PJ v The Queen
[2012] VSCA 146
•29 June 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2012 0094
| P J | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | MAXWELL P, REDLICH and HANSEN JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 11 May 2012 |
| DATE OF JUDGMENT | 29 June 2012 |
| MEDIUM NEUTRAL CITATION | [2012] VSCA 146 |
| DECISION APPEALED FROM | DPP v [P J] (Unreported, County Court of Victoria, Judge Maidment, 2 May 2012) |
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CRIMINAL LAW – Appeal – Interlocutory appeal – Aggravated people smuggling (at least five persons) – Applicant charged with facilitating the bringing of non-citizens to Australia – Whether prosecution required to prove knowledge that intended destination was Australia – Physical element – Conduct – Fault element – Intention – Legal status of destination as part of Australia – Proof of knowledge required – Appeal allowed – Migration Act 1958 (Cth) s 233C, Criminal Code (Cth) Part 2.2, Criminal Procedure Act 2009 (Vic) s 295.
STATUTORY INTERPRETATION – Criminal law – Commonwealth offences – Offence elements disaggregated – Physical elements – Fault elements – General interpretation principles applicable – Aggravated people smuggling – Three separate physical elements – Absolute liability with respect to status of passengers as non-citizens – Physical element conduct – Facilitating the bringing of non-citizens to Australia – No fault element specified – Fault element intention – Legal status of destination as part of Australia – Whether proof of intention requires proof of knowledge of legal status – Acts Interpretation Act 1901 (Cth) ss 2B, 15B, Migration Act 1958 (Cth) Part 2, Division 12, Subdivision A, Criminal Code (Cth) Part 2.2.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R Richter QC with | Victoria Legal Aid |
| For the Respondent | Dr S P Donaghue SC with Mr C W Beale and Ms K Breckweg | Commonwealth Director of Public Prosecutions |
MAXWELL P
REDLICH JA
HANSEN JA:
The applicant is charged with the ‘aggravated offence of people smuggling (at least five people)’, under s 233C of the Migration Act 1958 (Cth) (the ‘Act’).[1] Stripped to its essentials, the indictment charges that the applicant
at Indonesia and the seas between Indonesia and the territory of Christmas Island, Australia… did facilitate the bringing or coming to Australia of a group of five or more persons, namely a group of 49 persons, who were non-citizens and who had or have no lawful right to come to Australia, and he did so reckless as to whether the said 49 persons had or have a lawful right to come to Australia.[2]
[1]Section 233C was introduced into the Migration Act by the Anti-People Smuggling and Other Measures Act 2010.
[2]Emphasis added.
At a pre-trial hearing, the parties asked the trial judge to rule on the construction of the phrase ‘facilitate the bringing or coming to Australia of a group of at least five persons’ in s 233C(1)(a). The question for resolution was whether proof of the offence required the prosecution to establish that the applicant was aware that the destination of the journey which he was alleged to have facilitated was Australia. The defence submitted that this was a necessary element in the proof. The Crown, on the other hand, submitted that it was sufficient if it were established that the intended destination was a place within Australian territory, whether or not the applicant was aware that the place in question was part of Australia.
The trial judge upheld the Crown’s submission. The defence immediately sought leave to appeal to this Court against his Honour’s interlocutory decision, under s 295(2) of the Criminal Procedure Act 2009. His Honour granted the necessary certificate under s 295(3)(b), expressing the view that the issue was ‘of fundamental importance’ to the impending trial. He also noted that the issue would arise in a large number of other trials of accused persons facing similar charges, those trials being listed to commence in the County Court later this year.
Plainly enough, this is a question of considerable importance, with implications for trials to be conducted around Australia. It is also a question of some difficulty, and his Honour was required to deal with it as a matter of urgency. It was precisely so that significant legal issues of this kind could receive appellate consideration before the commencement of a trial that the interlocutory appeal provisions were enacted in 2009.[3]
[3]See R v Wei Tang (2009) 23 VR 332, 333 [4]–[5] (‘Wei Tang’).
For reasons which follow, we would grant leave to appeal and allow the appeal. For the applicant to be found guilty of the offence under s 233C, he must be shown to have intended that the relevant persons be brought to Australia. That is, he must have been aware that Australia was the intended destination.
The statutory scheme
Section 233C appears in Division 12 of Part 2 of the Act, which is headed ‘Offences in relation to entry into, and remaining in, Australia’. Subdivision A of Division 12, which includes s 233C, is headed ‘People smuggling and related offences’.
The offence of people smuggling is created – and given that name – by s 233A of the Act. That section provides as follows:
(1) A person (the first person) commits an offence if:
(a)the first person organises or facilitates the bringing or coming to Australia, or the entry or proposed entry into Australia, of another person (the second person); and
(b)the second person is a non‑citizen; and
(c)the second person had, or has, no lawful right to come to Australia.
Penalty:Imprisonment for 10 years or 1,000 penalty units, or both.
(2) Absolute liability applies to paragraph (1)(b).
Note: For absolute liability, see section 6.2 of the Criminal Code.
(3)For the purposes of this Act, an offence against subsection (1) is to be known as the offence of people smuggling.
The Act then creates two different types of ‘aggravated offence of people smuggling’. The first, created by s 233B, is committed when a person commits the offence of people smuggling and does so:
(a) intending that the person smuggled ‘will be exploited after entry into Australia’; or
(b) submitting the victim (in the course of committing the offence) to ‘cruel, inhuman or degrading treatment’; or
(c) reckless as to ‘the danger of death or serious harm to the victim’.
Section 233C creates the second form of ‘aggravated people smuggling’. Here, the offence is viewed as aggravated because the smuggling offence relates to at least five persons who are non-citizens and who have no lawful right to come to Australia. Section 233C provides as follows:
(1) A person (the first person) commits an offence if:
(a) the first person organises or facilitates the bringing or coming to Australia, or the entry or proposed entry into Australia, of a group of at least 5 persons (the other persons); and
(b) at least 5 of the other persons are non-citizens; and
(c) the persons referred to in paragraph (b) had, or have, no lawful right to come to Australia.
Penalty:Imprisonment for 20 years or 2,000 penalty units, or both.
(2)Absolute liability applies to paragraph (1)(b);
(3)If, on a trial for an offence against subsection (1), the trier of fact:
(a) is not satisfied that the defendant is guilty of that offence; and
(b) is satisfied beyond reasonable doubt that the defendant is guilty of the offence of people smuggling;
the trier of fact may find the defendant not guilty of an offence against subsection (1) but guilty of the offence of people smuggling, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.
