The Director of Public Prosecutions v Booth
[2018] ACTCA 8
•29 March 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | The Director of Public Prosecutions v Booth |
Citation: | [2018] ACTCA 8 |
Hearing Date: | 20 February 2018 |
DecisionDate: | 29 March 2018 |
Before: | Murrell CJ, Burns and Bromwich JJ |
Decision: | Questions of law answered at [115]. |
Catchwords: | CRIMINAL LAW – REFERENCE APPEAL – claim of right – whether intent to commit theft is a fault element of the offence of burglary under the Code – whether a s 38 mistaken belief must relate to a right that actually exists in civil law – when does a physical element “relate to property” – what is an “offence relating to the use of force against a person” |
Legislation Cited: | Criminal Code (Cth) ss 2.1, 3.1, 3.2, 9.5, 11.5. 400.3(1)(b)(ii) Criminal Code 2002 (ACT) chs 2, 3, ss 3, 6, 11, 12, 22, 23, 35, 36, 38, 44, 300, 308, 309, 310, 311, 312 Supreme Court Act 1993 (ACT) s 37S |
Cases Cited: | Bloxham v Wyte [2013] ACTSC 151; 278 FLR 365 Director of Public Prosecutions Reference No 1 of 1999 [2000] NTCA 6; 10 NTLR 1 Walden v Hensler (1987) 163 CLR 561 |
Texts Cited: | Criminal Law Officers Committee of the Standing Committee of Attorneys-General, Model Criminal Code. Chapter 2, General Principles of Criminal Responsibility: Final Report (Australian Government Public Service, 1992) Explanatory Memorandum, Criminal Code Bill 1994 (Cth) Explanatory Memorandum, Criminal Code Bill 2002 (ACT) Stephen Odgers, Principles of Federal Criminal Law (Thomson Reuters, 3rd ed, 2015) |
Parties: | The Director of Public Prosecutions (Applicant) Michael Wayne Booth (Interested Party) |
Representation: | Counsel Mr J White SC with Mr J Walker (Applicant) Mr M Hassall with Mr J Haddock (Interested Party) |
| Solicitors ACT Director of Public Prosecutions (Applicant) N/A (Interested Party) | |
File Number: | ACTCA 30 of 2017 |
Decision under appeal: | Court/Tribunal: ACTSC Before: Mossop J Date of Decision: 9 June 2017 Case Title: R v Booth Court File Numbers: SCC 197 of 2016; SCC 199 of 2016 |
THE COURT:
Background
The interested party was tried before a jury on charges of aggravated burglary and attempted aggravated robbery, which are offences against the Criminal Code 2002 (ACT) (the Code). In the case of each charge, the Crown relied on the aggravating features that the interested party was both in company and in possession of an offensive weapon.
The interested party and K were in a relationship. Both used illicit drugs. The complainant supplied illicit drugs to K. The couple was dissatisfied with the quality of the drugs and went to the complainant’s residence to discuss their concerns. The prosecution alleged that the interested party broke into the residence, threatened the complainant with a knife and demanded that she give him money.
At the trial, the interested party raised a “defence” of “claim of right” under s 38 of the Code, saying that he attended the complainant’s residence because he believed that he was entitled to a refund of the money that had been expended on the defective drugs, or should receive drugs in lieu of the defective drugs.
Section 38 of the Code provides:
38Claim of right
(1)A person is not criminally responsible for an offence that has a physical element relating to property if—
(a)when carrying out the conduct required for the offence, the person is under a mistaken belief about a proprietary or possessory right; and
(b)the existence of the right would negate a fault element for any physical element of the offence.
…
(3)This section does not negate criminal responsibility for an offence relating to the use of force against a person.
The trial judge decided that the “defence” was available and he directed the jury about a claim of right.
The interested party was acquitted on both charges.
The reference appeal
Pursuant to s 37S of the Supreme Court Act 1933 (ACT) (SCA), the Crown asked the Court to decide the following questions of law:
(a)Is a claim of right under s 38(1) of the Code available for the offence of aggravated burglary pursuant to s 312 of the Code?
(b)Is a claim of right under s 38(1) of the Code available for the offence of aggravated robbery under s 310 of the Code?
(c)Is either aggravated burglary or aggravated robbery “an offence relating to the use of force against a person” within s 38(3) of the Code?
A decision on a reference appeal does not invalidate or affect any verdict or decision given in the proceedings: SCA s 37S(6). It is designed to provide guidance on the correct application of law in the future.
The Court of Appeal has a discretion about whether to hear a reference appeal. For example, it may decline to do so if the question was not argued before the primary judge, or it is framed in a manner that is too imprecise or too complex: Director of Public Prosecutions v SC [2012] ACTCA 30; Director of Public Prosecutions v Walker [2011] ACTCA 1; 246 FLR 413.
10. In this case, when considering whether the jury should be directed about a claim of right, the trial judge expressed views that differed from those of Penfold J in Bloxham v Wyte [2013] ACTSC 151; 278 FLR 365 (Bloxham). Consequently, there is a conflict of authority in relation to the circumstances in which a claim of right applies under the Code.
11. Further, s 38 of the Code is in substantially the same terms as s 9.5 of the Criminal Code (Cth) (the Commonwealth Code) and there is a dearth of authority concerning the manner in which the Commonwealth provision operates. A decision on the applicant’s questions is likely to provide guidance on the correct application of both codes.
12. The reference appeal application was made well within the prescribed period of six weeks from the end of the proceedings.
13. It is appropriate for the Court to decide the questions of law in the application.
14. The parties agreed that the questions of law raised the following issues:
(a)Is the requirement for burglary of intent to commit theft “a physical element relating to property”?
(b)What is a “proprietary or possessory right” and what constitutes being “under a mistaken belief about a proprietary or possessory right”?
(c)What is “an offence relating to the use of force against a person”?
