Iannella v French

[1968] HCA 14

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Taylor, Windeyer and Owen JJ.

IANNELLA v. FRENCH

(1968) 119 CLR 84

1 April 1968

Criminal Law

Criminal Law—Conviction—Duplicity—"Wilfully demanded or wilfully recovered" as rent an irrecoverable sum—Mens rea—"Wilfully"—Mistake of law or of fact—Press reports that certain rent control legislation expired—Accused's belief that all rent control expired—Accused received payment by agent of rent greater than fixed by notice in force under unexpired statute—Housing Improvement Act, 1940-1965 (S.A.), s. 56a (1)*—Justices Act, 1921-1960 (S.A.), ss. 51, 70a.**

Decisions

1968, April 1.
The following written judgments were delivered:-
BARWICK C.J. The applicant was charged on 18th November 1966 in the court of summary jurisdiction at Port Adelaide on the complaint of the respondent upon five (5) separate counts that he had on each of five respectively named days "wilfully demanded or wilfully recovered" as rent for a described house at Ethelton, South Australia, in respect of which a notice fixing the maximum rental was in force under Pt VII of the Housing Improvement Act, 1940-1965 (S.A.), a sum of money which by virtue of the provisions of the said part of the said Act "was irrecoverable: Contrary to the provisions of s. 56a" of the said Act. (at p86)

2. That Act sets up a Housing Trust (s. 5) to exercise the power and duties vested in or imposed by the Act upon the housing authority. Those powers and duties mostly relate to the ownership or provision of housing for persons of limited means. But the Act in Pt III enables steps to be taken towards the improvement of substandard housing and in Pt VII enables the rental of a substandard house to be controlled. This Part by s. 52, which without an extending proclamation only applies within the metropolitan area of Adelaide as defined, enables the housing authority after due notice to its owner and its mortgagee, if any, to declare by notice published in the Government Gazette that a house is substandard for the purposes of the Act. After a month has elapsed from the publication of such a notice the housing authority may by notice in the Gazette classify the house, fix the maximum rent payable in respect of it and the date, not being earlier than the date of the publication of the notice in the Gazette from which that notice shall be effective (s. 54 (1)). Provision is made for revocation of such a declaration, again by notice published in the Gazette (s. 55 (2)). Sections 56, 56a, and 56b of the Act should be set out in full:

"56. (1) During the time any notice fixing the maximum rental of any house or any part thereof is in force under this Part, and notwithstanding any change in ownership or occupation of the house or part, the maximum rent per week which shall be payable in respect of the house or part thereof, as the case may be, shall be that fixed as aforesaid by the housing authority. (2) Any amount by which the rent of the said house or part thereof, as the case may be, is in excess of the said maximum rental shall, notwithstanding any agreement to the contrary, be irrecoverable. (3) Where any sum has been paid on account of any rent, being a sum which by virtue of this Part would have been irrecoverable by the landlord, the sum so paid shall at any time within six months after the date of payment, be recoverable from the landlord who received the payment or his legal personal representative, by the tenant by whom it was paid, and may, without prejudice to any other method of recovery, be deducted by that tenant from any rent payable within such six months by him to such landlord. (4) If any person in any rent book or similar document makes any entry showing or purporting to show any tenant as being in arrear in respect of any sum which by virtue of this Part is irrecoverable, he shall be guilty of an offence against this Act. 56a. (1) Any person who, whether as principal or agent or in any other capacity, wilfully demands or wilfully recovers as rent in respect of any house in respect of which a notice fixing the maximum rental thereof is in force under this Part, any sum which by virtue of this Part is irrecoverable, shall be guilty of an offence against this Act. (2) Any person who is knowingly a party to any contract or arrangement under which any sum is paid or is agreed to be paid to that person as rent for any house in respect of which a notice fixing the maximum rental thereof is in force under this Part shall if that sum is, by virtue of this Part, irrecoverable, be guilty of an offence against this Act. 56b. (1) Any landlord of any house in respect of which a notice fixing the maximum rental thereof is in force under this Part who fails, by himself or his agent, to keep or cause to be kept, a record showing the rent received in respect of that house, shall be guilty of an offence against this Act. (2) Any landlord of any house in respect of which a notice fixing the maximum rental thereof is in force under this Part, or any agent of any such landlord, who wilfully makes or wilfully allows to be retained, in any record showing the rent of that house, any entry which is false in a material particular, shall be guilty of an offence against this Act." (at p88)

3. Section 60 enables any person to obtain by post information as to whether or not at the date of the inquiry a notice fixing the maximum rental of any house is in force under the Act. (at p88)

4. By notice published in the Gazette on 25th January 1962 the South Australian Housing Trust, having given prior notice to the applicant and declared that his house at Ethelton was substandard, pursuant to the statutory provisions to which I have referred, fixed the sum of eighteen shillings and sixpence (18s. 6d.) as the maximum rental per week which should be payable from 25th January 1962 in respect of that house. (at p88)

5. The applicant undoubtedly became aware of this notice and conscious of its effect. However, on 31st December 1962, the Landlord and Tenant (Control of Rents) Act, 1942-1961 (S.A.), under which rents generally were pegged or controlled, expired. In anticipation of this event, the daily press called attention to the consequences of such expiry saying that "from midnight on December 31st many people in South Australia will lose the protection of the rent control laws". On 1st January 1963 the daily press called pointed attention to the expiry of the Landlord and Tenant (Control of Rents) Act. Under a caption "Changes to rent laws" in a column attributed to "our real estate writer" the newspaper said:

"With the expiration yesterday of the Landlord and Tenant (Control of Rents) Act, rents of dwellings are no longer pegged in S.A. and landlords are free to terminate tenancies. However, today is the first day of operation of the new Excessive Rents Act which enables tenants to apply to the Local Court to determine whether rents of premises are excessive."

There then followed some information as to the manner in which the new Act would operate. (at p88)

6. The applicant, along with others of the South Australian public, read these statements and believed them. Indeed, they were in terms true. The applicant believed that the change applied to his house and that he was free to charge a rental in excess of the sum fixed by the notice to which I have referred. He made no inquiries as well he might have done. If he had, he would have ascertained that the termination of rent control which had in fact taken place did not extend to the control of rents of substandard houses and that the declaration and notice affecting his house still stood. But the magistrate found that the applicant believed that all rent control had gone and that he "could charge what he liked". However, the applicant did not immediately act on his belief. He waited till the tenant then occupying the house vacated it in April 1966. He then let it at a sum which the intending new tenant was quite willing to pay. That sum was $11 per week of which $9.15 was irrecoverable within the meaning of the Act. After having verbally agreed to the rental and being given possession of the house, the tenant signed an agreement for tenancy at the agreed rent. All the dealings were open, without any attempt at secrecy. The tenant paid the agreed rental to a firm of estate agents as it was said "by her own decision". Apparently there never was any demand by or on behalf of the applicant for the payment of any sum by way of rental. Upon the signature of the tenancy agreement, he allowed matters to take their normal, and on his part expected, course. (at p89)

7. The magistrate accepted the view that when the respondent made the tenancy arrangements with the new tenant he honestly believed himself free to do so. He therefore held that, assuming there to have been a demand or a recovery of an irrecoverable amount of rent, it was not wilful. Accordingly, he dismissed the information. The complainant appealed to the Supreme Court and a judge of that Court allowing the appeal convicted the appellant on each of the five counts as charged. An appeal by the now appellant to the Full Court of the Supreme Court was by majority dismissed. The appellant now seeks special leave to appeal from the decision of the Full Court. (at p89)

8. I have had the advantage of reading the reasons for judgment prepared by my brother Taylor. I respectfully agree with his conclusion that the convictions entered by the Supreme Court cannot stand because of their obvious duplicity. (at p89)

9. Section 51 of the Justices Act of South Australia prior to its amendment in 1943 provided that every complaint should be for one matter of complaint only and not for two or more matters. However, by s. 6 of the Justices Act Amendment Act, 1943 (S.A.), that provision was substituted by the present s. 51 which provides as follows:

"51. (1) Charges for any number of offences may be joined in the same complaint, if the charges arise out of the same set of circumstances. (2) Where an enactment constituting an offence states the offence to be the doing or the omission to do any act in any one of different capacities, or with any one of any different intentions, or states any part of the offence in the alternative, the acts, omissions, capacities, or intentions, or other matters stated in the alternative in the enactment, may be stated in the alternative in the complaint. (3) The court may, if it thinks just, deal with any charge so joined, separately. (4) This section shall apply notwithstanding anything inconsistent therewith contained in the Special Act."