Commonwealth offences
The people smuggling offences created by Subdivision A of Division 12 of the Act are, like other offences under the Act, governed by Chapter 2 of the Commonwealth Criminal Code, enacted by the Criminal Code Act 1995 (Cth) (the ‘Code’).[4] Chapter 2 of the Code codifies the general principles of criminal responsibility with respect to offences against the laws of the Commonwealth. These provisions have applied to all Commonwealth offences since 15 December 2001.
[4]Migration Act 1958 (Cth) s 4A.
Under the Code, an offence consists of physical elements and fault elements. The offence provision will specify the physical element(s) and, in relation to each physical element, whether there is a fault element and, if so, which fault element it is. The various physical elements are identified in Div 4 of Ch 2 of the Code. Section 4.1(1) relevantly identifies three types of physical element, as follows:
4.1 Physical elements.
(1) A physical element of an offence may be:
(a) conduct; or
(b) a result of conduct; or
(c) a circumstance in which conduct, or a result of conduct, occurs.
The fault elements are specified in Division 5 of Ch 2, which relevantly provides as follows:
5.1 Fault elements.
(1) A fault element for a particular physical element may be intention, knowledge, recklessness or negligence.
…
5.2 Intention
(1)A person has intention with respect to conduct if he or she means to engage in that conduct.
…
5.3 Knowledge
A person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events.
5.4 Recklessness
(1) A person is reckless with respect to a circumstance if:
(a)he or she is aware of a substantial risk that the circumstance exists or will exist; and
(b)having regard to the circumstances known to him or her, it is unjustifiable to take the risk.
…
5.6 Offences that do not specify fault elements
(1)If the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element.
(2)If the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element.
Note:Under subsection 5.4(4), recklessness can be established by proving intention, knowledge or recklessness.
The Commonwealth Director drew attention to a document entitled ‘A Guide To Framing Commonwealth Offences, Infringement Notices and Enforcement Powers’[5] (the ‘Guide’). The purpose of the Guide is stated to be as follows:
The [Guide] has been developed by the Criminal Justice Division of the Attorney-General’s Department to assist officers in Australian Government departments to frame criminal offences, infringement notices, and enforcement provisions that are intended to become part of Commonwealth law.
The Guide provides a general overview of the types of things that need to be considered when developing or amending offences and enforcement powers, including relevant principles and precedents.[6]
[5]Attorney General’s Department (Cth), A Guide to Framing Infringement Commonwealth Offences, Infringement Notice and Enforcement Powers (September 2011).
[6]Ibid 5.
Section 2.2.2 of the Guide is headed ‘Physical elements’. We set this section out in full because, as will appear,[7] it was said to have a bearing on the interpretation of s 233C. (The provisions under consideration were drafted in accordance with the Guide):
The different physical elements of an offence should be able to be clearly distinguished
Principle
Criminal offences should generally be expressed in a way that enables each physical element of the offence to be clearly distinguished (either expressly or by construction). In particular, the elements of conduct, circumstances and results constituting the offence should be distinguishable from each other.
Discussion
Under Division 5 of Chapter 2 of the Criminal Code, a fault element (or strict or absolute liability) attaches to each separate physical element of an offence. If no fault elements are specified, the fault element that applies automatically under section 5.6 of the Criminal Code depends on whether the physical element is conduct, a circumstance or a result (default fault elements in the Criminal Code are discussed in subpart 2.2.4 of this Guide).
The ability to distinguish physical elements is particularly important where the default fault elements in the Criminal Code are to apply, so that it is clear which fault elements will apply to the physical elements of the offence. Whilst still important to ensure that physical elements are clear, it is less critical to be able to distinguish physical elements if strict liability or absolute liability attaches to all of the physical elements of the offence. In this situation, it is not necessary to prove a fault element in relation to the physical elements of the offence (see subpart 2.2.6 of this Guide).
The physical elements of an offence can be distinguished in a number of ways. One of the most common ways to achieve this is by placing each physical element in a separate paragraph. This is the approach that is generally used in the Criminal Code and is the preferred drafting model as it separates out each of the physical elements so it is clear how the Criminal Code will apply. However, in other instances, it may be possible to ensure that the physical elements can be distinguished using different drafting methods. Your drafter will be able to advise you on the most effective way to achieve this.[8]
[7]See [74] below.
[8]Guide, 18-19 (emphasis added).
Interpretation of s 233C
As can be seen, s 233C(1) is broken up into three sub-parts. This was said to reflect the approach set out in the Guide, that is, the ‘separating out’ of the physical elements, and ‘the preferred drafting model’ of placing each physical element in a separate paragraph.[9]
[9]See [74] below.
There was no dispute about the second and third elements. We deal first with the paragraph (b) element, which requires that
At least 5 of the other persons are non-citizens.
In accordance with s 233C(2):
Absolute liability applies to paragraph (1)(b).
It was common ground that paragraph (b) contains a single physical element, being
a circumstance in which conduct … occurs.[10]
Because absolute liability applies to that physical element, no fault element has to be established for that physical element, and the defence of mistake of fact is unavailable.[11] In short, the prosecution has only to establish that at least five of the persons referred to in paragraph (1)(a) (‘the relevant passengers’) were non-citizens. (A person is a non-citizen under the Act if he/she ‘is not an Australian citizen’.[12]) It is unnecessary to show that the accused had any awareness of their status as such.
[10]Code s 4.1(1)(c).
[11]Code s 6.2(2).
[12]Migration Act1958 (Cth) s 5.
The paragraph (c) element requires that:
the persons referred to in paragraph (b) … had, or have, no lawful right to come to Australia.
This paragraph can also be seen to contain a single physical element, again being
a circumstance in which conduct … occurs.[13]
[13]Code s 4.1(1)(c).
Section 233C makes no provision for a fault element with respect to this physical element, nor does it provide for the application to it of either strict liability or absolute liability.[14] Accordingly, under s 5.6(2) of the Code, recklessness is the fault element for this physical element. It was common ground that this was so and that, accordingly, the paragraph (c) element could only be established if the Crown proved that:
[14]Code ss 6.1, 6.2.
(a) the applicant was ‘aware of a substantial risk’ that the circumstance existed (that is, the relevant passengers had no lawful right to come to Australia); and
(b) having regard to the circumstances known to him, it was unjustifiable to take that risk.[15]
(The meaning, in the context of s 233C(1), of the phrase ‘no lawful right to come to Australia’ is considered further below.[16])
[15]Code s 5.4(1).