15. We consider these issues from [37] below.
The trial
16. In June 2017, the interested party was tried on charges that:
(a)On 9 February 2016, in the company of K and in possession of an offensive weapon, he entered the complainant’s residence as a trespasser with intent to commit theft of property in the building—aggravated burglary contrary to s 312 of the Code.
(b)On 9 February 2016, in the company of K and in possession of an offensive weapon, he attempted to commit the offence of aggravated robbery—attempted aggravated robbery contrary to ss 44 and 310 of the Code.
17. The Crown led evidence that, on the evening of 9 February 2016, the interested party and K attended the complainant’s house because they were dissatisfied with the quality of illicit drugs that she had supplied to K. After leaving briefly, they returned. They opened the complainant’s bedroom window and climbed through. The interested party demanded that the complainant give him “[his] money”. When the complainant did not do so, he produced a knife and threatened to stab her. The interested party and K attempted to seize the complainant’s handbag, but the complainant resisted. Eventually, the couple left the house without taking any property belonging to the complainant.
18. The interested party gave evidence that K had purchased drugs from the complainant, using joint funds. The drugs were intended for joint use. When the drugs were found to be ineffective, K and he went to the complainant’s residence to ask for effective drugs “or get our money back.” In accordance with his usual practice when attending the complainant’s residence, the interested party entered through the complainant’s bedroom window. The complainant refused to return the money. An argument developed. When the complainant telephoned “her big dealer to come and bash [the interested party]”, he left the premises briefly to obtain a steak knife in case it was needed in self-defence. He believed that he had a right to be at the premises and to obtain a refund of his money, or drugs in lieu of the defective drugs. He denied that he directly threatened the complainant with a knife, maintaining that he kept it in his pocket, with the blade protruding. He said that he did not use force in an attempt to remove the handbag and that, although there was an opportunity to take the complainant’s handbag, money or drugs, he did not do so because “it was the wrong thing to do”.
19. Defence counsel opened to the jury by saying that K had purchased drugs from the complainant and that, when the drugs were found to be “junk”, the couple went to the complainant’s residence “as they’re entitled to do, to seek a refund, essentially.”
20. Defence counsel began his final address to the jury by saying:
Ladies and gentlemen, the fact is in the Australian Capital Territory if you mistakenly believe that you have got a right to retrieve what you think is yours, you can go in with a shotgun, with a brass band, with a barking dog, with a brandished knife, it does not matter. The law says that that is a defence.
21. The trial judge directed the jury that the elements (ingredients) of aggravated burglary were that:
(a)The accused entered the building.
(b)The accused intended to enter the building.
(c)The accused entered the building without the consent of the occupier (trespass element).
(d)The accused was (at least) reckless about whether the occupier consented to his entry.
(e)When the accused entered the building, he intended to commit theft of property in the building, theft being the dishonest appropriation of property belonging to someone else, with the intention of permanently depriving that person of the property (dishonesty element).
(f)An aggravating feature was present (either that the accused was knowingly in company or that he knowingly had an offensive weapon with him).
22. The trial judge directed the jury that the elements (ingredients) of attempted aggravated robbery were that:
(a)The accused intended to carry out all the elements of the offence of aggravated robbery and took steps that were more than merely preparatory.
(b)The accused intended to appropriate property.
(c)The accused knew that the property belonged to someone else.
(d)The accused knew that the appropriation was dishonest according to the standards of ordinary people (dishonesty element).
(e)At the time of the appropriation, the accused intended to permanently deprive the other person of the property.
(f)The accused intended to use force on someone else, or threaten to use force then and there on someone else when committing the theft, or immediately before or immediately after committing the theft.
(g)An aggravating feature was present (either that the accused was knowingly in company or that he knowingly had an offensive weapon with him).
23. Defence counsel submitted that, under s 38 of the Code, a claim of right could apply to both the trespass element and the dishonesty element (ingredient) of a charge of aggravated burglary. Defence counsel submitted that it could apply to the dishonesty element (ingredient) of aggravated burglary. Counsel further submitted that s 38(3) (no claim of right for an offence relating to the use of force) did not apply to the offences in question.
24. The trial judge directed the jury that a claim of right was available in relation to the dishonesty ingredient of each charge (elements (e) and (d), respectively).
25. As to element (d) of the offence of attempted aggravated robbery, his Honour said:
Element 4 is that the accused intends or knows that the appropriation is dishonest according to the standards of ordinary people … In assessing whether somebody acts dishonestly, you are entitled to take into account what they think their rights are. If somebody has a genuine belief that they have a legal entitlement to take property, then the taking of that property is not dishonest.
…
So you must be satisfied beyond reasonable doubt that the accused did not genuinely believe that he would be legally justified in taking the money that was in [the complainant’s] wallet … That can be the case even if he was legally wrong to believe he was entitled to take the money and I direct you that he did not have any legal right to a refund or for further drugs…
However, a mistaken belief may be sufficient if he genuinely had it and it was a mistaken belief that he was entitled to take possession of the money. However, that mistaken belief must be as to a legal entitlement to possession or to have that money as his property. If he merely thought that he had a moral right to get money back from her in the circumstances, then that is not sufficient…
26. In relation to element (e) of aggravated burglary, his Honour directed the jury:
you must be satisfied beyond reasonable doubt that he did not genuinely, but wrongly, believe that he had a legal right to take the money.
27. The trial judge gave no direction in relation to the s 38(3) issue of whether, in the case of either charge, there was no claim of right because the offence “[related] to the use of force against a person” within s 38 (3) of the Code.
The Code
28. Chapter 2 of the Code is entitled “General principles of criminal responsibility”. It deals with matters such as the elements of offences (physical elements and fault elements), cases where fault elements are not required (offences of strict liability and absolute liability), the circumstances in which there is no criminal responsibility (lack of capacity because of childhood or mental impairment), intoxication, mistake and ignorance (including claim of right under s 38), proof of criminal responsibility and other general principles.