Apparently the informant in this case relied upon this section in two respects: first, the complaint contained five counts treating the payment of the rent by the tenant on each of the days charged, not only as having been made on the demand of the applicant but as having in each case arisen out of the same set of circumstances within the meaning of s. 51 (1): in the second place, it treated the two offences in each count as alternatives and as also having arisen out of the same circumstances. We are not presently concerned with the validity of the complaint but it should not be taken from anything said in this judgment that I hold the opinion that the course taken in the complaint was in any of the above respects regular and authorized by the Justices Act, that is to say, by s. 51, or by s. 55 which allows a complaint to describe an offence in the terms of the statute creating it. Suffice it to say that, in my opinion, those sections of the Justices Act do not authorize a conviction in the terms in which the primary judge in the Supreme Court entered them in this case, that is to say, in the alternative. (at p90)

10. The Justices Act Amendment Act, 1943 (S.A.), also inserted s. 70a in the principal act in the following terms:

"70a. (1) Where charges for more than one offence have been joined in the same complaint, pursuant to this Act, the court may - (a) convict the defendant of such one or more of those offences as it finds proved: (b) include any number of offences in a minute or memorandum of conviction or in any formal conviction. (2) This section shall apply notwithstanding anything contained in the Special Act." (at p90)

11. Section 70 of the principal Act provides:

"When the court convicts or makes an order against the defendant a minute or memorandum of the conviction or order shall then be made. No fee shall be paid for any such minute or memorandum." (at p90)

12. Section 70a does no more than allow the conviction for more than one offence upon a complaint which is not limited to the complaint of one matter and permit the inclusion of convictions for more than one offence in the one minute. (at p90)

13. But the section does not authorize the entry of a conviction in the alternative nor displace the fundamental rule that the conviction itself shall not be double. In this case the conviction of the applicant by the primary judge was for "wilfully demanding or wilfully recovering" the irrecoverable amount of the rent. That course was, in my opinion, clearly not authorized by the Justices Act and was in breach of the fundamental rule to which I have referred. Indeed, it is not possible to determine from that conviction whether or not the applicant was convicted of either of the separate and distinct offences of wilfully demanding or wilfully recovering. Consequently, the convictions ought to be quashed for duplicity. (at p91)

14. Also, I share my brother Taylor's doubt as to whether there was any evidence of a demanding or a recovery by the applicant within the meaning of s. 56a by the applicant. (at p91)

15. Whilst the defect of duplicity in the convictions is as I have said sufficient to warrant quashing them, it may be doubtful whether on that ground alone special leave should be granted. But, as I think that there are other reasons for granting special leave, there is no need for me to decide whether if the point as to the form of the convictions stood alone I should favour the grant of special leave. In the present case the prosecutor appealed to the Supreme Court from the decision of the magistrate for no other reason than that in the view of the Crown law officers a publicly important matter of law and of its general administration was involved. Whether or not it was so then, it certainly is now having regard to the proceedings in the Supreme Court. In my opinion, the construction of s. 56a of the Act is in the circumstances a matter of sufficient public importance raising as it does a matter of general principle to warrant the grant of special leave. Accordingly, I would grant that leave: and as the parties have fully argued the principal matters before the Court, I would, for the reasons about to be given, allow the appeal and quash the convictions: and as I think that the magistrate was right in dismissing the complaint, I would also restore the magistrate's order of dismissal. (at p91)

16. I think it is important to explore the implications of the magistrate's findings as to the state of mind of the applicant when letting the house to the new tenant. I select that point of time upon the assumption that, in receiving from his agents the amount of rent for the payment of which the tenancy agreement stipulated the applicant demanded or recovered the excess over the fixed rent. I think it necessary to make this assumption if the construction of the section is to become material, even though as I have indicated I am not satisfied that the assumption is warranted. (at p92)

17. The magistrate held that the applicant honestly believed himself free to enter into that agreement because he believed that all rent control had terminated in South Australia. I do not think that this meant that the applicant believed that Pt VII of the Housing Improvement Act had expired or been repealed. He was not shown to have been conscious of that Act at any material time though in 1962 he had been served by the South Australian Housing Trust with a notice referring to that Act and indicating its intention to declare his house substandard. On the other hand, although the press articles referred to the Landlord and Tenant (Control of Rents) Act, I do not think that the applicant's state of mind showed that he erroneously supposed that the fixation of the rent of his house had been effected under that Act. In my opinion, the proper conclusion to draw from the magistrate's finding is that the applicant simply had an honest belief that the rental of his house was no longer controlled and that he was free to enter into a tenancy arrangement with a tenant for a mutually agreed sum. If it matters, it should also be concluded upon the magistrate's finding that the applicant's belief was reasonable or arrived at on reasonable grounds in the proved circumstances. The question then is whether, on the assumption of fact which for the present purposes I have been prepared to make, the applicant so believing could be convicted of wilfully demanding a sum of money by way of rent which was irrecoverable under the Act? (at p92)

18. The matter turns, in my opinion, upon the nature of the subject matter of, and the effect of the presence of the word "wilfully" in, s. 56a of the Act. We have had the benefit of the careful judgment of the learned Chief Justice of the Supreme Court in which he reviews and comments upon recorded cases in which the word "wilful" has received judicial comment or definition. We also had the advantage of a useful discussion by and with both counsel of these and other like cases. Since the argument I have taken the opportunity of refreshing myself as to all these cases and of reading a great many others. I have also read a number of relevant articles and commentaries in legal periodicals. I see no need in these reasons to discuss and compare the cases or the commentaries. As to many of the cases, that is usefully done in Dr. J. Ll. J. Edwards' volume entitled Mens Rea in Statutory Offences (1955) in the series of English Studies in Criminal Science. It will be sufficient for present purposes if I state my own opinion formed after this review of the relevant cases and writings. (at p92)

19. The basic question, in my opinion, is whether upon the proper construction of the section mens rea is a necessary element of the offence it creates. (at p93)

20. It cannot be asserted that the presence of the word "wilfully" has always been held in the decided cases to have emphasized the need for mens rea. Some of the cases in which the criminal liability under a statute has been treated as absolute, though the offence has been the wilful doing of an act, have been the subject of judicial and other criticism whilst others are acceptable as properly decided in their particular circumstances. Indeed, it is quite clear from a reading of the cases that the denotation of the words "wilful" or "wilfully" has depended, in each case where antecedent authority was not merely accepted and followed, upon the context of the statutory or contractual provision in which it was placed and upon the subject matter with which the particular instrument dealt. This latter element seems at times to have had added significance because of the times or the events of the times in which the particular case fell for decision. Thus the pattern of the cases could scarce be said to represent a logical development or exhibit logical consistency. But none of the cases, even if all were binding upon this Court, would require me either as the direct result of any decision or by force of analogy to hold that s. 56a created what has been called absolute criminal liability in relation to the demand of irrecoverable rent. That is to say, authority such as it is does not constrain me to hold that a conscious demand of a rent which is in fact in excess of the fixed rent without more renders the landlord liable to criminal penalties. Consequently, though the cases are illustrative and useful, resort to basic principles is more likely to provide the answer to the present problem. (at p93)

21. We have recently been reminded that there is a presumption that mens rea or evil intention, or knowledge of the wrongfulness of the act, is an essential ingredient in any offence: see Lim Chin Aik v. The Queen (1963) AC 160, at p 172 , affirming Wright J. in Sherras v. De Rutzen (1895) 1 QB 918, at p 921 . Neither the absence of the word "wilfully" nor of the word "knowingly" from the section of the Act under construction in either of these cases nor the presence of either of these words in other sections of the same statute in the case in the Judical Committee was sufficient to displace this fundamental presumption. But, of course, as Wright J. said in Sherras v. De Rutzen "that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject matter with which it deals, and both must be considered" (1895) 1 QB, at p 921 . In my opinion, it is not a presumption lightly to be displaced. (at p94)