[16]See [42]–[44] below.
We turn now to the paragraph (a) element, which is in these terms:
the [accused] organises or facilitates the bringing or coming to Australia, or the entry or proposed entry into Australia, of a group of at least 5 persons.
The prosecution argument involves the following steps:
1.Paragraph (a) contains a single physical element, namely,
organises or facilitates the bringing or coming to Australia, or the entry or proposed entry into Australia, … of a group of at least 5 persons.
2.This is a physical element that consists only of conduct.
3.Since no fault element is specified for this physical element, intention is the fault element: Code s 5.6(1).
4.Under s 5.2(1) of the Code, a person has intention in relation to conduct ‘if he or she means to engage in that conduct’.
5.The conduct in which the person ‘means to engage’ is conduct directed at the conveyance of at least five persons to, or their entry into, a place which is in fact (part of) Australia, whether or not the defendant knows or suspects that the destination is (part of) Australia.
6.Accordingly, paragraph (a) will be satisfied in the present case if the Crown proves that the applicant meant to take a group of five or more persons from place A to place B if, as a matter of law, place B is part of ‘Australia’.
As noted earlier, the trial judge accepted the Director’s argument. His Honour said:
I do not accept the Defence submission to the effect that ss 233C(1)(a) requires proof of knowledge or belief on the part of the accused that the immediate or ultimate and intended destination of what was clearly a people smuggling venture was Australia. Put simply, my analysis of the effect of subsection 233C(1)(a) of the Act is as follows. It defines the first physical element of the offence. That physical element is conduct. The ‘conduct’ alleged is that the accused facilitated the bringing or coming of a group of at least 5 persons to a place, namely Christmas Island, which is deemed to be part of Australia. The subsection does not specify a fault element. The physical element consists only of conduct. By virtue of s 5.6(1) of the Criminal Code the relevant fault element is ‘intention’. The Prosecution must prove that the accused meant to facilitate the bringing of the group of at least 5 persons to the place which is called Christmas Island. If the Prosecution can prove those facts, nothing more is required. The Prosecution would thereby prove that the accused was aware of all of the facts which constitute that physical element of the offence. Section 7 of the Act deems Christmas Island to be part of Australia for the purposes of the Act. That is a matter of law. Subsection 9.3 of the Criminal Code applies so that it is not necessary for the Prosecution to prove that the accused was aware of the legal status of Christmas Island as part of Australia.
In seeking leave to appeal to this Court, the applicant advanced two submissions in the alternative. The first, which was said to be the ‘preferred’ position, accepted all but the last two of the steps in the prosecution’s argument. As to these, it was said, the applicant must be shown to have known that the intended destination was a country called Australia. He must be shown to have appreciated the ‘nature and quality’ of his conduct and this must necessarily involve showing that he was intending to facilitate the conveyance of persons to (or their entry into) Australia.
The alternative argument was that paragraph (a) should be construed as containing two physical elements, each attracting a different fault element. According to this argument, the first physical element was the act of organising or facilitating, which was ‘conduct’ within the meaning of the Code. The fault element with respect to this conduct was intention. The second physical element was ‘the bringing or coming to Australia of a group of at least five persons’. This physical element was to be characterised as ‘a result of conduct’. There being no fault element specified in relation to this second physical element, being a result, the fault element must be recklessness.[17] We defer consideration of the alternative argument until later in these reasons.[18]
[17]Code s 5.6(2).
[18]See [87]-[88] below.
As we have said, the applicant’s primary submission accepted that the paragraph (a) element contained a single physical element, being conduct, and that the fault element in relation to that physical element was intention. To prove the requisite intention, however, it was not sufficient (so the applicant submitted) for the prosecution to prove that
the accused merely facilitated the bringing or coming of at least five persons to a place which happens, as a matter of legislative definition, to be part of Australia. The prosecution must prove an intention that the destination was ‘Australia’ ie an intention to leave one state and enter another.
…
[t]he accused need not know the definition of ‘Australia’. However, the accused must know or appreciate the quality of the destination in a practical sense; that the place is not just ’B’ on the map, but is the territory of another country whose territory is to be violated, namely Australia. That is, there must be proof that the accused knew/believed that the destination [Christmas Island] was part of another country namely Australia.
Senior counsel for the Director accepted in argument that, in order to establish the paragraph (a) element, the accused would need to be shown to have understood that he was ‘facilitating the bringing of persons to a particular destination’. That is, it would need to be established that the accused knew he was facilitating an enterprise of that character. It did not follow, however, that for paragraph (a) the accused needed to be aware that the enterprise he was facilitating was directed at enabling the entry of those on board into Australia, or even into the territory of another nation.
According to the Director’s submission, the status of the intended destination as part of Australia is a matter of law. In this statutory context, it is said, the word is used in a ‘geographical sense’,[19] to refer to all the physical places that constitute ‘Australia’ for the purposes of the Act. The identification of those places is a question of law.
[19]A usage of ‘Australia’ recognised by Acts Interpretation Act 1901 (Cth) s 2B.
According to the Director’s written submission:
Where, as in s 233(1)(a), the physical element is simply an ‘act’, it is not necessary to prove knowledge in order to prove intention to engage in that act. A person can mean to engage in an act without knowing or appreciating the legal character of that act. Accordingly, if the prosecution can prove that the accused meant to steer a boat with 5 or more passengers from Place A to Place B, element (a) is satisfied if, as a matter of law, Place B is part of ‘Australia’. That construction gives effect to the ordinary meaning of the words, and it gives the fault element of intention work to do for the entirety of the corresponding physical element. It does not attach absolute liability to this element, because no offence is committed if, for example, the accused intends to sail to another island in Indonesia, but gets lost and mistakenly arrives at Christmas Island.
Ignorance of the legal status of Place B does not negate an intention to bring people to that place. Section 9.3(1) of the Code confirms that ignorance of ‘the existence or content of an Act that … directly or indirectly affects the scope or operation’ of an offence is no excuse. While s 9.3(1) does not apply if ‘the Act is expressly to the contrary effect’ (Code s 9.3(2)), s 233C does not so provide. Express provision generally takes the form of a fault element of ‘knowledge’ with respect to a matter of law. Absent such a fault element, there is ‘no requirement to prove that the accused appreciated that his conduct was unlawful or wrong’.[20]
[20]Emphasis added.
Section 2B of the Acts Interpretation Act 1901 (Cth) contains the following definition of ‘Australia’ when used in a Commonwealth Act:
Australia means the Commonwealth of Australia and, when used in a geographical sense, includes the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands, but does not include any other external Territory.
