Minogue v Briggs

[1987] TASSC 63

Serial No 60/1987
List “A”

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Minogue v Briggs [1987] TASSC 63; A60/1987

PARTIES:  MINOGUE
  v
  BRIGGS

FILE NO/S:  50/1987
DELIVERED ON:  26 November 1987
DELIVERED AT:  Hobart
JUDGMENT OF:  Wright J

Judgment Number:  A60/1987
Number of paragraphs:  17

Serial No 60/1987
File No 50/1987
List "A"

MINOGUE v BRIGGS

REASONS FOR JUDGMENT  WRIGHT J

26 November 1987

1. This is an appeal by way of motion to review a decision of a Magistrate sitting in the Court of Petty Sessions at Hobart on 8 May 1987. His Worship dismissed a number of complaints by the applicant against the respondent that he, the respondent, had made untrue statements in documents furnished to a customs officer in breach of s234(1)(e) of the Customs Act (1901). In dismissing the complaints his Worship held that to establish the commission of an offence under that provision it was necessary for the prosecutor to show that the maker of the untrue statement knew that it was untrue or alternatively that he was recklessly indifferent as to whether the statement was true or not at the time he made it. His Worship relied upon Cameron v Holt (1980) 142 CLR 342 and He Kaw Teh v The Queen (1985) 157 CLR 523.

1. In the course of his decision his Worship reviewed the evidence of the respondent's state of mind when he made the statements in question. He accepted the respondent's claim that due to poor memory he honestly but mistakenly made incorrect assertions of fact in a number of Unaccompanied Baggage Statements required by Customs in respect of household furniture and effects which the respondent wished to bring with him to Hobart following a period of 2 years' residence in Singapore.

1. A point which may be emphasized at the outset is that his Worship was not concerned with an interpretation of s229 or any part of s234 other than subs1(e). I make this observation because a good deal of the legal argument which took place before him concerned the interpretation of those and other provisions of the Customs Act which are not directly relevant to the present motion to review. Small differences in language between different sections of an Act can have a significant effect upon interpretation as pointed out by Priestly JA in Murphy v Farmer (1987) 72 ALR 679 at 692 – 3:

"Section 234(1) states in seven paragraphs a number of things which a person shall not do. Three paragraphs, (d), (e) and (f), are in language which echoes the words of s 229(1)(i) in a number of respects. The things a person shall not do, according to paras (d), (e) and (f) are:

'(d)      Make or give any entry which is false in a particular.

'(e)Make in any declaration or document produced, given, delivered or furnished to any officer any statement which is untrue in any particular or produce, give, deliver or furnish to any officer any declaration or document containing any such statement.

'(f)Mislead any officer in any particular likely to affect the discharge of his duty.'

Reading these paragraphs, again without the help of authority, 'false' in para (d), when considered in the light of 'untrue' in para (e), conveys the meaning of deliberately untrue, whereas 'untrue' in para (e) seems almost indisputably to mean objectively untrue; 'mislead' in para (f) (bearing in mind that it does not have 'wilfully' attached to it as in s 229(1)(i)), fairly plainly means objectively misleading."

1. The views expressed by Priestly JA in the passage quoted and the views of Kneipp and Vasta JJ in Lee v Anderson [1986] 70 ALR 575 and 579 and 591 respectively are in my opinion, fully supportive of the applicant's submission that s234(1)(e) creates an offence in which the offender's state of mind as to the truth or otherwise of the relevant statement is immaterial.

1. Kneipp J said:

"For the applicant, reliance was placed on two recent decisions of the High Court, Cameron v. Holt (1980) 142 CLR 342; 28 ALR 490 and He Kaw Teh v R (1985) 60 ALR 449: 59 ALJR 620. They have become very well known, and I need not refer to them in detail. It seems fair to say that they would suggest that more weight should be placed on the presumption that mens rea is required than has been placed on it in the past. In the first, a great deal of reliance was also placed on the language of the provision in question, and the latter was concerned with an offence which is quite different from and much more serious than any of the offences created by s234(1). Notwithstanding that, I would have no hesitation, having regard to the approaches adopted in the judgments, in holding that mens rea must be proved on a charge under section 234(1)(e), were it not for the weight of authority to the contrary."

1. I find this passage particularly persuasive as his Honour felt himself constrained to reach the conclusion which he expressed despite a strong inclination to the contrary based upon the reasoning in He Kaw Teh (supra).

