He Kaw Teh v The Queen

High Court of Australia
Gibbs C.J. Mason, Wilson, Brennan and Dawson JJ.
He Kaw Teh v The Queen
[1985] HCA 43

ORDER
Application for special leave to appeal granted. Appeal allowed. Order that the judgment of the Full Court of the Supreme Court of Victoria sitting in its criminal jurisdiction be set aside and that the matter be remitted to that Court to proceed in accordance with the judgment of this Court.

Cur. adv. vult.

The following written judgments were delivered:—

1. 1985, July 1 Gibbs C.J.
   The applicant was charged in the County Court of Victoria with two offences — first, that on 20 October 1982 he imported into Australia 2.788 kilograms of heroin and secondly, that on the same date he had in his possession without reasonable excuse the same quantity of heroin. The charges were laid under pars. (b) and (c) respectively of s. 233B(1) of the Customs Act 1901 Cth, as amended. The facts were within a short compass and of a familiar description. The applicant had travelled by air from Kuala Lumpur to Melbourne and after he had disembarked at the Melbourne airport his baggage was inspected by Customs officials. In the course of the inspection he was found to be in possession of a bag which contained in a false bottom the heroin which was the basis of both the charges laid against him. In relation to both counts the learned trial judge directed the jury that no specific state of mind, whether of motive, intention, knowledge or advertence need be proved by the Crown. In relation to the first count he added that if the accused established by way of defence that he had an honest and reasonable belief in a set of facts which if they existed would make his act innocent that would afford a defence to the charge. He said that the accused bore the onus of establishing such a defence, on the balance of probabilities and not beyond reasonable doubt. In relation to the second count, the learned trial judge directed the jury that two defences were open to the accused, viz., that he had reasonable excuse for the possession and that he did not know that the goods in his possession had been imported into Australia in contravention of the Customs Act. He said that the onus of proving either of those defences on the balance of probabilities rested on the accused. The applicant was convicted and sentenced. He appealed to the Full Court of the Supreme Court of Victoria. It was conceded that the directions given by the learned trial judge were in accordance with two decisions that bound the Supreme Court — in relation to the first charge, Reg. v. Parsons [29] , and in relation to the second, Reg. v. Ditroia and Tucci [1] . The appeal was accordingly dismissed. The applicant now seeks special leave to appeal to this Court.
   
   

   1.[1983] 2 V.R. 499.

   2.[1981] V.R. 247.

2. 
   Section 233b(1), so far as it is material…