22. There is no reason, in my opinion, for the offence created by s. 56a to be one of absolute liability in order to effect the evident purposes of the statute. Thus even without the word "wilfully" there would be a real question whether or not mens rea was an element of the offence the section creates. Section 56 (3) of the Act makes the excess of the sum demanded or recovered over the permissible maximum rent recoverable from the landlord by the tenant: thus there is no need for absolute criminal liability to enable that recovery or to make the satisfied demand of the landlord financially unprofitable. Nor do I see such a need merely to catch the hapless victim whom Lord Evershed had in mind. The criminal offence in this case is created, it seems to me, on the one hand in the expectation that it will deter landlords who might be tempted otherwise to risk the recovery by the tenant of the overcharged rent and, on the other hand, to express the community's disapproval of a defiant or contumacious act on the part of the landlord. In either case, the requirement of mens rea would be appropriate and to dispense with it, in my opinion, quite inappropriate. Then the demand is to be of an irrecoverable rent. It seems to me that the intention with which the demand must be made must be not merely an intention to obtain by the demand a sum of money: the intention, in my opinion, must be to achieve the full consequence of the demand, to obtain as it were, its forbidden fruit. This would indicate, in my opinion, the need for the existence of either an actual or an imputed consciousness of the wrongdoing involved in the demand. By including an imputed consciousness in that connexion, I mean to leave room for the concept of recklessness, or culpable indifference as an equivalent of knowledge or consciousness of the quality of the act performed. In short, apart from the influence of the word "wilful", there is much to be said for the view that the terms of this section require that the defendant should know that his demand is wrongful. A finding that he had an honest belief that his act was proper and lawful denies that knowledge. (at p94)

23. But, as I have said, the demand to be an offence must be a wilful demand of a sum irrecoverable under the statute. (at p94)

24. It is thus appropriate to consider the meaning and application of the word "wilful" in the specification of an offence. The Chief Justice of South Australia, having examined the case law, has repeated the view that the cases show that the word "wilful" is not a word of fixed meaning. But of this I cannot myself feel absolutely certain. I am inclined to think that in the description of a criminal offence its connotation is fairly constant: but that its denotation varies with the verbal context and the subject matter of the statutory provision. In my opinion, "wilful" connotes intention and knowledge: the problem is to determine in the particular circumstances what is to be intended and what known. The answer, as I have said, must vary with the nature of the act proscribed and the context of the statutory provision creating the offence. Further, the word intention itself obscures a difficulty. Thus it is said on some occasions to be satisfied by mere volition to do the specific act in question. But in truth, in my opinion, the word contains in its connotation elements of purpose. It is not merely that the mind goes with the act but that the mind intends by the act to achieve something. Of course, in some statutory circumstances, the mere doing without consequence or without purpose is forbidden, in which event the conscious doing of the act may suffice to make its performance intentional and in these circumstances wilful. (at p95)

25. The present case is to my mind an example where the context and subject matter of the provision in which the word "wilful" is found controls the denotation. The proscribed act, to express it in a condensed but not inaccurate form, is demanding an irrecoverable rent. If, as I think is the case, wilfully in relation to an offence means intentionally and knowingly, it cannot merely denote the conscious as distinct from the involuntary or the accidental as distinct from the intentional. So to construe the present provision, in my opinion, eliminates the word "wilful" from it. Further, as I have already pointed out, the purpose of the demand is to obtain that which the statute makes irrecoverable. To wilfully demand in this connexion the landlord, in my opinion, must intend to achieve the end which the statute forbids; not merely to obtain a stated sum of money but a sum which is by the statute made irrecoverable. Thus so far from rebutting the presumption of the need for mens rea, the presence of the word "wilful" in this section, in my opinion, reinforces or emphasizes it. (at p95)

26. In my opinion, therefore, on the proper construction of the section and bearing in mind basic principles, mens rea is required to make the offence created by s. 56a. (at p95)

27. There are several further matters to which I should advert before parting with the subject. First, there is a question as to the state of authority on comparable words in a South Australian statute. I refer to the cases of Davies v. O'Sullivan (No. 2) (1949) SASR 208 , and Fenwick v. Boucaut and Hodder (1951) SASR 290 , mentioned in the judgments below and in the argument before us. I regard the former as deciding that "wilfully" in a section comparable to s. 56a did import mens rea and that the offence created by the section then under consideration was not one of absolute liability. Upon its facts, and upon the way the then Chief Justice dealt with them, the defendant had no honest belief in the propriety of the act with which she was charged. The word "knowingly" which I think is part of the connotation of "wilfully" in connexion with an offence was treated as satisfied by a reckless indifference as to whether or not the act to be done was lawful. This, it seems to me, is conformable to principle and to decided cases. Thus, I would regard Davies v. O'Sullivan (No. 2) (1) as supporting the applicant and not supporting the contention of the respondent. There may be some difficulty with some passages in the judgment in the second case but clearly it was not thought by the learned Chief Justice who decided it that he was overruling or departing from the decision in Davies v. O'Sullivan (No. 2) (1). (at p96)

28. Secondly, the question here, as I have said, is whether or not mens rea is required for a conviction under s. 56a. If required, the onus of establishing it was upon the informant. It was not a case in which the prosecutor's case in chief could be regarded as prima facie evidencing the presence of mens rea: on the contrary, it was established by the informant's principal witness that the applicant claimed to have had an honest belief in the propriety of what he had done and that that witness, put forward as a skilled interrogator, believed the applicant in that respect. The failure to discharge the onus resting on the Crown did not really depend, in my opinion, upon the applicant's evidence or its acceptance by the magistrate: it was apparent, in my opinion, in the evidence led by the informant. (at p96)

29. Thirdly, the case was not really one in which the applicant had to assert and rely upon a mistake of fact. Of course, at times, an established belief in facts which if they existed would make the defendant's act innocent does deny mens rea. Often consideration of that aspect of the case must await some evidence by the defendant because the Crown case prima facie has shown mens rea. Or it may be that in a case of absolute liability, such a belief on reasonable grounds will afford a defence, as in Maher v. Musson (1934) 52 CLR 100 and Proudman v. Dayman (1941) 67 CLR 536 . But that was not, in my opinion, the situation here. There was, in my opinion, here an absence of evidence of mens rea in connexion with an offence of which it was an indispensable ingredient. Consequently, in my opinion, there was no room in this case for resort to or for the application of the principle that ignorance of the general law is no excuse. Mens rea may in some cases, depending as I have said on the context and the subject matter, require that the defendant should know that the act is unlawful. That element of the offence itself cannot be eliminated in such a case by saying that ignorance of the law is no excuse. The defendant who is not shown in such a case to know that the act is unlawful needs no excuse. The offence has not been proved against him. (at p97)

30. It thus becomes unnecessary for me in this case to decide whether or no, if the case had entered the area of mistake, the applicant's belief derived from a mistake of fact or of law: and of considering what in this case would have been the consequence of a mistake of law on the part of the appellant. The passing of an Act, as distinct from the changes it makes in the law, is, in my opinion, a fact. So is its repeal; although, of course, such facts as a general rule need not be expressly proved in the courts of the country whose laws they are. Whether or not a particular house is rent controlled or not may well be a matter of fact, though to determine it the law may need to be applied. In this connexion I have indicated how I think the magistrate's findings ought to be understood but I refrain from expressing any final conclusion on the question whether, if it had been relevant, the applicant's erroneous belief was as to a matter of law or of fact. My inclination as at present advised is to think that it was as to a matter of fact. (at p97)

31. I agree with the conclusion of the Chief Justice of South Australia and with his analysis of the cases to which he refers. (at p97)

32. In my opinion, the appeal should be allowed. (at p97)

McTIERNAN J. This motion raises a question as to the construction and application of "wilfully" in s. 56a (1) of the Housing Improvement Act, 1940-1965 (S.A.). The words of the heading of Pt VII of the Act are: "Control of rentals of substandard houses." Section 56a (1) reads:

"Any person who, whether as principal or agent or in any other capacity, wilfully demands or wilfully recovers as rent in respect of any house in respect of which a notice fixing the maximum rental thereof is in force under this Part, any sum which by virtue of this Part is irrecoverable, shall be guilty of an offence against this Act."

