Jamieson v The Queen

[1989] HCATrans 10

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne M85 of 1987

B e t w e e n -

LEIGH GARFIELD JAMIESON

Applicant

and

THE QUEEN

Respondent

Application for special leave to

appeal

MASON CJ
BRENNAN J
DEANE J

Jamieson

TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 9 FEBRUARY 1989, AT 11.28 AM

Copyright in the High Court of Australia

C2T22/l/JM 1 9/2/89

MR J. WALKE~ QC:  If the Court pleases, I appear with

my learned friend, DR I. HARDINGHAM,on behalf

of the applicant. ( instructed by Phillips Fox)

MR D.R. MEAGHER, QC: If the Court pleases, I appear

with my learned friend, MR G.J.C. SILBERT,

on behalf of the respondent. ( instructed by

John M. Buckley, Solicitor to the Director of

Public Prosecutions)

MR WALKER: If the Court pleases, I hand up outlines

of argument to the Court. The grounds are set

out in the application book in the affidavit of

Mr Duggan, at pages 170 and 171 and, as will be

apparent to the Court from the outline of argument,

it is not proposed to argue the ground directed towards

the meaning of the word "corruptly" and I believe

the Court was so notified some time ago.

The application is based, Your Honours, upon

three different and quite discrete propositions.

The first is to be found in paragraphs 1 and 2 of

the outline and basically those arguments are

directed towards a consideration of section 186(2)

of the CRIMES ACT as a starting point. The

circumstances here, if I can encapsulate the fact

circumstances, involved the payment of money

by the applicant to a person who was proved to be

the agent of a principal, that principal being an

entity with which the applicant had business

relations.

The issue that arose,and which paragraphs 1 and 2

of the outline are directed, was that evidence

emerged both in the course of the prosecution case

and in.the course of the defence case that there had

taken place a conversation between the applicant

and the person who we will call the agent for the purposes of this application, wherein it had been agreed that the person would seek and obtain the

assent of his principal to the payment of money	and perhaps just as importantly, that the money
was to be paid as a genuine consideration in a
bona fide transaction for services rendered.

(Continued on page 3)

C2T22/2/JM	2	9/2/89
Jamieson

MR WALKER (continuing):  Now, 186(2) of the CRIMES ACT, Your Honours,

in a sense creates an offence itself because whilst

176 is the substantive offence, 176(2), and the

applicant was proceeded against by way of 176(2) (b)

whilst it is the substantive offence the judge's	'
charge to the jury was in terms that upon proof

of the fact circumstances or elements to be found
in 186(2) the applicant then had the burden of proving

that he had not acted in contravention of section 176(2). So it is a somewhat different situation, it is submitted,

from the ordinary reverse onus of proof that one

sometimes finds in legislative provisions, in that whilst section 176(2) clearly requires proof of an elerrent of intent by use of the word "corruptly"

section 186(2), if applied in the way it was applied

by the learned trial judge, requires not only no proof

of intent but, according to the learned trial judge,

no proof of knowledge of those fact circumstances.	So
the logical starting point for this submission is
section 186(2).
Now, Your Honours, that section provides as follows; I will read subsection (1) first:

In any prosecution under this subdivision it

shall not amount to a defence to show that

any such valuable consideration as is mentioned

in this subdivision is customary in any trade

or calling.

And (2):

For the purposes of this subdivision where

it is proved that any valuable consideration

has been received or solicited by an agent

from or given or offered to an agent by any

person having business relations with the

principal without the asset of the principal

the burden of proving that such valuable consideration was not received solicited

given or offered in contravention of any

of the provisions of this subdivision shall

be on the accused.

Now, broadly, Your Honours, it is submitted that there

is a significant distinction to be drawn between the

concept of intention or intent in a criminal proceeding

and knowledge. That distinction was simply not

drawn by the learned trial judge and nor was it

taken up by two of the learned justices in the

Court of Appeal. In broad terms, what is submitted

here on behalf of the applicant, that whilst it may

be that the plain meaning of the section 186(2) is

to reverse the burden of proof on intent, it cannot
possibly have been intended to reverse the burden

of proof on knowledge.

C2T23/l/VH	3	9/2/89
Jamieson

BRENNAN J:  Are we speaking about the intent and knowledge

with respect to the same subject-matter?

MR WALKER:  Well, yes and no, Your Honour, if I can give that

rather useless answer. The intent that is imported

into section 176(2) is to be found in the meaning

of the word "corruptly" and as has been held,

"corruptly" for that purpose means to intentionally

do the acts which are prohibited by the statute and

what is prohibited by the statute is the giving of

a valuable consideration to an agent in these

circumstances with the expectation that it will

cause that agent to show favour or forbear from

showing favour in relation to any person in relation

to the agent's principal's affairs or business.

(Continued on page 5)

C2T23/2/VH	4	9/2/89
Jamieson

MR WALKER (continuing): So to the extent that "corruptly"

impinges upon each of those elements, the answer	11
1s

. "y es , our onour. II y H I n so ar as corrupt y f " 1

has some extra meaning of wrongfulness or evil

intent then ''No", Your Honour.

BRENNAN J:  What are the elements to which knowledge goes,

do you say?

MR WALKER:	In section 176(2) or in 186(2)?
BRENNAN J:	In whichever way you are putting it.
MR WALKER:	In 176(2), it is submitted that the law is

clear. The prosecution must prove knowledge

of the existence of the agency principal relationship

between the person with whom he is dealing and

a principal must prove knowledge that what is

being conveyed, what is being paid over or handed

over, passed, is valuable consideration; must

prove knowledge that the transaction occurs within

the framework of the principal's affairs or business.

That knowledge is implicit in each of those elements

of 176(2) and that submission is reinforced_by

the rest of words of the section, it is submitted,

because it is clear that all that has to be done

with an expectation which can only come from

an awareness of those fact circumstances.

In 186(2), if the law is as the learned

trial judge directed the jury, then upon proof
merely of an objective fact circumstance, firstly,
that the person to whom the accused gave something

was an agent of a principal; secondly, that the

something that was handed over was, in fact,

valuable consideration, whether or not the accused

knew that - for example, a messenger handing

over an envelope containing he knows not what.

Upon proof that the person handing over the object

proved objectively to be valuable consideration,

was in fact having some sort of business relation

with the principal of this agent, even though

he was not aware of that fact circumstance, and,

finally, and importantly from this applicant's

point of view, proof, merely proof, that the
principal knew nothing of the transaction and,

therefore, had not assented to it and, of course,

that would follow if you were ignorant of the

agency principal relationship, would, in effect,

bring about the commission of an offence by such
a perfectly not just innocent but ignorant person,

a person totally ignorant of all those facts.

BRENNAN J: ls it right to say that in this case the applicant

concededly had knowledge of the relationship of

principal and agent?

C2T24/l/ND	5	9/2/89
Jamieson

MR WALKER:	It 1 S , Your Honour.
BRENNAN J:	And of the valuable  consideration?
MR WALKER:	It 1 S , Your Honour.
BRENNAN J:	And of the business  relationship?
MR WALKER:	Yes, Your Honour.

