McGee v Marinov
[2005] WASC 283
McGEE -v- MARINOV [2005] WASC 283
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASC 283 | |
| Case No: | SJA:1072/2005 | 2 NOVEMBER 2005 | |
| Coram: | HASLUCK J | 21/12/05 | |
| 26 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | KEVIN McGEE MARIN VASILEV MARINOV |
Catchwords: | Quarantine Importation of prohibited goods Fruit and vegetables Complaint of making a false and misleading statement Issues concerning knowledge and intention Effect of finding that the respondent forgot he had the goods Acquittals upheld Turns on own facts |
Legislation: | Criminal Code Act 1995 (Cth), s 6.1 Quarantine Act 1908 (Cth), s 67(1), s 70C(1) Quarantine Proclamation 1998 |
Case References: | Chamberlain v The Queen (1984) 153 CLR 521 Devries v Australian National Railways Commission (1993) 177 CLR 472 Garrett v Nicholson (1999) 21 WAR 226 Glennon v The Queen (1994) 179 CLR 1 Harling v Hall (1997) 94 A Crim R 437 He Kaw Teh v The Queen (1985) 157 CLR 523 M v The Queen (1994) 181 CLR 487 Police v Kennedy (1998) 71 SASR 175 Police v Pfeifer (1997) 68 SASR 285 R v Martindale (1986) 3 All ER 25; [1986] 1 WLR 1042 Shepherd v The Queen (No 5) (1990) 170 CLR 573 Verhoeven v Ninyette (1998) 101 A Crim R 24 Vrisakis v Australian Securities Commission (1993) 9 WAR 395 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
MARIN VASILEV MARINOV
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE NICHOLLS
File No : PE 20364 of 2004, PE 27517 of 2005
Catchwords:
Quarantine - Importation of prohibited goods - Fruit and vegetables - Complaint of making a false and misleading statement - Issues concerning knowledge and intention - Effect of finding that the respondent forgot he had the goods - Acquittals upheld - Turns on own facts
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Legislation:
Criminal Code Act 1995 (Cth), s 6.1
Quarantine Act 1908 (Cth), s 67(1), s 70C(1)
Quarantine Proclamation 1998
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr P G McGowan
Respondent : Mr J R Noble
Solicitors:
Appellant : Australian Government Solicitor
Respondent : Jeremy Noble
Case(s) referred to in judgment(s):
Chamberlain v The Queen (1984) 153 CLR 521
Devries v Australian National Railways Commission (1993) 177 CLR 472
Garrett v Nicholson (1999) 21 WAR 226
Glennon v The Queen (1994) 179 CLR 1
Harling v Hall (1997) 94 A Crim R 437
He Kaw Teh v The Queen (1985) 157 CLR 523
M v The Queen (1994) 181 CLR 487
Police v Kennedy (1998) 71 SASR 175
Police v Pfeifer (1997) 68 SASR 285
R v Martindale (1986) 3 All ER 25; [1986] 1 WLR 1042
Shepherd v The Queen (No 5) (1990) 170 CLR 573
Verhoeven v Ninyette (1998) 101 A Crim R 24
Vrisakis v Australian Securities Commission (1993) 9 WAR 395
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Case(s) also cited:
Nil
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- HASLUCK J:
Introduction
1 This is an appeal against the decision of His Honour Magistrate Nicholls at the Perth Magistrates Court on 16 June 2005 in respect of two matters of complaint arising under the Quarantine Act 1908 (Cth).
2 The respondent, Marin Vasilev Marinov, arrived at Perth International Airport on 4 June 2004 on a flight from Japan, being the end of a journey by air which had commenced in Bulgaria. The respondent completed an incoming passenger card and proceeded to the facilities administered by the Australian Customs Service. Certain events in that part of the airport gave rise to the matters of complaint. The learned Magistrate acquitted the respondent of the two charges in question. I will come to the details in that regard shortly.
3 It will be useful to begin by looking at certain provisions of the Quarantine Act bearing upon the matters in controversy. I note in passing that counsel for the complainant, Kevin McGee, (the appellant in the appeal proceedings), who is a customs officer, referred to these provisions in the course of his opening address at the hearing before the learned Magistrate.
The Quarantine Act 1908 (Cth)
4 Section 67(1) of the Quarantine Act provides that a person is guilty of an offence if the person imports, introduces, or brings into any port or other place in Australia any thing and the person knows that the thing is a disease or pest or a substance or article containing a disease or pest or an animal, plant or "other goods" and the importation, introduction or bringing in of the thing is in contravention of the Act.
5 By s 67(2) strict liability applies to such an offence. However, the prosecutor was of the view at the subject hearing that the provision concerning strict liability did not give rise to any issue in the circumstances of the present case. It seems that counsel on both sides and the learned Magistrate proceeded accordingly, and I will do the same.
6 I note in passing that by s 6.1 of the Schedule to the Criminal Code Act 1995 (Cth) if a law that creates an offence provides that the offence is an offence of strict liability there are no fault elements for any of the physical elements of the offence and the defence of mistake of fact is available. The existence of strict liability does not make any other
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- defence unavailable. These considerations do not bear upon the issues in the present case.
7 It was common ground also at the subject hearing that a proclamation had been made pursuant to provisions of the Act which provided in cl 64 that the importation of fresh fruit and vegetables was prohibited unless a permit from the Director of Quarantine had been provided. Fruit or vegetables are fresh if they are not deep frozen, canned or otherwise conserved or preserved. It was common ground that no permit had been provided.
