Chauncey Aaron Bell and State Of Tasmania

[2021] HCATrans 5

[2021] HCATrans 005

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
EDELMAN J
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 3 FEBRUARY 2021, AT 10.05 AM

Copyright in the High Court of Australia

KIEFEL CJ:   In accordance with the current practice, I will announce the appearances of the parties.

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

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

KIEFEL CJ:   Yes, Ms Baumeler.

MS BAUMELER:   Thank you, your Honour.  Your Honours, to share the frustration expressed by his Honour Justice Dixon, as he then was, when he quoted The Mikado in Thomas v The King, it is:

the slovenly way in which these Acts are drawn.

The premise or foundation of the ground of appeal is one of statutory interpretation, and the submitted error by his Honour the Chief Justice at trial which was not remedied by the Court of Criminal Appeal where the relevant legislation was interpreted so ‑ in our submission, the Court of Criminal Appeal did not remedy the error that, we submit, his Honour the Chief Justice made in the first instance in interpreting the relevant legislation so as to exclude mistake as a ground of exculpation in circumstances where the appellant at trial could not be said to be innocent of all offending.  It is submitted that such an interpretation is not open on an analysis of the legislation, and had it been Parliament’s intent to exclude mistake, it was required to do so in the clearest of terms, which, in this instance, it has not done.

Mistake as to age was a matter that, in our submission, was properly raised at trial in relation to the allegations and accordingly it should have been left for the jury to deliberate upon.  Removing mistake from the jury inevitably placed the appellant at peril of being punished for a crime in circumstances where a jury, properly instructed, might have accepted mistake as a ground of exculpation.

KIEFEL CJ: Ms Baumeler, has there been an assumption made in the courts below that the defence of honest and reasonable mistaken belief operates in relation to section 14?

MS BAUMELER:   There was an assumption that it did not.

KIEFEL CJ:   I am sorry, but that question arose.

MS BAUMELER:   Yes.

KIEFEL CJ:   The question of it, I should have been clearer – that the question of its operation arose?

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

KIEFEL CJ: The defence arose under section 14 of the Criminal Code?

MS BAUMELER:   Yes.

KIEFEL CJ: Or is it that section 14 directs you to the common law?

MS BAUMELER:   Under 14 of the Criminal Code.

KIEFEL CJ:   Right. 

MS BAUMELER:   I am planning on taking your Honours through the legislation and how it all joins together.

KIEFEL CJ:   That is what I am really asking you to do.  We would be assisted by that, when you are ready. 

MS BAUMELER:   Yes.  So Tasmania has the Criminal Code, and the Criminal Code was enacted with an intention to essentially replicate the common law as it stood at the time.

KIEFEL CJ:   It did not follow the Griffith Code, though, did it?

MS BAUMELER:   No, it did not.  It was written by his Honour Justice Ewing at the time, and he used the English Code, the Stephen’s Code, and he also drew upon the Griffith’s Code which had already been enacted by that time, but it was not a copy of - and there are various provisions that we have in our Code that are different from the Griffith’s Code, and in particular in relation to mistake. 

The first area of difference is section 8 of the Criminal Code Act.  So the way that the Code was enacted in Tasmania is there is the Criminal Code Act which is a short piece of legislation and the Code itself is attached as a schedule – Schedule 1 to that legislation. 

KIEFEL CJ:   Yes. 

MS BAUMELER:   So, in the Criminal Code Act itself all common law defences were preserved under section 8, except for any that the Code varied. Then within the Code itself there is section 13 which is the replication, if your Honours like, of the mens rea common law principle, and section 14 is the exculpatory ground of mistake. They appear within the Code. It is the submission of the appellant, and I do not believe this is something that my friend quarrels with, that after the enactment of the Code, though you look to the common law to inform how to interpret the legislation, it is a code, it is intended to be read as its own document and common law principles such as mens rea and the like do not apply to the Code in Tasmania.

KIEFEL CJ: So, how has section 14 been applied in Tasmania? Has it been consistently applied by the Tasmanian courts?

MS BAUMELER: Yes. There has not been any difficulty or instances where section 14 has not been used as a ground of - or the ability of section 14 to be used as a ground of exculpation exists and exists in its own right.

If I can take your Honours to the decision of – and this is probably the best example for your Honours because it summarises not only Vallance, which is the principal decision, I guess, in Tasmania in terms of Acts and what the Act is and the extent of criminal liability but it also applies He Kaw Teh and where He Kaw Teh fits in to the Code and how it applies to Tasmania.  That can be found in the Attorney‑General reference decision which your Honours will find – it is Attorney‑General Reference No 1 of 1989.  It is in Part D which is in volume 6 of the papers under tab 22, in particular, pages 1210 to 1212 of that decision.