These provisions are consequential on sub-ss. (1) and (2) of s. 56 from which a notice fixing a maximum rental of a house declared to be substandard for the purpose of Pt VII takes its force. These sub-sections read thus:

"(1) During the time any notice fixing the maximum rental of any house or any part thereof within force under this Part, and notwithstanding any change in ownership or occupation of the house or part, the maximum rent per week shall be payable in respect of the house or part thereof, as the case may be, shall be that fixed as aforesaid by the housing authority. (2) Any amount by which the rent of the said house or part thereof, as the case may be, is in excess of the said maximum rental shall, notwithstanding any agreement to the contrary, be irrecoverable."

Section 56a creates penal sanctions for wilful deviations from such a notice in demanding or recovering rent or in making agreements. In determining the questions at issue it is convenient to begin with the operative words of s. 56a (1). These words would be satisfied by any act which results in a demand for rent or a recovery of a sum as rent. I think that "demands" of itself in this context contains an intentional element and that "recovers" also does. But "wilfully" is not a surplus word. Mens rea is not conveyed by "demands" or "recovers". This is made a positive element of an offence under s. 56a (1). This element is introduced by the word "wilfully". I think that this word would play its intended part in the sub-section if it is taken to mean with wilful intent. These words are not accompanied by any opprobrious adverb, for example, maliciously, dishonestly. There is nothing in the Act which allows an enlargement of the ordinary sense of wilfully. It should not be read with a gloss involving that result. The word is used to express a specific state of mind that must accompany the commission of the overt acts prohibited by the sub-section, which I would describe as wilfulness. The enlargement of the interpretation of the word by including a gloss would weaken the control of rentals sought by the legislature because excuses for not adhering to it would be indefinitely increased. The circumstances of the present case are that the applicant let the house in question under a written agreement of tenancy for a term of one year at a rent the amount of which exceeded the maximum rental which the housing authority fixed by a notice in force under Pt VII of the Act applying to the house. The applicant regularly asked for and collected rent at the amount fixed by the agreement. These acts of themselves prove prima facie that sums of money, irrecoverable by reason of sub-ss. (1) and (2) of s. 56, were wilfully demanded and recovered on the dates alleged in the complaint. The question is whether the applicant's belief that the provisions of Pt VII were not continuing in operation is capable of disproving mens rea. Here the respondent does not impugn the sincerity or genuineness of the belief. Taking the word "wilfully" in its ordinary sense and speaking of its application to conduct generally, a deed for which ignorance, accident or compulsion can be pleaded as an excuse is not a wilful deed. Ignorance only is relevant here. It is necessary to limit the subject matter in respect of which an offender under s. 56a (1) should be ignorant if he is to be excused on such ground. He should, I think, be ignorant about something within the purview of this sub-section. The central matter is the notice fixing a maximum rental, proved by the prosecutor. An offence under s. 56a (1) can only be committed in respect of a notice of that kind. There are no provisions making a notice proof against mistake or ignorance. Having regard to the mixed classes of possible offenders against s. 56a (1) and that by reason of s. 56 (1) a notice fixing a maximum rental survives all changes of ownership or occupation of the house to which it applies it is reasonable to assume that some persons in those classes may act contrary to the notice owing to ignorance of its existence or mistake as to essential matters covered by it. To my mind there is no ground for the presumption that the legislature expressly made mens rea a necessary ingredient of an offence under s. 56a (1) out of consideration for persons who might think that this is a temporary Act and the period of its operation has ceased. I am unable to strain the meaning of "wilfully" to admit of such a mistaken belief in this context, even though sincere and not just fancy, to be pleaded as an excuse for any contravention of s. 56a (1). The word "wilfully" does not, in my judgment, apply in relation to any matter beyond the purview of this subsection. An offender's mistake or ignorance with respect to the continuance of the provisions of Pt VII is not disproof of mens rea in the view I take as to the interpretation and application of "wilfully" in s. 56a (1). I would dismiss the motion. (at p99)

TAYLOR J. In March 1957 the applicant purchased two semidetached cottages known as Nos. 1 and 3 James Street, Ethelton. Thereafter he occupied No. 1 and No. 3 was occupied by a tenant at a rental of 18s. 6d. per week. The rental of the premises remained unchanged for a period of about three years, when the tenant left. They were then occupied free of rent by the applicant's father-in-law for a period in excess of twelve months. Then in April 1966 the applicant agreed to let the premises to Mrs. McKinnon at a rental of $11.00 per week. Subsequently a tenancy agreement was executed by Mrs. McKinnon at an agents' office but not in the presence of the applicant. Thereafter she paid rent at this rate and, in particular, on 14th April 1966 she paid $11.00 to the agents as and for a week's rent. This payment was made voluntarily to the agents at their office and it was followed by like payments made in the same manner on 21st and 28th April 1966 and on 5th and 12th May 1966. (at p100)

2. On 14th November 1961, however, a notice had been sent to the applicant, pursuant to the Housing Improvement Act, 1940, informing him that the Housing Trust intended to declare No. 3 "to be sub-standard for the purposes of Pt VII of the Housing Improvement Act" and that the Trust had fixed one calendar month from the giving of the notice as the time within which any representations might be made to it for the purpose of showing that the declaration should not be made. The notice was followed by a further notification, dated 25th January 1962, informing the applicant that by notice published in the Government Gazette on the same day the Trust had fixed the sum of 18s. 6d. as the maximum rental per week which should be payable from the date of the notice in respect of No. 3 James Street. (at p100)

3. The premises were let to Mrs. McKinnon whilst the notice was in force and on 8th August 1966 a complaint was laid charging the applicant with the commission of offences on five separate occasions against s. 56a of the Housing Improvement Act. These alleged offences related to the payment and receipt of rent for the premises on the five occasions particularly referred to above. Except for the date of each of the alleged offences the various counts of the complaint are in identical terms and charged the applicant with having, on each date specified,

"at Port Adelaide in the said State wilfully demanded or wilfully recovered as rent in respect of a house situated at 3 James Street, Ethelton, aforesaid in respect of which a notice fixing the maximum rental thereof was in force under Pt VII of the Housing Improvement Act, 1940-1965, a sum, namely $11.00, which by virtue of the provisions of Pt VII of the said Act was irrecoverable: Contrary to the provisions of s. 56a of the Housing Improvement Act, 1940-1965." (at p100)

4. The magistrate before whom the matter was heard dismissed the charges. It appeared in evidence that towards the end of 1965 the applicant had read in two newspapers that the Landlord and Tenant (Control of Rents) Act would expire on 31st December 1965 and that rents of dwellings would no longer be pegged in South Australia. He said these reports induced him to believe that at the time when he let the premises to Mrs. McKinnon he was free to charge "what rent I liked". But as already appears the rent of the premises was fixed at 18s. 6d. per week pursuant to the Housing Improvement Act and the expiration of the Landlord and Tenant (Control of Rents) Act did not affect that fixation. In reaching his decision the magistrate said:

"What I have to say is - could his story possibly be true because if it could possibly be true then he is to be acquitted whether I believe it or not. When I say could it possibly be true, I point out it was sufficient to convince Mr. Parrott who went there as a representative of the Housing Trust to make inquiries. He was convinced. Now whether I would be convinced or not is beside the point. Could I say then beyond reasonable doubt he acted intentionally. Of course I could not. There is in my view a very clear doubt indeed and in fact I think having read these articles and knowing that they were a matter of common discussion in those days, I consider he believed like many other South Australians that this was new law and rent control had gone - so it had for most people but not for him. I think in these circumstances it would be manifestly unjust to do other than acquit him and it is my plain duty to do that." (at p101)

5. Hard cases are said to make bad law. It seems to me clear enough that if the applicant is to be believed he acted, not under a mistake of fact entertained by him on reasonable grounds, but under a mistake as to the general law and this was not an answer to the charge. Nor did his evidence on this point, if believed, mean that his conduct was not "intentional" or "wilful". To hold otherwise would, in my opinion, be to subscribe to a heresy of the first order. It cannot, in my view, be said that ignorance of the state of the general law operates to exonerate a person who has so acted as to expose himself to the sanctions of the criminal law or that a mistaken belief that the law is such that his acts do not constitute an offence means that he did not do those acts wilfully. There is, in my view, ample room for the operation of the word "wilfully" in the statutory provision in question in this case without giving to it the effect contended for by the appellant (see e.g., In the matter of Etienne Barronet and Edmond Allain and In the matter of Emanuel Barthelemy and Philippe Eugene Morney (1852) 1 E1 &B1 1 (118 ER 337) ). However on appeal to the Supreme Court he was convicted and a further appeal by the applicant to the Full Court was dismissed by a majority of that Court. Each of the judges before whom the case has come treated the case as one of mistaken belief as to the state of the general law, but for reasons which will presently appear, I find it unnecessary to elaborate on the observations which I have already made. (at p102)