(Continuing on page 7 )

C2T24/2/ND	6	9/2/89
Jamieson

BRENNAN J:  But did not have knowledge, in your submission,

of the absence of pr inc 1 pal's assent ?

MR WALKER:	Yes and, of course, as l said, there are three seoarate lines of argument here. lt actually goes further,
of course.  There was evidence - as the judgments of
the Full Court from which we are appealing found,
there was evidence fit for the consideration of a
jury which, in our submission, meets the evidential
burden of proof, that there was an honest and reasonable but mistaken belief by the applicant
on that final issue and it is to that point that
the first two paragraphs of the outline are directed.

ln order to keep some continuity about this

l will complete my submissions on that final aspect,

if it suits the Court's convenience, because it

is submitted that in - firstly, let me just explain

this, Your Honours. lt is our contention that,

in the ordinary course of events this submission

does not place any difficult or undue burden upon

the prosecution. It is often said that a matter of

knowledge is peculiarly within the province of the

defence of the accused person to prove, but in the

ordinary course of proof of this sort of offence the

inference of knowledge of each of those elements

that appear in section 186(2) would be clear, as

it was in this instance in respect of the three
elements, if I can call them that, about which there

is no argument, and the circumstances in which those

facts are proved will ordinarily permit the tribunal of

fact to draw the inference of knowledge without any

great difficulty.

Indeed, it is that very circumstance, 1n our

submission, that affords the protection to the
innocent, that if the proof of those objective fact

circumstances is in such a context that it is

abundantly clear that a real question can be raised

about whether the accused person had any awareness	of these fact relations, that is the protect, that	because it is incumbent upon the prosecution
asserting what is, in effect, an offence against the accused to demonstrate a sufficient knowledge or
awareness of the facts that constitute that offence,
that is the protection, in our submission, to the
innocent person who might otherwise be swept up by
such a provision which, as Your Honours may recall
His Honour the Chief Justice described as Draconian in its effect.

C2T25/l/HS	7	9/2/89
Jamieson

:t1R. WALKER (continuing): It would be Draconian if it were to

sweep up that wide circle of people who could fall

into error quite unwittingly, especially when one considers the effect of section 177 which extends the concept of "agent'' for the purposes of this di vis ion

to any parent, husband, wife or child of any agent
or to his partner, clerk or employee. If one

considers the extraordinary implications of the

proof of objective facts with that sort of definition	of "agent 11 one, in our submission, realizes that
the legislature at no time can be seen to have
intended to eliminate the concept of knowledge from the proof of these fact circumstances.

Now, before dealing with that further,

Your Honours, if I can just make the submission that

emerges from paragraphs 1 and 2, and what we say there

is that the ordinary rule which has been traced now

through many, many cases and traced more recently in
the decision of this Court in HE KAW TEH V REG,

demonstrates that the defence, as it is usually called,

of honest and reasonable mistake is, in our submission,

always open when it comes to a fact circumstance which

constitutes the element of a criminal offence and

that once the evidential burden is discharged by the

accused in respect of honest and reasonable mistaken

belief then the legal burden of proof is firmly on

the prosecution and they must disprove.

Now, in our submission, section 186 in its

operations is not exempt from that very well-established

proposition of law and in this instance, there having

been adduced in the course of the case evidence

sufficient to discharge the evidential burden on that

fourth fact circumstances to be found in section 186(2),

the burden lay fairly on the prosecution to discharge.

As is apparent from the judgments - I think more clearly

from His Honour Mr Justice Hampel - this matter was the

subject of submission prior to addresses. His Honour

ruled that the principle had no application and that

the proof of the objective facts were sufficient to

reverse the burden of proof and the jury was accordingly
directed without any regard to the knowledge or belief
of the applicant on any one of those fact circumstances

or elements in section 186(2).

(Continued on page 9)

C2T26/l/BR	8	9/2/89
Jamieson

MR WALKER (continuing):  Now, it is our contention, of course,

that a wrongful shifting of the burden of proof

constitutes a grave miscarriage of justice.

Your Honours, the next part of this application is directed really towards a matter of construction

of the statute and I have already touched upon that

in the earlier part of the submissions. The words,

we submit, in section 186(2) make reference to a

valuable consideration being given to an agent

and the statute goes on to say:

given to an agent by any person having

business relations with the principal.

Clearly, in our submission, the legislators have

turned their minds to an act on the part of the

accused person, a conscious act whereby he gives
to not just some person who is fortuitously an

agent but to an agent having business relations

with a principal - to an agent, rather, by a person

having business relations with the principal, a

specific identifiable principal and that on the

ordinary principles of construction which require

a strict interpretation of penal statutes and

also require that a statute be read in conformity

with the rules of the common law if possible, we

would submit that those words suggest quite

clearly that the accused must be proved to have

had the intention to give that valuable consideration

to an agent as such.

Now, when I say "intention" there - and I take up Your Honour Justice Brennan's question earlier -

the intention here is merely the intention that
derives from knowledge of the fact circumstance,
not the corrupt intention. We are not trying to
contend here that there is not a shifting of the
burden of proof, what we are submitting is that
there must be some knowledge of the concepts

enunciated in these elements or fact circumstances

which will make the voluntary act of giving an

intentional act knowing in the sense of being

aware or being put on notice, being put on inquiry

of the fact circumstances that will give rise to this

shifting of the burden of proof and put a person

into the position where he ought to be called upon

to explain why his actions are not a breach of a

section that is concerned with corruption.

(Continued on page 10)

C2T27/l/MB	9	9/2/89
Jamieson

BRENNAN J:  I do not understand what is meant by the words

"as such".

:t:,,fR. WALKER:  An agent meaning a person known to the donor to

be an agent of a principal; to be an agent in the

circumstances contemplated by section 176.

BRENNAN J:	Was there any doubt about that?
:t:,,fR. WALKER:	Not in this case, Your Honour.  I understand the

point of Your Honour's question. This is merely

illustrative of the general proposition that the

prosecution has to prove from the circumstances

of the giving that there was knowledge. So, there

is not a dispute on that particular issue but we

would submit - - -

BRENNAN J:  But if you did not know that it was a person who

was receiving was an agent of the principal with

whom you were having business dealings, that would

give rise to this problem.

:t:,,fR. WALKER: Absolutely.

BRENNAN J:	But that does not arise in this instance.
:t:,,fR. WALKER:	In this particular case, that does not arise but

what does arise, of course, is the next element and

that is the question of whether there has been assent.

So - yes, I apologize, Your Honours, and I have been

rightly corrected by my learned junior - the proposition

is directed towards an intention to deal with a person

as an agent.

BRENNAN J: Well, now, that is a different question.

:t:,,fR. WALKER:	Yes, it is a different question.
BRENNAN J:	That comes back to the 1corruptly 1 notion.
:t:,,fR. WALKER: Precisely. This is directed towards the question

of what was underlying the basis of the payment?	Was
it a consideration genuinely given for a bona fide
transaction involving provision of services or was

he dealing with a person in his capacity as an agent?

BRENNAN J: Well, how do you derive that from 186(2)?