At the very bottom of 1210, there is the analysis of his Honour Justice Neasey of how He Kaw Teh was applicable in Tasmania and he indicates there are two questions raised and answered in He Kaw Teh.  Firstly:

whether the trial judge was right in directing the jury, in effect, that the prosecution was not required to prove any mens rea in relation to either offence –

The second point is:

whether his directions were correct as to the onus of proof in relation to the defences which were open to the accused.

Then, over the page at 1211:

the onus lay upon the prosecution to disprove the existence of such a belief beyond reasonable doubt.

So that, in summary, is how the courts in Tasmania – from that point in time on – have interpreted section 14 of the Code and its applicability.

STEWARD J:   Can I just ask a question? I just want to clarify matters for me. Just calling it a “defence” just for the moment, is the source of the defence in Tasmania the common law by reason of section 8, those having been saved or, in your view, is the source for the defence section 14 of Schedule 1?

MS BAUMELER: Section 14 of Schedule 1.

STEWARD J:   How does that arise when the language of 14 appears to simply direct the Court to determine whether the defence – using that word again – is or is not available in respect of a given offence?  It says:

Whether criminal responsibility is entailed . . . is a question of law, to be determined on the construction of the statute constituting the offence.

I must confess, that does not look like an operative provision to me.

MS BAUMELER:   In my submission, it is an operable provision. In my submission, the way that mistake has been interpreted in Tasmania is that you look at the legislation that creates the offence and whether there is an indication of a mental element such as foreseeability or recklessness or some form of element, and whether there is provision or the exclusion of the provision of mistake in terms of matters such as age as in the instant matter here, and that section 14 then operates if it is not excluded explicitly under the legislation to act as a ground of exculpation.

I guess the most clear and, where it is legislated the clearest in Tasmania, is certainly the sexual offences in where there is defence as to age and provisions in relation to that, which are specifically provided for in the legislation, but section 14 is in my submission a catch-all in any other circumstance where a mistake can arise, that that section is intended to allow for that mistake.

STEWARD J:   In your submission, is there any difference between the common law and section 14?

MS BAUMELER:   In my submission, no, essentially.  That is also where the Tasmanian legislation and the Code is different from the Queensland and the West Australian provisions because the Queensland and the West Australian provisions have a limit as to where mistake operates and so, when his Honour Justice Dixon as he then was said in Thomas that the mistake provisions in Queensland and the Code States actually mirror the common law, in my submission if the Queensland provision is looked at, it probably does not mirror the common law because it has that limit, whereas Tasmania does not have the limit and so it does essentially mirror the common law.

KIEFEL CJ: Section 14, I take it from what you say, has been held to itself provide for the defence of mistaken belief.

MS BAUMELER:   Yes.

KIEFEL CJ:   On another view of its interpretation, it might be thought that it provides that the question of criminal responsibility in this context is a question which depends upon the construction of the statute constituting the offence, and that takes you to the statute to determine whether or not the defence can operate, but if that is the way in which section 14 is construed, it does not itself provide for the defence. Rather it says you look to see whether the defence is excluded by the statute creating the offence.

MS BAUMELER:   Yes, and I think your Honour ‑ ‑ ‑

KIEFEL CJ:   If it is not excluded then the common law comes into operation.  It is, I take it, the common law defence that has been applied by the Tasmanian Courts.

MS BAUMELER:   No, that is correct.

KIEFEL CJ: Through the lens of section 14.

MS BAUMELER:   Yes, that is correct.

EDELMAN J: If that approach is taken is there not then an ancilliary question that needs to be asked even before one gets to applying the common law as applied by section 14 which is whether there is any mental element at all involved in section 14 of the Misuse of Drugs Act.  I take it that you are relying upon Brown to say that without the section 14 of the Criminal Code excuse there would be no mental element involved in section 14 of the Misuse of Drugs Act. 

MS BAUMELER:   Yes, your Honour.

EDELMAN J:   Why should that be so?  If there was an express provision of a mental element you would accept that a mental element applied.  Why cannot there be one by implication?

MS BAUMELER:   That is certainly one way to look at it.  In terms of ‑ ‑ ‑

KIEFEL CJ:   There being an intention to supply to a child.

MS BAUMELER:   Yes.

KIEFEL CJ:   If that is the case, there is less work for section 14 of the Code, is there not?

MS BAUMELER:   Yes, that is correct.  If the actual section has to have the intent to supply to an actual child then, yes ‑ ‑ ‑

KIEFEL CJ: There would be a question of onus then. In effect, it would alter the question of onus to read it in that way, but it would also potentially affect the operational application of section 14 of the Code. It might even become redundant. It is not entirely clear.