Section 15B of that Act provides:
Coastal sea of Australia
(1)An Act is taken to have effect in, and in relation to, the coastal sea of Australia as if that coastal sea were part of Australia.
(2)A reference in an Act to Australia, or to the Commonwealth, is taken to include a reference to the coastal sea of Australia.
The Director relied on the decision of the High Court in The Queen v Wei Tang.[21] The Court was there concerned with offences of intentionally possessing a slave or exercising over a slave another power – in that case, using – attaching to the right of ownership. It was common ground that the prosecution did not need to prove that the defendant knew or believed that the victim was a slave, or even that she knew what a slave was.
[21](2008) 237 CLR 1.
Gleeson CJ said:
If a person is known by an accused to possess the qualities that … go to make that person a slave, then the state of knowledge relevant to intention, and therefore intention itself, may be established regardless of whether the accused appreciates the legal significance of those qualities. An accused does not have to know anything about the law in order to contravene s 270.3(1)(a) [of the Code].
In so far as a state of knowledge or belief is factually relevant to intention as the fault element of the [slavery] offence, it is knowledge or belief about the facts relevant to possession or using, and knowledge or belief about the facts which determine the existence of the condition [of slavery] described in s 270.1. This is a condition that results from the exercise of certain powers. Whether the powers that are exercised over a person are ‘any or all of the powers attaching to the right of ownership’ is for a jury to decide in the light of a judge’s directions as to the nature and extent of the powers that are capable of satisfying that description.[22]
[22]Ibid 25 [48]–[49].
According to the Director, the same distinction is to be drawn in the present case. That is, while it must be shown that the applicant was aware of the intended destination (in this case, Christmas Island), it need not be established that he ‘appreciated the legal significance’ of that fact, that is, that Christmas Island was part of Australia. We deal with this submission later in these reasons.[23]
[23]See [89] below.
Consideration
In what might be called the traditional form of a criminal statute, the provision creating a criminal offence typically consists of a single sentence. For example, s 75(1) of the Crimes Act 1958 (Vic) creates the offence of robbery in these terms:
A person is guilty of robbery if he steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear that he or another person will be then and there subjected to force.
The Commonwealth Code, by contrast, defines offences by disaggregating them into their constituent elements. This reflects the Code’s foundational distinction between physical elements and fault elements, and the need to specify clearly, in relation to each physical element of an offence, whether there is, or is not, a fault element for that physical element and, if so, to specify the relevant fault element.
As noted earlier, s 233C was drafted in this way and is governed by the relevant Code provisions. The disaggregation of the offence created by s 233C(1) into three sub-parts enabled the Parliament to make provision with respect to one of those parts (the paragraph (b) element) that absolute liability applied to it. No fault element was specified for either the paragraph (a) element or the paragraph (c) element.
As the present case illustrates, the risk with this form of drafting is that debates over interpretation will focus on only one part of an offence provision. This may explain why, seemingly, no argument was addressed to the trial judge about the relevance of the paragraph (c) element to the construction of the provision as a whole. That element was at the forefront of the applicant’s arguments in this Court, however, and it does have a significant bearing on the question of interpretation.
On ordinary principles of statutory interpretation, however, the provision must be read as a whole. The language used in any part of an offence provision must be construed in the context of the provision, and the Act, as a whole.[24]
[24]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381 [69] (‘Project Blue Sky’).
Parliament’s intention may be more clearly exposed when the offence provision is read as one, that is, as if the separate parts constituted a single whole. Taking that approach, s 233C(1) can be read as follows (excluding fault elements):
A person commits an offence if that person organises or facilitates the bringing or coming to Australia, or the entry or proposed entry into Australia, of a group of at least five persons who are not Australian citizens and who had, or have, no lawful right to come to Australia.
If the Director’s submission in relation to the word ‘Australia’ were correct, however, the offence provision would be read differently, as follows:
A person commits an offence if that person organises or facilitates the bringing or coming to a place, or the entry or proposed entry into that place, of a group of at least five persons who are not Australian citizens and who had, or have, no lawful right to come to that place, provided that the place is part of Australia (as defined).
As we have said, the Director contends that it is not necessary to show that the accused knew that the place in question was part of Australia. It is sufficient for the prosecution to establish that it was, as a matter of law, part of Australia.
On the Director’s submission, the word ‘Australia’ when used in paragraph (c) has the same usage as it has in paragraph (a). That is, it is concerned with (and only with) the intended destination. As to the paragraph (c) element (the absence of a lawful right to come to the place), in relation to which the accused must be shown to have been reckless, the Director submits that it would be sufficient to prove that the accused had been aware of ‘a substantial risk’ that the non-citizens had no lawful right to come to the intended destination. It would not be necessary to show that the accused knew that the place in relation to which that risk existed was Australia.
In response to questions from the Court, counsel for the Director confirmed that an offence would be committed under s 233C(1) even where the accused honestly believed that he was organising or facilitating the bringing of the relevant group of persons to New Zealand, or their entry into New Zealand, provided that it could be established that the destination to which he was intentionally directing his activity was – in law – a part of Australia. The accused would have committed the offence, counsel submitted, because he would be taking them to the intended destination, reckless as to whether or not they had any lawful right to enter that destination.
According to the Director, it was sufficient if the defendant had the intention ‘to go to a place that is in fact a part of Australia’. Parliament should not be taken to have made the efficacy of its people smuggling provisions contingent upon the accuracy or otherwise of the geographical understandings of those who engaged in the activity.
In our view, the plain meaning of the language used in s 233C(1) counts against this construction. What is critical, in our view, is the requirement that the accused be shown to have been reckless with respect to the paragraph (c) element, that is, that the non-citizens being conveyed ‘had, or have, no lawful right to come to Australia.’
That concept is defined, for the purposes of Subdivision A of Division 12, by s 228B, which provides as follows:
(1)For the purposes of this Subdivision, a non‑citizen has, at a particular time, no lawful right to come to Australia if, at that time:
(a)the non‑citizen does not hold a visa that is in effect; and
(b)the non‑citizen is not covered by an exception referred to in subsection 42(2) or (2A); and
(c)the non‑citizen is not permitted by regulations under subsection 42(3) to travel to Australia without a visa that is in effect.
(2)To avoid doubt, a reference in subsection (1) to a non‑citizen includes a reference to a non‑citizen seeking protection or asylum (however described), whether or not Australia has, or may have, protection obligations in respect of the non‑citizen:
(a)under the Refugees Convention as amended by the Refugees Protocol; or
(b)for any other reason.
