been reaffirmed in the

subsequent decision of Arnol in the present case,

in my submission, Their Honours in that case in a

passage to which I can refer Your Honour now if

Your Honour wishes to examine that passage - - -

MASON CJ:  No, before you leave Vallance: my impression was

that the majority in Vallance were against the

submission that you are now putting, on the footing

that consent is an external matter and there is no

requirement for specific intent in relation to an

external matter.

MR KABLE:  By submission is that Vallance is not authority

for that proposition because what occurred in

Vallance was - - -

MASON CJ: It has been treated as authority for that

proposition in Tasmania, has it not?

MR KABLE:  Yes, Your Honour, very much so, in some crimes

and not others. This case highlights - - -

MASON CJ:  In the area of rape it has been treated as

authority for that proposition.

MR KABLE:  Yes, and that is what this case is about,

Your Honour, whether, in treating Vallance as

authority for that proposition, that is extracting

a legitimate principle from Vallance which I submit

is not to be found in it.

MASON CJ: But does it not proceed on the view that what is

critical in terms	of intent is section 14 rather
than section 13?	When I say "intent'', I mean as to
a state of mind.

MR KABLE:  One has to be careful answering that,

Your Honour, and go back to Vallance.

MASON CJ: Well, I would not want you to be otherwise.

MR KABLE: Go back to Vallance: Vallance dealt with a

wounding. The concept that one can be guilty of

wounding, by being reckless as to consequence, does

not come from section 13 or section 14; it comes

Bennett 4/9/91

from the definition of the crime of wounding.	Of
that there seems to be no doubt as to Vallance.
Therefore, section 13 has no part to play in the identification of the mental element for any

particular crime, as His Honour the Chief Justice

said in Vallance and as was echoed by

Justice Windeyer in Mamote-Kulang, where His Honour

described that section as tthovering above'' other

crimes.

The Tasmanian Court of Criminal Appeal has,

for a very long time, said in respect of the crime

of rape, section 13(1) introduces no mental

element, therefore there is no mental element in

the crime of rape other than the intention to

penetrate. So to that extent the Tasmanian Court

of Criminal Appeal has relied upon Vallance as

authorizing its conclusion that the mental element

in the crime of rape of Tasmania is solely an

intention to penetrate.

My submission is that a careful reading of

Vallance, particularly when one now reads Falconer,

which, while as to an apparently difference issue, assumes critical importance, because the effect of Falconer is that the section 13, or section 23 in

the Western Australian Criminal Code, is a section
designed to identify those who are not criminally

responsible; the sections are not there to

identify, with any precision, the mental element in

any crime. So that is why I would submit that my

submission does not involve a challenge to the

principles that this Court has extracted from

Vallance over the years. Certainly it involves a

challenge to the principles that the Full Court of
the Supreme Court of Tasmania have extracted from

it, but I submit that the passages that I

mentioned, and others I can, disclose that

section 13, in reality, has been interpreted by

this Court in Vallance and successively, in exactly

the way the Full Court did in Falconer in saying

that those who have not committed a voluntary and

intentional act shall not bear criminal

responsibility.

Now that is the way in which I would answer

Your Honours question and in order to provide a concrete example of what I mean, might I just

invite the members of the Court to briefly examine

section 78 of the Criminal Code Act, which I will

make relevant in a moment; then section 172 and

then section 185. This Court in Vallance held that
the mental element required, before a conviction

could be lawfully obtained pursuant to section 172,

was either an intention to cause the result or a

reckless indifference to the result. The Court of

Criminal Appeal have held, when considering a rape

Bennett 6 4/9/91

case - they exampled that section 78 identified a

crime that could never have a mental element

according to the Court of Criminal Appeal. That is

that that was a crime defined solely by reference

to "external elements".

At the same time Their Honours held in Arnol,

which was the case succeeding Snow where, in fact, Snow was reargued as to one aspect, that there was no mental element required in rape, other than the

intention to penetrate and the rhetorical question

that must be posed is, what factors, when one is

having regard to the Tasmanian Criminal Code,

legitimize the reading into a crime of a mental
element of at least recklessness, and what factors
require the crime to be stated solely by reference

to its external elements? The Court of

Criminal Appeal in Snow and Arnol said that, as to

rape, section 13 introduces no mental element,

therefore, there is not one. The High Court in

Vallance looked at the nature of the crime and in consequence of identifying the nature of the crime then said of the words appearing in section 172,

that the two states of mind I previously

articulated were available and that the direction

in that case was too favourable.