6. At the outset of the hearing before the magistrate counsel for the defendant submitted that the complaint as laid was bad for duplicity. His objection was not however dealt with but left open to be argued at a later stage and no attention has been paid to the objection since that time. The convictions which have now been recorded are convictions on each count of the information and the appellant has, therefore, been convicted of having wilfully demanded or wilfully recovered the rents in question. Notwithstanding the somewhat special provisions of s. 51 and s. 70a of the Justices Act (S.A.) the convictions are clearly bad for duplicity (see R. v. Molloy (1921) 2 KB 364 , and R. v. Albert Disney (1933) 2 KB 138 ) and should not be allowed to stand. (at p102)

7. There is however a further objection. The evidence that on the dates charged Mrs. McKinnon went to the agents' office voluntarily and paid the rent to the agents is not sufficient to support a charge that, as alleged, the applicant demanded the rents in question. Further it is, at least, doubtful whether it is sufficient to support a charge that on those dates he wilfully recovered such rents; there is nothing in the evidence to show that the defendant had any knowledge of the receipt of the rents on these days and, as far as I can see, there is nothing in the Act to make him responsible for the acts of his servants. (at p102)

8. The matter is not one which commends itself to me as a matter in which we should grant special leave to appeal to this Court. But since the matter has been fully argued and the case is before us and it is clear that the convictions should not be allowed to stand I would be in favour of granting special leave and quashing the convictions. (at p102)

WINDEYER J. In my opinion this is a case for special leave to appeal. As it was fully argued I shall deal with it as an appeal, and for convenience call the applicant "the appellant". (at p102)

2. The Landlord and Tenant (Control of Rents) Act, 1942 (S.A.), was a war-time measure, enacted according to the preamble "to provide for the control during the present war of the rents of premises used for purposes of residence". Subject to certain exceptions and qualifications, it established a general system of pegged rents and protected tenancies of dwelling houses in South Australia. After the war it was continued in operation by later enactments, until 31st December 1962 when the Act then in force expired and was not renewed. The general system of rent control in South Australia then came to an end. It was replaced by a new scheme whereby tenants of premises not leased for more than a year could apply to a court for the determination of a fair rent. (at p103)

3. Operating concurrently with, but quite separate from, the general system of rent control were the provisions of Pt VII of the Housing Improvement Act, 1940-1961 (S.A.). This Act was directed to the improvement of housing. Part VII, which applies to houses within the metropolitan area of Adelaide and such other parts of the State as the Governor proclaims, enables the South Australian Housing Trust to declare any house to be "sub-standard" and to fix "the maximum rental per week which shall be payable in respect of the house". Section 56 (2) provides that

"any amount by which the rent of the said house . . . is in excess of the said maximum rental shall, notwithstanding
any agreement to the contrary, be irrecoverable".

If any sum thus made "irrecoverable" is paid on account of rent, the tenant by whom it was paid can recover it from the landlord at any time within six months (s. 56 (3)). Furthermore a landlord commits an offence if he demands or receives any amount which is irrecoverable. That is the result of s. 56a (which was inserted by an amending Act, No. 22 of 1943). Section 56a (1) is as follows:

"Any person who, whether as principal or agent or in any other capacity, wilfully demands or wilfully recovers as rent in respect of any house in respect of which a notice fixing the maximum rental thereof is in force under this Part, any sum which by virtue of this Part is irrecoverable, shall be guilty of an offence against this Act."

The penalty for the offence is a fine of up to twenty pounds ($40). (at p103)

4. The appellant is the owner of a house, No. 3 James Street, Ethelton, which in January 1962 was duly brought within the provisions of the Housing Improvement Act. On 25th January 1962 a written notice was given to the appellant informing him of this and that the Housing Trust had fixed the sum of 18s. 6d. per week as the maximum rental of the house. The notice added that

"until the maximum rental so fixed is varied by a decision of the Trust, or until the house is released from control under the provisions of Pt VII of the abovementioned Act, the maximum rental per week payable in respect of the said house from the said day will, by virtue of the provisions of the abovementioned Act, be the sum stated". (at p103)

5. In April 1966 the appellant let the house, which had become vacant, to a new tenant at a rent of 5 pounds 10s. a week. The tenancy agreement was prepared by a firm of estate agents through whom the letting was concluded. The tenant paid rent, at the agreed rate, to these agents for some weeks. Later the tenant, acting on the advice of an inspector of the Housing Trust, refused to pay more than 18s. 6d. a week; and on 30th August 1966 the appellant was charged before a special magistrate at Port Adelaide with offences under s. 56a arising out of the receipt of rent at the rate of $11 per week for five successive weeks in April and May. The complaint in each of the five counts alleged that the accused had

"wilfully demanded or wilfully recovered as rent . . . a sum namely $11.00 which by virtue of the provisions of Pt VII of the said Act was irrecoverable".

This complaint appears to have been bad for duplicity. Moreover the amount "irrecoverable" was not $11 but the amount by which $11 was in excess of the maximum rental of 18s. 6d. These and other defects referred to by my brethren in their judgments are I agree serious. There is however a more substantial question: and it is because of it that I consider we should entertain the appeal. (at p104)

6. The magistrate discharged the appellant because he held that it was not proved that he had wilfully demanded or wilfully recovered any moneys in breach of s. 56a. He found that the appellant had thought that all rent control in South Australia had expired in December 1962, when the general rent control provisions of the Landlord and Tenant Act expired. The appellant had read statements in newspapers at that time. In one of these, under the heading "Rent control in final days", there was a reference to "the lapsing of the rent control laws". In another, under a headline "Changes to rent laws", it was said that:

"With the expiration yesterday of the Landlord and Tenant (Control of Rents) Act, rents of dwellings are no longer pegged in S.A. and landlords are free to terminate tenancies."

These newspaper announcements, when carefully read in their full contexts and correctly understood, related of course only to the cessation of the provisions of the Landlord and Tenant Act. They did not relate to premises in respect of which rents had been fixed under the Housing Improvement Act administered by the "rent control section" of the Housing Trust. However, the magistrate thought they could reasonably have misled, and did mislead, the appellant, and that his mistake was an honest one. He therefore acquitted him, not being, he said, satisfied beyond reasonable doubt of his guilt. (at p104)

7. The prosecutor appealed to the Supreme Court against the magistrate's decision on the ground that he had misapplied the law and that his decision was inconsistent with the decision of the Supreme Court in Davies v. O'Sullivan (No. 2) (1949) SASR 208 . The appeal was heard by Chamberlain J. His Honour made some criticisms of the course of the proceedings before the magistrate. With those and with the weight of the evidence the magistrate had we are not now concerned. We must accept, as indeed his Honour did, that the present appellant honestly believed in 1966 that he could, without breach of the law, charge more than the rent which had been fixed for his premises in January 1962. His Honour nevertheless upheld the prosecutor's appeal. He considered that the question was concluded for him by Davies v. O'Sullivan (No. 2) (1949) SASR 208 . He said that the magistrate's decision

"overlooks a fundamental principle, and one which has been authoritatively applied to provisions identical with the one in question, namely that ignorance of the law is no excuse". (at p105)

8. The present appellant then appealed to the Full Court of the Supreme Court. That Court, by majority (Travers J. and Hogarth J.), dismissed the appeal. Their Honours gave differing reasons for doing so; but, as I read their judgments, they both considered that, whatever meaning was to be given to the word "wilfully" in s. 56a (1), it could not override the proposition expressed in the maxim that "ignorance of the law is no excuse". They both thought too that to allow the appeal would mean overturning statements of general principle by Napier C.J. in Davies v. O'Sullivan (No. 2) (1949) SASR 208 , and in a later case, Fenwick v. Boucaut and Hodder (1951) SASR 290 . Bray C.J. dissented. He would have allowed the appeal. He did not think that Davies v. O'Sullivan (No. 2) (1949) SASR 208 , stood in the way. And if what was said in Fenwick v. Boucaut and Hodder (1951) SASR 290 did, he thought that it should not be followed. (at p105)