29. Section 6 is contained in Chapter 2, Part 2.1, which is entitled “Purpose and application —ch 2”:
6Purpose—ch 2
(1)The purpose of this chapter is to codify general principles of criminal responsibility under territory laws.
(2)It contains all the general principles of criminal responsibility that apply to any offence, irrespective of how the offence is created.
30. Sections 11 and 12 are within Part 2.2, which is entitled “The elements of an offence”:
11Elements
(1)An offence consists of physical elements and fault elements.
(2)However, the law that creates the offence may provide that there is no fault element for some or all of the physical elements.
12Establishing guilt of offences
(1)A person must not be found guilty of committing an offence unless the following is proved:
(a)the existence of the physical elements that are, under the law creating the offence, relevant to establishing guilt;
(b)for each of the physical elements for which a fault element is required—the fault element or 1 of the fault elements for the physical element.
…
(2)However, unless the law creating the offence otherwise expressly provides, a person can be found guilty of committing the offence even though, when carrying out the conduct required for the offence, the person is mistaken about, or ignorant of, the existence or content of a law that creates the offence.
…
31. Chapter 2, Part 2.3 deals with “Circumstances where there is no criminal responsibility”. Within Part 2.3, Division 2.3.4 is entitled “Mistake and ignorance”. It contains three provisions: ss 35, 36 and 38.
32. Section 35 deals with mistake of fact in the case of offences with a relevant physical element and associated fault element other than negligence. It provides:
35Mistake or ignorance of fact—fault elements other than negligence
(1)A person is not criminally responsible for an offence that has a physical element for which there is a fault element other than negligence if—
(a)when carrying out the conduct making up the physical element, the person is under a mistaken belief about, or is ignorant of, facts; and
(b)the existence of the mistaken belief or ignorance negates a fault element applying to the physical element.
(2)In deciding whether a person was under a mistaken belief about facts, or was ignorant of facts, the trier of fact may consider whether the mistaken belief or ignorance was reasonable in the circumstances.
33. Section 36 deals with mistake of fact in the case of strict liability offences (offences that have a physical element for which there is no fault element).
34. Prior to its repeal in 2005, s 37 provided that, in general, a person could be criminally responsible for an offence although they were mistaken or ignorant about the existence or content of the law creating the offence. Coinciding with the repeal of s 37, a modified form of the provision became s 12(2) of the Code: see [30] above.
35. Section 38 provides:
38Claim of right
(1)A person is not criminally responsible for an offence that has a physical element relating to property if—
(a)when carrying out the conduct required for the offence, the person is under a mistaken belief about a proprietary or possessory right; and
(b)the existence of the right would negate a fault element for any physical element of the offence.
(2)A person is not criminally responsible for any other offence arising necessarily out of the exercise of a proprietary or possessory right that the person mistakenly believes to exist.
(3)This section does not negate criminal responsibility for an offence relating to the use of force against a person.
36. Chapter 3 of the Code deals with offences of dishonesty: theft, fraud, bribery and the like. It includes the following provisions:
300Definitions—ch 3
In this chapter:
…
dishonest means—
(a)dishonest according to the standards of ordinary people; and
(b)known by the defendant to be dishonest according to the standards of ordinary people.
308Theft
A person commits an offence (theft) if the person dishonestly appropriates property belonging to someone else with the intention of permanently depriving the other person of the property.
…
309Robbery
A person commits an offence (robbery) if—
(a)the person commits theft; and
(b)when committing the theft, or immediately before or immediately after committing the theft, the person—
(i) uses force on someone else; or
(ii) threatens to use force then and there on someone else; with intent to commit theft or to escape from the scene.
with intent to commit theft or to escape from the scene.
…
310Aggravated robbery
A person commits an offence (aggravated robbery) if the person—
(a)commits robbery in company with 1 or more people; or
(b)commits robbery and, at the time of the robbery, has an offensive weapon with him or her.
…
311Burglary
(1)A person commits an offence (burglary) if the person enters or remains in a building as a trespasser with intent—
(a)to commit theft of any property in the building; or
…
312Aggravated burglary
A person commits an offence (aggravated burglary) if the person—
(a)commits burglary in company with 1 or more people; or
(b)commits burglary and, at the time of the burglary, has an offensive weapon with him or her.
…
Is burglary “an offence that has a physical element relating to property”?
37. A claim of right under s 38 of the Code applies to “an offence that has a physical element relating to property”.
Submissions
38. The applicant contended that the offence of burglary has no physical element “relating to property” because the requirement of “intent to commit theft of property” is not a physical element or a fault element, but an epexegetical matter of the type discussed in The Queen v LK [2010] HCA 17; 241 CLR 177 (LK).
39. The applicant submitted that there are only two physical elements to the offence of burglary: entering/remaining in a building (a physical element of conduct, for which the fault element is intention pursuant to s 22 of the Code); and being a trespasser at the time of entering/remaining (a physical element of circumstance, for which the fault element is recklessness pursuant to s 22 of the Code). The requirement of intent to commit theft of property is an “epexegetical” matter, i.e. a “factual matter stated as a condition of guilt” that “clarifies” the scope of an element and which the prosecution must prove beyond reasonable doubt in order to prove the guilt of an accused: LK at [134].
40. The interested party submitted that the expression “with intent to commit theft of any property in the building” in s 311(1)(a) of the Code is “a circumstance in which conduct…happens” and therefore a physical element of the offence of burglary.
Consideration
41. We do not accept the contention of the interested party that the requirement of intent to steal is a physical element of circumstance. Section 12(1) of the Code requires that there be a fault element for every physical element (although ss 11(2), 23 and 24 recognise that for offences of strict and absolute liability no fault element attaches). There is no corresponding express requirement that every fault element have a corresponding physical element. If the contention was correct and intent to steal was a physical element of circumstance, then there would be an associated fault element of recklessness: see s 22(2) of the Code. The concept of recklessness in relation to intent is illogical.