Unsurprisingly, this definition of ‘no lawful right to come to Australia’ is concerned with – and only with – rights of entry into Australia. It follows, in our view, that by requiring proof of the defendant’s recklessness as to the absence of that lawful right, Parliament intended to require proof that the accused was ‘aware of a substantial risk’ that none of the relevant persons had a lawful right to come to Australia. That is, the defendant must have turned his mind to the existence of that risk, in relation to that particular country, and decided, unjustifiably, to take the risk. On this view, the word ‘Australia’ when used in paragraph (c) does not mean ‘the intended destination of the voyage, provided that it is in fact part of Australia’. It means a place known to the accused as Australia.
The Director submitted, in the alternative, that even if this were so with respect to the paragraph (c) element, it did not follow that the offender had to be shown – for the purposes of the paragraph (a) element – to have known that the destination of the journey was Australia. To give a different meaning or usage to the word ‘Australia’ in two parts of the same subsection might be thought to conflict with the presumption of statutory interpretation that, where the same word is used more than once in a statute, Parliament intends it to have the same meaning each time. But that presumption is readily rebuttable[25] and would, we think, be likely to give way in interpreting provisions such as the present, where different fault elements are attributed to the different physical elements of the same offence.
[25]D C Pearce, R S Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 7th ed, 2011) [4.7].
Rather, the answer lies in the interpretive task itself. Axiomatically, Parliament’s intention is to be discerned from the words actually used in the statute, as understood in the context of the statute as a whole.[26] For reasons which follow, approaching the task in this way leads to the conclusion that Parliament intended to criminalise conduct knowingly directed at the conveyance of persons to, or their entry into, Australia.
[26]Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252, 264–5 [31]–[32]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, 46–7 [47].
As noted earlier, the prohibited cargo under paragraph (b) is ‘persons who are not Australian citizens’. Though the accused need have no knowledge of their (lack of) citizenship status, he must be shown to have had an awareness of a substantial risk that they had no right to enter Australia. In that context, the language of paragraph (a) means what it says, in our view. It prohibits the intentional organisation, or facilitation, of conduct directed at conveying the non-citizens to, or into, Australia, the accused being aware of the substantial risk that they have no lawful right to enter that country.
The conduct defined by paragraph (a) is purposive conduct. It is conduct directed at achieving a particular result (or one of a number of possible results). Both the word ‘organise’[27] and the word ‘facilitate’[28] are active verbs, describing conduct directed at producing a result or outcome. To characterise the prohibited conduct as purposive is, of course, quite separate from the Code requirement that the conduct be shown to have been engaged in intentionally.
[27]Which means ‘arrange personally; take responsibility for providing (something)’: New Shorter Oxford Dictionary (Oxford University Press, 1993) 2020.
[28]Which means ‘make easy or easier; promote; help forward (an action result etc)’: New Shorter Oxford Dictionary (Oxford University Press, 1993) 903.
It is of the very essence of the people smuggling offences created by Subdivision A of Division 12 that they are intended to prevent the entry into Australia of persons who have no lawful right to enter. For this reason, it is important not to lose sight of the phrase ‘the entry or proposed entry into Australia’ in paragraph (a), that being one of the prohibited objects of the act(s) of organising or facilitating.[29] That is not, of course, the object which the present applicant is accused of having pursued, but whatever construction of paragraph (a) is adopted must accommodate that alternative.
[29]The same phrase appears in the people smuggling offence itself: s 233A(1)(a). One of the alternative forms of aggravated people smuggling is committed when the smuggler ‘intends that the victim will be exploited after entry into Australia’: s 233B(1)(a).
The two phrases in paragraph (a) – ‘the bringing or coming to Australia’ and ‘the entry or proposed entry into Australia’ – link directly with the paragraph (c) element, concerned with the non-existence of rights of entry into Australia. When (a) and (c) are read together, as they must be, it is evident that the purposive conduct which Parliament intended to prohibit was conduct directed at Australia, that is, conduct directed at bringing about the arrival of the relevant passengers at, or their entry into, the country to which (to the offender’s knowledge) they may well have no lawful right of entry. Further, it seems to us to be a necessary corollary of the (lesser) fault element of recklessness in paragraph (c) – requiring the accused to have adverted to the issue of rights of entry into Australia – that the (greater) fault element of intention in paragraph (a) requires awareness that Australia is the destination.
This interpretation gives the provision the necessary degree of internal coherence. It also accords with Parliament’s manifest purpose.[30] It is plain, in our view, that this offence, with its very substantial maximum penalty of 20 years’ imprisonment, was designed to deter persons from intentionally bringing non-citizens to Australia, being aware that they may well have no right to come to Australia.
[30]Project Blue Sky (1998) 194 CLR 355, 381 [69].
As we have said, the alternative argument for the Director was that, even if awareness of Australia was required for paragraph (c), it was not required for paragraph (a). But, if this differential reading were adopted, it would have the result that an offence was committed if the offender
organised or facilitated the entry of the relevant persons into a place (which was in fact part of Australia), being reckless as to whether those persons had a lawful right to come to Australia.
For the reasons we have given, this interpretation must be rejected.
The foregoing analysis is based on reading s 233C(1) as a whole. As will appear, however, the same conclusion is arrived at when attention is focused solely on the paragraph (a) element.
Offence elements involving legal status or character
As we have already said, the conduct defined by paragraph (a) is purposive conduct, directed at producing an outcome. On the Director’s argument, it is conduct directed towards a target destination, directed at the conveyance of non-citizens to that destination or their entry (or proposed entry) into that destination.
For the offence to be committed, the Director submits, that destination must have the status (or legal character) of being part of Australia. The Director’s case, however, is that the accused need not be shown to have known that the target destination had that character or status.[31] Indeed, as noted earlier, the corollary of the Director’s argument is that it would not avail a defendant that he honestly believed that the destination had a quite different status, namely, that it was (or belonged to) another nation altogether, provided that the destination was in law part of Australia.
[31]Counsel for the Director submitted that the existence of such knowledge would be sufficient, but was not necessary, to establish the paragraph (a) element.
The Code contains a number of provisions in which it is an element of the offence that the object or target or victim of the offence have a particular legal status or character. It is instructive to observe the precision with which the legislature has addressed, provision by provision, the question whether proof of the relevant offence will require proof of the defendant’s awareness that the target had that status or character. As will appear, in very many instances – including in the people smuggling offences – express provision is made that no such proof is required.