8 I note in passing that by s 4 of the Quarantine Act the term "goods" is defined to include an animal and a plant and "any kind of moveable property".
9 Section 70C of the Act deals with false or misleading statements. It provides that a person is guilty of an offence if the person makes a statement to a quarantine officer in respect of goods and the person knows that the statement is false or misleading in a material particular.
The nature of the complaints
10 The respondent was charged (PE 0420364) that on 4 January 2004 at Perth International Airport he made a statement to a Quarantine Officer in respect of goods, knowing that the statement was false or misleading in a material particular, contrary to s 70C(1) of the Quarantine Act.
11 This complaint was supported by particulars alleging that in an incoming passenger card dated 4 January 2004 the respondent answered "yes" to the question asking whether he was bringing into Australia "… any food – includes dried, fresh, preserved, cooked, uncooked?" and subsequently stated to a Quarantine Officer that he had nothing to declare other than the food items presented to that Officer, whereas the respondent also brought into Australia approximately 340 grams of apples, 600 grams of citrus fruit and 100 grams of raw walnut meat.
12 Schedule B to the complaint contained further particulars in which the complainant averred that he was authorised to make the complaint. The particulars went on to refer to the respondent's arrival on flight number QF 70 from Japan and his completion of an incoming passenger card ("the statement") in the manner indicated in the complaint. It was then alleged that the respondent produced the statement to a Quarantine Officer on 4 January 2004.
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13 It was alleged in par 5 of Schedule B that the Quarantine Officer asked the respondent: "What type of food do you have?" and the respondent replied: "Sweets in a packet like doughnuts". The Quarantine Officer asked if the respondent had any more food aside from the sweets, "anything that you can eat or drink", to which the respondent replied: "No". The respondent's baggage was then X-rayed. The X-ray indicated that the baggage contained items of possible quarantine concern.
14 It was alleged in par 8 that the respondent was referred to a baggage examination table, where he was questioned by a Quarantine Officer and a Customs Baggage Inspection Officer and stated words to the effect that it was his signature on the statement, he had read and understood all the questions on the statement and he had packed his baggage and was aware of its contents.
15 It was alleged in par 9 that the Quarantine Officer and a Customs Baggage Inspection Officer then examined the respondent's baggage and found, amongst other things, quantities of items which appeared to be apples, citrus fruit and raw walnut meat. These items had not been previously declared to the Quarantine Officer.
16 The second charge (PE 0527517) concerned s 67(1) of the Act.
17 The complainant alleged in a prosecution notice dated 9 May 2005 that on 4 January 2004 at Perth International Airport the respondent imported, introduced into or brought into a port or place in Australia, namely, Perth International Airport, approximately 340 grams of fresh fruit consistent with apples (Malus sp), approximately 600 grams of fresh fruit consistent with citrus sp, knowing that it was a plant or other good in contravention of s 64 of the Quarantine Proclamation 1998.
18 I digress briefly to note that, as originally formulated, the complaint contained an additional reference to 100 grams of product consistent with raw walnut meat. However, the complaint was amended at the subject hearing so as to exclude any further reference to this item.
19 The events complained of were said to be contrary to s 67(1) of the Quarantine Act. The complaint was supported by particulars alleging that the complainant was a customs officer and an authorised delegate of the CEO of Customs to issue the prosecution notice. It was said that on 4 January 2004 the accused arrived at Perth International Airport on Qantas flight QF 70 from Japan. His baggage was X-ray scanned by an Australian Quarantine and Inspection Service ("AQIS") Officer. This indicated that the baggage contained items of possible quarantine concern.
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20 The particulars went on to allege in par 5 that the respondent was questioned by an AQIS Officer and stated words to the effect that he had packed his baggage and was aware of its contents. The Officer examined the baggage and found, amongst other things, approximately 340 grams of fresh fruit consistent with apples (Malus sp) and approximately 600 grams of fresh fruit consistent with citrus sp.
21 It was said that the importation of such items is prohibited by s 64 of the subject Proclamation unless the person has been granted a permit but the respondent did not have any such permit to import the said items.
The nature of the evidence
22 The incoming passenger card completed by the respondent was adduced in evidence. It is in a form familiar to travellers returning to Australia from abroad. It is clear from the nature of the form that a person signing the form is making a declaration to the effect that the information given is true, correct and complete and failure to answer any questions may have serious consequences.
23 In completing the card the respondent noted that the country where he had spent most time abroad was Bulgaria and that he was a resident returning to Australia. He noted that the country in which he boarded the flight was Japan and that his address in Australia was in a street in a suburb of Perth.
24 The prosecution relied also upon evidence given by a Customs Officer, Sharon Aleise Howe, who occupied the position of Inwards Primary Officer at Perth International Airport on 4 January 2004. This required her to process passengers entering the country. She was essentially the first person to be encountered as a person presented their passport and incoming passenger card. She referred to an encounter with the respondent as an incoming passenger and to the fact that she recognised him as a fellow member of a salsa dancing class she had attended. She asked him whether he had read and understood all the questions on the incoming passenger card (known as an "IPC") to which he relied in the affirmative.