MS BAUMELER:   Yes, that is correct.  It could ‑ ‑ ‑

EDELMAN J:   One would need to know whether an offence has been committed before asking whether the act should be excused or not.

MS BAUMELER:   That is correct.

KIEFEL CJ: While we have you grappling with these rather very important and difficult questions, how do you read sections – how have the courts in Tasmania dealt with section 14 of the Code, having regard to section 13?

MS BAUMELER:   As though it stands alone. It is a ground of exculpation that operates independently of section 13. That is again the reference that I gave your Honours in terms of the Attorney‑General Reference No 1 of 1989 - that is how it was dealt with there. 

GAGELER J:   Is there a particular passage in that judgment that captures the point you are seeking to propound?

MS BAUMELER:   Yes, there is and as is always the case - I had it this morning, your Honour - yes, it is page 1204 of the judgment.

KIEFEL CJ:   That is of the book.  Perhaps for the record, if you ‑ ‑ ‑

MS BAUMELER:   So, it is page 50 of the ‑ ‑ ‑

GAGELER J:   I may be wrong, but I think this is Mr Melick’s written submissions.  Am I wrong?

MS BAUMELER:   Well, that may be the case. 

GAGELER J:   I am sure they are very fine written submissions, but the judgment does not begin until a few pages over, I think. 

MS BAUMELER:   Sorry, yes. 

GAGELER J:   I do not mind if you defer answering the question until later. 

MS BAUMELER:   I was hoping I would be able to find it really quickly.  Page 1215. 

KIEFEL CJ:   Perhaps it is easier just to refer to the page number of the report ‑ ‑ ‑ 

MS BAUMELER:   Page 61.  Sorry, your Honour. 

KIEFEL CJ:   Page 61, thank you. 

MS BAUMELER:   It is most of that page, from the middle down. 

STEWARD J:   I rather read the middle paragraph on that page as an indication that the common law defence, to use that word again, is applicable here:

This rule is a general one, which applies to all crimes under the Criminal Code, and to which the Criminal Code applies -

So that in Tasmania it is the common law defence, to again use that word, which is engaged and saved by section 8 of the Act.

MS BAUMELER:   Then further down the page, the last paragraph on that page:

It is submitted that this provision applies to such a case as the present, since the existence of an honest and reasonable belief within the meaning of the Criminal Code, s.14, is an “excuse” for the purpose of the Evidence Act -

at the time.  The other page that is of relevance is page 54 towards – this is the judgment of his Honour Justice Neasey:

The language of s.14 is general language, but in so far as such a belief applies to negate the mental elements of a crime, whether they be embodied in the operation of the Criminal Code, s.13, or in the definition of the offence, then the onus of course would be upon the Crown to prove the existence of any element according to the criminal standard.

KEANE J: Insofar as section 14 of the Code refers one to the statute that creates the offence in order to determine the availability of honest and reasonable mistake as negativing criminal responsibility – and in this case we are referred to section 14 of the Misuse of Drugs Act.

MS BAUMELER:   Yes.

KEANE J: We find section 14 in Division 2 of that Act and it has a bunch of provisions, many of which actually expressly provide for a mental element.

MS BAUMELER:   Yes, they do.

KEANE J:   And expressly provide for proof, and in some cases, reversal of the onus in relation to proof of mental elements.

MS BAUMELER:   Yes.

KEANE J: Is it correct that it is common ground between the parties, that so far as section 14 is concerned, that section 14 is not to be read in its context as having the effect that it is sufficient proof of the element of supply to a child that the child be a child?

MS BAUMELER:   As I understand it, that is the Crown position.

KEANE J:   Yes.

MS BAUMELER:   That is all that the Crown need to prove. 

KEANE J: And that in relation to section 14 of the Code, and the common law that it refers to but does not provide, contemplates that it is necessary that the particular act of the accused – that is to say the supplying ‑ that that act in itself must, so far as the statute to which the Code takes us, that act itself must not be a criminal offence?

MS BAUMELER:   That is the Crown’s argument, in a nutshell, yes.

KEANE J:   Is that not the position that has been taken in cases in the Tasmanian Court of Criminal Appeal such as Martin?

MS BAUMELER:   Yes.

KEANE J:   Has that position been overruled by Brown, for example?

MS BAUMELER:   No.

KEANE J:   So is it the case ‑ am I correct in understanding that if we were to accede to your argument we would need, amongst other things, to be overruling the position that has been taken in the Tasmanian Court of Criminal Appeal, in relation to the operation of the common law as it is understood in Tasmania?

MS BAUMELER:   It would be my submission that ‑ ‑ ‑

KEANE J:   For example, to be specific, would for example – is it Snow?

MS BAUMELER:   Yes.

KEANE J:   We would have to say Snow was wrongly decided?