42. The applicant’s submission that the requirement of intent to commit theft of property in a building is not an element of the offence of burglary but, rather, is an epexegetical matter is itself problematic.
43. Section 6 of the Code (which mirrors s 2.1 of the Commonwealth Code) states that the purpose of the Code is to contain “all the general principles of criminal responsibility that apply to any offence, irrespective of how the offence is created.” Section 11(1) (which repeats s 3.1 of the Commonwealth Code) provides that “an offence consists of physical elements and fault elements.” Section 12 (which is similar to but not the same as s 3.2 of the Commonwealth Code) provides that a person must not be found guilty of an offence unless the prosecution proves the existence of the physical elements creating the offence and, for each physical element for which a fault element is required, the fault element.
44. Nowhere does the Code mention that, in order to prove some offences, the prosecution must prove an “epexegetical” matter that is an ingredient (but not an element) of the offence. The applicant’s analysis leads to the odd result that the gravamen of the offence of burglary—entering with intent to steal—is not accorded the status of an element but is an “epexegetical” matter, something that is important to criminal responsibility yet is not expressly acknowledged by the Code, which purports to codify general principles of criminal responsibility.
45. In LK, the High Court, in effect, determined that, in the case of some Commonwealth Code offences, as well as proving physical elements and fault elements, the prosecution must prove an “epexegetical” matter or matters. The accused had been charged under s 11.5 of the Commonwealth Code with conspiracy to commit the offence of money laundering. Section 11.5(1) of the Commonwealth Code states that a person who conspires with another to commit an offence punishable by imprisonment for more than 12 months is guilty of the offence of conspiracy to commit an offence. Under s 11.5(2), “[f]or the person to be guilty” three requirements must be satisfied, including the requirement under s 11.5(2)(b) that “the person and at least one other party to the agreement must have intended that an offence would be committed pursuant to [an] agreement”. The appellant contended that this requirement was not an element of the Commonwealth Code offence of conspiracy.
46. At [132]–[133], the plurality stated:
The physical element of conduct involving entry into the agreement is specified in s 11.5(1). The “agreement” to which s 11.5(2)(b) refers is, again, the agreement that is criminalised in s 11.5(1) … Under the Code, fault elements apply to physical elements of an offence. The fault elements of intention, knowledge and recklessness are defined by reference to particular physical elements whether of conduct, circumstance or result … Section 11.5(2)(b) does not specify a physical element to which the intention of which it speaks applies.
Paragraphs (a) and (b) of s 11.5(2) are epexegetical of what it is to “conspire” with another person to commit an offence within the meaning of s 11.5(1) … Neither is the specification of an element of the offence within Pt 2.2.
47. To a similar effect, at [57] French CJ stated that the elements of the offence of conspiracy are contained in s 11.5(1). Section 11.2 does not define elements; in particular, the s 11.5(2)(b) requirement of intention to commit another offence is not a fault element that relates to a physical element comprising conduct, circumstance or result.
48. In Milne v The Queen [2014] HCA 4; 252 CLR 149 (Milne), the Court considered an offence of dealing with money or property where, under s 400.3(1)(b)(ii) of the Commonwealth Code, “the person intends that the money or property will become an instrument of crime”. At [13], the plurality observed that dealing with money was a physical element of conduct that attracted a fault element of intention. The plurality observed that s 400.3(1)(b)(ii) “defines an element of intention” and went on to say “[w]hether it can or should be characterised as a fault element or otherwise need not be explored for the purposes of this appeal”.
49. At [5.1.115] of Stephen Odgers, Principles of Federal Criminal Law (3rd ed) (Odgers), the author points out that there is no express statutory requirement that a fault element must be “for” a physical element of the offence and asserts that there is an available view that the Code permits freestanding fault elements which coexist with a physical element. This may be the possibility to which the High Court was adverting in Milne at [13].
50. Regardless of whether the Criminal Code or the Code allows for the possibility of fault elements that are not attached to a physical element, s 38 expressly states that claim of right applies where the existence of the asserted proprietary or possessory right “would negate a fault element for any physical element of the offence”. Consequently, the question of whether the codes allow for freestanding fault elements is irrelevant to the issue under consideration.
51. As we have concluded that intent to commit theft of property is not a physical element of the offence of burglary, it necessarily cannot be “a physical element relating to property”. Consequently, a s 38 claim of right is not available for the offence of burglary or aggravated burglary.
52. Nevertheless, we will make some observations about the general issue of when a physical element is one that “relate[s] to property”.
When does a physical element “relate to property”?
Submissions
53. The applicant submitted that for an offence to have “a physical element relating to property” the relationship to property must be inherent to an element of the offence; it is not enough that, in the facts of the particular case under consideration, there is a relationship between an element and property. The applicant further submitted that, of the two physical elements for the offence of burglary (the conduct element of entering or remaining in a building, and the circumstance element of being a trespasser), neither had a material relationship to property.
Consideration
54. The Dictionary to the Code contains an inclusive definition of “property” that does not assist in this case; it provides that “property” includes electricity, gas and other specific things.
55. The Dictionary to the Legislation Act 2001 (ACT) (Legislation Act) defines “property” as follows:
property means any legal or equitable estate or interest (whether present or future, vested or contingent, or tangible or intangible) in real or personal property of any description (including money), and includes a thing in action.
