Director of Public Prosecutions (Cth) vPan Laboratories

[1998] HCATrans 133

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S82 of 1997

B e t w e e n -

DIRECTOR OF PUBLIC PROSECUTIONS (COMMONWEALTH)

Applicant

and

PAN LABORATORIES PTY LIMITED

Respondent

Application for special leave to appeal

BRENNAN CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 1 MAY 1998, AT 9.56 AM

Copyright in the High Court of Australia

MR L.P. ROBBERDS, QC:   If the Court pleases, I appear with my learned friend, MR C.P. O’DONNELL, for the applicant.  (instructed by the Office of the Commonwealth Director of Public Prosecutions)

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR S.J. STANTON, for the respondent.  (instructed by Aitken McLachlan & Thorpe)

MR ROBBERDS:   Your Honours, paragraph 19 of my learned friend’s summary of argument stated that there was nothing to suggest that there were any pending cases, other than this case, which depended upon the outcome.  To deal with that matter, your Honours, we have had an affidavit sworn and I would seek leave to file that in Court and rely upon it.  It is an affidavit of Stephen Fyfe Howells, sworn 30 April 1998.

BRENNAN CJ:   Yes.  I think we have a copy of that.  We have that affidavit.

MR ROBBERDS:   You have that.  Could I file in Court the original?  The relevant paragraph there, your Honours, is 6.1 and 6.2 which shows that there are 37 matters in respect of the amended section 20 and one current matter on the old section 20.

BRENNAN CJ:   Yes.

MR ROBBERDS:   It is our submission that this case raises a question of statutory interpretation, the answer to which depends upon an important point of principle.

GUMMOW J:   But a settled point of principle.

MR ROBBERDS:   Yes, your Honour. 

BRENNAN CJ:   Then what is the special leave point, that they went wrong?

MR ROBBERDS:   Your Honours, it is that they went wrong and also, we want to look at the legislation to see what was the purpose of this legislation to see whether or not the court applied a wrong principle when construing the statute.  Your Honours, I will come back to that statutory point ‑ ‑ ‑

BRENNAN CJ:   You will appreciate that special leave on questions of statutory interpretation is reluctantly given and for the reason that the only useful purpose in granting special leave ordinarily is to ensure that the appropriate principles of statutory construction are understood.

MR ROBBERDS:   What happened here, with respect, is that Mr Justice Meagher, with whom Mr Justice Grove agreed, applied a principle which has no ‑ ‑ ‑

GUMMOW J:   That is not the only judgment, though.

MR ROBBERDS:   It is not, your Honour, but Mr Justice Hulme, with respect, did not deal or did not make a finding, which is the most important finding that the majority did make, which was that recklessly and wilfully had to be proven by the Crown in respect of (e) and (f) of the section.

Your Honours, we also submit that the case raises a question of public importance and we submit that that question, when combined, firstly, with the fact that section 20 is critical to the enforcement of the national system of control set up by the Act to provide protection to consumers and, secondly, with the fact that there are differences of opinion between the four judges who have been involved in the case as to what onus is upon the Crown, means that there are very exceptional circumstances which warrant the granting of special leave to the Crown. We submit the important point of principle is this:  when a section in a statute ‑ ‑ ‑

GUMMOW J:   You said it is important for construing section 20 but, of course, section 20 at a particular time, in a particular form.

MR ROBBERDS:   Yes, your Honour, but I will come to that.  The amendment, with respect, makes no difference.  It, in effect, does exactly the same work as the old section 20.

GUMMOW J:   That may be grounds for debate, I suppose, which we cannot work out now.

MR ROBBERDS:   There is a very simple explanation as to why that section was amended and I will come to that in due course.

GUMMOW J:   There may be, but there is a debate as to whether or not it makes a significant and relevant change.

MR ROBBERDS:   That, in itself, your Honour, would not be a reason to say that this matter was not important. 

BRENNAN CJ:   The question of law is important, you say.

MR ROBBERDS:   That is right, your Honour.

BRENNAN CJ:   First identify the question ‑ ‑ ‑

MR ROBBERDS:   I will, your Honour.  Where a section in a statute creates an offence when an act is done knowingly or recklessly, unless certain requirements are satisfied, does the section mean that there is no offence unless those requirements are knowingly or recklessly not satisfied?  To put it slightly differently, where a section in a statute creates an offence when as act is done knowingly or recklessly, unless certain requirements are satisfied, is no part of the section to be construed as an exception or excuse in respect of which the onus of proof would be on the accused?  We submit that the reasoning of Mr Justice Meagher at the application book page 60 lines 6 to 20 is applicable to any section of a statute drafted in the manner I have just described.

We submit that there is no principle of construction to support that reasoning and that his Honour failed to see whether, in the Act, there was to be discerned a legislative intention to impose upon the accused the ultimate burden of bringing itself within subparagraphs (e) and (f) of section 20. 

We submit that the question of public importance is this:  whether in a prosecution for a breach of section 20 the onus is upon the Crown to prove that the accused knew that the goods were not registered et cetera, or not exempt et cetera, or that the accused was recklessly indifferent as to whether they were.  To show why that question is one of public importance, and to show why there are very exceptional circumstances here, we draw attention to the sections of the Act which state its object and which set up the system of controls to carry out that object.