MS BAUMELER:   No.  In my submission, your Honours would not need to go that far.  In my submission, the – perhaps if I can take your Honours to the judgment of his Honour Justice Brett.

KEANE J:   Sure.

MS BAUMELER:   In relation to the Court of Criminal Appeal, in relation to this matter.  Essentially, that is in the context of the Tasmanian courts and previous decisions.  One of the difficulties I guess with this matter is that it is slightly different, or it does not fit the normal scenario that we have seen in terms of where mistake is attempted to be raised and so its application is somewhat different.  Mistake in terms of consent and those ‑ the lines of judgments that relate to that, this decision would not necessarily impact on.

KEANE J:   But there has been a line of cases, going back to Vallance, where the focus of attention is upon the physical act of the accused, not the other provisions of the offence ‑ ‑ ‑ 

MS BAUMELER:   Yes.

KEANE J:   ‑ ‑ ‑ which relate to mental elements or consequences, just simply on the physical act of the accused, and the physical act of the accused here was the supply of the drug.

MS BAUMELER:   That is right.  And, in my submission, that does not necessarily sit outside the common law interpretation because if it is the act, the actual act that has charged that, the question is whether it is excused or not, and if it is confined to the act that is charged, then this matter, and the ability to use mistake of age as an element ‑ “element” is the wrong word because then that catches all sorts of statutory interpretation issues, but if mistake of age is able to be used, it does not ‑ if it is confined to that act, it does not change the ‑ ‑ ‑ 

KEANE J:   But no one ‑ and it is not suggested that the accused acted under an honest and reasonable mistaken belief that supplying the drug to the person to whom it was supplied, no one suggests that he had an honest and reasonable belief that there was something about the facts about that supply that meant that his act was not an offence.

MS BAUMELER:   No, and yes, I totally accept what your Honour says there, he certainly ‑ ‑ ‑ 

KEANE J:   So, if that is the view, if the understanding of “act”, for these purposes within the cases Vallance and since, is so confined, then the common law does not avail you, does it?  Do you not need the common law to be framed as section 24 of the Queensland Code is framed?

MS BAUMELER:   In my submission, no, because the Code in Queensland only has a limit, I guess, to the innocence, which the common law does not have, so someone is guilty only to the extent that they think they are guilty, if the facts had actually been the way that they are, whereas our submission is that in relation to the Tasmanian Code it is a complete defence, it is ‑ ‑ ‑ 

EDELMAN J:   Can I understand your submission in relation to this point about Vallance and the line of cases following that; is your submission that the way that Vallance has been read, which confines the mental element for an offence to the physical act and not to the circumstances or the results, confined to the mental element for the offence, but when one comes to a question of excuse one can look at the results and the circumstances and the entirety to determine whether or not a person is excused from the commission of that offence.

MS BAUMELER:   Yes, that is correct.  And so then, in those circumstances, then mistake can be applied if the charge is that you are administering a controlled drug to a child, that if you are of the view that the person that you are dealing with is 20, as was the case here, that that excuse provision is available to you, because your belief in relation to that charge – and that was why I was going to take your Honours to Justice Brett’s decision in Bell in the Court of Criminal Appeal, because his judgment was saying that you can read the Code to say that it excuses that act.

EDELMAN J:   Just so I understand you, you are not taking any point, then about the construction of the offence itself, and you are, in effect, accepting that when one looks at the mental element for the offence, whatever that mental element might be, if indeed there be one at all, it does not apply to the person being a child.

MS BAUMELER:   No, that is right.  The mental element applies only to the act itself – the act of administering – and then it is the circumstances is where the mistake is drawn.

GAGELER J:   If section 14 of the Misuse of Drugs Act had been enacted by the Parliament of a common law State, the provision interpreted in light of common law principles would have said, there is a physical element ‑ supply to which a mental element of intention attaches and there is another physical element of the recipient being a child to which a mental element of knowledge attaches. Now, as I understand it, in Tasmania, section 13 is interpreted as restating the common law in respect of the intention to act by means of supply. Is section 13 also understood to displace the common law presumption that knowledge attaches to the circumstances? Is that the way it works? Is it section 13 that does it?

MS BAUMELER:   Yes, section 13 is to be read as displacing the common law, yes.

EDELMAN J:   How does it do that?

MS BAUMELER:   It is ‑ ‑ ‑

KEANE J:   It is as Justice Brett says, is it not, at paragraph 18, by reference to Snow?

MS BAUMELER:   Yes, that is correct.  So, if I can take your Honours to that.  It is in volume 6, under tab 27, page 4 of the judgment, paragraph 18.

KEANE J:   Paragraphs 17 and 18, I suppose.