:t:,,1R. WALKER:  By reason of the wording of the statute that it

does not say, as it would if it were of wider

application, given to a person who is, in fact, an

agent but, rather, given to an agent and that, in

juxtaposition with the words "the principal", in

our submission, contemplates a payment to a person

as an agent, in his capacity as an agent, in other mrds,

identifying him in his role as agent and making a

payment in that context.

C2T28/l/SH 10 9/2/89

Jamieson
BRENNAN J: Giving it to him because he is an agent.

MR WALKER:  Yes, I think that is so, Your Honour. What

we say that means, really, is that the prosecution

has upon it the burden of proving that the accused

was aware that the recipient of the valuable consideration was an agent of a principal cf

the type contemplated by 176(2); that is, a

principal with whom the giver had business

relations and that the agent was a person whom

the giver intended to cause, or expected that

he would show favour or forbear from showing

favour. And implicit, we submit, Your Honours,

in that proposition is that the prosecution must

therefore rebut any suggestion that is raised

on the evidence by the accused, that even if

he knew that the recipient was an agent he did

not intend to give the valuable consideration

to the agent in that capacity.

If that was not so, then in our submission

any gift made to a person who is not perceived

by the donor to be the agent of a principal suffices,

really, to prove the offence under section 186(2)

and where the evidence raises that suggestion

it must be, in our submission, as a matter of

construction of the statute incumbent on the

Crown to prove, not just by chance, the recipient was an agent, not just that by chance he was

the agent of a principal in the relevant sense

at 176(2), but that the accused person was aware

of that. And were that not so, the legislature
could readily have inserted a provision that

proof of these facts, without regard to the state
of mind or knowledge of the accused person was

sufficient to invoke the reversal of the burden

of proof - and they did not do that.

In the same context, Your Honours, we submit

that the use of the word "given" in 186(2) suggests

the conferment of a gratuity and that that is

something to be seen in contradistinction to

a dealing, a bona fide transaction, for full

consideration.

(Continuing on page 12)

C2T2 9 /1 /ND	1 1	9/2/89
Jamieson

MR WALKER (continuing): Thus, in our submission, the

proof of the fact circumstance must be in

such a context as to enable that inference

and once a suggestion is raised by the accused

that he was merely paying proper consideration
then the burden would ordinarily fall upon the

prosecution to rebut that suggestion. Once again,

in our submission, the circumstances in which

these fact circumstances would be proved will

make that readily apparent if it is a corrupt

dealing and warrants the imposition upon the

accused of a burden of proof as is contemplated

by the section.

It is our submission that the learned trial

judge should have directed the jury that the

prosecution carried the burden of proof beyond
reasonable doubt, that the payment was not made
in the circumstances that the evidence suggested -
the evidence elicited in the course of the

prosecution case and offered by the accused, that

is, that it was a bona fide transaction, but

rather the prosecution must prove beyond reasonable

doubt that it was not. But all of that evidence

was treated as irrelevant by the judge in his

direction to the jury on the question of the

reversal of the burden of proof.

Now, Your Honours, we would contend that

having regard to the nature and seriousness

of these offences because at the time the maximum

penalty, I think, was two years, it is now 10 years -

the section finds its way into the CRIMES ACT and

is clearly seen as a crime of some seriousness.

There is also provision for a heavy pecuniary

penalty. So it is a clearly criminal, and

serious criminal offence, not merely a regulatory

procedure. Secondly, the fact that without the

assignment of a subjective element into this

subsection, the provision would have the effect

of creating an offence of strict liability and,	thirdly, having regard to the very strong
presumption that a wrongful intent, or knowledge
of wrongfulness of an act is an essential ingredient in every offence, it is our submission that that element of subjective knowledge, in the absence of a specific provision to the contrary
should be seen as an essential ingredient of
section 186(2).

Now, Your Honours will find, in our submission,

much support for these propositions in the case

of HE KAW TEH and in particular at page 528.

His Honour the ChiP.f Justice, in dealing wi~h t~is

concept of "knowledge" and "knowingly", said this,

just short of half-way down page 528:

C2T30/l/JM	12	9/2/89
Jamieson

Paragraph (b) does not not contain any words - such as "knowingly" - which themselves might

reveal that the Parliament intended to make

the importation of narcotics and offence

only if it was intentionally or knowingly

carried out; in that respect it differs from

par (d) of s. 233B(l), which makes it an

offence to be "knowingly concerned" in the
importation of prohibited imports that

are narcotic goods.

However the provision has to be read in

the light of the general principles of the

common law which govern criminal responsibility.

The relevant principle is stated in SHERRAS V

DE RUTZEN, as follows:

"There is a presumption that mens rea,

an evil intention, or a knowledge of the

wrongfulness of the act, is an essential

ingredient in every offence; but 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."

(Continued on page 14)

C2T30/1/JM	13	9/2/89
Jamieson

MR WALKER (continuing):  His Honour went on then to

consider the House of Lords decision in LIM CHIN

AIK V REG and the Privy Council in GAi'1MON V THE

ATTORNEY GENERAL FOR HONG KONG and also CA.i~ERON

V HOLT. Similarly, at page 530, His Honour, when dealing with what he called the third

consideration, half-way down the page:

A third consideration is that which was

mentioned in LIM CHIN AIK V THE QUEEN:

"It is pertinent also to inquire whether

putting the defendant under strict liability

will assist in the enforcement of the

regulations. That means that there must be

something he can do, directly or indirectly

... which will promote the observance of the

regulations. Unless this is so, there is

no reason in penalizing him, and it cannot be

inferred that the legislature imposed strict

liability merely in order to find a luckless

victim."

It is a matter that has been debated by, I think,

each of the judges in TEH's case. Before importing

the word "knowingly" into the reading of a penal

sanction one looks to the purpose of the sanction

and we would not dispute as a general principle that

if a regulation is aimed not so much at penalizing

individuals who do wrong but ensuring that certain

regulatory procedures are observed, it may be

inappropriate to import the word "knowingly".

But as is contended, and has been already, where a

serious criminal offence is concerned, it must not

be presumed that the parliament intended merely to

find a luckless victim.

DEANE J:  That would all be almost irresistible if what was

involved was what are the ingredients of the offence, but what we are concerned with is the extent to which

the legislature intended to interfere with onus of

proof in the context of secret commission payments

which really is a quite different question, is it not?

MR WALKER:	It is, Your Honour. It is, but the submission is directed towards the construction of section 186(2)
in terms of knowledge.  What is submitted - - -
DEANE J:	Yes, I follow the way you put it, but it seems

to me you cannot approach section 186(2) as if

it were the ingredients of a punishable offence.

MR WALKER:	With respect, Your Honour, in one sense it is possible to do that because it is the proof of those
fact circumstances - if I call then that, rather than elements, because they do not purport to spell out
an offence - but they raise a presumption which is
sufficient for conviction of guilt of section 176(2),

C2T31/l/HS	14	9/2/89
Jamieson

if that be alleged against the accused, upon their

being proved as elements of the crime, and they do

not include the element of corruptly, they do include

an element that is not in section 176(2), namely

whether the assent of the principal has been obtained.