The Act sets up a system of controls which requires that before goods are made available to the public they are firstly assessed as to their quality, safety and efficacy; secondly, assessed to see that they conform with the applicable standard; and (c), registered or listed on the Australian register established by the Act or are exempted from the operation of Part 3 or are the subject of approval or authority under section 19.  It is only those goods which satisfy all of those requirements that are to be made available to Australian consumers.  The prohibition in section 20 is an important part of that system.  To construe section 20 as the Court of Criminal Appeal has done weakens that system and allows goods which do not comply with the Act’s requirement to be marketed without punishment unless the Crown can prove that the accused knew that the goods were registered or were not exempt et cetera, or that the accused was recklessly indifferent as to whether they were.

In many, perhaps most, cases the Crown would not be able to prove such knowledge or recklessness unless an admission had been made by the accused.  Take section 20(1)(f); it would not be an easy task for the Crown to prove that a person knew that the goods were not exempt.  Look at section 20(2)(d).  It is difficult to see how the Crown could ever prove that, in the case of an importation, it was knowingly or recklessly not intended that a registration would be set out on the label of the goods before they were supplied in Australia.  The construction propounded by the applicant promotes the object and purposes of the Act and it protects Australian consumers.  The Court of Appeal construction has the opposite effect. 

Could I pass then, your Honours, to the differences of opinion between the four judges.  Mr Justice Meagher held that the words “knowingly or recklessly” qualified the facts of absence of listing et cetera.  He, in effect, held that the Crown must prove that the accused knew that the goods were not registered et cetera, or were not exempt et cetera, or that the accused was recklessly indifferent as to whether they were.  Mr Justice Grove agreed.  Mr Justice Hulme, however, held that the words “knowingly or recklessly” apply to the words “for use in humans” in section 20(1)(a) to (d).  His Honour also held that the words did not apply to section 20(1)(e)and (f) but that (e) and (f) formed part of the total obligation, rather than an excuse or justification for not complying with it, with the result that the Crown bore the onus of proof that none of the matters in (e) and (f) existed.

His Honour Judge Nield held that the Crown did not need to prove that the accused held a listing for the goods and that the accused must prove on the balance of probabilities that it held a listing for the goods.  His Honour was not asked to rule on the question of whether the Crown must prove the accused knew et cetera, but it follows from his Honour’s reasoning that he would have held that the onus was not on the Crown to prove those matters.

Now, those substantial differences of opinion between the four judges, when taken with the criticalness of section 20 in the national system of controls set up by the Act, and the question of whether the onus is upon the Crown to prove that the accused knew that the goods were not registered et cetera or that the accused was recklessly indifferent show that in this case there are exceptional circumstances which warrant the granting of special leave to the Crown.

Your Honours, could I just say a short matter about the amendment to section 20.  The repeal of section 20 and the substitution of a new section 20 makes no difference so far as the question the subject of this

application is concerned.  “Sponsor” is defined in section 3 of the Act to mean certain persons -

but does not include a person who exports.....goods on behalf of another -

To establish that a person is a sponsor, the Crown would be required to prove, amongst other things, that there was no agency arrangement.  Because of the difficulty in establishing that something does not exist, and that something would be a fact within the knowledge of the sponsor, section 20 was rewritten so that no longer is the Crown required to prove that no agency arrangement existed.  On the other hand, if the accused proves that at the time he, she or it was not a sponsor of the goods at the time of the importation, then that is a defence.

So, from a practical point of view, your Honours, the amendment to section 20(1) makes no difference at all to the questions which are the subject of this application. 

Your Honours, in our written material we rely upon section 15D of the Crimes Act.  We do not seek to use that section to support the application.  The object of the Act, your Honours, is set out in section 4 and it is quite clear from an analysis of a number of sections of the Act - and I will not take your Honours to it - that the system of controls has been set up and the object of it is to protect Australian consumers and to ensure that all these controls are carried out before these goods are released onto the market.

For those reasons, your Honours, we submit that this is an appropriate case for the grant of special leave.

BRENNAN CJ:   Yes, thank you, Mr Robberds.  We need not trouble you, Mr Jackson.

The case does not raise a question of law of general public importance.  The relevant rules of statutory interpretation are well established though their application depends upon the language of the particular statute.  The statute in this case has been amended since the offence charged was committed.  If the decision in the present case does not correspond with the contemporary intention of the Parliament the remedy is to make that intention clear by amendment.  Special leave is refused.

MR JOHNSON:   Your Honour, we ask for costs.  The Court’s practice is, in our submission, that to which we refer in paragraph 22 at page 96 of our submissions, that is, that where there is an unsuccessful application for special leave by the Crown in the case of a trial at first instance then the Crown pays costs, and that was what was held by the Court in those two cases.

BRENNAN CJ:   What do you say about that?

MR ROBBERDS:   We have made our submissions.  We have nothing further to add, your Honour.

BRENNAN CJ:   It will be refused with costs.

AT 10.11 AM THE MATTER WAS CONCLUDED