56. The applicant relied on the decision of Penfold J in Bloxham. In that case, the appellant had kicked a police officer who was attempting to remove the numberplates from the appellant’s unregistered vehicle. She was charged with hindering a public official in the exercise of their functions. She claimed that she had mistakenly believed that the police officer was not exercising a function as a public official and was not authorised to remove the plates. She said that her actions were justified by a claim of right under s 38 of the Code. At [70], Penfold J said:
The phrase “physical element” as used in s 38(1) is a technical term in the Criminal Code; s 11(1) provides that “An offence consists of physical elements and fault elements”. Section 38(1) does not refer to offences that might in some circumstances happen to have a particular physical aspect, such as the physical confrontation involved in the incident as a result of which Ms Bloxham was charged with hindering. The parties agreed that s 38(1) was not applicable in relation to the hindering offence, since that offence … has no physical element relating to property.
57. We respectfully agree with her Honour’s observations.
58. The approach for which the applicant contended is further supported by the legislative history relating to the claim of right provision in Commonwealth Code.
59. Walden v Hensler (1987) 163 CLR 561 (Walden) was an important, recent decision at the time that the Commonwealth Code was being developed. In Walden, the Court considered a claim of right provision that concerned “an offence relating to property”. At 574–575, Brennan J interpreted the provision narrowly, holding that “it applies only to offences in which the causing of another to part with property or the infringing of another’s rights over or in respect of property is an element” (emphasis added).
60. The Commonwealth Code was enacted following a report published by a committee set up by the Commonwealth Government, the Model Criminal Code Officers Committee (MCCOC). The report contained draft legislation that was substantially enacted as ch 2 of the Commonwealth Code. The MCCOC draft provision relating to claim of right provided that “a person is not criminally responsible for an offence relating to property …” (emphasis added). However, as enacted, s 9.5 of the Commonwealth Code and s 38 of the Code adopted a significantly narrower expression: “A person is not criminally responsible for an offence that has a physical element relating to property” (emphasis added). By this means, the legislature put to rest any argument that a claim of right could apply whenever the circumstances of a particular offence related to property.
61. A clear example of an offence that has a physical element relating to property is the offence of theft under s 308 of the Code. The offence of theft includes the physical element of the conduct of taking property. Robbery and aggravated robbery are also offences that have “a physical element relating to property” because they include the physical element of appropriating property.
What is a “proprietary or possessory right”, and what is “a mistaken belief about a proprietary or possessory right”?
62. Under s 38 of the Code, a “defence” of claim of right may apply if, when carrying out the conduct required for an offence, the accused is “under a mistaken belief about a proprietary or possessory right” and “the existence of the right would negate a fault element for any physical element of the offence”.
Submissions
63. The applicant’s primary submission was that, under s 38 of the Code, a genuine but mistaken belief must concern a proprietary or possessory right that actually exists at civil law. As an agreement to supply illicit drugs is illegal and cannot give rise to any civil law remedy, it cannot found a claim of right. The applicant submitted that, if a person believed that an agreement for the supply of illicit drugs gave rise to a legally enforceable right to a refund or set-off, that belief was based on ignorance of the law and could not found a claim of right. Consequently, the person had no “defence” of claim of right in relation to either charge.
64. The interested party submitted that, under s 38 of the Code, a mistaken belief need not relate to a civil law right that actually exists.
65. The applicant’s alternative submission was that, on the defence case at the trial of the interested party, no issue of claim of right arose. The interested party denied an intention to appropriate anything. His case was that he asked for a financial reimbursement or a reimbursement in kind. He claimed no “proprietary or possessory right” to particular money. At most, he claimed a set-off or compensation arising from the supply of drugs that were not of merchantable quality.
66. We decline to deal with the applicant’s alternative submission. It does not raise a question of law that is of general application.
Consideration
67. As s 38 of the Code is based on the Commonwealth Code, the issue of whether a mistaken belief must relate to a civil law right that actually exists requires an understanding of the case law background against which the Commonwealth Code was developed.
Case law prior to the Commonwealth Code
68. Walden concerned the claim of right provision in s 22 of the Criminal Code 1899 (Qld) (the Queensland Code)—a “Griffiths Code” that was modelled on a code originally drafted by Sir Samuel Griffiths. Section 22 provided that, absent an express provision to the contrary, ignorance of the law was no excuse but a person was not criminally responsible “for an act done … with respect to any property in the exercise of an honest claim of right …” An Indigenous person who had taken and kept fauna without a licence asserted that he had done so in the honest exercise of traditional hunting rights. The case preceded the High Court decision in Mabo v Queensland (No 2) (1992) 175 CLR 1. The Court found that there was no “defence” of claim of right under s 22.
69. At 570, Brennan J explained the rationale for a claim of right as follows:
To render a person liable to punishment for an offence relating to property when, under a mistake of law, he acts honestly claiming a right to do what he does and when he has no intention to defraud would make the criminal law unjustly oppressive: it would expose him to the peril of conviction for an offence because of a legal mistake about his private rights.
At 573, Brennan J noted that the common law “defence” of claim of right was reformulated by the statutory provision under consideration, which operated to preclude criminal responsibility regardless of whether there was a mental element in the offence charged which would be negated by an honest claim of right, but only if the offence was “an offence relating to property”.
70. In a passage that was later approved by a majority of the High Court in MacLeod v The Queen [2003] HCA 24; 214 CLR 230 at [41] and [104], in Walden at 592–593 Dawson J said:
It is not ignorance of the criminal law which founds a claim of right, but ignorance of the civil law, because a claim of right is not a claim to freedom to act in a particular manner—to the absence of prohibition. It is a claim to an entitlement in or with respect to property which goes to establish the absence of mens rea. A claim of that sort is necessarily a claim to a private right arising under civil law…
At 593 his Honour explained that a belief that founded a claim of right was a belief by the claimant that they were exercising:
a legal entitlement to [property] arising under civil law which would negate the criminal intent involved in the offence [charged]…
71. The distinction between a claim of right that negates a mental element and a claim of right that applies more generally (as with s 22 of the Queensland Code) may be significant in appreciating the limitations of applying some of the judicial observations made in Walden when interpreting the claim of right provisions in the Code and the Commonwealth Code. The offence of keeping fauna without a license that was considered in Walden was an offence of strict liability; it did not involve an element of intent. The Code and the Commonwealth Code provisions clearly separate considerations of mistake of fact (further separating mistake of fact in the case of strict liability offences from mistake or ignorance of fact in the case of offences involving intention, knowledge or recklessness), mistake about private civil law rights (claim of right) and mistake about or ignorance of the criminal law (s 12(2) of the Code).