25 The respondent was asked about alcohol and said that he had one bottle. Because he had answered in the affirmative in respect of food she directed him to the red station which is for persons with something to declare.
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26 The prosecution adduced evidence also from another Quarantine Officer, Ms Rodaje-Pollard, who was serving as a "Red Marshall". Her job was to identify what kind of food a passenger had to declare. Her practice was that if sweets or chocolates or anything like that was being declared she would write it down on the IPC and then direct the person to the X-ray Officer. She said in her evidence-in-chief that the respondent handed her his IPC. She looked at the declaration and at the "X" opposite number 6 and enquired what food he had to declare. He said: "Sweets like donuts". She asked whether he had any more food but he answered in the negative. She then directed him to the number 3 X-ray line. The handwritten word "sweets" which appears on the subject IPC was written by her.
27 Ms Samantha Bower gave evidence to the effect that her role was that of X-ray Screen Reader at number 3 position. The respondent handed her his IPC and when she asked what he was declaring he responded: "Sweets". When she asked him which bag the sweets were in he responded: "The small black bag and the silver bag". His bags were then put through the X-ray machine. She saw something of interest and pulled the bags to the side. She asked certain questions of the respondent prior to opening the baggage. These questions included queries as to whether he packed his own luggage, whether he was fully aware of the contents of the baggage, and whether the baggage and contents belonged to him. She obtained affirmative answers to these questions. When she opened the black or cabin bag she saw apples and oranges in the bag. She then contacted one of the X-ray Supervisors, Michael Jez. She completed a Seizure Notice in relation to the apples and oranges.
28 Michael Jez was serving as a Supervisor Enquiries Officer. He advised the respondent to bring his baggage up to the Customs area for a full examination. He directed a Customs Officer, Heather Hardy, to complete a full examination of the baggage. A quantity of fruit extracted from the subject bag was placed on the examination table. Mr Jez said in his evidence-in-chief (TS 32):
"At that stage he told me that he had forgot that he had them and after that I advised him that I wanted him to partake in a record of interview."
29 Mr Jez, himself, did not participate in the interview. Under cross-examination, Mr Jez acknowledged that when the respondent said: "I just forgot them" that was the first time in Mr Jez's presence that he (the respondent) had been called upon to make an explanation about the fruit.
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Ms Hardy's evidence
30 Heather Ellen Hardy said in evidence before the learned Magistrate that her role was that of Primary Information Officer and Baggage Officer. She identified a large poster which was said to be posted more than once in the baggage hall at Perth International Airport. This contains photographs of various items including apples and oranges and is headed by the inscription "Declare it to Quarantine". This poster was received as Exhibit 3.
31 Ms Hardy confirmed that she examined the appellant's bags and found a significant amount of fruit being oranges and apples and some walnuts in a bag. She asked him about his IPC and was informed that he understood the card and that he had packed his bags himself and was aware of the contents. When she asked him why he had put fruit in his bag he said: "To eat it on the plane". He acknowledged that he did not have permission to import the fruit.
32 Two photographs were adduced in evidence of the items removed from the respondent's bags. She then conducted a record of interview in the presence of Officer Grasby which was audio recorded in three cassettes tapes. The tape and a related transcript were received in evidence as Exhibits 5A and 5B respectively.
33 Ms Hardy agreed under cross-examination that when the respondent was shown the food items and asked about them his answer was that they were to eat on the plane. He said that he had got them from Bulgaria but forgot he had them, and said also that he would throw them in the bin.
34 I pause to note that in the course of the audio interview this exchange occurred (TS 7):
"DR MARINOV: What I would like to say, that I live for very long time, um, citizen of Australia. I watch TV, I read newspapers and I know what type of food allowed to come in Australia, what type of food is not allowed to come in Australia. Um, on number 6 here is written, um, what I mark as "Yes", um. If there is, um, like food on - - on the - - on the photos shown, obviously this is - - this is food that is not allowed to - - to go inside in Australia and when approached to the officer my suggestion immediately was that this food has to go in the bin. This is what was my - - my answer immediately when - - when the bag came.
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- CO 11650: Okay.
CO 7457: Was that the quarantine officer you said that to, sir?
DR MARINOV: Yeah - -
CO 7457: Yeah
DR MARINOV: - - I said immediately when the - - when the lady came there I said that - - I mean obviously here … (indistinct) … we consider this is spoiled food, this is spoiled food, is not good food, and it is left inside in the small bag which most probably, um, this before I come to Australia I could eat – which has been forgotten there and that's all. But immediately the lady came to find this, the first word that I said, 'Put this in the bin'.
CO 7457: Okay. What - - I'm sorry.
DR MARINOV: I don't have intention to bring this here and eat couple of, um, apples.
CO 7457: Yeah, but - -
DR MARINOV: In fact they - - they're not good to eat them at all."
35 The prosecution also tendered by consent a statement made by Mr Grasby.
36 Counsel for the respondent made it clear that he would not call the respondent to give evidence. The only evidence presented to the learned Magistrate on the defence side was that of John Dermott Linahan who is an engineer. He said that he had known the respondent for 10 years and described him as an honest person. He knew him also to be a Doctor of Engineering. This evidence of good character did not give rise to any cross-examination. Counsel for the respective parties then proceeded to make their closing addresses.