For example, Division 71 of the Code is headed ‘Offences against United Nations and associated personnel’. Section 71.2(1) makes it an offence to cause the death of another person who:
·is ‘a UN or associated person’; and
·is ‘engaged in a UN operation that is not a UN enforcement action’.
Under s 71.2, strict liability applies to both those aspects of the victim’s status. In other words, the prosecution need not establish that the accused had any awareness that the victim had that status.
A cognate example is provided by s 132.4(6) of the Code, which makes it an offence to enter, as a trespasser, a building which is ‘owned or occupied by a Commonwealth entity’, with intent to commit an offence. Under s 132.4(8), absolute liability applies to ‘the paragraph (6)(c) element of the offence’, that is, the circumstance that the building is owned or occupied by a Commonwealth entity. It is sufficient that the accused enters a building which is in fact a building of that character. He need not be shown to have had any awareness that it had that character. [32]
[32]There are, to similar effect, multiple instances of dishonesty offences under the Code, all defined by reference to property which ‘belongs to a Commonwealth entity’. In every instance, the offence provision makes it unnecessary to prove that the defendant knew that the property belonged to a Commonwealth entity: see ss 132.1(2A), 132.2(3), 132.3(2A). In s 131.1(3), that element is made a matter of absolute liability.
In some instances, the element in question is purely a matter of law. For example, s 132.4(3) makes it an offence for a person to enter a building, as a trespasser, with intent to commit an offence in the building that involves causing harm to another person or damage to property, being ‘an offence against a law of the Commonwealth’. Section 132.4(3A) expressly provides that it is not necessary to prove that the defendant knew that the offence was an offence against the law of the Commonwealth.
Again, s 302.2 makes it an offence to traffick in a quantity of a controlled drug which is a commercial quantity. Under s 302.2(3) absolute liability applies to the element of the offence (the circumstance) that the quantity trafficked is a commercial quantity. It is, of course, a question of law whether a particular quantity of a particular controlled drug is or is not a commercial quantity of that drug. Section 314.1 of the Code specifies the relevant quantities for 15 different controlled drugs.
The paragraph (a) element – legal status of intended destination
These examples demonstrate very clearly, in our view, that where the legal status of the target or victim of the prohibited conduct (or the legal character of the conduct) is an element of a Commonwealth offence, the legislature is able to, and routinely does, make express provision relieving the prosecution of any obligation to establish any awareness on the part of the accused that the target or victim had that status or that the conduct had that character.
Importantly, s 233C contains one – but only one – such relieving provision. As discussed earlier, the paragraph (b) element requires that the relevant passengers have the legal status of being non-citizens. Section 233C(2) expressly relieves the prosecution of the obligation to show that the accused knew or believed that the passengers had that status.
No such provision was made with respect to the paragraph (a) element. The effect of the submission for the Director, however, is that that element should be read as if a similar relieving provision had been included in relation to the legal status of the destination. That is, paragraph (a) should be understood as requiring proof of intentional engagement in the purposive conduct of conveying the passengers to a particular destination, but no proof of awareness on the part of the offender that the target of the purposive conduct – the destination – had the legal status of being part of Australia.
Had it been Parliament’s intention to relieve the prosecution of that obligation, we have little doubt that provision could, and would, have been made to that effect. A similar conclusion was reached, in the context of a different Commonwealth offence, by the New South Wales Court of Criminal Appeal (‘NSWCCA’) in R v J S.[33]
[33](2007) 175 A Crim R 108 (‘J S’).
The decision in J S
The offence in question in J S was that created by s 39 of the Crimes Act 1914 (Cth), which provided:
Any person who, knowing that any book, document or other thing of any kind, is or may be required in evidence in a judicial proceeding, intentionally destroys it or renders it illegible … with intent thereby to prevent it from being used in evidence, shall be guilty of an offence.
At issue was the proper construction, in accordance with the Code, of the phrase ‘knowing that [the item] is or may be required in evidence in a judicial proceeding.’
The phrase ‘judicial proceeding’ was defined to mean a federal proceeding, that is, a proceeding before a federal court or a court exercising federal jurisdiction or a court of a Territory. The NSWCCA (Spigelman CJ, with whom Mason P, McClellan CJ at CL, Hidden and Howie JJ agreed) held that
the physical element of ‘a judicial proceeding’, and the particular character of such proceeding as a federal proceeding, constitute a ‘circumstance in which conduct’ ie the alleged involvement in the destruction of information, occurred.[34]
[34]Ibid 133 [125] (emphasis added).
The question, therefore, was whether the fault element of knowledge applied to ‘the characterisation of the proceedings as “federal”’.[35] The Court concluded that it did. Spigelman CJ pointed out that it had been open to the legislature to provide that there was no fault element in relation to that physical element, but that had not been done. His Honour continued:
Furthermore, a similar result could have been achieved by providing in the offence, again expressly, that the offence was one of absolute liability, at least with respect to the particular physical element of the offence constituted by the federal character of the requisite proceedings, for which express provision is made in clause 6.2(2) of the Criminal Code. Again, no such provision was made.[36]
[35]Ibid 133 [128].
[36]Ibid 133 [131] (emphasis added).
His Honour drew attention, by way of contrast, to the legislative treatment of the Crimes Act 1914 offence of conspiracy to pervert the course of justice.[37] Until its amendment in 2001, that offence had been expressed in the following terms:
[37]Ibid 134 [135]-[136].
42(1).Any person who conspires with another to obstruct, prevent, pervert, or defeat, the course of justice in relation to the judicial power of the Commonwealth, shall be guilty of an indictable offence.
The amendment in 2001 added the following subsection:
42(2).For the purposes of an offence against subsection (1), absolute liability applies to the physical element of circumstance of the offence, that the judicial power is of the Commonwealth.
The amendment made it clear, Spigelman CJ said, that the drafter
had carefully considered the interconnection between the physical element constituted by the ‘circumstance’ of ‘judicial power’ and the fault element to be attached to that particular physical element.[38]
[38]Ibid 134 [138].
In the case of both the s 39 offence and the s 42 offence, it was an element of the offence that the object or target of the prohibited conduct have a particular legal status or character. In the case of the s 39 offence, it was that the proceeding (in which the intentionally-destroyed item might have been required as evidence) have the status or character of being a federal proceeding. In the case of the s 42 offence, it was that the ‘course of justice’ (which the alleged conspirator(s) had agreed to obstruct or pervert) have the status or character of being the course of justice in relation to ‘the judicial power of the Commonwealth’.