72. Despite these qualifications, an understanding of Walden does aid an interpretation of the Commonwealth Code and the Code.
73. In Walden at 581, Deane J explained:
In the ordinary case where knowledge of the criminal law is assumed however, a defence of claim of right will not be well founded unless what was claimed or believed would, if it were the fact, have negatived an element of the actual offence or provided a good defence to it.
At 583, his Honour said:
In the case of the owner or the traditional hunter of the fauna, the defence that what was done was done in the honest exercise of ownership or traditional hunting rights amounts to no more than an assertion that the accused was unaware that the relevant criminal law applied to outlaw the particular exercise of ownership or traditional hunting rights.
74. In a dissenting judgment, to a not dissimilar effect at 608–609, Gaudron J said:
In the present case, the foundation of Mr Walden’s claim of right is based on his membership of an Aboriginal community and the customs of that community. That seems to me to lay a sufficient foundation for a claim of right, provided that the claim is made by reference to some supposed operation of the law, for within a legal context, rights do not exist in the abstract. A right must mean a right in law, and not merely one which owes its existence to a moral order, religious code or other non-legal regimen. A claim of right predicated on the customs of the Aboriginal community does not, without more, constitute a claim of right within the contemplation of s. 22 of the Code.
75. The above passages from the decisions of Dawson and Gaudron JJ emphasise that a claim of right must be based on a mistaken belief about a civil law right and cannot be based on other claimed rights, such as a customary law right or a moral right.
76. In Director of Public Prosecutions Reference No 1 of1999 [2000] NTCA 6, the Court considered a provision concerning “an honest claim of right” that also provided that “ignorance of the law does not afford an excuse”. At [41], the Court relied on Walden, stating that “the belief in the right must be a belief in a right recognised by law, even if the belief is unsoundly based”. The Court found that an honest belief based on Aboriginal law was insufficient.
77. In R v Fuge [2001] NSWCCA 208; 123 A Crim R 310, 314 (Fuge), Wood CJ at CL summarised the principles derived from the authorities on claim of right at common law as including the following (omitting citations):
(a) the claim of right must be one that involves a belief as to the right to property or money in the hands of another;
(b) the claim must be genuinely, ie, honestly held, it not being to the point whether it was well founded in fact or law or not;
(c) …;
(d) the belief must be one of a legal entitlement to the property and not simply a moral entitlement;
(e) the existence of such a claim, when genuinely held, may constitute an answer to a crime in which the means used to take the property involved an assault, or the use of arms; the relevant issue being whether the accused had a genuine belief in the legal right to the property rather than a belief in a legal right to employ the means in question to recover it;
(f) the claim of right is not confined to the specific property or banknotes which were once held by the claimant, but can also extend to cases where what is taken is their equivalent in value …
…
(emphasis added)
78. Principles (b) and (e) accept that, at common law, a claim of right may be based on an honest belief in a civil law right even when, as a matter of civil law, there is no such entitlement. This principle was applied in R v Sabbah [2004] NSWCCA 28 (Sabbah) and R v Bedford [2007] SASC 276; 98 SASR 514 (Bedford).
79. In Sabbah, the appellant asserted a claim of right, saying that he had committed an alleged robbery in the course of recovering a debt on behalf of another person, Abraham. Ipp JA (with whom Sully and Adams JJ agreed) applied the principles in Fuge, including the principle that, if a belief is honestly held, it does not matter whether it is well-founded in fact or law. At [105], Ipp JA concluded that, as there was insufficient evidence to support an inference that the appellant believed that Abraham had a lawful entitlement to the money, it had been unnecessary for the trial judge to give a direction about claim of right.
80. The Court took a similar approach in Bedford, although the majority arrived at a different result. The appellant was tried on a charge of aggravated robbery and convicted of an alternative charge of attempted robbery. The defence case was that the complainant was a drug supplier who had supplied the appellant with a “bad deal” of heroin; the appellant had returned to the complainant’s premises to demand a refund or heroin in lieu. The issue was whether the trial judge should have left the “defence” of claim of right to the jury. On appeal, the Court considered a statutory provision that said that conduct was “not dishonest if the person honestly but mistakenly believes that he or she has a legal or equitable right to act in that way”. The parties and the Court accepted that the issue of claim of right was raised by a mistaken belief in a legal or equitable right, regardless of whether that right could ever exist in the circumstances. The majority (Duggan and Vanstone JJ) held that the issue of claim of right should have been left to the jury because a mistaken belief in the existence of a legal right is sufficient to raise the “defence”. Vanstone J observed that in Sabbah there was no direct evidence establishing a claim of right and no basis for leaving that “defence” to the jury, whereas in Bedford there was an evidentiary basis for leaving it to the jury, albeit a slim basis. In a dissenting decision, Gray J held that the evidence fell well short of supporting a reasonable inference that the appellant had an honest but mistaken belief in a legally enforceable right as, on the evidence, the appellant was well aware that the supply of drugs was illegal.
81. In summary, this line of cases establishes that, at common law and under legislation based on common law, a genuine but mistaken belief in a civil law right relating to property can found a “defence” of claim of right. It does not matter that, in the general or particular circumstances of a case, the civil law right could never arise. In other words, a claim of right arises where the accused asserts a genuine but mistaken belief about a civil law right relating to property, regardless of whether, at civil law, there could ever be a remedy.