The reasons for decision
37 The learned Magistrate delivered his reasons for decision on 16 June 2005; that is nine days after the hearing of the charges. He commenced by saying this (TS 2):
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- "As to the two charges, the issue in each charge is what might be described as a mental element. That is one of knowledge. The physical elements as such are not in issue."
38 His Honour then went on to say that "with respect to the charge relating to the incoming passenger card" the complaint referred to the respondent knowing that the statement was false or misleading. He said that the "importing charge" refers to the respondent knowing that it was a plant or other goods.
39 His Honour referred briefly to the evidence given by the prosecution witnesses, including a record of interview. In addressing the evidence given by Mr Jez he noted that the respondent's response was that he had forgotten about the fruit. His Honour observed "that response I find was a plausible response".
40 In addressing the evidence of the Customs Officer, Ms Hardy, the learned Magistrate referred to the respondent's assertion that he had the fruit to eat on the plane. His Honour described that as a "plausible explanation" as to why he had the fruit. He noted that it was not a large quantity and that it was a long flight.
41 His Honour went on to say that he found that the respondent had no reasonable motive to hide the fruit and that his explanation of forgetting about the fruit was plausible and therefore was such "that he didn't know that he had the fruit at the relevant time of the questioning, he had forgotten about the fruit, I accept his explanation". His Honour observed also that the fruit was clearly not suitable to eat at the time it was seen by the Customs Officers as it had been spoiled.
42 The learned Magistrate concluded by saying this:
"The prosecution have urged upon me that there is only one reasonable conclusion from all the facts, that is not a conclusion which I find is the only reasonable conclusion open to this Court, and I find that the inference of knowledge is not the only reasonable one that this Court could come to, and therefore in all the circumstances, the defendant is entitled to be acquitted on both charges".
43 The learned Magistrate proceeded to acquit the accused of both charges and awarded costs against the respondent in the sum of $1,700 in respect of each charge.
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Grounds of appeal
44 It was against this background that the appellant instituted leave to appeal and obtained leave to appeal on 25 July 2005 on the following grounds. As to the prosecution notice PE 20364/04 of making a false or misleading statement contrary to s 70C(1) the grounds of appeal are as follows:
"1. The learned Magistrate erred in law in posing as a test whether the offence had been made out as to the 'mental element' when the test was:
a. firstly, whether the statement the subject of the charge had been made as alleged;
b. secondly, whether the statement as made was false or misleading in a material particular, and
c. thirdly, whether the statement was made intentionally.
2. The learned Magistrate erred in law in finding that the charge related to the Incoming Passenger Card (the IPC) when the charge was not the declaration on the IPC but the statement made to Quarantine Officer Rodeje-Pollard.
3. Having found that the statement made to Quarantine officer Rodeje-Pollard was as alleged and having found, apparently, that the statement was false or misleading in a material particular, the learned Magistrate erred in fact and in law in concluding that as the accused had 'forgotten' about the fruit, that that operated as a complete defence when the facts were and he should have found that:
a. the accused admitted that he was aware of the contents of his bags;
b. the accused had packed his own bags;
c. in answering 'Yes' to Question 6 on the IPC, the accused was asserting that he had thereby declared all food in his possession including the apples, oranges and walnut meal,
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- and that as a matter of law, should have found that the statement was made intentionally, knowing that the statement was false or misleading in a material particular."
45 As to prosecution number 27517/05 of importing a prohibited plant or goods into Australia contrary to s 67(1) of the Quarantine Act the grounds of appeal are as follows:
"4. The learned Magistrate erred in fact and in law in concluding that as the accused had 'forgotten' about the fruit, that that operated as a complete defence when the facts were and he should have found that:
a. the accused imported the fruit into Australia;
b. the accused had packed his own bags;
c. the accused admitted he was aware of the contents of his bags;
d. the accused, on his own evidence, contended that in answering 'Yes' to Question 6 on the IPC, he was declaring all foods in his possession including the apples and oranges
and that as a matter of law, should have found the accused had knowingly imported the fruit."
46 Before turning to the grounds of appeal, it will be useful to look briefly at the legal principles bearing upon an appeal of this kind.
Legal principles
47 Appeals from courts of summary jurisdiction were formerly governed by the Justices Act 1902 but are now covered by Pt 2 of the Criminal Appeals Act 2004 (WA). By s 14 of the Criminal Appeals Act the Supreme Court may dismiss or allow the appeal, or set aside or vary the decision, or remit the case for rehearing. Further, if the Court considers that no substantial miscarriage of justice has occurred, it may dismiss the appeal notwithstanding that a ground of appeal has been decided in favour of the appellant.
48 By s 39, an appeal court must decide the appeal on the evidence and material that were before the lower court, but this does not prevent the
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- consideration of any evidence that the lower court refused to admit. By s 40 an appeal court may admit any other evidence.
49 A magistrate is generally required to set out the relevant findings of fact and the reasons for his or her decision. The reasons must disclose adequately the intellectual process which has resulted in a particular determination: Garrett v Nicholson (1999) 21 WAR 226.
50 A finding of guilt is not to be reached simply by rejecting the case put forward by the accused. The Court has to positively believe beyond reasonable doubt the evidence presented by the prosecution: Harling v Hall (1997) 94 A Crim R 437.