MS BAUMELER:   Yes.  So, yes:

There is no mental element specified in s 14 of the Act in respect of the crime in question. Therefore, by virtue of s 4 of the Criminal Code Act 1924, the only requisite mental element is that prescribed by the relevant general provisions of the Code, in particular, s 13. It is settled law that s 13 replaces the general presumption of mens rea in respect of crimes covered by the Code:

Then, there is the reference to Vallance and to Martin:

It is also well settled that in respect of the mental element required by s 13(1) of the Code, the “act” which must be voluntary and intentional is “the physical action of the accused and not the whole actus reus” –

That is the reference to Snow:

On that analysis, the act which must be voluntary and intentional in the crime defined by s 14 of the Act, is the physical action of the accused in supplying the substance to another person. The mental element required by s 13 will not apply to the surrounding circumstances necessary to establish the crime. In the case of s 14, these circumstances include that the substance is a controlled drug and that the person to whom the drug is supplied is a child.

So that, essentially, explains how the two are to be used together, in my submission. So, there is the act of the supply and then section 14 is used to – in terms of the circumstances surrounding and then you look to any excuse that can be used there and that is where the mistake as to whether it is a child or not falls into the circumstances.

GAGELER J:   The conceptual difficulty that I have ‑ and it is not a problem with your argument, I think it is a difficulty with the subject matter ‑ is that on that view one reads section 14 of the Drug Act without the usual common law presumption applying to determine what are the mental elements of the offence. But then, when we get to mistake of fact we are taken by the statute back to the construction of the provision creating the offence but to be read this time with the common law. It is a very distorted reading of the same statute that we need to engage in on that view.

EDELMAN J:   It is different common law mental requirements as well.  It is now introducing, in addition, an element of reasonableness. 

MS BAUMELER:   Yes, honest and reasonableness, yes.  That is right.  But that is the way that it has been interpreted to date.

EDELMAN J:   Is that consistent with He Kaw Teh in this Court?

MS BAUMELER:   It certainly has not been ‑ yes, I will actually take your Honours up to the paragraph above where I started reading in terms of paragraph 16 on that page.

KIEFEL CJ:   This is in Justice Brett’s judgment?

MS BAUMELER:   Yes, in Justice Brett’s judgment.  He deals with He Kaw Teh there:

may operate independently as a ground of exculpation, by virtue of s 14 of the Criminal Code, or pursuant to the common law in respect of the statutory offences of strict liability –

and then there is the reference to Proudman v Dayman and He Kaw Teh at that point. So, that is how it has been interpreted in Tasmania, that is where section 14 of the Criminal Code would fit in and I guess that is also ‑ ‑ ‑

KIEFEL CJ:   Would you say it has been interpreted in accordance with the first part of his Honour’s reference in 16(c) ‑ ‑ ‑

MS BAUMELER:   Yes.

KIEFEL CJ:   ‑ ‑ ‑ but not in accordance with the approach in He Kaw Teh?

MS BAUMELER:   Yes.  With that interpretation, the way that the cases have been interpreted in Tasmania, that has then caused the difficulty in relation to the scope of innocence and where innocence applies, and with that interpretation it is essentially what has occurred in this matter is that it has been interpreted in such a way that innocence can only be looked at if the appellant in this instance or an accused person at trial is innocent of all matters now ‑ ‑ ‑

KIEFEL CJ:   Is not guilty of any offence.

MS BAUMELER:   Yes, is not guilty of any offence.

KIEFEL CJ:   Here – I do not think you suggest to the contrary that even if the appellant were excused by operation of the common law relating to mistaken belief, he would nevertheless be guilty of an offence, the summary offence under section 26 of the Misuse of Drugs Act.

MS BAUMELER:   Yes, but in my submission, that is really a charging issue as to where criminal liability should sit.

EDELMAN J:   Is that right?  I mean, one of the examples that is given in one of the older cases, it might be Prince’s Case, is a situation where a person is charged with an offence of sexual assault on a girl under the age of 10 ‑ ‑ ‑ 

MS BAUMELER:   Yes.

EDELMAN J:   ‑ ‑ ‑ and defends that with, hypothetically, a defence that he thought the girl was 11 or 12.  You are not suggesting, are you, that that would suffice to establish an excuse?

MS BAUMELER:   Yes and no.  The reason I am saying “yes and no” is because, in my submission, the criminal conduct and, use this example, here there is an administering, or there is the sale of a drug to a person who was an adult male, there was then the administering of the drug to the female child who was present at the residence.  At the point of charging, that would have allowed the appellant in this instance to be charged with the administering a controlled drug to a child, administering a drug, which is section 24 of the Misuse of Drugs Act, and also supply, because he has supplied and sold a drug to the adult male.  So all those three charges were available and could have been used.