That the element in question concerned legal status or character did not preclude the ‘attachment’ to it of a fault element. As Spigelman CJ said:
No provision of the Code states that a physical element which is a question of law for the judge cannot have attached to it a fault element which the jury must decide. The Code makes no direct distinction between questions of law and questions of fact. It does, however, make express provision for decoupling a specific physical element, relevantly a question of law, from any fault element. This can be done by either providing that no fault element applies to that physical element (under s 3.1(2)) or by specifying that strict or absolute liability applies to the offence (under s 6.1 or s 6.2). Neither was done here.[39]
[39]J S (2007) 175 A Crim R 108, 137 [152].
So too in the present case. The paragraph (a) element of the offence is only made out if the targeted destination has the legal status or character of being part of Australia. If Parliament had intended to exclude the need to prove the defendant’s awareness of the legal status of the destination, this could – and surely would – have been done.[40]
[40]We refer, for example, to s 91.1(3) of the Code. Under that section, it is an offence to make, obtain or copy a record (in any form) of information concerning the Commonwealth’s security or defence, and to do so ‘intending that the record will, or may, be delivered to another country or a foreign organisation …’ It is expressly provided by s 91.1(5) that ‘the person concerned does not need to have a particular country … in mind at the time when the person makes, obtains or copies the record’.
The Director submits, however, that the decision in J S is of no assistance in resolving the present question. According to the written submission:
The offence in question in that case contained a physical element of ‘circumstance’ (the existence of a federal judicial proceeding) with a corresponding fault element of ‘knowledge’. It was that combination of elements that meant that the prosecution could not succeed without proving knowledge of a matter of law. There is no equivalent combination of elements in s 233C.
The Director is, of course, correct that the structure of s 39 of the Crimes Act1914, as considered in J S, is different from the structure of s 233C of the Act. The physical element of the s 39 offence in relation to which the accused’s knowledge had to be established was ‘a circumstance’, within the meaning of s 4.1(1)(c) of the Code. As Spigelman CJ said:
In the present case the characterisation of the proceedings as ‘federal’ must be accepted to be either a component part of the single circumstance of judicial proceeding or a separate circumstance. In either event, the issue has to be determined as to whether or not the fault element of knowledge expressed in s 39 applies to that circumstance.[41]
In the present provision, by contrast, the characterisation of the destination as ‘Australia’ is to be found in a single physical element, being conduct, to which the fault element of intention applies.
[41]J S (2007) 175 A Crim R 108, 133 [128].
It follows, so the Director submits, that – in contrast to J S – the characterisation of the destination as Australia cannot be a ‘circumstance’. Otherwise the paragraph (a) element would have to be interpreted as including both a physical element of conduct and a physical element of circumstance. This would mean that – by virtue of s 5.6 of the Code – different fault elements would be applicable to the component parts of paragraph (a). The fault element for the conduct would be intention; and the fault element for the circumstance would be recklessness. It was submitted that the Court should reject such an interpretation, as it would ‘significantly complicate’ the jury’s task. It was also said that the drafting convention (that there be only one physical element in each paragraph) counted against such an interpretation. (As will appear, the Director unsuccessfully advanced a very similar interpretation, of a different Commonwealth provision, in R v Saengsai-Or.[42])
[42](2004) 61 NSWLR 135 (‘Saengsai’). See [80] below.
The significance of the decision in J S lies not in what was said about the particular provision there under consideration. Rather, its significance lies in the statements of principle about the attachment of a fault element to a matter of legal status or character. On the authority of J S, it is no answer for the Director to assert that the status of the destination as Australia is a question of law. That it has that status is an ingredient of the paragraph (a) element, to which the fault element of intention applies.
What must be established is an intention ‘to do the whole act that is prohibited’.[43] That means, in our view, that the defendant must be proved to have been aware that what he was organising or facilitating was a conveyance of the relevant persons to, or their (proposed) entry into, Australia.
[43]He Kaw Tehv The Queen (1985) 157 CLR 523, 584 (‘He Kaw Teh’): see [82] below.
Proof of intention
In He Kaw Teh v The Queen,[44] the High Court adopted as a correct statement of the law on mens rea what had been said 50 years earlier by Jordan CJ in R v Turnbull,[45] as follows:
[I]t is also necessary at common law for the prosecution to prove that [the accused] knew that he was doing the criminal act which is charged against him, that is, that he knew that all the facts constituting the ingredients necessary to make the act criminal were involved in what he was doing. If this be established, it is no defence that he did not know that the act which he was consciously doing was forbidden by law. Ignorance of the law is no excuse. But it is a good defence if he displaces the evidence relied upon as establishing his knowledge of the presence of some essential factual ingredient of the crime charged.[46]
[44]Ibid 531 (Gibbs CJ), 572 (Brennan J).
[45](1943) 44 SR (NSW) 108, 109.
[46]Emphasis added.
Much more recently, in Ansari v The Queen[47] the plurality judgment said in relation to Code offences:
Proof of intention to commit an offence requires proof of the accused’s knowledge of, or belief in, the facts that make the proposed conduct an offence. Fault elements are specified with respect to physical elements of an offence. They are defined in Div 5 of Pt 2.2 in a descending order of culpability: intention, knowledge, recklessness and negligence. The most blameworthy fault element is intention and the least blameworthy is negligence.
[47](2010) 241 CLR 299, 318 [59] (Gummow, Hayne, Heydon, Crennan, Kiefel, Bell JJ) (footnotes omitted).
The fault element of intention was addressed by the NSWCCA in Saengsai.[48] The Court was there concerned with the following provision of the Customs Act 1901 (Cth):
[48](2004) 61 NSWLR 135.
233B Special provisions with respect to narcotic goods
(1) Any person who:
¼
(b)imports into Australia any prohibited imports to which this section applies or exports from Australia any prohibited exports to which this section applies;
¼
shall be guilty of an offence.
The submission for the Commonwealth Director in that case was that
the correct way to analyse the offence created by s 233B(1)(b) in conformity with the provisions of the Criminal Code (Cth) is that it has a physical element of conduct (the act of importing a thing into Australia); and a physical element of circumstance in which the conduct occurs (that the thing imported is a prohibited import to which s 233B(1) applies). The fault element that applies by operation of s 5.6 is intention for the physical element of conduct and recklessness for the physical element of circumstance in which the conduct occurs.[49]
[49]Ibid 143-4 [54].