1. Vasta J at 587 – 591 said:

   "This section has previously been the focus of attention by the courts. Soon after Federation, Hodges J. in Stephens v Robert Reid and Co Ltd (1902) 28 VLR 82 had to consider an identical provision in the Customs Act. At p 87 his Honour observed:

   'I do not think that it can be laid down as by any means a universal proposition that no criminal or quasi–criminal proceeding can be taken under an Act of Parliament without establishing a mens rea, or that a mens rea is an essential to the establishment of every criminal offence under an Act of Parliament. In each case we have to examine the particular words of the statute. We have also to consider the subject–matter of the Act and its object and, by an examination or a consideration of those matters, to determine whether the legislature meant a wicked mind to be an essential ingredient in the offence. First, looking at the particular language used, s234 does not say that no person shall wilfully or knowingly or fraudulently make in any document a statement which is untrue; but, omitting all words of such a character as would point to mens rea being an ingredient in the offence, says simply, "no person shall make in any document produced to an officer any statement which is untrue". That language is plain, simple, and direct – so plain that "he who runs may read".'

   In Irving v Gallagher [1903] St R Qd 121 at 125 Power J referred to Irving v Gagliardi (1895) 6 QLJ 155 and referred to the words used by Griffiths CJ who at p 157 observed: 'In construing these provisions it is necessary to remember that it is the general scheme of Customs and Revenue Acts to make an offence consist in the mere doing of an act without regard to the intention of the person who does it.'

   Power J accepted this as an accurate proposition and held that the breach of s234(e) of the Customs Act which proscribed the making of an entry respecting certain goods was complete upon the making of the untrue declaration without there being any necessity to prove intention.

   The High Court in Sternberg v R (1953) 88 CLR 646 considered s234(d) of the Customs Act which provided that:

   'No person shall –

   ...

   (d)       make any entry which is false in any particular.'

   The argument in that case was that the principal could not be guilty of being concerned in the Commission of the offence under the sub–section by virtue of an agent making a false entry in a document. That was because the agent himself was not guilty of the offence since in making the entry, the agent did not commit himself to the absolute truth of the particulars stated but only to his belief that the particulars stated were correct. At p 653 Dixon CJ with whom Webb and Kitto JJ agreed observed:

   'Section 234(d) is really the only provision of the act which is in question. It appears to me to be a clear provision making it an offence to enter goods by an entry which in any particular is contrary to fact. If the view contended for were correct, the only fact which could be wrong would be the belief of the person concerned; the belief would extend over the whole entry and there is only one belief in which he could be wrong and that is the belief in the correctness of entry.

   The document on which the argument must depend is the form of entry itself. I myself prefer the view that the entry consists of two parts; (1) the entry containing the particulars, and (2) the declaration which verifies the entry. I think that you cannot carry from the document which verifies the entry into the entry itself any qualifications as to the facts stated in the entry.'

   Similar views were expressed in Ex parte Falstein; Re Maher (1949) 49 SR (NSW) 133 where at 142 Jordon CJ observed:

   'There is no doubt that in respect of a thing which is criminal by the common law, a person is not criminally liable unless he does the thing himself or is an accessory, aider or abettor, or accomplice of someone else who does it, and, if he does the thing himself he is not criminally responsible in the absence of mens rea, that is, if he did not know that all the facts constituting the ingredients necessary to make the act criminal were involved in what he did. Prima facie, these rules are applicable also to things which are not criminal by the common law but have been made penal and criminal by statute. But in the case of offences of the latter type the law has been greatly obscured by a readiness on the part of judges to assume the role of legislators and discover in penal statutes implications of intention to impose vicarious liability and to penalise acts done in the complete absence of guilty knowledge, notwithstanding that the legislature has abstained from expressly excluding the rules of the common law. In the result it is seldom possible to know with any degree of certainty whether by a penal statute vicarious liability is imposed or mens rea is excluded, unless the particular point in the particular statute has been the subject of an authoritative decision ....'

   His Honour was examining the effect of s234(c) and (d) of the Customs Act and at p143 he observed that: 'In R v Australasian FilmsLtd (1921) 29 CLR 195 where charges were laid under s 234(a), (d) and (e) it was conceded and taken as obvious that under s234 individuals are liable for the acts of their agents done in the course of their employment, and the court went further and expressed the view that a principal is liable under s241 for intent to defraud on the part of his agent. It was said too, referring to s234 that "the duty laid down is speaking generally, the furnishing of true information with respect of goods liable for duty". It was decided nearly a half a century ago by Hodges J in Stephens v. Robert Reid and Co Ltd (1902) 28 VLR 82 – a case cited in R v Australasian Films Ltd, supra – the proof of the existence of mens rea is not essential to the establishment of an offence under s 234(e).'