My argument is that if the appellant then faces a trial in relation to the indictable matter, the scope of the jury’s consideration should only focus on whether he has committed that actual offence, because the risk and the peril he is put at, at that point in time, is a term of imprisonment up to 21 years, and that is the standard - the only penalty that is available in Tasmania.  There are no minimum sentences or other maximums - there is the one sentence that is applicable.

So for someone to be at risk of a conviction with a serious penalty, in circumstances where he has a mistaken belief and where there are other charges available which could and can still be used in those circumstances, for him to be convicted of the serious offence because of the interpretation of the legislation that “excuse” means that he has to fall out of every category and be innocent of all categories, in my submission, is untenable in terms of the reading of the Act, and the intent behind the common law, if we go back to the common law, it was the same, that even in terms of Tolson, and that goes back to the circumstances argument in terms of ‑ ‑ ‑ 

KIEFEL CJ:   Am I correct in inferring that your argument is that when the cases refer to being excused in relation to the Act, they are only talking about the act relating to the offence charged?

MS BAUMELER:   Yes.

KIEFEL CJ: You said, before we go to the common law, which is a distinctly large subject, what “innocence” means in the cases. You said that it is a matter of charging. So you are saying that without section 26 being charged as an alternative to section 14 of the Misuse of Drugs Act, that no reference can be had to his guilt of that offence?  The fact that the – yes, the fact that the excuse or defence does not operate in relation to section 26 – cannot operate?

MS BAUMELER: What I am saying is, they should be looked at independently. So there was nothing in this scenario in preventing Mr Bell from being charged with section 14, section 24 and section 26.

KIEFEL CJ:   Was section 26 available because of section 341 in any event?

MS BAUMELER:   No.

KIEFEL CJ:   Is that because of the definition of “crime”?

MS BAUMELER:   Yes.

KIEFEL CJ:   It has to be an indictable offence?

MS BAUMELER:   Yes.  But what can happen, and what does happen in Tasmania is, as I said, at charging there was no reason why each of those three charges could not have been laid against Mr Bell.  He would then face court in relation to the indictable matter first, and the indictable matter would be determined.  If he was acquitted of the indictable matter, any summary matters would then be re‑raised in the summary jurisdiction pursuant to section 385A of the Criminal Code. 

KIEFEL CJ:   You say that the charge would still be open?

MS BAUMELER:   Yes, the charge would still be open.  But he would be dealt with summarily. 

KIEFEL CJ:   Yes.

MS BAUMELER:   So there would be the trial, and if there was an acquittal then ‑ - -

KIEFEL CJ:   Yes.  Well, they are the practicalities of the way in which the matters are charged.

MS BAUMELER:   Yes.

KIEFEL CJ:   But returning to your point, your point has to be, as I think you said earlier, that in relation to the operation of common law mistake of fact, it has to excuse him only of the offence as charged – the conduct amounting to the offence charged.  On that view, the fact that he is nevertheless guilty of an offence and the excuse does not – section 26 summary offence is not excused, is irrelevant to the question of the excuse of the indictable offence?

MS BAUMELER:   Yes, that is right.

KIEFEL CJ:   That requires you to be able to make sense of a large number of authorities, and what the word “innocence” means – and that is what Justice Brett grappled with.

MS BAUMELER:   Yes.

KIEFEL CJ:   It is not an easy task.

MS BAUMELER:   No, no.

KIEFEL CJ:   It means having to come to grips with some of the language around what “innocence” means and whether it means that in the end result that the excuse operates only with respect to the particular physical act in question, which is supply.

MS BAUMELER:   Yes.

KEANE J:   That is a question about the common law, is it not? This is not interpreting section 14 of the Tasmanian Code. This is actually the content of the common law rule to which the Tasmanian Code refers. So this a question for the common law for Australian States that still have the common law.

MS BAUMELER:   Yes.  In many instances and many of the decisions that have come before this Court, it is not an issue that has needed to be dealt with ‑ ‑ ‑

KIEFEL CJ:  Perhaps it is not - the particular circumstances of these offences are not quite so stark from ‑ ‑ ‑

MS BAUMELER:  No.

KIEFEL CJ:  - - ‑ for instance in CTM it was a question of degree, the excuse – if it was excused at one level, you still had the problem of there being an offence with the person being within another age group, so it did not operate - so CTM, the court was not concerned with this sort of issue, but if one goes back as a matter of principle to decisions such as Proudman v Dayman, which has been taken up in Bergin v Stack, and both of those then applied in - Justice Fullagar in particular of course in Bergin v Stack, and both of those applied in CTM.

MS BAUMELER:   Yes.

KIEFEL CJ:   You have that phrase first used – I do not think Proudman v Dayman is the first case to use.  I think it perhaps appears in Tolson that - at page 541 of Proudman v Dayman it said that he had reasonable grounds – the defence is:

that he had reasonable grounds for believing in the existence of a state of facts, which, if true, would take his act outside the operation of the enactment -

Now, is that the critical phrase from your perspective?