The Court (Bell J, with whom Wood CJ at CL and Simpson J agreed) rejected this submission, holding that
the physical element of the offence created by s 233B(1)(b) is one of conduct: the act of importing into Australia any prohibited import to which the section applies. In respect of this physical element, which consists only of conduct, the provisions of s 5.6(1) of the Criminal Code (Cth) apply. Intention is the fault element.[50]
[50]Ibid 148 [72].
In Bell J’s view, the Code ‘reflects aspects of the analysis of criminal responsibility under the common law found in the judgment of Brennan J in He Kaw Teh.’[51] In that case, as her Honour noted, Brennan J had considered and rejected the contention that ‘the act’ in importing prohibited imports into Australia (to which s 233B(1)(b) applied) was the act of importing the container or thing alone. Bell J quoted[52] the following passage from the judgment of Brennan J:
Importing simpliciter is not an act nor is it defined to be a prohibited act in par (b). Importing narcotic goods is an act; it is the act referred to in par (b). The character of the act involved in the offence depends on the nature of the object imported. The paragraph thus impliedly requires an intent to do the prohibited act — importing narcotic goods — and thus requires knowledge of the nature of the object imported. It is impossible to divide the act involved in an offence under par (b) into an act and circumstances attendant on its occurrence. The external elements of an offence under par (b), unlike the offence considered in Reynhoudt ((1962) 107 CLR 381) cannot be divided. An intention ‘to do the whole act that is prohibited’ – the view of Dixon CJ in Reynhoudt (at p 387) — is, in my opinion, the only view which the language of par (b) permits. The ‘prima facie principle of the common law, the natural application of the principle to the provision and the absence of anything to rebut it’ lead to the conclusion that the state of mind required with reference to the object imported is knowledge that it is narcotic goods. If there were no mental element required with reference to the object imported but merely an intent to perform the physical movements involved in importation, many innocent persons could not escape conviction.[53]
[51]He Kaw Teh (1985) 157 CLR 523 (‘He Kaw Teh’).
[52]Saengsai (2004) 61 NSWLR 135, 145 [59].
[53](1985) 157 CLR 523, 584 (emphasis added).
Her Honour referred also to Kural v The Queen,[54] where the High Court again considered the mental element with respect to the drug importation offence. As Bell J noted, the joint judgment of Mason CJ, Deane and Dawson JJ in Kural explained that actual knowledge was not required to establish the relevant mens rea but that knowledge or belief were relevant to proof of intention. Her Honour cited[55] the following passage from the joint judgment:
So also would proof that the forbidden act was done in circumstances where it appears beyond reasonable doubt that the accused was aware of the likelihood, in the sense that there was a significant or real chance, that his conduct involved that act and nevertheless persisted in that conduct. As a practical matter, the inference of mens rea or a guilty mind will ordinarily be irresistible in cases involving the importation of narcotic drugs if it is proved beyond reasonable doubt that the accused actually imported the drugs and that he was aware, at the time of the alleged commission of the offence, of the likelihood of the existence of the substance in question in what he was importing and of the likelihood that it was a narcotic drug.[56]
[54](1987) 162 CLR 502.
[55]Saengsai (2004) 61 NSWLR 135, 147 [67].
[56]Kural v The Queen (1987) 162 CLR 502, 505.
Bell J then said:
The distinction between proof that an accused person intended to import narcotic goods and proof that he or she was reckless as to the circumstance that the thing imported contained narcotic goods is to my mind a real one. The joint judgment in Kural contains discussion of how the Crown might prove the existence of the intention to import the prohibited imports by a process of inferential reasoning. The inquiry remains one of proof of intention.[57]
[57]Saengsai (2004) 61 NSWLR 135, 147 [69] (emphasis added).
So too in the present case. The ‘inquiry’ in relation to the paragraph (a) element remains one of proof of intention. Intention is the most blameworthy of the fault elements[58] and, as Bell J said, no lesser proof will suffice. This means, in our view, that it must be shown not only that the accused intended to organise or facilitate a conveyance of the relevant persons, but that he intended that they be taken to Australia. As in Saengsai, so in the present case, Parliament intended that the fault element of intention apply to the entirety of the conduct in paragraph (a). As the Director accepts, it is part of the ‘conduct’ that the destination had the status of being part of Australia. The fault element of intention must therefore apply to that matter of legal status, no provision to the contrary having been made.
[58]Ansari v The Queen (2010) 241 CLR 299, 318 [59].
On this application, as in J S, the Director relied on s 9.3(1) of the Code, which provides:
A person can be criminally responsible for an offence even if, at the time of the conduct constituting the offence, he or she is mistaken about, or ignorance of, the existence or content of an Act that directly or indirectly creates the offence or directly or indirectly affects the scope or operation of the offence.
Here, as in J S, that reliance is misplaced. As Spigelman CJ explained, ‘knowledge that a matter has a legal character is not equivalent to knowledge of the law.’[59]
[59](2007) 175 A Crim R 108, 137 [154].
We referred earlier to the applicant’s alternative (non-preferred) argument, namely, that paragraph (a) should be interpreted as comprising a physical element of conduct and a physical element of ‘result of conduct’.[60] As noted, this interpretation would have the consequence that paragraph (a) had two different fault elements, namely, intention for the conduct element and recklessness for the result element.
[60]See [23] above
If, contrary to our view, this is how paragraph (a) is to be interpreted, our conclusion would be unchanged. Proof of the paragraph (a) element would still require proof of the accused’s awareness (to the level required by the fault element of recklessness) of the legal status of the destination.
As noted earlier, the Director relied on the High Court decision in Wei Tang. The foregoing analysis enables us to explain the basis on which that decision is to be distinguished, as follows. In relation to the offence of ‘possessing a slave’, the victim of the offence did not have the status or character of being a ‘slave’ independently of the conduct alleged to have been engaged in by the accused. As appears from the passage from the judgment of Gleeson CJ set out earlier,[61] it was the intentional engagement of the accused in conduct of a particular character which constituted the victim a ‘slave’. The victim could not, of course, have had that status independently of the accused’s conduct because, as the judgments pointed out, Australian law recognises no such status. No question, therefore, arose of any necessity to prove that the accused was aware that the target of her conduct had any particular legal status.
[61]See [30] above.
We should add, for completeness, that the applicant’s submissions initially placed reliance on the decision of the Western Australian Court of Appeal in Bahar v The Queen.[62] It was subsequently conceded – correctly, in our view – that the question which arises on the present application did not fall for decision in that case. Quite different issues were there under consideration.
[62](2011) 255 FLR 80.
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