   Davidson J at p150 observed: 'Counsel's contention that mens rea was a necessary ingredient of the offence and that the requisite proof was absent cannot be supported. The principle has been stated frequently that whilst evil intent or knowledge of wrongfulness of an act must prima facie appear to establish a criminal offence, that presumption is liable to be displaced by the words of the statute creating the offence or by the subject with which it deals. The circumstances where this exception may be found are in charges affecting the revenue, or adulteration of food, and also where acts affecting the public interest are prohibited under pecuniary penalty: Sherras v De Rutzen [1895] 1 QB 918 at 921. Generally, the test to be applied is, where in the classes of legislation mentioned the statute contains an absolute prohibition on the doing of an act, knowledge and intent are irrelevant but even then sometimes the absence of guilty knowledge may be a defence. ... The present case, however, falls directly within the scope of the decision in a Victorian case which has remained unquestioned for upwards of 40 years: Stephens v. Robert Reid & Co Pty Ltd ...'

   At p152 Street J said: 'Prima facie, of course, proof of a guilty mind is usually an essential matter to be established before any man can be convicted of an offence; but the presumption that an evil intention is a necessary ingredient in the proof of any offence may be displaced by the language of the statute under which the offence was created, and it is necessary therefore to have consideration to the language in question in the present Act. Without reviewing the sections in detail, I think this matter is concluded by the decisions in Stephens v Robert Reid & Co Ltd, supra, and Dawson v Jack. These were both decisions of a single judge but I entirely agree with the reasons given in each of the judgments, and, while not binding upon this court, I am content to rest my own decision on those judgments. Both cases were heard and decided in 1902, they have never been overruled nor disapproved, and I think they completely cover the facts of this case and are authority for the proposition that, in prosecutions such as those now under consideration, it is not necessary to establish mens rea against the appellant.'

   In Patel v Comptroller of Customs [1966] AC at 356 the Judicial Committee of the Privy Council quoted with approval portion of the judgment of Dixon CJ in Sternberg v R, supra, and also accepted the propositions stated in Stephens v Robert Reid & Co, supra.

   The appellant did not cite any of these authorities during the course of his argument but in reply it was submitted that Sternberg v R may be distinguishable on the basis that it dealt with s 234(d) and not with s 234(e). I am of the view that this distinction is not valid. Although the particular sub–section under consideration was (d) the observations concerning the absence of any necessity to prove mens rea applied generally to s 234.

   In the alternative, it was argued that Sternberg v R should not be now considered to be good law in the light of the more recent decisions of the High Court in Cameron v Holt (1980) 142 CLR 342; 28 ALR 490 and more recently in He Kaw Teh v R (1985) 59 ALJR 620; 60 ALR 449.

   Cameron v Holt was concerned with s 138 of the Social Services Act 1947 which is in the following terms:

   '138(1) A person shall not –

   (a)  make, whether orally or in writing, a false or misleading statement –

   (i)  in connexion with, or in support of, a claim, whether for himself or for any other person;

   (ii) to deceive an officer doing duty in relation to this Act; or

   (iii)     to affect the rate of a pension, allowance, endowment or benefit payable under this Act;

   (b)  obtain payment of a pension, allowance, endowment or benefit under this Act, or of an instalment of such a pension, allowance, endowment or benefit which is not payable;

   (c)  obtain payment of a pension, allowance, endowment or benefit under this Act, or of an instalment of such a pension, allowance, endowment or benefit, by means of a false or misleading statement or by means of impersonation or a fraudulent device; or

   (d)  make or present to an officer a statement or document which is false in any particular.

   'Penalty: One hundred dollars or imprisonment for six months.'"

   In my view Cameron v Holt is distinguishable from the present matter. Mason J observes (CLR at p 384; ALR at p 494): 'This is not a case 'where the subject matter of a statute is the regulation of a particular activity involving potential danger to public health, safety or morals in which citizens have a choice whether they participate or not' (Sweet v Parsley [1970] AC 162). But Mr Murphy for the applicant argued that because the subject section was aimed at the protection of the revenue by penalising those who make or participate in the making of false claims for social welfare benefits it should be inferred that the Parliament intended to create absolute offences involving no element of mens rea. Even if the language of sub–s(1) were not in itself an answer to this argument, as I think it is, I do not consider the argument to be well based. In a context in which Parliament creates criminal offences relating to the making of false claims for social welfare benefits and prescribes a penalty which is not insubstantial, it is not to be inferred in the absence of some indication to that effect, that mens rea is unnecessary. Rather it is to be inferred that mens rea is an essential element in the criminal offences which the statute creates.'