51 If the appellate court, having made its own independent assessment of both the sufficiency and quality of the evidence, is left with a reasonable doubt, then that is a doubt which the primary court ought to have had and the appellate court will usually provide relief, especially where findings depend upon credibility: M v The Queen (1994) 181 CLR 487; Glennon v The Queen (1994) 179 CLR 1
52 However, where an appeal is made against findings of fact which depend upon a view taken as to the credibility of witnesses, an appellate court will refrain from interfering with those findings of fact unless it appears that the judicial officer has failed to use, or palpably misused, the advantage of hearing and seeing the witnesses or acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable: Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479.
53 If an inference is drawn from primary facts and said to be wrong, it is for the Court of Appeal by way of rehearing to analyse the evidence and objective facts in order to determine the issues afresh: Vrisakis v Australian Securities Commission (1993) 9 WAR 395 at 487.
54 It was held by Gibbs CJ, Mason and Brennan JJ in Chamberlain v The Queen (1984) 153 CLR 521 that where an appellate court is called upon to consider whether a verdict ought to be set aside because it would be unsafe or dangerous to allow it to stand, the question is whether the Court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. It is not for an appellate court to disturb a conviction simply because it disagrees with the jury's conclusion.
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55 As I have indicated, the relief may take the form of quashing the decision in question or remitting back to the court below. The task is to balance the public interest in the conviction of a wrong-doer, the interests of an accused person, and the pragmatic considerations of cost and efficiency in the administration of justice. Where the error is fundamental, the interests of justice may be best served by quashing the conviction and sentence, and substituting a verdict of acquittal: Verhoeven v Ninyette (1998) 101 A Crim R 24
56 I am conscious that the grounds of appeal in the present case raise issues which have been under consideration in cases concerning unlawful possession of drugs or possession of other contentious items such as pornography. Counsel for the appellant relied on various cases in this area of the law. However, it will be useful to begin by noting that, generally speaking, there is a presumption that in every statutory offence, it is implied as an element of the offence that the offender did the physical act defined by the relevant provision voluntarily and with the intention of doing an act of the defined kind.
57 Because the mental elements in different crimes vary widely it is difficult if not impossible to make a statement which is valid for all purposes about the essential elements of a guilty mind.
58 In Police v Pfeifer (1997) 68 SASR 285 at 286 Doyle CJ, speaking on behalf of the Full Court, said this:
"In Australia the mental element required for an offence can also be described as an absence of an honest and reasonable belief in the existence of facts which would have made the relevant act innocent. Unless the offence is one of absolute liability, if the issue is raised on the facts, the prosecution must establish the absence of what I will, for convenience, call an honest and reasonable belief. If the conclusion is that the absence of such belief is an element of the offence, it is for the prosecution to establish that absence before a conviction can be secured."
59 In R v Martindale (1986) 3 All ER 25; [1986] 1 WLR 1042 the applicant was stopped and searched in the course of a police operation in connection with the possession of drugs. He had in his pocket a wallet containing a small quantity of cannabis resin and was charged with possession of a controlled drug. At his trial, the applicant contended that the drug had been given to him 2 years previously in Canada and that he
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- had forgotten about its presence in his wallet. The Judge ruled that since the applicant knew what the substance was and kept it in his possession, even though he had forgotten about its existence, he had no defence to the charge.
60 The Court of Appeal held that possession did not depend on the alleged possessor's powers of memory nor did it come and go as memory revived or failed. Accordingly, although a person did not necessarily possess every article which he might have in his pocket, if he himself put an article into his wallet knowing what it was and put the wallet into his pocket he remained in possession even though his memory of its presence faded or disappeared altogether. It followed that the Judge had been correct in his ruling.
61 The Martindale case (supra) was referred to by Bleby J in Police v Kennedy (1998) 71 SASR 175 concerning a respondent who was charged with possession of child pornography. It is apparent from the headnote to the relevant report that two matters were in question.
62 First, an issue arose as to whether the respondent was actually in possession of the material. The respondent argued that there was a presumption that mens rea was a necessary element of the offence that had not been established. He had forgotten the existence of the material, which he had bought in the mid-1970s when to do so was not an offence, and had not seen it for two decades. The second aspect of the mental element was whether it is necessary to establish knowledge on the respondent's part that the material constituted child pornography.
63 Bleby J held that the respondent made a conscious decision to acquire and keep the material. The required state of knowledge to establish the offence existed at the time he did so and can be regarded as continuing despite his having forgotten its existence. Further, it was clear that the purpose of the relevant statutory provision was the protection of children. Knowledge of the nature and quality of the material in possession, that is, that the persons depicted were or were apparently children, was not necessary to make out the offence.
64 In the course of his judgment the learned Judge addressed the issue concerning knowledge of actual possession. He was of the view, having regard to the decided cases, that something more than mere physical possession or dominion is necessary. His Honour went on to observe at 180:
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- "There is now abundant authority in the United Kingdom that mere forgetfulness of the fact that a defendant has certain material objects in his custody or control, once that fact was previously known, will not be sufficient to defeat proof of his relevant state of knowledge that he possessed them."
65 His Honour then referred to Martindale's case (supra) and cited with approval certain observations of Lane LCJ at 1044 in that case to the effect that the defendant in that case remained in possession, even though his memory of the presence of the drug had faded or disappeared altogether. Possession does not depend on the alleged possessor's powers of memory. Nor does possession come and go as memory revives or fails. If it were to do so, a man with a poor memory would be acquitted, he with the good memory would be convicted.