So, in a sense they create an offence and then

put the accused to his proof and to his proof widely,

so that upon proof of those fact circumstances

each of the elements of section 176(2) is apparently

deemed to have been proved even if there be no

evidence of them.	Now, that is perhaps what the
legislature intended.	What we are saying is they

cannot possibly have intended that to apply if

it is apparent on the evidence that a real question

can be raised as to the applicant's state of

knowledge of those elements.

(Continued on page 16)

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Jamieson

MR WALKER (continuing):  So what we are submitting is that

whilst it may be seen as somewhat Draconian, even

in terms of proof of those facts without proof of corruptly, it would be utterly impossible for the

Parliament to have ever contefilplated proof of those

facts without even an awareness of them. It is

the distinction between knowledge, on the one hand,

and intent on the other. And we submit that what

section 186(2) is aimed at is reversing the burden

on intent at its highest and when you look at the

wording of the section you find it does not speak of

proof of knowledge, it speaks of proof that your

actions were not in contravention of one of the

sections in this division. And to be in contravention

you must be acting corruptly and it is the missing

element, so to speak, from 176(2) which is the

substantive offence.

So whilst the submission concedes that the

burden of proof was contemplated as being reversed

upon proof of facts and it is conceded that the word

"corruptly" is not in those fact circumstances, what

we say is that knowledge must have been contemplated

and that it would require very, very clear language,

in our submission, to take out that concept of

knowledge because if that were not so then, really,

a whole range of ordinary activities could lead

perfectly innocent and ignorant people into the

position where, on an inability to discharge a

significant burden of proof, they are guilty of the

offence under section 176(2).

The third line of argument which we deal with

in paragraph 3.5 is directed to matters of honest
belief raised, for example, in para~raph 2.1 and
3.3 but not directed to the point of honest and

reasonable but mistaken belief.

(Continued on page 17)

C2T32/l/BR	16	9/2/89
Jamieson

MR WALKER (continuing):  What we are saying here is that

the existence of the sort of subjective element that

we say must be seen to be an essential ingredient

will make it necessary for the prosecution to rebut

beyond reasonable doubt as part of its burden of

proof in relation to 186(2) any	matter of honest
belief raised by the accused.	Now, this is not

directed towards honest and reasonable but mistaken

belief. There is no question of reasonableness here
because honest and reasonable but mistaken belief

is really a defence issue where the accused has to

discharge an evidential burden. This is really

aimed at mens rea and it is submitted that where

the evidence suggests that there was an honest belief
on the part of the accused about one of those fact
circumstances then the moment that issue arises

it is incumbent upon the Crown to rebut it.

This principle, in our submission, can be

found in BARKER V CALLAGHAN, (1941) VLR, a case

referred to in the list of authorities, Your Honours.

BRENNAN J: Is your proposition - I just want to understand

this - shifting away from honest and reasonable to

honest?

MR WALKER:	Yes.
BRENNAN J:	I am not quite sure why you shift away or what

your proposition - - -

MR WALKER:  I shift away for this reason, that, in our submission,

was affirmative evidence that discharged

there aTe two quite separate lines of inquiry. case, there

the evidential burden but rather there was a silence

on the evidence. The question then arises, can

you presume upon proof of the lack of assent by the

principal that the accused person had an awareness

of that? In other words, are the fact circumstances
as proved merely sufficient if you just prove an

objective fact, you call the principal, "I knew

nothing of this transaction." But let us assume

that contrary to the case here there was simply

no evidence on it and then the accused said in

with the person I was dealing but I assumed he had

his evidence, "Well, I did not turn my mind to it.

the assent of his principal." He can just say

that because of custom in the trade and so forth.

There might be all sorts of reasons why he would assume it.

C2T33/l/MB	17	9/2/89
Jamieson

MR WALKER (continuing): We say that that is a matter of mens rea,

it is not really a matter of mistaken belief. If his honest belief is that there was an assent, albeit not

on reasonable grounds, then he lacks the necessary

guilty mind. It is a different issue, in our

submission.

BRENNAN J: Well, where does this lead? I am afraid I am just

not following where it leads.

MR WALKER:  It is merely the consequence, Your Honour, of the

propositions outlined on the construction point in

paragraphs 3.1 and 3.2. It is merely the consequence.

BRENNAN J: If there is a requirement of proof of an absence

of honest and reasonable but mistaken belief, if that

is the relevant requirement under 186(2), then that

is the relevant requirement.	We do not get to
honesty, simpliciter.

MR WALKER:  No, that is so, Your Honour. That is certainly

true. To that extent, the argument has been put

back to front.

BRENNAN J: It is alternative, is it not?

MR WALKER:	Yes, they are alternatives.
BRENNAN J:	You were saying you would prefer the honest argument

rather than the honest -

MR WALKER:  I would, yes, I would. It is a third line of

submission but we did start with the honest and reasonable

but mistaken belief and perhaps that was not a logical

starting point. Yes, Your Honour is quite right.

BRENNAN J:	So this is the alternative?
MR WALKER:	It is the alternative, yes.  Now in BARKER V CALLAGHAN,

a case which concerned prosecution under a statute

dealing with transport regulation, the respondent,

Callaghan, a bus operator, an operator of a

commercial passenger vehicle and the facts were that

his bus had been engaged for travel by one person who,

in fact, was the agent for a group of other people and

the bus was engaged at a fixed rate. In fact, the

person who engaged the use of the bus had arranged

with those on whose behalf he made the contract to have

a per capita contribution and the Act proscribed the carrying of passengers on a per capita basis, unless

you held the necessary licence.

(Continued on page 19)

C2T34/l/VH	18	9/2/89
Jamieson

MR WALKER (continuing):  I should say the burden of proving

that you had not carried passengers on that basis

lay on the defendant. Now, the proof offered was
that the bus had been engaged for a fee and the
question was, those facts having been established,

was it incumbent upon the defendant to prove that

the passengers were not carried on a per capita

basis. Curiously, the case becomes a little

confused in a way because it transpired the only evidence before the court that they were carried

on a per capita basis was hearsay but the point of

principle, nevertheless, emerges and, in our

submission,one finds, at page 19 of the report,

this proposition:

The authorities show that where by

statute the onus is thrown on a defendant

charged with a statutory offence of
disproving some element in the offence

and the defendant gives an explanation

and proves facts which prima facie point

to the conclusion that he has not acted

contrary to the statutory provision then

he has discharged the statutory onus.	The
onus then rests on the prosecution.

And the Court goes on to consider RV WARD which is also on our list of authorities, Your Honours. It is our contention that these two cases are not

so much concerned with a discharge of an evidentiary

burden but the offering of sufficient evidence to

meet the statutory onus and thus negate the proof

of mens rea.

WARD's case, a decision of the Court of Criminal

Appeal in 1915, concerned a prosecution under the

LARCENY ACT of 1861 which provides that:

Whosoever "shall be found by night having in

his possession without lawful excuse (the

proof of which shall lie on such person)

any picklock key, crow-jack, bit or other

implement of housebreaking" shall be guilty

of a misdemeanour.