9. The judgments of the Supreme Court touch on fundamentals of criminal law. The question involved is important and of consequence for other cases. I propose therefore to consider afresh for myself what seems to me to be the main question in the case rather than to discuss in detail the judgments given in the Supreme Court. I acknowledge the considerable assistance I have had from them; but after all, the case turns on the language of the statute. We do not have to wrestle, as their Honours did, with the language of passages in earlier judgments of their own Court which they took to be binding upon them. I would however interpolate here that I accept, and would respectfully adopt, what Napier C.J. said in Davies v. O'Sullivan (No. 2) (1949) SASR 208 as a statement of principle. It seems to me that, properly understood, it states a ground on which this appeal should be allowed. (at p106)

10. In the argument before us much was said about the doctrine that ignorance of the law is no excuse. I put that aside for the moment. I shall return to it later because two of my brethren, whose views I greatly respect, have on account of it condemned the opinion I hold as "a heresy of the first order". Whether by theological analogy I be a formal or a material heretic, I am unrepentant, especially as I am in the company of the Chief Justice and the Chief Justice of South Australia, with whose conclusions I am glad to find myself in substantial agreement. Perhaps, as the alleged heresy turns on the word "wilfully" in s. 56a, I may at this point quote a passage where the word appears in the Authorized Version of the Bible:

"For if we sin wilfully after that we have received the knowledge of the truth there remaineth no more sacrifice for sins, but a certain fearful looking for of judgment . . . " (Heb. 10: 26).

If after being informed of the true doctrine of the law, I am wilfully persistent in error I hope I shall at least make my error clear. (at p106)

11. To ask what would be the effect of an Act if it were differently worded is a roundabout and often dangerous way of seeking its meaning and effect worded as it is. Nevertheless I think it is pertinent to see what the position would be if the word "wilfully" were not in s. 56a (1). It could then be argued that there was an absolute prohibition and that guilty knowledge was not an element of the offence. Yet even then an honest belief on reasonable grounds that premises were not subject to rent control might be a defence: see Brown v. Green (1951) 84 CLR 285, at p 294 ; Maher v. Musson (1934) 52 CLR 100 ; Proudman v. Dayman (1941) 67 CLR 536 . It is, however, unwise to be dogmatic on a topic, strict responsibility in statutory offences, which has provoked so much discussion and so many decisions difficult to reconcile. The word "wilfully" is there. The question is, what result does it produce. (at p106)

12. I consider it is a mistake to read "wilfully" here as if it meant no more than that the act of demanding or receiving the money as rent for the premises must be a voluntary, that is a willed or intentional, act. If that were all, the word "wilfully" would be superfluous, because the words "demand" and "recover" themselves here predicate volition. They require that the mind or will of the actor has gone with and produced his act - that his act was done intentionally and of free will. That is only to state the first condition of criminal liability, which is as necessary in offences of strict responsibility as for crimes requiring mens rea in the common law sense. The language of law, and its use of the words "voluntary" and "involuntary", does I appreciate sometime suppose concepts and distinctions which for philosophers and psychologists are unscientific. I referred to this in passing in what I wrote in the case of Ryan v. The Queen (1967) 40 ALJR 488, at pp 504, 505 . I shall not repeat it, merely add that, as a result of further reading, I now adopt a statement by Professor Hart:

"The word 'voluntary' in fact serves to exclude a heterogeneous range of cases such as physical compulsion, coercion by threats, accidents, mistakes etc. and not to designate a mental element or state; nor does 'involuntary' signify the absence of this mental element or state": The Ascription of Responsibility and Rights (Proceedings of the Aristotelian Society), vol. 49, N.S. (1949), at p. 180.

(I am indebted for this reference to the article "Criminal Omissions" in the Yale Law Journal, vol. 67, at p. 607.) (at p107)

13. The word "wilfully" is even more difficult to tie down. It has been said that it "has no established meaning in law, but varies with the context and with the general nature and purpose of the Act in which it is found": per Gavan Duffy J. in Lamberton v. Hill (1944) VLR 11, at p 12 . And in Sir George Paton's work on Jurisprudence, 3rd ed., p. 276, it is said that "the word 'wilful' is a word which should be avoided because of its ambiguity". But since the sixteenth century "wilfully" has been frequently used in statutes creating criminal offences. So used it generally comprehends all that is meant by voluntary in the sense of both ultroneous and intentional, and goes further to carry a sense of contumacy. For example it was said more than a century ago in Massachusetts and quoted in the Supreme Court of the United States in 1877 that "The word 'wilfully', in the ordinary sense in which it is used in statutes, means not merely 'voluntarily' but with a bad purpose": see Felton v. United States (1877) 96 US 699, at p 702 . But later cases in the United States are less decisive. It cannot be said that the word "wilfully" has there any absolute and uniform sense. Much depends upon the subject and context. (at p107)

14. I do not think that any good purpose would be served by my assembling and examining here the numerous cases in which, in varying contexts, the effect of the word "wilfully" has been judicially considered in England and Australia. Many of the cases are referred to by Bray C.J. in what I take the liberty of calling his powerful judgment. I have considered them, and others, including the decisions on wilfully understating income in taxation returns; I refer in particular to the remarks of Fullagar J. in Jackson v. Butterworth (1946) VLR 330 , adopted by Haslam J. in Donnelly v. Commissioner of Inland Revenue (1960) NZLR 469 . I may add too a reference to the judgments in the Queensland Court of Criminal Appeal on the effect of the word "wilfully" in the Criminal Code of Queensland: Reg. v. Burnell (1966) Qd R 348 . We are not here engaged in an exercise in semasiology. The word "wilfully" does not stand alone. Its importance is in the meaning which it gives to its context. (at p108)

15. In a comprehensive examination of the case law on this matter Professor Edwards observes in his work Mens Rea in Statutory Offences (1955) (at p. 37) that in the cases of Younghusband v. Luftig (1949) 2 KB 354 ; Wilson v. Inyang (1951) 2 KB 799 , and Bullock v. Turnbull (1952) 2 LlL Rep 303 , the word "wilfully" was "regarded as the key which sets in motion the old maxim actus non facit reum nisi mens sit rea". That is one way of stating what I think is now ordinarily taken to be the effect of the word "wilfully" when used in relation to a statutory offence. The general rule, recently reiterated by the Privy Council in Lim Chin Aik v. The Queen (1963) AC 160 is that mens rea is an essential element in every offence unless displaced by the terms of the statute creating the offence or by the subject matter with which it deals. In the present case, if it had not been for the presence of the word "wilfully", mens rea might perhaps, as I have said, have been said to be ousted by the subject matter, so that the offence as then described would be one of strict responsibility: cf. Fraser v. Beckett &Sterling Ltd. (1963) NZLR 480 ; Lockyer v. Gibb (1967) 2 QB 243; (1966) 2 All ER 653 . But the word "wilfully" is part of the description of the offence created by the statute. It makes it indisputable that an element of mens rea in the common law sense is an ingredient of that offence. The meaning today of mens rea as an essential in criminal guilt at common law has probably never been better explained than by Jordan C.J. in R. v. Turnbull (1943) 44 SR (NSW) 108, at p 109 when he said of an accused person:

". . . assuming his mind to be sufficiently normal for him to be capable of criminal responsibility, it is also necessary at common law for the prosecution to prove that he knew that he was doing the criminal act which is charged against him, that is, that he knew that all the facts constituting the ingredients necessary to make the act criminal were involved in what he was doing. If this be established, it is no defence that he did not know that the act which he was consciously doing was forbidden by law. Ignorance of the law is no excuse. But it is a good defence if he displaces the evidence relied upon as establishing his knowledge of the presence of some essential factual ingredient of the crime charged."