Mistake under the Commonwealth Code and the Code
82. The Code and the Commonwealth Code refer to a mistaken belief about a “proprietary or possessory right”. The term “proprietary or possessory right” is not defined in either code. However, the Legislation Act defines “property” broadly, as follows:
property means any legal or equitable estate or interest (whether present or future, vested or contingent, or tangible or intangible) in real or personal property of any description (including money), and includes a thing in action.
Note A thing in action is an intangible personal property right recognised and protected by the law. Examples include debts, money held in a bank, shares, rights under a trust, copyright and right to sue for breach of contract.
83. Consistent with this definition of “property”, a right to sue for breach of contract is a “proprietary right” and a “mistaken belief about a proprietary right” includes a mistaken belief about a civil law right to sue for breach of contract.
84. At civil law, a drug user who brought a claim against their drug supplier based on the breach of a term of the agreement to supply good quality illicit drugs would have no remedy. An agreement that necessarily involves doing something that is prohibited by statute is usually unenforceable: Equuscorp Pty Ltd v Haxton [2012] HCA 7; 246 CLR 498 at [23]. This is so irrespective of the parties’ knowledge and intention: SA Hutchinson v Scott (1905) 3 CLR 359, 369, cited in REW08 Projects Pty Ltd v PNC Lifestyle Investments Pty Ltd [2017] NSWCA 269, where the qualifications to the general rule are discussed at [20]–[22]. The qualifications are irrelevant to this case, where the central activity of the agreement was illegal and the relevant facts were known to both the dealer and the interested party as purchaser of the illicit drugs.
85. However, the fact that, at civil law, a drug purchaser cannot succeed in a claim for breach of agreement by a drug supplier, does not in principle prevent a drug purchaser from mistakenly believing that there is a civil law right. However, in any given case, there may be a live question as to whether such a belief was in fact subjectively held. That is the issue we have declined to consider in this case, not least because it is essentially a question for the tribunal of fact.
86. The draft MCCOC provision stated that a person was not criminally responsible for an offence relating to property if “he or she was under a mistaken belief about a proprietary or possessory right which, had it existed, would have negated a fault element of the offence” (emphasis added). The applicant relied upon the fact that, as enacted, neither the Commonwealth Code provision nor the Code provision includes the italicised words. The applicant submitted that the removal of the words “had [any proprietary or possessory right] existed” indicated that the intention of the legislature was that a claim of right would apply only in circumstances where a civil law right of the type in question actually exists and could lead to a remedy.
87. We disagree. Neither the report accompanying the MCCOC draft legislation nor the Explanatory Memorandum to the Commonwealth Code aid an understanding of why the italicised words were removed. However, the common law and case law context in which s 9.5(1) (the Commonwealth Code equivalent to s 38) was developed, and the generality of the expression “a proprietary or possessory right” do not support an interpretation that s 38 applies only in circumstances where a civil law right of the type in question actually exists and could result in a remedy. Historically, a mistake about the existence of a civil law right has raised the defence of claim of right, whether or not the belief is well founded in law.
88. However, in order to have a mistaken belief about a proprietary or possessory right, a person must have a positive belief that there is such a right; a failure to advert to a matter does not amount to a positive belief about it. Ignorance of civil law rights does not enliven s 38. In that respect, s 38 stands in contrast to s 35, which provides a “defence” where a person is either mistaken or ignorant about facts.
89. It may be a moot point whether, in this case, there was adequate evidence to support a relevant positive but mistaken belief on the part of the interested party. However, as noted above, we decline to deal with that point on the reference appeal.
90. We note in passing that in Odgers, the author contends, at [9.5.100], that s 9.5(1) of the Commonwealth Code (equivalent to s 38 of the Code) is superfluous because if a person is under a mistaken belief about the existence of a proprietary or possessory right then that belief must mean that the fault element cannot be proved, regardless of the existence of s 9.5(1). The author cites the example of the offence of theft, where the prosecution must prove the dishonest appropriation of property. The author argues that, if a person mistakenly believes that they have a proprietary or possessory right to the property, then it is difficult to see how their appropriation of the property could be dishonest.
91. However, we consider that there is still significant scope for s 38 of the Code to operate. In the example of theft, where the prosecution must prove the dishonest appropriation of property, regard must be had to the definition of “dishonest”. Section 300 of the Code defines “dishonest” as dishonest “according to the standards of ordinary people” and “known by the [accused] to be dishonest according to the standards of ordinary people”. However, under s 38 a mistaken subjective belief in the existence of a civil law right will suffice, however bizarre or unreasonable it may be.
What is “an offence relating to the use of force against a person”?
92. Pursuant to s 38(3), a “defence” of “claim of right” is not available for “an offence relating to the use of force against a person”.
93. In Bloxham, Penfold J briefly considered the issue of whether s 38(3) describes offences that in fact involve the use of force or offences “in which the use of force is inherent”. Her Honour concluded that the provision described the former category: offences that involve the use of force against a person in their actual commission.
Submissions
94. Ultimately, the parties agreed that s 38(3) applies to exclude the operation of s 38(1) where an ingredient of an offence relates to the use of force against a person; it does not extend to all criminal conduct involving the use of force against a person.
95. The interested party went further, contending for a very narrow interpretation of s 38(3). Relying on the Explanatory Memoranda to the Code and the Commonwealth Code, the interested party submitted that s 38(3) is limited to offences that relate only to the use of force against a person and contain no other significant ingredients.
96. The applicant submitted that, in considering whether s 38(3) applies, all ingredients of an offence must be considered. As one ingredient of the offence of robbery is the use or threatened use of force against a person, the offence of attempted aggravated robbery is “an offence relating to the use of force against a person”. The applicant submitted that aggravated burglary is “an offence relating to the use of force against a person” where the aggravating feature upon which the prosecution relies is that the person has an offensive weapon with them.
Consideration
97. We agree with the submission of the parties that s 38(3) applies where an ingredient of an offence relates to the use of force against a person. The language of the provision and its purpose supports this interpretation.