The proof offered was that the appellant was found

within the appropriate hours to be found by night;

that he did have implements which, in law, were capable

of being described as implements of housebreaking and

then, it was said, the proof lay on him. What the

Court said at page 697, in the judgment of Lord Reading:

Therefore, one question in this case was

whether it was the intention of the appellant

to use this chisel and screw-driver for the

purpose of housebreaking, and it was for

C2T35/l/SH	19	9/2/89
Jamieson

the appellant to satisfy the jury that, in the words of s. 58, he had a "lawful

excuse" for being in the possession of

these tools. It was stated by the

appellant in his evidence and not disputed

by the prosecution that he was a bricklayer.

That being so, and the tools being admittedly

bricklayers' tools, the appellant had

established prima facie that had a lawful

excuse for being in the possession of the

tools, and the onus was shifted on to the

prosecution to prove to the satisfaction

of the jury, if they could, from the other

circumstances of the case that the appellant

was not in the possession of the tools for

an innocent purpose but for the purpose of

housebreaking.

And goes on to say that they should have been so

directed.

Now, we submit, Your Honours, that there has

therefore been a long and consistent line of authority

establishing the proposition that once a statutory

burden is shifted to an accused person, then mens rea

is not thereby dispensed with and once the evidence

raises che suggestion that the subjective element,

as far as the accused is concerned, is very much in
dispute then the prosecution lies on the Crown to

prove it.

(Continued on page 21)

C2T35/2/SH 20 Q 9/2/89

Jamieson

BRENNAN J: Can I just say that my copy of WARD has a red

sticker next to it, "Not followed in PATTERSON

in 1962". Have you seen that authority at all?

MR WALKER:  I apologize, Your Honour. I was not aware

of that. We shall arrange to deal with that

straight away. No, I was not aware of that.

BRENNAN J:  (1962) 2 QB.

MR WALKER: It may be, of course - the English authorities

do not seem to embrace this principle quite as

strongly as the Australian courts and, in our

submission, that line of reasoning, in anv event,

is entirely consistent with the judgment in

TEH's case and TEH's case canvassed most authorities

on this question of the reverse onus of proof

and whilst WARD was not considered it is our

submission that the judgments in TEH's case make

it clear that that principle would be applied

here.

BRENNAN J: But WARD's case seems to go to the extent

of saying that the onus is discharged by showing

a prima facie explanation.

MR WALKER: 

Yes, which is why we see it as going to the

negation of mens rea that, in other words, proof
of objective fact circumstances may be sufficient
given the context in which they are proved but
the moment the accused raises a suggestion it

seems on WARD's case he discharges that statutory

obligation.

BRENNAN J: 

And the difference between the onus on such

an interpretation and the evidentiary onus to

raise a d~fence seems very slim indeed, does

it not?

MR WALKER: It is slight but it seems to be a real distinction

because the evidential burden borne by an accused

This case seems to have gone to intention, not	is really to raise evidence of a mistaken belief.
a mistaken belief in a state of facts. Those
are the submissions, Your Honours. The point
is really a relatively short one. We emphasize
again that the difference between knowledge and
intention is critical, in our submission, in
this case and that it is incumbent always upon
the prosecution to prove, even if it is by inference
from fact circumstances, a knowledge or awareness
of relevant fact circumstances which have the
effect of either reversing the onus of proof
or creating an offence for practical purposes.

C2T36/l/ND	21	9/2/89
Jamieson

MR WALKER (continuing): There are no real difficulties for the prosecution because in the ordinary course of

events the proof of fact circumstances allegedly
constituting a crime is in a context from which an

inference of knowledge is readily drawn. If, for

example, one of those persons that I mentioned

earlier - the innocent messenger, the person paying

a wife of a person who is later proved to have been

an agent of a principal with whom the giver has had

some business relation - the mere proof of those

facts in this context would protect them from the

Draconian effects of this section because it would be
apparent knowledge had not been proved. That will

not be so if the law is as it was found to be by

the learned trial judge and the majority in the

Court of Criminal Appeal in Victoria, the Full Court

of the Supreme Court of Victoria.

In any event, in our submission, we do not have

to call in aid really that sort of proposition because
it is consistent with the reasoning in all the judgments

in TEH's case that unless expressly excluded, the

concept of knowledge or awareness - or at least being

in a circumstance where you are put on inquiry is to be

read into statutes that involve actions on the part

of a person where it is quite clear those actions

must be voluntary and therefore acts accompanied by
knowledge or awareness. And that is to be found in

the judgments.

In any event, we say, even if those submissions

were not soundly based here once the applicant

raised, as he did, evidence fit for the jury's

consideration and which, in our submission, clearly

discharged the evidential burden on a significant
fact circumstance, then it was clearly on all

principles, regardless of what the statute purported to do by way of reversal of onus of proof, i:ncumbent upon the prosecution to deal with that fact

circumstance and prove that there was no such honest

and reasonable belief in a mistake of fact. Because	it has been fundamental,in our submission,for a
long, long time that a person who acts on a reasonable
honest mistaken belief of fact and then acts in contravention of a prohibited act, he cannot be seen to be consciously doing it and is therefore not liable to punishment. Those are our submissions, if the
Court pleases.

(Continued on page 23)

C2T37/l/BR	22	9/2/89
Jamieson

MR MEAGHER:  If the Court pleases, I will hand up an

outline of our submissions which include

what we wish to say on the issue of the meaning

"corruption", but that is not a matter that

has been pursued and therefore the outline

goes further than is necessary, nevertheless

it is structured in a way that I would wish

to take the Court to it. Before I do that,

I would like to take the Court to just how this

matter was put to the jury by the trial judge

on this issue. To do that it is necessary to

tell the Court exactly what the defence was that

was being raised so far as it related to thi~

issue.

What the appellant said, both in many

interviews, which were placed before the
court and in his evidence, was that he had paid
a percentage of moneys received from the
principal in return for services rendered by the
agent; those services being services outside

the principal's line of business. So what he

was saying was that the payment was made not

for the purpose of securing favour in the conduct

of the principal's affairs, but rather was being

paid in return for work the agent had done for

him. As to the belief he said he had as to the

consent or assent of the principal, the belief

was that that matter, namely payment for work

done,had been referred to the chairman of

directors of the principal and that the chairman

had said it was all right for that payment to be

made. At no stage did he express, either in the
interviews he had with the police officers or

in his evidence, that he believed the

principal, through its chairman of directors,

assented to payments being made for other than

that purpose.

That was all put to the jury by the trial

judge inhis charge and it was put quite specifically

that if he had an honest and reasonable belief

that the chairman of the board of directors had

assented to the payment then there would be no

intent to corrupt on his part. You will find

that at page 117 of the trial book where it

sets out the charge. You will see half-way

through the first paragraph the trial judge, and this is only one of several places he deals with it, sets out a conversation and then he says:

C2T38/l/JM	23	9/2/89
Jamieson

MR MEAGHER (continuing):

Did Jamieson honestly and reasonably

believe at that stage that Bunning would

speak to the chairman about the reasons

for the payment and seek approval? -

the reasons being, according to Jamieson, payment

for work that Bunning had done for him -

If he did, then an intent to corrupt

would probably be far from his mind,

one might conclude. The Crown disputes

that such a conversation took place in

February 1981. However, the absence of

a conversation still requires you to be

satisfied as to Jamieson's intention at

the time he offered the payment.