When the word "wilfully" forms part of the description of an offence what is meant is an act done with knowledge of all the facts which make it an offence. For the sake of an illustration, suppose that it is an offence to sell bad meat, and that the offence could be committed by a shopkeeper selling bad meat although he did not know that the meat he sold was bad. Yet if the offence were wilfully selling bad meat, then surely no offence would be committed unless the accused knew the meat was bad (or knowing that it might be bad had refrained from examination or inquiry). That would be because, using the words of Jordan C.J., the badness of the meat was an "essential factual ingredient of the crime charged". The accused could not be guilty if he had honestly and reasonably believed the meat he sold was fresh and suitable for human consumption. In such a case it could be said that the word "wilfully" introduced mens rea. It is equally satisfactory to say simply that it formed part of the definition of the offence. Similarly in the present case, the offence is wilfully demanding or receiving as rent a sum which was "irrecoverable". The contrast between the absolute civil obligation to refund an excessive amount (s. 56) and the criminal offence of wilfully demanding or receiving an excessive amount (s. 56a) is illuminating. The adverb "wilfully" must qualify not merely the verb "demands" or "recovers", but those verbs used in relation to their object with its adjectival description. It is wilfully demanding or recovering what? - a sum which is "irrecoverable" because demanded or recovered as rent in respect of a house in respect of which a notice fixing the maximum rent is in fact in force. That is an "essential factual ingredient of the crime charged". (at p109)

16. If the word "wilfully" be given the meaning and effect that I think it has in this context, then an honest mistake as to the existence of any element essential to the offence is a defence. I turn here to the passage in the judgment of Napier C.J. in Davies v. O'Sullivan (No. 2) (1949) SASR 208 on which in this case so much was made to turn in the Supreme Court. The learned Chief Justice, speaking of a section in similar terms in the Landlord and Tenant (Control of Rents) Act, said (1949) SASR, at pp 210-211:

"The function of the word 'wilfully' in s. 27 (2) is to impose upon the prosecution the onus of proving something in the nature of mens rea. The natural meaning in this context is that the act was done intentionally, not by accident or inadvertence, but so that the mind or will of the actor goes with the act. When the prosecution has proved that the money was received as rent and that it was irrecoverable under the Act, I think that the mens rea required is proof that the money was so received intentionally and without any honest belief in a state of facts which would have made the receipt innocent."

I see no reason to cavil at all at that statement. It seems to me that it exactly covers the present case and decides it in favour of the appellant. I do not think this statute is in such absolute language as to throw upon an accused the burden of exculpating himself by proving an honest and reasonable mistake on his part: see Maher v. Musson (1934) 52 CLR 100 . Rather I regard the word "wilfully", as Napier C.J. apparently did, as requiring "proof that the money was received without any honest belief in a state of facts which would have made the receipt innocent". (at p110)

17. In some cases of statutory offences, when these are couched as absolute prohibitions, an accused who relies upon a mistake as an exculpation must in the first place - using the words of Dixon J. in Proudman v. Dayman (1941) 67 CLR, at p 541 -

"make it appear 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 and that on those grounds he did so believe".

But, when all the evidence is in, the question in every criminal case is has the prosecution proved, beyond reasonable doubt, that the offence charged was committed. And when the offence charged is not a contravention of a prohibition expressed in absolute terms, but is acting "wilfully" or "knowingly" or with some specific intent, then the onus on the prosecution includes proof of these ingredients of the offence. (at p110)

18. It is of interest that in Halsbury's Laws of England, 3rd ed. (published in 1955), vol. 10, p. 2838 it was said that

"when the existence of a particular intent or state of mind is a necessary ingredient of the offence, and prima facie proof of the existence of the intent or state of mind has been given by the prosecution, the defendant may excuse himself by disproving the existence in him of any guilty intent or state of mind, for example, by showing . . . that he had an honest belief in the existence of facts which, if they had really existed, would have made the act an innocent one".

But this statement has been amended in the Supplement to read:

". . . the defendant may excuse himself by tendering evidence showing that he did not have, or raising a reasonable doubt whether he had, any guilty intent or state of mind".

That accords with general principle. (at p111)

19. There are in the reports many statements that in cases in which a person who does a prohibited act is nevertheless exculpated because of a mistaken belief, the exonerating mistake must be both honest and reasonable. These statements are a repetition of a sentence in the judgment of the Privy Council in Bank of New South Wales v. Piper (1897) AC 383, at pp 389, 390 that

"the absence of mens rea really consists in an honest and reasonable belief entertained by the accused of the existence of facts which, if true, would make the act charged against him innocent". (at p111)

20. Sometimes a statute expressly insists that a mistaken belief will only exonerate from its prohibitions if it be a reasonable mistake. This is so for example in some cases of offences against girls below a stated age. It is so too in some provisions of the Criminal Codes in some Australian States: see the discussion of s. 24 of the Criminal Code of Western Australia in two articles in the University of Western Australia Law Review, vol. 5 (1962), pp. 229-256. But, except when reasonableness of a mistake is thus an express statutory requirement, it is not I think necessary to read the remark of the Privy Council or its subsequent repetitions as requiring that a mistaken belief of fact can only be an exoneration if it be both honestly held and also reasonable in an objective sense. I incline to the view - expressed by Lord Goddard in Wilson v. Inyang (1951) 2 KB 799 and expressly followed by Haslam J. in Donnelly v. Commissioner of Inland Revenue (1960) NZLR 469 - that the reasonableness of the belief is merely a factor in deciding whether or not it was honestly held: cf. R. v. Nundah (1916) 16 SR (NSW) 482, at pp 489, 490 ; and see Edwards, op. cit. pp. 48, 49; Glanville Williams, Criminal Law General Part, 2nd ed. (1961), pp. 203, 204. However, in view of the magistrate's findings the question can be by-passed in this case. (at p111)

21. This case is not one of "wilful blindness", as it has been called, as Davies v. O'Sullivan (No. 2) (1949) SASR 208 was. The appellant had not, realizing that he might be in fault, recklessly refrained from proper inquiry. (at p112)

22. I should add too that this case is not one of the contravention of a seemingly absolute and strict prohibition. The question here is not really whether the appellant exculpated himself by what has been called a "Proudman v. Dayman defence": It is whether the Crown proved the offence with which he was charged with the precise ingredient of mens rea imported by the word "wilfully". (at p112)

23. With the above matters out of the way, I come now to the proposition which was in the forefront of the argument for the Crown. The appellant, it was said, was relying on his ignorance of the law: and that is no excuse. The words of Napier C.J. as to the word "wilfully" meaning "without any honest belief in a state of facts which would have made the receipt innocent" were dismissed as inapplicable because the appellant, it was said, had had a mistaken belief on a matter of law not in a state of facts. (at p112)

24. To deny that ignorance of law does not excuse those who break the law would indeed be a heresy. The doctrine relied upon by the Crown is usually cited as a Latin maxim, either as "ignorantia iuris non excusat" or in some Latin variant of that wording. And commonly a contrast is made, as it was made in Roman law, between ignorance of fact and ignorance of law. From Hale, or earlier, until Austin, Salmond and today the rule has been stated by writers on criminal law and jurisprudence, and with it various explanations or justifications of it. These have been offered because the rule itself can have harsh effects by cutting across the basic doctrine of the common law that a man is not to be condemned as a criminal unless he had a guilty mind, mens rea. (at p112)

25. The maxim was for centuries commonly stated as the counterpart of a presumption that every man knows the law, or, as it was sometimes and more understandably put, that he is bound at his peril to do so. Plowden's report of Brett v. Rigden (1568) Plowd 340, at p 342 (75 ER 516, at p 520) quotes counsel as saying:

"It is to be presumed that no subject of this realm is miscognizant of the law whereby he is governed. For ignorance of the law excuses none."

Hale said in 1680 that

"every person of the age of discretion is bound to know the law, and presumed so to do; ignorantia eorum quae quis scire tenetur non excusat": 1 P.C. 42.

Blackstone repeated this, saying that

"a mistake in point of law, which every person of discretion not only may, but is bound and presumed to know, is in criminal cases no sort of defence": Comm. IV, 27. (at p113)

26. The statement that everyone is presumed to know the law is now strongly discountenanced - e.g. in Kiriri Cotton Co. Ltd. v. Dewani (1960) AC 192 - on the ground that it is obviously untrue that everyone does know all the law. But I doubt whether this was really put forward as a presumption of fact, rather it was an irrebuttable presumption of law, praesumptio iuris et de iure. It meant no more really than is involved in the rule itself, that no one is to be excused for wrongdoing on the ground that he is ignorant of the law; but it was a comfortable and convenient explanation. Sir James Fitzjames Stephen wrote in 1882:

"As regards knowledge of the law the rule is that ignorance of the law is no excuse for breaking it, a doctrine which is sometimes stated under the form of a maxim that everyone is conclusively presumed to know the law - a statement which to my mind resembles a forged release to a forged bond": History of the Criminal Law, vol. ii, p. 114.