MS BAUMELER:   It is, yes, which is another difficult area of law in terms of how to define “enactment” and what the limit of “enactment” is because this is a ‑ ‑ ‑

KIEFEL CJ:   You are saying that there is a question of whether it is a reference to the statute or to the provision within the statute which creates the offence. 

MS BAUMELER:   Yes.

KIEFEL CJ:   But it also has the word “his act” outside, so it is only the act which is excused.

MS BAUMELER:   Yes.

KIEFEL CJ:   Can you summarise for us how you trace through these authorities and come to the conclusion which was the alternative view that Justice Brett posited, I think, that the notion of excuse operates with respect to the offence – only the offence charged as relevant.

MS BAUMELER:   In my submission, the starting point is Tolson and again in terms of Tolson in its application in Australia with Thomas, the difficulty with those two decisions is that they are dealing with bigamy and so the issue of innocence is not at large because either someone is a bigamist, or they are committing bigamy, or they are not.

KIEFEL CJ:   Tolson which was decided in 1889, it probably was the most recent authority when Sir Samuel Griffith drafted the Code, so that is probably where the state of authority stood at the time of his drafting.

MS BAUMELER:   Yes.  Certainly the references to Tolson and section 14 of the Criminal Code (Tas) are fairly similar in terms of the wording of the Code and how section 14 appears in the Code is similar to the wording of Tolson. 

In my submission, the relevance to Tolson is, insofar as its indication that circumstances need to be taken into account as well and, so, it opens up the consideration of circumstances as well as the Act.  If I can take your Honours to page 175 of that decision.

GAGELER J:   Do you know where it is in our material?

MS BAUMELER:   Yes. 

KEANE J:   Tab 40.

MS BAUMELER:   Tab 40?

KEANE J:   Yes.

MS BAUMELER:   Thank you, your Honour.

KIEFEL CJ: The citation is (1889) 23 QBD 168.

MS BAUMELER:   Yes, thank you, and it is volume 6.  It appears in the middle of the page and it is actually a quote from his Honour Justice Foster:

though the words of the statute ‑ ‑ ‑

STEWARD J:   Which page is that, sorry?

MS BAUMELER:   It is page 175.

STEWARD J:   Thank you.

MS BAUMELER:  

however, that though the words of the statute seemed to exclude any other excuse, yet 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, too, could be said here insofar as ‑ ‑ ‑

EDELMAN J:   Can I ask you how you deal then with the difficulties that Stephen identified with such a proposition as broadly expressed in his digest.  One example he gave was a person who breaks into another person’s house in Cornwall at 5.45 am – which is the time at local mean time – but honestly and reasonably believing it to be after 6.00 am at which it would not strictly fall within the offence of burglary.  Would you disagree then with Stephen’s assessment, or his submission, that there was no excuse in such a circumstance?

MS BAUMELER:   In my submission, one needs to look at how the law has evolved and there needs to be taken into account that there are other circumstances that can apply and a limiting as to where criminal liability actually falls.  So in the present scenario where there – if I can just say generally that the difficulties are if the stark contrast in relation to this matter because the conviction in relation to this results in someone being liable to criminal – or condign punishment and potential penalty of up to 21 years.

In the other matters where they are either regulatory or they are within the same level of seriousness there is not that stark a contrast and so the issues as to innocence and what innocence actually is is not as great and that falls into the type of category that your Honour is referring to in the example that you gave – or that Stephen gave in his digest that there is no disparity in terms of the offending.  There is no disparity in terms of the excuse.

In my submission, what needs to be looked at and how it should be interpreted is that you look at the offence and if mistake applies and if there is the capacity for a defence to be raised of mistake then that deals with that charge if a jury accept it and that is the other point that needs to be taken into consideration.  It is whether a defence exists.  It is not whether someone is actually going to be acquitted of the charge.  It is a question of whether a jury should be allowed to consider whether there is a valid defence that has been raised on the facts and whether it can be excluded and, in my submission, if there is the capacity for a valid defence to be raised then that is what the jury should be left to consider.

KIEFEL CJ:   But what are we to make of decisions such as Bergin v Stack, Justice Fullagar’s reference to – which seems to suggest that a person has to be completely innocent of all crimes for their act to be excused.

MS BAUMELER:   In my submission, his Honour Justice Fullagar was reverting back to the principles expressed in Prince’s Case and where there is innocence of everything including moral innocence in Prince’s Case.  In my submission, the principles in Tolson which obviously came after Prince were a listening and there was a – not the strict interpretation as there had been in Prince. 