66 Counsel for the appellant in the case before me relied also upon the decision of the High Court in He Kaw Teh v The Queen (1985) 157 CLR 523. That case involved consideration of s 233B of the Customs Act which provides that any person who imports into Australia any prohibited imports or without reasonable excuse (proof whereof shall lie upon him) has in his possession any prohibited imports shall be guilty of an offence. The High Court held that the presumption that mens rea is required before a person can be held guilty of a grave criminal offence is not displaced in relation to s 233B and the prosecution bears the onus of proving that the accused knew that he was importing a prohibited import. The prosecution bears the onus of proving that the accused knew of the existence of the prohibited import that was in his exclusive physical control.
67 It appears from the headnote that Gibbs CJ, Mason, Brennan and Dawson JJ were of the view that where a statute makes it an offence to have possession of goods, knowledge of the accused that those goods are in his custody, in the absence of a sufficient intention of a contrary intention, will be a necessary ingredient of the offence, because the word "possession" itself necessarily imports a mental element.
68 After an extensive review of the cases, Brennan J summarised the general principles as follows at 582:
"1. There is a presumption that in every statutory offence, it is implied as an element of the offence that the person who commits the actus reus does the physical act defined in the offence voluntarily and with the intention of doing an act of the defined kind.
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- 2. There is a further presumption in relation to the external elements of a statutory offence that are circumstances attendant on the doing of the physical act involved. It is implied as an element of the offence that, at the time when the person who commits the actus reus does the physical act involved, he either – (a) knows the circumstances which make the doing of that act an offence; or (b) does not believe honestly and on reasonable grounds that the circumstances which are attendant on the doing of that act are such as to make the doing of that act innocent.
3. The state of mind to be implied under (2) is the state of mind which is more consonant with the fulfilment of the purpose of the statute. Prima facie, knowledge is that state of mind.
4. The prosecution bears the onus of proving the elements referred to in (1) and (2) beyond reasonable doubt except in the case of insanity and except where statute otherwise provides."
69 Let me now return to the circumstances of the present case.
The appellant's submissions
70 As to the s 70C charge, counsel for the appellant submitted at the hearing before me that the allegedly false or misleading statement in issue was the answer "No" given by the respondent while he was in the queue on the way to the Red Line Baggage Inspection when asked by Officer Rodeje-Pollard whether, aside from the sweets, he had any more food.
71 Counsel referred to a passage in the reasons for judgment in which the learned Magistrate summarised this part of the evidence by saying that "… the defendant told her that he had sweets in answer to question 6 on the incoming passenger card, and said he didn't have any more food that he could eat or drink". It was said that this amounted to a finding that he did indeed tell the officer that he did not have any more food. Such a statement, viewed in context, had to be characterised as a statement made intentionally.
72 Counsel submitted that the physical elements of the subject offence were as follows: first, the accused made a statement to a Quarantine Officer; second, this statement was false or misleading in a material
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- particular. The learned Magistrate noted that the physical elements were not in issue, and this was clearly so because the subject statement was made and was in fact false, having regard to the oranges and lemons that were then discovered in the respondent's black bag.
73 Counsel submitted that the fault elements of the offence were: that the accused intentionally made this statement and knew that the statement was false or misleading in a material particular. It was clear that the statement was made intentionally. Thus, in the end, the central matter in controversy was whether the accused knew that the statement was false or misleading. The learned Magistrate should have made such a finding in circumstances where the respondent had admitted to Officer Hardy that he had brought the fruit from Bulgaria and had taken it onto the plane, he had packed his own bags and was aware of their contents, and the amount of food and fruit carried was significant, as appears from the photographs and from the evidence of Ms Hardy. Moreover, no attempt was made to rebut the evidence given by Ms Hardy, and no finding to the contrary was open on the evidence.
74 In the circumstances, the learned Magistrate should have found that the accused knew that he was carrying more food than just sweets, and that it was false or misleading to answer "No" to the question: "Aside from the sweets, do you have any more food, anything that you can eat or drink?"
75 As to the s 67(1) offence, the elements of the offence were said to be: first, that the respondent intended to import fresh fruit; second, he knew that the fruit was a plant or other good; third, the importation without permission was prohibited, and no permission had been granted.
76 The learned Magistrate should have found that the accused knew that he was carrying the fruit into Australia in circumstances of the kind mentioned earlier and where he admitted in the course of his interview that the fruit was a type of food that was not allowed to be imported into Australia.
77 Counsel for the appellant relied upon Martindale's case (supra) and Kennedy's case (supra) in submitting that in circumstances of this kind some transitory or momentary lapse of memory is not sufficient to support a finding that there is an absence of knowledge, although he recognised that those decisions concerned different statutory provisions and were not directly applicable to the circumstances of the present case.
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Respondent's submissions
78 Counsel for the respondent submitted that intention and knowledge were elements of both offences. It was immaterial that the respondent did not give evidence at the hearing before the learned Magistrate because the prosecution sought to and was able to adduce in evidence various out-of-court statements made by the respondent in the course of his encounters with the Officers and in the course of the audio interview as admissions against interest. The statements were received in evidence pursuant to an exception to the rule against hearsay.
79 In these circumstances, counsel submitted, the proper approach was for such statements to be accepted and weighed up in their entirety, both as to the inculpatory and as to the exculpatory aspects of the statements. When the matter was viewed in this light there was ample evidence upon which the learned Magistrate was entitled to reach the conclusion that he did, namely, that the respondent had forgotten that he had the quantity of fruit with him when he arrived in Perth.