Now the matter had been developed and is developed

further by the trial judge because the Crown

contested whether Bunning had done any work that

deserves such payment, that was specifically attacked,

and that was an issue that went to the jury too,

that it would be quite wrong to say that the trial

Jamieson had an honest and reasonable belief that judge did not leave to the jury the issue of whether leave that to the jury.

So, we are not concerned, in this case, with

interpreting section 176(2) to import into it, as

indeed we would concede should be imported, a defence

of an honest and reasonable belief.	We accept
that that is there. The trial - - -

BRENNAN J:	In section 186(2)?
MR MEAGHER:	In section 176(2). It is there. Section 17~~

in terms requires proof that the accused made the

payment with an expectation that he would receive

favour, or favour would be given. That must mean,

and was interpreted by the trial judge as meaning,

and by the Crown as meaning, that he had at the time

of making the payment an intent to secure favour.

It was a live issue in the trial. It was an issue

put plainly to the jury. It had to determine it

and obviously, if he had a belief otherwise, if at

the time of making the payment he believed that he

was paying it for services, then that element in

the offence would not have been made out. In

fact, you do not have to go to PROUDMAN V DAYMAN,

or any of those cases for it, because it would

directly negate the very element of the offence.

C2T39/l/HS	24	9/2/89
Jamieson

BRENNAN J:  Are you saying that section 186(2) played no

part then in the -

MR MEAGHER:  Not in the determination of that element

of the offence. Section 186(2) is solely concerned
with where the onus of proof lies. It has got
nothing to do with what the element of the offence

is. My learned friend, in his submissions, has

put it that if you prove the elements - the

conditions in section 186(2\ you have thereby

proved the offence.

(Continued on page 26)

C2T39/2/HS	25	9/2/89
Jamieson

MR :MEAGHER (continuing): In our submission that is not so.

All that has happened when you prove those

conditions in section 186(2) is that you place

before the jury the offence under section 176(2)

with an onus on the accused to avoid those

elements as specified in section 176(2). The

conditions in section 186(2) simply produce that

result, they do not produce a presumption of proof

of section 176(2).

BRENNAN J:  Well, are you saying then that the onus then

shifts to the accused to disprove the elements in

176(2).

MR MEAGHER:  Yes, because that is what it says. Under

section 186(2) it says:

the burden of proving that such valuable
consideration was not ..... in contravention

of any of the provisions of this subdivision

shall be on the accused.

BRENNAN J: Well, the result then of 186(2) is this, let

the conditions of 186(2) be proved, let the

indictment be for an offence under 176(2) and

the Crown has discharged its onus.

MR MEAGHER:  No, sir, then the onus is on the accused.

BRENNAN J: That is right, the Crown has discharged its onus.

MR MEAGHER: 

It would not lead to an automatic conviction.

BRENNAN J: 

Why not?

MR MEAGHER: 

Because the material that the Crown has placed

before the court might in itself be sufficient for
the accused to say, under section 176(2) - - -

BRENNAN J:  Yes, the accused may be able to do it by reference

to the Crown's case but provided the elements in 186(2) are established there is no residual onus

on the Crown?

MR MEAGHER:  No. No need for the Crown if it was so minded

to produce any more evidence.

BRENNAN J:  That is right.

(Continued on page 27)

C2T40/l/MB	26	9/2/89
Jamieson

MR MEAGHER:  Although normally the Crown would, particularly

where, as in this case, there have been many

interviews of the accused and his explanation is put

forward at considerable length and the Crown would

naturally meet it, because all we are speaking about

at the end is where the onus is lying. We are not

talking about what the jury has to determine when

it retires. The jury has still to be satisfied

beyond reasonable doubt of the elements of the

offence and that means, in this context, that the

payment was made with the relevant expectation of

the accused at the time.

BRENNAN J:  But the Crown does not have to prove that,. once it

proves 186(2).

MR MEAGHER:  For there to be a conviction, it has to be

established.

BRENNAN J:  For there to be a conviction, all there has to be

established is 186(2) and an absence of a discharge

of the onus by the accused.

MR MEAGHER:  Yes, but once you have, as we have here, the material

before the Court which contains the accused's

explanation, then the jury have to be satisfied of it

beyond reasonable doubt and that is how they were

so directed here. They had to be satisfied beyond

reasonable doubt of each of the elements.

BRENNAN J: Well then, the reversal of onus is meaningless.

MR MEAGHER: Well, each of the aspects of what the accused said

were in issue. AB to whether or not he had made the

payment in return for services as distinct from an

expectation of favour was in issue, and the arguments

were put upon those issues. The jury were told that

the accused carried the onus of proof on the
balance of probabilities in respect of that but they

still had to be satisfied at the end of the day that

the element was made out.

BRENNAN J: Sorry, I do not follow that.

MR MEAGHER:  This was a case where Mr Jamieson had spoken to the

police officer on numerous occasions and at extraordinary
length, putting down the whole of his explanation as to
what occurred and it is in the course of that

explanation that he asserted the payment was made in

return for services, not in the expectation of

favour and it was in that context that he said he

believed that Bunning had told him that the chairman

had approved that payment being made. All of that

was placed before the jury before any question of

change of onus arose.

C2T41/l/VH	27	9/2/89
Jamieson

MR MEAGHER (continuing): At that point the jury had

before it, from an evidentiary point of view,

the explanation of the accused asserted in those

interviews and had to determine whether it rejected

that explanation or not. He bore an onus but

the onus in the circumstances of this case was

in part discharged, if you wish - put it that

way - by the very conduct of the Crown case in

that it had put the material forward. And then,

of course, said it was wrong by way of argument.

The jury was instructed, directed, at the

end of the day it had to be satisfied of each

of the elements that are in section 176(2) and

that meant the rejection - it had to be satisfied

it should reject that explanation. It was told

in respect of that that the accused carried the

onus so that if they were not satisfied on the

balance of probabilities of that explanation
then they could be satisfied of the element and

I am really putting no more than that; that is how they were directed and that was a proper

direction.

BRENNAN J:	I understand that to mean that if the jury are not satisfied on the balance of probabilities
that the accused explanation is true they should convict.

MR MEAGHER: Yes, and that is what we would say section 186(2)

is directed to achieve. But it is not to say

that proof of the elements under section 186(2)

is proof of the offence. You could have that.

I mean, you could have section 176(2) saying simpliciter

within its terms that onus of proof will rest

on the accused. Section 186(2), in fact, is

far narrower than section 176(2). It relates

to a much narrower class of person. Unlike

section 176(2) the person who it affects or who

it may affect has to be a person who had business

relations with the principal whereas, generally,

this offence can be committed by people whether
they had business relations with the principal

or not.