   The situation is quite different with regard to this section of the Customs Act 1901. While the Act was referred to in the old cases as legislation protecting the revenue it is now much more than that. These days the Customs Act also governs the importation of dangerous and undesirable goods. In that sense it is a statute which regulates particular activity involving potential danger to public health, safety and morals. It is important that in the proper administration of the Act that there be absolute truth of facts declared and accordingly the section requires more than an honest belief in the truth of the facts stated. The only common consideration present in the Social Securities Act which was under examination in Cameron v Holt is the protection of the revenue.

   In He Kaw Teh v R (1985) 60 ALR 449 the High Court had to consider the question whether an offence under s233B(1)(b) and (c) of the Customs Act 1901 (Cth) required proof of mens rea. The High Court held that there is a presumption that mens rea is an essential ingredient in every offence including offences created by statute. Gibbs CJ (with whom Mason J agreed) and Brennan J stated that in deciding whether the Parliament intended to display such a presumption one could have regard to the words of the statute, the subject matter with which the statute deals and whether such a construction will assist in the enforcement of those provisions.

   I see nothing inconsistent in the concept that one section of the Customs Act requires the proof of the ingredient of mens rea whilst other sections of the Act require no such proof. Some of the circumstances which have to be taken into account in ascertaining whether Parliament intended to displace the presumption of mens rea includes the consequences that flow from a conviction of the particular offence. Under s233B(1)(b) the maximum penalty is life imprisonment. Gibbs CJ discusses the nature of the offence created by s233B(1)(b) and concludes that those offences are indeed truly 'criminal'. At p453 he observes:

   'A convicted offender is exposed to obloquy and disgrace and becomes liable to the highest penalty that may be imposed under the law. It is unlikely that the Parliament intended that the consequences of committing an offence so serious should be visited on a person who had no intention to do anything wrong and no knowledge that he was doing so.'

   Whilst the penalties provided for under s 234 are substantial, it cannot be said that the conviction for the production of a false declaration is a 'criminal' conviction. It is significant to note that while the penalties are substantial there is no provision for imprisonment for a breach of any one of the sub–sections of s 234 of the Customs Act. It may be explicable on the basis that the legislature has taken cognisance of the fact that the courts have held that this section imposes strict liability. As Jordan CJ observed in Ex Parte Falstein; Re Maher, supra, at p143: 'The Customs Act has been amended on innumerable times since the decision in R v Australasian Films (1921) 29 CLR 195 and nothing has been done to indicate that it does not accord with the intention of the legislature.'

   Whilst the monetary penalty provided for in s 138 of the Social Services Act 1947 is $100, an alternative punishment is imprisonment for six months. This, in my view, is a most important distinguishing feature between the present case and Cameron v Holt, supra.

   In my view then, mens rea is not an essential ingredient of an offence under s 234(1) of the Customs Act 1901."

1. I have quoted this passage at length because, having listened closely to Mrs. Singh's careful argument on behalf of the appellant and having been fully persuaded by it I find, with respect, that the reasons of Vasta J for reaching the conclusion which he did, so nearly follow my own thoughts on the subject that I can see no advantage in repeating the same steps in different words.

1. Counsel for the respondent Mr Pitt urged upon me that Sternberg v The Queen (1953) 88 CLR 646, was no longer good law in light of the High Court's subsequent decision in Cameron v Holt (1980) 142 CLR 342. In the former case the High Court unanimously held that under s234(d) of the Customs Act which provided: 'No person shall ... make any entry which is false in any particular', an offence was committed if an entry was made in which any particular was contrary to fact. In the latter case, the High Court held (again unanimously) that mens rea was an essential ingredient of an offence under s138(1)(d) of the Social Services Act 1947 which provides that a person who makes or presents to an officer of the Department of Social Security a statement or document which is false in any particular shall be guilty of an offence. Sternberg's case was referred to in an argument in Cameron v Holt (supra) but no member of the High Court referred to it or distinguished it in his judgment. More significantly perhaps, no member of the court suggested that it should be overruled. Nor was any such suggestion made in the course of the very detailed judgments which the Court delivered in He Kaw Teh (supra).