80 If a finding was made that he had forgotten about the fruit, which was indeed the finding made by the learned Magistrate in his reasons for decision, then it was open to the learned Magistrate to conclude (as he did) that the respondent lacked the requisite knowledge.
81 Such a finding was not unreasonable in the circumstances of the case, bearing in mind that the respondent had travelled from Bulgaria and was at the end of a long flight. The learned Magistrate may have inelegantly characterised the respondent's explanation as "plausible", but it was clear that his Honour was, in effect, concluding that the explanation was reasonable in the circumstances and should be believed.
82 The learned Magistrate had the advantage of having seen the various witnesses and of observing the character witness who was called on behalf of the defence, namely, Mr Linahan. The uncontested evidence of the latter was to the effect that the respondent was an honest person and he had not known anyone to question his honesty during the time in which he had known the respondent.
83 Counsel submitted, having regard to Chamberlain's case (supra), that it is not for an appellate court to disturb a verdict simply because it disagrees with the conclusion reached by the trial of fact. Moreover, in the circumstances, it could not be said that the knowledge contended for by the prosecution was the only reasonable inference to be drawn in the circumstances. It was equally open to the Court to infer that the
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- respondent had forgotten that he had the quantity of fruit in question and in those circumstances he should be given the benefit of any reasonable doubt and be acquitted of the charges: Shepherd v The Queen (No 5) (1990) 170 CLR 573.
Issues
84 There appear to be two issues. First, whether it was open to the learned Magistrate to hold as a matter of law that a lapse of memory could excuse an accused person from liability.
85 Second, on the assumption that such a line of defence was available, whether, in the circumstances of the present case, the learned Magistrate erred in acquitting the respondent of each offence as alleged in the grounds of appeal.
86 In dealing with these issues, I proceed from the premise, as appears from the described cases, that in the absence of any indication to the contrary in the subject provisions the prosecution must prove beyond reasonable doubt that the accused person acted with the intention of doing an act of the prohibited kind, and that, in the circumstances of the present case, this brings with it a need to establish that he knew the fruit was in his bag.
87 Put shortly, the prosecution had to establish that there was an absence of an honest and reasonable belief in the existence of facts which would have made the relevant act innocent; that is, he did not really believe that, save for sweets, he did not have any more food in his bags that he could eat or drink at the time he responded to the crucial question.
Conclusion as to the s 70C charge
88 It emerges from my review of the statutory provisions that by s 70C of the Quarantine Act a person is guilty of an offence if he makes a statement to a Quarantine Officer "in respect of goods" and the person knows that the statement is false or misleading in a material particular.
89 It will be apparent from my review of the learned Magistrate's reasons for decision and of the submissions for the respective parties that the crucial question with respect to this charge is whether the respondent had the requisite degree of knowledge.
90 To my mind, and I say it without intending any lack of respect, the learned Magistrate expressed himself somewhat clumsily in suggesting, early on in his reasons for decision, that this charge related to the
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- incoming passenger card. It related to the card in a general sense. However, as counsel for the appellant pointed out persuasively, the statement in question, as appears from the particulars on the complaint form, culminated in the assertion made by the respondent to a Quarantine Officer that he had nothing to declare other than the food items identified by him as sweet doughnuts being an assertion that clearly did not admit the existence of the fruit subsequently discovered in his bag. I accept also the submissions made by counsel for the appellant that the elements of the offence, save for the element concerning knowledge, were incontrovertibly established by the evidence. Nonetheless, as the learned Magistrate appreciated, the crucial question concerned the matter of knowledge.
91 I pause here to echo what was said to me in the course of discussion with counsel for the appellant that the reasoning in the decided cases such as Martindale (supra) and Kennedy (supra) must be approached with care, and having regard to the way in which the particular statutory provision is expressed. The elements necessary to establish a charge of unlawful possession will vary greatly according to the legislative context in which the offence appears and the object of the legislation in question. The same may be said of charges based upon an allegation that a person is in possession of an item of property.
92 I acknowledge the force of the reasoning in Martindale and Kennedy, both of which, with respect to the concept of possession, recognised that knowledge, or the assertion of knowing control, is generally regarded as an element of possession, and that mere forgetfulness may not be sufficient to displace the notion that the item in question is knowingly possessed.
93 However, in the present case, s 70C(1) requires that a person make a statement "in respect of goods" and knows that the statement is false or misleading in a material particular. To my mind, this gives rise to a concept which cannot be compared exactly to that of possession. To make a statement in respect of goods suggest to me that the goods in question are present to the mind of the speaker at the moment the assertion is made. Accordingly, it must be established that the speaker knows of the goods in the sense of identifying them in his own mind as having some quality or being in some location.
94 It follows from this that if the speaker can truly be said to have forgotten about the goods, so that he simply has no image of them in his mind, for they are not present to his mind, it is questionable whether he
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- can be characterised as a person with a guilty mind who makes a statement in respect of the goods (if a question arises concerning them or other goods of the same or a similar description) knowing that the statement was false or misleading in a material particular. In other words, as to the first of the two issues I mentioned in earlier discussion, in certain circumstances a lapse of memory may be sufficient to excuse the accused person from liability. It then becomes a question of fact as to whether there was actually an absence of any honest and reasonable belief as to whether the prohibited fruit was in his bag.