So the critical issue is highlighted by

Your Honour the Chief Justice's question, that is, "What does section 13(1) have to say, if anything,

as to the interpretation of section 185(1)?". If

the correct answer to that question is, "Nothing",

and I submit it is, then one goes to

section 185(1), which is the rape section, and asks

the question, "How do we approach an analysis of

this section to determine whether it is a crime

created solely by reference to external factors, or

whether there is a presumption of mens rea of some

type?". And that, in very much summary form,

Your Honours, is what this case is all about.

True it is that there has been, for a long

time, accepted in Tasmania that the only mental

element described is the intention to penetrate.

MASON CJ:  What does Falconer add to this?

MR KABLE: Falconer confirms, in my respectful submission,

that all members of that Court, at passages that I

could identify if requested to, hold that

section 13/section 23 has a place to play in that

if somebody does something which is not a voluntary

and intentional act, they are not criminally
responsible and that the statutory basis to
authorize that lack of criminal responsibility is

either section 23 in Western Australia or

section 13. Now, that is the purpose, in my

Bennett 4/9/91

submission, of that section; that is to alleviate

from a particular person, criminal responsibility

if their actions are non-voluntary or
unintentional.

What the court has done in Tasmania is go the other way; they have started at the converse

position and said of such a section, "What does

this section introduce by way of mental element?",
not, "Who comes without it?". It does not

introduce anything, therefore there is no mental

element. So that is why I submit Falconer confirms

materially, in my respectful submission, what Vallance said as to the effect of section 13.

MASON CJ: Is there a corresponding section to section 14 in

the Western Australian Code?

MR KABLE:  I am sorry, Your Honour, I cannot answer that

question.

MASON CJ: Because my impression was that the juxtaposition

of 13 and 14 was not precisely reflected in the

Queensland Code.

MR KABLE:  I am sorry, Your Honour, I cannot answer whether

there is an identical provision to section 14,

because I had not gone onto look at the issue of mistake; I had only looked at the section 23 and

section 13 comparison, rather than the

corresponding mistake provisions.

The issue of mistake, interestingly, having

been raised: for 30 years in Tasmania the onus on

mistake was held to be on the accused to prove,

both evidentially and persuasively, and when the

same He Kaw Teh that our Court of Criminal Appeal

has said has no application to the Code was

decided, a bench of five unanimously held that the

decision of Martin in 1963 was wrong, so He Kaw Teh

was certainly applied to that extent, turning over

very smartly 30 years of persuasive onuses on

accused.

MASON CJ:  So in Tasmania it is now held that the onus is on

the Crown to displace the defensive mistake under

section 14?

MR KABLE: That is correct, Your Honour, and that is in a

case, copies of which Your Honours have, called the

Attorney-General's Reference No 1 of 1989, where a

bench of five members of the Supreme Court

of Tasmania were convened on an Attorney-General's
reference to consider the correctness of a
direction of a ~rial judge in accordance with

He Kaw Teh and the bench of five held that in fact

Woolmington and He Kaw Teh applied. And there is

Bennett 4/9/91

no legislative activity between Martin in 1963 and

the Attorney-General's Reference in 1989, which

would authorize the differing conclusions.

Your Honour's questions to me highlight what

the case is about. It really boils down to, when

one reads section 185, does one read the words of

the Criminal Code as articulating external elements

and, if so, is there a place for the presumption in

the interpretation of a Code (a Code which is

silent as to its own interpretation); is there a

place for the presumption which was articulated and

best exampled in He Kaw Teh to the Code? Now if

there is no place for such a presumption, obviously the substantive argument which I put cannot succeed

because the words speak for themselves.

The reason I highlighted the three different

sections as to three different crimes was to

disclose to Your Honours that as to the crime

raised in section 78, that is, the person about

going armed in public, the Court of Criminal Appeal

in Tasmania have held that that is a crime defined

solely by reference to external elements.

The High Court has held, in relation to

wounding, that that is a crime not solely defined

by reference to external elements. To use a

sporting phrase, "Who is the umpire as to which

approach we ought to take as to crimes from time to

time when they fall for consideration?"