Nevertheless the rule that ignorance of the law is not an excuse has been called, and happily called, "the working hypothesis on which the rule of law rests in British democracy": per Scott L.J. in Blackpool Corporation v. Locker (1948) 1 KB 349, at p 361 . It applies in respect of statute law just as much as to the common law, and in some civil proceedings as well as in criminal cases. Its main justification is expediency.

"Every man must be taken to be cognizant of the law; otherwise there is no saying to what extent the excuse of ignorance might not be carried. It would be urged in almost every case."

So said Lord Ellenborough in Bilbie v. Lumley (1802) 2 East 469, at p 472 (102 ER 448, at pp 449-450) : that was a civil case for the recovery of money said to have been paid under a mistake of law. The strict application of the maxim in actions for money held and received must now be read in the light of the qualifications of it which abstract justice demands and which are recognized in the judgment of the Privy Council in the Kiriri Cotton Co.'s Case (1960) AC 192 . (at p113)

27. All this could almost go without saying. But, as so often happens, both for law and in other branches of learning, the epigrammatic formulation of a doctrine does not suffice to determine its application in particular cases. And it gets no more precision by being put in Latin. What exactly is meant by ignorance of law? Are private rights included? Does the maxim cover not only a complete ignorance of relevant law but a mistake as to its application in a particular case? How exactly is a mistake of law to be distinguished from a mistake of fact? These are troublesome questions. They are discussed in many cases and in textbooks and learned articles: of the last I mention two - Mr. Keedy's "Ignorance and Mistake in the Criminal Law", Harvard Law Review, vol. 22, p. 75 (1905), a most learned and helpful work; and Professor Brett's "Mistake of Law as a Criminal Defence", Melbourne University Law Review, vol. 5, p. 179, which is the most recent discussion that I have seen. (at p114)

28. The first question which arises when it is said that the appellant is not to be excused because of ignorance of law is what exactly did he rely on to answer the charge. It seems to me that what he said was in effect that he was not guilty of the offence under s. 56a as he did not know that in respect of the house a notice fixing the maximum rental was in force; and therefore he could not wilfully have demanded an irrecoverable sum. He did not know there was a notice in force because he believed all fixations of rent had come to an end. This latter belief was unquestionably a mistake as to the law; but it was it seems to me the cause of a mistake of fact, and that is what is relied upon by the appellant. (at p114)

29. The distinction between matters of fact and of law is of fundamental importance in English law. This is partly the result of the separate parts which judge and jury have played in trials at common law. Its importance is perpetuated in cases in which appellate courts are confined to questions of law. It is easy enough to say that when the facts are ascertained the legal consequence is a matter of law. But whether for legal purposes a particular question is to be called one of law or of fact does not depend upon the light of nature. Foreign law, for example, is a matter of fact. Whether there be a law on a topic, whether or not Parliament has repealed an Act, is a matter of fact, although when questioned the question is one for the court not the jury. However, the allegation in the charge that there was a notice in force fixing the maximum rent of the house was an allegation of fact. Evidence was required to established it. A court could not know it, either as a matter in gremio iudicis or by looking at the statute book. (at p114)

30. The distinction which our law makes for its purposes between law and fact, between questions of law and questions of fact, between mistakes of law and mistakes of fact, is thus by no means as easy as might at first be expected. That it is not absolute is illustrated by the many cases said to turn on a mixed question of law and fact. Then there is the choice between two propositions - on the one hand that of Dixon J. in this Court in Thomas v. The King (1937) 59 CLR 279, at p 306 that "a mistake as to the existence of a compound event consisting of law and fact is in general one of fact and not a mistake of law" - on the other hand the rule that, when the facts are ascertained it is a question of law whether a thing or place answers a particular description in a statute: e.g. Hoddinott v. Newton, Chambers &Co. Ltd. (1901) AC 49, at p 56 . In his "Note on Fact and Law" in the Modern Law Review, vol. 26, pp. 619-624, Mr. W. A. Wilson has grappled with this matter of description-questions. The topic is not easy and in my view it is not critical in this case. I am however inclined to think the question whether a sum is "irrecoverable" is a matter of fact. It is true that it is the statute law which makes "irrecoverable""any amount by which the rent of the house . . . is in excess of the maximum rental" (s. 56 (2)). But whether any sum answers that description depends purely on facts. The misconception of the appellant that when he let the house it was no longer subject to a fixed maximum rental seems to me therefore to be aptly called a mistake of fact. But I do not think it necessary for the decision of this case to call the appellant ignorant or mistaken or to classify his mistake as one of fact or of law. That is because, although of course ignorance of the law does not excuse a breach of the law, an essential preliminary question is whether there was a breach of the law. And, unless the accused wilfully demanded or received an excessive sum, he committed no offence. His doing that was, to quote again the words of Jordan C.J., an "essential factual ingredient of the crime"; and he cannot be guilty if he had no knowledge of it. Taking a sentence from the judgment of Darling J. in Frailey v. Charlton (1920) 1 KB 147, at p 153

"it is obvious that he cannot prove the absence of an intent to evade the prohibition better than by proving that he did not know of its existence".

I agree entirely with Bray C.J. when he said,

"No one doubts the proposition that ignorance of the law affords no defence. Equally, however, it is perfectly competent for Parliament to define an offence in terms which make consciousness of wrongdoing an essential element. The question here is whether Parliament has done so by the use of the word 'wilfully'" (1967) SASR 226, at p 232

. The same thing substantially was said by Haslam J. in the New Zealand case Donnelly's Case (1960) NZLR 469, at pp 472-473 which I have mentioned:

"While ignorance of the law does not excuse, it is an element which cannot be overlooked in determining whether certain types of mens rea have been established."

In the present case the prosecution simply failed to prove that the appellant had acted wilfully, so as to be guilty of the offence charged. It is pertinent to quote here from Lord Goddard's judgment in Brend v. Wood (1946) 62 TLR 462, at p 463:

"It is of the utmost importance for the protection of the liberty of the subject that a court should always bear in mind that, unless a statute, either clearly or by necessary implication, rules out mens rea as a constituent part of a crime, the court should not find a man guilty of an offence against the criminal law unless he has a guilty mind."

Here the statute did not rule out mens rea. It expressly wrote it in. (at p116)

31. In conclusion, I think I should notice the suggestion of the Crown that the effective administration of the housing law of South Australia depends upon s. 56a of the Housing Improvement Act being construed as it has been by the Supreme Court. I can only say that if the Parliament of South Australia thinks it necessary that persons who act under an honest mistake and without moral blame should nevertheless be held to be criminals it should I consider make its intention quite clear. I take pleasure in adapting (by altering the word "knowingly" to "wilfully") a sentence of Lord Donovan's from Vane v. Yiannopoullos (1965) AC 486, at p 512 and saying that if a decision that "wilfully" means "wilfully" will make the provision difficult to enforce, the remedy lies with the legislature. (at p116)

32. For the reasons I have given I agree with the Chief Justice that the appeal should be allowed. (at p116)

OWEN J. I agree with the judgment of my brother Taylor and wish only to add a few words. (at p116)

2. The applicant claimed to have acted in the bona fide belief that at the time when he was alleged to have committed the offences charged against him there was no law which forbade him to demand or recover the amount of rent which was in fact charged and which was paid by the tenant to the applicant's agent. But ignorance of the existence of a law of the land affords no defence to a prosecution for a breach of that law. The word "wilfully" where used in s. 56a of the Housing Improvement Act, 1940-1965 (S.A.), requires the prosecution to show that the person charged knew that the amount demanded or recovered by him was demanded or recovered as rent and as rent for a particular house and if, in addition to proof of these matters, it is shown that that house was one in respect of which a notice fixing the maximum rental was in force under Pt VII of the Housing Improvement Act, I think the offence is proved. The prosecution is not required to go further and prove that the person charged knew that there was a law in force which made his act unlawful. (at p117)

3. I do not wish to add anything to what Taylor J. has said on the subject of the form of the information. Each of the counts is bad for duplicity and the convictions should for that reason alone be quashed. (at p117)

Orders

Special leave to appeal granted and appeal allowed with costs. Order of the Full Court of the Supreme Court of South Australia set aside and in lieu thereof order that the appeal to that Court be allowed with costs, that the order and convictions of the Supreme Court be set aside and that the appeal to the Supreme Court be dismissed with costs.