(Continuing on page 29)

C2T42 /1 /ND	28	9/2/89
Jamieson

MR MEAGHER (continuing):  So sectin 186(2) is much

narrower in its scope and is reversing the

onus of proof in that particular circumstance

only. That is why, we would say, that proof

of the elements under section 186 ( 2) is not

simpliciter proof of the offence under

section 176(2) because the accused has to contest the elements under section 176(2)

and that may mean a much wider contest. He

would not, for example, discharge it by saying,

"Well, I didn't have business relations with
the principal." If he went into evidence and

sought to pi JVe that alone as being his escape,

he would not escape section 176(2) if the

elements were otherwise established. So,

section 186(2) is a provision that is a

mechanical provision in a sense such as relating

to a particular class of people in a particular

situation. But once it is established, it then

triggers a reversal of the onus of the more

general offence of section 176(2) and he has

to discharge the onus in respect of that more

general offence .

So, we would, in those circumstances, say

that the proof of the elements in section 186(2)

is not proof of the offence, as my learned friend

submitted. It does no more than change the onus

of proof for a particular class of people.

. If I could then turn to our submissions. As we say,paragraph 2 did relate to the question of

corruption, which my learned friends have not

pursued. In paragraphs in 3 and 4 we follow that

on by putting that although these offences are

called secret commissions, secrecy is not in

fact an element of them. That is under section 176(2).

The offence could obviously be breached openly:

a person could announce to a principal that he

is proposing to corrupt the principal's agents

if the principal does not do as he says, or

not do something he likes, and the mere fact that
he announced his intention ahead of time would
not mean that these offences would not be committed.

Therefore, it would not be a defence for an

accused to say, "I believe the principal knew that

I was going to make the payments." What the

accused would have to establish if he wished to

rebut the corrupt element in the offence would

be that - one thing he could do to rebut it

would be to show that the principal approved of

the payment for the particular purpose that it

was made, that it was truly made.

C2T43/l/JM	29	9/2/89
Jamieson

MR MEAGHER (continuing): There may be some cases where that

could be done because it may be that the business

affairs of the principal are arranged in such a way

that the principal contemplates that its agents will

receive a commission from a third party in respect of

attending to the principal's affairs, in which case,

a corrupt element would not be present. But the

type of consent or assent that would be needed to

rebut the element of corruption would necessarily

have to be a true assent, an assent to the payment

being made for the very purpose they are made and not

to payment being made for a false purpose.

Now, that might be a little different under

section 186(2) because section 186(2) is a section

that, in our submission, is dealing with a particular

factual situation which, if it occurs, the legislature

has decided the onus of showing that the payments were

proper rests on the accused, and if we are right about saying that then it is sufficient, the reversal of the

onus would not occur if there was assent to payment

simpliciter irrespective of the payment's purpose.

It would then be for the Crown to show that the assent was misconceived.

In our submission, that is a sound reason for defining section 186(2) as being objective in its

scope and as setting down a criteria which, if

satisfied, would lead to the reversal of the onus.

The final thing we would say on that is that if

section 186(2) was to be given the interpretation

which my learned friend contends, namely, that one

had to establish that the agent believed there was

no assent by the principal - and the Crown had to

establish that - then one would be in a position

where the Crown is proving the offence under

section 177(2). There would be little left for the

Crown to prove because that would necessarily mean

the payment was being made in secret and, from

an evidentiary point of view, once the payment is

made in secret, the inference arises that the payment
was made corruptly.	So if my learned friends are

right in what they are putting, the reversal of the

onus of proof, in our submission, has got no scope to

play at all.

(Continued on page 31)

C2T44/l/BR	30	9/2/89
Jamieson

MR MEAGHER (continuing):  That is why, in our submission,

the Full Court was right to say, "Well, when you

look at section 186(2) it simply speaks of the

assent, it does not introduce any concept of

"knowingly"into that at all. It is a simple state~ent

of criteria and if that criteria is established then

it is to be given its effect." In our submission,

this Court should find that that is the correct

view of the section and that is a proper

interpretation of it. The final matter we would

say in respect of that - - -

BRENNAN J:	Mr Meagher, does that mean this, that if a person having business relationships with a principal
offers a gratuity to an agent, but only on terms that the agent informs his principal and obtains
the principal's consent and the agent informs him
that he has the principal's consent and he
reasonably believes it, he can be indicted under section 177(2) and if convicted his conviction
must stand?
MR MEAGHER:	Yes, if those were the facts,and I am assuming

that on his indictment those facts would be proved,

one would be at a loss to understand how he would

be convicted - - -

BRENNAN J:	Why?
t,fF. MEAGHER:	- - - because the payment would not be corrupt.

I am assuming those facts are found to be true.

If those facts are found to be true then the

jury followed the charge this judge gave, they would

necessary acquit. They would not be worried about

onus of proof because you are putting the proposition
to me on the basis that those are the proved facts,
they are established in the evidence and the

Crown for one would not suggest a conviction

could stand in those circumstances.

BRENNAN J:  Putting it another way. If that were the

evidence that were tendered	against an accused
person the onus would shift	to him to prove his
innocence under 176(2).

MR MEAGHER:  Yes, but if that was the evidence tendered,

and I am assuming those facts you put to me were

tendered and that was the Crown case, one would
expect he would not be called upon to do much in
order to discharge the onus because what you are
postulating to me is a circumstance which discharges

the onus.

BRENNAN J:  Discharges the onus, yes.

C2T45/l/MB	31	9/2/89
Jamieson

MR ME.A.GHER:	What the effect of section 186(2) is, is to say to an accused, "You may have done that. If
that is what you have done, you prove it" and
that is understandable because, again, in the
factual situation you postulated to me, it is
not just the payer who has committed the offence
but it is also the receiver who has committed it
especially if, in fact, did not gain the approval
of his principal.

So, the only two people who would know of that

would be those two, as is the case he:i:e, of course,

as put. So, those are the submissions that we make.

MASON CJ:  Yes, thank you, Mr Meagher. The Court will adjourn

now and resume at 2.15 pm.

AT 12.48 PM LUNCHEON ADJOURNMENT.

T46	UPON RESUMING AT 2:21PM:
MASON CJ: Yes, Mr Walker.
MR WALKER: If Your Honour pleases. Firstly, Your Honours,

I withdraw, with apologies, the reference to

RV WARD. It is quite plain that that has been

disapproved since.

If the Court pleases, references to what His Honour had to say in the course of charging the

jury may be found at page 23 of the application book

where His Honour there set out what he described as:

The general rule in criminal cases

..... the Crown bears the burden of proof

throughout the trial.

And:

The accused man need prove nothing.

And he then discussed the standard of proof.

Then, at page 25, His Honour said this at the

middle of the page:

In general, with these offences, it is

still correct to say that the Crown bears the

burden of proof and must prove each and every
element of the crime beyond reasonable doubt -

His Honour was, no doubt, there referring to a prosecution under section 176(2) where 186 is not

being called upon.

C2T47/l/SH	32	9/2/89
Jamieson

MR WALKER (continuing):  His Honour said:

but the section I read creates an	exception
to the general rule. It operates	in relation
to both the offence of giving and	the offence
of receiving a secret commission.	If the
Crown proves -

and His Honour there sets out those matters outlined

in section 186 and went on to say -

then the burden of proving that such valuable

consideration was not received or given

in contravention of the sections which create

the offences charged rests on the accused.