98. Section 38(3) applies to “an offence relating to the use of force against a person” (emphasis added). The Dictionary to the Code states that an “offence” means “an offence against a law”. Under s 11(1) of the Code, “an offence consists of physical elements and fault elements” (emphasis added). As discussed above, in order to establish some offences it is necessary for the prosecution to prove not only physical elements and fault elements but also epexegetical matters. For convenience, we will refer to the physical elements, the fault elements and the epexegetical matters that must be proved to establish an offence as the “ingredients” of the offence.
99. In Bloxham at [81], Penfold J compared the reference in s 38(1) to “an offence that has a physical element relating to property” (emphasis in original) with the reference in s 38(3) to “an offence relating to the use of force” (emphasis in original). Her Honour considered that the comparison supported a view that s 38(3) describes offences that in fact involve the use of force, not merely offences in which the use of force is inherent.
However, if “an offence” consists of ingredients, then “an offence relating to the use of force against a person” means “an offence that includes an ingredient that relates to the use of force against a person”.
Section 38(3) differs from the MCCOC draft provision, which provided, “[t]his section does not negate criminal responsibility for the use of force against a person” (emphasis added). The abandonment of the reference to mere “use of force against a person” and the adoption of the expression, “an offence relating to the use of force against a person”, demonstrates an intention to focus on the offence provision that is in question, rather than the actual conduct involved in a particular offence.
In Bloxham, Penfold J opined that policy considerations support the broader interpretation of s 38(3). At [82], her Honour said:
Furthermore, a general policy of not permitting a claim of right to be used to justify the use of force to commit an offence (except where self-defence might arise) makes more sense than a policy of excluding reliance on a claim of right in relation to offences with a physical element relating to the use of force but permitting reliance on a claim of right in relation to offences the commission of which happens in a particular case to involve the use of force.
It is difficult to gainsay a public policy of refusing a “defence” that could justify the use of force in the course of criminal conduct. No doubt, the purpose of s 38(3) is to limit claims of right insofar as offences of (or involving) force are concerned.
However, in working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred: Legislation Act s 139. “[W]orking out the meaning of an Act” includes “(c) finding the meaning of the Act when its apparent meaning leads to a result that is … unreasonable” and it may even mean “(b) … displacing the apparent meaning of the Act”: Legislation Act s 138.
While, in theory, a limitation that applies to all criminal conduct of a forceful nature may better effect the purpose of s 38(3), at a practical level it would be very difficult to implement the purpose in that way.
The facts of the present case illustrate the difficulty. The defence case was that the interested party used no force but merely requested a refund or drugs in lieu. On the other hand, the Crown alleged that considerable force was used. If the s 38(3) limitation applied to all criminal conduct of a forceful nature then, in order to determine whether s 38(3) applied to the offence of attempted aggravated robbery, the jury would first have had to determine whether the prosecution case about force was made out. On the other hand, if the application of the s 38(3) limitation is to be determined by reference to the ingredients of an offence, then the judge can determine whether the “defence” is capable of applying.
A complicating factor concerns the meaning that attaches to the requirement that, for s 38(3) to apply, the offence must “relat[e] to the use of force”. What does “use of force” mean in this context? In this case, we have not been asked to consider that question.
We do not accept the interested party’s submission that s 38(3) is restricted to offences that concern only the use of force against a person and have no other ingredients. The interested party’s submission was based solely on part of the Explanatory Memorandum to the Commonwealth Code, which states:
[P]roposed subsection 9.5(3) precludes claim of right in relation to the use of force. Thus in an armed robbery where a defendant had a claim of right in relation to the goods taken, the defendant could still be convicted of the armed assault.
It is difficult to understand this statement and it does not aid the interpretation of s 38(3).
There is nothing in the language of s 38(3) that suggests that it should be limited in the manner suggested by the interested party. Further, in the case of an offence constituted only by the use of force against a person (such as assault), it is unlikely if not impossible that a claim of right could arise because, pursuant to s 38(1), a claim of right is limited to offences that also “[have] a physical element relating to property”.
We conclude that an attempted aggravated robbery is an offence “relating to the use of force against a person”. It is an ingredient of the offence that the accused intended to use or threatened to use force against a person.
However, aggravated burglary is not an offence “relating to the use of force against a person” where the aggravating feature is that, at the time of the burglary, the accused has an offensive weapon with them. Merely “having” an offensive weapon does not lead to the necessary inference that the weapon will be used, let alone used to apply force or threaten the use of force.
Additional submissions re s 38(2)
At the trial, the applicant sought to canvass the meaning of the s 38(2) expression, “any other offence arising necessarily out of the exercise of a proprietary or possessory right that the person mistakenly believes to exist” (emphasis added), but conceded that the issue did not arise directly on the appeal.
We decline to consider issues associated with s 38(2), including the breadth of the expression, “arising necessarily”.
Answers to questions
In summary, we answer the questions as follows:
(a)Is a claim of right under s 38(1) of the Code available for the offence of aggravated burglary contrary to s 312 of the Code?
No—because the ingredient of intent to commit theft of property is not “a fault element relating to a physical element” to which a claim of right could attach under s 38 of the Code.
(b)Is a claim of right under s 38(1) of the Code available for the offence of attempted aggravated robbery contrary to s 310 of the Code?
No—because s 38(3) operates to preclude a claim of right in the case of an offence of attempted aggravated robbery.
(c)Is either aggravated burglary or aggravated robbery an offence “relating to the use of force against a person” within the meaning of s 38(3) of the Code?
Aggravated robbery—or attempted aggravated robbery—is such an offence.
Aggravated burglary—where the aggravating feature is having an offensive weapon—is not such an offence.
| I certify that the preceding one hundred and fifteen [115] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Chief Justice Murrell, Justice Burns and Justice Bromwich. Associate: Date: 29 March 2018 |
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