1. As Neasey J pointed out in Gibbon v Fitzmaurice 55/1986, in respect of an offence containing multiple constituent elements, care must be taken to analyse the true nature of the proscribed act or omission to ascertain which element if any must be accompanied by "guilty" intent or knowledge. Similar views were expressed by Brennan J in He Kaw Teh v The Queen (1984 – 5) 157 CLR 523 at 568:

"It is one thing to say that mens rea is an element of an offence; it is another thing to say precisely what is the state of mind that is required. It is the 'beginning of wisdom', as Lord Hailsham of St. Marylebone said in Reg. v. Morgan (39), to see 'that "mens rea" means a number of quite different things in relation to different crimes'. Indeed, it may connote different states of mind in respect of the several external elements of the same crime. If A strikes B and causes him bodily harm, A's moral blameworthiness may depend on whether A moved accidentally, or whether he was unaware that B or anybody else was there, or whether he did not mean to cause bodily harm and could not and did not foresee that he would cause bodily harm. The particular mental states that apply to the several external elements of an offence must be distinguished, not only as a matter of legal analysis, but in order to maintain tolerable harmony between the criminal law and human experience."

1. Section 234(1)(c) does not merely proscribe the making of an untrue statement in a declaration or document. It seems to me that the essence of the offence is to be found in producing, giving, delivering or furnishing such a declaration or document to an officer.

1. To Connolly J in Lee v Anderson (supra) (at 582), this factor was one which indicated to him a strong reason for "requiring guilty knowledge (i.e. of the untrue nature of the document) on the part of the person producing it" but with great respect it suggests to me a somewhat different conclusion viz: that if the act of producing, delivering or furnishing the document to an officer is intentional and is done with an awareness of the content of the document the offence is complete if it is subsequently demonstrated as an objective fact that a material part of the document is incorrect. I find a much closer similarity between the elements of the offence provided for in s.234(1)(e) and the elements of the offences in question in Proudman v Dayman (1943) 67 CLR 536 and Gibbon v Fitzmaurice (supra) than I do when comparing s234(1)(e) with other sections of the Customs Act 1901 or the Social Services (or Social Security) legislation. It seems to me to be obvious that the plain purpose of s234(1)(e) is to ensure that accurate information is provided to Customs officers charged with the duty of administering the Customs Act. As has been pointed out on many occasions, Customs legislation in present times is concerned with more than simple taxation. It is also concerned with (inter alia) the regulation and prohibition of imports which may enter this country and which may have a deleterious affect upon human and animal health. In policing matters of this kind it seems to me to be a perfectly natural expectation that the person seeking to import goods should be required to guarantee the accuracy of the information he provides to secure for himself permission enabling him to do so. In the apt words of Neasey J in Gibbon v Fitzmaurice (at p6): "... it is a subject matter in respect of which the person who chooses to participate, if an absolute or near absolute obligation of this kind is to be imposed can certainly take steps to ensure his own immunity from the reach of the regulation and promote its observance".

1. It therefore seems to me that it can be readily understood that in relation to the element of the "untrueness" of a declaration or statement falling within s234(1)(e) there is no implied statutory requirement that the alleged offender was aware of or was recklessly ignorant of that element.

1. The conclusion that proof of knowledge of the incorrectness of the statement or reckless indifference as to its truth is not an essential component of an offence under s234(d) can thus be justified on two separate bases. Firstly, a High Court decision, binding on this Court (Sternberg) expressly decided that mens rea was not an essential element under s234(d) and therefore, a fortiori; because s234(d) refers to a "false" entry and s234(e) refers merely to an "untrue" statement, mens rea is not essential to a complaint under s234(e). Secondly, if Sternberg's case is no longer good law (and it must be for the High Court itself to say it is not), s234(e) is distinguishable from s234(d) because of the differences in terminology just referred to, and, upon the reasoning adopted by Priestley JA in Murphy v Farmer (supra) in the passage cited above, s234(e) requires no mental element relating to the incorrectness of statements in question.

1. This is not to say that s234(1)(e) creates an offence of absolute liability, properly so–called. Rather it appears to me to create one of "strict" liability in the sense used by Nettlefold J in Gibbon v Fitzmaurice (supra) at p6 of his judgment. It is plain I think from the views expressed by all members of the High Court in He Kaw Teh v The Queen (supra) that in a case such as the present if there is evidence from which it could be concluded that an alleged offender had an honest and reasonable belief in the truth of the incorrect statement made by him, it is for the prosecution to negate this as a reasonable possibility before it can obtain a conviction.

1. Accordingly, if the present respondent can demonstrate the possibility that his use of the admittedly untrue statements resulted from one or more honest and reasonable mistakes of fact he may escape conviction. No findings were made by the learned magistrate who tried this case upon these matters. Indeed, having regard to his Worship's comments it seems to me to be a finding which he would have been unlikely to make in the circumstances as he saw them.

1. Nonetheless it is not something which I can, or should, attempt to resolve upon this motion and I think the appropriate order is to allow the motion for review and remit the relevant complaints to be retried by another magistrate according to law.