And he is there referring to the elements of

176(2) which, of course, includes the concept

of "corruptly" and no doubt that is,generally

speaking,perceived co be the central issue.

His Honour then went on at pages 26, 27 and

28      to deal with the operation of that reverse

onus section and he explained, on page 26, that:

there is no issue raised that Bunning was

not an agent of TEA: nor is any issue raised

that the seven cheques did not constitute

valuable consideration ..... that the receiving

was from or the giving was by a person having

business relations with the agent's principal - and explained that -

counsel for the accused do not suggest here

that it has not been proved beyond reasonable

doubt -

His Honour then went on to say that:

the Crown must prove that the receiving

principal - TEA. or giving was without the assent of the This matter is one for you, but it

would seem obvious enough that the evidence

is really all one way in relation to these

three matters.

Then, later on in the charge he said that no

submission was put to suggest that any of those

matters had not been proved and, thus, the jury

could proceed on the basis that the burden of

disproof of the elements of section 176(2) had

shifted squarely to the applicant. So there is

no doubt that the trial proceeded on the basis, not that

the Crown had to prove the elements of the offence charged

at all but that once the Crown proved these discrete fact

circumstances regardless of the state of mind, knowledge
or intention of the applicant, then the burden shifted

to the applicant.

C2T48 /1 /ND	33	9/2/89
Jamieson

MR WALKER (continuing):  Now, Your Honours, it is not to the

point, in our submission, for Mr Meagher to say that

does not constitute the offence, the offence is

still under 176(2), because the reality is that if

a person either fails to or is unable to discharge

the burden of proof thus placed upon him, then he

is deemed guilty of the of fence even though the

Crown has not proved the elements of the offence

itself, but merely the elements in 186. So whilst

it is true technically to say 186 does not create

an offence, in this fact circumstances before the

Court it did create the offence and the burden
was then squarely on the applicant to disprove those

elements of 176(2).

Now, in this instance there was then a huge

difference between the applicant's position as the

jury perceived it to be and as it ought to have been,

as we submit, because the jury was not invited to

consider a fundamental rule of the common law. So

fundamental, Your Honours, that in TEH's case,

although Mr Justice Wilson dissented from the general

proposition that imported knowledge into the

offence under the CUSTOMS ACT of importing,

Mr Justice Wilson nevertheless still held that

on the question of honest and reasonable mistaken

belief, once the evidential burden was discharged

by the accused, the onus fell on the prosecution of

disproving that.

So that is how fundamental this proposition has

been in our system and Mr Jamieson, the applicant in

this instance, was denied the benefit of that. It

is not to the point, in our submission, to say that

later onin his charge, in the context of the applicant

carrying the burden of proof, the issue of honest

and reasonable belief was left. It is true that

the judge left it as an issue although, as my

learned friend concedes, it was not directed to an

element of the offence per se but merely having an

evidentiary bearing upon it; but it was left, but

with the accused carrying the burden of proof which,

in our submission, on this fact circumstance proved

against him, the Crown should have had the burden of
proof.

Now, there is a huge difference and it has long been recognized, in our submission, that the shifting

of the burden of proof in those circumstances brings
about a miscarriage of justice if it is shifted

wrongly. Now, Your Honours, what we have advanced,

in our submission, is a series of propositions which are

directed firstly, in the course in which we have dealt

with them, towards the honest and reasonable mistaken

belief.

C2T49/l/VH	34	9/2/89
Jamieson

MR WALKER (continuing): If that principle applies, then

there is no doubt the Crown had the task,

once the evidential burden was discharged by

the accuse4 of proving that that was not

honestly held or it was not genuine belief.

The second line of submission, Your Honours,

was directed towards the construction of the

statute on its plain meaning and we have, I hope,

addressed sufficiently those passages from

TEH's case which bear upon that construction.

Finally, we address submissions to the mens

rea again in this context. It is true that
these submissions in part depend upon a

recognition that 186, despite what my friend

says about it, really does in effect create an

offence and that, in our submission, is a matter of wide application, general application. These provisions, after al~ are found in, I think, every

State in Australia. His Honour the Chief Justice listed in his judgment those States where similar
legislation is to be found at page 144 of the

application book, and certainly there in New South

Wales we find the same provision, or provision

with the same effect in Queensland, in South

Australia, in Western Australia and Tasmania.

So it is a matter of broad general application and

it is patently clear, in our submission, that

if the law is as the learned trial judge held

it to be and as the majority in the Court of

Appeal in Victoria held it to be, then the

effect will be such that people who have no

knowledge whatsoever and no reason to suspect

an agency principal relationship when they pay

over a valuable consideration to a person who

falls within the definition of an "agent" will
find themselves, although completely unaware

of the likelihood of such a circumstance,

facing a burden of proof which will be impossible

for them to discharge because all they can say

might be sufficient for an evidential burden, is, "Well, I simply didn't know." Whilst that	it is hardly likely ever to be seen as sufficient
for the legal burden of proof on the balance of
probabilities.

That is our submission, Your Honours. It

is not to the point that His Honour left the

issue, as my friend has reminded the Court, of

honest and reasonable belief. He left it in the wrong context; he left it merely in terms of the

accused having the right to prove that he held

some mistaken belief.

C2T50/l/JM	35	9/2/89
Jamieson

MR WALKER (continuing): That is true of every strict

liability offence. If the accused can satisfy

a jury on the balance of probabilities of some

innocent exculpatory circumstance then strict

as against absolute liability offences may be

shown not to be sustainable. But it is quite

a different question from the one that is raised

here in this application which is concerned really

with, on the one hand, what this ruling permits

and, that is, the proof of discrete unrelated

fact circumstances without regard to the accused

person's .:1.wareness or state of knowlege on the

one hand and what ·we si.:bmit is the inevitable

requirement here of proof of some awareness

or knowledge by the prosecution. If the burden

of proof is to shift, it is our submission it

would go to the intent and not to the question

of knowledge.

Now, if we are correct then, in our submission,

it is a question of law of great importance

because whilst there does not seem to be much

reported authority that is probably more, it seems,

for reasons of non-use of the appropriate provisions

rather than any other circumstance. But these

provisions are being used increasingly in all States now and if this decision against which

we are appealing stands then, in our submission,

there is a real risk that injustice will be done.

If the Court pleases.

MASON CJ:  Thank you, Mr Walker. The Court will take a

short adjournment in order to consider the course

that it will take in this matter.

AT 2. 33 PM SHORT ADJOURNMENT

C2T51/l/MB	36	9/2/89
Jamieson
UPON RESUMING AT 2.35 PM:

MASON CJ:  Having considered the well-prepared arguments that

have been presented by counsel, the Court has come

to the conclusion that the decision of the Court of

Criminal Appeal is not attended with sufficient

doubt to justify,the grant of special leave to appeal.

The application for special leave to appeal is

therefore refused.	The Court will now adjourn until
10.15 am tomorrow.

AT 2.36 PM THE MATTER WAS ADJOURNED SINE DIE

C2T52/l/BR	37	9/2/89
Jamieson