DEANE J:  I do not follow what you say about section 78.

Has the Tasmanian court held that if you go armed

in public unintentionally or by reason of an

accident, section 13 has nothing to say to it?

MR KABLE:  Yes, Your Honour. The answer to Your Honour's

question is, yes, and they held it in a case called

Arnol, which is where they were considering the

mental element in rape, and two of Their Honours

said, "Look" - and I can refer Your Honour to the

precise passage - Arnol is in the list of

authorities. If you go to Mr Justice Neasey at

page 168 and Mr Justice Cosgrove at page 170.

Can I just put Arnol in historical

perspective. Snow was argued in 1962 and the first

serious challenge to it was in 1981, when part of

the arg'll;ffi~nt that I am now putting to the Court was

raised before the Court of Criminal Appeal in

Arnol, that case never having been brought to this

Court. Mr Justice Neasey, at the bottom of

page 168, when comparing various crimes under the

Code, observed at the bottom of the page:

Bennett 9 4/9/91

In some crimes it is primarily the quality of

the act which attracts criminal

responsibility - for example sections 78 and

79. Again, there are crimes under the Code in

which a given consequence must ensue from an

act before criminal responsibility is

entailed.

Mr Justice Cosgrove latched on to the same thought

process at page 173 - - -

DEANE J:  I do not quite follow why that says that

section 13 has nothing at all to say to section 78.

MR KABLE:	Only because the way I read it, Your Honour, is that His Honour is there saying that, as to that
crime, there must be a voluntary and intentional
act of going armed in public, but that no mental
element over and above that will be read into the
crime, that is, the phrase "in such a manner as to alarm the public", does not require the Crown to prove. It is an analogy Their Honours use to
legitimize their conclusion as to rape; that is why
I have referred to it.

DEANE J: Well I follow that; I had misunderstood what you

had said about section 13.

MR KABLE:  Yes, that is why I have highlighted that section,

because two of Their Honours in Arnol, which was

the first occasion when the matter was - the

correctness or otherwise of Snow was seriously

considered.

DEANE J: But that is a matter of the construction of

section 78 -

MR KABLE:	Yes.
DEANE J:	- - - whether the last words are an objective

consequence of what was done.

MR KABLE:  I agree with Your Honour and what I am urging

upon this Court is, when we come to section 185, by

what criteria do we construct the words in that

section? Do we say, as has been previously said by

the Court of Criminal Appeal for the State of

Tasmania, or do we import a mental element into the

crime?

DEANE J: Well, I do not want to take time, but I cannot see

any inconsistency at all between the approach to

section 78 and the approach to section 185.

MR KABLE: There is not. It is when you come to what the

High Court said in Vallance in section 172, if I

can take Your Honour straight back to that:

Bennett 10 4/9/91

A person who unlawfully wounds -

let us leave "or grievous bodily harm" out -

is guilty of a crime.

The High Court in Vallance said that there is a

mental element in that crime and it is not merely

the fact of the wound and a voluntary and

intentional act causing it, but you must either

intend it or be recklessly indifferent to it.

DEANE J: But that is a matter of construction. I mean,

say, for example, section 172 said, "Any person who

unlawfully wounds a child under the age of

12 years", it would be a quite different question

whether you had to have the intention not only of

unlawfully wounding, but the child that you wounded

be less than 12 years old.

MR KABLE:  Yes, Your Honour.

DEANE J: Well now, the approach to the other sections might

well militate in favour of the view, the age of the

child was an objective factor which did not have to

come within the ambit of the intention for this

particular purpose.

MR KABLE:  I do not cavil with that, Your Honour. All I can

do is say, why is it, posed rhetorically, that as

to 185 we do not have a mental element, does the

presumption have a place to apply? If the crime

historically had a mental element at the time of

enactment and the words bear similar comparison to

the words creating the crime of wounding, why is it

legitimate to have a different approach?