EDELMAN J:   Do you accept that the result of Bergin is correct?

MS BAUMELER:   Insofar as they are regulatory matters and the consequence in that circumstance was not as great but, in my submission, his Honour Justice Fullagar took a step further by announcing that a person had to be innocent of all offending and it is our, as we have put in the written submissions, position that for our appeal to succeed that essentially it does mean overturning Bergin v Stack and that ‑ ‑ ‑

KIEFEL CJ:   That is a large step ‑ ‑ ‑

MS BAUMELER:   It is a large step.

KIEFEL CJ:   ‑ ‑ ‑ particularly since it was taken up in CTM v The Queen.  The statement in CTM might be thought to have understood Justice Fullagar as saying “innocent of all charges”.  I am referring to CTM v The Queen 236 CLR 440 and I think it is at paragraph 27. This really brings to the fore, I think, Ms Baumeler, and Mr Coates, the question of the position of other States and/or Territories, but probably other States, which are affected by this Court’s rulings in relation to very important matters of what the common law is, for Australia.

These, as you said, are exemplified by the fact that you seek to have Bergin v Stack not followed or overruled, and to have this Court really determine what CTM is to be taken to say.  Given those wider consequences, I wonder whether it might be an appropriate course for the Attorneys‑General of the other States and Territories to have an opportunity to consider whether they wish to intervene in this matter.  It would mean that this – of course, that would mean that there would be an adjournment of further hearing in this matter, but I wonder whether that would be a wise course – would the parties be prejudiced by such an approach. 

MS BAUMELER:   No, certainly not the appellant. 

KIEFEL CJ:   Mr Coates? 

MR COATES:   No, the respondent would not be prejudiced, we would still have to answer the questions that ‑ ‑ ‑ 

KIEFEL CJ:   The particular Tasmanian questions, I appreciate that.

MR COATES:   Yes.

KIEFEL CJ:   But given that they overlap rather with views of other Codes it might not be a bad idea to have some of the other Code States given the opportunity to see whether they wish to ‑ ‑ ‑ 

MR COATES:   I suppose there are two principles the Court has raised with my learned friend.  Whether the first principle in – whether mens rea, common law mens rea applies ‑ ‑ ‑ 

KIEFEL CJ:   Quite.

MR COATES: ‑ ‑ ‑ which is certainly the respondent’s position. And I suppose if it did apply that would be a defence to the charge, but the respondent’s position is it does not apply. The respondent’s position is section 14 incorporates the common law as to the second principle in He Kaw Teh, and it is the respondent’s submission that this is clearly – well, excuse is synonymous with innocence, and the term innocence clearly been caught by ‑ given a definite meaning in Bergin v Stack and CTM, and so it does apply to the common law all around Australia. 

KIEFEL CJ: So there are a number of issues relating to the approach to provisions such as section 14 of the Misuse of Drugs Act which might involve different approaches as between Tasmania and, say, New South Wales ‑ ‑ ‑

MR COATES:   Certainly, your Honours.

KIEFEL CJ:   So that is one aspect of the common law and its presumptions. 

MR COATES:   Yes. 

KIEFEL CJ:   The other aspect of the common law which may be of interest to other States is the large question about what “innocence” means, and there might be a smaller question about whether or not the Queensland Code is to be taken to reflect the common law.

MR COATES:   Certainly.

KIEFEL CJ:   And what it means.

MR COATES: Yes, and certainly there are decisions in Queensland that state that it has limited the common law, but in respect to section 14 of the Misuse of Drugs Act and whether the principles apply there, we would say the Criminal Code provisions apply by virtue of section 4 of the Criminal Code Act and therefore it is really just – the only question upon the respondent’s submissions is the common law principle of the meaning of the term “innocence”.

KIEFEL CJ:   Which is not a small issue.

MR COATES:   No, certainly not.

KIEFEL CJ:   And on the state of authority is not an easy one.

MR COATES:   No.

KIEFEL CJ:   I think at this point the Court might adjourn briefly to consider the course it might take.

MR COATES:   If it please your Honour.

AT 11.15 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.21 AM:

KIEFEL CJ:   In view of the importance of the issues raised in this matter, the Court considers that further hearing of this matter should be adjourned to enable the State and Territory Attorneys‑General to be advised of the nature of the issues raised.  I will direct the parties to write to all State and Territory Attorneys‑General, providing them with a copy of the notice of appeal and the transcript of today’s hearing.  In the event that any Attorney‑General wishes to intervene, that Attorney‑General should advise the Court by 9 March.  The further hearing of this matter is adjourned to a date to be fixed. 

This Court will now adjourn to 9.30 am tomorrow for pronouncement of orders, and otherwise to 9.45 am.

AT 11.23 AM THE MATTER WAS ADJOURNED