95 It seems to me that in the circumstances of the present case it would have been open to the learned Magistrate to have made a finding that the respondent did know of the fruit in his possession, bearing in mind various matters of the kind adverted to by counsel for the appellant in the course of argument. In many cases (perhaps most) knowledge of a thing that is in a bag imported by a person into Australia and of the nature of that thing may be inferred from the fact of importation, especially where the person concerned admits to having packed the bag himself. But this will not always be so, and cannot be characterised as a necessary conclusion.
96 It follows from what I said in earlier discussion concerning the relevant legal principles that if the learned Magistrate was persuaded on the evidence before him to find as a fact that the respondent had forgotten about the fruit in his bag, then it would have been open to him to find that the respondent did not have the requisite knowledge.
97 Ultimately, the question of what the respondent knew was bound to turn upon any admissions made by the respondent and inferences drawn from the surrounding circumstances. It appears from the evidence before me that no direct admission was made by the respondent that he knew of the fruit in his possession before the statement complained of was made by him. An inference of guilty knowledge was not the only inference that could be drawn in the circumstances. I must give weight also to the approach reflected in the decided cases that an appeal court should only intervene where it is clear that the judicial officer at first instance has failed to use or has palpably misused the advantage of hearing and seeing the witnesses.
98 When I apply these general observations to the relevant grounds of appeal, I do not consider that the learned Magistrate erred in law in the manner suggested in grounds 1 and 2 of the notice of appeal. I am not satisfied that the learned Magistrate erred in fact and in law in concluding
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- that as the accused had forgotten about the fruit that operated as a sufficient defence.
99 As to ground 3, I am not persuaded that the learned Magistrate erred in declining to treat the answers given by the accused about packing his own bags and being aware of the contents as conclusive. In the end, in the absence of direct admissions of fault, the case for the prosecution was circumstantial. There was evidence before him of forgetfulness which, although not compelling, was sufficient to raise a reasonable doubt, as to whether the respondent had a guilty mind of the kind required by the legislation. I am not persuaded that the appeal should be allowed on this ground.
100 It follows from these observations that, in my view, the appeal in respect of the s 70C offence should be dismissed.
Conclusion as to the s 67 charge
101 The appellant asserts in the ground of appeal bearing upon this charge that the learned Magistrate erred in fact and in law in concluding that as the accused had forgotten about the fruit, that such a conclusion operated as a complete defence. It will be apparent from earlier discussion that, to my mind, the crucial question is whether in fact the respondent had the requisite knowledge.
102 Section 67(1) of the Act provides that a person is guilty of the subject offence if the person imports any thing and the importation is in contravention of the Act. It appears from previously decided cases such as He Kaw Teh (supra) that the concept of importation denotes that the accused person knew that he was importing a prohibited item. Thus, proof of knowledge is an essential element of the prosecution case.
103 For example, in He Kaw Teh (supra) Dawson J made these observations at 595:
"To import goods is to bring them into the country from abroad: Lyons v Smart (1908) 6 CLR 143 at 150. But if the goods are merely passing through en route to some place outside the country, they are not imported. Thus in Reg v Bull (1974) 131 CLR 203 it was held that goods are not imported into Australia within the meaning of s 233B(1)(b) of the Customs Act until they are landed or brought within the limits of a port with the intention of landing or discharging them. Moreover, importation connotes a commercial purpose or at least an
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- intention to use or consume the goods. Goods would not, to my mind, be imported if they were discovered on board a ship or an aircraft during a journey to Australia and were handed to customs officers on arrival here because their importation was prohibited. I mention these things because it seems to me that it is not possible as a matter of language to speak of importation without introducing some element of purpose or intention: cf White v Ridley (1978) 140 CLR 342 at 359. Even though that element of purpose or intention is usually an obvious inference from the surrounding circumstances, mere proof that goods have been brought into the country may, in some circumstances, not be enough."
104 As I noted in earlier discussion, counsel for the appellant acknowledged that the elements of the offence include that the accused knew that the fruit was a plant or other good and intended to import the same. It seems that the learned Magistrate proceeded from the premise that if a person did not know that he had the fruit in his possession, due to a lapse of memory, then this absence of knowledge precluded any finding being made that he had the requisite intention to import.
105 For the reasons I have given previously, I consider that care must be exercised in seeking to apply the decided cases relied upon by the appellant to the statutory provision presently before me. In many cases, an incoming passenger's explanation or excuse that he had forgotten he had the subject goods is likely to be characterised as unconvincing when regard is had to all the circumstances. However, for the reasons I have given previously, bearing in mind the absence of any direct admission of fault and the availability of alternative inferences, I am of the view that it was open to the learned Magistrate in the circumstances of the present case to find that the respondent did not have the requisite knowledge or intention.
106 Put shortly, I am not persuaded that an appeal court should interfere with such a finding in circumstances where the learned Magistrate had an opportunity to observe the various witnesses, and to understand the sequence of events, and then arrived at findings of fact based upon matters of credibility and inference which appear to have been open on the evidence.
107 Accordingly, I am not persuaded that the appeal should be allowed on this ground.
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Summary
108 The appeal will be dismissed in respect of each of the two charges. I will hear from the parties as to whether any further orders or directions are required.
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