Now, Your Honours, that really highlights this

argument. I have set out in some detail various

matters germane to the argument. The one matter

additionally I would mention is that, of course,

the Canadian Criminal Code, which is on all four as

to this section, has held that the argument for

which I contend is the way in which that Code is to

be interpreted.	The case is referred to in the
written submissions.	I have brought copies of the

headnote should the Court wish to examine it. That

is in a case called Pappajohn, but it must be

acknowledged there is not a section 13 equivalent

in the Canadian Code and that is why Falconer

becomes relevant, to go back to Your Honour the

Chief Justice's question - it is a two page

headnote - because the lack of a section 13 in the

Canadian Code, is that the reasoning behind their

view and I would answer - - -

Bennett 11 4/9/91

DEANE J: Well that obviously gives you greater room to

import a presumption, does it not, and to look to

the common law?

MR KABLE:  Yes, depending upon what position one rules that section 13 has in the interpretation of the Code.

Your Honours, I think, in answering those

questions, I have canvassed the issues of principle

that are relevant. It really boils down to, with

that section, is there a presumption that does

apply - not ought to - and, if so, what is the

result? If not, then the law must be as to this

issue, the way the Court of Criminal Appeal have

decided it. But if there is a presumption, that

is, if the principles which were set out and acted

upon in He Kaw Teh apply to a Criminal Code, then

the submission is that there is at least a mental

element of indifference or not caring which ought

to attach to section 185.

MASON CJ:  Mr Kable, can I just ask you, it is a long

headnote - - -

MR KABLE:	Yes.
MASON CJ:	- - - what is the part of the headnote on which you rely to support your submission?
MR KABLE:	The bit adjacent to the word "held" at the bottom of page 1, where four of Their Honours talked about
"an honest belief being sufficient to exculpate".
The dissenting in the case relate - - -

MASON CJ: But, if you are looking at "honest belief", that immediately attracts your attention to section 14,

which provides that "honest and reasonable belief

is an offence".

MR KABLE:  Yes, but that only takes you to section 14,

absent a mental element, because for reasons that

were so concisely set out in Morgan, if there is a

mental element which has any element of

culpability, that is, indifference, non-caring or intention to have intercourse absent consent, the

moment there is an honest belief as to consent,

there cannot co-exist any of those states, and that

is why this becomes critical.	I am not seeking to
assert that section 14 has been misinterpreted.	My

submission is that once you have any mental
element, over and above the intention to penetrate,
as per Morgan, as per the various other States,

then an honest belief as to consent results in an

acquittal.

Bennett 12 4/9/91

MASON CJ:  So, on your construction of section 13 in

conjunction with section 185, it would be for the

Crown to negative honest belief.

MR KABLE:  It would be for the Crown to prove either, that

an intention to have intercourse absent consent, or

at least, an indifference or a non-caring as to

that issue. I am sorry to be pedantic - - -

MASON CJ:  Yes, but section 14 would not have anything to do

with it. It would be surplusage.

MR KABLE:  Yes, as to that crime, which is no novel concept

in the Code; there are a number of codes where

section 14 does not apply. I mean, if you take

murder, an honest intent - - -

MASON CJ:  Oh yes, if you have a specific intent, for

example.

MR KABLE:  Yes, and that again highlights what the case is

all about: is rape a crime which has any intent,

not just specific, but any, or is it merely, as our

Court of Criminal Appeal has said, an intention to

penetrate?

Your Honours, the answers to the questions

posed highlight the issues. I do not think that I

am likely to be of any greater assistance to Your

Honours by going through the written submissions

which I have filed and which have been available to

the Court.

MASON CJ: Yes, thank you, Mr Kable. The Court will take a

short adjournment in order to consider the course

it will take.

AT 11.47 AM SHORT ADJOURNMENT

UPON RESUMING AT 12.03 PM:
MASON CJ:	The Court need not trouble you, Mr Bugg.

In this case we have had the benefit not only

of Mr Kable's argument but also of the detailed and

informative written summary of argument that has

been included in the materials. We have read the

judgments of the Court of Criminal Appeal in this

case and we agree with what their Honours say about

the relationship between ss. 13, 14 and 185 of the

Criminal Code Act 1924 (Tas.).

Bennett 13 4/9/91

In the result, we consider that the decision

of the Court of Criminal Appeal was correct.	The
application for special leave to appeal is therefore refused.

MR KABLE: If the Court pleases.

AT 12.04 PM THE MATTER WAS ADJOURNED SINE DIE

Bennett 14 4/9/91